Is Constitutional Change Treason?
The celebrated judge Sir Edward Coke said
in 1610 that the crown cannot change any part of the
common law. Indeed he went further and said that the
crown cannot create any offence by proclamation
(nowadays, by statute) that was not previously an
offence under common law.
So in England - in a nutshell - since
it was established that new rights can be conceded, but
existing rights cannot be taken away, so it is arguable
that any subsequent attempts to overthrow the laws and
constitution of the United Kingdom must be treason .
Treason has been defined as any
action which ‘attempts to overthrow or destroy the
constitution’. The defining words used in the Treason
Act of 1795 were put to the test in the case of R. v
Thistlewood in 1820. On the face of it, such a
definition would appear to rule out any referendum on
the adoption of a foreign currency, since it must, ipso
facto, deny us our constitutional rights of
self-government. Indeed, the previous referendum on what
was then called the common market may also have been
unconstitutional, since the executive of the day and
their legal advisors have subsequently admitted that
they knew then that the true purpose of the common
market was not free trade but full political union.
Which brings us to The Treaty of
Union with Scotland, and the obstacles placed in the way
of a catholic attempting to ascend the throne. These
were most recently and clearly spelled out in the
Declaration of Rights and also in the Bill of Rights.
Such an event was held to be inconsistent with the
safety and welfare of this protestant kingdom.
The authority for this is not the Act
of Settlement, but Article 11 of the Treaty of Union
1707, which embodies the substance of the Act of
Settlement of 1700.
Once again, this treaty was not
incorporated into statute law and therefore cannot be
repealed by an Act of Parliament - yet another
inconvenient fact that’s been forgotten by this
The Statute Law Revision Act, 1867,
attempted to take common law into statute and then
repeal it. But, as we have argued earlier, this cannot
happen, since common law is above statute law and
pre-dates it. In any case, both Magna Carta and the
Declaration of Rights specifically reject any such
attempt to amend or abolish them.
We can find no supporting evidence
for Halsbury’s claim that only clauses 1, 9, 29 and 37
of Magna Carta still stand today. Blackstone and Dicey
make no such claim.
Coming to more recent times…
In 1913 (Bowles v Bank of England) it
was ruled that:
"The Bill of Rights still
remains unrepealed, and practice of custom, however
prolonged or however acquiesced in on the part of the
subject, cannot be relied on by the crown as justifying
any infringement of its provisions."
The case of Chester v Bateson, 1920,
held that "common law is not immune from
development or improvement". It does not talk about
"limitations" or "destruction".
So the issue then turns on what is
"improvement". The word is open to a
considerable latitude of interpretation, and some future
undemocratic tyrant or despotic government might - would
- argue that certain freedoms and rights were dangerous
and should be "improved" by abolition. That’s
the perverse logic used in the communist and fascist
worlds of years ago. Indeed there are alarming signs of
exactly that deviousness of interpretation amongst our
present executive. And it represents a serious risk
which cannot be ignored.
The erosion of one single right -
however alluring the apparent logic and reasonableness
might be - and all rights are then exposed. That’s why
the right to bear arms is so crucial, despite the
aftermath of Dunblane.
One of the signatories to this
document, Mike Burke, went to the Court of Appeal on 8
March 1999 in support of his case based on clause seven
of The Declaration of Rights, 1688, and The Bill of
Rights, 1689, permitting him to bear arms in self-defence.
The appeal was rejected.
Despite further extensive enquiries
and research, he still awaits an answer to the question:
where exactly did the learned judges in the high court
and the appeal court discover authority for the removal
of our right to arms, and the repeal of at least one
clause in The Bill of Rights?
Of equal concern is the fact that
subsequent searches of legal records have so far
revealed no trace of the judgement rejecting his appeal.
Yet the case raised an important constitutional right,
embedded in legislation which has not been repealed and
which - we have argued above - cannot be repealed.
That such a case should not be
recorded at all in legal records raises yet more
important questions about the suppression of rights by
stealth, and this time apparently with the connivance of
the judiciary or their administrators.
It must be of some concern that the
last time Britons were forcibly disarmed of weapons held
for self-defence the result was the American War of
"What of the militia? It is the whole people. To
disarm people is the best and most effectual way to
We can put it no better than the
great political philosopher John Locke:
"The right of self-defence is
the first law of nature. When the right of the people to
keep and bear arms is, under any colour or pretext
whatsoever, prohibited, liberty, if not already
annihilated, is on the brink of destruction."
The legal status of the Parliament
Act, 1949, may also have an important bearing on our
case. Some respected constitutional lawyers believe that
it is not valid. It purports to enable legislation to be
enacted after a year despite the opposition of The House
of Lords. But, as Professor Hood Phillips pointed out
over 50 years ago, the Act cannot be valid because it
was rejected by the House of Lords and no power of
amendment was conferred on the House of Commons by the
Parliament Act, 1911.
Indeed the Parliament Act 1911 offers
no authority to the House of Commons to amend primary
legislation at all. And if the Parliament Act 1949 is
invalid, so must be much European-led legislation,
including most recently the European Parliamentary
Election Act, 1999.
Of course, in recent times, the House
of Commons has frequently attempted to interfere with
the constitution. Worse, the courts appear to have given
up legislative supremacy to parliament, and this trend
has been compounded by the fact that no-one has gone
before the courts and claimed his common law rights.
Those rights are clear, and they have been enshrined in
documents for generations. Today they may be hidden and
forgotten, but they are still there. The common law
rights of the people cannot be subverted by ministers
and other servants of the crown. They have only the same
powers and rights as the people who elected or appointed
Indeed it can be argued that the only
means by which the constitution and the rights it
protects can ever be changed is by revolution, because
all crown servants would have to be ‘persuaded’ to
take a new oath of allegiance to a new sovereign state.
Their forebears were appointed specifically on condition
that they would respect and defend the rights, freedoms
and customs of the people. Nothing has changed the
substance of that commitment since then.
An attempt was purportedly made to
repeal Magna Carta in 1969, when the Statute Laws
(Repeal) Act was sneaked through parliament during the
It repealed Edward 1’s Confirmation
of the Great Charter Act of 1297 - but it did not repeal
Magna Carta itself. Yet again, as we understand the
legal position, a repeal of a statute which gives effect
to common law does not repeal the underlying common law
itself. The gap between the two events might extend to
hundreds of years, but the effect is always the same.
The original common law remains untouched.
If parliament could be held to have
repealed Magna Carta it could also be held to have acted
unlawfully in that, by definition, parliament must have
exceeded its powers on that occasion.
On 21 July 1993, the Speaker of The
House of Commons issued a reminder to the courts. She
"There has of course been no
amendment to the Bill of Rights…the house is entitled
to expect that the Bill of Rights will be fully
respected by all those appearing before the
Lord Wilberforce, speaking in the
House of Lords in 1997 said:
"Perhaps I may remind noble
lords of what our essential civil rights, as guaranteed
by common law, are: the presumption of innocence; the
right to a fair hearing; no man to be obliged to testify
against himself; the rule against double jeopardy; no
retrospective legislation; no legislation to be given an
effect contrary to international law - an old principle
that has been there for years; freedom of expression;
and freedom of association …firmly secured already by
the common law of this country, and not intended to be
superseded or modified by new inter-state obligations…"
Once again, John Locke distilled the
"A ruler who violates the law is
illegitimate. He has no right to be obeyed. His commands
are mere force and coercion. Rulers who act lawlessly,
whose laws are unlawful, are mere criminals".