Below is my application to join Graham Moore's Judicial Review of Home Office policy in respect of arms for defence.
I do not like talking about myself but in this case it was necessary in order to put the best possible case for being an "Interested Party".
The Home Office have responded to Graham's initial application and the answer to that is being worked on.I will ask Graham before circulating it.
Graham Moore v. The Secretary of State for the Home Department.
Case Number CO/3135/2017.
Summary of grounds for joining as an “Interested Party by JBH.
I have received training in the use of firearms as a Commissioned Officer in the Territorial Army and in the policing of firearms possession and administration of the legislation in respect of the issue of certificates during my 30 years police service. I have held personal shotgun and firearms certificates for many years and have trained many people in the safe use of firearms of all kinds. I was the secretary of a National Rifle Association affiliated and Home Office Approved rifle and pistol club. Since retiring from the Metropolitan Police in 2008 I have been an occasional expert witness and “McKenzie friend” in litigation concerning firearms.
I, with the agreement of Mr. Graham Moore (The Applicant) believe that I have interests in this case for the following reasons, original research that I have conducted with others into the Declaration of Rights, first-hand information about the Burke case cited by the Home Office, my part in the raising of a petition made to The Sovereign by a Barons Committee formed per Article 61 of Magna Carta in 2001, some informed proposals for an amended system for the administrative control of the supply and use of firearms and an outstanding claim against the Home Office for ultra vires seizure of my property.
In 1997, when it was proposed by Parliament to sieze pistols from certificate holders following an incident at Dunblane, my associates and I began legal research concerning the Declaration and Bill of Rights. We corresponded with the House of Commons library and were furnished with a copy of a Paper on the Bill of Rights:
“Gun control and the Bill of Rights.
The library has received a large number of enquiries, which appear to be the result of campaigns among shooters opposing the new provisions on firearms control. Because of the initial influx of such enquiries, I prepared a section on the alleged constitutional implications of the then Bill as part of our research paper which we published for its second reading debate.
There are a numbers of variants of the message sent to members which contain a reference to the Members oath of allegiance. I assume that the argument put forward by shooters is along the following lines;
(1) The Bill of Rights 1689 requires all officers and ministers to serve the Monarch according to its provisions.
(2) The Bill of Rights 1689 protects citizen’s rights to bear arms and not to have their property confiscated.
(3) Therefore Members who support this sessions legislation may be in breach of their oath of allegiance.
The 1997 Act does not appear to refer at all to the 1689 Statute, and any claims that the earlier statute has been impliedly amended or, indeed, that Parliament has no power to make such amendments, would have to be matters for the Courts if put before them.
It is perhaps of interest that, notwithstanding the apparently widespread lobbying on Bill of Rights grounds, virtually no mention of this argument was made during the Bill’s passage through Parliament”
(Document Ref. 4321 97/3/14HA BKW/aor. 4th March 1997)
The briefing document referred to is Research Paper 96/102 dated 8th November 1996. Page 75 quotes the case of Bowles v. Bank of England and confirms that the Bill of Rights remains an operative statute. Page 10 contains the following passage;
“ The underlying purpose of firearms legislation in the UK is to control the supply and possession of all rifles, guns and pistols which could be used for criminal or subversive purposes while recognising that individuals may own and use firearms for legitimate purposes...”
At that time, there was no publicly available transcript of the Declaration of Rights. It was necessary, per Pepper v. Hart (1992) to determine what the text was in order to correctly interpret the Bill of Rights. One of our number, Mr. John Bingley, visited the House of Lords library, photographed and transcribed that document. He subsequently engaged in correspondence with government ministers and obtained certain assurances about the effect of the Declaration and Bill of Rights, the Coronation Oath and Accession Declaration. A link to his most recent public presentation on that subject to a conference of the British Constitution Group (Of which I am a member) is here:
A copy of the presentation has been lodged with the Court and served on the respondent. Mr. Bingley is prepared to give evidence in person if required.
One outcome of our researches was that In February 2001, The Sovereign was served with a Petition per Article 61 of Magna Carta by representatives of a Barons Committee which was formed following petitioning of all members of the House of Lords by the public about further “integration” with the European Union. One of the grievances which The Lords were petitioned about was Mr. Burkes case:
“In late 1998 and early 1999 the Magna Carta Society supported Mike Burke in raising a test case on constitutional law, an application for judicial review and appeal on the right to keep and bear arms (RKBA) issue (Secretary of State for the Home Department Ex Parte Michael James Burke).
Three Judges of the Court of Appeal, in abnegation of their oaths of office and in the face of overwhelming legal arguments to the contrary, made this declaration in their judgement:
"Mr. Burke then takes a third point. He says that the Secretary of State has wrongly fettered his discretion, in that he is refusing all who wish to carry arms for their personal protection. However, as the letter of 2nd October makes clear, he does make exceptions where there is a need from the nature of their trade, profession, occupation or business, but those exceptions are subject to his present policy, namely that authority shall not be granted to those who need them for personal protection purposes. That is a policy which the Secretary of State is entitled to have. There is nothing improper in him having it. It does not assist Mr. Burke . Therefore, this application must be refused....".
This placed "policy" above the law., in particular the principle that a person with responsibility for “Quasi-judicial” decision making may not fetter their discretion. This is commonly known as the “Wednesbury” test per Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.
There is statutory provision to the same effect in sections 3 and 12 of the Interpretation Act 1978 and in the unrepealed Bill of Rights itself in its body and in the prohibition on dispensations by Non-obstantes in section II.
The common law requirement for the subject to be armed can be proved by reference to the Sheriff’s Act 1887. Here is section 8 as it was originally enacted:
“8 Powers of sheriff for posse comitatus
(1) Every person in a county shall be ready and apparelled at the command of the sheriff and at the cry of the country to arrest a felon whether within a franchise or without, and in default shall on conviction be liable to a fine, and if default be found in the lord of the franchise he shall forfeit the franchise to the Queen, and if in the bailiff he shall be liable besides the fine to imprisonment for not more than one year, or if he have not whereof to pay the fine, than two years.
(2) If a sheriff finds any resistance in the execution of a writ he shall take with him the power of the county, and shall go in proper person to do execution, and may arrest the resisters and commit them to prison, and every such resister shall be guilty of a misdemeanor…”.
Section 8(1) was repealed by the Criminal Law Act 1967. The long tile to the1887 Act is this:
“An Act to consolidate the Law relating to the office of Sheriff in England, and to repeal certain enactments, relating to Sheriffs which have ceased to be in force or have become unnecessary…”.
My understanding of this is that the repeal of a statute which gives effect to a common law rule restores that rule so the common -law requirement for the “Power of the County” to be “ready and apparelled” remains in force. In any case, this custom would be protected by the Coronation Oath.
Application of these tradition methods for law enforcement would, in my professional opinion, go a long way to recovering what are known as “No go” areas in many of our cities.
The authority for the Magna Carta Societies resort to Petitioning the House of Lords is described in this passage from Blackstone which also confirms the right to possess arms for defence:
“The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W.& M. st. 2, c.2, and it is indeed a public allowance under due restrictions, of the natural right of resistance and self- preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties, more generally talked of than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other.
And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliament be supported in full vigour; and limits, certainly known, be set to the royal prerogative.
And lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence.
And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints - restraints in themselves so gentle and moderate, as will appear upon further enquiry, that no man of sense or probity would wish to see them slackened.
For all of us have it in our choice to do everything that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow-citizens."
Pages 143 and 144 of the first volume of the 21st edition of Sir William Blackstone's 'Commentaries on the Laws of England' dated 1884
I attach as Exhibit JBH/2 a copy of the Barons Petition.
You will see that the grievance for which the Barons required assurance was this:
“WHEREFORE it is our humble duty TO PETITION Your Majesty
• to withhold the Royal Assent from any Parliamentary Bill which attempts to ratify the Treaty of Nice unless and until the people of the United Kingdom have given clear and specific approval;
• to uphold and preserve the rights, freedoms and customs of your loyal subjects as set out in Magna Carta and the Declaration of Rights, which you, our Sovereign, swore before the nation to uphold and preserve in your Coronation Oath of June 1953…”.
After 39 days, a negative response was received from HM Private Secretary. The response was not considered satisfactory by the Barons. I submit that their Judgment of The Sovereign (Who is a member of the House of Lords) by Her Peers was lawful per Article 39 of Magna Carta because of Her actions (and inaction) which were complained of breached Article 40.
The precedent for the Barons Committee is the common-law and custom is such circumstances. This means, I submit, that its authority is the same as its predecessors in 1215 and 1688. In the first case, the incumbent Sovereign kept his position, in the second he did not.
I can give personal evidence about this because Mr. Burke and I were founder members of the Magna Carta Society and undertook the legal research which produced the petition. That document was approved by the late QC Leolin Price personally to Mr. Burke and I and it was we who printed and posted the petition to all members of the House Of Lords. If Mr Moore’s claim is accepted I undertake to submit it to the Baron’s Committee for their consideration.
The grievances Mr. Moore requires to be remedied specifically includes “My right to keep and bear arms for my defence, my family’s defence and the defence of England and common law and customs…”. The Order that he seeks is to “Void all laws that cause issue with my constitutional rights as per the contract known as the Bill of Rights 1688/9…”.
The respondents, via the Treasury solicitor representing the Home Office, are apparently relying on R. v. Burke Ex Parte Secretary of State for the Home Department CP/2750/98.
This matter has been brought to Mr. Burkes attention. He is preparing an affidavit and will be available to give evidence in Court if required to the effect that that hearing before LJ Popplewell was sent to the Court of Appeal but was not dealt with as an appeal. The Home Office have therefore misdirected themselves and should review their position.
I was present at the Appeal Court hearing as Mr. Burke’s Mc.Kenzie friend and I can give evidence of two matters that are of importance to Mr. Moore’s present application.
The first is, as previously noted, the three learned Judges made it quite clear that they dealt with it as a new hearing, not an appeal against LJ Popplelwell’s Judicial review.
The second issue is that the three Judges refused to allow material from Hansard to be used to clarify the “Will of Parliament” in relation to firearms legislation. This in defiance of an Attorney Generals Practice Direction on that subject in 1992.
This omission resulted in an injustice when the three Judges restated LJ Popplewels decision. If material from Hansard had been admitted LJ Popplewell and the three Judges would have known differently. My researches have proved that Hansard records that the intention of Parliament in the Firearms Act 1920 was " To afford an effective system of control over the possession, use and carrying of firearms so as far as possible to secure that they do not come into the hands of criminals or otherwise undesirable persons..." (The Earl of Onslow in presenting the second reading 27 April 1920). He stated on 29 April that " Speaking generally, it must be assumed that the grounds on which a revolver may be applied for and the application (for a firearm certificate) may be granted by a chief officer of police is for protection of the applicant’s house" i.e. for self-defence.
I submit that the “repeal and general savings” in all subsequent firearms acts, and the fact that they are described as “Amending” measures, means that the assurances given in the earlier enactments are therefore required to be recognised in the current law. Applying the ratio decedendi of the “Thoburn” judgment there is no specific repeal of the subject’s rights and obligations in respect of arms on the face of any Firearms Act nor to be found by reference to Hansard. Quite the reverse in fact. The sections which cover the issue of both shotgun and firearms certificates clearly state that “Chief officers of police shall issue…” unless there are specific reasons not to.
In the debates on the Firearms Act 1968 in replies to questions from Lord Swansea (Chairman of the National Rifle Association) on 4 April 1968 in the Lords Mr. Graham Page confirmed in the Commons on 13 May 1968 that no Statutory Instrument was created for the guidance of chief officers of police that removed the right to arms for defence.
For these reasons, I submit, the subjects common law rights and obligations in respect of the possession of firearms have not been repealed by any statute to date. The position is the same with other types of weapons as reference to the debates on the Prevention of Crimes Act 1953 and the Criminal Justice Act 1988 will confirm. Those Acts use the formulas “Without lawful authority or reasonable excuse” and “Without lawful authority or good reason” respectively. In other words, there are “lawful authorities”, “reasonable excuses” and “good reasons” to possess weapons for defensive purposes.
The late Lord Denning addressed these issues, applying Bennion’s “Implied Ancillary Rule” thus:
“Criminal Justice Bill HL Deb 23 November 1987 vol 490 cc410-527 410
§ 7.15 p.m.
§ Lord Denning
My Lords, may I say a word on this? I can well understand the anxiety of my noble friend Lord Paget to say that if a man has a knife with him for self-defence then he is not guilty of any offence. I quite agree with that. He wants to put it in express terms, but it is really covered by the existing terms. The man has to prove that he had good reason or lawful authority. Surely the best of reasons—the "good reason"—is that he had it with him for the purpose of self-defence or with lawful authority, as the case may be. Therefore, the case of self-defence is already provided for by the section; that if he has it for self-defence or with any lawful authority it comes within "good reason"…”.
It is apparent that instead of trying to secure a change in the law by Parliamentary means, from 1969 Home Office policy in this regard has been consistent. Their policy is “Victim Disarmament” without consultation or lawful authority. It is contrary to decided cases and in defiance of the Royal Charter of the National Rifle Association.
Mindful of the Practice Direction on the unnecessary duplication of authorities, I draw the Courts attention to:
“Greenly v. Lawrence Kings Bench (1949).
Case Stated by the Recorder of Reading.
At the general quarter sessions for the borough of Reading held on 29 January 1948, Sir John Greenly, the owner of a pistol appealed under the Firearms Act, 1937, s 2(8), against the refusal of the chief constable of Reading to grant a renewal of a firearm certificate under s 2(2) of the Act authorising him to have in his possession 50 rounds of ammunition for a 25 Colt automatic pistol. The recorder found as a fact that the applicant for the certificate was not in any way unfitted to be entrusted with a firearm and that he had been a good shot with both rifles and revolvers. His residence stood in its own grounds and could easily be approached by an intruder from the south and west. He was aged 63 and kept a large number of valuable articles in his house. He wished to possess ammunition for the pistol to protect himself and his property by shooting if that became necessary in the event of attack by an armed intruder. The recorder held that this was a good reason for his having possession of the 50 rounds of ammunition and allowed the appeal.
The Divisional Court dismissed the chief constable’s appeal against this decision on the ground that it was a question for the recorder’s discretion.
If the applicant does appeal, the recorder, if it is in a borough, as in this case (or a court of quarter sessions, if it is a county) must consider whether the applicant has a good reason for having in his possession a firearm or ammunition without danger to the public safety or to the peace. If quarter sessions comes to the conclusion that the reason advanced by the applicant is a good reason, the court is to grant him a licence. It is a mere matter for discretion. We do not sit in this matter as a court of appeal. We only sit to decide whether the recorder has gone wrong in law. We can find no reason for saying that he has gone wrong, and, therefore, this appeal fails and must be dismissed with costs…
Another relevant Judgment concerns training in the use of arms:
"The right of His majesties subjects to have arms for their own defence, and to use them for lawful purposes, (such as hunting) is most clear and undeniable. It seems, indeed, to be considered, by the ancient laws of the Kingdom, not only as a right, but as a duty... And that this right which every (subject) most unquestionably possesses individually may, and in many cases must, be exercised collectively, is likewise a point which I conceive to be most clearly established...
It seems to follow, of necessary consequence, that it cannot be unlawful to learn to use them (for such lawful purposes) with safety and effect. For it would be too gross an absurdity to allege that it is not lawful to be instructed in the use of anything which is lawful to use...
"The lawful purposes for which such arms may be used (besides immediate self defence) are the suppression of violent and felonious breaches of the Peace, the assistance of the Civil Magistrates in the execution of the laws, and the defence of the kingdom against foreign invaders".
To strengthen the civil power, and to keep themselves at all times prepared for a vigorous and effectual discharge of their duty as citizens ... are, in my view, sufficient visible and legal objects for the continuation of the London Association".
The Recorder of London, 1795.
(From “The Origins and Development of the Second Amendment”. David T. Hardy. 1995). The London Association was ancestral to the volunteer movement of the Victorian period which led to the establishment of the National Rifle Association.
The “London Association” was very much part of the establishment:
"Sir James Sanderson, Lord Mayor 1792-3. He played a major role as chairman of the London Association for aiding the Civil Powers in suppressing seditious meetings, for which he received his baronetcy. He was very active in preparing the city for possible invasion following the declaration of war by France on the 1st February 1793, promoting the Volunteer Corps Act and the City Militia Act. He was founder of the Revolution Society, an organisation established to celebrate anniversaries of the 1688 revolution...".
Moving on to the present day, there is reason to believe that the present Mayor of London has been associated with groups whose activities include the acquisition of and training in the use of arms, but for illegitimate reasons:
“MPs shout 'racist' at Cameron after comments on Sadiq Khan during PMQs The prime minister criticised Labour’s candidate for London mayor for ‘sharing a platform with extremists’
David Cameron was met with cries of “racist” in the House of Commons as he joined attacks on Labour’s London mayoral candidate after he claimed that Sadiq Khan had links to a supporter of Islamic State.
Cameron laid into Khan during prime minister’s questions, saying the Labour mayoral contender had nine times shared a platform with a radical imam called Suliman Gani, who he said supported ”IS” (Islamic State).
In the Commons, Cameron said he was “concerned about Labour’s candidate as mayor of London who has appeared again and again and again” on a stage with people he described as extremists.
After being interrupted by cries of “racist” by Labour MPs, Cameron continued: “The leader of the Labour party is saying it is disgraceful. Let me tell him, Suliman Gani – the honourable member for Tooting [Sadiq Khan] has appeared on a platform with him nine times. This man supports IS [Islamic State]. I think they are shouting down this point because they don’t want to hear the truth.”
Incidentally, the Prime Minister benefited from the protection provided by Article 9 of the Bill of Rights which confirms “Parliamentary privilege” when he made this speech in the Chamber. Let us not forget that The Bill of Rights requires its measures to be upheld by Crown officials in “All and every particular”. Also note that the Bill refers to the Declaration, which is why knowledge of its full text was essential:
“ That all and singular the Rights and Liberties asserted and claimed in the said Declaration are the true auntient and indubitable Rights and Liberties of the People of this Kingdome and soe shall be esteemed allowed adjudged deemed and taken to be and that all and every the particulars aforesaid shall be firmly and strictly holden and observed as they are expressed in the said Declaration And all Officers and Ministers whatsoever shall serve their Majestyes and their Successors according to the same in all times to come….”.
I can only speculate on the reasons why the Declaration was not available to the public until now. I can think of several reasons, but none reflect well on the present establishment.
This information is presented to counter the Home Office’s proposition that the Bill of Rights has somehow fallen into desuetude and is no longer required. That concept is known to Scots law but not English, as reference to the Scots Claim of Right will confirm.
The year of the Declarations passage, 1688, was only five years after a Mohammedan army was at the gates of Vienna, a city protected by a Roman Wall. The siege was lifted by a Polish cavalry army, just in time. This history is little known today but would have been a major consideration then.
Today, the same Home Office which is seeking to disarm the public has admitted that its policies have allowed many thousands of “Returned Jihadis” into the UK. This is not “Joined up Government”. It is beyond incompetent, it is treasonous. I mention the fact that “Duress of circumstances” is not a defence to murder or treason.
I also bring to notice the fact that the Royal Charter of the National Rifle Association remains in force “For the promotion of marksmanship in the interests of Defence of the Realm and permanence of the Volunteer Forces, Navy, Military and Air”.
All Home Office approved rifle and pistol clubs are affiliated to the NRA and until the Firearms (Amendment) Acts of 1988 and 1997 engaged in the training of loyal subjects in the use of service weapons (ie. military pattern weapons of the day) in realistic target practices (ie. war-like) without adverse social consequences. The history of this is explored in Mr. Law’s book which I shall refer to below.
The National Rifle Association’s Royal Charter ends in the following obligation:
“ AND WE DO HEREBY FURTHER GRANT AND DECLARE that it shall be lawful for the Members of the Corporation in General Meeting to alter or revoke any of the said rules, or other the rules for the time being of the Corporation, and to make such new and other rules with respect to the qualification, privileges, admission, and a motion of Members, the appointment, emoluments, and tenure of office of the officers and servants of the Corporation, and with respect to any other of the matters contained in the said scheduled Rules, and generally for regulating the affairs, property, business and interests of the Corporation, and for carrying out the objects of the Corporation. Provided that no such altered, new, or other rule shall be repugnant to these presents or to the laws and statutes of this our realm, and that if any rule so repugnant as aforesaid shall be made, such rule shall be void. IN WITNESS whereof we have caused these our Letters to be made Patent. Witness Ourself at Westminster, the 25th day of November, in the fifty-fourth year of our Reign…”.
Prior to the re-classification of service type rifles and pistols in 1988 and 1997 the Rules of the NRA were varied to allow non-service type weapons to be used on their ranges. The NRA, to the best of my knowledge, made no representation on this subject to the Home Office in 1988 and again in 1997 to exercise their authority to allow such weapons to continue in use by the expedient of issuing section 5 permits.
Mr. Moor’s action, if successful, will require both the Home Office and NRA to restore the pre-1988 situation in relation to the type of weapons and target practice to be provided to members of Rifle Clubs in order for them to “Carry out the objects of the Corporation” in a manner that is not “Repugnant to these presents or to the laws and statutes of this our realm,…”.
Regarding reforms to the present arrangements for the administrative control of the supply and use of firearms of all types, I attach as Exhibit JBH/2 the relevant chapter from a book by Mr. Richard Law who is secretary of the Shooters Rights Association (which I have been a member of for many years) and a noted authority on the subject.
I also draw to the Courts notice the fact that in 2014 a Grand Jury was convened which produced a Presentment of a case to answer against the then Home Office Minister for Policing for misconduct in office. The Minister, Mr. Damien Green, had in the preface to that year’s edition of “Firearms Law, Guidance to police” denied that there was a right to possess firearms. An account of the Grand Jury proceedings is here:
A personal grievance, which I share with several hundred thousand other loyal subjects, is that in 1988 and 1997 a full magazine capacity shotgun, and several rifles and pistols were seized from me by agents of the Home Office on dubious legal grounds. This application will settle the matter. The establishment should know that the introduction of the Internet means that misconduct by officials of all kinds can no longer be concealed and is being challenged.
For example, the previously mentioned British Constitution Group has conducted original research and circulated material that was not in text books as noted above.
In contrast, there is a body known as the UK Constitutional Law Association which describes itself thus:
“The United Kingdom Constitutional Law Association (UKCLA) is the UK’s national body of constitutional law scholars affiliated to the International Association of Constitutional Law. Its object is to ‘encourage and promote the advancement of knowledge relating to United Kingdom constitutional law (broadly defined) and the study of constitutions generally’…”.
Its self-appointed members are pillars of the establishment as it is presently constituted. The recent Supreme Court decision on the “Brexit” matter, which incidentally upheld the authority of the Bill of Rights, had this to say “The very full debate in the courts has been supplemented by a vigorous and illuminating academic debate conducted on the web (particularly through the UK Constitutional Law Blog site)…”.
Any yet, a past Chair of that Association, one Dawn Oliver, a professor of Public Law, prolific author and advisor to Government Departments and a Barrister had this to say on the occasion of the 800th Anniversary of Magna Carta:
“Dawn Oliver: Surprises in Magna Carta
I assume that I am not the only public lawyer who decided to read Magna Carta and some literature about it for the first time this year, and found some surprises…”.
This situation, I submit, is further grounds for the Court to do its duty to uphold the Rule of Law amongst the legal profession.
Which brings me to assertions by the Home Office that the Bill of Rights may be disregarded. 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 t 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 of “Trial by battle”. When the Stuart line usurped their authority in claiming that the “Divine Right of Kings” allowed them (amongst other abuses) to disarm their opponents they were lawfully overthrown. The same could happen again if the Home Office are not careful or if their policies, as noted below, wilfully or having been subverted make such a conflict inevitable.
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 beginning 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, A. B. , 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 the Oath you swore includes “Heirs and successors according to law”. You, together with military officers (But not explicitly constables and magistrates) are expected to make a legal determination as to who the lawful successors, if any, to the present or a late incumbent are.
I respectfully submit, for the reasons given above, that it is not the Stuart line and that no attempt to set aside the settlement of 1688 and apply a different system of law should be entertained even if the Home Office have gotten away with it since 1969:
“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 at the bottom end of the food chain in 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.
In the present circumstances, the known enemies of the Realm are the better armed (and trained in war and in National Service in their countries of origin) and there is a risk that they would prevail in and exploit any large scale break down of civil order. In which case, if nothing else, Sharia law will rule and your jobs, pensions and probably lives will be forfeit either to the new rulers or as condign punishment for neglect of your duty to uphold the common-law by those whom you let down.
Norman and Saxon
"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 Reeds of Runnymede"
(Magna Charta, June 15, 1215)
AT Runnymede, at Runnymede
What say the reeds at Runnymede?
The lissom reeds that give and take,
That bend so far, but never break,
They keep the sleepy Thames awake
With tales of John at Runnymede.
At Runnymede, at Runnymede,
Oh, hear the reeds at Runnymede:--
"You mustn't sell, delay, deny,
A freeman's right or liberty.
It makes the stubborn Englishry,
We saw 'em roused at Runnymede!
"When through our ranks the Barons came,
With little thought of praise or blame,
But resolute to play the game,
They lumbered up to Runnymede;
And there they launched in solid time
The first attack on Right Divine--
The curt, uncompromising 'Sign!'
That settled John at Runnymede.
"At Runnymede, at Runnymede,
Your rights were won at Runnymede!
No freeman shall be fined or bound,
Or dispossessed of freehold ground,
Except by lawful judgment found
And passed upon him by his peers.
Forget not, after all these years,
The Charter Signed at Runnymede."
And still when Mob or Monarch lays
Too rude a hand on English ways,
The whisper wakes, the shudder plays,
Across the reeds at Runnymede.
And Thames, that knows the moods of kings,
And crowds and priests and suchlike things,
Rolls deep and dreadful as he brings
Their warning down from Runnymede!
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