For some time now this humble blog has been graced with comments from the brilliant mind of TSL.
TSL's comments are almost always supported with evidential links which is one of the reasons reading them is so enlightening.
A couple of days ago I posted the movie UNGRIP
for you to look at and in it, around the 30 minute mark, the chap says "Of course, MC1215 was signed under duress, and is therefore invalid".
This is a regular rebuff (to me) when I state that I am in Lawful Rebellion. How, I am asked, can you be in LR when the Treaty was annulled within days of its' signing? I have always struggled with the answer. I stiffly maintained that Treaties need (at least) two parties to create them and only the same two parties can annul them. "Yes", the detractors say, "But King John only signed the thing at the point of a knife. A contract signed under duress cannot be valid".
I received an email from TSL in which it is explained to me that ALL
Treaties are signed under duress. And that is absolutely correct. Think about it this way: Treaties are signed (usually) after a war. In every war there are winners and losers. The winner gets to dictate the terms of the Treaty, and the loser never ever wants
to sign the Treaty. Can anyone tell me that the losers of any particular war signed the peace accords with a broad smile? Of course they didn't. They were under duress. It is a natural state for the losing half.
Having planted that seed, I now turn you over to TSL.
Grab a cuppa, and feast your eyes on this:
Prior to downloading Ungrip I saw your comment about the “30 minutes in” problem, and as I don’t necessarily wish to derail any comments that may turn up in respect of the film I thought I would drop you a line in respect of the bit you mention. (I haven't been back since so I imagine a few people may have mentioned some of the things below.)
You may have gathered from some of my comments that LR via Magna Carta is not something I have engaged in; as I have said there are a number of reasons for this which are distinct from any belief that it is or is not “the way”. In a recent comment I said that, to me at least, it can be argued to be a form of rescission but whether it is a valid one is unknown. Surely if it weren’t your affidavits would have been rebutted…?
We should always be careful not to cling to an idea to the bitter end, but I have seen the “duress” argument for Magna Carta's invalidity before and am not convinced that it stands. In fact I think one of my first utterances on your blog was along these lines.
As I see it the argument need not necessarily give you cause for concern for at least two reasons, and possibly more.
(If some of the following reads like a lecture I apologise, as it isn't meant to be...!)
1) King John had already broken the law
An argument can be made that King John was already acting unlawfully, as he had violated the older Charter of Liberties of Henry I by disrupting the King’s Peace in the first place (and there are several examples of how). Seen in this light the conflict with the Barons was them attempting to, in essence, “return” him to the laws that he himself was meant to uphold. As Henry said in the Charter, “I impose a strict peace upon my whole kingdom and command that it be maintained henceforth”.
The Charter of Liberties bound the King to the law, so if he disrupts his own peace he would be breaking that law. The first line reads thus: “Know that by the mercy of God and the common counsel of the barons of the whole kingdom of England I have been crowned king of said kingdom…”
Is that not the King stating that he is such only because of “common counsel” from his barons? One could possibly make a bit of a leap, via a more modern phrase, and say that the King ruled by “consent of the governed” – or, at least, a tiny elite part of the governed ;-). And in exchange for the counsel of his barons he agreed to bind himself (and successors?) to the law and to give peace to the kingdom forever.
Therefore, Magna Carta would stand even if signed “under duress”.
The Charter of Liberties also contained a promise to uphold the common law (albeit with William the Conqueror's “additions”): “I restore to you the law of King Edward with those amendments introduced into it by my father with the advice of his barons.”
There is not much mentioned about the Charter of Liberties but a few people think it quite important and I vaguely remember Dean Clifford mentioning it once or twice, possibly in one of the radio interviews he's done.
2) Peace treaties are always signed “under duress”
I think anyone who starts looking into this stuff will soon agree that Magna Carta is a Treaty of Peace. Peace treaties have, historically, always been signed “under duress” by the defeated party. You will find an argument for every peace treaty known to man having been signed “under duress” by those on the losing side and to whom the terms bring a disadvantage. And this is eventually used as an excuse to abrogate it and start fighting again. On this basis Magna Carta stands – provided the parties to the treaty were “able” to assent to it.
Whether “to the victor, the spoils” is right or wrong is for each person to determine according to their own values. Some writings on treaties and duress:
“DURESS AND THE TREATY
“In German protests of inability to carry out the Treaty, and their echoes in liberal circles here, there frequently recurs the complaint that Germany signed the Treaty under duress – ‘at the point of a revolver,’ a German leader remarked in the Tageblatt a day or two ago - with the implication that therefore Germany is excused from any obligation to carry out her promises. This is the sort of poor excuse which is worse than none. Most of the treaties that ended wars have been signed under duress by the defeated party; in some of them even the victors yielded to the duress of long and wearisome negotiations in an uncomfortable climate. But it is rather novel to hear this advanced as an excuse for nullifying the Treaty.
“Germany signed the armistice of November, 1918, under duress. The Germans preferred to disarm and yield the Rhine provinces to the Allies rather than risk what might happen if they kept on fighting. They signed the armistice rather than go down in a bloody, ruinous and irrevocable defeat in the field. To escape the loss of life, and of what Germans regard as honor, which that defeat would have entailed, they abandoned all hope of continuing the war. The Treaty of Versailles was similarly signed under duress. Germany took that Treaty with all its unwelcome provisions - all the loss of territory, all the reparations payments which the Treaty imposed - rather than take her chance on a renewed war. That war would have been fought on German soil; Germany would have suffered as France had already suffered. The Germans signed the Treaty and promised to pay the indemnity in order to escape invasion and devastation. Relying on that promise, the Allies allowed them to escape invasion, and now they refuse to pay the indemnity.
“The Germans have already obtained their money's worth for the indemnity which they have not paid, and apparently do not intend to pay. If they refuse to carry out their part of the bargain, the French are absolved from the other side of the contract. If the Germans want to preserve the immunity which they gained by fighting the war on French soil, they will have to pay for it; and it is more ordinary justice if the French insist that the Germans must either pay up according to promise or take the consequences. Mr. Briand has just observed that France has a rendezvous with Germany on May
1. If the French, and the world at large, are to begin to believe that this rendezvous will impress the Germans only if it is kept in Unter den Linden, that is the fault of the Germans who have shown themselves insensible to any argument but force.” New York Times, 14th April 1921
(Germany also accepted the reparations payments “under duress”. Such acceptance being helpful for a few political parties in the early 1930s, of course.)
I suspect the bombings of Hiroshima and Nagasaki would count as the most extreme form of duress ever witnessed.
“Making Sense of Duress.
“A mugger catches you along in a dark alley and offers you a choice: Give him a hundred dollars or he kills you. You reply that your life is well worth the price, but unfortunately you are not carrying that much cash. He offers to take a check. When you get home, should you be free to stop payment? Should a contract made under duress be enforceable?
“The argument in favor of enforceability is that if the contract is not enforceable, the mugger will refuse your check - or accept it and then make sure you can't stop payment by killing you and cashing the check before news of your death reaches the bank. Seen from that perspective, it looks as though even a contract made under duress produces benefits for both parties and so should be enforceable. You prefer paying a hundred dollars to being killed, he prefers receiving a hundred dollars to killing you. Where's the problem?
“The problem is that making the contract enforceable makes offering people the choice between their money and their life a much more profitable business - most of us have more in our checking accounts than in our wallets. The gain from enforceability is a better chance, if you are mugged, to buy yourself free. It must be balanced against the higher probability of being mugged. It seems likely that the current legal rule, holding contracts made under duress unenforceable, is the efficient one.
“But that may not be true under all circumstances. A peace treaty is a contract made under duress - yet most of us think that a world where nations can sign peace treaties and be bound by them is better than a world where the victor must annihilate the vanquished before he can be sure the war is over. Similarly, on a smaller scale, for the transaction by which a prisoner of war gives his parole not to attempt to escape. Indeed, it used to be quite common for a prisoner to be released on parole and permitted to go home - having promised not to re-join his army until he had been exchanged for a prisoner of equal rank from the other side. The parole system made war somewhat less costly for both sides and so presumably increased the amount of war somewhat, but it seems unlikely that the effect was very great - and it substantially decreased the cost born by captive and captor.” If you would like a caveat for that viewpoint (I always do), it was written by David D. Friedman who, although known for being an anarcho-capitalist with libertarian leanings, happens to be the son of Milton Friedman. Not that that necessarily means anything…
In law, it is always the intent that is the key. This is true even of statute, for which it is recommended that the intent of legislators be taken as the most important aspect, and not necessarily the form.
Some maxims of law on intent:
• Animus ad se omne jus ducit – “It is to the intention that all law applies”
• Animus moninis est anima scripti – “The intention of the party is the soul of the instrument”
• In conventibus contrahensium voluntatem potius quam verba spectari placuit – “In the agreements of the contracting parties, the rule is to regard the intention rather than the words”
• Intentio caeca, mala – “A hidden intention is bad”
What was John's intent? Acceptance of defeat, to avoid a skewering, or to play for time? What was the intent of the Barons? To champion the liberties of England and uphold the common law in the face of the assault from civil law, or to humble a king and enhance their own position?
We are told by historians that the signing took place under duress, but there is no way to ascertain the veracity of this beyond all doubt unless one can invent a time machine. 800 years separates now from then. Historians draw upon sources (chief amongst which being Innocent III who annulled it on the basis of duress) and the reliability of these is the most important aspect. Tomorrow they may uncover a completely different source that tells the story wholly differently.
How are we to know that John did not sign it under pretence of duress, in the knowledge that he could then use this to continue the conflict and, hopefully, end it in his favour? “Look what those nasty Barons did to me! If you don’t help me fight them your barons could do it to you as well…” Granted, that would involve him looking like a bit of a weakling at the annual Monarchs' Dine & Disco, but still...
Total supposition with no evidence, I admit… Or is it? We know the Charter was reissued several times (all minus Article 61, but that's another issue). John's successor, Henry III, reissued it and then spent much of the rest of his reign squabbling with the Barons over it.
Of the reissue, Sir Edward Coke writes the following (all spellings taken from the text):
“Soon after the making of this great charter, the young king by evill counsell fell into great mislike with it, which Hubert de Burgo, summus justicarius Angliae perceiving...yet meaning to make this a step to his ambition (which ever rideth without reines), perswaded and humored the king that he might avoid the charter of his father king John by duress, and his own great charta, and Charta de Foresta also…”
Coke is saying that Henry III was manipulated by the chief justiciar of the time into voiding his own Magna Carta, and by extension that of John as well as the Charter of the Forest, by claiming that it was signed under duress. This must logically lead one to assume that it was not actually signed under duress in the first place, although this obviously may not necessarily apply to 1215. The intent behind Henry III voiding the charter is not “throwing off” duress but is the result of the political infighting going on at the time. Coke says of the original: “…king John in the 17 yeare of his raigne had granted the like, which also was called Magna Charta…”
“Granted”, not “forced to sign at sword tip”.
Similarly, what was the intent of the barons? Some writers follow what I mentioned above – the barons, in wondering what they would do with their turbulent king, at some point uncovered the older Charter of Liberties and saw that under it the King stated, for example, that he a) ruled by “common counsel”, b) swore to uphold “the law of King Edward” and c) imposed peace upon the kingdom “henceforth”. On the basis of these came Magna Carta, with extra provision for ensuring that the king would be held to the treaty.
Yet a strong monarch makes for weak barons, and vice versa. Muzzling the king would enhance their own position. And throw into that the conflict between common law and civil law that had been going on since the Norman invasion...
On the same basis, one could also argue that the Coronation Charter was issued just so that Henry could get on the throne; there was no intent on his part to abide by it. As there was no equivalent to Article 61 he was fairly safe to ignore it once he was firmly on the throne.
If you ascertain the intent of the parties you uncover to what extent their agreement stands. Or something along those lines.
Well, there are two reasons why it is valid and one that needs looking into, at least... And it makes a change from talking about the difference between a treaty and a statute!
Contrary to what many say, history is always in a state of flux, whether or not that is the result of a larger plan on the part of others. The vast majority of historical events that we have in our records are the result of spin; Magna Carta's signing makes for a great story but its resonance and its influence over the last eight centuries was probably completely unexpected at the time. For centuries the Roman Empire was replete with stelae telling the story of the life of Augustus, the Res Gestae Divi Augusti, but the vast majority of that is fictitious and was deliberately used for propaganda. "At the age of nineteen, on my own responsibility and at my own expense, I raised an army, with which I successfully championed the liberty of the republic when it was oppressed by the tyranny of faction." Er, not quite... Similarly, the work of the “father of history”, Herodotus, contains numerous post eventum prophecies, designed for propagandist reasons so that rulers could both legitimise their rule and impress their majesty upon history after the upheaval that accompanied them taking power. Plus ça change, plus c'est la même chose...
Many writers have referred to the Leges Edwardi Confessoris as apocryphal, or badly written, or the result of later revisions, or for any variety of reasons that lead to them being an unreliable source. Wearing a post-eventum prophecy hat for a moment, one could make the argument that the Laws of King Edward were revised much later than when they were written with the intent so as to use them as a means of legitimising later things like the Coronation Charter, or even Magna Carta, on the basis that the latter documents upheld laws that were already in existence – “look, we've found this old parchment that just so happens to legitimise what we're trying to do...”
All we can say with certainty is that Magna Carta exists – which is probably sufficient for your purposes!
The film made a mention of the treaty of 1213 where John “signed” England over to Pope Innocent III, the intent being to illustrate that as this treaty was in effect (and possibly still is) that Magna Carta cannot be valid. I have also heard this argument before and it probably warrants further investigation, however the older Coronation Charter (if you take it on face value) would seem to trump this – by “signing over” England (even if one accepts for the moment that he had a lawful power/ability/authority so to do), along with everything else he was up to, John perturbed the King's Peace. Therefore 1213 becomes invalid ab initio. I suspect it is something a constitutional expert – a proper one, not those of the Establishment – would need to look at if they have not already done so.
Others have looked at the 1213 treaty as the creation of a trust between the two parties – those being the Pope and the King – which could only be broken by either party, or the heirs thereof. Magna Carta represents the barons coming in as a third party which would be unlawful, and on that basis it is invalid and irrelevant. For example:
Some of the “1213 school” say that John used a seal to approve Magna Carta because he was only the “tenant”, and could not sign as he was not the “owner”. Other more prevalent writings say that the seal was used because John was illiterate, which can be argued to be unlikely considering his parentage and other sources that refer to him having a large library. (Or, perhaps he merely liked the pictures...) The “mainstream” explanation of the seal is that this was done to make the document official, much in the same way as
documents are notarised today, and that John did actually sign Magna Carta.
Speaking of trusts, they do seem to be the thing to look into, as more people are saying. Dean Clifford’s work seems to explain this quite succinctly (and seems sufficiently kosher for the AntiTerrorist to refer to it) although the application of it is another question. In one of his radio interviews he muses that people in the UK have it easier because they are at “ground zero” in respect of the Corporation; I would argue that it is in fact harder over here for precisely that reason. He may have been referring to something else when he used this
phrase though. (I read somewhere that Clifford's material was based on or inspired by UCADIA.)
After watching the videos I tracked down one of the trust law books he mentions and they are a tad “involved”, shall we say. Whilst I don’t like to be accused of leeching off others I am looking forward to Bollixed’s guest post as he seems further down this road than some others.
Ironically it was looking at trusts and LLCs that got me into all this in the first place. Perhaps I should have stayed on them!
TSL, I cannot thank you enough for this. I count myself very lucky that I have you, and others like you, commenting here. I am as in the dark as the rest of you, and I learn as much, if not more, from the comments, as I learn from the original research.
As always, have at it in the comments.