J. Kersey, "The Freeman on the Land Movement"

[Hilfskreuzer Möwe]

I just spotted the following academic paper, and to be honest, I'm pretty excited:

• J. Kersey, "The Freeman on the Land Movement: Grass Roots Libertarianism in Action" (2010) 50 Legal Notes: http://www.libertarian.co.uk/lapubs/legan/legan050.htm

In brief, this paper is a report by Professor John Kersey of the European-American University that surveys the origin, principle beliefs and concepts, and social phenomena associated with the UK Freeman-on-the-Land movement. Professor Kersey is writing from a 'Libertarian' perspective.

My review of the paper and its conclusion is largely favorable, though I should note that I approach this principally from a Canadian context, and that I have the advantage of several years of more 'history' than Professor Kersey.

One defect is that Kersey is not as aware of the geographic progression of the Freeman concepts, and how these are of Canadian origin. He does not, for example, identify the writings of Mary-Elizabeth: Croft (in particularly How I Clobbered Every Bureaucratic Cash-Confiscatory Agency Known to Man) as a foundational document in the movement, and Robert-Arthur: Menard's principle early role in the disseminating those ideas. Kersey also does not appear to recognize that the persons promoting these ideas are motivated by profit and that Freeman materials are a commercial product.

I agree, on an equally non-scientific basis, with his conclusion that the UK phenomenon is very closely associated with economically marginal individuals, particularly those who face reductions in social support.

What I think is particularly useful is Kersey's attempt to distill out what Freemen believe. He identifies five principle concepts:

1. The common law of England and Wales is universally applicable to those people (natural persons) within that jurisdiction. A natural person is endowed with a number of inalienable, God-given rights. That natural person is referred to as a Freeman on the Land.

2. By contrast, civil or statute law, the majority of which is considerably more recent in origin, is not universally applicable but instead, because of its commercial basis (in the law of the sea), rests upon a contract between two parties, the first party being the state, and the second party being the legal fiction representing a given individual.

3. The instrument that is held to represent a given individual entering into such a contract with the state is a birth certificate.

4. The validity of such a contract is questionable because the contract as represented by a birth certificate is entered into between a minor (who cannot validly contract) and the state, and because consent is therefore assumed rather than established.

5. It follows that if the contract is deemed void, it may be possible to separate the natural person (common law) from the legal fiction (civil law). As a result, whereas the birth certificate (as a piece of paper) is evidence of the legal fiction contracting with the state, that birth certificate is not the same as the natural person represented by the living individual.

I think this is a very useful restatement of the alleged origin of the notorious 'strawman' and the dichotomy of "common law" vs. "statute".

Professor Kersey then proceeds to identify several mechanisms that Freemen believe allow one to 'detach' from the 'strawman':

... it is proposed by some that it is possible to obtain documentary evidence of this separation between natural person and legal fiction by completing and serving a series of sworn affidavits upon the Queen . The first of these provides, inter alia, that the Queen has been unlawfully and falsely induced to give unlawful effect to legislation that has violated and continues to violate the Common Law, with the implication that the security and safety of the individual under the laws that are his or her inalienable birthright (under Common Law) are now threatened without prospect of redress, and that unless the Queen should dismiss the House of Commons and provide redress, then he or she will withhold all allegiance and obedience to the Crown and its representatives. A forty day period is provided for the Queen to act in the manner proposed. On the assumption that she does not, a second affidavit to be delivered after the forty days confirms the statements of the first and declares the person concerned to be subject solely to the Common Law.

An alternative proposal on similar lines involves serving a sworn affidavit to the Prime Minister that establishes the position of the individual as a Freeman and invites the Prime Minister to respond in rebuttal of the points made. On this not being done, a notarized Notice of Fault and Opportunity to Cure is sent, followed in the event of further non-response by a notarized Notice of Default. This last default statement is held to be a "bona fide lawfully binding agreement/contract" between the individual and the government that can then be produced to other public authorities in evidence of the same.

As I am not very familiar with the UK variation on Freeman-on-the-Land belief I cannot comment with confidence on this previous statement, but if it is accurate, then the 'opting out' documentation in the UK has taken a markedly different direction than in Canada. I have never seen the first approach - every Canadian 'opt out' document I have encountered uses a simpler version of the second alternative. The "Notice of Fault and Opportunity to Cure" and "Notice of Default" documents are not, to the best of my knowledge, a feature of Canadian Freeman procedure. Instead it is at this point that Canadian Freemen introduce their "Fee Schedule".

If Kersey's review is accurate this offers an interesting opportunity to monitor whether UK Freeman-on-the-Land concepts then return to Canada via the appearance of these UK motifs.

Also interesting is Kersey's attempt to evaluate response to the Freeman-on-the-Land phenomenon. He notes the ongoing battle online led by disgruntled ex-Freemen and the alleged infiltration of pro-state 'shills'.

Kersey anticipates organized state and court response, and to date is generally wrong on that point.

Last, speaking from a Libertarian viewpoint Kersey concludes the Freeman-on-the-Land phenomenon is a positive development, if for no other reason because it demonstrates persons attempting to assert their individual rights.

Absent from this paper is an attempt to critically evaluate the legal concepts adopted and applied by the Freemen. This is fair given that subject appears to fall outside Kersey's area of academic expertise. Also absent is Kersey's awareness of the violent potential of the Freeman-on-the-Land phenomenon, which probably is a consequence, at least in part, of his not apparently being aware at all of the U.S. Sovereign Citizen movement.

All that said, I think this kind of analysis and writing by academics is welcome, and I am particularly pleased by Professor Kersey's attempts to distill out the scheme being applied by the Freeman movement. To date I am quite dissatisfied with the limited commentary by Canadian academics on OPCA litigation and concepts, but that is the subject for a separate post at a later date.

As far as I could tell, Kersey's paper has not been cited by any other academic source, and has had minimal distribution online. That is unfortunate.

SMS Möwe

[Chados]

An interesting find, Möwe.

I really think that it is outside the U.S. where the movement is actually and critically studied. In the U.S., its birthplace, we just dismiss them as a bunch of whackos and ignore their work, unless they're threatening someone.

[Backo]

I’ve been lurking for a little while but this is my first post, please be gentle.

I would question a few of the assertions in the article. Firstly, in the author’s statement about the five general principles, the third principle doesn’t quite gel with the material I’ve read on the freeman movement. The fourth and fifth principles follow on with the assumption that the contract between the state and natural person is created by the birth certificate.

I would suggest that from my, admittedly slim readings, the better view of the general principles would be, from principle three,:

3. The state, by issuing a birth certificate, creates a strawman which is liable to the government under statute.
4. The state then attempts to deceive the freeman into accepting responsibility for the strawman’s statutory obligations by way of contract.
5. By either refusing to accept the strawman’s obligations, or by giving notice of the severance of the obligation of the natural person in respect of the freeman, the freeman can free himself of any statutorily imposed obligations and is only governed by the common law.

Thoughts?

The author also states that:

Those promoting the Freeman philosophy are not so far as can be ascertained legally trained or qualified, and at the present time there is an interesting absence of commentary from solicitors or barristers for whom this subject should be of interest at least on a purely academic level. …. This may suggest that the raising of these issues has implications for the relationship between the state and the legal profession, which has become explicitly closer in recent years.

It is unsurprising that solicitors and barristers are not commenting on this movement. I have on a number of different sites seen statements to the effect that a solicitor’s duty to the court means that, via the obligatory reference to Black’s Dictionary (why do these people think that dictionaries are repositories of law?), engaging a solicitor makes you a ward of the state. Therefore, the guru’s supporters are actively directed away from the profession. If solicitors aren’t being engaged, they are unlikely to spend time familiarising themselves with the concepts, particularly as there are no success stories to analyse.

The author’s statement that the profession is becoming closer to the government is referenced to two sections of the previous UK solicitor’s regulation authority rules. Those sections discuss a solicitor’s obligation to disclose confidential material pursuant to statutes which abrogate client privilege. It is a long bow to suggest that the profession is becoming explicitly closer to government as a result of legislation forcing solicitors to disclose information which the common law otherwise protects.

I do however agree with his comment that:

One aspect which is central to all of this is that seeking to use the courts, which are instruments of the state, to act against the interests of the state in any challenge to statute law is in essence to misunderstand the nature of state power.

This would sit alongside judicial comments on the irony of applicants seeking appellate court assistance to overturn lower court decisions on the basis that neither court has jurisdiction over them.

[Hilfskreuzer Möwe]

I’ve been lurking for a little while but this is my first post, please be gentle.

Welcome to the forum Backo! I've not been active long here myself, and though the natives have their eccentricities, I think that must simply be expected as prolonged exposure to The Stupid is apt to have some lingering effects.

I would suggest that from my, admittedly slim readings, the better view of the general principles would be, from principle three,:

3. The state, by issuing a birth certificate, creates a strawman which is liable to the government under statute.
4. The state then attempts to deceive the freeman into accepting responsibility for the strawman’s statutory obligations by way of contract.
5. By either refusing to accept the strawman’s obligations, or by giving notice of the severance of the obligation of the natural person in respect of the freeman, the freeman can free himself of any statutorily imposed obligations and is only governed by the common law.

I prefer your formulae to the ones in the Kersey article. Coincidentally, a little while ago I had been trying to dissect out theoretical differences between Sovereign and Freeman concept sets, and identified three sub-memes, which have, by chance, the same general numbering as the Kersey list and your own:

3. An individual has two aspects: a physical “flesh and blood” aspect and a non-corporeal aspect that for convenience I will call a “Strawman”. The Strawman is ‘attached’ to a flesh and blood person by a birth certificate, which is a kind of contract with the government/corporation. (Alternatively, a social insurance number has the same role.)

4. By default, an individual is subject to legislation as the Strawman acts as a link between the individual and government-made legislation. This linkage is via contract law.

5. An individual can sever the Strawman link by voluntarily disavowing the Strawman and associated contracts. Severance is achieved by sending a document demanding that step to government actors. Most commonly this document is named a “Notice of Understanding and Intent, and Claim of Right”.

The third element is comparable in all three versions. It's point five where the variants really diverge:

• Kersey - as the Freeman is a minor, the strawman contract was always void
  
  Banko - the strawman contract can be repudiated or terminated
  
  Möwe - the strawman contract can be terminated

I think review of the relevant case law makes apparent that step five actually has two broader variations:

• a) the strawman to Freeman contract can be ended leaving the freeman 'free', vs.
  
  b) the strawman can be seized by the Freeman, breaking the contract bond between the state and strawman, leaving a double/split entity.

This latter alternative is discussed in the Meads v. Meads, 2012 ABQB 571 decision at paras. 428-439. My hunch is that the 'b' alternative is more typical of Sovereign Citizen thinking, as it is a component of the A4V process. Presumably that would make the 'a' variant a subsequent Freeman-on-the-Land adaptation from the Sovereign Citizen meme set.

It is unsurprising that solicitors and barristers are not commenting on this movement. I have on a number of different sites seen statements to the effect that a solicitor’s duty to the court means that, via the obligatory reference to Black’s Dictionary (why do these people think that dictionaries are repositories of law?), engaging a solicitor makes you a ward of the state. Therefore, the guru’s supporters are actively directed away from the profession. If solicitors aren’t being engaged, they are unlikely to spend time familiarising themselves with the concepts, particularly as there are no success stories to analyse.

There is an education by accretion aspect to this. In Canada when OPCA litigants first appeared they were usually misidentified as persons with mental illness. They were sufficiently scattered and infrequent that the courts had a difficult time deciphering that there was something larger at play. Since there is no point trying to reason with an idiosyncratic person with mental illness, the lawyers (and courts) moved on to the next case.

But with understanding of the phenomenon has come more direct response. There is a very interesting example in another thread I started today: viewtopic.php?f=47&t=9382

I don't have the patience to do that, so I can only applaud someone with the appropriate knowledge who has made an effort of this kind to communicate with a 'challenging' community.

The author’s statement that the profession is becoming closer to the government is referenced to two sections of the previous UK solicitor’s regulation authority rules. Those sections discuss a solicitor’s obligation to disclose confidential material pursuant to statutes which abrogate client privilege. It is a long bow to suggest that the profession is becoming explicitly closer to government as a result of legislation forcing solicitors to disclose information which the common law otherwise protects.

Your criticism is on the mark. If there's anything the legal profession covets, its independence from state oversight. Frankly, I think that's a defect in how common law jurisdictions operate, but the Supreme Court in my jurisdiction has said otherwise, so that issue is moot.

I believe what we are seeing here is simply the author's libertarian bias coming through.

I do however agree with his comment that:

One aspect which is central to all of this is that seeking to use the courts, which are instruments of the state, to act against the interests of the state in any challenge to statute law is in essence to misunderstand the nature of state power.

This would sit alongside judicial comments on the irony of applicants seeking appellate court assistance to overturn lower court decisions on the basis that neither court has jurisdiction over them.

Indeed. I have this lovely document sitting on my desk that is a near perfect illustration of this paradox - a Habeus Corpus application that argues the Court has no jurisdiction due to a truly and profoundly stupid defect. Somehow the litigant just didn't notice the circular aspect of the argument...

SMS Möwe

[wserra]

My review of the paper and its conclusion is largely favorable

Sorry, mine isn't.

Kersey uses phrases like "they have re-examined the relationship between the state and the individual in law", "the work of Robert Arthur Menard", "ordinary people who have had enough" and "the issue of whether these principles have a firm basis in law is of considerable interest". This is intellectualizing above and beyond the call of even the stuffiest academia. "A firm basis in law"? The stuff Kersey "reviews" is simply bullshit. Of course, one does not make an academic paper from that conclusion - hence the lipstick on the pig.

wserra's theory, from which I will decidedly not attempt to fashion a dissertation: there are three types of sovruns. On one side are the profiteers; on another, the attention whores who lack the ability to attract the attention they crave from legitimate achievement; and on another, those whom life's circumstances have crippled to the extent they have lost the ability to exercise common sense, whether as a result of misfortune or mental disability. The groups overlap, especially the second and third. Cutting across all of the categories are grandiosity ("I know better than the experts in the field") and narcissism ("my concerns are the most important things in the world").

If Kersey wanted to do something interesting, he could trace the history of this stuff back to white supremacists and their ilk. Y'know, I thought someone was actually doing that. Who was it again? It's been so long that my memory has faded.

[The Observer]

Y'know, I thought someone was actually doing that. Who was it again? It's been so long that my memory has faded.

It would be great if whoever it was could publish their findings in a book.

[Arthur Rubin]

In Canada when OPCA litigants first appeared they were usually misidentified as persons with mental illness.

I'm not entirely sure that they are misidentified. One could consider it a particular delusion.

[Burnaby49]

In Canada when OPCA litigants first appeared they were usually misidentified as persons with mental illness.

I'm not entirely sure that they are misidentified. One could consider it a particular delusion.

It's a mixed bag. The majority of the Porisky followers seemed to be sane enough but just didn't want to pay tax and thought that Porisky had found a way out. Foolish and wilfully blind but not delusional. However some, like Eva Sydel (previously discussed in link below) take their obsession past any rational basis and might well have mental health issues.

viewtopic.php?f=46&t=7827&p=131049&hilit=sydel#p131049

[notorial dissent]

So, WES, you're postulating a triangle of ???? (not sure what the right word is at the moment) for the gurus/proprietors of the various scams. What would you suggest for the followers, other than that greed, self interest, and probably just good old fashioned gullibility as at least major points in their behavior?

[ArthurWankspittle]

(buys some mindbleach futures.....)

So, WES, you're postulating a triangle of ???? (not sure what the right word is at the moment)...

Threesome?

[LightinDarkness]

I think you have to take this "academic paper" (calling it that is generous) for what it is - its some professor intellectually masturbating in a interest group non-peer reviewed publication. A publication ("Legal Notes") which, as far as I can tell, seems to not even have any real editorial standards - its a vanity press for libertarians.

Professors do this from time to time, especially after they have tenure and/or full rank, since by that time they are nearly impossible to fire and there can be no negative consequence for doing so. This is unusual given the pro-libertarian bias, but I think anyone who thinks the "Freeman on the Land" movement has "contributed" anything to law is either willfully ignorant, has an agenda, or is mentally ill. If anything the FOTL movement has detracted from the effectiveness of the law as it requires courts to waste massive amounts of judge and staff time addressing legal arguments which are essentially made up out of nothing.

I say all this as a PhD candidate going into academia myself. Yes, I am jaded and bitter.