MCS A Short History

A Brief History of the Magna Cata Society (MCS).


The MCS was founded by Bob Lomas in 1997 to research constitutional law.

It was inspired by an article by Sean Gabb, the noted libertarian:

“Self-Defence and the British Constitution.

Introduction.

During the past hundred years or so, the government of this country has become increasingly despotic. I do not mean by this that I live in anything approaching a totalitarian police state. Indeed, I will say that I live in one of the freest and generally the most fortunate societies that have ever existed. Though I have spent at least a decade now denouncing the government of my country, I do not fear for my personal safety or for my career. I will also say that those foreigners who favourably compare life in their own countries with life in modern England are seldom entirely wrong.

Even so, the power of the British State is both more concentrated and less
restrained than at any time in the past. The old notion of the State, as limited by custom and law, has given way to the common belief that there should be no impediment whatever to the clearly expressed will of the people - or of those who can, with any show of reason, claim to represent this will. For a long time, the effects of the change were largely confined to certain economic areas. Of course, these are of the highest importance, and no definite boundary can be drawn between them and other areas. In practice, though, a boundary was observed; and areas of life that, by common agreement, lay outside were usually left unaffected. We could therefore argue for or against socialism within an undisputed framework of civil and political rights.

However, the intellectual collapse of socialism within the past generation has
tended to break down the old boundary. So far from allowing the State to be rolled back, this collapse has had the unexpected result of letting it roll uncontrollably forward into every other area of life. This should not have been unexpected. Once established, beliefs about the duty of the State to intervene, and the benefits of intervention, are unlikely to die simply because the old justifications for it have died. Therefore, when politicians have realised the futility - and, more importantly, the danger from a mercantilist point of view - of trying to manage things like the telephone network or the prices of food, they will turn naturally to trying to control our lives in non-economic matters.

And these new controls will be accepted, and even demanded, by a people so
accustomed to control that they cannot accept the lifting of it in one area without a compensatory extension of it into others. Therefore the controls on smoking and driving and sport and amusement and child rearing, and even on the expression of ideas. Therefore the new supervision of private life that would never have been attempted or accepted in the days of exchange control and the Selective Employment Tax. Therefore the breaking down of any legal safeguards that seem to frustrate the smooth working of the new controls.

And so the threat of unlimited government is actually greater today than it was
in the late 1970s, when it first became a popular concern. It is greater because it is less well defined. The slide into despotism will not come because someone like Arthur Scargill wants to nationalise everything in sight. It will come because of a push that is weaker at any one point, but applied over a far larger area.

Now because the nature of this threat is new, so the response to it must be new. The concentration on economic issues, that for most of the present century, has been the main feature of conservative and libertarian argument is no longer appropriate in an age when the debate over economics has mostly come to an end. We must turn to a far greater degree than has so far been the case to putting the argument for limited constitutional government. Instead of dealing with one
aspect of the changed conception of the State, we must deal with the changed
conception itself.

Our fellows in the United States are more fortunate in this respect than we are
in England. They have a written Constitution that derives from an earlier age of English civilisation, when the limiting of state power was taken as the main end of politics; and they can appeal to the letter of their Constitution in opposing the spirit of their actual government. Efforts, no matter how determined, to disarm the American people can be countered by insisting on their Second Amendment. Every effort to restrict what can be made available on the Internet has broken so far without success on the rock of the First Amendment. They have a text around which conservatives and libertarians and civil libertarians can unite in the defence of liberty.

But we also have a Constitution. It may not be digested into a single clear
document that was intended to stand forever. But the materials that were digested into the American Constitution all had their origin in England. Granted, these materials are scattered through customs, charters, legal judgements, textbooks, and Acts of Parliament that accumulated over about eight centuries. But their existence is a matter of record. They are still a flat challenge to the modern conception of the British State as the instrument by which the untrammelled legislative supremacy of the House of Commons is expressed.

Or they would be a flat challenge if they could be made generally available. At
the moment, they are not available. Last summer, for example, an argument started on the Cybershooters List over the extent to which the Bill of Rights 1689 guaranteed the right to keep and bear arms. Before this could be settled, it was necessary to circulate a copy of the Bill. I had an old copy in print too small for scanning. it was nearly a week before Bob Allen found or produced an electronic copy that could be circulated.

Again, I am something of a legal antiquarian - yet I have never found a complete edition of Sir William Blackstone's great Commentaries on the Laws of England, first published in the 1760s. These are one of the main influences on the American Constitution. They were a powerful force in shaping understanding of the English Constitution well into the 19th century. Yet I do not know of any modern edition. There are the State Trials, published in the early 19th century, with some highly valuable commentaries - these have never been reprinted, and they are only available in a few specialised libraries.

In short, the primary materials from which an understanding can be gained of the English Constitution are unavailable to ordinary people. The intention of this Web
Page is to make these materials available on the World Wide Web, and thereby to
assist in the growing debate on the preservation of freedoms that we once took for granted, but which are now under growing threat.

I said at the top of this Page that I would lay particular emphasis on the right
to keep and bear arms for self-defence. This means that my first main job will be to publish the reports on and the parliamentary debates about the various Firearms Acts of the 20th century, together with any legal judgements, both ancient and modern, that shed light on the destruction of this particular freedom. But my ambitions are far wider, and are limited only by the amount of time that I can afford to spend in the relevant libraries and then at home with my scanner. I hope to make this the resource page for English constitutional thought. It may take some while, though, before hope and reality can be made to resemble each other.”

Sean Gabb. London, May 1997. (English Constitution Resource Page, with Emphasis on the Fight against Victim Disarmament. Texts Selected and Introduced by Sean Gabb).


Drawing on a research paper on the RKBA by John Hurst and Mike Burke, the MCS sent a delegation including John Bingley to the House of Commons library to obtain the full text of the Declaration and Bill of Rights. The results of their investigations are described in John Bingley's videos on the Constitution:

John Bingley, The British Constitution http://www.youtube.com/watch?v=kSvJlbv_LkU

Our researches confirmed that the lawful forms of redress which are available to subjects whose rights have been infringed are as specified in Blackstones Commentaries on the Laws of England:

“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."

Note that the methods of redress are listed with the last first in the early part of this passage. The first redress should be obtained by petitioning the courts, then Parliament (including a Baron's Committee, more below) and only then arms and “the God of Battles” will decide.

In late 1998 and early 1999 the MCS 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.

By this time the government of the day was threatening to sign the UK up to the Nice Treaty. The MCS made a policy decision that the RKBA was a small part of the constitution and would not be their main focus. As a result of this, the MCS petitioned all MP's and members of the House of Lords not to support any Act giving effect to the Nice Treaty. Only a handful replied and the government got its way without any serious opposition.

As a result of this and the infringement of the Hereditary Peers right to sit in the House of Lords in late 1999 a “Baron's Committee” was convened per Chapter 61 of Magna Carta. The Peers have a personal right of audience with the Sovereign. This is intended to avoid the problem of "evil counsellors" keeping the Sovereign in ignorance of the peoples grievances.

Chapter 61 specifies the procedure for the "Barons Committee" to follow on receipt of a valid grievance.

61.Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, 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; and when redress has been obtained, they shall resume their old relations towards us. And let whoever in the country desires it, swear to obey the orders of the said five and twenty barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to everyone who wishes to swear, and we shall never forbid anyone to swear. All those, moveover, in the land who of themselves and of their own accord are unwilling to swear to the twenty five to help them in constraining and molesting us, we shall by our command compel the same to swear to the effect foresaid. And if any one of the five and twenty barons shall have died or departed from the land, or be incapacitated in any other manner which would prevent the foresaid provisions being carried out, those of the said twenty five barons who are left shall choose another in his place according to their own judgment, and he shall be sworn in the same way as the others. Further, in all matters, the execution of which is entrusted,to these twenty five barons, if perchance these twenty five are present and disagree about anything, or if some of them, after being summoned, are unwilling or unable to be present, that which the majority of those present ordain or command shall be held as fixed and established, exactly as if the whole twenty five had concurred in this; and the said twenty five shall swear that they will faithfully observe all that is aforesaid, and cause it to be observed with all their might. And we shall procure nothing from anyone, directly or indirectly, whereby any part of these concessions and liberties might be revoked or diminished; and if any such things has been procured, let it be void and null, and we shall never use it personally or by another. ….”.


The text of the Petition was as follows:

A Petition to

Her Majesty Queen Elizabeth II

presented under clause 61 of Magna Carta, 1215

February 2001

To Defend British Rights and Freedoms

Ma’am,

as our humble duty, we draw to Your Majesty’s attention:

1. the loss of our national independence and the erosion of our ancient rights, freedoms and customs since the United Kingdom became a member of the European Economic Community (now the European Union) in 1973;

2. the terms of the Treaty of Nice, 2000, which, if ratified, will cause significant new losses of national independence, and further imperil the rights and freedoms of the British people, by surrendering powers to the European Union:

a) to enter into international treaties binding on the United Kingdom, without the consent of your Government;
b) to ban political parties, deny free association and restrict the free expression of political opinion;
c) which can be used to introduce an alien system of criminal justice, abolish the ancient British rights of habeas corpus and trial by jury, and allow onto British soil men-at-arms from other countries with powers of enforcement;
d) to create a military force which will place British service personnel under the command of the European Union without reference to British interests, and contrary to:
i) the oath of personal loyalty to the Crown sworn by British forces,
ii) the Queen’s Commission, and
iii) the United Kingdom’s obligations to the North Atlantic Treaty Organisation;
e) which remove the United Kingdom’s right to veto decisions not in British interests;

3. the creation by the European Union of a Charter of Fundamental Rights, which purports to give it the power to abolish such “rights” at will;

4. the unlawful use of the Royal Prerogative to

a) suspend or offend against statutes in ways which are prejudicial and detrimental to your sovereignty, contrary to the Coronation Oath Act, 1688;

b) subvert the rights and liberties of your loyal subjects, contrary to the ruling in Nichols v Nichols, 1576;

5. Your Majesty’s power to withhold the Royal Assent, and the precedent set by Queen Anne under a similar threat to the security of the Realm in 1707;

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.

We have the honour to be Your Majesty’s loyal and obedient subjects.


(signed)


4. The House of Lords Records Office confirmed in writing as recently as last September that Magna Carta, signed by King John in June 1215, stands to this day. Home Secretary Jack Straw said as much on 1 October 2000, when the Human Rights Act came into force. Halsbury’s Laws of England says: “Magna Carta is as binding upon the Crown today as it was the day it was sealed at Runnymede.”

5. Copies of the petition - in calligraphy on vellum - will be available to supporters after the presentation on 7 February. Send a cheque for £25 (which includes postage and packing) to Sanity, 66 Chippingfield, Harlow, Essex, CM17 0DJ. All receipts will go toward defraying costs.

6. The day after the presentation of the petition (8 February) is the start of Her Majesty’s Jubilee Year. The following week marks the anniversaries of the dating (12 February) and signing (13 February) of The Declaration of Rights in 1688.

7. The meeting of peers is being organised by Lord Ashbourne, supported by Lord Sudeley and Lord Massereene & Ferrard acting in his capacity as Lord Oriel since his premier title is Scottish and pre-dates the Act of Union, 1707.

8. The Treaty of Nice signed by the British Government in December 2000 includes:

Article 24 - transforms the EU into an independent state with powers to enter into treaties with other states which would then be binding on all member states, subject to agreement determined by qualified majority voting. Article 23 allows the EU to appoint its own representatives in other countries, effectively with ambassadorial status.

Article 191 - assumes for the EU the right to “lay down regulations governing political parties at European level [ie: in the EU]” and withdraw or prevent the funding of political parties which do not “contribute to forming a European awareness.” This is a clear restriction of free speech and free political association. It also introduces two particularly abhorrent propositions - taxation without representation and the use of sanctions to suppress public opinion.

Articles 29 and 31 - establish common policing and judicial cooperation (Eurojust). Article 67 allows matters of justice and home affairs to be agreed by QMV. These articles open the door to the imposition of Corpus Juris on the UK (article 31 specifically calls for cross-border policing and prosecution, and the removal of conflicts of jurisdiction), and the deployment of armed Europol law enforcement officers on the streets of Britain. These matters were originally dealt with under article 280, which mysteriously disappeared from the draft of the Nice Treaty at the very last minute, in part at least following heavy pressure from British eurorealists.

Article 17 - establishes a common foreign and defence policy for the EU, with its own military force. The House of Commons was told on 11 December 2000, that: “The entire chain of command must remain under the political control and strategic direction of the EU. NATO will be kept informed.” Her Majesty The Queen is Commander in Chief of all her armed forces and Colonel in Chief of 46 of Her Regiments of the British army, every other regiment owing its loyalty directly via another member of The Royal Family as its Colonel in Chief to Her Majesty.
The loss of the UK veto applies to 39 new areas of EU “competence”, including indirect taxation, the environment, immigration, trade, employment, industrial policy, and regional funding. The EU also has plans for QMV to be expended to other areas not agreed at Nice, and without further treaty negotiations.

9. Charter of Fundamental Rights - signed at Biarritz, autumn 2000. Article 52 purports to give the EU the power to abolish them at will, effectively making them meaningless. The whole proposition that the state has the right to grant and abolish fundamental human rights [ie: those we inherent at birth and hold in trust for future generations] is not only absurd but also contrary to Magna Carta, 1215, the Declaration of Rights, 1688, and the Bill of Rights 1689.

10. Clause 61 of Magna Carta was last invoked when the Bishop of Salisbury (Gilbert Burnet) acted on behalf of the barons and bishops of England to invite William of Orange and Mary to come to London in 1688, after King James II had failed to re-establish Roman Catholicism in England, and lost the confidence of the people. His act of abdication was to throw the Great Seal into the Thames and flee the country.

11. The ruling in Nichols v Nichols 1576 included the words: “Prerogative is created for the benefit of the people and cannot be exercised to their prejudice.” (The Royal Prerogative is the power delegated by the sovereign to ministers to sign treaties on behalf of the nation.)

12. In 1707, Queen Anne withheld the Royal Assent from the Scottish Militia Bill when it became apparent that James Francis Stuart (pretender Prince of Wales, and the Queen’s half-brother) was planning with Louis XIV of France to invade Scotland from Calais in an attempt to establish a Jacobite sovereign. Were such an invasion to be successful, the Queen feared a Scottish militia might be turned against the monarchy. Thus, parliament’s will was denied in the interests of the sovereignty of the nation and the security of the realm.

13. Addressing both Houses of Parliament on 20 July 1988, at an historic meeting of both houses to mark the 300th anniversary of the Declaration of Rights, Her Majesty said that it was “still part of statute law...on which the whole foundation and edifice of our parliamentary democracy rests.” The Declaration of Rights spelt out the details:

“…the said Lords…and Commons, being the two Houses of Parliament, should continue to sit and…make effectual provision for the settlement of the …laws and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted. …the particulars aforesaid shall be firmly and strictly holden and observed…and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same, in all time to come.”

14.Both Magna Carta and the Declaration of Rights are contracts between the sovereign and the people. Because they are not statute law they cannot be repealed. Both proclaimed what were taken to be self-evident freedoms which exist by right. Equally, both were based on a concept of permanence”.

No satisfactory response was given by The Queen. When the Nice Treaty was given effect in the UK the requirements of Chapter 61 of Magna Carta were satisfied and transfer of allegiance from her to the Barons Committee became lawful.