Archive for July 2017

Liberty or Laws – Justice or Despotism

Liberty or Laws?

Justice or Despotism?

Gary Hunt
Outpost of Freedom
July 10, 2017

When the colonies severed their allegiance to England, in 1776, through the adoption of the Constitution in 1789, they had to have some form of law upon which to deal with matters, both criminal and civil.  To do so, they adopted the Common Law of England, as it existed on July 4, 1776.  This, then, became the foundation of laws upon which both the federal government and state governments began the process of developing their judicial systems.

What is important to understand is that the laws that they adopted were concerned with Justice.  For example, though Webster’s 1828 dictionary has no definition of “judicial”, an adjective, it does have one for that body that is responsible for that function of government, the Judiciary:

JUDI’CIARY, n.  That branch of government which is concerned in the trial and determination of controversies between parties, and of criminal prosecutions; the system of courts of justice in a government.  An independent judiciary is the firmest bulwark of freedom.

Through our history, there have been legal scholars who stand well above the current lot, in that their concern for justice was paramount in their considerations, and the subject of much of their scholarly writings.

Perhaps the best known of these legal scholars was Sir William Blackstone (1723-1780), and his seminal “Blackstone’s Commentaries.  From Book 1 of those Commentaries, we find some familiar phraseology:

“[A] subordinate right of every Englishman is that of applying to the courts of justice for redress of injuriesSince the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein.”

“And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property.”

Of course, personal security is best defined as “life”, as without it, we have nothing.  And, Blackstone used the common term, “property”, as did most of the declarations of independence that predate Jefferson’s more poetic version.

What else did Sir Blackstone tells us about justice that was of extreme importance then, and should be equally so, now.  When he discusses Felony Guilt, he states his understanding and then refers to another scholar, Sir Matthew Hale (1609-1676), from Book 4:

“Presumptive Evidence of Felony.  All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.  Sir Matthew Hale lays down two rules: (1) Never to convict a man for stealing the goods of a person unknown, merely because he will not account how he came by them; unless an actual felony be proved of such goods.  (2) Never to convict any person of murder or manslaughter, till at least the body be found dead.”

This subject can easily be set aside by the government simply stating that “times have changed”, since Blackstone wrote the Commentaries in the 1760s.  However, that discounts the fact that justice cannot change, only the misapplication of justice can change.  That latter is quite simply defined as injustice.

The Constitution provided two means by which the constitutionality of a law could be challenged.  The first, found in Article I, § 9, clause 2:

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Independence Day 2017

Independence Day 2017

Fourth day of July, in the Year of our Lord 2017
and of Our Independence, 241

Gary Hunt
Outpost of Freedom
July 4, 2017 – Independence Day

Many, now, seek to re-declare our Independence, though they have yet to explain from who or what we are declaring Independence.  Instead, perhaps, we need to address a declaration of dependence on the Constitution.

To do so, we must first acknowledge the failure by the current government, instituted under that Constitution, to fulfill the provisions and obligations that brought that government into existence — by and under the Constitution.

The grievances we have bear similarities to those expressed in the “Glorious” Declaration of Independence of July 4, 1776.

Based upon the concepts of John Locke (1632-1704), the same concept of dissolution of government recognized by the Founders is applicable today.  Locke explained that we had no right to dissolve the government, though the government by deviating from its intended purpose, in that failure, dissolves itself.  It is only for us to recognize that failure to recognize that dissolution.  (See Sons of Liberty #14)

To assure obedience to the Constitution, twelve articles were submitted to the States for ratification as amendments to the Constitution.  When Congress submitted those articles to the States, they prefaced that submission with a preamble, to set forth the purpose thereto:

THE PREAMBLE TO THE BILL OF RIGHTS

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

* * *

We must ask ourselves whether that confidence continues, as was intended, or if that government has failed in its purpose by misconstruction or abuse of its powers.

The North Carolina Supreme Court properly expressed the solution to this failure of the government to abide by the constraints even before the federal Constitution was submitted to the States.

In Bayard v. Singleton [1 N.C. 42; 1787], the North Carolina Supreme Court ruled on a case where the legislature had enacted a law contrary to the North Carolina Constitution.  In overturning that law, that Court stated:

“But that it was clear that no act they [the legislature] could pass could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established.”

In light of the above concepts, those same held by the Founders, let us reconsider the approach that is consistent with our creation as a nation, and submit the facts “to a candid world”.

* * * * * * * * * * * * *

Declaration of Dissolution of Government

When a government, properly instituted under the authority of the People, by virtue of the Constitution for the United States of America, has abrogated its responsibility under said Constitution, and has removed itself from responsibilities imposed upon it by said Constitution, and, when those People choose to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to recognize such Dissolution of Government.

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