REVIEWS AND ENDORSEMENTS.
“Kenn, Your rebuttal is masterly. Your essay is a very good read.”
ROBIN TILBROOK, Chairman & Party Leader; English Democrat Party.
“Thank you for your excellent work on Magna Carta. What a masterly
exposition.”
JOHN GOURIET, Chairman, Defenders of the Realm; Battle for Britain
Campaign supported by the Duke of Wellington; Edward Fox, OBE, and
Frederick Forsyth, CBE.
“Thank you so much for this contribution. It is very much appreciated.”
ASHLEY MOTE, MEP (Member of the European Parliament); VicePresident, Alliance of Independent Democrats in Europe.
“Thanks, Kenn. I’ve circulated this.”
SIMON RICHARDS, Campaign Director; Freedom Association; Founded by
John Gouriet; the Viscount de L’Isle, VC, KG, PC; Ross McWhirter and
Norris McWhirter, CBE.
~
http://www.democracydefined.org/
The Home Page of The Democracy Defined Campaign for
RESTORATION and UNIVERSAL ADOPTION of
CONSTITUTIONAL COMMON LAW TRIAL BY JURY.
Campaign philosophy supported by academics, doctors, attorneys & judges (U.S. & U.K.).
(Standard English Spelling)
THE DEMOCRACY DEFINED CAMPAIGN PHILOSOPHY ESSAY EIS #11.
An Essay on Specific Aspects of
MAGNA CARTA, THE GREAT CHARTER:
THE ENGLISH (cf. BRITISH) CONSTITUTION
showing that the (Latin) text of Magna Carta, The Great Charter of English Liberties,
sets forth tenets of the People’s Common Law of The Land; explaining what
comprises Common Law; that Magna Carta Is Recognised as Constitutional;
and that the strictures of Magna Carta are binding on Executive, Legislature,
and the Judiciary. In this Essay:
There Is No ‘get-out clause’ in Magna Carta (A Much Propagandised
Misconception Annihilated).
England (or Britain) Has the Most Famous and Revered Constitution in the
History of the World.
The Founding Fathers Took the Great Charter’s Trial by Jury Justice System
and Precepts to Form the Basis of The U.S. Constitution.
The Judgement of Peers Trial by Jury Mode of Justice System Is That of the
Traditional pan-European Constitution.
Magna Carta Installed the Criteria of Constitutional Democracy.
Magna Carta Extends Protections to Scotland, Wales and Northern Ireland.
The Great Charter Is Egalitarian: It Guarantees Equal Right to the Protections of
Trial by Jury to All People (serfs and villeins included).
© Kenn d’Oudney, ALAM (Hons) Dip GSA. Author.
SPECIFIC ASPECTS OF MAGNA CARTA, & There Is No ‘get-out clause’ in Magna Carta.
THE COPYRIGHT OWNER GRANTS PERMISSION FOR DEMOCRACY DEFINED EIS #11
TO BE COPIED INTACT AND UNALTERED, AND FREELY DISTRIBUTED
1
Specific Aspects of THE GREAT CHARTER CONSTITUTION
In elucidating aspects of Magna Carta, the Great Charter Constitution,
we refer readers to facts which cannot be controverted when one is familiar with
The Contents of the Great Charter.
~~~~~~
To put these observations into context, it is appropriate to begin by pointing out
that England has the most famous and revered constitution in the history of the
world: Magna Carta, the Great Charter of English Liberties. We refer to the
pernicious calumny that England (or Britain) has “no constitution,” which is
promulgated today by individuals of parliament and judiciary to obscure their
routine violation of the 35-times ratified Constitution. From this vile seed
despotism is visibly extant and growing apace.
Definition. Constitution: a code of laws and customs established by the people (as distinct
from government) of a nation for the control and guidance of its government.
Former Prime Minister William Pitt, the Elder, Earl of Chatham, described the
Petition of Right, 1628, the Bill of Rights, 1689, and Magna Carta, as forming
“the bible of the English Constitution.”* The Great Charter’s especially valued
precepts (the common law articles which prescribed and defined Trial by Jury,
amongst others) were adopted by the U.S. Founding Fathers, who placed the
Trial by Jury in the U.S. Constitution as the sole Justice System for all crimes
(unimpeachable). The Great Charter Constitution binds Westminster parliamentarians
and the British Head of State. For as long as the individual British nations
(England, Scotland, Wales and Northern Ireland) subscribe to the Westminster
parliament, the Great Charter’s protections extend to all their populations.
*Parliamentary speech on the 22nd of January, 1770.
The “no constitution” fabrication is nowadays promulgated throughout the
owned and controlled mass media, who allow no meaningful refutation. It is
also purveyed in gross malindoctrination by state ‘education’. It is a miscreants’
ruse utilised to enable the passing of illegal laws, and permit their enforcement
by the cognisant judiciary. This mendacious subterfuge is intended to facilitate
the unlawful imposition of the E.U. d’Estaing ‘constitution’ — as a ‘treaty’.
This latter (a document purporting to maintain rights while removing them, and
seeking to establish tyrannical authority* in place of justice) remains legally
null and morally void unless all the individual principles and protections
emplaced by the Great Charter Constitution “in perpetuity” (see Preamble) are
each separately revoked by the will of all the English People.
*See THE CONSTITUTION TREATISE ISBN 9781902848747, by Kenn d’Oudney.
2
Specific Aspects of THE GREAT CHARTER CONSTITUTION
The Great Charter Constitution Imposes a Separation of Powers.
For anyone to propagate the government’s false indoctrination that Britain or
England has “no constitution,” is to repeat a lie, and, knowingly or unwittingly,
to become implicated in the ulterior criminal activities aforedescribed.
The Great Charter Constitution imposes a framework; indeed, an ineluctable
separation of powers and an explicit absolute limit on the power of government.
That is the very purpose for which it was created and this it achieves sans pareil.
It is Magna Carta’s limitation of government power which gives rise to the motive
behind the current miseducation and the ignominious politicians’ lawless moves to try
to eliminate the existing (British) Constitution and Trial by Jury. The following (briefly)
explains how curtailment of tyranny is achieved by the (genuine) Trial by Jury.
Also see United States v Moylan; U.S. Fourth Circuit Court of Appeals shown below.*
Under Article 39 of the Great Charter, only with the People’s consent given
through their Verdicts in Trial by Jury does government have the executive
power, that is, of enforcement; and then only to execute in accord with the
lawful judgements (cf. sentences) of common law juries, i.e. juries chosen and
empanelled according to common law principles.
The principle of Magna Carta is that no judgement can be valid against a party’s
goods or person (not even a judgement for costs) except according to a
unanimous judgement rendered by a jury: “per judicium parium suorum;”
according to the judgement of his pares (i.e. social-equals).
This is unsurprising for, since Hellenic times, Trial by Jury had been the traditional
barrier throughout Europe, embodying protection of the people from arbitrary
governance, and the prejudices or incompetence of fallible justices (‘judges’).
Ref. demos-kratein; democratia, democracy: etymological derivation, and signification;
the Hellenic Athenian constitution of government by Trial by Jury. See “We the People
and the Matter of Words,” Democracy Defined Essay EIS#10.
All societies govern by their Justice System. The power to punish carries with it
ALL power. If at any time, albeit for an instant, the Sovereign Supreme Power
is removed from or ceded by the people, and the power is acquired by, or
delegated to, a group consisting of LESS than all the People, then the
democratic state has ceased to exist: an undemocratic government, that is, a
despotism, has assumed its place. It was explicitly to counteract arbitrary (i.e.
corrupt, tyrannical) government that the protections of Magna Carta installed
“for ever” (see Preamble & Article 63) the people’s already long-extant but
mostly unwritten “law of the land.” This law of the land was comprised of the
timeless moral and legal criteria of constitutional democracy.
3
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Legem terræ (pronounced terry), i.e. “the law of the land” of Magna Carta,
contained no statute or ruling of government. It is now called common law*.
The people’s common law of the land had been collated earlier and personally
handwritten into his code or dome-book by King Alfred the Great. In
Constitutional Common Law Trial by Jury, the verdict of a jury pronouncing
guilt can only be a unanimous verdict. A ‘majority’ of the jurors is not ‘a jury’.
This is why guilt can only be pronounced by a jury unanimous in its verdict.
The Principle of Unanimity was understood and definitively established by
King Alfred in the following way.
*See constitutional texts quoted in Democracy Defined Campaign Philosophy.
King Alfred had Justice (judge) Cadwine hanged because Cadwine had a man
named Hackwy put to death by hanging, without the unanimity of the jury of twelve.
In this case, three jurors pronounced the Not Guilty verdict against nine. Cadwine
removed the three and selected three others who would also pronounce ‘guilt’.
Similarly, King Alfred had Justice Frebern hanged because Frebern hanged a
man called Harpin when the jurors were still in doubt as to their verdict. Alfred
established that when there is a doubt, it is in the interests of all people that
justice should save rather than condemn.
See “The Mirror of Justices,” compiled and published by Andrew Horne in Old French.
The Mirror was written within the century after Magna Carta. It contains an account
of Alfred’s acts and judgements, thought to have been originally composed by him.
These criteria, also constitutionally adopted by the Founding Fathers, have been
the foundation of compassionate democratic civilisation through the tribulations
of a long varied history. As has repeatedly occurred in the past, instead of
upholding them, present-day criminal ‘politicians’ intend their destruction.
These democratic protections are as follows:
(i) the citizen’s right to a Trial by a Jury of pares, peers (i.e. social-equals; not
trial by government or its employees);
(ii) the right and duty of the Juror to judge on the justice of the law and its
enforcement in finding the Verdict in Trial by Jury (i.e. Annulment-by-Jury);
(iii) freedom from arbitrary arrest (i.e. without probable cause);
(iv) freedom from arbitrary detention (later known as Habeas Corpus);
(v) equality before the law.
The above are the indispensable constitutional protections of the people from
tyranny and injustice. In all times and places, every government* or human
organisation which infringes or denies them, judicably* engenders misery,
strife, crime, violence and ultimately war. (Also see ratified Principles,
International Law, 12/10/46: Crime against Peace; Crime against Humanity.)
*Definition: judicable, that which may be tried by jury in a court of law.
4
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Common Law Is Never ‘extinct’ or ‘lost’.
The common law is never ‘extinct’ or ‘lost’. For this to be appreciated, one must
be sure to have a profound understanding of what the common law is, and equally,
what it is not. Common law derives from the ordinary people’s universal sense of
fairness, conscience, natural law and justice. It is eternal and omnipresent.
See Justice William Jones; Jones on Bailments; & see THE UNIVERSAL SENSE OF
FAIRNESS: “DO-AS-YOU-WOULD-BE-DONE-BY;” Democracy Defined Essay EIS#6.
Labyrinthine deceits of modern usurpation inhabit the politicians’ statute book,
which bears no resemblance and pays no respect to universal common laws of
truth, justice, liberty, and equality before the law. Common law is inserted into
the Constitution to protect the people from government abuse of power. Common
law legally binds government and controls the government’s modus operandi.
This common law is the basis of democracy and legitimate government, sine qua non.
As with ‘rights’, legem terræ common law of the land can be contravened,
abused and denied by judicable criminal acts of tyrannical injustice by
governments — but common law comprises the Constitutional Supreme Law.
Common law, being exclusively the product of the sense of fairness, natural law
and justice of the ordinary people, is known almost intuitively to people
everywhere. With a modicum of thought, people realise that justice makes its
case plain to sane adults in all times and places.
See sections on conscience in the essay, EIS#10 “We the People...” and in Essay EIS#8
“GUILTY? OR NOT GUILTY? WRONGFUL PROSECUTION.”
The common law which existed in 1215 A.D., at the time of the Great Charter
Constitution’s first of many enactments and ratifications, must be differentiated
from that which modern government has corrupted by legislation: a counterfeit
which is “common law” in name only. Common law is the antithesis (the
‘opposite’) of judge-made law, and it is supposed to free all the people equally
from the shackles of arbitrary government and their bidden employees.
Common law is emphatically neither “government-made” nor “judge-made.”
Quite the contrary: it is exclusively the product of the ordinary people’s sense of
fairness and justice. Modern usurpation notwithstanding, common law does not
consist of case precedents (stare decisis), for, constitutionally, juries decide the
law, which includes the sentence, in each individual case. Nor is it comprised of
judicial rulings, decisions or interpretations of statutes.
Blackstone: “It is agreed by all our historians that the Great Charter of King
John was, for the most part, compiled from the ancient customs of the realm,
or the laws of Edward the Confessor; by which they mean the old common law
which was established under our Saxon princes.”
Blackstone’s Introduction to the (Great) Charters; Blackstone’s Law Tracts, p. 289.
5
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Nota Bene:
1. Magna Carta cannot be repudiated, repealed or superseded by government
legally: that is the difference between a constitutional law, a constitution,
which is made by the people to control, guide and govern the government’s
modus operandi for all time; and the statutes, which are made, and can be
repealed, by governments. Articles of a constitution can only be amended by the
active participation of the great mass of the people.
2. Under Article 39 of the Constitution, statutes of government can legally only
be enforced according to the unanimous judgement (cf. sentence) of jurors.
3. Although the Great Charter may sometimes be referred to as a ‘statute’*, this
is because it has been passed by legislatures and signed into law by Heads of
State; but it is first and foremost a Constitutional inscription of the People’s
common law of the land at 1215 A.D., which excludes all laws made by
monarchs and government, and comprises the Supreme Law which governs
government, and is more properly called The Constitution.
*Here below, for example, Coke refers to The Constitution as a ‘statute’.
Coke (who was a High Court judge): “The common law is the most general
and ancient law of the realm. The common law appeareth in the statute of
Magna Carta, and other ancient statutes (which for the most part are
affirmations of the common law) in the original writs, in judicial records, and
in our books of terms and years.”
1 Coke’s Institutes, p. 115.
Coke: “It (Magna Carta) was for the most part declaratory of the principal grounds
of the fundamental laws of England. They (Magna Carta and Carta de Foresta)
were, for the most part, but declarations of the ancient common laws of England,
to the observation and keeping whereof the king was bound and sworn.”
Preface to 2 Coke’s Institutes, p. 3. See further quotations in the Restoration Campaign
Philosophy.
Having established what common law is, one must note the extent to which the
term common law has been abused: it is an opprobrium to misinform people
that “common law” is a product of judges, stare decisis, and government courts.
Worse though: it is utterly wrong to allow government to rob the people of their
true common law and its power of emancipation. It is unconstitutional to amend
in effect the constitution’s installation of common law and Trials by Jury by coopting the common law by legislation into a body of law passed by congress or
parliament, or made by judges. For this has been the means of burying common
law, to enable government to deny the People’s ability (peacefully) to decide
their liberties for themselves, and to protect their lives, liberty and property
from judicial corruption or incursions by any government bent on injustice.
6
Specific Aspects of THE GREAT CHARTER CONSTITUTION
The Judiciary According to Constitutional Common Law.
It is an irrevocable principle of the traditional European, British, Australian, New
Zealand, Canadian and American People’s Common Law governing jurisprudence,
and of Magna Carta (Article 53 of John’s Charter and 17 of Henry’s), that Trial of
all crimes shall be by Jury; and that at Trial by Jury no judge or other officer
appointed by government shall preside in criminal cases or lawsuits in which
government is also an interested party. In such cases, without the observance of this
prohibition there can be neither Trial by Jury, nor legal trial of any type.
The reasons for this are simple and pure: Regarding convening officers (‘judges’)
at trials: impartiality and integrity cannot be obtained (nor realistically even
expected) from people who enforce the laws who are selected by those who also
make and maintain the laws. At the common “law of the land,” all officers who
convene Trials, whether in civil or criminal cases, are chosen (elected) by the
people. All convenors (justices; judges) are subject to common law and are
answerable to the common law tribunals of the people (i.e. Trial by Jury), not
protected by élite privilege nor impeachable by government and legislature.
See Book 4 of Blackstone’s Analysis of the Laws of England, p. 413; and Introduction to
Gilbert’s History of the Common Pleas, p. 2, note, & p. 4; etc.
Trial by Jury is so-named, for in democratic societies the trial of a citizen is by
fellow citizens who comprise the Jury. Trial is not ‘trial-by-government’ which
could never be fair where government is also one of the contesting parties.
Judges themselves comprise a branch of government, and, they are in the pay of
government. Police, prison service and above all, prosecutors and judges are
employed to enforce governments’ laws. Such personnel should never be asked,
nor relied on, to decide impartially whether laws are just, for they must fulfil
their task or face the fury of the government, their employer. For these reasons,
government and judiciary are incompetent to require the conviction or
punishment of any person for any offence whatever.
Q. When Is a Judge Not a Judge ?
A. When “the Judge” Is Not a Member of the Jury.
Until the Latin-derived word ‘juror’ was adopted, jurors were actually called
the judges, in recognition of their rôle. “...the judges, for so the jury were
called...” See p. 55 of Crabbe’s History of the English Law. In Trial by Jury, the
Foreman or woman of the jury is the principal presiding officer.
Jury Service Is the Right and Duty of All Citizens.
In Common Law Trial by Jury, all adult citizens qualify for jury service (save
convicts and lunatics). Common law requires Jurors to be indiscriminately chosen
by lot or chance, so as to represent all views in society and protect minorities.
See EIS#9: Jury Selection under Common Law; & Illegal ‘Jury-Packing’ by Government.
7
Specific Aspects of THE GREAT CHARTER CONSTITUTION
The Juror’s Duties in Trial by Jury.
After swearing to convict the guilty and acquit the innocent, in finding their
Verdict the Jurors’ duties are to judge:
~on the justice of the law, and annul, by pronouncing the Not Guilty Verdict,
any law or act of enforcement which is deemed unfair or unjust according to the
juror’s conscience (i.e. sense of right and wrong);
~the facts, and
~on the admissibility of evidence (evidence not being pre-selected by government
or judge and/or prosecutor).
~the nature and gravity of the offence;
~the moral intent of the defendant, innocent or of malicious intent: to find guilt,
the accused’s act requires to have been performed with malice aforethought
(mens rea); and, where guilt is unanimously found, to take account of
mitigating circumstances if any (provocation; temptation; incitation); and
~set the sentence, with regard to its being fit and just.
Wherever Trial by Jury takes place, be it in the U.S., the U.K., Australia,
Canada, New Zealand, and numerous other countries, it is DEFINITIVE of
Trial by Jury that, in finding their Verdict, the jurors perform the above duties.
For jurors not to do the above, or for someone other than the jurors to make any
such decisions, is another process: call it ‘trial-by-someone-else’ if you wish, or
‘trial-by-the-judge’ — but this travesty cannot be defined as Trial BY JURY.
In Constitutional Common Law Trial by Jury:
~the jury has the power to call witnesses, advisers and appoint amicus curiæ;
~the common law rôle of convenors of courts (‘judges’) is as a convenor and
for arranging security; advisory, inasmuch as this may be requested by the jury,
of which advice jurors may take only what is by them adjudged appropriate; and
for the arranging of re-trials and appeals if necessitated by circumstances (see
Gilbert’s History of the Common Pleas, pp. 57 & 70; and Vol. 1 of Palgrave’s Rise and
Progress of the English Commonwealth, p. 277; etc.);
~the ‘judge’ has no judicial rôle or authority: this precludes the possibility of
judges inflicting injustices as is so often the case today;
~contempt charges laid on persons by juries or judges have to be tried as for any
crime, that is, by jury;
~all evidence can be presented, and requires to be considered for its
admissibility by the jurors ― especially if it reveals partiality, injustice, an
unfounded nature, or venality in the law.
~those misnamed ‘justices’ or ‘judges’ are convenors, wholly subsidiary to and
at the command of the jury and its Foreman or woman;
8
Specific Aspects of THE GREAT CHARTER CONSTITUTION
The Illegality of the Status Quo.
Anyone acquainted with the process of law in the United States, Britain, Australia and
elsewhere today, will see how far removed the practices of courts are from the ideals
and legally binding stipulations of those nations’ Constitutions. Today, every single
one of the Juror’s Duties definitive of Trial by Jury (including judging on the facts of
the case) is illegally forbidden, interfered with and/or obstructed by the judges.
Malice Aforethought.
It is an unalterable principle of the common law and Trial by Jury inscribed into
the Constitution (the Supreme Law by which the executive, legislature, judiciary
and all citizens are legally bound) that there can be no crime without there having
been mens rea; that is, guilt or malicious criminal intent. Guilt is a personal
attribute or quality of the actor. It might not be involved in the act itself but guilt
depends on the intent or motive with which the act was committed. The jury must
find a person acted from a premeditated malicious criminal motive, mens rea, in
order to find him or her guilty. This is the issue the jury try: “guilt,” or “not guilty.”
Malice aforethought is the criterion by which common law defines guilt. Justice
can only demand the finding of a guilty verdict and punishment where there has
been malicious criminal intent. There is neither moral justice nor political
necessity (i.e. deterrent value) for punishing where there was no mens rea. (In
the case of one person injuring another innocently or accidentally, the civil law
suit and the Trial by Jury award appropriate compensation for damages.)
Common law Trial by Jury makes malice aforethought or guilt a necessity
preliminary to conviction: that is to say, ‘guilt’ cannot be attributed to a person or
imparted to an action simply ‘by legislation’. This mechanism of the common
law Trial by Jury protects (is intended to protect) individuals from governments
which have ulterior criminal ends and would seek to further them by making
statutory ‘offences’ out of innocent acts which are not crimes. The mechanism
can be effective only where the law is not broken by courts and government, and
where the Constitution is faithfully upheld: where the Jurors’ rights, duties,
powers and functions are fulfilled, and these latter are not illegally denied or
interfered with by judges, or by politicians’ legislative contraventions.
Common law defines crime as an act of injustice; that is, an act of malice aforethought,
of intrinsically premeditated malicious motive (mens rea). Since pre-historical time
immemorial, juries of people from all backgrounds, some literate, others not, have
agreed on and enforced common law in the Trial by Jury against injustices of all types,
such as tyranny, murder, rape, bodily harm, mental cruelty, torture, robbery, theft,
extortion, arbitrary dispossession, fraud and so on. Crime receives the universal
condemnation of men and women in juries in all times and places.
9
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Common law juries continuously enforce the just laws with unanimity, whilst
unjust or venal statutes and the enforcement of injustices by fallible judges are
fittingly annulled by the pronouncing of the Not Guilty Verdict. It serves the
interest of the individual citizen and the People at large to do so. That is to say,
the People reliably enforce just laws; and, only laws which are just are those
which should and must be enforced. (Even and especially the covert
undiscovered felon called to serve on a jury enforces the just laws, for not to do
so would reveal his insalubrious character to the other jurors.)
However, if the justice of a law is not evident, and the sentence of punishment
(being part of the law) cannot be accepted as justifiable and fair by twelve
indiscriminately chosen adult citizens, then that ‘law’ is no law at all: it requires
Annulment-by-Jury and must not be enforced. When juries judge the law and
regularly reject (nullify) prosecutions of a statute, that statute requires expunction.
Trial by Jury’s Contribution to the Development of Human Culture.
Trial by Jury is an anti-racist, anti-sectarian, egalitarian measure, which militates
on behalf of Good against Evil. Where properly practised, Trial by Jury envelops
the entire adult population, cultivating and propagating those higher human
concepts of natural justice, truth, social responsibility, liberty and equity, essential
to civilisation, progress and the ongoing development of human cultures.
Democracy installs the rôle of Juror as the citizen’s most important secular adult
duty. Trial by Jury alone proffers the preservation of individuals without prejudice
in regard to their nationality, race, gender, religion and background.
As a cause, Trial by Jury gives rise to far-reaching beneficial effects, creating a
salutary ethos absent in societies bereft of this uniquely just process. Examples:
in Trials by Jury, the disgraceful enforcement of tyrannical, venal or bad laws is
terminated; the people assume responsibility for preserving their rights,
possessions and liberties, protecting themselves and their society by punishing
and deterring acts of injustice and malice aforethought. (Apart from lunatics and
convicted criminals), according to common law all adults are eligible to serve as
jurors. From childhood, every person in a democracy is profoundly affected by
this healthy culture. Crime is rare in the society where the citizen is brought up
knowing that justice is the duty of, and equally available to, every adult.
Within a Constitutional Democracy, that is, a system of government controlled
by the Hellenic Athenian, the traditional European Anglo-American type of
constitution incorporating and based on Trial by Jury (be it in a republic or the
constitutional or symbolic monarchy), it is the unalterable duty of government
to uphold people’s sovereign right to seek their own individually-defined selffulfilment. Trial by Jury alone ensures that the government is controlled and
society arranged so as to allow every innocent citizen unmolested tranquillity of
existence and the pursuit of happiness.
10
Specific Aspects of THE GREAT CHARTER CONSTITUTION
The Egalitarian Aspect of the Great Charter Constitution.
The Precepts of Justice installed by the Great Charter are timeless, and apply to
all mankind.
Since the Hellenic Era, the Trial by Jury Justice System embodied the Constitution
adopted by all peoples throughout Europe. King Alfred the Great (constitutional
lawgiver), collated and personally wrote down the people’s customs and laws.
Magna Carta gave recognition to and installed this pan-European Constitution
in writing. It is interesting to see how these principles of justice were known
and utilised in Europe, and set the model civilised standard for the World,
which was later adopted by the Founding Fathers of the United States.
It is alas with the greatest sense of foreboding tinged with resolve that one
observes, by the comparison of Magna Carta with today’s systems, how people in
England, Russia, the United States, Australia, Canada, Europe (and all the West)
have passively acquiesced or actively participated in the criminal usurpation of
their traditional Trial by Jury Constitutional Justice System. Through their
corruption, or ignorance, servility, complacency and insouciance, these peoples
have aided and abetted the descent of once civilised great nations into becoming
dangerous modern tainted nests of injustice, crime, avarice and tyranny.
Denigration of Magna Carta as not being egalitarian is spurious. The assertion,
sometimes encountered, that the Great Charter only concerned itself with the
interests of the barons or property-owning classes is incorrect. This misstatement
of fact could only come from persons who have not read or understood the Great
Charter, or who, having read it, wish deliberately to mislead those who have not.
It is precisely because the Common Law Trial by Jury Justice System as installed
by the Great Charter gives equal protection to all orders or classes of English
men and women that it was, and is, universally acknowledged by the name:
The Great Charter of English Liberties.
Far from only concerning itself with nobility (“barons”), Magna Carta protected
all citizens. It should be well noted that it continues in full force of law to do so,
binding executive, legislature, and judiciary. This is because its Articles are
constitutionally emplaced “in perpetuity” (see Preamble) and cannot legally be
revoked, altered or superseded but by the consent of all the People of England.
Magna Carta relates to every member of society without exception, providing
equal justice for all before the law. Magna Carta goes further. It emplaces the
people, not the government, as the judges of their equals in due process of law:
this is the definitive mode of trial known as Trial by Jury. (The modern ‘judge’
is more properly called a convenor; and is today the lawless, judicable usurper
of the Jury.)
11
Specific Aspects of THE GREAT CHARTER CONSTITUTION
The egalitarian quality of Magna Carta makes itself illustrious to those who
comprehend what “the judgement of pares,” peers, i.e. the Trial by Jury, is, in
all its functions, purpose, power and duties; and that the judgement of peers is
the Great Charter Constitution’s exclusive Justice System for all causes
(lawsuits), civil, criminal and fiscal. As we shall see, Magna Carta applies to
commoners, women, freemen, merchants and shopkeepers and specifically
included the lowest class, the humble semi-bonded villeins (villagers).
Norman monarchs referred to their kinsmen and preferred, titled appointees
collectively as “barons.” The word had the simple meaning of “men” or “fellows.”*
The nobility comprise only a minute number of people amongst the population,
being those who have an hereditary title; such as duke, marquess, viscount, earl,
baron or baronet. (Apart from some few instances of designated privilege
wherein the title can pass down through a female) only the first-born male
inherits the title at the demise of his father.
*“The word baron, originally meaning only a man, was of very large significance, and is not unfrequently
applied to common freeholders, as in the phrase court-baron.” See Hallam’s Middle Ages, 3, pp. 14-15.
Note: A knighthood, enabling the conferee to be addressed as ‘Sir’ and his wife as ‘Lady’, is a
lifetime honour bestowed on a commoner freeman, and is not an inheritable title of nobility.
Similarly, Esquire is the correct, respectful form when addressing a gentleman commoner
[not to be confused with adoption of this as a distinction by the legal profession in the U.S.]
Lords were vassals, i.e. dependents, who held land from the king. Numbering then
only circa 300, the lords were sparsely dispersed amongst the population to the
various regions wherein they held land from the monarch. They rented it out to local
freemen who were commoners who were in turn vassals of the nobles. Magna Carta
established in writing the then already longstanding common law right of
commoners (and others) to be tried by their social-equals (Latin; pares); and that all
judgements concerning the case, including on the justice of the law and its
enforcement, were the duty of the triers (the jurors). The nobility were absolutely
dependent on the wholehearted assent of the armed common men, generally called
‘freemen’, of their neighbourhood. Without their support, the nobility were
impotent. The vast majority of the male population were known as freemen.
Hallam: “The relation established between a lord and his vassal by the feudal
tenure, far from containing principles of any servile and implicit obedience,
permitted the compact to be dissolved in case of its violation by either party.
This extended as much to the sovereign as to inferior lords.” Middle Ages; 3, 240-2.
Under the Norman feudal system, except for certain land held in common and
allotted for the sustenance of the commoners, the king (the government)
nominally owned all land. In the pre-industrial age, the production of and trade in
artefacts was limited as a source of income. Apart from the usurious unregulated
practices of money-lending, land was the source of material security.
12
Specific Aspects of THE GREAT CHARTER CONSTITUTION
There are numerous proofs that the ‘freemen’ were commoners, not nobles or
‘barons’. As the accused could only be tried by pares, peers, his social equals,
the fact that freemen were eligible to serve in all trials except at those of the
nobility (who were in turn tried by their peers, i.e. other titled lords) then
freemen are shown to have been of the commoner rank. The freeman was a
freeborn English male of unspecified, but adult, age. Freemen came from all
backgrounds, rich and poor alike, and included close and distant relatives of
titled people. These commoners comprised the great mass of the folk. The
freeman’s privilege was that he had the common law right to hold (tenant; tenir,
to hold) crown land from the lord of the manor (if some was available), in
exchange for rent (in kind and armed service, if called). For this reason,
freemen were also known as ‘freeholders’, although they did not own land (it
was rented). As individuals, those called freeholders or freemen need not have
actually been involved in agriculture at all.
It was not until later that the word ‘freeholder’ came to be distorted in meaning by
unconstitutional, illegal statutory interference. The epithet then was applied to men
who had come to own property or yearly income of a value in excess of a set
amount, such as forty shillings, which in those days reflected considerable wealth
of high class gentry. (Hence the term, to own ‘freehold’, which is still in use.)
Trustless monarchs who had ratified Magna Carta, began introducing ‘jury-selection
statutes’ with ‘property qualifications’ limiting people’s eligibility as jurors, shutting
out the great mass of the population from judging on and being judged by their
social equals; or peers. In this way, degenerate government intent on increasing its
dominance over the people, breached common law and Constitution to choose jurors
from a small pool of middle and upper class people closer to the seats of power and
privilege: those most inclined to subjugate and take advantage of less fortunate
people, and to harbour partisan prejudices in favour of the government’s
increasingly numerous, venal, and exceedingly cruel, statutes.
See Essay EIS#10 “We the People and the Matter of Words” for exposition on semantics
whereby language is perverted for purposes of government-judicial malindoctrination.
By contrast, these edicts of infamy would have found only disdain and dismissal
from the common folk had they remained enfranchised as jurors, as was and
remains their due. At the behest of worthless humans installed as monarchs,
thus commenced the squalid divisiveness of the English class system; the long
dolorous history of the unlawful erosion of the people’s Constitutional Common
Law Trial by Jury, and the destruction within Britain of the definitive basis of
egalitarian civilisation and true democracy.
See Ruffhead’s Statutes, viz. Statute 13, Edward I, ch. 38. 1285; & viz. Henry V, St. 2, ch. 3.
1414; and see Hallam’s Middle Ages.
13
Specific Aspects of THE GREAT CHARTER CONSTITUTION
As a vassal to the lord (or baron), the freeman was a dependent commoner; a
person holding land (if any were available) in return for rent, homage and
loyalty. This was distinct from the common land, to which all commoners had
right of allotment and cultivation for their own produce.
However, all of the available land was soon taken up. The children of large families
had to find methods of making their way in life. Freemen took to specialised crafts
and skills, merchandising and trade for a living. The list is long and includes
bowmaker, bowman, fletcher (arrowmaker), archer, smith, bayliff, steward, cooper
(barrelmaker), thatcher, tyler, wright, plowright, arkwright, weaver, painter, chandler
(candlemaker), squire, furrier, spurrier (spurmaker), baker, tailor, butler, carpenter,
gardener, fuller, brewer, farmer, merchant, hunter, skinner, tanner, sadler, tinker,
miller, cook, milliner, turner, tasker, spinner, dyer, groom, shepherd, and shearer.
Evidently, they frequently came to be named for their skill or trade.
Trial by Jury Was Intended to Protect People from the Spectre of Taxation.
Without restriction, freemen possessed and bore arms. As a social obligation to
preserve law and order, they accepted as a necessity to provide themselves with the
weapons suitable for close combat. The freemen were bound by their feudal tenure
(but could refuse the duty) to assist as jurors in the dispensation of justice.
See Mirror of Justices; pp. 7-8; & see Blackstone, Vol. 3, pp. 32-3.
Note: The latterday ‘in-group’ epithet, ‘Free Man of the City of London’ (the financial
district) is not to be confused with medieval European feudal society, nor with common
law extant in 1215.
In addition to rendering produce-in-kind, military service was a form of rent in an
exchange for tenancy. It was in effect what we would nowadays call ‘national
service’, because it was for mutual protection of the realm in which everyone
without exception had a stake. It provided only for actions in defence of the
country, merely requiring the individual’s acquisition of close combat weapons.
By contrast, ransoms or to take offensive measures such as expeditions to invade
a foreign country, required more resources and hence the raising of funds by
taxation specifically for that purpose. Thereby existed a general disincentive for
wars of aggression, because firstly, taxes would have to be approved by councils
of the nobility who would themselves be the most adversely affected by the tax,
and secondly, wars would require the assent of the population of armed freemen
themselves, who would have to bear the brunt of armed conflict.
It is not to be supposed that a randomly selected jury reflecting the interests and
attitudes of the ordinary people would ever voluntarily and unanimously enforce a
tax law upon people who conscientiously objected to donating any part of their hardearned resources towards fulfilment of the ambitions of unscrupulous despots.
14
Specific Aspects of THE GREAT CHARTER CONSTITUTION
To take place, military campaigns required a truly heartfelt grievance to be
shared amongst more or less the whole populace, such as the Norman invasion
of England to displace the man they considered Harold the Usurper; William
claiming prior right to accession (dubiously in fact, as he was a bastard).
The people knew then what we all should know and teach others today:
Common law Trial by Jury being upheld, it is the only (peaceful) means by
which the reputation, life, liberty and property of the people are truly protected,
and the intentions of aspiring tyrants are annihilated. The way to disarm despots
is firstly, to deny them the tax funds needed to recruit sufficient police and
armies literally to enslave and suppress the people; and secondly, to maintain ad
infinitum the right of all adult citizens to be the judges of the laws in Trial by
Jury. These principles require Universal Adoption and implementation for the
peace and progress of human civilisation.
Similarly to attempts at taxation, forced conscription into unpopular wars could
not have achieved unanimity for their enforcement within the context of a Trial
by Jury, in which ordinary freemen citizens were the judges of both the law and
the facts. Laws were only regarded as justly enforceable if they carried the
weight of fairness and public approval with them, to the extent of unanimity.
Regardless of his monetary worth, the freeman (being a free man) would insist
on the right to bear such arms as he preferred or chose to afford. Helmets,
lances, pikes, swords and daggers were ubiquitous. The effective weapon of the
day — and the most practised skill — was archery with the bow made of wood
of the yew tree. The bow and arrows offered protection both at relatively close
quarters and at a considerable distance.
Personal arms were and remain the most effective disincentive to murderers and
robbers. Disarming the citizens leaves weapons only in the hands of criminals
and the state, placing people in danger from common criminals. Compulsory
disarmament of the population is the well-known malintentioned stratagem of
the most savage despots, who seek to subject the people to their carnal caprice
and complete mercy. U.S. President Thomas Jefferson, the celebrated author of
the Declaration of Independence and Founder of the Democratic Party, pointed
out that arms are permanently required by the citizenry to protect themselves
from the unlawful activities of the agencies of tyrannical government.
There was no slavery as we understand the term, and the law itself imposed no
slavery. The cottars, serfs, churls and villeins were commoners absolutely
protected by Magna Carta’s guarantee of the then already longstanding common
law right of everyone without exception to a Trial by Jury. The villeins were even
specifically mentioned in Magna Carta; Article 20, as having this right.
15
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Article 20: “A freeman shall not be amerced (fined) for a small crime (delicto)
but according to the degree of the crime; and for a great crime in proportion to
the magnitude of it, but saving to him his contenement (the means of making a
living); and after the same manner a merchant, saving to him his merchandise;
and a villein shall be amerced after the same manner, saving to him his
waynage (plough-tackle and cart), if he fall under our mercy; and none of the
aforesaid amercements shall be imposed but according to the assessment
(ponatur) of a jury of reputable men of the neighbourhood.”
In the Great Charter, “reputable” meant adult men who were not convicts, ill or lunatics.
We know this from various sources of that era, including the following: “Persons
attainted of false judgements cannot be judges [note that the jurors were the judges of all
aspects of the cause], nor infants, nor any under the age of twenty-one years, nor infected
persons, nor idiots, nor madmen, nor deaf nor dumb, nor parties in the pleas, nor men
excommunicated by the bishop, nor criminal persons.” Mirror of Justices, 59-60.
“Old men above three score and ten years, being continually sick, or being diseased at
the time of the summons, or not dwelling in that country [locality], shall not be put in
juries of petit assizes.” See Ruffhead's Statutes, St. 13, Edward I, ch. 38, 1285.
A note of interest is that the lifestyle of cottars, serfs and villeins (villagers) was
not that of deprivation or discomfort. They were the equivalent of today’s wageslaves; that is, almost everyone who has to work for a living; more or less
servile to their employer. They bonded (contracted) themselves as labourers in
exchange for highly valued perquisites, such as the security of a tied cottage and
productive personal allotments. Their standard of living was materially adequate
and superior to some who could not or chose not to find a master. Naturally, in
contested issues, they could be prejudiced in favour, or wish to subvert the
interests, of their masters. So, common law forbade them from judging in
causes of their masters and from changing their master (without permission).
Article 20 specifically alludes to the villeins in order to provide them with the
protections of the Trial by Jury judgement of their local fellows.
With the important characteristic inherent to profoundly cerebral constitutions,
observe that Article 20 of the Great Charter makes a point of stressing that
punishments should be in proportion to the gravity of the crime.
See Essay EIS#14: “THE CRIME-GENERATING (INHERENTLY ILLEGAL) AND OTHER
DEGENERATE PROPERTIES OF BAD LAWS AND DISPROPORTIONATE PUNISHMENTS .”
Article 20 also serves to bring to one’s attention an attribute that is reflected
throughout the entire Constitution: Magna Carta is composed by the people to
protect the interests of all. As one would say in the vernacular, it is made from
the ‘bottom-up’ as opposed to from the ‘top-down’. This inevitably produces a
just character which differentiates a true constitution drawn up and installed by
the people, from one framed by rulers, governments and their bureaucrats.
16
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Trial by Jury Is the Essential Criterion by which the True Constitution
Is Differentiated from the Dictates of Despots.
The democratic Principle of our traditional Western Constitutions’ Trial by Jury
is that it is the Will of the People represented by indiscriminately chosen Jurors,
not the will of the court nor the current transient government, that must determine
what laws shall be established, maintained, and how they are enforced. In this
way, Trial by Jury is the common law’s Mechanism of Authority by which all the
rights of all the People are protected, and on which all rights depend.
Rulers’ top-down pseudo-constitutions always retain absolute power within the
ruling class: executive, politicians and their employees, the judges. These anticonstitutional fraudulent documents exclude Trial by Jury and the right and duty
of jurors to annul tyrannical acts of injustice from being enforced on their
fellow citizens. Pseudo-constitutions are exemplified by Communist China, the
old Soviet and the new “European” d’Estaing ‘constitution’ treaty.
The Constitutional right to a Trial by Jury to dispute punishment is for any offence
or “small crime.” That way, intrusive, vexatious, inequitable or unnecessary
regulations invented by unthinking or corrupt national and local authorities, should
be decided upon and justly eliminated by local people as jurors. So, under this
constitution, the defendant’s means of making a living, e.g. the villein’s wagon
(wain) and implements of work, were and are today protected from negation and
forfeiture explicitly to allow him to continue to earn a living to support his
dependents. That constitutes common law common sense and justice. Modern
interpretation of this article protects professional drivers and those who commute
in cars to work, from confiscation of their driving permits where no negative
results or damages by their driving have been incurred to others.
Consequently, in traffic cases, to thwart the protections of the Constitution,
modern governments have illegally imposed unconstitutional summary fines
and penalisation, and in all these instances deny recourse to the Trial by Jury,
although the Constitution guarantees the defendant the right to a judgement of
his peers (equals) for every instance of accusation of any infringement.
Juries of local people always protect their society from those who endanger or
do harm to others. Juries should never be prevented from fulfilling their rôle
and making due judgement. Constitutionally, and by universal natural law and
justice, and according to the common law, to deny the accused a Trial by Jury is
crime per se; one for which politicians and judiciary are accountable.
Article 40: “To no one will we sell, to no one deny or delay right or justice.”
Except, of course, for foreigners, this article means everyone is included,
women notwithstanding.
17
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Thus, the Head of State and government (or monarch who embodies all executive,
legislative and judicial government authority), are bound by the People’s common
law, the fundamental customs, rulings and justice prescribed by commoners in Trial
by Jury. Through Trial by Jury, the people hold sway over government and the
execution of a judgement or sentence can only be undertaken at the behest of a jury;
although, by Magna Carta, government has the power to pardon or reduce the
sentence. Re-trials and appeals are likewise authorised by the Great Charter.
Regarding egalitarianism, amongst others, Hume and Palgrave explain the fact well:
“The principle of the jury was not confined to its mere application as a mode of
trying contested facts, whether in civil or criminal cases; and, both in its form and
in its consequences, it had a very material influence upon the general constitution
of the realm. The main-spring of the machinery of remedial justice existed in the
franchise of the lower and lowest orders of the political hierarchy. Without the
suffrage of the yeoman, the burgess and the churl, the sovereign could not
exercise the most important and most essential function of royalty; from them he
received the power of life and death; he could not wield the sword of justice until
the humblest of his subjects placed the weapon in his hand.”
See Vol. 1. Palgrave’s Rise and Progress of the English Commonwealth, p. 277.
Referred to by Palgrave, the beneficial “material influence” of Magna Carta and
Trial by Jury results from their egalitarian spread of power to all the people. They
bestow on every adult citizen the burden and duty of participating in selfgovernment by making, deciding and enforcing the laws and annulling bad statutes.
The Constitution devolves power of decision to the people in such a way that it
brings the money-lending usurers (bankers) to heel: they must serve the needs of the
People rather than only themselves; or pay and be ostracised. This Constitution has
boundless positive and creative effects, and produces the societal ambiance
indispensable for the existence of civilised compassionate democratic society.
Hume: “Thus these famous charters (the Great Charter and Charter of the Forest)
were brought nearly to the shape in which they have ever since stood; and they
were, during many generations, the peculiar favourites of the English nation, and
esteemed the most sacred rampart to national liberty and independence. As they
secured the rights of all orders of men, they were anxiously defended by all, and
became the basis, in a manner, of the English monarchy, and a kind of original
contract, which both limited the authority of the king and ensured the conditional
allegiance of his subjects. Though often violated, they were still claimed by the
nobility and people; and, as no precedents were supposed valid that infringed
them, they rather acquired than lost authority, from the frequent attempts made
against them in several ages, by regal and arbitrary power.”
See Hume on the (Great) Charters confirmed by Henry III in 1217, Ch. 12, Hume’s
History of England.
18
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Magna Carta: The Trial by Jury-based Traditional European Constitution.
Scottish legal historian and philosopher Sir James Mackintosh says of Magna Carta:
“To have produced it, to have preserved it, to have matured it, constitute the
immortal claim of England on the esteem of Mankind. Her Bacons and
Shakespeares, her Miltons and Newtons, with all the truth which they have
revealed, and all the generous virtues which they have inspired, are of inferior
value when compared with the subjection of men and their rulers to the principles
of justice; if, indeed, it be not more true that these mighty spirits could not have
been formed except under equal laws, nor roused to full activity without the
influence of that spirit which the Great Charter breathed over their forefathers.”
Chapter Three of Mackintosh’s History of England.
Magna Carta was not, as is sometimes said, a creation of “French Barons.” The
Franks (or French) were not Normans. Indeed, these Nordic tribes were often the
bitterest of foes. Normans comprised but one of the European tribes, all of whom
subscribed to the common law justice system: the Trial by Jury. Nor was Magna
Carta an improvised text created by the Normans. Accepting the then already
extant and mostly unwritten people’s common law of the land, King Alfred the
Great had constitutionally codified the petit jury. The Great Charter Constitution
was for the most part the pan-European People’s common law adopted by the
Anglo-Saxons, which contained no statute made by government, and to which the
Norman monarchs subjected themselves by binding oath at coronation.
Kelham: “Thus stood the laws of England at the entry of William I, and it seems
plain that the laws, commonly called the laws of Edward the Confessor [an
Anglo-Saxon monarch successor to Alfred], were at that time the standing laws
of the kingdom, and considered the great rule of their rights and liberties; and
that the English [viz. Angles and Saxons, not Normans] were so zealous for
them, ‘that they were never satisfied till the said laws were reinforced, and
mingled, for the most part with the coronation oath.’ ”
“Accordingly, we find that this great conqueror, at his coronation on Christmas
day succeeding his victory, took an oath at the altar of Saint Peter, Westminster,
in sense and substance the very same with that which the Saxon kings used to
take at their coronations. And at Barkhamstead, in the fourth year of his reign,
in the presence of Lanfranc, Archbishop of Canterbury, for the quieting of the
people, he swore that he would inviolably observe the good and approved
ancient laws [specifically pan-European common law] which had been made by
the devout and pious kings of England, his ancestors, and chiefly by King
Edward; and we are told that the people then departed in good humour.”
See Kelham’s Preliminary Discourse to the Laws of William the Conqueror.
Ref. also, Vol. 1, Hale’s History of the Common Law, 186.
19
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Crabbe: “It is admitted, on all hands, that it (Magna Carta) contains nothing but
what was confirmatory of the common law, and the ancient usages of the
realm, and is, properly speaking, only an enlargement of the charter of Henry I,
and his successors.”
Crabbe’s History of the English Law, p. 127.
Nota Bene: To judge of law, i.e. its legal interpretation, decisions and rulings,
precedent and application, the Jurors are the sole legal judges prescribed by
constitution and common law. See the following from Gilbert:
“This position” (that the matter of law was decided by the king’s justices, but
the matter of fact by the pares [peers]) “is wholly incompatible with the
common law, for the Jurata [jury] were the sole judges both of the law and
the fact.”
Gilbert’s History of the Common Pleas, note, p. 70.
*Cf: United States v. Moylan; U.S. Fourth Circuit Court of Appeals, 1969.
“If the jury feels the law is unjust, we recognise the undisputed power of
the jury to acquit even if its verdict is contrary to the law as given by the
judge, and contrary to the evidence.”
“If the jury feels that the law under which the defendant is accused is
unjust, or that exigent circumstances justified the actions of the accused, or
for any reason which appeals to their logic or passion, the jury has the
power to acquit, and the courts must abide by that decision.”
Neither in the United States, Britain, Australia, Canada, Eire and New
Zealand nor in all of Europe have legislatures ever been invested by the
People with authority to remove the Right of the accused to a Trial by Jury
for any charge or offence whatever, however serious or trivial, nor to impair
the powers, to change the oaths, or abridge the jurisdiction of jurors.
Today, government (which is comprised of executive, legislature and judiciary)
has subverted the Constitutional Trial by Jury Justice System. This usurpation
imposes summary processes and judgements, and the one-sided ‘trial-by-judge’.
Jurors are denied functions which define the Trial by Jury (thus denying Trial
by Jury itself); or the accused (whether innocent or guilty) is terrified into the
disgraceful charade of ‘plea-bargaining’. In one way or another, government
perverts and obstructs justice; and precludes the free availability of Trial by
Jury to people as plaintiffs and the accused.
All processes today are mistrials and all sentences pertaining thereto are Miscarriages
of Justice. Citizens thus persecuted are due an authentic Trial by Jury and if acquitted,
are due Amnesty and Restitution (as for other Wrongful Penalisation).
20
Specific Aspects of THE GREAT CHARTER CONSTITUTION
There were but few copies of any laws, all of which were inscribed in Latin, and
these were retained, not distributed. There is no possibility that local convenors
of trials such as sheriffs, stewards and bailiffs (who generally could not read;
still less understand Latin) were in a position to explicate a law. The people as
jurors judged by their common law standards.
In consideration of: “Ad questionem juris non respondent Juratores.” [i.e. jurors
do not reflect upon (consider) the question of law.] “The Annotist says, that this
is indeed a maxim in the Civil-Law Jurisprudence, but it does not bind an
English jury, for by the common law of the land the jury are judges as well
as the matter of law, as of the fact, with this difference only, that the judge on
the bench is to give them no assistance in determining the matter of fact, but if
they have any doubt among themselves relating to matter of law, they may then
request him to explain it to them, which when he hath done, and they are thus
become well informed, they, and they only, become competent judges of the
matter of law. And this is the province of the judge on the bench, namely, to
show, or teach the law, but not to take upon him the trial of the delinquent,
either in matter of fact or in matter of law.”
Gilbert’s History of the Common Pleas, p. 57.
“The trial by jury ever has been, and I trust ever will be, looked upon as
the glory of the English law. It is the most transcendent privilege which any
subject* can enjoy or wish for, that he cannot be affected in his property,
his liberty, or his person, but by the unanimous consent of twelve of his
neighbours and equals.”
3, Blackstone’s Analysis of the Laws of England, p. 379. Emphases added.
*N.B. “Any subject” refers to every citizen in the realm — not just the nobility.
Trial by Jury is the vital part of The Constitution, which places the liberties of
the people within their own keeping. Of this Blackstone says:
“The Trial by Jury is that trial by the peers [i.e. equals] of every
Englishman which, as the grand bulwark of his liberties, is secured to him
by the Great Charter. The liberties of England cannot but subsist so long
as this palladium* remains sacred and inviolate, not only from all open
attacks, which none will be so hardy as to make, but also from all secret
machinations which may sap and undermine it.”
4 Blackstone, pp. 349-50.
*Definition. Palladium: any safeguard; a symbol, metaphorical or statuary, which
represents the protection of the liberties and rights of man. Derived from Pallas Athene,
Greek goddess of wisdom and war. Today, the world’s most famous Palladia are the
Trial by Jury, and the Statue of Liberty in New York harbour.
See the works on the English [cf. British] Constitution, history and law by Hume,
Crabbe, Palgrave, Gilbert, Mackintosh, Blackstone, & Stuart’s The Constitution of
England.
21
Specific Aspects of THE GREAT CHARTER CONSTITUTION
The denial of the Juror’s rôle and Duty denies the democratic Trial by Jury.
The denial of the Common Law Trial by Jury transfers sovereign supreme
power from the People to a ruling élite: a despotism or oligarchy. U.S. President
John Adams, lawyer, pronounced about the Juror:
“It is not only his Right but his Duty to find the verdict according to his
own best understanding, judgement and conscience, though in direct
opposition to the direction of the court [i.e. the judge].”
Yale Law Journal. See DEMOCRACY DEFINED books.
“The Jury has the Right to determine both the law and facts.”
U.S. Supreme Court Chief Justice Samuel Chase.
Signatory to the Declaration of Independence.
In this matter, good men and women who stand up against tyranny are of one mind.
More recently, according to U.S. Chief Justice Oliver Wendell Holmes:
“The Jury has the power to bring a verdict in the teeth of both law and fact.”
Our Cherished American, English and European Heritage:
The Common Law Trial by Jury Constitutional Justice System.
The following statutes enacted in the century after Magna Carta, corroborate
that our cherished American and English heritage, the Common Law Trial by
Jury Constitutional Justice System, is recognised by statutes subsequently
enacted as being Constitutional; and is that of the legem terrae, the people’s
law of the land, the common law:
“That no man, from henceforth, shall be attached by any accusation, nor
forejudged of life or limb, nor his land, tenements, goods, nor chattels, seized
into the king’s hands, against the form of the Great Charter, and the law of the
land.” — Ruffhead’s Statutes, 5, Edward III, Ch. 9. (1331)
“Whereas it is contained in the Great Charter of the franchises of England, that
none shall be imprisoned, nor put out of his freehold, nor of his franchises, nor
free customs, unless it be according to the law of the land; it is accorded,
assented, and established, that from henceforth none shall be taken by petition,
or suggestion made to our lord the king, or to his council, unless it be by
indictment or presentment of good and lawful people of the same
neighbourhood [Trial by Jury] where such deeds be done in due manner, or by
process made by writ original at the common law; nor that none be put out of
his franchises, nor of his freehold, unless he be duly brought in to answer, and
forejudged of the same by the course of the law; and if anything be done against
the same, it shall be redressed and holden for none.” — Ruffhead’s Statutes, 25,
Edward III, Ch. 4. (1350)
22
Specific Aspects of THE GREAT CHARTER CONSTITUTION
THERE IS NO ‘get-out clause’ IN MAGNA CARTA.
1. Today, people are generally ignorant about the History of Magna Carta and
have a lack of knowledge about Trial by Jury being the principal precept and
the justice system of the law of the land, legem terræ. As a result, a subterfuge
has been easily foisted upon a credulous population. To say there is a ‘get-out
clause’ in Magna Carta is as incorrect and malign as the calumny that England
or Britain has “no constitution.”
A universal and eternal criterion of justice is that the validity and justice of laws
and their enforcement require to be judged, not by those who make and enforce
the laws, but by those who voluntarily submit to the laws.
Since time immemorial long before Magna Carta, the Trial by Jury judgement
by equals of equals was the justice system of the law of the land, legem terræ.
As explained previously, legem terræ contained no statutes of government or
monarch or rulings by justices (judges). Despite grave aberrances, the
European Gothic Peoples have a long democratic tradition. Antecedent Trial
by Jury, in which the juror has the power, the right and the duty to judge on
the justice of law in finding the Verdict, was guaranteed by Emperor Conrad
of Germany two centuries before Magna Carta.
See 3, Blackstone, p. 350.
To annul the tyranny of government enforcement of unjust laws, the Trial by
Jury has been the main edifice of “the law of the land,” legem terræ, the
common law; and Trial by Jury was the mode of trial adopted throughout all
the nations of Europe. The Anglo-Saxons and Normans were familiar with it
before they settled in England.
Crabbe: “It cannot be denied that the practice of submitting causes (suitsat-law) to the decision of twelve men was universal among all the northern
tribes (of Europe) from the very remotest antiquity.”
See Crabbe’s History of the English Law, p. 32.
To preclude arbitrary government, tyranny and injustice, legem terræ prescribes
that judgement on the justice of the law and its enforcement was and remains the
exclusive preserve of the ‘pares’, the equals of the accused. (See p.7, the common
law jury are the judges.)
The law of the land’s judgement of peers does not stop government from enacting
legislation; but it prohibits government from judging in its own, or any, causes.
Legem terræ, the law of the land, authorises that the accused may only be judged
by his or her peers, i.e. social equals. This is the law of the land legem terræ and it
is the crucial point of Magna Carta.
23
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Contracts by promises and oaths have never been easy to prove, still less to
enforce. A written undertaking however, takes on an altogether different
complexion. This is what Magna Carta was about. The Norman kings behaved
as conquerors are wont. They were disposed to harsh despotism and, despite
pledging oaths to be bound by the people’s common law of the land, they
behaved as if their word was ‘the law’.
King John came to the throne in 1199. Following John’s many acts of barbaric
injustice which today we would call a reign of terror, the historic intention of
the barons and the freemen was to strip monarchs and government for all time
of their power to tyrannise the population. If the king did not agree to these
written terms, then civil war would ensue.
Article 39 is paraphrased as follows: “No one may be punished, etc., except
(i) according to the judgement of his peers or (ii) according to legem terræ (the
law of the land of which Trial by Jury is the single legal method of trial).”
Not only does the Great Charter inscribe the common law of the land legem
terræ of which Trial by Jury is the sole justice system, but it also specifies in
particular the judgement of peers; i.e. the Trial by Jury, as the means of settling
causes. In this one Article 39, Magna Carta effectively emplaces Trial by Jury
twice, emphasising instalment of the people’s Trial by Jury as the mode of trial:
once naming “the judgement of the peers” (the Trial by Jury itself, which was
central to the traditions of legem terræ) and a second time as “the common law
of the land legem terræ,” of which Trial by Jury is the only method of trial.
Nota Bene. By specifying the people’s common law of the land legem terræ, the
Great Charter explicitly excludes government-made statutes. Those who claim the
falsehood of a “get-out clause” make the preposterous assertion which defies the
History of Magna Carta and overturns logic. They claim that, although the barons
and freemen were righteously infuriated to the point of civil war by the king’s
incessant cruelties and massive injustices, having brought the king to their mercy,
they then deliberately provided the king with a “get-out clause” by which he
could continue to tyrannise the people at his pleasure under any statute or edict of
injustice he chose to pronounce. The authors of the Great Charter Constitution
were not about any such nonsense as that. Individuals today who wish to remove
the Constitution’s permanent restraints on government, misrepresent the meaning
of legem terræ, claiming that “the common law of the land legem terræ” in
Article 39 is “statute law” — which it is not. They supplant the real translation
with the like of this mendacious monstrosity: ‘No man may be punished except
according to the judgement of his peers or by the king’s statute law.’ This
disingenuous idea would only be correct if the people’s legem terræ were statute
law. It is not. There is no “get-out” clause in Magna Carta.
24
Specific Aspects of THE GREAT CHARTER CONSTITUTION
The Constitution comprises the Supreme Law; the People in juries comprise the
Supreme Legislature. It is manifest ignorance — or duplicity — of Sir Robert
Worcester (and others) to claim and propagandise this ‘get-out clause’ fiction;
along with their ignoble malindoctrination of people with the ludicrous
imposture that government-made statutes ‘overrule’ the Constitution. This they
never do legitimately — government contravenes the Constitution only by
illegal force, relying, as tyrants always have, on the ignorance, servility and
insouciance of the population.
When the People choose to move, they will reinstate the unsurpassed traditional
European common law Trial by Jury-based Constitution.
2. Another affirmation of this point that the Great Charter allows no form of trial
other than the judgement of peers and no law other than that willingly subscribed
by the common people, comes from the History of Magna Carta. The principal
premise of the Great Charter was that no man shall be punished at the
government’s (king’s) command: only social equals of the accused may try the
case and where appropriate, pronounce sentence. Only then may the government
act, and then only in accord with the judgement of the pares (peers).
The History of Magna Carta shows that, having given his seal to the Great
Charter, King John recognised that his laws were to be “taken for naught”
unless the jurors authorised enforcement. The legislative power had not been taken
from him, but only the power to enforce his laws; unless juries should consent to
enforcement. This gave the sovereign supreme authority to the people to judge
all legislation and annul any regulation which did not meet with their approval.
Neither John nor any of the government personnel, but only the people as jurors
had the power to decide whether a law was to be enforced, and if so, how.
Being the cruel despot that he was, John afterwards rued having given “for ever”
(Article 63) all judicial power to the people. He (the government) retained only the
executive function of carrying out the judgements (sentences) of juries. Government
thus serves the People. History books relating to Magna Carta unanimously
affirm John was bound by Magna Carta and knew himself to be so. However, not
only John but all subsequent monarchs at coronation, the inaugural ceremony of
British Heads of State, have ratified and bound governments under the Great
Charter Constitution, the basis of “the statutes of government.”
It is, of course, desperate farce to try to re-write history and say some form of
“get-out clause” or legal loop-hole exists in Article 39: to claim government
could in some way enforce statutes and by-pass the sovereignty of juries.
If there had been a “get-out clause” John would not have written to the Pope, as
indeed he did, to plead for a cassation of the Great Charter.
25
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Incidentally, in this secular matter, the Pope had no authority to intervene.
The History of Magna Carta makes fascinating reading to all who seek to know
about the Trial by Jury model justice system adopted by the U.S. and other
Constitutions and which underpins civilisation, sine qua non.
See Echard’s, Hume’s, and Crabbe’s Histories.
3. The article [chapter or section] guaranteeing Trial by Jury is in these words:
“Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut utlagetur, aut
aliquo modo destruatur; nec super eum ibimus, nec super eum mittemus, nisi
per legale judicium parium suorum, vel per legem terræ.”
A. In Latin, VEL is translated as both ‘and’ or ‘or’. It means ‘or’ as a
conjunction; and means ‘and’ if VEL is repeated within the sentence as a
coordinate relating to a previous clause. Hence, in Magna Carta, the word vel
must be rendered both by and, and by or, depending on the signification
intended. This is explained as follows.
In cases of arrest and imprisonment for the purpose of bringing a man to trial, vel
should be rendered by or, because there cannot yet have been any judgement,
verdict or sentence of a jury. In this instance, “the common law of the land legem
terræ” is the restraint upon the king. It governs and guides his actions.
Common law recognises the Trial by Jury judgement of peers as the sole legitimate
form of trial; and the law of the land authorises no other form of trial. Of this we are
certain. Trial by Battle and Trial by Ordeal had already become virtually defunct,
and in any case were granted only as a last resort to a defendant already convicted
by the judgement of peers (see Vol. 2, Hallam’s Middle Ages; note, p. 446). If there
were any other form of trial provided for under the people’s legem terræ at the time
of Magna Carta, there would certainly be evidence of it: nonesuch exists.
Unless and until there has been a judgement of peers there is no Verdict.
Common law had long forbidden kings (or their representatives) from taking
executive action of any kind against a person’s life, liberty or property without
the consent of the peers. If this restraint were removed, the king (and his
representatives) would have dangerous arbitrary power to make arrests at their
pleasure, and confine to prison indefinitely under the pretence of an intention to
bring to trial. Magna Carta was introduced to annihilate the government’s
power to abuse and do injustice to people.
B. In cases where the peers have tried the case and passed a judgement (i.e.
sentence), vel is repeated as a coordinate relating to a previous clause, giving
the meaning and, rendering concurrence of “the judgement of the peers and the
law of the land,” authorising the government to execute the sentence on a
party’s goods or person.
26
Specific Aspects of THE GREAT CHARTER CONSTITUTION
C. It is usual practice to construe with reference to each other, the meaning and
intention of laws and charters on the same subject. Blackstone, speaking of the
Trial by Jury as established by Magna Carta, corroborated that the word vel
should be rendered by and. Blackstone says Emperor Conrad of Germany two
hundred years before Magna Carta, “couched in almost the same words” as
Magna Carta, the identical purpose when undertaking the installation of
Common Law Trial by Jury for his people, confirming the meaning intended:
“Nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum
nostrorum, et judicium parium suuorum.”
“No one shall lose his estate unless according to the custom of our ancestors
[i.e. the common law of the land], and [not or] the judgement of his peers.”
See 3, Blackstone, 350.
NOTA BENE: The fact that Emperor Conrad of Germany emplaced the
judgement of peers further establishes the Trial by Jury mode of justice system
as being that of the traditional and true European Constitution.
4. In Latin, the word ‘homo’ means ‘human being’ (of either sex), ‘person’ (of
either sex), or ‘man’.
When the word ‘homo’ is utilised with the first two significations, i.e. ‘human
being’ and ‘person’ which relate to both men and women, for convenience of
inscription only the masculine gender is used to apply to both sexes. This is the
same in French today, when Dear, ‘Chers’ (the masculine form) is used when
writing to both a man and a woman. Otherwise one would have to write
repeatedly ‘his and her’ and ‘male and female persons’ throughout the article.
Article 39 applies to “all free persons” as much as to all free “men” and there is
nothing in the Latin which can be construed as excluding women. This is indeed
re-affirmed by Article 40 (ref. p. 17).
Further Observations on the Latin:
5. A look at the Latin is interesting. It shows how false translations have from
time to time been fabricated by despicable renegades and servants of despots in
attempts to undermine the Great Charter’s primary intention which was, by
installing the judgement of peers, to extirpate for all time the possibility for
government to tyrannise “We the People.”
The wording of the corresponding Article in the Great Charter of 1225 and 1297
which forms the permanent basis of the Constitution, is as follows:
“Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de libero
tenemento, vel libertatibus, vel liberis consuetudinibus suis, aut utlagetur, aut
exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum
mittemus, nisi per legale judicium parium suorum, vel per legem terræ.”
27
Specific Aspects of THE GREAT CHARTER CONSTITUTION
In the entire Article, none of the words or wording suggests, provide for or
authorise any judicial action by anybody other than the peers (the jury). Nothing
in the Article anywhere describes the king or government as having any
function other than that of action, and that is specifically to execute the sentence
of the jury. Let us dissect and look at the wording.
Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de libero
tenemento, vel libertatibus, vel liberis consuetudinibus suis, aut utlagetur, aut
exuletur, aut aliquo modo destruatur
No freeman shall be arrested, or imprisoned, or deprived of his freehold, or
his liberties, or free customs, or be outlawed, or exiled, or in any manner
destroyed (harmed)
nec super eum ibimus
These words describe a physical action: “nor will we (the king or
government) proceed against him” in an executive rôle to execute a sentence.
nec super eum mittemus nor send anyone against him,
The words do not imply a judicial opinion or action. There is nothing in the
Latin to allow translation of the words as ‘pass upon’ or ‘condemn’— ‘nor will
we pass upon him, nor condemn him’ — is incorrect.
It is important to see the legal difference between the true and the false
translations. The wrong translation attempts to give some ‘judicial’ function,
choice or decision to the king, whilst the true translation dictates that the king
only has an executive function to carry out the jury’s sentence.
The meaning and intention of the words, nec super eum ibimus, nec super eum
mittemus, are confirmed by a charter granted previously by King John for the
purpose of allowing the barons and freemen to frame the Great Charter itself.
See as follows:
“Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec eos nec
homines suos capiemus, nec disseisiemus nec super eos per vim vel per arma
ibimus…”
“Know that we have granted to our barons who are opposed to us, that we will
neither arrest them nor their men, nor disseize them, nor will we proceed
against them by force or by arms…”
Blackstone’s Introduction to the (Great) Charters, Note; Law Tracts, p. 294. Oxford ed.
Definition. Disseize: to dispossess wrongfully. Disseizin: arbitrary wrongful dispossession.
The full signification of nec super eum ibimus, nec super eum mittemus, is:
nor will we (the king or government) proceed against him, nor send
(anyone) against him with force or arms…
28
Specific Aspects of THE GREAT CHARTER CONSTITUTION
The translation of the previous words is supported and made plain by correct
translation of the subsequent clauses. Together the whole makes perfect sense giving
expression to the well-known longstanding European peoples’ democratic civilised
tradition of precluding despotic government by the method of Trial by Jury.
nisi, after a negative clause means unless
nisi per legale judicium parium suorum. Let us look at these words separately in
order that the meaning can make itself transparent.
Judicium is a judgement, which in the case of a guilty verdict is synonymous
with the word ‘sentence’. Here, ‘judicium parium suorum’ means ‘the sentence
of his peers’. This means that the peers, the jurors, are to set the sentence.
To this day, law books use the words judgement and sentence synonymously.
per should generally be translated as ‘according to’ [not as ‘by’].
There is sense in saying that the government might punish a man according to
the sentence pronounced by his peers. This means that the government carries
the sentence into execution. Whereas, the sense is not clear if one says that a
monarch might punish a man by a judgement of his peers.
Likewise, in the subsequent phrase ‘per legem terræ’ per should be translated as
‘according to’ not as ‘by’. There is sense in saying that the monarch might
proceed against a man (to effect his arrest) with force or arms, according to the
law of the land; for this means that the king is acting as the executive officer and
carrying the law into execution. Whereas, there is no clear meaning in saying that
the king might proceed against a man with force or arms by the law of the land.
Something which is done by law or according to law is merely carrying the law
into execution. If the word by is translated as having the intended meaning of
‘by authority of law’, then nothing can be done except what the law of the land
authorises or is pronounced as the sentence of the peers. Again, the king or
government is only authorised to carry into execution what the peers or the law
of the land authorise. The correctness of the translation of per as according to is
corroborated when considering the wording of Emperor Conrad of Germany’s
antecedent installation of the Trial by Jury two hundred years earlier.
“Nemo beneficium (possessions, land or property) suum perdat, nisi secundum
consuetudinem ante cessorum nostrorum, et judicium parium suorum.”
Translation: “No one shall lose his possessions/property, unless according to
(“secundum”) the custom (or common law) of our ancestors, and (according to) the
sentence (or judgement) of his peers.”
nisi per judicium parium suorum means unless according to the judgement/
sentence of his peers.
29
Specific Aspects of THE GREAT CHARTER CONSTITUTION
6. Further proof in Articles 20 and 21 makes it conclusive that juries, not the
government (judge), set the sentence:
Article 20: “A freeman shall not be amerced (fined) for a small crime (delicto) but
according to the degree of the crime; and for a great crime in proportion to the
magnitude of it, but saving to him his contenement (the means of making a living);
and after the same manner a merchant, saving to him his merchandise; and a villein
shall be amerced after the same manner, saving to him his waynage (plough-tackle
and cart), if he fall under our mercy; and none of the aforesaid amercements
shall be imposed but according to the assessment (ponatur) of a jury of
reputable men of the neighbourhood.”
Article 21: “Earls and Barons shall not be amerced but by their pares (equals),
and according to the degree of their crime.”
Fines were the most frequent punishments. Whereas fines under the common law
observed by the Anglo-Saxon kings went to the victim or his or her surviving
relatives, the government of Norman kings illegally seized upon fines as a source
of income. If the amounts of fines had been left to be set by the king it would have
represented an irresistible pecuniary temptation for him to impose oppressive
amercements on people. Similarly, if the king or his servants the justices were
allowed to set sentences other than fines, they could be seduced by corrupt motives
into threatening or imposing harsh sentences to achieve criminal aims. In short, for
the best of reasons, the Constitution forbids government functionaries from
interfering in any aspect of the judgement of a citizen’s behaviour. Magna Carta
inscribed that all aspects of the case were to be judged by the jurors. It was and
remains the purpose of Trial by Jury to protect the people from all possible
oppression by government. The jury and only the jury set the sentence.
7. Magna Carta does not prescribe that the government must punish according to
the sentence of the peers: but that government shall not punish “unless according
to” that sentence. It does not oblige the king to execute the sentence; but it forbids
him from going beyond the sentence. Government might lessen the sentence or
acquit on grounds of law, or even pardon. However, government cannot legally
punish beyond the extent of the jurors’ sentence. The Constitution forbids
government from punishing, except according to the judgement of peers.
8. legale in the phrase ‘nisi per legale judicium parium suorum,’ means:
firstly, the sentence must be rendered in a legal way which accords with the common
law trial, the judgement of the jury of indiscriminately chosen social-equals of the
accused, i.e. the Trial by a Jury of peers: for example, in unanimity to pronounce guilt
by the full complement of legally empanelled jurors sworn to try the cause;
secondly, the judgement or sentence is rendered after a legal trial has taken place;
30
Specific Aspects of THE GREAT CHARTER CONSTITUTION
thirdly, a sentence requires to be for a legal offence. That is, the defendant is
adjudged to have performed a crime as defined by the common law: an act of
injustice from a criminal intent with malice aforethought.*
*See Essay EIS#8 “GUILTY? OR NOT GUILTY?”
If a jury were to convict and sentence a man without giving him a legal trial, or for
an act which was not really and legally criminal, then the sentence itself would not
be legal. This clause forbids the government from carrying out such a sentence: the
clause guarantees that government will execute no sentence or judgement unless it is
legale judicium, a legal sentence. If doubt exists whether a sentence be a legal one,
it would require to be ascertained by a re-Trial by Jury.
(The word ‘legale’ did not mean that judicium parium suorum (the judgement of his
peers) should be a ‘pre-set sentence’ which any law of the king should require the
peers to pronounce. For if so, the judgement would not be by the peers but would
instead be a sentence by the king, which the jury would be mere mouthpieces in
pronouncing — hardly an effective barrier against the tyrant oppressor.)
9. The Constitution intentionally removes the power to set sentences from the
government, and democratically devolves this duty to citizen-jurors so that the
government may punish only at the behest of juries, and strictly only according
to their sentences (or a lesser, moderated one; or to pardon). Hence, Thomas
Jefferson’s ‘anchor’:
“I consider Trial by Jury as the only anchor yet imagined by man, by
which a government can be held to the principles of its constitution.”
U.S. President Thomas Jefferson; Author of the Declaration of Independence;
Founder of the Democratic Party.
See The Writings of Thomas Jefferson, ed. H.A. Washington, Lippincotts, Philadelpia.
By ascribing judgement to the peers in Trial by Jury, The Constitution allowed
punishments neither to be prescribed by statute, that is, by the legislative power,
nor in any other manner by government or judges. Consequently, all statutes or
regulations prescribing particular punishments for particular ‘offences’,
or giving the government’s judges any authority to set punishments, were,
and are, void. Such sentences pertaining thereto are Miscarriages of Justice.
All persons suffering persecution thereby are due a proper Trial by Jury (retrial); and if found to have acted innocently, i.e. behaved without malice
aforethought, are due (overdue) Amnesty and Restitution.
10. per legem terræ means according to the common law of the land.
In the aforegoing sections of this essay we have looked at the meaning of this
phrase in some detail, which excludes all statutes or measures made by
governments. There remain some observations which should be included.
31
Specific Aspects of THE GREAT CHARTER CONSTITUTION
The Great Charter Constitution affirmed that punishments were henceforth to be
set by the jury, as they had always been according to the law of the land. This is,
after all, a definitive attribute intrinsic to the judgement (or sentence) of the peers;
that is, a Trial which is by Jurors. (If someone other than the jury makes such
decisions then the process cannot be defined as a Trial by Jury.)
History shows that when a case leads to conviction, the defendant had and has the
right of appeal to government against conviction or the sentence; and can demand an
acquittal or a new trial if the trial were in some way flawed or against the law.
Trial by Jury was a central part of legem terræ. The fact that the jury set the
sentence shows that the jurors must judge of everything which relates to the
cause at issue: the law itself; on the admissibility and weight of evidence and
testimony; the motive and moral intent of the accused; and the nature of the
offence or injustice committed. The jury must try every aspect of the trial in
order to know what comprises the appropriate sentence. The jury are the judges;
they have all authority; proceedings are under their jurisdiction. Those today
misnamed ‘judges’ are mere convenors of courts. (See previous sections.) If the
law or evidence or the sentence or anything at all could be dictated to the jury
then the trial would not be by jury. It would be by someone other than the jury.
To ascertain the truth, the jurors must see all the evidence and decide which
evidence is relevant. Jurors cannot try an issue unless it is they who determine
what evidence is admissible. It is a most grave crime (of subreption and/or
perjury) to exclude or withhold evidence from jurors that they would consider
should be admitted were they to see it. It is inherently immoral and a criminal
act to make a juror pronounce a person ‘guilty’, or to declare that one person
owed money to another, on such partial evidence. If decisions on the evidence
are taken by someone other than the jury, then the process cannot be called
Trial BY JURY; and it is a mistrial.
11. Where before jurors swore simply and justly “to convict the guilty and
acquit the innocent,” modern government has malevolently inserted the words,
“according to the evidence,” into jurors’ oaths. This violates Common Law,
Magna Carta, and honesty, because this wording duplicitously means “only that
evidence which the government [i.e. the judge] allows the jury to receive.”
If the government can dictate the evidence, and the jury is required to find the
verdict according to that evidence, then government can dictate the verdict
which the jury must reach. In that case, the trial is really a pretence, not a ‘trial’
at all. It is also a rigmarole of a pretended ‘trial’ by the government, the judge,
not by a jury. This sums up the corrupt process which takes place today. It is a
shameful calumnious criminal subterfuge.
32
Specific Aspects of THE GREAT CHARTER CONSTITUTION
12. The corresponding Article in Magna Carta of 1225 ratified by Henry the
Third and Edward the First in 1297, which remains the wording of Magna Carta
ratified by Heads of State subsequently as one of “the statutes of government”
and is taken today as basis of The English (cf. British) Constitution, dictates:
No freeman or free person shall be arrested or imprisoned or deprived of
his freehold or his liberties or free customs, or be outlawed or exiled, or in
any manner harmed, nor will we (the king/ the government) proceed
against him nor send anyone against him with force or arms, unless
according to (that is, in execution of) the legal judgement of his peers, and
(or or, as the case may require) the Common Law of the land (of England,
as it was at the time of Magna Carta in 1215).
See Hallam’s Middle Ages; Echard’s History of England; Hume’s History of England; &
see the legal, historical and constitutional works of Hale, Gilbert, Stewart, and Blackstone.
See Latin Dictionary, Examples, etc., Charlton T. Lewis, Oxford University Press.
Constitutional Trial by Jury Is the Sole Just and Legal Means of Trial.
Those who seek to motivate others into taking action in support of a good cause
sometimes quote Edmund Burke for authoring words that say evil triumphs
when good men do nothing. We dispute the underlying meaning of these words.
No person who merely watches evil without in some way trying to resist it, can
be described as ‘good’. This saying confounds truth and the meaning of words.
To be good one must do good. We urge people to spread the universal message
about the Constitutional Trial by Jury, as a means of doing good to mankind.
The d’Estaing ‘European constitution’ eradicates Trial by Jury and supplants it
with trial-by-government-judge, the inherently illegal, one-sided modus operandi
of communist, fascist, National Socialist (NAZI) and all primitive totalitarian
governments. This false constitution is a tool of tyranny discreetly concocted by
bureaucrats at the behest of politicians and government-corporate interests.
Rejected by referenda and polls, it nevertheless is being arbitrarily emplaced.
For all causes, Magna Carta, Article 39, explicitly disallows government from
denying Trial by Jury and there is no ‘get-out clause’ from this stricture. We
abstain from discourteous language in debating issues. However, it requires great
restraint to avoid expressing many plain insults and profound contempt for people
who take up this conspiratorial fabrication. Worcester gives dimwits a catchysounding phrase with which they then emulate the parrot to elevate themselves
from the insignificance of dunces to the hollow dignity of the charlatan. When
Robert Worcester and others disseminate their putrescent deceit, they conspire
against fellow humans, and attack the very basis of democratic civilisation. They
try to undermine the authority of the traditional European, U.S. and U.K.
Constitutions and the Universal Cause of Justice. Let one who knows explain:
33
Specific Aspects of THE GREAT CHARTER CONSTITUTION
“The power of the Executive to cast a man into prison without formulating
any charge known to the law, and particularly to deny him the judgement of
his peers, is in the highest degree odious and is the foundation of all
totalitarian government, whether Nazi or Communist.”
Sir Winston Churchill, Author, Chronicler, Historian, Philosopher, Nobel
laureate for Literature; Prime Minister of the United Kingdom of Great Britain
and Northern Ireland.
Excerpt of telegram from Cairo to the U.K. Home Secretary on November the 21st, 1943.
Emphases added.
The Constitutional Qualities of Supremacy
and Permanence Embodied in Magna Carta.
For motives of career self-interest and to promote the despots they serve, there
are those who claim Magna Carta does not have the constitutional attributes of
supremacy and permanence. This untruth misleads people who rely in vain
upon veracity from many of those in the legal profession, politicians and others.
In addition to being explicitly emplaced “in perpetuity” (Preamble) and “for
ever” (Article 63), the following shows the Great Charter and its central tenet,
Trial by Jury, were installed as The English (cf. British) Constitution
embodying permanent legal control over every aspect of government. That
Magna Carta had and has supremacy and permanence could not be more plainly
addressed nor more emphatically expressed than in the way adopted by those
who emplaced and ratified Magna Carta.
The Sentence of Excommunication.
The permanent installation of Trial by Jury for all crimes, civil, criminal and fiscal,
and the Common Law Articles imposed on governments by the paradigmatic
Constitutional Law Magna Carta were taken so seriously by all the People as to
incur the most complete punishment and damnation then known,
Excommunication, upon every individual or government, who, from that moment
on, at any time breaches or in the smallest way undermines Magna Carta’s strictures.
Excommunication, which is spiritual damnation, social disgrace and a lifethreatening condition of internal exile, separates the convict recipient from all
familial, social and religious communication with other members of society.
At the 1253 ratification, all the legislative assembly, including monarch Henry
III, bishops and barons, ratified Magna Carta and The Sentence of
Excommunication on infractors of Magna Carta. The Sentence was pronounced
by Boniface, Archbishop of Canterbury. Note: The execration was issued by the
Universal Catholic Church, i.e. before the Sixteenth Century schism.
To read the Excommunication in detail, see Statutes of the Realm, Vol. 1, p. 6; & Ruffhead’s
Statutes, Vol. 1, p. 20; & p. 197 of TRIAL BY JURY: Its History, True Purpose and Modern
Relevance, by d’Oudney and Spooner, ISBN 9781902848723.
34
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Articles of a constitution may only be amended by the active approbation of the
great mass of the people. From 1688 (and before) to the present-day, illegal
intrusion upon The Great Charter Constitution by government statutes, ‘rulings’
by courts and tinkering with the coronation oath are figmental and of no legal
worth. Statutes, treaties and regulations have no moral or legal authority
wherever wordings or inserted terms contravene or attempt to ‘abolish’ Magna
Carta or any of Magna Carta’s articles governing and installing the Trial by Jury
for all causes, civil, criminal and fiscal. At no time have the People consented to
any undermining of The Constitution and Trial by Jury.
To a degree achieved by no other system of justice, Common Law Trial by Jury
responds to Mankind’s unceasing need: to enforce just laws; to uphold the innocent;
to protect minorities; to annul arbitrary government; and to reject injustice.
Trial by Jury is mankind’s model justice system: it secures and defines
democracy, and legitimises government, sine qua non (see essay: We the People
and the Matter of Words, EIS#10). Regardless of the machinations of
commissars, politicians and courts, and the ‘legislation’, ‘constitution-treaties’,
‘conventions’ or other ‘Munich guarantees’, Trial by Jury remains the sole legal
method of trial (everywhere) for all causes and crimes, civil, criminal and fiscal.
Statutes of British parliament — or legislation from any other source — are of
no authority over Magna Carta, nor over juries if inconsistent with jurors’ ideas
of right, because it is intrinsic to The Constitution, the universal natural law and
the timeless pan-European common law, that juries try all causes according to
the jurors’ consciences, legislation to the contrary notwithstanding.
“We must never cease to proclaim in fearless tones the great principles of
freedom and the rights of man which are the joint inheritance of the
English-speaking world and which through Magna Carta, the Bill of Rights,
the Habeas Corpus, Trial by Jury, and the English common law, find their
most famous expression in the American Declaration of Independence.”
Sir Winston Churchill. To Westminster College, Fulton, Missouri, 1946.
~
An Essay on Specific Aspects of
MAGNA CARTA, THE GREAT CHARTER:
THE ENGLISH (cf. BRITISH) CONSTITUTION,
Some Propagandised Misconceptions Annihilated.
© Kenn d’Oudney, Author.
35
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Kenn d’Oudney is the author of books and essays including the following:
Kenn d’Oudney est auteur de livres et essais y compris les suivants:
Kenn d’Oudney ist Autor von Büchern und Essays einschließlich der folgenden:
MAGNA CARTA, THE GREAT CHARTER CONSTITUTION; freely
downloadable information about pan-European legem terræ, whose central
tenet and sole justice system is the Trial by Jury, defining the true European
and pan-Occidental Constitution;
http://www.democracydefined.org/democracydefinedmaterial.htm
“Thank you for your excellent work on Magna Carta. What a masterly
exposition.” JOHN GOURIET, Chairman, Defenders of the Realm;
Battle for Britain Campaign supported by the Duke of Wellington;
Edward Fox, OBE, and Frederick Forsyth, CBE.
“Kenn, Your rebuttal is masterly. Your essay is a very good read.”
ROBIN TILBROOK, Chairman & Party Leader; English Democrat Party.
“Thank you so much for this contribution. It is very much appreciated.”
ASHLEY MOTE, MEP (Member of the European Parliament); Vice-President,
Alliance of Independent Democrats in Europe.
“Thanks, Kenn. I’ve circulated this.”
SIMON RICHARDS, Campaign Director; Freedom Association; Founded by John Gouriet;
the Viscount de L’Isle, VC, KG, PC; Ross McWhirter and Norris McWhirter, CBE.
THE REPORT, CANNABIS: THE FACTS, HUMAN RIGHTS AND
THE LAW ISBN 9781902848204, co-authored by Joanna d’Oudney;
Foreword by a Nobel laureate former Official Adviser to the U.S.
government; endorsed by a Professor of Physiology Fellow of the Royal
Society, academics, doctors (of a variety of disciplines) and judges (U.S. &
U.K.); 260 large-size pages;
“You have done a splendid job of producing a comprehensive summary of the evidence
documenting that the prohibition of the production, sale and use of cannabis is utterly
unjustified and produces many harmful effects. Any impartial person reading your
REPORT will almost certainly end up favouring the re-legalisation of cannabis.”
NOBEL LAUREATE PROFESSOR MILTON FRIEDMAN, former Economics’ Adviser to
U.S. government; Author, video and TV series writer and presenter; Senior Research Fellow,
Hoover Institution on War, Revolution and Peace; Professor Emeritus, University of Chicago.
“You represent a worthy part of the fight in many countries for the logical and beneficial
use of cannabis. I thank you for that.”
PROFESSOR PATRICK D. WALL, M.D., Author; Professor of Physiology, UMDS St.
Thomas’s (Teaching) Hospital, London; Fellow of the Royal Society; DM, FRCP.
“I did enjoy reading it. THE REPORT should contribute much.”
THE HON. JONATHON PORRITT, Bt., former Adviser to U.K. government on
Environment; Author; Founder, Friends of the Earth; TV series writer and presenter.
“I am totally amazed at THE REPORT’s quality and overall goodness.”
DR. ANNE BIEZANEK, Authoress; ChB, BSc, MB, MFHom.
SRC Publishing Ltd., London, available from world distribution by LULU of North Carolina.
Available as textbook* and also as an e-book.
36
Specific Aspects of THE GREAT CHARTER CONSTITUTION
SO YOU THOUGHT CANNABIS PROHIBITION HAS NO EFFECT UPON YOU ?
THE REPORT ISBN 9781902848204: Part (chapter) Two contains the unprecedented
(new) Cannabis Biomass Energy Equation (CBEE; Modern Uses) which proves the cleancombusting production-cost-free, i.e., FREE, cannabis by-product pyrolytic CH3OH is the
immediate non-polluting, renewable, total world replacement for fossils and uranium, whilst
cultivation simultaneously significantly increases world production of staple seed food
(protein-rich; no relaxant in seed). The CBEE exposes the bankowner-corporate-government
monumental ulterior motive behind fraudulent prohibition. 'Prohibition' is a venal, cartelfabricated subterfuge; a false fuel-energy MONOPOLY.
The CBEE Formulation proffers CH3OH oil-gasoline-type fuel combustion for all powerstation, industrial, land, sea and air transportation and domestic energy supply, with ZERO
net atmospheric increase of CO2. Viz. the CBEE thereby simultaneously demonstrates
governments’ mendacity in their claims to wish to reduce carbon emissions, and proves the
“eco” and “carbon taxes” to be fraudulent: a criminal government imposture completely
without foundation. The misuse of exorbitant, world-economy-depressing fossils and
uranium as ‘fuel’ is potentially catastrophic, legally and economically unjustifiable, and
requires to be prohibited forthwith. See pyrolysis diagrams, photo, equation, etc.
Part Six of THE REPORT, PROHIBITION: THE PROGENITOR OF CRIME.
"To cause crime to occur is to be accountable for the crime, morally and legally.
To consent to any measure is to share responsibility for its results."
Legalised, cannabis grows anywhere: the benign herb's foliage and flowers come free or at an
insignificant price, but yielding no revenues to government and no profits to corporations.
However, prohibition creates the Black Market: the Economic Effects of Prohibition
(scarcity + enforcement, etc.) augment "street" value by 3000% plus, making all Black
Market associated crime inevitable. The political commodities' prohibition, the War on
Drugs, rather that is to say, the politicians who pass and the judiciaries who maintain the
legislation engender (cause) and are legally culpable for not less than 75 - 80 percent of all
crimes (official statistics) throughout the West.
EXONERATIVE FINDINGS OF FACT; Official Empirical Research; THE REPORT
collates the medico-scientific Findings of Fact and Conclusions of the government-funded
clinical studies conducted by world-respected research and academic institutions into nontoxic, non-addictive natural herb cannabis (differentiated from pharmaceutical laboratory
toxic product THC). The investigations' empirical evidence exonerates cannabis from all
allegations of 'harm' and 'impairment' (including tests on simulated driving) exempting
cannabis from all legislative criteria of control ('prohibition'). All citizens persecuted
thereunder are due Amnesty and Restitution (as for other Wrongful Penalisation).
MEDICATION: Efficacious in over 100 adverse medical conditions (viz. Official
Pharmacopoeias) including applications which are life-saving, preserve eyesight,
Curative and/or Preventive, and with potential cheaply to replace numerous lines of lucrative
but ineffective, debilitating, addictive, toxic pharmaceuticals, rendering massive financial
government-corporate ulterior revenue and profit motive (trillions) behind apocryphal
prohibition by perjurious derogation. + Medical Case Histories.
Six Parts (chapters) include expert documentary, legal, academic, scientific, technical,
medical, economic, social, criminological, philosophical evidence, and that which is based on
grounds of equity, vindicating all private cultivation, trade, possession and use, and which
further exposes perjury and venality behind prohibition 'legislation', all acts of enforcement
constituting crime per se.
37
Specific Aspects of THE GREAT CHARTER CONSTITUTION
Part Seven, RESTORATION: JUSTICE AND THE CONSTITUTION, exposes
corruption, ineptitude and injustice in the justice process; examines Law: natural law,
supreme secular legem terræ Constitutional common law, treaties, statutes; quotes presidents,
judges, lawyers and chief justices.
THE REPORT is regularly presented pre-trial by defendants to courts (judges) who
routinely forbid all Findings of Fact, evidence and defences which "dispute the legality of the
law" before the jury. The official and expert evidence in THE REPORT establishes the
invalid, illegal nature of the legislation. THE REPORT quotes legal grounds (national and
international) which demonstrate numerous infractions of laws by the prohibition legislation,
and which show all acts of its enforcement to be crime per se. All citizens persecuted
thereunder are due Amnesty and Restitution (as for other Wrongful Penalisation). This
textbook demonstrates in 'the law': injustice, inequity, invalidity, adverse effects, venal
ulterior motive, perjury, fallacious derogation, and the inherent illegality of law which
creates the Black Market and engenders all associated crime. The outcomes of this procedure
of presenting THE REPORT as documentary evidence to the judge have proved beneficial in
the extreme for defendants. *Courts require documentary evidence presented as the current
edition of the published textbook (not copies or e-book.)
SRC Publishing Ltd., London, available from world distribution by LULU of North Carolina.
Now available as textbook* and also as an e-book.
TRIAL BY JURY: ITS HISTORY, TRUE PURPOSE AND MODERN
RELEVANCE ISBN 9781902848723, with endorsements and edited section
authored by U.S. lawyer Lysander Spooner;
http://www.democracydefined.org/2trialbyjury.htm
SRC Publishing Ltd., London, world distribution by LULU of North
Carolina.
THE CONSTITUTION TREATISE: Why the d’Estaing (‘European’)
Constitution-Treaty Is the Antithesis of Democracy ISBN 9781902848747,
see website for endorsements by U.S. & U.K. cognoscenti;
http://www.democracydefined.org/5constitution.htm
“The d’Oudney analysis is as insightful as it is comprehensive. It will stand
for years to come as the definitive critique of the European Constitution
prepared by Giscard d’Estaing and others. I look forward to sharing the
d’Oudney analysis with my colleagues.”
HOWARD PHILLIPS, Founder, U.S. Constitution Party; three-time presidential
nominee; Chairman, Conservative Caucus.
SRC Publishing Ltd., London.
WE THE PEOPLE AND THE MATTER OF WORDS; freely
downloadable, indispensable information for the creation and sustainment of
legitimate government and society;
http://www.democracydefined.org/democracydefinedmaterial.htm
38
Specific Aspects of THE GREAT CHARTER CONSTITUTION
DEMOCRACY DEFINED: ON THE ETYMOLOGY, HISTORY AND SIGNIFICATION
OF THE WORD DEMOCRACY; the Sciences of Etymology, Semantics, Semasiology,
and Philology determine whether your country is a definitive democracy or your government
is a despotism. Viz. The word ‘democracy’ is widely abused and ‘defined’ incorrectly:
Democracy is a state of society realised neither by referenda (mass voting for new laws), nor
by suffrage (electoral voting for representatives), nor by the representatives’ majorities’
legislative voting. Electoral voting, majority rule and ‘consensus politics’ neither create nor
define democracy. This essay summarises the unique signification and inestimable value to
the human race of genuine Constitutional Democracy.
http://www.democracydefined.org/democracydefinedcampaign.htm#democracy
9-11 TRUTH LINKS COMPENDIUM; exposition with select video analysis & lectures;
contributions by professors, architects, scientists, Federal Aviation Authority experts, former
CIA, FBI, military and government officials, firemen, reporters and other eye-witnesses
present; freely download this Compendium which serves as an introduction to the subject, and
as a source of additional references for those already familiar with the 9/11 Truth Movement;
http://www.democracydefined.org/democracydefinedmaterial.htm
THE VALUE OR OTHERWISE OF LAW DICTIONARIES; part of the contents of a
forthcoming book to be published by SRC Publishing. It is nevertheless, for the time being
anyway, downloadable for free;
http://www.democracydefined.org/democracydefinedmaterial.htm
ON REFERENDA AND MAJORITY RULE; part of the contents of a forthcoming book
downloadable for free;
http://www.democracydefined.org/democracydefinedmaterial.htm
RADIOACTIVITY FROM CROPS FED WITH PHOSPHATE ‘FERTILISER’ IS THE
PRINCIPAL CAUSE OF CANCER; some Findings of Fact downloadable for free,
extracted from THE REPORT ISBN 9781902848204 (referred to above);
http://www.democracydefined.org/democracydefinedmaterial.htm
CHIEF JUSTICE VAUGHAN’S RULING; on perhaps the most famous trial in history;
Juror’s Rights and Duty and the Old Bailey Commemorative Plaque;
http://www.democracydefined.org/democracydefinedcampaign2.htm#intervention
WHY THE LEGAL PROFESSION CANNOT DEFEND YOU; consider some of the
judicable breaches of common law and Constitution to which modern government resorts in
order to enforce its inequitable and money-motivated statutes;
http://www.democracydefined.org/democracydefinedcampaign4.htm#lawyers
Further reading on the website:
http://www.democracydefined.org/
The Home Page of The not-for-profit Educational Campaign for
RESTORATION and UNIVERSAL ADOPTION of
CONSTITUTIONAL COMMON LAW TRIAL BY JURY.
Further reading on the website:
The Democracy Defined Campaign Philosophy is endorsed by academics, attorneys,
doctors (of jurisprudence, medicine, homeopathy, philosophy, etc.) and judges ( U.S . & U.K.).
Join the Campaign! Download and distribute free posters and educational pamphlets.
Membership gratis.
39