Notes on how a common law constitution uniquely enables lasting freedom
Yesterday I attended a seminar in London run by William Keyte, who runs the Common Law Constitution website to share understanding of our rule of law heritage — and its contemporary erosion. I have turned my notes from the first two sections (of five) into prose so you can get a taste of what this is all about. Inevitably there is some embellishment with my own style and thoughts, so errors should be attributed to me, while William gets all the credit!
Can we govern ourselves, or will someone else do it to/for us? We the people are the ones creating the conditions of our own enslavement. That is because we fall for a “them and us” narrative that makes us victims, rather than co-creators of our own fate.
Instead of a fully functioning constitution we now suffer from a distorted rule of law, with individualism being displaced by collectivism. Our consciousness is eroded due to lies and immorality. Knowledge of natural law has been occulted, to the detriment of the many, and benefit of a few.
There is a practical and moral case to be made for the full restoration our common law constitution. The Magna Carta in 1215 was a disaster for the enemies of liberty, and should have locked common law in place. However, people didn’t understand what they had won, and failed to hold power to account. Over many years the ruling class manipulated the situation, and whittled away our rights — the “boiling frog effect”.
The fundamental quandary is the nature of shared responsibility. Where a group takes on any collective endeavour, and sub-divides the tasks, then there is a big psychological problem. “I only fill the vaccine vials” means you do not take responsibility for the overall outcome, and won’t call out any immorality in the group’s overall project plan.
This phenomenon is worsened with the “cult of the expert”. We do need subject matter expertise, but the nature of the modern technocratic society is distance the control point from the operational mechanisms, with attendant specialists. This centralisation of control is seen as efficient, and results in an open door to those who like to control others. This incentivises the controllers to create yet more problems, whose solution is always more centralised power.
Litigation has created mad incentives, where we refuse to do moral acts due to the risk of being accused of wrongdoing. The shop assistant won’t chase the robber because of health and safety law, the doctor won’t administer care to the wounded in a street, and the public official on duty cannot chance jumping into a pond to pull out a child. We are regressed into an infantilised state needing constant care of the state, which offers us safety by following rules. This effect is even seen in the freedom movement.
A constitution is only suitable for a conscious society that is willing to take responsibility for itself. An unconstitutional society is for the unconscious, who clamour for rules to compensate for their own lack of self-control and unwillingness to confront risk.
To govern is (by definition) to control. Government is the management of the mind — it keeps social order. It can be based on a constitution, but not necessarily so. A constitution is a broad set of principles. Some of those principles may be good, as are the people in charge of administration and its moral character. Some principles may be bad, and facilitate people lacking conscience doing things to you (and others) that you don’t like.
The Magna Carta was not a step change, nor the beginning of our constitution. Rather, it was a declaration of our already existing constitution. English constitutional law originates from way earlier, with a lineage that traces all the way back to ancient Greece and Cleisthenes. The articles in Magna Carta that relate to common law are the central principles.
There are lots of wrong and tainted views of common law. If you are in Australia and mention common law then you may easily be accused of being a terrorist or nutter! Many are focused on administrative law, such as admiralty law and the Universal Commercial Code (UCC), and fall for fallacious arguments about common law.
When common law is explained in context is sounds reasonable and intelligent to “normies”. When we talk about birth trusts, dark trading markets, and CUSIP numbers then we look crazy. We pay too much attention to what “they” are doing to us, and not enough to what we should be doing. Yes, some people need to work to unravel their nightmare “beast” system, and hold them to account. Yet there are legitimate existing systems of law they should be under. To play them at their illegitimate game is to volunteer to lose.
In a true crime under common law there is an injured party (or an attempt made to injure). There is mens rea — and intent to harm from a guilty mind. Murder is one of the few common law offences left standing, but they do exist. Judicium parium — a jury of one’s peers — is the heart of constitution. This is why it is a common law constitution, as well as a democratic constitution.
Democracy is not fundamentally about elections or party politics — those are minor features. Alternating manifestos and parties create division, strife, and instability. The elected should only be public servants, not bundled up with a policy package. The judges are meant to be the jury — it is the same word.
“The judge” as a role is just a convenor. This is more than a process administrator, as they must also be a law expert. The judge needs knowledge of past cases (should the jury ask for guidance), but the jury must not be directed. In the “real deal” common law constitution the jury is the judge of four things: the facts, the law, admissibility of evidence, and punishment. These powers still rest with the jury, but agents of the system will deny this.
There are very few “awake” lawyers in the legal profession who understand the deeply buried corruption and subversion. They have never seen the UCC or admiralty law applied in their courts. Most people in the legal profession sincerely believe they are functioning under the constitution. There is no great conspiracy at that everyday level. However, there is massive gaslighting and miseducation, such as the constant repetition that our constitution is unwritten, when it is not.
Some judges know something is not right, but most judges will not telling the jury of their power to be independent of the law(yers). This takes us to the core issue, what Clay Conrad calls “jury independence”. This is also known as “jury nullification” in the US, but that is misleading, since the jury itself is not being nullified. “Annulment by jury” is a better term, since it is the statute or case law that is annulled, not the jury.
In a system with an independent jury, both the (wo)man and the legislation are before the court, and both are on trial together. Which one is wrong? There is also no majority verdict in common law: it requires unanimity, since it favours liberty. There is nothing wrong with legislation such as UCC for smoothing out financial business, and a common law constitution does allow for legislation.
After all, legislation existed prior to the formation of parliament, and was formed by the king, with statutes being codified law. However, legislation has no power to punish, which is reserved to the people. Legislation can only flags things up. As such, it should be a small function, but instead the legislature has become a vast branch of government with reams of bills from parliament.
There are many situations that are difficult to legislate for, given the varying circumstances and contexts. Examples include traffic accidents, or the age of consent. A moral system of law is adaptable, since it does not assume all situations the same. There is a standardised benchmark of concern, but the punishment (if any) must be customised.
That means we do not have pure anarchy under common law, where we take the law into your own hands. There are only rare occasions, such as self-defence, where we must act that way. People like Mark Passio and Larken Rose may describe themselves as anarchists, but it is not just a choice of authoritarian government versus anarchy. There is an alternative: common law trial by jury, which is better than anarchy, because it does not take the law into your own hands. We all get things wrong, being human. How do we deal with it?
In the past, the Head of State was a wise or trusted elder, passing on the sensibilities of the community. Stephen Jenkinson is the go-to reference on elderhood. Our coronation oath is a fundamental part of the British constitution, and aligns to this goal. That said, whether you have a monarchy or republic does not make much difference. The argument between a democracy and a republic is misframed, since they are not comparable; it is a category error.
The conventional meaning of “democracy” is holding free and fair elections. Its real meaning is trial by jury: the highest arbiter of law in the land is the people. Anything else is just a style of the head of state. Only trial by jury under common law limits head of state’s power. That is the problem with a republic. While the US constitution does include jury nullification, the President is more closely connected to short term politics and the party system. In a monarchy they are removed from the political system, being above and separate from it, which is a good thing.
Politics and voting have been used divided us, so as to rule us. Politicians are subject to backhanders and bribery; heredity power is not vulnerable to this in the same way. There is a point to having an upper house with a more slowly evolving membership. The purpose of a monarch is to throw out legislation that is outside of the constitution. This is the most important role, and what aristocracy is really about.
The upper classes once had a good relationship with working class, since they were dependent upon each other. Modern class division is engineered. While people didn’t own the land, the Crown that did placed on duty on aristocrats to ensure it was farmed. Many aristocrats did (and still do) understand their responsibilities to the common people.
Self-governance is equivalent to freedom. This happens only when a jury decides on matters of moral principles, not the state. Is there a separate perceived authority of the people versus the government? Case law is largely judge-made law. In a common law constitution case law must not bind a future jury. We may still have compelling cases, such as Entick v Carrington and the castle doctrine, which are taken as foundational for court efficiency, but the present jury is sovereign.
In particular, case law is being made and defined by employees of government. This bends it towards their interests and outlook. The legal professional even calls case law “common law”, with the confused and conflated terms being used interchangeably. A “crime at common law” is true common law; a famous case is not. Genuine common law aligns to natural law, which is an objective model of how the universe is constructed, and less of a religious stance.
In a common law constitution the monarch can still have a “political” outlook, since they are human too and have an opinion. However, the sovereignty is of the people, who are the final arbiters of law. The “natural law tribunal” is trial by jury, since it is the people who then determine the moral stance of society, and not any interest group.
Unfortunately, common law has become distorted. Disqualification from jury service changes the meaning of what it is to be a free man. Around half the nation is effectively disqualified, which automatically stacks juries, and shifts power towards those with money and influence. The role of a judge has changed from convenor to director of the jury. When you challenge them, many feel awkward, as they know that pure trial by jury is the only “court of conscience” — a term used in the history of law.
There is no real education here of juries as to their power and rights. In America we have FIJA – The Fully-Informed Jury Association. They have gotten into trouble educating juries, and their constitutional right to judge independently of the legislation. There is also extensive gaslighting of the nation over trial by jury, such as with the Magna Carta anniversary celebration. We “big up” trial by jury, while only 1% of cases reach a jury in UK.
This is the crux: the effect of trial by jury on consciousness of people and nation. It is explored in a masters thesis “Alchemy and annulment – the power of the jury as portrayed in popular culture”. You can also see it in effect in the 1986 documentary “Inside the jury room”. The judge refuses to tell the jury of their power, but the defence lawyer tells the jury they are allowed to judge the law.
The jury then decide it is up to them that legislation is attenuated and changed, as it happens on the subject of gun ownership. The judge congratulates them in an empowering speech — “This is what justice is all about” — having previously obfuscated their power. This is emblematic of the bigger problem of empowering juries.
Whether in Magistrates’ court, Crown courts, or Appeals courts (Supreme, Court of appeal, High Court), the story of loss of freedom is the same. With “summary offences” there is no right to a jury. Some cases are elective, but the punishment is increased if there is a jury trial. In these “either way” offences there is pressure to consent to a “summary only” form of justice.
In theory the jury is not allowed to judge the law, but in practise there is not a lot they authorities can do if they return a “not guilty” verdict. However, jurors wishing to exercise their legitimate power have to be subtle, as the official line is that only the judge judges the law.
In theory “magistrates are your peers”, and must hear all the evidence. In practise they act as a protection filter against annulment. There is scope for a magistrate to go against legislation — but only as directed by their legal advisor. So there is no independent conscience acting as a check on legislative power.
However, legislation lacks long term power, since it easily can be changed. So this is less about Parliament’s claimed ability to do anything it likes, since the form of law it creates is weak. In contrast, the legislature cannot repeal and amend constitutional law, by its definition. The whole point of a constitution is to bind government, and that it cannot rewrite constitutional law.
However, Parliament will tell you that they can amend the constitution. This is wrong; there is no such thing as a constitutional statute. Even the Bill of Rights and Coronation Oath acts are just statues. The latter is problematic, as it has the legislature writing a fundamental component of constitution. They added a piece to say that the monarch must not only respect our “traditions and customs”, but also act “according to statutes agreed upon in parliament”.
This was a power grab that diminishes power of jury, while raising power of political class in parliament. It is not the only such case. Over the years, our legislature has put in many defences, with a lot of complexity, in order to repel challenges to its authority. They trying to legislate for every eventuality, and all situations that could happen, creating a morass of interacting statues demanding ever more interpretation.
In contrast, constitutional law is about intent and moral principles, which keeps things simple. Trial by jury always customises the result to individual situation. Legislation can only be a blunt approximation, since it attempts to systematise everything, removing the organic nature of life. In doing so, it loses its moral element.
Appeals are needed because there are cases where a community has ganged up on a person. We are also seeing the weaponisation of local government, as documented in the Anti Communitarianism Manifesto. Our constitution is being bypassed at a council level, to impose collectivist groupthink and pre-crime punishments. So the higher courts are important.
It is easy to criticise the police, but they have to face a lot of dangerous real crime. They are largely miseducated, while sincerely believing in what they are doing. Yet following orders has a poor track record, as evidenced at Nuremberg. It is not virtuous to (unquestioningly) do as you are told, you must use your moral compass and mental faculties.
There are three types of order-following enforcement points to generate compliance with unconstitutional or immoral acts:
- The power of legislation to punish, where we control people through fear.
- The way judges give directions to jury, as if there is moral authority only in judge, and the jury as no independent moral faculties.
- The way that the military and police are indoctrinated to obey orders, but not to test their lawfulness.
This creates trauma as agents of the state and members of the public are forced to goes against their conscience, which creates internal shame and pain. We forget that rules are only guides for ourselves; they are not meant to be blindly followed. The whole point of rules is to assist, not to constrain.
Read It Now
