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Constitutional Law and the People

on Friday, 01 July 1955. Posted in Societal debates

The following article is reprinted from The New Times, published in Melbourne, Australia. The author is Arthur A. Chresby. His analysis is of much interest to all students of Social Credit.

The author was requested to give an analysis of, and supply information relative to, a resolution that was to be discussed at the Burnett District Conference of the Queensland Dairymen's Organization, at Bundaberg on May 29 and 30. A careful study of the materials embodied in this thesis will serve to show that it is of the most vital importance to organizations and associations such as those of ex-servicemen and primary producers, to shire and municipal councils, progress associations, etc., as well as to every elector.

The primary objective of this thesis is to enlighten all persons "who have eyes to see, and ears to hear", on:

(a) What are their ancient, natural British powers, and present-day Constitutional rights.

(b) What are the legal rules of the game.

(c) What positive constitutional action can be taken to obtain a rectification of present-day political and economic evils and wrongs.

(d) The fact that our "law-makers are our greatest law-breakers.".

(e) The falsity of the idea that the people have no rights or powers except on voting day.

(f) And, above all, to drive home the irrefutable fact that the fundamental principles of Constitutional Law are still on the side of the electors. That the Electors are still all-powerful if they will but use, with vigor and determination the constitutional powers which are theirs. But the Electors are legally responsible for the safeguarding of their rights and powers, and they can get what they want just as soon as they realize their powers and exercise such on their Parliaments through their respective parliamentary representatives, political Parties notwithstanding. This is the fundamental law of the land.

Basis of Local Government

Item 78 on the Agenda Paper for the Burnett District conference of the Q.D.O. to be held on 29th and 30th May, 1947, reads:

"That Conference resolve to resist to the utmost the continuous attack on the authority of Local Councils by the State and Federal Parliaments and urges that a concerted effort be organized to bring back to Local Councils control over local affairs".

It is respectfully submitted that before the Ccnference could legitimately pass such a resolution it would have to be placed in possession of all constitutional and other factors involved, otherwise such resolution would easily be rendered abortive.

What action could Conference take or recommend, and to whom would it recommend such action? **A little background may perhaps help to elucidate the problem.

1 – Local government is the oldest form of government known in British Constitutional law and history. From it has developed our Parliamentary system of government but, curiously enough, the very act of the birth of Parliament brought about the destruction of local government as a free association responsible only to the people in its area, and local government was then, in effect, recreated by Parliamentary legislation as an instrument of Parliament.

2 — Nevertheless, out of this was established a simple but very, definite rule of Constitutional law:

"The practice of our nation for centuries establishes the rule that, except for matters clearly of direct general and imperial interest, centralization is unconstitutional".

—“History of the English Constitution",

by Sir Edward Creasy, page 373 16th Ed.

3 — That principle, or rule, holds valid to-day as will be shown herein shortly....

4 — Under our British Constitutional Monarchy the absolute and final authority and sanction, for all that is done by Parliaments as well as local Councils, rests with the electors. Even the King must bow to the wishes of his people. The law is quite clearly stated and simply set out by the Rt. Hon. Dr. H. V. Evatt, K.C., in his famous work, "The King and His Dominion Governors”, in the following terms:

(a) Page 298: - "But, even in such cases, the Parliament is the Parliament for the time being only, and it does not necessarily reflect the will of the electorate for all purposes and at all times."

(b) Author's Preface: -"... the clearly expressed will of a majority of the citizens is entitled to prevail throughout the particular constitutional unit to which they belong."

Function of Parliament

Again we find that the law relating to Parliament is that "the function of Parliament is to make laws in accordance with the wishes of the people". - Dr. Frank Louat, noted Constitutional authority.

Dicey in his most famous and classic work, "Study of the Law of the Constitution", also points this out on page 71. Indeed, right through Dicey's work he points out the fact that the WILL of the electors is supreme over Parliament and Parliament must obey that WILL or suffer the penalty.

Page 71: "... The arrangements of the Constitution are now such as to ensure that the will of the electors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country."

Page 431: "... It affirmed decisively the fundamental principle of our existing constitution that not Parliament but the nation is, politically speaking, the supreme power in the State.“

Finally, our last authority is “Halsbury's Law of England”, Vol. 6, page 390, paragraph 436:.

“Apart from the force of public opinion, the liberties of the subject owe their main protection to:... (5) The rule of construction that statutes and other legislative acts are so far as possible to be interpreted so as not to cause any interference with the vested rights of the subject.“

Power of the Electors

We have thus clearly, and irrefutably, established::

(I) That Parliament is the Parliament for the time being only.

(II) That Parliament does not necessarily reflect the WILL of the electorate for all purposes and at all times.

(III) That the supreme sovereign power in the land IS THE WILL OF THE PEOPLE, i.e., the Electors.

(IV) That whenever (i.e., at any time, not only at election time) the Electors clearly express THEIR WILL TO PARLIAMENT then Parliament must obey that WILL. If Parliament does not, then the Electors are Constitutionally entitled to Petition the King, the Governor General or the Governor — as the case may be — to dissolve Parliament so that the Electors can elect new members of Parliament who will carry out the instruction of the Electors. The King, Governor-General or Governor — as the case may be — is constitutionally bound by his respective Oath of office to carry out the WILL of the people as expressed to him.

(V) The will of the People can only be properly conveyed to Parliament by the Parliamentary Representatives, and it is the legal right and Obligation of the Electors to instruct their Parliamentary Representatives on what is THEIR WILL. If the Member of Parliament refuses to do as his electors tell him, then the Electors can again Petition the King, Governor-General or Governor — as the case may be — to remove him because the Member of Parliament — quite clearly and definitely — by his oath of Allegiance to the King is bound by the King's Coronation Oath to observe the "liberties, freedoms and FREE CUSTOMS, and vested rights of the subject."

Constitutional Rights   to be foes of the common

"Halsbury's Laws of England" (the standard text-book on Constitutional principles on every legal man's bookshelf) is very clear and definite; Vol. 6 being of particular importance:

page 413/414, Section — "The Crown's Duty towards the subject." Paragraph 459: "The essential duties of the Crown towards the subject are now to be found expressed in the terms of the oaths which every Sovereign is required to take before or at his coronation.".

A foot-note (b) to that paragraph states clearly "By s. 4 of the Act of Settlement, 1700 (12 and 13 Will 3 c 2), it is declared that: 'whereas the Laws of England are the birthright of the people thereof, and all Kings and Queens who shall ascend the throne of this realm ought to administer the goverment of the same according to the said laws, and all THEIR OFFICERS AND MINISTERS ought to serve them respectively according to the same... the same are ratified and confirmed accordingly.

In the coronation oath the King and his Ministers are bound to observe the main principles of the four basic charters of contract between the King and the people and from which the King, his Ministers and Parliament derive their authority and existence. These are set out clearly in "Halsbury's” as follows:

Page 450, Sec. 1, Sub-sec. 6, para. 524: ".. The principal provisions, from a constitutional standpoint are to be found in the four great statutes or charters by which the rights and liberties of the subject are preserved and acts of tyranny by the Crown or its Ministers restrained."

Foot-note (m) reads: "These are Magna Carta 1215 (see the reissue Magna Carta, 1297 (25 Edw. l; 9 Hem. 3, Ruff.) and the confirmation by Confirmation of the Charters, 1297 (25 Edw. l; stat. 1, Ruff) (both printed in Statutes of the Realm); the Petition of Right, 1627 (3 Car. 1. S. 1); the Bill of Rights, 1688 (1 Will and Mar. sess., 2, c.2) confirmed by the Act of Recognition, 1689 (2 Will and Mar, c. 1, sess. 1, Ruff); and the Act of Setlement... Magna Carta is still in force and binding upon the Crown... and in particular by the confirmation and reissue of 1297 (25 Edw. l, sta. 1, Ruff), by which it was directed to be observed as the Common Law of the Realm and all judgments contrary to it were declared void... These Statutes must not be regarded as curtailments of existing prerogatives, but as declarations of the fundamental laws of England."

Page 455, para. 535, states, again clearly: "... The Crown is bound to observe the law both by statute and by the terms of the coronation oath, which embodies the contract between the Crown and the people upon which the title to the Crown originally depended, and still in large measur depends."

Foot-note (d) to this paragraph says: "It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. If there is any difficulty in ascertaining it the Courts are open to the Crown to sue, and it is the duty of the Executive in cases of doubt to ascertain the la, in order to obey it, not to disregard it."

Basic Laws and Action

All the foregoing data can be restated in simple, ordinary, every-day language that every elector can readily and immediately grasp and understand:

(i) There are quite definite, fundamental Laws upon which all other Laws and Acts etc., of Parliament are based, and from which all other Laws draw their life and being.

(ii) The King, his Governors, Ministers and Members of Parliament, and even Aldermen and Shire Councillors, are irrevocably bound to abide by, protect, observe and obey those Fundamental Laws.

(iii) The will of the electors is the final and supreme authority, and to that will the fundamental laws of the land demand, and bind the King, his Governors, his Ministers, his Members of Parliament, his Aldermen and Shire Councillors, shall obey.

(iv) But the responsibility lies with the electors to clearly and concisely express to their Members of Parliament, Aldermen and Shire Councillors, what is their will on any particular thing, issue, legislation or action.

Editor's Note:

There is much vital information in Mr. Chresby's article. May I invite your attention to these points arising therefrom:

The 'Party' System

Today it is not the Crown which endangers our rights and liberties. It is Centralized Government — more precisely, the Executive branch of government, or Cabinet.

Members of Parliament today have degenerated, in most cases, to the status of mere puppets who jump to the tune of the 'party'. They vote for and serve first, their 'party', rather than their electors. The wishes of those whom they represent, and their own conscience, come second after the orders of the 'party' machine.

The method of financing electoral campaigns, whereby the funds come from the top down through the 'party' machine — and originally from where? — is a powerful club over the head of any Member. He knows that if he votes or acts against the orders of the 'party' machine, his chances of re-election will be slim.

The Union of Electors, awakening and educating the electorate to their responsibilities, is a powerful force on the side of responsible government.

The Moral Law

Transcending all 'majority demands' is the Moral Law. No majority is justified in asking for results contrary to the Moral Law. And no government is justified in complying with requests which are not in conformity with God's Law.

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