The purpose of our Constitution (as with all Constitutions) is to set forth law permanently governing and guiding government (the executive, legislature and judiciary) in order to remove all possibility of injustice and crime against (the) People at the hands of government (Common Law Crime of Tyranny).
Parliament and congress do not make ‘constitutions’ through any of their statutes because that would enable government to authorise it to do as it pleases whenever it wants and create a state of total parliamentary despotism over the population; quite the opposite of what a constitution is supposed to do!
So, first of all, you are wrong to imagine that any government-made statutes are “constitutional.”
In the case of the 1689 Bill of Rights—this firstly, illegally reaffirmed statutes premeditatedly introduced to deny the greater part of the people from selection to serve on a jury and thus their ability, right and duty to judge and annul enforcement of unjust laws; secondly, illegitimately denies monarchs their duty and regal authority to withhold enactment of statutes which they deem unjust or unconstitutional, de facto, seizing spurious sovereignty for parliament over the People and monarch; and thirdly, treasonously forces the monarchs to breach their Coronation Oath to uphold the Law of the Land, codes, charters and customs of the People—this rebellious, contumacious (stubbornly resistant to authority; wilfully obstinate) Bill of ‘Rights’ statute exemplifies how parliament makes repugnant and void statutes which intentionally oppress by breaching our Constitution.
Explanation is detailed within the essay, http://www.tomgrimshaw.com/The_Tragedy_and_Treason_of_the_1689_Bill_of_Rights.pdf
Incidentally, Section III of the 1689 Bill of Rights upholds and acknowledges the validity and supremacy of the Great Charter and the previous “law of the land” Charters and Coronation Oaths sworn to by monarchs, as follows:
Bill of Rights: “III. Provided that no charter or grant or pardon granted before the three and twentieth day of October in the year of our Lord one thousand six hundred eighty-nine shall be any ways impeached or invalidated by this Act, but that the same shall be and remain of the same force and effect in law and no other than as if this Act had never been made.”
The Bill of Rights explicitly guarantees the supremacy, force and effect of the 1215 Great Charter Constitution. This assurance in fact annuls the Bill and all the renegade terms of the Bill’s insurgent instigators.
But we digresss… Regarding your e-mail, understanding how commoner citizens’ control of Common Law Trial by Jury is the only (peaceful) method known to mankind by which to hold government to the Principle of Equal Justice for All, quells misgovernment and protects the population is essential primary learning.
ACCORDING TO COMMON LAW AND OUR CONSTITUTION THE JURY SETS THE SENTENCE
Article Thirty-Nine is paraphrased as follows: “No one may be punished or disadvantaged in any way except (i) according to the judgement of his peers or (ii) according to legem terræ (the law of the land of which Trial by Jury is the single legal method of trial).”
Not only does the Great Charter inscribe the common law of the land legem terræ—of which Trial by Jury is the only justice system—but it also specifies in particular, judicium parium, the judgement of peers; i.e., the Common Law Trial by Jury, as the means of settling causes.
In this one Article Thirty-Nine, Magna Carta effectively emplaces Trial by Jury twice, emphasising instalment of the people’s judgement of peers, the Common Law Trial by Jury, as the mode of trial: once naming “the judgement of the peers,” judicium parium, the Trial by Jury itself (which was central to the traditions of legem terræ) and a second time as “the common law of the land legem terræ,” of which Trial by Jury is the only method of trial.
NOTA BENE: The words, “…according to the judgement* of his peers” mean the jury sets the sentence.
*To this day, law books use the words judgement and sentence synonymously. See translation from Latin; also see Articles 20 & 21, page 153.
6. In addition to Article 39 asserting that punishments are set by the jurors, i.e., “according to the judgement/sentence of his peers,” further proof in Articles Twenty and Twenty-One of Magna Carta (below) makes it conclusive that juries, not the government (judge), set the sentence:
Article Twenty: “A freeman shall not be amerced (fined) for a small crime (delicto) but according to the degree of the crime; and for a great crime in proportion to the magnitude of it, but saving to him his contenement (the means of making a living); and after the same manner a merchant, saving to him his merchandise; and a villein shall be amerced after the same manner, saving to him his waynage (plough-tackle and cart), if he fall under our mercy; and none of the aforesaid amercements* shall be imposed (ponatur) but according to the assessment of a jury of reputable* men of the neighbourhood.”
*In the Great Charter, “amercement” is a fine; and “reputable” meant men who were not convicts, ill or lunatics. We know this from various sources of that era, including the following from the Mirror of Justices:
“Persons attainted of false judgements cannot be judges [note that the jurors were the judges of all aspects of the cause], nor infants, nor any under the age of twenty-one years, nor infected persons, nor idiots, nor madmen, nor deaf nor dumb, nor parties in the pleas, nor men excommunicated by the bishop, nor criminal persons.”
Mirror of Justices, pp. 59-60.
“Old men above three score and ten years, being continually sick, or being diseased at the time of the summons, or not dwelling in that country [locality], shall not be put in juries of petit assizes.”
See Ruffhead’s Statutes, St. 13, Edward I, ch. 38, 1285.
With the important characteristic inherent to profoundly cerebral constitutions, observe that Article Twenty of the Great Charter makes a point of stressing that punishments should be in proportion to the gravity of the crime.
See DD Essay EIS#14: “The Crime-Generating (Inherently Illegal) and Other Degenerate Properties of Bad Laws and Disproportionate Punishments.”
Article Twenty-One: “Earls and Barons shall not be amerced but by their peers (equals), and according to the degree of their crime.” In setting the sentence and formulating just punishments, the jurors are advised to bear in mind the degree of malice, and the gravity or effects of the crime, and any mitigating circumstances.
Fines were the most frequent punishments. Whereas fines under the common law observed by the Anglo-Saxon kings went to the victim or his or her surviving relatives, the government of Norman kings illegally seized upon fines as a source of income. If the amounts of fines had been left to be set by the king it would have represented an irresistible pecuniary temptation for him to impose oppressive amercements on people.
Similarly, if the king or his servants the justices were allowed to set sentences other than fines, they could be seduced by corrupt motives into threatening or imposing harsh sentences to achieve criminal aims.
In short, for the best of reasons, the Constitution forbids government functionaries from interfering in any aspect of the judgement of a citizen’s behaviour. Magna Carta inscribed that all aspects of the case were to be judged by the jurors. It was and remains the purpose of Trial by Jury to protect the people from all possible oppression by government. The jury and only the jury set the sentence.
The fact that the jury sets the sentence requires that the jury always try every aspect of the case (the law, admissibility of evidence, facts, the nature and gravity of the offence, motive, mitigating circumstances, etc.), in order that the jurors know whether a sentence of punishment is to be imposed, and if so, what the suitable sentence should be.
The Great Charter Constitution affirmed that punishments were henceforth to be set by the jury, as they had always been according to the law of the land. This is, after all, a definitive attribute intrinsic to the judgement (or sentence) of the peers; that is, a Trial which is by Jurors. If someone other than the jury makes such decisions then the process cannot be defined as a Trial by Jury. If the law or evidence or the sentence or anything at all could be dictated to the jury then the trial would not be by jury. It would be by someone other than the jury.
7. Magna Carta does not prescribe that the government must punish according to the sentence of the peers, but that government shall not punish “nisi per,” “unless according to” that sentence. It does not oblige government to execute the sentence; but it forbids government from going beyond the sentence. The Constitution forbids government from punishing, except according to the judgement of peers.
Government justices might lessen (moderate) the sentence or acquit on grounds of law, or even pardon. Note well, however, these latter functions are always applied judiciously, with care, fairness and caution, because bias in the actions and decisions of judges and government personnel are not immune from citizens’ cost-free private prosecution by single or multiple plaintiffs before a Trial by Jury; viz. Articles 36 and 40; see Chapters Three and Four.
Item: As only a jury may set a sentence (Article 39) following a legal Trial by Jury, convenors (‘judges’) cannot ‘pronounce’ sentences unless they have been set first by the jury following a lawful common law Trial by Jury.
Item: Legally, judges and magistrates cannot proceed summarily (without a Trial by Jury) or inflict a sentence of punishment in any case whatever, even when a plea of guilty is entered and even if a defendant “agrees” to be “tried without a jury.” For judges, convenors, arbitrators, ombudsmen or others to proceed summarily breaches common law Article 39.
All enforcement of law and regulations remains subject to the decisions of juries. In this way, unjust and arbitrary legislation, vexatious regulations, government-prescribed sentences and fines (amercements), and judges’ decisions may be seen by jurors as due for Annulment by Jury at trial, with the result that such legislation may subsequently be permanently expunged from the statute book at the behest of (the decisions of) juries.
Thus, the common law Jury forms the People’s Supreme Legislature and Judicature. Apocryphal legislation, courtroom litigation and related expense are reduced exponentially.
Item: By ascribing judgement to the peers in Trial by Jury, The Constitution allowed punishments neither to be prescribed by statute, that is, by the legislative power, nor in any other manner by government or judges. Consequently, all statutes or regulations prescribing particular punishments for particular ‘offences’, or giving the government’s judges any authority to set punishments, were, and are, void. Such sentences pertaining thereto are Miscarriages of Justice. All people suffering such persecution are owed a real Trial by Jury (re-trial); and if found to have acted without malice aforethought, are due (overdue) Amnesty and Restitution.
ARTICLE THIRTY-NINE, FURTHER STIPULATIONS: CIVIL AND FISCAL CAUSES MUST ALSO BE TRIED BY JURY; ‘SUMMARY JUDGEMENTS’ AND ‘CONTEMPT’ PUNISHMENTS ARE PROHIBITED.
Article Thirty-Nine dictates: No one may be fined, punished, or penalised but by the Verdict and Sentence of a jury following a Common Law Trial by Jury. All questions of liability, responsibility and damages must be and can only be decided by the Jurors. This explains why all civil and fiscal causes, as well as criminal cases, have to be tried by jury 1. Issues may not be decided by means other than Trial by Jury; parties may not ‘waive’ their right to be tried by jury, the modern corrupt statutory and judicial ‘decisions’ to the contrary notwithstanding.
1 Seventh Amendment to the U.S. Constitution: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”
Article 39 stipulates that summary judgements and punishments (as wielded today by government magistrates and judges); and judges’ punishments for ‘contempt of court’ are gross infractions of the letter and spirit of the Constitution and the rule of law. All right and power to try, judge and punish are unequivocally and uniquely invested in the jury. Judicial power is completely denied to government and judges (convenors) expressly to disarm government from arbitrary power over the populace.
Moreover, regarding ‘contempt’: Common Law Article 39 stipulates that no one may be punished except according to the legal sentence (judicium; judgement) of the jurors. As a peace officer with responsibility for arranging security, the convenor (‘judge’) has power on behalf of the jury or him or herself, to order the arrest of an offender for a contempt (remove him from the court if necessary; and hold him to bail or imprisonment for default of bail)—but no punishment may be inflicted against a person’s life, liberties (rights) or property unless and until the ‘offence’ has been tried and decided upon as for any other offence: that is, at Trial by Jury. Then, the judgement (sentence), if any, must be the jury’s, and not that of a judge.
Today, in crude criminal breach of common law, magistrates and judges have again appropriated to themselves the completely illegitimate arbitrary power to sentence, fine, incarcerate and summarily punish, including for contempt of court. If the judge has the power to punish for contempt, and to determine what comprises a contempt, all the procedures, rights and duties of jurors, witnesses, counsel and parties are subject to the whim of a government judge. With such unjustifiable and illegal power, the entire administration of justice is seized into the judge’s hands and the process is no longer a Trial by Jury. Everyone who presumes to offer anything contrary to the judge’s caprice or corruption is at risk of incurring his displeasure. In this way, the outcome of every cause can be guided to the government’s or the judge’s favoured ‘verdict’ by the judge’s intimidating, restraining and punishing anyone he or she pleases, whether it be the parties to the case, counsel, witnesses, or jurors/ the jury. Every process wherein the justice or judge has summary power to punish is a flagrantly felonious pretence of a trial or ‘process’: a mistrial.
Spooner; a lawyer’s observation:
“This arbitrary power, which has been usurped and exercised by judges to punish for contempt, has undoubtedly much to do in subduing counsel [lawyers] into those servile, obsequious, and cowardly habits which so universally prevail among them, and which have not only cost so many clients their rights, but have also cost the people so many of their liberties.”
Definition. usurp, take a position of power or importance illegally, often by use or threat of force.
For good reason, Article 39 permanently removes all power to punish from judges and government. If the people wish to have their rights respected in courts of justice, it is manifestly of the utmost importance that they jealously guard the liberties and rights of plaintiffs, defendants, counsel, witnesses and jurors against all arbitrary power on the part of the government or court. Let us march forward to RESTORATION!
Ref. DEMOCRACY DEFINED: The Manifesto ISBN 978-1-902848-26-6.
Kenn d’Oudney. www.democracydefined.org