Le Roy est loriginall de touts franchises (Keil. 138)

The King is the original of all franchises.

A common myth repeated by many people for various reasons is that the Magna Carta of 1215 made by King John was either “never law” or “was repealed” or “was replaced by the Magna Carta of 9 Henry 3.” These are “fake news.” The current UK Cabinet Office Manual says that

Constitutional matters and practices may include: • statutes, such as Magna Carta in 1215 (UK Cabinet Manual)

Further, Edward Coke says, of Henry’s Magna Carta,

… and it was no new declaration: for king John in the 17 yeare of his raigne had granted the like, which also was called Magna Charta, as appeareth by a record before this great charter made by king H. 3

Home ne fuer’ mordanc’ apud Westmonasfterium des terres in auter countie, car ceo fer encont’ lestatut de Magna Charta sinon que illa assisa semel interminata suit coram justic” (Pasch. 5 H. 3. tit’ Mordaunc’ f. 53)” (2 Inst, Proeme, p. 4) (2 Inst, Proeme, p. 4)

It has come to my attention that some students in a section at UBC have been accused of academic misconduct. Or, they were, and now it seems that rather than pursue that route, a test is going to be re-administered. That is not, in my view, fair.

The situation is, broadly, that an instructor told students that they could “google anything” for their open book exam. This led to students googling the solutions to problems, as, for example, on websites that log test questions. So I have heard, the instructor deemed this to be against the “spirit” of “google anything.”

Firstly, courses of instruction are offered by UBC pursuant to statute:

47 (1) In this section, “university” means a university named in section 3 (1).

(2) A university must, so far as and to the full extent that its resources from time to time permit, do all of the following:

(a) establish and maintain colleges, schools, institutes, faculties, departments, chairs and courses of instruction; (https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96468_01)

The disciplinary authority is vested in the President:

61 (1) The president has power to suspend a student and to deal summarily with any matter of student discipline.

(2) On the exercise of the power, the president must promptly report the action to the standing committee established under section 37 (1) (v) with a statement of his or her reasons.

(3) The action of the president is final and subject in all cases to an appeal to the senate.
(https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96468_01)

Statutory powers are subject to judicial review in British Columbia:

“statutory power” means a power or right conferred by an enactment

(a) to make a regulation, rule, bylaw or order,

(b) to exercise a statutory power of decision,

(c) to require a person to do or to refrain from doing an act or thing that, but for that requirement, the person would not be required by law to do or to refrain from doing,

(d) to do an act or thing that would, but for that power or right, be a breach of a legal right of any person, or

(e) to make an investigation or inquiry into a person’s legal right, power, privilege, immunity, duty or liability;

“statutory power of decision” means a power or right conferred by an enactment to make a decision deciding or prescribing

(a) the legal rights, powers, privileges, immunities, duties or liabilities of a person, or

(b) the eligibility of a person to receive, or to continue to receive, a benefit or licence, whether or not the person is legally entitled to it,

and includes the powers of the Provincial Court;” (https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96241_01)

The course is offered per University Act ss. 47(2)(a). The restrictions upon an examination are statutory powers per definition (c). If the professor says I may not look at the dictionary during an exam, for example, that is a requirement to refrain from doing something that I am not required by law to refrain from doing. There is no law against consulting the dictionary. There is also no law against copying the dictionary, if I am not allowed to do that on an exam, it is per statutory power. The same for requiring me to cite my sources, there is no law requiring one to cite sources.

Certain sorts of examinations and lines of work, for example, require you to use a manual. I have a friend who worked as a Helicopter Mechanic. He told me that you are not allowed to memorize the instructions. They are so complicated, and helicopters are so dangerous, that you do it by the book every time. So clearly the manner of examination depends on the course of instruction, and there is no “general unwritten rule” against using the book to perform the examination. In some cases, you do not want people trained to rely on their memories. The University, presumably, offers both sorts of instruction, so it is not a legal requirement that examinations be closed book.

Here, we see that the professor said “google anything.” The view that that in a course of instruction, the “default position” is a closed book exam with no googling is false. The restrictions upon plagiarism, looking up answers, “phoning a friend” as in Who Wants to be a Millionaire, are not requirements prescribed by law, they are prescribed pursuant to the University’s statutory power to offer a course of instruction, and to set the terms for those courses.

In a course of instruction, the instructor decides how to evaluate the students. This is, in addition to being a statutory power, a contract made by the instructor on behalf of the University, to provide the course under certain terms, for example, to have an exam where one may “google anything.” The contract is to be interpreted in its plain and literal sense, not by reference to unstated premises.

Also, considered without reference to the Law of British Columbia, there is a precedent case that I recall, where an Instructor at the University offered the following instruction to students:

“You may bring anything that will fit on one 8.5×11 sheet of paper.”

One bright student, Jones, was friends with Llewellyn, the 4’9 Grad Student. Jones brought Llewellyn to the Examination, stood him on the piece of paper and proceeded to ask him how to answer the questions. This was considered, I am told, with much gravity by a very rare Convocation of the whole University, who solemnly adjudged that the Student was in the right. As I understand it, the record of this judgment were lost in the Brock Hall Fire of 1954, but I heard about it from a guy in the Pit Pub, who heard about it from a friend, whose Barber went to UBC in the 1940s.

It is my judgment that the grades should stand and everyone should learn from the situation and move on. Anyone who wishes to appeal this judgment may leave a comment and I will consider it.

In English Law, there are old cases reported in Law French, in the Year Books. Many contemporary jurists might dismiss them as merely the poorly reported opinions of judges, of little legal merit. This may be true for some of their contents, but not for all of it. Within the Year Books, we find certain statements, like the following:, said by Lord Chancellor Stillington:

… there are two kinds (maner) of powers (poyars) and processes, that is, ‘potentia ordinata’ (ordered power) and ‘absoluta’ (absolute power); ‘ordinata’ (ordered) is where a certain order is observed, as in positive law (ley positive), but the law of nature ‘has no certain order’ (non habet certum ordinem), but by whatever means that the truth can be known, etc. and ‘so it is called absolute process’ etc. and ‘it is required in the law of nature’ that the parties be present, etc. or that they be absent by contempt (contumacy), that is to say, where they are garnished (warned, garnies) and they default, etc. and ‘examination into the truth’ (examinatio veritatis)” (Trin. 9 Edw. 4 9 (fol. 14a) https://www.bu.edu/phpbin/lawyearbooks/display.php?id=20088)

Indigenous Law, then, in the main, inclines to absolute power, not ordered power, and that the real issue is that the truth be known. This could explain why Dr. Amie Wolf thought it prudent to identify students whom she thought unfit to teach Indigenous Education. This is a sort of absolute process, akin to the law of nature. She has laid the charge into the Court of Nature, and now what will happen? Who is to say?

Certainly adherents to the Crown system of law want something done about this, because they believe in privacy and other sorts of statute law. This too, is explained by the Lord Chancellor, in reference to merchants:

merchants, etc. will not be bound by our statutes, where the statutes are introductive of new law (introductiva novae legis), but (foreign merchants will be bound when) they (the statutes) are declarative of old right (declarativa antiqui juris), that is to say, nature, etc.; and even though they (foreign merchants) have come within the realm, so the king has jurisdiction over them to put them to stand (estoyer) to right, etc., but this will be ‘according to the laws of nature’ (secundum legem naturae) which is called by some ‘law merchant’, which is universal law for everyone (tout le monde) (Pasch. 13 Edw. 4 5, https://www.bu.edu/phpbin/lawyearbooks/display.php?id=20338)

If we combine these two notions, we get the idea of an Indigenous Merchant, governed only by universal law. Statutes are only binding where they declare old right, for example, the law merchant, but where they introduce new law, they are not binding on indigenous merchants. Whether this view is legally enforceable or not is one question, but it is a valid point of view: privacy law, and its ordered process, are offensive to a certain disposition where absolute process under natural law would ultimately lead to the truth being revealed.

And in this case the truth is what Dr. Wolf says about the individuals; it is true that she has said it. Whether others evaluate her statements to be true or not, well, that is up to them. The positive law and its ordered process in Canada in 2021 may favor protection of privacy more than some would like, especially where the education of indigenous people is concerned.

Freedom of speech is quite clearly under attack at both The University of British Columbia (UBC) and Simon Fraser University (SFU). On Nov. 2, 2019, a panel discussion by Anna Slatz, Jonathan Kay and Meghan Murphy, moderated by Lindsay Shepherd, was to be held at SFU’s downtown Vancouver campus. The event was moved due to threats of violence. The Sponsor, Prof. Collard, says that

… he didn’t want to take any chances when he heard about safety risks that led to the change in venue. That was a big problem to hear,” he said, adding he was concerned about potential disruptions for people who would be gathering in a nearby meeting room at the university’s campus as well as members of the public who could be in the building.

“I decided I just couldn’t in good conscience expose people to that level of risk. Given that the security team is telling me that there is a very, very high probably of being some sort of violence that … I decided it would be irresponsible for me to continue.”
https://www.cbc.ca/news/canada/british-columbia/meghan-murphy-b-c-event-location-1.5345680

The event was moved to the Pan Pacific Hotel. The Vancouver Police, hotel and private security maintained order, so that the assembly could meet to transact the business of hearing speakers and discussing their views. SFU did not cancel the booking because of “hate speech” or any such nonsense, they cancelled the booking because they were threatened. So if our Universities are incapable of dealing with this sort of security risk, this is a serious blow to post-secondary education in British Columbia.

Our Universities are under attack. It might seem like a small skirmish, but imagine what people who are willing to violently attack a scholarly talk would do to students they were grading: they won’t have to be violent, they can just use politicized grading, as described in Peters, et al.:

Equally surprisingly, our qualitative data, combined with the quantitative findings, reveal a significant discrepancy between many philosophers’ beliefs that ideological bias and discrimination are either rare or non-existent in the field and many more other philosophers’ reports of having actually experienced or witnessed them first hand, or being willing to engage in it themselves. Starting with the political right, the more right-leaning the participant was, the more hostility they reported personally experiencing from colleagues, and the stronger their impression that they and their political ideology would be negatively viewed in judgment-and decision-making in the field. The validity of this subjective impression was partly confirmed by the fact that the more left-leaning the participant was, the more frequent their WTD [Willing To Discriminate] against right-leaning individuals and contents in judgment-and decision-making. (p. 18)

This is when we consider philosophy, where there is a semi-rigorous sort of method that involves at least a few credits of logic. It’s important to note that logic is optional for arts degrees, you can be an Art History major without knowing anything about logic, symbolic or otherwise. The philosophy department teaches logic, and even in the “logic department,” we’re having to face that there is political discrimination, which is what accounts for the perception that nobody opposes certain views, or wants to have a discussion to seek clarification. And then there is the question of what happens to students who somehow make it into graduate school but who do not share the correct political opinions. If someone were willing to threaten to use violence against a talk, presume such a person were a fellow student, professor or other person involved in the University. What would they be willing to do “for the cause” with such a position? We would be foolish to act like this is not already happening.

At the panel discussion, 1:24:00, an audience member asks

How many of us have lost jobs and felt physically at risk for asking questions or offering a space for this conversation? How many of us? Hands up.

In the frame, several hands go up. Of course, everyone’s hand should have gone up: the protesters outside were physically threatening everyone gathered, that is why SFU cancelled the talk, because they did not want to be responsible. The member also explained that in a Faculty of Education, after presenting articles to students, a minority of them “freaked right out” and complained, which resulted in her, being a sessional, not being hired again. If you teach the wrong articles, or you say the wrong thing, these people are out for blood, and they are clearly willing to use any and all force ranging from threats of violence, to bad grades, to hiring/firing. The only open question is how we restore the integrity of our public universities.

As I said previously, https://blogs.ubc.ca/surveyors/2015/06/27/on-freedom-of-speech/, the speech is properly thought of as an organ of the body. However, what sort of organ is it? What is its function? Aristotle clarifies this in On Interpretation, where he states that “spoken sounds are symbols of affections in the soul, and written marks symbols of spoken sounds” (16a3). And we must be careful to consider that speech (or writing) is, again as Aristotle says that speech “is a quantity…for it is measured in long and short syllables.” And so when there is a restriction on speech, it is really a restriction on the soul’s affections, because they cannot find expression through the speech, which is the speech’s function, to express symbols of affections in the soul, at least, according to Aristotle that seems reasonable.

And so, simply from this, we see that the normal sense that prevails in modern University culture, namely, that a one-sided analysis of the “right” of people who object to speech is all that matters, we must take up the discussion from the point of view of those souls to be shut down under such a policy. And a trivial dismissal cannot be made, for, as we see in https://blogs.ubc.ca/surveyors/2016/07/25/freedom-of-speech-part-ii/, an injury to the speech is worth as much as a wounded belly or broken thigh. The responsibility that people have not to infringe the speech of others is quite ancient. And freedom of speech means, under certain circumstances, a duty to listen. Speech and listening are reciprocal, in a sense. It is only through both speaking and listening that people can fully develop their souls, which, as the drivers of the speech, must be kept in practice. If people stop speaking, then it stands to reason that they will fall out of practice.

As we stated previously, the Speech, as an organ, is given absolute protection in the Laws of Aethrlbirht, the first King of the English to receive baptism. In the days of Augustine, Aethelbirht decreed, in his laws that

If the speech be injured, XII shillings. (Laws of Aethelbirht, s. 52)

Further on, in the same collection of laws, we find that

If the belly be wounded, let ‘bot’ be made with XII shillings. (ibid., s. 61)

In this law, therefore, we find that an injury to the speech is taken to be equivalent to a serious wounding of the belly. And further on,

If a thigh be broken, let ‘bot’ be made with XII shillings. (ibid, s. 65)

Clearly, the protection afforded to the speech against ‘injury’, and note the use of the word ‘injury’, not ‘wound’ nor ‘break’ but ‘injury’, is absolute, and certainly fixed as of the date of the making of these laws. The speech may be injured in any number of ways, and, indeed, any attempt to restrict it in a manner more burdensome than that on the date of this law of Aethelbirht constitutes the injury, an injury on par in severity of punishment with those of breaking someone’s thigh or wounding someone’s stomach. There is in this law no mention of feelings or dignity. In fact, in reading this statute, feelings and dignity are later inventions that have given a pseudolegal justification to the destruction of our ancient customary protection of the speech.

The speech may be injured by what I will call the ablative injury. The ablative injury is when the speech organ itself is physically worn down, and, in an extended sense, if it is mutilated or otherwise rendered materially inoperative. This sort of injury may be macroscopic, to the speech itself, or microscopic, to the nervous system and tissues which control the voluntary operation of the speech. For when the law protects the speech from injury, in contemplation it must also protect all of the parts of the body which drive the speech, including the nerves, brain and other tissues required for their support, like the heart, lungs and liver.

The ablative injury to speech may also be accomplished via agreement, as, for example, if, as a condition of employment, I agree to not say the phrase “snow is white.” This would be interpreted as a voluntary injury to speech, in both the sense that I would be deprived of speaking, but, more importantly, I would be deprived of my power of speaking truly, as snow is white. It is questionable whether one may consent to being injured.

Thus we see that the ablative injury is constituted whenever an inhibition is put upon an individual, unless sanctioned by right, that is, by law. The However, statutes must be construed according to prior enactments, if they speak to a topic. As stated above, any injury to the speech is an injury on a par with a broken leg or a wounded stomach. These are not trifles, as, for example,

For every nail, a shilling (ibid, s. 55)

And so any statute that would, but for the statute require conduct that injures the speech must be read as requiring a restraining of bodily liberty, and infringing the liberty interest, a restriction that is grave and perilous. The clear reason for Aethelbirht’s discussion of the value of various injuries is to establish a framework of just compensation for injuries to the body parts mentioned in the laws. In this sense, it sets the penalty for various criminal injuries that would be acknowledge to exist by custom. Thus there is a good argument that any attempt to injure speech is in fact a breach of the criminal law, much as it would be a breach of the criminal law to injure someone’s thigh bone or stomach.

We must read Aethelbirht’s law not as creating these injuries, but as fixing the penalties for acts that, by their inclusion in his laws, must be taken to have been considered unlawful and criminal by custom. Certainly this is not a list of mere civil actions, we are dealing with woundings which, prior to the advent of antibiotics and blood transfusions, were often fatal. Certainly a broken thigh could be fatal, as the femoral artery runs through it. We must therefore, in determining the relative weight of injuries, remember that any restriction on speech is a corporal restraint and is in fact an injury on par with a broken leg.

It therefore is untenable to give much weight to the psuedolegal claims of injury that are brought before many administrative and corporate tribunals, concerning “dignity”, “feelings”, “emotions” and other pseudolegal concepts that we do not find mentioned in our ancient law. Certainly, it is difficult to fathom that the injury of one’s speech is at all proportional to hurt feelings—it is a punishment as violent and damaging as breaking of the thigh. And we must point out that all such restrictions, but for pseudolegal justifications supporting clearly unconstitutional statutes, would be clear injuries and violations of our ancient laws.