A Few Genealogy Links

Freedom in Jeopardy: A Case against the EU and Internationalism

Darren Andrews
Thursday, January 15, 2004

Freedom brings Happiness

All people want to be free. We can only grow and learn to the degree that we are free. We can only know true fulfilment to the degree that we are free. It is only through being free that mankind can reach his potential. In short, we can only be happy to the degree that we are free, for those things which bring us true joy can only be obtained through the use of those faculties which freedom vouchsafes to us; and through experience we know that being forced or coerced is anathema to both the human spirit and human enterprise.

History is the Story of the Acceptance and Rejection of Freedom

And yet freedom is something we can easily take for granted - and just as easily lose. History´s repeated sagas are evidence enough of this. Countless civilizations have come and gone, many of them destroyed because they surrendered their freedom little by little until it was all gone or taken from them. For a nation to lose its freedom there need be no military attack. It can be lost because the citizens of that nation have allowed themselves to be deceived through apathy, distractions, fear, and ebbing morals.

Britain is not immune

There are Two Forces At Work in the World

Throughout history there have been two competing philosophies of government. One holds to the idea that sovereignty lies in the people and that people have inalienable rights that precede the formation of, or exist prior to, the establishment of government. This philosophy is called Common Law and its associated legal code is called Habeas Corpus. Sometimes these terms are used interchangeably.

The other philosophy teaches that sovereignty lies in an absolute ruler or body of rulers and that rights exist only inasmuch as such rulers grant them. In effect there are no rights, only privileges. This philosophy has a number of names but most popularly is called Civil Law. Its associated legal code is called Corpus Juris.

Common Law and Civil Law are two opposites. They cannot be reconciled.

J. Reuben Clark, one of the foremost U.S. Constitutional lawyers of the Twentieth Century, had this to say about these opposing philosophies of government:

During the centuries, these two systems have had an almost deadly rivalry for the control of society, the Civil Law, and its fundamental concepts, being the instrument through which ambitious men of genius and selfishness have set up and maintained despotisms; the Common Law, with its basic principles, being the instrument through which men of equal genius, but with love of mankind burning in their souls, have established and preserved liberty and free institutions. (1)

What is Sovereignty?

In order to fully grasp the gulf between these two ideologies we will need to understand the meaning and importance of sovereignty.

In terms of a nation, sovereignty is the exclusive right to make and enforce its own laws, and to judge those who break them. Under Common Law the government only possesses this power because the people (the creator of government) have authorized it. Hence the people are sovereign. The government derives its just powers from the governed. Such a government, based on Common Law, cannot justly possess powers that do not first exist in the individual.

Sovereignty exists on many levels but ultimately resides in (and is never taken from) the people as private citizens. It is the people that are the masters, government the servant.

The three cornerstones of national sovereignty are political, military and economic independence.

Nationalism versus Internationalism

One of the finest explanations of nationalism I have ever read came from Herbert Hoover:

We must realize the vitality of the great spiritual force which we call nationalism. The fuzzy-minded intellectuals have sought to brand nationalism as a sin against mankind. They seem to think that infamy is attached to the word '‘nationalist.' But that force cannot be obscured by denunciation of it as greed or selfishness – as it sometimes is. The spirit of nationalism springs from the deepest of human emotions. It rises from the yearning of men to be free of foreign domination, to govern themselves. It springs from a thousand rills of race, of history, of sacrifice and pride in national achievement. (2)

Although referring to the United States, these words from Ezra Taft Benson, Secretary of Agriculture under Eisenhower, are both insightful and to-the-point:

There is one and only one legitimate goal of United States foreign policy. It is a narrow goal, a nationalistic goal: the preservation of our national independence. (3)

Today the foreign departments of all the major governments of the world seem to be much at odds with Benson´s belief. Indeed, the very opposite. In a time when history repeats itself and there is again a centralist movement towards the few governing the many, we must ask ourselves if this is wise? What does history teach us? How does it measure up to tried and true principle? Does it make sense in light of self-evident truths and good old common sense?

One of the reasons why some support internationalism is because of a Utopian or (what they suppose to be) a religious ideal. Ezra Taft Benson put straight those with such ideas in no uncertain language:

We must put off our rose-colored glasses, quit repeating those soothing words but entirely false statements about world unity and brotherhood, and look at the world as it is, not as we would like it to become…We would be committing national suicide to surrender any of our independence, and chain ourselves to other nations in such a sick and turbulent world. (4)

To those who - and there are many - think that changes in the world somehow change the rules of human nature and government, Benson says:

The world is smaller, you say? True, it is, but if one finds himself locked in a house with maniacs, thieves and murderers – even a small house – he does not increase his chances of survival by entering into alliances with his potential attackers and becoming dependent upon them for protection to the point where he is unable to defend himself. Perhaps the analogy between nations and maniacs is a little strong for some to accept. But if we put aside our squeamishness over strong language, and look hard at the real world in which we live, the analogy is quite sound in all but the rarest exceptions. (5)

In conclusion to this section, here are the problems with Internationalism:

  • The Prime Minister (or any other) is not authorized under law to act within a foreign political organization or yield sovereignty (that is treason). He is the Prime Minister of the UK
  • Centralizing power from the hands of many into the hands of a few goes against the most basic tenets of wisdom and all the lessons of history; for it only makes it easier for evil men to gain control
  • Political agreements do not change the nature of people (and thus nations). Nations become more united and less given to war only through free, mutual and natural relationships. In other words, political agreements play no part except as a danger to stirring up contention by employing coercion rather than non-political persuasion
  • Our first love and responsibility is toward our own nation, as with our family before other families. To not love our own country first will not engender a genuine love for all other countries
  • Centralizing power will diminish individual liberty; the powers of a just and free government should reside with the people mainly, with a few powers delegated to local governments and even less to the central government

A Brief History of Civil and Common Law

As far as modern times are concerned, Civil Law originated chiefly from the Roman Empire.(6) For this reason it is sometimes called Roman Law. This philosophy spread over continental Europe (7) and, in the Eighteenth Century, the Civil Law climaxed in what is now known as the Reign of Terror; this gave rise to yet another name for this philosophy and its associated judicial law: Code Napoleon or the Napoleonic Code. Today, borne of its past and present geographical sway, Civil Law is also known as European Law.

Common Law has its roots in antiquity. Some believe it to have originated from the divine law of statutes and judgments given to the Israelites by Moses. Whatever its origins, it was brought across Europe and to Britain by the Anglo-Saxons. It was a law common to all those peoples and hence became known as Anglo-Saxon Common Law. In Europe Civil law was the legacy of the later Roman Empire, but England remained free of this influence and thus the Anglo-Saxon Common Law began to be called English Common Law.

English Common Law was seriously compromised during the Norman Conquest which brought over the European Civil Law and imposed that system on Britain under the name of Feudalism. However, after long and bloody centuries, rights and freedoms were gradually won back and restored. Perhaps the primary and most notable date of this period is AD 1215 when the Magna Carta was signed - a document that is still held to be binding today as a foundation of the British Constitution.(8)

The Framers of the Constitution of the United States drew heavily upon Common Law when drawing up that remarkable freedom document. William E. Gladstone (1809-98), the British Prime Minister, was so impressed with the US Constitution that he said it was "the most wonderful work ever struck off at a given time by the brain and purpose of man". American freedom owed its foundation to English Common Law.(9) Ireland, Malta, Australia, Canada and New Zealand also adopted (to some degree) the English Common Law in the founding of their own governments.

Habeas Corpus versus Corpus Juris

Habeas Corpus (Latin for "having the body") is a system of judicial laws or tenets rooted in Common Law and thus based on natural rights and justice. Corpus Juris (Latin for "body of laws") is a system of judicial laws or tenets rooted in Civil Law and thus based on privilege and the whims of rulers. The following table contrasts the two systems. I have added elaborative notes in the first column in an attempt to highlight the importance of each point and its relationship and/or affect upon natural rights.

Table 1.0 Habeas Corpus versus Corpus Juris

HABEAS CORPUS (UK/US system)

CORPUS JURIS (European system)

No arrest without evidence – thus the citizen is free from harassment by the police and other government officials

Can be arrested without evidence

No holding of suspects for more than a fixed and very limited time unless charges presented in open court – this prevents governments from violating the liberty of citizens by unduly detaining them or holding them for reasons other than criminal

Can be held indefinitely

Right to face your accuser and see evidence – anonymity of accusers would mean the government could fabricate testimonies; accusers (or witnesses) should be known so that they can be held accountable; the accused has no come back where this is not so. Evidence must be known to the accused or else government again could fabricate the same and give the accused no way to prove it false

Accuser may be anonymous; no right for accused to see evidence

Right to trial by jury of one’s peers – under Common Law the really important matters are reserved to the people. It is the common people who act with the judge to provide a check on the judge (otherwise the judge acts as judge and jury which is the concentration of powers and the very definition of tyranny). The people (peers) are sovereign and must make the final decision. Further, it is also the right under Common Law for the jury to first judge the law the accused is alleged to have broken. This provides a check on the legislature, and allows the people to cast down corrupt laws. Further, professional judges (as opposed to lay magistrates) are not independent of the government and invariably enforce the will of the government – there is thus no check on the government and it would make, judge, and enforce its own laws however it pleased

Tried by professional judge(s) (‘Inquisitorial’ model)

Right to an open court – a defendant must have the right to public witnesses in a trial or else government can do things illegal in secret and can bribe those who it knows will attend. Public and free access to a trial thus helps defend the defendant against miscarriages of justice

Closed court

Presumption of innocence (innocent until proven guilty) – Common Law always gives the benefit of doubt in favour of freedom. Unlike Corpus Juris it does not treat everyone like a potential criminal. This is perhaps the most important tenet, for with such an attitude of non-judgement many Corpus Juris laws would not have come into existence in the first place

Held to be guilty until proven innocent

Protection against double jeopardy (cannot be tried more than once for the same criminal offence) – Clearly this right protects the defendant from being repeatedly tried until he is found guilty

Can be subjected to repeated trials on the same charges until found guilty

Burden of proof on prosecutor (it is up to the prosecutor to prove you are guilty) This is an integral part of the right to presumption of innocence (see above). A part of the right to free speech is to remain silent. Under Common Law there is no requirement or force used on the defendant to testify against himself. In a very real sense it is the charges themselves that are primarily on trial and the integrity of those who have brought them. If the burden was on the defendant to prove himself innocent many accusations brought by enemies (knowing the burden would not be on them) could be brought to bear, and the defendant would be continually oppressed with the task of defending himself with eventually no recourse to the resources necessary to clear his name

Burden of proof on defendant (you are presumed guilty and must prove your innocence)

It is hoped from the explanations above, and self-evident truth, that the reader will see that Habeas Corpus is founded in the liberty of the individual and Corpus Juris on the destruction of the same.

Structure of the European Union

With an understanding of what we have so far discussed, let us turn our minds to the European Union and look at how it measures up against the standards of freedom and rights under Common Law.

Firstly, as few understand it, we will look at the structure of the EU and then at more specific laws and proposals.

Presidency – this is largely symbolic in nature

European Commission – Unelected body consisting of Commissioners. Britain has 2. This is an extremely powerful body that makes EU law.

European Council – Extremely powerful. Meets in total secrecy. Its deliberations are seldom published and when they are it is only after they have been implemented. Comprises the leaders of the member states and their foreign secretaries.

Council of Ministers – This has the role of developing the EU. It consists of ministers from the member states, which minister attends depends upon the subject being discussed. Due to Qualified Majority Voting it is very difficult for Britain to stop anything it disagrees with.

European Parliament – this is a part of the EU Government which serves the purpose of creating an appearance of democracy. In reality the EP has very little influence. It does not pass laws, only resolutions and the manner in which it does so is far from just. Its members are called MEPs (Ministers of the European Parliament). It acts more like a discussion group though the EU has no obligation to follow its recommendations. Although it ratifies the Commission´s laws, in reality it is quite powerless and all the Commission´s laws are passed. MEPs are often confused and misled. Votes go through before they have time to be discussed and all those not in attendance are considered to be voting for the law by default!

THE EU AND COMMON LAW

The Right of Habeas Corpus

The EU is based on Civil Law and a Corpus Juris judicial system. It is in every instance listed in table 1.0 above an exact opposite of the traditional British System. The European system is simply not acceptable to anyone who loves freedom under law.

Almost unbelievably even more threats to our liberties exist: the agents of the EU government cannot be prosecuted. All those who work for the EU have a life time´s immunity from prosecution. The buildings, records and files of the EU cannot be searched. They are above the law.

One of the most important principles of a free and just government is what is known as ‘checks and balances’ – this structures governmental powers in such a way as to make it impossible for any individual or faction to gain overall control (i.e. having the power to make, enforce and judge law). A portion of this principle can be seen in the concept of a warrant for arrest. When the police (a part of the executive branch of government) want to arrest someone they must go to a judge and receive a warrant to do so. This means they need to convince the judge that they have a reasonable cause to make an arrest. The judge, hopefully independent of the executive as a member of the independent judicial branch of government, will have to agree before the arrest is issued. The legislative branch has already been involved in the making of the law which is at issue of having been broken. Ultimately, the people (as the sovereign power) should make the decision as to the applicability, merit or lawfulness of the law if the case comes to trial, and make the final decision as to the sentence of the defendant.

The EU has effectively dismantled this important check on government tyranny and at a European level to boot. New extradition procedures empower the EU with the "European Arrest Warrant" which strips the British Government of doing anything to stop European officers from coming into the country and taking whomsoever they want away for incarceration. They do not even need to possess the warrant. There does not even need to be a warrant! The British Government will be powerless to stop them (as with all EU laws).

Right to Own and Control Property

In his classic and inspired book, The Law, Bastiat states:

Life, faculties, production – in other words, individuality, liberty, property – this is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation, and are superior to it…

Under Common Law depriving people of their property can only be justly effected as a punishment for a criminal offence wherein the offender has been found guilty of seeking to illegally deprive, or actually depriving, another of his property, life (person) or liberty.

Indeed, governments are set up to protect property rights in the first place. The right to own and control property precedes and is superior to government. Governments that unjustly violate property rights are ignoring one of the prime purposes for their existence in the first place.

So what is the EU´s take on the right to own and control property?

From the European Convention of Human Rights we find that "no one shall be deprived of his possessions except in the public interest" (The Human Rights Act 1998, incorporated within British law, Protocol 1, Article 1).

And the Charter of Fundamental Rights (Article 52) allows the EU to limit rights "where necessary" in the "general interest" of the EU. It is the European Court that will decide what is both "necessary" and what exactly constitutes the "general interest".

There is no such person as a "public interest"; what this means is that the EU Government will deprive people of possessions when they so choose – for they will decide what the public interest is. It will be completely arbitrary.

Right to Free Speech (and to criticize the EU)

The European Court of Justice has ruled that it may lawfully suppress political criticism of its institutions and leading figures; that dissent can be restricted to "protect the rights of others" and punish those who "damaged the institution´s image and reputation".

The Advocate-General of that Court gave a legal opinion (in case C-274/99) that criticism of the EU was akin to blasphemy. Punishing someone for allegedly criticizing the EU, whether such allegations were proven or not, were (said he) not an infringement of free speech.

Right to be Left Alone

Europol, the new European Police force, is not accountable to an elected body. It answers to a committee formed by the Council of Ministers. It has a much wider function than fighting crime, being possessed of the ability to store information on a central database on anyone (criminal or not), including a record of an individual’s political and religious beliefs and activities.

Historical precedence has shown that ID cards and other ways of recording personal information have always been abused – if not by the government that established it, then by a successor. Anonymity is an important part of the right to be left alone. Contrary to popular belief information-storing and ID cards do not decrease crime, they serve only to control and impede people in their rights and liberty.(10)

Common Law, Constitutions and Governments: Is The EU Legal in Britain?

The rights affirmed in the Magna Carta will be null and void if Britain forms a political union with the EU. The Magna Carta ensures that these rights (including presumption of innocence and the right to trial by jury) should be possessed "fully and completely, for themselves and their heirs from us and our heirs, in all matters and in all places for ever." To enter the EU is to act in opposition to the British Constitution.

This document is the foundation of our Constitution and it cannot be broken (11) by Parliament. It is a covenant between the Constitutional Head (the Sovereign monarch) and the subjects. Common Law and this covenant pre-date Parliament and are not subject to abolition as the Common Law is not statute law (Acts of Parliaments are statue laws and should only give expression to Common Law, not suppress it).

Let’s put this principle another way because it is vital we understand it if we are to avoid confusion and deceit by unscrupulous political rulers, bodies and movements…

The Common Law represents the natural rights and sovereignty of citizens, these pre-date and are superior to both constitutions and governments.

Just constitutions are based on Common Law whereby they affirm by declaration the natural rights and freedoms of man. Constitutions also establish a structure for government and a framework in which government may fulfil its responsibility and purpose (namely to protect the Common Law rights of the governed). Governments are therefore inferior to constitutions and Common Law, gaining their authority from them.

Though the people of Britain and Monarch acting in agreement may change the Constitution, the Government may not. Government exists only to give expression to those rights affirmed in a constitution. Its duty is thus to deal with procedural and not substantive law (i.e. it cannot abolish or create rights).

From the above, it is very evident that those seeking to bring Britain into political union with Europe, unwittingly or not, may well be committing acts which are both illegal and treasonable.

Summary

Britain, in stark contrast to Europe, has had a long tradition of liberty of the individual. Everything Common Law and Habeas Corpus stands for, everything patriots have ever fought for, and everything freemen have always loved and dreamed of, is now under threat of extinction. Will Britain remain a free nation? That is what hangs in the balance. With the EU Constitution on the agenda in 2004, this year may well be our last chance to reclaim our freedom.


End Notes

1. Stand Fast By Our Constitution

2. As quoted by Eugene W. Castle in Billions, Blunders and Baloney, p. 259 (as referenced by Ezra Taft Benson in his address, United States Foreign Policy given at the Farm Bureau Banquet in Preston, Idaho, June 21st 1968).

3. Ezra Taft Benson, United States Foreign Policy given at the Farm Bureau Banquet in Preston, Idaho, June 21st 1968

4. Ibid

5. Ibid

6. In AD 438 the Roman Senate rubber-stamped the Theodosian Code. This code of laws was created by a group of jurists appointed by both the Eastern Roman Emperor (Theodosius II) and the Western Roman Emperor (Valentinian III). J. Reuben Clark said "[These laws] had provisions covering such so-called modern concepts…as price fixing, black markets, excessive taxation, socialized medicine [a national health service], conscription of labor, anti-semitism, inflation, corruption in government bureaus, the relationship between Church and State – all phrases familiar to our ears. Under these laws the entire population was organized as in one vast army. All, including the highest officials, were strictly classified, and even the least had a station. In substance this meant that everyone did what he was told, and did not act without permission. There was a great body of secret police to report disobedience; there was a ‘special’ secret police appointed to watch the ordinary secret police. These laws were framed to provide security. We of today have heard the same kind of security talk. But, in fact, all this bred not security, but scarcity of grain, of materials, of men. The mere making of laws, even in an absolute despotism, does not change the great laws of nature and economics – neither then nor now, for there can be no permanent stability where men are not free. In fewer than forty years from the issuance of the Theodosian Code the Empire of the West fell, notwithstanding the operation, under complete autocratic powers, of economic devices enacted to promote the welfare of the people and to preserve the empire; some of these devices were the same ones that we have been told will rebuild our economic structure and preserve our free institutions. These devices failed with Rome; they will ultimately fail with us." (Stand Fast By Our Constitution, Salt Lake City: Deseret Book Company, pp. 140-141).

7. Not many decades after the Fall of the Western Roman Empire the Byzantine (Eastern Roman Empire) under Emperor Justinian established a new set of laws called the Justinian Code. This set of laws became law throughout all the Eastern Empire in AD 529. When the Empire fell in AD 1453 the philosophy spread west across all Europe as the Byzantines fled the Moslems. Thus the Justinian Code became the system of all Europe. Britain, however, retained the Common Law until its later struggles with the Normans. It was said that the laws of the Justinian Code, a Corpus Juris system, were so many that they filled 2000 books (around 3 million verses). Whereas the absolute power of the ruler was implicit in the Theodosian Code, it was boldly stated in the Justinian Code.

8. "…men in our kingdom shall have and hold all the aforesaid liberties, rights and concessions well and peacefully, freely and quietly, fully and completely, for themselves and their heirs from us and our heirs, in all matters and in all places for ever." (Magna Carta, AD 1215). Those rights include the right to due process of law, the right to trial by jury, and the right to be presumed innocent until proven guilty.

9. "Jefferson’s great ambition at that time was to promote a renaissance of Anglo-Saxon primitive institutions on the new continent. Thus presented, the American Revolution was nothing but the reclamation of the Anglo-Saxon birthright..." (Gilbert Chinard, Thomas Jefferson: The Apostle of Americanism, 2nd ed. Rev. [Ann Arbor, Mich.: The University of Michigan Press, 1975], pp. 86). It is interesting to note that the members of the committee set up to design the Seal of the United States (Thomas Jefferson, John Adams, and Benjamin Franklin) originally intended one side of the seal to show the Children of Israel in the wilderness and the other side to show Hengist and Horsa (according to tradition the first Anglo-Saxons in England). These ideas proved too detailed for a small seal and a simpler design was agreed upon. The Founders were well acquainted with Common Law and that both the Israelites and Anglo-Saxons were governed by it.

10. # For an excellent argument against ID cards see Sean Gabb’s pamphlet, Identity Cards: Some Brief Objections

11. See p. 5, Defence of the Realm.

About the Author

D. Andrews is a writer and publisher who lives in England, loves his country and is deeply concerned about the decline of freedom in his own land and the rest of the world. Please feel free to distribute this article but do not alter (except for formatting) without permission. Version January 2004.

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