Sortition
Newsletter of the Campaign to Defend the Right to a Secret Ballot (CDRSB)

November 2017 Issue No. 13

ISSN 1756-4964 (Print)

Restoring the British Constitution

Brexit has alerted the public to the need to preserve and develop the institutions of British government. Over forty years of legislation aimed openly or covertly at ensuring the subordination of UK law to EU law has led to the creation of what the late Professor Anthony King - probably the most recognised British constitutional theorist of this century - described as a constitutional ‘mess’ (The British Constitution, 2007). At the heart of this mess can be found the somewhat paltry remains of the right to trial by jury, now invoked in barely 2% of trials. Undermined by decades of reforms aimed at ensuring conformity with EU law (which is derived ultimately from the juryless Napoleonic code and presupposed by centuries of the equally juryless inquisition) the right to trial by jury as of 2013 has even been excised from libel law and with this its role in protecting freedom of the press. As of 2013 investigative journalists no longer have the right to be tried by a jury in libel cases when they unearth news not to the liking of those in power. The Hansard record indicates abolition of the right to jury trial in libel law was opposed by only two MPs - Mark Reckless and Jacob Rees-Mogg. Yet opinion research indicates that hardly any brexit or even remain voters would have agreed to such abolition. King’s work gives an indication of how this blatant contradiction between parliament and voters came to be.

King invokes Bolingbroke’s 18th century claim that a constitution must be based upon ‘certain fixed principles of reason.’ Bolingbroke regarded the British constitution as being the first, and at the time even the only constitution. The British example correspondingly comprised the primary model upon which all such organisation would later be based. On this basis King claims that a constitution must meet three main requirements: to prevent arbitrary or tyrannical rule over the individual; to divide state power into separate branches of government which can check the propensity of each to act alone for arbitrary or tyrannical purposes; to further entrench the protection of the individual by means of a Bill of Rights. Noting which rights should be incorporated in such a Bill is controversial he offers no view upon how to rank which rights are the most essential to preventing arbitrary rule. King concludes that following decades of tinkering by an increasingly activist judiciary alongside major EU reforms, devolution and yet further Blairite reforms the British constitution is not based upon any clearly discernible fixed principles. Consequently the UK constitution is now of such asymmetrically devolved and globalised complexity as to have no clear mechanisms of democratic accountability in its construction. Add to this the colossal scale of law making that has been churned out by the EU and the picture emerges of an impenetrable maze of laws and lawmaking powers. As Tacitus warned “The more corrupt the state, the more numerous the laws.” Hence the ‘mess.’ Vernon Bogdanor, second only to King as a recognised 21st century UK constitutional theorist, similarly fails to provide any clear insight as to what should be incorporated in a Bill of Rights (The New British Constitution, 2009). Whimsically he speculates on the possibility that paedophile rights might be considered.

The nonchalant musings of such academic commentary in which little or no attention is paid to giving an account of leave alone actually defending the constitutional importance of trial by jury helps explain why parliament is so complacent about its subversion and decline to its present paltry role. Muddled detachment under the guise of supposed academic impartiality is not however the only reason why trial by jury has suffered decline: there are more powerful forces at work which also explain it. This can be illustrated by first presenting a robust appraisal of the central importance of trial by jury within democratic government. Such an appraisal must include Jefferson’s recognition that trial by jury is the only means to ensure the accountability of government to its constitution. That is to say, any serious appraisal of trial by jury has to include account of the fact that it is precisely this institution that must comprise a ‘fixed principle’ of the constitutional order without which democratic government cannot be properly exercised.

Cuts to jury trial have been underway for many years, most especially during the Blair regime when Jack Straw attempted to abolish the right wholesale by transferring the power to decide whether there should be a jury trial from the defendant to a judge. They follow a long train of assaults upon jury trial that precede even Harold Macmillan’s 1961 decision to take the UK into the European Economic Community. It was during these earlier decades that the grand jury was finally abolished in 1969 after repeated attempts to undermine it stretching back to World War 1. Taking account of the fact that until 1850 all but the most minor, summary trials taking place in the UK did so in front of juries - and were preceded by grand jury hearings - the facts show efforts to undermine this central institution of Britain’s constitution precede the existence of the EU by over a century.

Honesty
As in the UK jury power has declined markedly in the USA (see The Jury As Constitutional Identity, A.G.Ferguson 2013; The Missing American Jury, Suja A. Thomas 2016). The high point of jury power may be traced back to the late 18th century and with this, the American Revolution. William Blackstone’s Commentaries on British Law make crystal clear the vital, sovereign role of juries in providing bottom up protections for freedom against top down attempts to impose arbitrary law and tyranny. The commentaries have been described as the ‘blueprint’ for democracy and were referred to repeatedly with approval by the American Founders, most especially Thomas Jefferson, probably the most knowledgeable advocate of jury power in constitutional design the world has known. Denial of Trial by Jury was at the heart of the reasons cited in the American Declaration for Independence for rebellion against the British crown. It has been claimed that the American Revolution itself was the culmination of over a century of struggle for trial by jury, marked in particular by the founding of the State of Pennsylvania and the building of its capital, Philadelphia. Its namesake William Penn was instrumental in establishing the right to free speech and of juries to reach verdicts independently of the judiciary. A jury refused to convict Penn in 1670 for making a speech at an assembly deemed to be unlawful, even after being imprisoned for such refusal by the judge. When the campaign to free the jurors was won it may be stated that freedom of speech was established as a right no British government could violate without fear of lawful retribution. The case has provided the most powerful example of why juries must have the power to decide both fact and law: that is, the power to ‘nullify’ such law if the jury deems such a decision to be necessary. This precedent enabled American juries to refuse to indict or convict their compatriots on Crown charges even when it was factually clear they were lawbreakers. That is to say, they laid the basis for the American Revolution itself.

While King and Bogdanor made their living within the Machiavellian heartlands of what Pope Benedict XVI has designated a ‘dictatorship of relativism’ that has long since prevailed within the European academic establishment, for Jefferson “honesty is the first chapter in the book of wisdom.” In line with insights gained both from their study of the Iroquois five nation federation and of British philosophical realism honesty was of central importance to the aims of the American Founders in constructing a new order of republican and federal government: “Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law.” (Jefferson to S. Roane, 1819). Jefferson’s approach is consistent with his grasp of common sense realism as the least imperfect political philosophical perspective best equipped to inform the tasks of revolutionary change and constitutional design. Truth existed for Jefferson as it exists for the common man of all ages: there are truths which all indeed can hold to be self evident and which accordingly must comprise the ‘fixed principles of reason’ that comprise the basis of any genuinely democratic republic. Clarity in understanding these truths had been impeded by the vagaries of preceding historical development.

It was against this background that Jefferson considered the opposing merits of aristocracy (‘rule by the best’) and democracy (‘rule by the people’) had been distorted through history by the development of an ‘artificial’ aristocracy based on inherited wealth and power. He believed it should be replaced by a ‘natural aristocracy of talent and virtue.’ Those who support aristocracy with little or no regard for these factors tend to distrust the common people and seek greater security by drawing power from them to the upper ranks of society. Independent, self reliant citizens have less fear of the people and are more alert to the dangers of aristocratic power when concentrated in few hands. They understand that on balance power is more safely entrusted to the people notwithstanding their imperfections and lack of education. Democratic citizens value freedom and the judgement of commoners more highly such that they seek to constrain efforts aimed at taking powers from the people to be concentrated in the hands of a ruling elite. Freedom is better protected by placing limits on the concentration of power in few hands, even if they happen to be those of well educated, usually rich elites.

Jefferson regarded attempts to undermine jury powers as arising from the conflict between aristocracy and democracy that has existed since the origins of government itself, including in its early Greek and Roman forms. According to Jefferson these tendencies will continue to exist ‘for all time’ because they arise from the most basic levels of human psychology:

"Men by their constitutions are naturally divided into two parties: 1. Those who fear and distrust the people, and wish to draw all powers from them into the hands of the higher classes. 2. Those who identify themselves with the people, have confidence in them, cherish and consider them as the most honest and safe, although not the most wise depositary of the public interests. In every country these two parties exist, and in every one where they are free to think, speak, and write, they will declare themselves. Call them, therefore, Liberals and Serviles, Jacobins and Ultras, Whigs and Tories, Republicans and Federalists, Aristocrats and Democrats, or by whatever name you please, they are the same parties still and pursue the same object. The last one of Aristocrats and Democrats is the true one expressing the essence of all." (Thomas Jefferson to Henry Lee, 1824).

This understanding illustrates why under Jefferson’s leadership the first reforms taken after independence by the state of Virginia included elimination of entail and primogeniture whereby hereditary wealth is passed down the generations to a limited number of heirs. He believed it to be a ‘self evident truth of common sense’ that the ‘earth belongs to the living’ such that each generation should be self reliant with powers to change the constitution to suit its own requirements in changing historical circumstances. Exceptions to such change should be rights such as those to jury trial because they are necessary to preserve government by consent itself. Jefferson similarly opposed government overspending, believing it wrong to impose debt upon future generations. Aside from the landed aristocracy he regarded the banking elite as the main stronghold of the ‘artificial aristocracy’ and sought to diminish their influence on government policy. Like Thomas Paine, Jefferson also supported the progressive tax principle that the rich should pay higher rates of tax to help prevent wealth concentrating in few hands. Implicit to Jefferson’s legacy - and recognised as such by later radicals such as Orestes Brownson - is the understanding that it is a self evident truth of common sense that as a whole it is more socially just to tax inherited wealth than to tax income derived from living labour irrespective of whether the economy is run on a low tax or high tax basis.

James Madison persuaded Jefferson to withdraw the concept that ‘the earth belongs to the living’ from consideration for inclusion in the constitution on the grounds that this radical demand would endanger unity with conservative American forces in the struggle for independence. It was in this context that Jefferson agreed to endorse the draft federal constitution with the proviso that a Bill of Rights be adopted which more explicitly guaranteed the right to trial by jury. Though he would ‘have gone further’ in emplacing jury power through different branches of government such as the legislature he nevertheless recognised that the judicial arm is the most effective branch in which the entrenchment of jury power could ensure the ultimate accountability of government to the people: “Were I called upon to decide whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the laws is more important than the making of them. However it is best to have the people in all the three departments where that is possible.” (Jefferson to Abbe Arnoux, 19th July 1789). It was against this background that a jury was included in the US Supreme Court during the early years of its existence.

The Jeffersonian legacy hence laid the basis for but did not complete a form of constitutional design that could cater for long term, systemic change which could be accomplished by a combination of party representation, jury democracy and constitutional reform adjudicated by a Supreme Court that also included a jury - the most bottom up form of democratic government least susceptible to top down control. Such systemic change could have enabled distinct, large scale macroeconomic solutions to be tried out in practice both in production and in finance through regular, long term constitutional review. Jurors are randomly selected and as such it is a self evident truth of common sense that they are less likely to be influenced by the polarising demands of party faction - both open and secret - and so will be more able to adjudicate upon matters of systemic change upon an impartial basis. Jury power can not only provide the best safeguard against the development of tyranny but also the least imperfect means by which disputes regarding the contending merits of alternative systemic choices can be settled.

The Only Anchor
Though Jefferson has been described as the most accomplished political philosopher in history these were not merely individual achievements. As he himself stated, the Declaration of Independence represented the common sense of the subject. His chief accomplishment lay in his ability to bring to bear an applied understanding of the British philosophical tradition of common sense realism upon the tasks of constitutional design. Consequently Jefferson was able to recognise the self evident truths of common sense would provide the most certain principles of organisation upon which a new constitutional order could be built to facilitate the first reliably successful government of reason the world had known. The tradition of English philosophical realism itself was presupposed by the developed character of British common sense: as Locke made clear, the judgements of commoners comprised the primary reference point of his political philosophy. DeTocqueville recognised the educative benefits derived from centuries of jury and grand jury power in the exercise of government and justice were of decisive importance in ensuring British colonists were able to create, administer and defend the American Republic upon a durable foundation. Moreover, to these attributes could also be added the skills and understanding acquired through the widespread and developed nature of craft manufacture. The ‘father of modern science’ Francis Bacon had based his methodology upon study and observation of these skills most especially within the metals and arms industries. These industries owed much of their longevity and advanced character to the relative ease of access to arms made and used by the lower classes for over a thousand years since the Anglo-Saxon ‘fyrd’ militia system had been established.

By contrast in Europe the peasantry were largely excluded from such access with feudal rulers often relying instead upon professional mercenaries. As Agincourt showed, in France craftsmen were more usually employed in toy making for the aristocracy than in arms manufacture and related metals industries. It was for such reasons Hegel noted that workers in Britain - the country he cited as the model example of his theory of the ‘historic nation’ - possessed an unstated sense of self confidence in regard to their rights and powers. It was also for such reasons that Jefferson could juxtapose the achievements of American and French common sense in the following manner:

“A great revolution has taken place at Paris. the people of that country, having never been in the habit of self government, are not yet in the habit of acknowledging that fundamental law of nature, by which alone self government can be exercised by a society, I mean the lex majoris partis. of the sacredness of this law, our countrymen are impressed from their cradle, so that with them it is almost innate. This single circumstance may possibly decide the fate of the two nations.” (Thomas Jefferson to John Breckenridge, 29th January 1800).

That single circumstance had momentous consequences from the outset of the French Revolution in regard to jury power. Rousseau recognised random selection comprises the bottom up ‘essence of democracy,’ whereas ‘representation’ - either by appointment or through election of competing nominated candidates - comprises an essentially top down adaptation of aristocracy which as such he considered to be merely a remnant of feudal patronage. Theorists of ancient Greece recognised ‘representative democracy’ not as democracy but as elective aristocracy. Yet it was against this background that despite his four year residency in Paris as United States Minister to France Jefferson was unable to convince French parliamentarians of the need to include the right to trial by jury in their Declaration of the Rights of Man. This failure was one of pivotal importance and was regarded at the time by Jefferson as indicative of fundamental flaws in the constitutional aspirations of the French revolutionary movement:

“Another apprehension is that a majority cannot be induced to adopt the trial by jury; and I consider that as the only anchor, ever yet imagined by man, by which a government can be held to the principles of it’s constitution” (Jefferson to Thomas Paine, 11th July 1789).

Ironically Paine used this letter in his effort to enlist Edmund Burke’s interest in the revolutionary events in France but it “may have had an important effect in arousing Burke’s distrust of the Revolution.” (See Thomas W. Copeland, Our Eminent Friend Edmund Burke, New Haven, 1949, p. 146–89, especially p. 186). Following news that the French King had been executed, despite Paine’s attempted plea to the Jacobin authorities that he be granted asylum in the USA, Jefferson apparently concluded that the French were not yet ‘virtuous’ enough to accept a ‘sudden republicanism’ after so many centuries of superstition and despotism.

Reasons for Decline
Despite the world historic achievements of the Anglo-Saxon peoples in establishing juries as the cornerstone of democratic government their powers have been steadily eroded both in Britain and the United States for over a century. There are several factors which help to explain this. First concerns the volunteer basis of jury power. Bottom up active support for democratic solutions to problems of administration are presupposed by high levels of civic participation: this inevitably weakened as the revolutionary waves of support for trial by jury in the 17th century (leading to the English Bill of Rights) and for American Independence in the 18th century (leading to the American Bill of Rights) began to recede in the 19th century. Accordingly there was a decline in levels of resistance to aristocratic solutions - most especially those involving the judiciary, which has a clear self interest in taking over jury powers. This decline occurred on both sides of the Atlantic and decisively so in the UK. A further factor is the increasingly complex nature of investigative and prosecutorial roles in law enforcement and legislation itself which required to some extent greater degrees of specialisation and training. The need for expertise strengthened support for aristocracy in government. Against this background the post-revolutionary, post civil war more secure conditions of existence of the American Republic allowed levels of disregard for the merits of jury power to rise. As the threat of open tyranny receded the legal and political American establishment grew increasingly complacent regarding the rights and role of juries in preventing the growth of corrupt, secretive influences in government and law enforcement. This tendency of the legislative, judicial and executive branches of government to encroach upon and supplant jury power by administrative instruments of their own making was, as Suja A. Thomas has suggested (op.cit.), further advanced by the inability of juries to defend the interests and extent of their domains of sovereignty and decision making. Jury power rests almost exclusively upon volunteer, civic participation. The other branches of government by contrast have a fully professionalised and accordingly permanent and well funded presence within the constitutional structure. As such they can lobby for and even employ the powers of their rival branches to jointly defend and advance their interests.

It was against this background that Jefferson’s observation that the ‘tendency of government is to gain ground’ was borne out by subsequent events. This tendency has become so pronounced by the standards of American revolutionary radicalism as to comprise a threat to democracy itself. During the interwar period the claim was advanced that the role of the legislative branch alone has assumed despotic form. Such is the import of ‘The New Despotism’ as explained by Lord Hewart in his book published in 1929. He argues that the growth of so-called secondary legislation - whereby parliament derogates to the executive branch and even mere civil servants law making powers - comprises a form of ‘parliamentary despotism.’ Taken in conjunction with the decline of jury power this circumscribes the claim of ‘parliamentary sovereignty’ recently invoked to prevent executive authorisation of Brexit through Article 50. In fact this claim is invalid.

The doctrine of ‘parliamentary sovereignty’ is at bottom a false doctrine given respectability by a narrow coterie of 19th century legal scholars (principally A.V. Dicey) who colluded in the subversion of jury power by unconstitutional methods. As the leading 17th century authority on Magna Carta and Common Law Sir Edward Coke recognised jury power is founded on common law rooted in Anglo-Saxon traditional rights repeatedly confirmed by English Kings, including by means of and before Magna Carta. Coke surmised that ‘Judgements given against any points of the Charters of Magna Carta or the Charter of the Forest are adjudged void and…..if any statute be made against either of these charters it shall be void.’ (Magna Carta, Nicholas Vincent, 2015 Joyce Lee Malcolm p.127). Malcolm goes on to outline later ambiguities in British legal opinion regarding parliamentary sovereignty which might indicate somehow parliament can abrogate Magna Carta rights despite the fact that the much older authority of the Crown was clearly never empowered to do so. Nonetheless most of the American Founders were unambiguous in their conviction that jury powers could not be abrogated by the British Crown or any other authority, including the British Parliament, the US Federal government or even the US State governments. Some state governments explicitly incorporated in their constitutions affirmation that the right to trial by jury could not be violated or repealed no matter what the legislature did. For example New Jersey’s article 22 reads: “…the inestimable right of trial by jury shall remain as a part of the law of this colony, without repeal, forever.” (Quoted in ibid.p.131)

Thomas Paine put the inviolability of the right to trial by jury upheld by Magna Carta in clearly expressed form as regards arguments that such a right is subordinate to the claims to sovereignty by the crown or parliament: “The Charter which secures the freedom in England, was formed, not in the senate, but in the field; and insisted on by the people, not granted by the crown. The crown in that instance granted nothing, but only renounced its former tyrannies, and bound itself over to its future good behaviour. It was the compromise by which the wearer of it made his peace with the people and the condition on which he was suffered to reign.” (Quoted in ibid. p. 129).

Despite these achievements in defence of jury powers they were nevertheless undermined in both the USA and the UK during the 19th century. Jefferson had endorsed the Federal Constitution on condition that it incorporated a Bill of Rights
despite the fact that, as stated above, he would have gone further in establishing jury power more extensively in other branches of the Federal Republic - as had been the case, for example, in the Articles of Confederation, the first continent wide constitution of the independent American colonies.

Judicial Power
It is almost certain Jefferson’s preference would have been for the Supreme Court to continue to include juries for all time not least because he was suspicious of the judiciary as a potential force for the reinstatement of aristocracy. His intention following his defeat of John Adams and election as President was to restore jury power which had been undermined by the Federalist attempt to pack their newly expanded judiciary with their own supporters (see What Kind of a Nation: Thomas Jefferson, John Marshall and the Epic Struggle to Create a United States, James F. Simon 2002, p.123). However Jefferson suffered a major defeat when it became established in the Marbury v Madison case that the Supreme Court could determine whether legislative acts were compatible with the Constitution by means of so-called ‘judicial review.’ This development was schemed and plotted for by the right wing Federalist Party which had already violated the First Amendment by means of the Alien and Sedition Act, whereby Jefferson’s supporters could be imprisoned for criticising the government. The Chief Justice and prior Federalist Secretary of State John Marshall was the first judge in history to declare an Act of Congress to be unconstitutional. This granted immense powers to the judiciary despite the objections of Jefferson’s supporters. Further powers were discreetly acquired by the judiciary after the civil war, including that of refusing to inform jurors of their right and obligation to judge both fact and law.

In the UK the right to indictment by grand jury and trial by jury also became more and more restricted, with the granting of increased powers to the judiciary and police regarding investigative, prosecutorial and sentencing matters. It was in this context that the doctrine of parliamentary sovereignty came to be espoused by judicial scholars including most notoriously by the women’s suffrage opponent A.V. Dicey. So sparsely legitimated is this doctrine that even in the 21st century, as cited by the UK Supreme Court Article 50 Gina Miller case, Dicey remains the leading authority on the academic claim - never created ‘in the field, by the people’ or even formalised by Parliament - that Parliament commands exclusive sovereignty in the British constitution.

As the Miller case showed, the British Supreme Court was unable to reach a unanimous decision in relation to the doctrine of parliamentary sovereignty. Iain Duncan Smith’s
consequent suggestion that there should be more scrutiny in the appointment of such judges showed also that conservative opinion is sceptical of the impartial status of such judges. Miller supporters very likely considered the court decision in their favour to reflect a ‘progressive’ majority of judges who support the doctrine of parliamentary sovereignty. Ironically however though remain supporters like to consider themselves as being on the ‘progressive’ as opposed to conservative side of British politics, the intellectual origins of the doctrine of parliamentary sovereignty as espoused by Dicey are rooted in the desire for centralisation of power as expressed in the monarchist tendencies of Thomas Hobbes, not the parliamentary aspirations of John Locke. Those who fear giving power to the people may result in a ‘short, nasty and brutish’ life stand opposed to the advocates of democratic government who have generally favoured a more optimistic view of human reasoning powers.

In regard to the Miller case opinion divided along lines as indicated above by Jefferson but upon opposite sides: the right favoured democracy and trust in the people while the ‘left’ favoured reserving power to the legal and political aristocracy. This irony is less surprising when account is taken of its consistency with the greater irony that hard and soft totalitarian leftism alike since the French Revolution have embraced monopolistic powers over democracy as the primary strategic framework through which radical aspirations can best be realised. Nonetheless beneath the surface of this line up of political forces it remains an indisputable fact that the British working class overwhelmingly supports Brexit even against the postures of its self appointed Fabian leaders.

This has been the main circumstance through which it has become established practice for parliament to impose ever greater restrictions on the right to trial by jury with no organised resistance to such constitutional infringements. Moreover, the establishment and expansion of local authorities by means of elections for nominated competing candidates - effectively a further extension of the party system - enabled more government powers to be transferred away from grand juries. Provided parliament was wilfully blind to the role of grand juries in preventing tyranny (which it was - one clottish MP actually declared in 1933 that the age of tyranny was a thing of the distant past during the debate on abolishing the grand jury) this duplication in the exercise of power made it administratively possible to curtail and ultimately abolish them on grounds of unnecessary cost. Such reasoning has since been superseded by judicial inquiries such as those surrounding Bloody Sunday which clocked up nine figure sums. Abolition of grand juries was eventually achieved through further parliamentary actions in 1948 and 1969.

Similar attempts to abolish grand juries also took place in the USA, but were in large part successfully resisted thanks to the more entrenched status of jury power in the federal Bill of Rights. Moreover in the post-war period campaigns developed to oppose such constitutional infringements through the formation of grand jury associations in several states. By contrast in the UK the enemies of jury power have been able to usurp safeguards against autocracy, corruption and the abuse of power upon an ever more despotic scale thanks to the ‘unwritten’ character of the UK constitution, the more aristocratic habits and orientation of British conservatism, and last but not least the greater extent of Fabian influence within the political, academic and legal establishment. Accordingly it can be seen that the most decisive reason why trial and grand juries have been so thoroughly undermined in and abolished from the British constitution is that global leftism including the Fabian Society has been and remains at bottom at best indifferent and at worst actually hostile to jury power. As stated this circumstance arose initially as a consequence of
the detrimental legacy of the French Revolution.

After the defeat of the first French Republic European radicalism did not maintain consistency of purpose with the Jeffersonian legacy but instead floundered in confusion, beset by impracticable, largely utopian theory that did not provide sound guidance on how to best develop the transition to democracy set in motion by the American victories - which by 1865 included the abolition of slavery. This failure was attributed by Jefferson initially and principally to the more backward conditions that prevailed in Europe. French ‘bon sens’ was less developed than English common sense, as also were the main trends of European political philosophy in their relation to the British American enlightenment. The arch relativist Kant for example dismissed the certainties of Reid’s self evident truths of common sense knowing little or nothing about them. Such disdain reflected the backward, still largely scholastic character of European rationalist philosophy, most especially that of German idealism. The French intelligentsia held to European rationalist philosophical tenets such as those of Descartes which largely ignored common sense and held science to be the primary preserve of an academic elite, not, as Bacon advised, the practical domain of craft industry and its ‘experimental method.’

Global Leftism
European revolutionary leaders were more inclined to manipulate than reason with the lower classes because they placed less trust in common sense. This inclination strengthened as the difficulties facing the French Revolution intensified. The French poor were more impoverished and had less experience in reasoning independently of their masters, including the church, while, unsurprisingly, at the same time appearing more susceptible to mob violence than their Anglo-American peers. These flaws bore out the fears of the intelligentsia. It was in such circumstances that while Jefferson considered honesty to be ‘the first chapter in the book of wisdom’ Robespierre declared Machiavelli to be the ‘guiding spirit of the French Revolution.’ French radicalism, mired in relativism, looked not to trust common sense but rather to control it by methods including deception. The French Declaration of Rights reflects this approach: it does not guarantee bottom up rights such as jury trial but instead delineates freedom as something rulers will grant from the top down and may actually withdraw if they deem it necessary to do so. Extreme urban poverty in Paris led to the outbreak of mob violence on a mass scale, further destabilising and polarising an already chaotic revolutionary process. The Jacobin turn to force to overcome these difficulties led to the destruction of democracy and, eventually, the establishment of a dictatorship. These reverses were central and fundamental to the development of democracy upon a world scale: effectively they signified that not only conservatism could distrust the people but also in certain circumstances radicalism.

French radicalism did not trust honesty as the first book of wisdom because it did not trust - or understand through an appropriately thorough grasp of British philosophical realism - common sense. The combination of mob violence with little or no mass experience of jury decision making and democratic process led French radicalism to adopt policies presupposed primarily not by trust but rather distrust in common sense. What in America Jefferson perceived to be an essentially conservative affinity with aristocracy became in Europe both conservative and radical affinities with different and factionally opposed aristocracies. European radicalism never overcame these setbacks. Babeuf, the founder of communism, declared ‘democracy according to the French Revolution’ must incorporate dictatorship as a necessary means of realising social progress. This flawed insight was absorbed into European leftist strategy and thereafter projected upon a world scale. Marxism became the chief vehicle for this process, most especially following the Russian Revolution. As the ‘historically inevitable’ prognostications of Marxism have proved increasingly wanting however aside from some benignly reformist sentiment such as that of Eduard Bernstein the hard core of European leftism - both in its Fabian reformist sheep’s clothing and in its terrorist forms - has in the main reverted to Robespierre’s pivotal endorsement of Machiavelli’s adulation of force and deception as the most effective instruments of political action. As most of his contemporary supporters usually declare, the Italian theorist supposedly was a republican and a democrat, yet his work comprises in essence the claim that those who wish to rule must assume the primary book of wisdom to be that of deception, not honesty. Proffered to those who rule from the top down Machiavelli’s insights are aristocratic in orientation. This inescapable quality of his work has accordingly permeated leftist thought for over a century and provided the basis for strategies upheld both by the left and by the far right - that is to say, fascism, itself an extremist compound of radical and conservative aristocratic ideology.

This process can be seen in the development of the Fabian Society which according to H. G. Wells adopted the methods of Machiavelli in its approach. As its ‘wolf in sheep’s clothing’ motto makes clear, the Fabians are not concerned with honesty in pursuit of truth so much as dishonesty in pursuit of power. This is the fundamental basis of the Fabian tactics of infiltration suitably disguised by the more innocuous sounding concept of ‘permeation.’ The parliamentary acts destroying the grand jury were all passed under Fabian prime ministers: Ramsay MacDonald, Clement Attlee and Harold Wilson. Tony Blair and Jack Straw’s attempt to destroy the right to trial by jury followed a long train of established Fabian disdain for jury power presupposed by the Fabian preference for permeating party leaderships and the judicial aristocracy.

One of world history’s greatest ironies is the exception to these rules for radicals posed by none other than Lenin, who though knowing little or nothing of common sense realism, included “the right of all persons to sue any official in the regular way in front of a jury” in the RSDLP 1917 program. Lenin’s esteem for ordinary understanding is reflected in his analysis of differentiated levels of proletarian consciousness and the role of ‘advanced workers’ in leadership. It is also reflected in his condemnation of Hegel’s ‘disagreement with common sense’ as the ‘foul quirk of idealism.’ A less exceptional irony is the fact that Soviet authorities ensured these remarkable facets of Lenin’s approach get no mention in the subject index volume of Lenin’s forty five volume Collected Works.

Very few analysts have been alert to Lenin’s esteem for truth and the rights of the individual in their relation to the general interest (‘it is not a question of numbers but whether the interests of the working class are correctly expressed”). Among them may be counted Max Eastman, at first an American supporter of the Russian Revolution who knew the Bolshevik leader and judged his appraisal of freedom more favourably than that of any of his peers. Eastman viewed Lenin’s heirs, including Trotsky, who he also knew personally, as incapable of preserving and developing these positive elements of the Leninist legacy. A yet further irony is that Eastman’s main - and contemporaneous - criticism of Trotsky was his failure to alert the Russian Communist Party to Lenin’s ‘last testament’ statement which called for the removal of Stalin. Consequent to the development of these insights into the flaws of Soviet leadership surrounding Lenin’s death Eastman later played a leading role in the struggle against communism. The evidence of such contradictory qualities at the head of the Russian Revolution illustrates the schismatic, conflicted nature of leftist ideology: at its best aspiring to freedom but encumbered, constrained and imprisoned by Marxist dogma and Machiavellian totalitarianism. Similarly contradictory qualities may be seen in Ho Chi Minh’s early attempt to find common ground with the Jeffersonian legacy.

European Federation
It does not require rocket science to surmise that Stalin’s approach to international diplomacy and negotiations surrounding the establishment of the UN and its essentially merely cosmetic architecture of human rights law would have been unlikely to emulate Lenin’s support for trial by jury. Stalin instead adopted a wholly top down approach maximising use of his by then ramified and highly successful penetration of western security and political power structures by communist and fellow travelling ‘agents of influence’ under his direct command. Less obvious is that this was precisely the approach taken, facilitated, and led by Fabian opinion makers and administrators in the Anglo-American alliance. If reason need be found to help explain why the 1945 overthrow of totalitarian rule in western Europe by the armed forces of common law did not result in the establishment of trial by jury in any of its major nation states one has to look no further than the work of Ivor Jennings, the Fabian aligned academic reputed to be the leading British constitutional theorist of his generation. Jennings outlined the fate of European law and the future of the European Union in his 1940 work “A Federation For Western Europe.”

Jennings opposed the entrenchment of trial by jury by means of a Bill of Rights in Europe by arguing it would be difficult to establish a genuinely impartial multinational judiciary. Judgements could become bogged down in cumbersome appeal processes operated by judges reaching opposing conclusions motivated by differing national and party political partisan interests made all the more complex through changing historical circumstances. He then proposes to resolve such difficulties by advocating rights which are ‘unenforceable.’ Having invoked the difficulties of promoting trial by jury and a genuinely non-partisan judiciary as potential impediments to federation and therefore as reasons not to try establishing a Bill of Rights across Europe Jennings abandons the Anglo-American bottom up approach to human rights altogether by invoking the French example of rights which are in fact ‘unenforceable’ and depend instead upon the executive which can directly grant or withdraw favour as it pleases in any given case:

“The fewer sources of controversy there are, the more likely are we to achieve federation. The time and energy devoted to discussing habeus corpus and trial by jury would be time and energy devoted to an interesting subject, but would not be devoted to federation… For these reasons, I do not recommend a Bill of Rights in the Constitution. There is however, a stronger case for the insertion of a Bill of Rights in the preamble. It would then have no legal effect. State legislation contrary would not be invalid, but the document would be quoted in debates in the State and Federal Legislatures, and breaches of it would form the basis of protests by the Federation to the State. Though this is not in the British tradition, other nations appreciate the importance of ‘unenforceable’ rights of this character. Many written Constitutions include provisions of this kind, and the famous Declaration of the Rights of Man attached to the French Constitution of 1791 is really in a similar position.” (A Federation for Western Europe, Ivor Jennings, 1940, pp.95-98).

This is the kernel of self contradictory, fraudulent reasoning which permeated Anglo-American policy in establishing and developing a federal Europe after the defeat of fascism. This is the context in which the European Convention on Human Rights was adopted - based not on the power of juries to render governments accountable to their constitutions but rather the power of the ruling authority to impose its viewpoint upon the people. Today the EU is in possession of far greater powers than Jennings was prepared to openly state as a europhile ambition, and it is about to acquire a lot more, including command of an EU army, all based ultimately upon the top down, fake emulation by the French of the bottom up rights established by means of Magna Carta, the English Bill of Rights and the American Declaration of Independence. The European Court of Human Rights and the European Court of Justice completes the picture of soft totalitarian power: the ‘new communism’ as Nigel Farage has described it whereby citizen rights are interpreted by what alert lawyers and social scientists know perfectly well to be partisan judges - precisely the formula that Jennings’ weirdly converse reasoning had used to oppose trial by jury in Europe and whose fake solution pretended to prevent.

As with the French Revolution, the political philosophy underlying the construction of the European federal political and judicial apparatus has been informed by chiefly relativist doctrine, not the self evident truths of common sense. This was why Jennings could feign concern that it would be so difficult to establish a truly impartial judiciary across Europe. Wittingly or unwittingly, this was the ‘dictatorship of relativism’ Pope Benedict XVI would declare to be at the heart of modern secular government, most especially in Europe. For the Fabian Europhiles the most ‘fixed principle” was that federation must be the primary aim, not accountability. This is the dilemma that resides at the heart of the Europhile cause: their belief in an opportunist short cut to European democracy (even Lenin referred to the slogan of a United States of Europe upheld by Trotsky as ‘absurdly left’) requires them to lie constantly and repeatedly to the people that they are engaged in constructing a continent wide democracy whereas in reality they are constructing a superstate that will more likely imperil it.

These above outlined influences help explain why and how the heart of the British constitution - jury power - has been damaged and further undermined by European federation, in particular by the European courts of justice and human rights, neither of which incorporate juries. As can be seen, they indicate a coalescence of radical and conservative elite influences about essentially aristocratic, Machiavellian doctrines of political power and government. There are further elements associated with these developments, not least from among the banking and finance industries exemplified most especially by the Rothschild and Rockefeller dynasties. Together these are the main motive forces driving the globalist agenda, though account should be taken of the generally underestimated possibility that the hard totalitarian leftist states very likely comprise its most avid sponsors. For the totalitarian powers European Union can serve as a model for international integration by which the rest of humanity can be herded into similar regional blocs with the ultimate aim of subordinating them to the single world proletarian dictatorship dreamed of by Trotsky and Marx. The following suggestions are aimed at resisting further subversion of the UK constitution and restoring its most important, democratic institutions of government and justice.

Priorities
Freedom of speech and of the press are probably the most prized achievements of Anglo-American development and must rank top of the list of priorities in reversing the subversion of jury power that has taken place since the middle of the 19th century. The notoriously top down attempt to impose press control by means of the Leveson Inquiry has been halted, but little or no attention has been paid to reinstating the right to trial by jury in libel law. The apparent ignorance of the relation between this right and freedom of the press must be addressed. The strange media silence about this matter may arise from the possibility that press barons feel their interests can be defended by the political and judicial aristocracy. However this is an erroneous understanding which can be corrected hopefully without too much difficulty not least because it will be mere journalists, not billionaires, who will be in the firing line of such conflict. Fabian influence in this profession may be an obstacle.

The transfer of jury selecting procedure from local jurisdictions to a singe central Jury Summoning Bureau in central London some decades ago needs to be addressed. The traditional practice of choosing jurors by random selection in open court has been supplanted by the operation of a national computer. This is an unacceptable diminution of transparency in jury selection and must be reversed. The public must have confidence that juror selection is conducted upon a fully impartial foundation by random selection because this is the method which most reliably ensures that juries are independent from government and both open and secret factions. The CDRSB has already made some progress in promoting such a policy change.

The formation of the Grand Jury Association in Kent this year could be a first step in facilitating the reinstatement of this important form of democratic organisation. Grand juries are arguably the oldest form of democracy in the UK. Their origins lie in the juries and accusatory juries of the Anglo-Saxon period. The oath used to swear in such jurors under King Aethelred’s reign in Kent and Wessex was in use for grand juries right up to the modern period. Local government was exercised in large part by grand juries in these centuries: in the twentieth century they were still responsible for ensuring acceptable standards of health and safety in public works such as roads, sewage and water supplies and other matters of local planning. Grand juries are the most direct form of democratic power through which other branches of government can be held accountable to ordinary members of the public outside the parameters of party faction, police and judiciary. As has been stated above, they were instrumental in resisting both royal and parliamentary despotism in the British American colonies.

‘Regulators’ also form part of this tradition as organisational forms of direct democratic power used to substitute for grand juries when local justice systems were unable to properly function for reasons such as frontier difficulties and/or corruption. Regulators sought and claimed constitutional and legal status as guardians of justice intermediate between grand juries and vigilantes. They were prominent in several American states, including both Carolinas and in New Mexico where ‘Billy the Kid’ took part in one such initiative along with scores of mainly poor Mexican farmers. Hollywood unsurprisingly has sensationalised and distorted history in this regard. The most decisive instance of regulator activity was in Massachusetts in the uprising against local corruption which came to be known as ‘Shays’ Rebellion’ (Leonard L.Richards, 2002). Suppressed by Congress this regulator rising nevertheless won indirect praise from Jefferson, who made his famous comment about the ‘tree of liberty’ needing to be watered by the blood of patriots and tyrants from time to time in this context. It has been claimed that Shay’s Rebellion was the precipitating event which led to the adoption of the more centralised US Federal Constitution.

The Grand Jury in the USA remains a vital instrument of direct democratic power still independent of the other branches of government. Although there are various criticisms of its functioning in various states, the Grand Jury retains its reputation of independence and impartiality most especially in regard to matters of misconduct in public office. It is this power available to grand juries that most accounts for the title it has acquired of being both the sword and the shield of the people. This was demonstrated to spectacular effect with regard to the Watergate scandal which prompted the claim that grand juries hold power equal to all other branches of government. Misconduct in public office in present English law is an offence which must be judged to have been committed by a jury. As such it comprises an area of law administration which the UK Grand Jury Association can examine in some detail. It includes a broad range of possible criminal activity in which public officials can be involved such as in local planning, paedophilia, whistleblower victimisation, negligence in regard to child protection, safety standards, and health services - including in regard to maintaining necessary levels of recruitment and training for doctors.

The Grand Jury Association can also examine possible instances of misconduct in public office at national levels and with this enquiries into child abuse and the conduct of war, including with regard to post war reconstruction and governance matters. Bias in academic affairs and recruitment has recently come into special focus concerning Brexit. Although such matters might fall short of crimes of misconduct in public office, there may well be a role for jury power in the grant making and appeals process at university level. The influence of the Fabian Society itself is worthy of attention by the Grand Jury Association most especially since it has a long established and publicly declared policy of ‘permeation.’ Such practices, casually acknowledged even by government ministers and to date quite immune from investigation by the very possibly permeated Crown Prosecution Service may fall short of the standards of honesty and good conduct expected by the public.

As has been indicated, historically there is a role for juries in Supreme Courts. Such participation should be revived both at national and international levels. Juries can also accordingly play a role in constitutional courts. In this way restoration of the British constitution can help bring about conflict resolution between conservatism and radicalism upon an international scale. Recently the Prime Minister of Ireland Leo Varadkar suggested that a new international court might be established to help arbitrate trade relations between the UK and Ireland following Brexit. Such a court could include a jury, most especially since jury administration is well established in both countries. It could set an important example by which a new, more democratic international architecture of legal process can begin to be developed.

As has been indicated, radical American Founders - including Thomas Paine - had aspired to create a form of constitutional design that could incorporate the self evident truth of common sense and ‘fixed principle of reason’ that ‘the earth belongs to the living.’ By such means the basis for the use of jury power in facilitating regular systemic change could be developed. The understanding of political activists and the general public alike can be improved and clarified regarding this possible direction in constitutional development. In particular, the self evident truth of common sense that inheritance tax is the most socially just form of tax can be further established through opinion research. The CDRSB has conducted such research in London and Belfast with very positive results: some 100 persons have been interviewed with an average result that over 70% agree with this postulate (higher rates of over 90% were attained in Belfast). The Fabian Society has conducted research in this regard as well, on a smaller scale. Their initial results appear disappointing, showing 51% support for abolishing inheritance tax (How to Defend Inheritance Tax, Rajiv Prabhakar 2008. p.5). Yet when the question was formulated clearly as a tax option among other forms of tax, not a tax increase, the public response showed a significant increase in support of inheritance tax (ibid p.33). This outcome is in line with the CDRSB survey results. It can be suggested to the Fabian Society that the reason such an improved result was attained in their survey arises from the fact that it is a self evident truth of common sense that inheritance tax is the most socially just form of tax.

Restoration of the British constitution must include repair of the electoral system in regard to postal ballot fraud. Against the background of the fact that the French National Assembly voted unanimously in 1975 to ban the use of postal ballots on demand in national elections the UK electoral system is now the subject of ridicule in this regard: the phrase ‘about as reliable as a postal ballot in Tower Hamlets’ is now a quite well known joke. The CDRSB has opposed the unlimited use of postal ballots since its introduction among a package of constitutional reforms in 2001 by Tony Blair. We have also suggested as of 2014 that postal ballots be counted separately from ordinary ballots such that disproportionate advantages gained by certain parties by means of postal ballots can show up in the voting results. This can trigger more in depth investigation if necessary. The CDRSB has pursued this matter in ongoing correspondence with parliamentary representatives, the Cabinet Office, government ministers and the Electoral Commission. This correspondence has demonstrated that present electoral procedures regarding postal ballots almost certainly incorporate a breach in data protection law. Voters should be given the choice not to consent to information as to whether they vote by post or in a polling station being made available to political parties. They have to date never been given that option. Consequently the supply of such information by means of the ‘marked’ electoral register to political parties is unlawful.


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