Law of the Land
When Captain Cook set sail for the explorative voyage to discover Australia, the law of the English Crown was upon his vessel was known as the Vice-Admiralty, its courts are established for the then king’s possessions beyond the seas, with jurisdiction over all maritime causes, including to those relating to prize, prize law and booty. Prize law is a system of laws and rules applicable to the capture of prizes’ at a high sea. The consideration form of a prize is a vessel or cargo belonging to belligerent powers, apprehended or forcibly captured at sea by a war vessel, and claimed as enemies property, and therefore liable to appropriation and condemnation under the laws of war. The term booty is for the capture of personal property by a public enemy on the land, as the prize is for the capture of a sea. After the booty has been in complete possession from the enemy for twenty-four hours, it becomes absolutely his. The right of the booty for the belonging to the sovereign is sometimes transferred to the soldiers to encourage them. Captain Cook’s vessel was called the Endeavour. The term vessel is not limited to physical ships engaged in commerce. All names of vessels are designated in all-capital-letters by Vice-Admiralty law. Whenever you appear in any public forum, it is always via your straw man, all-capital-letters TRADE-NAME, as the vessel. When you enter a law court as a man/woman, you are actually “sailing your vessel” into its jurisdiction. If your vessel is not registered on the high seas in time of war, it is presumed/assumed to be a pirate vessel, to be confiscated and investigated (such was the plight of law applied to the aboriginals - and still is). If the vessel is registered, the exact issue is for which public entity is it registered by. In times of war (now), neutral vessels (TRADE-NAMES) require passports to move around, to offer the evidence of nationalism. Initially, the passport was called a ‘pass’, ‘sea pass’, sea letter’, or ‘sea brief’, which offered a safe conduct of travel from one country to another without arrest or detention on account of the war. Today they are designed as a driver’s license.
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Such was the authority of law upon Captain Cook’s shoulders as he sailed the vessel Endeavour into Botany Bay. When he landed and placed the English Union Jack flag on the shores of Botany Bay, the twelve-mile radius around the flag became designated as a Port. The laws of the Vice-Admiralty became adjudicated within the walls of the Magistrate courts, for the emphasis to enforce a system of maritime law which particularly relates to commerce and navigation, and for the business transacted at sea. The Admiralty/Magistrates’ law courts within the territory of a Port, reigns it principles of natural justice to the settlement of controversies through the laws of Equity. Equity is a system of jurisprudence or a body of doctrines and rules developed, to serve, supplement and remedy the limitations and the inflexibility of the Common law. The English Crown had established a High Court of Chancery for the purpose of fairness in cases where Common law would give no or inadequate addresses. Equity law through the Chancery in its true practice suffers not a right without a remedy, for its essence is to derive a means to achieve a lawful result when legal procedures become inadequate. Today, Equity is much more insidious because it is now founded entirely on the “consciousness of the court”, the esquire’s representing the laws of the Crown have a lot of room to play for self gain enterprises.
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Equity is a term which in its most general sense means equality or justice; in its most technical sense it means a system of law or a body of connected legal principles, which have superseded or supplemented the Common law on the ground of their intrinsic superiority. It is the foundation behind the ideas of Positive law, at least in progressive societies, which is constantly tending to fall behind public opinion, and the expedients adopted for bringing it into harmony therewith are three, viz, legal fiction, equity and statutory legislation. Equity here is defined to mean "Anybody of rules existing by the side of the original Civil law, founded on distinct principles, and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles." The source of Equity derives from the Roman fertile theory of natural law common to all nations which are influenced by a stoical philosophy for its development. In English jurisdiction, the Lord High Chancellor holds the office for adjudication over matters concerning equity, when complaints which were addressed to the King, praying for remedies beyond the reach of the Common law. Equity is a roguish thing! The conscience which guided the Esquire courts is not of the natural conscience of the man, but for the civil and political conscience of the judge. The tendency of equity to settle into an administration system of law is seen in the recognition of its limits - by the fact that it does not attempt in all cases to give a remedy when the rule of the Common law was contrary to its administrative justice by its internal tribunals. Cases of hardship, which the early Chancellors would certainly have relieved, were passed over by later judges, simply because no precedent could be found for their interference. Doctrines of the court ought to be settled and made as almost uniform as those of the Common law, where equity, like common law, profess to take its principles wholly from recorded decisions and statute law.
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Law makers ought to heed to such things and not to every particular case, for they could if necessary to leave the words of the law, and follow that of reason and justice required, and to that intent, equity is ordained, tempered and mitigate to the rigour of the Rule of Law." Though as Lord Ellesmere said: "The cause why there is a Chancery is for that men's actions are so divers and infinite that it is impossible to make any general law which shall aptly meet with every particular act and not fail in some circumstances." Modern equity does not profess to soften the rigour of the law, or to correct the errors into which it falls by reason of its generality.
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Over and above the authority delegated to the ordinary councils or courts, a reserve of judicial power was believed to reside in the King, which was invoked as of grace by the suitors who could not obtain relief from any inferior tribunal. To the Chancellor, as already the head of the judicial system, these petitions were referred, although he was not at first the only officer through whom the Crown’s prerogative of grace was administered. When a case of prerogative was referred to the Chancellor he was required to grant such remedy as should be consonant to honesty, where conscience and equity were said to be the fundamental principles of the court. The early chancellors were ecclesiastics, and under their influence not only moral principles where regarded by the Common law, but also the equitable principles of the Roman law when introduced into English jurisprudence.
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The land beyond the Port was termed as Parish lands. Its jurisdiction fell upon the Church of England’s courts of Ecclesiastical law. The Church held sway over the Law of the Land with the authority to curates the souls for the King’s Empire. For the Church to met the unknown inhabitants of the land of Australia. Common law was for its authority. Common law is that which derives its force and authority from the universal consent and immemorial practice of the people. It has never received the sanctions of the legislative, or by an expressed act which is the criterion, by which it is distinguished from the statute law. It has never been reduced to writing; by this expression however, it is not merely oral, or communicated from former ages to the present solely by word of mouth, but that the evidence of our Common law is contained in our books and reports, and depends on the general practice of judicial applications of our courts. Such is the bodied knowledge of the Law of the Land for the Church, to meet unknown provinces of the unexplored/navigated lands to further the Empire of the Crown upon. True Common law is completely independent of all governmental involvement. All governments are variants of Roman Civil law, the laws of kings, princes and rulers. They have their enforced jurisdictions within the territory of a Port. Common law is based on transmitted established principles, than upon legislative enactments, statutes, statutory laws and codes.
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Australia legislation is but statutory corporations to the Crown. They are only by laws! Local authorities are not allowed to enact by-laws, which are unreasonable and oppressive, nor delegate their law making powers without expressed statutory authority. Individual liberty of Common law right is nullified by equity administrative activities of modern governments, who want to regulate individual liberty into an action to serve its own self-evident truths, being the politics of the time, acted as legislation of the philosophical outlook of the day. The socialisation of the economic activities of people have restricted individual rights, by conferment of power upon government organs. The provision of state social services and regulation of economic conditions empowers the rule of law as supremacy through the parliament. As a matter of such provisional law, equity based administration agencies may be enlarged. Constitution law offers its sphere of rule to guard the liberty of person and of speech, to mean as the rule of the Common law. It is in this sphere, the individual is free. Successful administration depend not upon the illegal use of power, but for the exercise of discretion by the administrator, offered by a wide arbitrary power and a kind of statutory prerogative, so as to perform his activities for the public weal or oppression of the individual. But when the feeling of impotence amongst objectors are called to observe the provision enacted by an act of parliament, that arise these feelings that ministerial legislation is uncontrolled, that does not represent the general will of the country, it engenders disrespect for the law which may well ripen into an act of disobedience. Public concern is of public law by its proper function to expel what are the legal rules, recognised by the courts, which are to be found in several parts of the constitution.
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Habeas Corpus of Common law rights protects against a regulated parliament judicial character, where one is tied to the obedience to the legal courts. No civil or criminal court can proceed against Habeas Corpus. No single branch of legislation can by any assertion of its alleged privileges, alter, suspend, or supersede any known law of the land. Furthermore, to bar the resort of any man to any remedy, or his exercise and enjoyment of any right, by that law established. Judicial legislation is subordinate to the assent and subject to the supervision of parliament. There are three limitations of the supervision of parliament law;
· 1/ Parliament cannot make law opposed to the dictates of private or public morality.
· 2/ Prerogatives of the Crown and of its sovereignty power being superior to the ordinary laws of the land are beyond parliament.
· 3/ The use of language within a parliament act by its arrogant sanctity, thinking that it cannot be touched by another parliament is a limitation.
· Indeed, it can offer the opportunity to create an act of spiritual union.
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Sovereignty is power of law making unrestricted by any legal limit. Crown sovereignty is constitutional base Common law rights for its subjects of freedom of person, speech, and property, being determined by the government in its w/holistic body. Furthermore, by belonging to the constitution, it ensures that the will of the electors shall by regular means always in the end assert itself as the predominant influence in the country. This is political, not legal fact!
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The legal notion of the Common law is the most legal system of the law in the world!!! The rule or supremacy law is a distinguish character of English constitutional institutions, by its habit of self government, the love of order, respect of justice and the legal turn of the mind. Law rules men not by caprice. No man is punishable or is unlawfully made to suffer in body or goods except by a distinct breach of law established in courts. No man is above the law, but every man is subject to the ordinary laws of the realm and amenable to the jurisdiction of the ordinary tribunals, by what is official law for the ordinary citizen. The rights to personal liberty, right of public meeting are general principles of the constitution; exemplifying that it has not been made but has grown, by the fruits of contests carried in the courts on behalf of the rights of the individuals. It is a judge made constitution by judge made law! The constitution is a generalization of the rights to secure the individual, although they are suspended by being extraneous and independent to the ordinary course of law. The principle of individual freedom rights is capable of being taken away by ordinary laws, but it cannot be destroyed without a revolution in the institution and manners of the nation. The suspension of “Habeas Corpus” is suspending the constitutional guarantees - the right of the citizen is Habeas Corpus with his/her access to the rule of law that has three points of view...
1. Absolute supremacy of regular law opposed to arbitrary power discretion of authority on the part of the government.
2. Equality before the law, equal subjection of all classes to the ordinary Law of the Land administered by the ordinary law courts. (Administration law is post French idealism, being of affairs or disputes by government servants concerned beyond the sphere of civil courts to be dealt with less official bodies. This idea is utterly unknown to English law and is fundamentally inconsistent with our tradition and culture).