Archive for December, 2010

Merry Christmas

Friday, December 24th, 2010

May the Spirit of Christmas be with you.

And, may that Spirit abide within you, this coming year, as it did for our forefathers,

to give you the strength, as it did them,

to restore this country to the greatness, which they gave to us.

One Nation, under God.

 

Merry Christmas

(with no apology)

 

 

Habeas Corpus — what does it mean?

Saturday, December 4th, 2010

Habeas Corpus — what does it mean?

Gary Hunt
Outpost of Freedom
December 4, 2010

Constitution, Article I, Section 9, clause 2:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Unlike most protections afforded in the Constitution as rights, this one is clearly set out as a “privilege”. This is because it can be suspended under certain conditions, though it has to be so stated to the public, when it is suspended.

* * *

The following is written as an explanation in response to a number of queries about my use of habeas corpus in an article entitled “What if I’m Arrested?“.

The article dealt with the circumstance surrounding a traffic ticket, though did not sufficiently support the reasoning behind the habeas corpus.  This is to expound upon that “great writ”.

This does not mean that “habeas corpus” will only work on a traffic ticket. I have not had the opportunity to test it on a larger scale.

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

Habeas corpus is a phrase that many of us learned in grade school.  Not that we really knew what it meant, but we were told how important it was and why it was even included as protected by the Constitution.  At best, we were told that it was “bring forth the body”, which, by definition, has some truth.

Today, the press only mentions habeas corpus when they are talking about death row decisions.  This is a nice diversion, because, since we didn’t really know what it meant, we are now prone to accept that if we ever find ourselves on death row, we can recall that fine “great writ of liberty” and, perhaps, prolong our demise.

So, let’s start by looking at what the legal definition(s) of habeas corpus is (are):

From Black’s Law Dictionary, 5th Edition:

Habeas corpus acts.  The English statutes of 31 Car. II, c. 2, is the original and prominent habeas corpus act.  It was amended and supplemented by St. 56 Geo. III, c. 100.  Similar statutes have been enacted in all of the United States.  This act is regarded as the great constitutional guarantee of personal liberty.  See Art. I, § 9, U.S. Const.; 28 U.S.C.A. §2241 et seq.

Habeas corpus ad deliberandum et recipiendum.  A writ which is issued to remove, for trial, a person confined in one county to the county or place where the offense of which he is accused was committed.  Thus, it has been granted to remove a person in custody for contempt to take his trial for perjury in another county.

Habeas corpus ad faciendum et recipiendum.  A writ issuing in civil cases to remove the cause, as also the body of the defendant, from an inferior court to a superior court having jurisdiction, there are to be a disposed of.  It is also called “habeas corpus cum causa“.

Habeas corpus ad prosequendum.  A writ which is usually employed in civil cases to remove a person out of the custody of one court into that of another, in order that he may be sued and answer the action in the latter.

Habeas corpus ad satisfaciendum.  An English practice, a writ which issues when a prisoner has had a judgment against them in an action, and the plaintiff is desirous to bring him up to some superior court, to charge him with process of execution.

Habeas corpus ad subjiciendum.  A writ directed to the person detaining another, and commanding them to produce the body of the prisoner, or person detained.  This is the most common form of habeas corpus writ, the purpose of which is to test the legality of the detention or imprisonment; not whether he is guilty or innocent.  This writ is guaranteed by U.S. Const. Art I, §9, and by state constitutions.  See also 28 U.S.C.A. §2241 et seq.

This is the well known remedy in England and the United States for deliverance from illegal confinement, called by Sir William Blackstone the most celebrated writ and the English law, and the great and efficacious writ, in all manner of illegal confinement.  3 Bl.Comm. 129.  The “great writ of liberty”, issuing at common law out of the courts of Chancery, King’s Bench, Common Pleas, and Exchequer.

Habeas corpus ad testificandum.  The writ, meaning you have the body to testify, used to bring up a prisoner detained in a jail or prison to give evidence before the court.  Hottle v. District Court in and for Clinton County, 233 Iowa 904, 11 N.W.2d 30, 34; 3Bl.Comm. 130.

Now, I realize that this is getting rather confusing.  However, if you read them all, as well as the first, which sets out that history of the series of acts that constitute habeas corpus, you might have noted that one stands out from the rest.  If not, then, go back and reread Habeas corpus ad subjiciendum.  In so doing, you will note that Blackstone defined it as “the great writ of liberty“.  Darn, same language they used in school.

You will also note that, “the purpose of which is to test the legality of the detention“.  So, it appears that, perhaps, this, as in the game “Monopoly”, just might be a “Get Out of Jail Free” card.  Not quite!

Detention evokes an image of being constrained by chains, force, threat of force, or other means that keep you from doing what you wish to do.  So, I’ll use an example of what I wrote about in What if I’m Arrested?.  I was arrested.  I posted bail and was free, so long as I appeared in court at the time and place directed.  Though I was free to move about, while on bail, I was still, technically, detained.  I was under detention!  Likewise, if you have signed a traffic ticket, you have agreed to appear.  If you ask the officer issuing the citation, “If I do not sign this, will you take me to jail?”, he will affirm that he will take you to jail.  So, even though you may not have posted bail, you have, by your signature, bound yourself to self-imposed detention until such time as you appear.

New, if we understand just what “held to answer” (5th Amendment) means, that is that we are, technically detained, though perhaps not physically, when we are charged with a crime, we understand that the charge, requiring that you produce yourself at the required place and time, makes the detention a part of the charge, and the charge a part of the detention.  Neither can exist without the other.

Now, with that in mind, let’s look at the matter of detention.  When I did my “oral demand for habeas corpus” (What if I’m Arrested?), by challenging the court to produce the injured party, and demanding that that party be produced along with an affidavit or contract, I was challenging the detention associated with the charge.  The judge, apparently, agreed and decided to “nolle prosequi” (not prosecute) the case.  Thereby freeing me from both detention and charges.

Unlike the approach most often taken by those challenging jurisdiction (which this really was -jurisdiction over my body), who seek to get into common law courts, my approach was predicated on getting out of common law court by assuming that I was already in a common law court.  This created no argument with the judge, only the decision to grant me that common law right, or not.

For much more on Habeas Corpus, see

Habeas Corpus – Main Page  webpage

Habeas Corpus docketed in the U. S. Supreme Court  article

For the current status of the Habeas Corpus before the Supreme Court, see Habeas Corpus Suspended

 

 

 

a United States Militia

Friday, December 3rd, 2010

a United States Militia

Gary Hunt
Outpost of Freedom
December 3, 2010

Often I see a suggestion that the federal government should enact statutes protecting the militia, perhaps even organizing and equipping it.  Well, to some extent that is provided for in the Constitution.

Article I, Section 8, clause 15:

Congress shall have the Power to….  To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

So, it can be called forth for certain purposes.

Article I, Section 8, clause 16:

Congress shall have the Power to…. To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Organizing, arming, and disciplining are also included, extended even to governing, while in time of service to the country.  Significantly, however, the appointment of officers and training is left to the States.  This is important because it show the chain of command being to the State not the United States, (except as necessary when in service to the United States).  The officers know who writes their check, and, the members are trained by local people, though in accordance with the discipline provided by Congress.  The primary allegiance to the State is preserved.

Article II, Section 2, clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; …

Here is the exception mentioned above.  Only while in service to the country is the allegiance to the State even subordinated.

Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Though State can also mean a country, in the context of the Constitution, it is one of the members of the Union created by the Constitution.  Here, quite clearly, the ability for the State to a free in its nature is assured by the only explanation of the need for the Militia — the security of a free State.

The following was enacted in 1916, with the exception of the provision for “female members of the National Guard (1973) and “unorganized militia” description (1958).  Exceptions (those not in the militia) are provided for in the next Section of the Code, but are irrelevant to this discussion.

10 U.S.C. § 311: Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are –
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

So, let us look at what affect this Statute (United States Code provision) has on the entire concept of Militia.

Let’s suppose that the United States wanted to call forth the Militia, prior to 1916.  They would requisition from the states a quota to be filled.  The States, in their capacity, could refuse, if they wanted, to fill the quota.  I’m not sure where this would take us, since I am not aware of any instance where that happened, but, perhaps, that is why it never happened — that the federal government knew its limits and would not dare call the Militia under circumstances that it felt might generate a refusal.

Lucy Hosmer’s Diary, April 18-19, 1775

Thursday, December 2nd, 2010

April 18 & 19 were days of change for many colonists. One wife, Lucy Hosmer, kept a diary. The following includes excerpts from that Diary.

This was given to me, and, presumably written by, Nord Davis, Jr, Northpoint Teams.

Gary Hunt

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

The wind was blowing briskly over the chimney top, drawing the smoke from his hearth, as father sat thinking, the heat of the fire glazing his eyes. It was the spring of 1775. As the twilight began to fall on his modest home in Acton, Massachusetts, this young man wondered just what tomorrow would bring. His daily chores were done and an extra pile of wood had been stacked inside, handy for Hannah. He expected to be gone for a while. The leak around the chimney would have to wait for another day. There were important things to be done in the morning…

This young father had married his sweetheart, a lady named Hannah Leighton, of Acton. He had learned the gunsmithing trade. His personal future looked pretty good, and why not? He had built his own home, had a nice family, and a steady business repairing firearms. It had been a warm spring that year. According to the records, Hannah was occupied that evening with the children’s colds. Even the youngest of just fifteen months was letting the household know of her suffering and plight. The young man was left with is thoughts — Less than a dozen hours to muster. But, with spring in the air, everything going better than expected, how could he complain? How good it is to be free! We will settle some things tomorrow…

We might expect that any young man, as unusually blessed with a home, family and business, might tend to overlook the problems being created by some of the King’s men. After all, what could one do about such complex and far-reaching problems? Wasn’t his first duty to his family? Yes, but according to the Scriptures, there always comes a point when the affairs of the nation must come ahead of the needs of the family. This was one of those times. Fortunately, this was not a young man who simply looked to the rewards and the pleasures of the day. He was not one to close his eyes in a dream world of security, but one whose eyes, for his family’s sake, were fixed on the years ahead. Something had to be done about the Red Coats who were presuming themselves into the affairs of free men.

The Lord, he knew with certainty, had put him into a vital position to do some good. The Lord had called him to be the leader of men, and, as a gunsmith, his trade was to be needed on the cause of Liberty. Liberty, as he told Hannah, is never given by legislatures. It has always been obtained, and will be held, only by those who are willing to fight, and die, for it. When men cease to be willing to fight for it, it will only be a matter of time before free men are once again slaves of others. Months and months before, this young man — who had everything to both loose and fight for — organized a Company of Minutemen in his home town of Acton, Massachusetts. Acton? Who, today, has ever heard of such a place? Yes, we remember our history lessons about the brave men of Lexington and Concord. We know all about the midnight ride of Paul Revere and his group called the “Committee of Safety.” We can think of many others — but this young man and his Acton Militia, is generally unknown to even our most ardent patriots today. His name was Captain Issac Davis.

As Captain Davis sat watching the sparks crawling along the soot in the back of the fireplace that night, over in Concord a young wife, Mrs. Lucy Barnes Hosmer, was entering her concerns about the next day. In her diary* for Tuesday, April 18, 1775, she wrote:

I really don’t have time to spare from our household chores to write in this Journal–and yet, I must, to calm my nerves and enable me to think clearly about these perilous times. This I must surely do to help my husband, Joseph Hosmer, our four children, and our dear village of Concord. No shots have yet been fired but already we are a wartime community…

…for months now, our household, and those of our neighbors, have given over the major portions of our lives to the task of preparing Concord for war…what I mind more than the hiding of weapons is the need to watch out for Tories and spies amongst our own townspeople… Much of the time I am too busy to be anxious. But at night, after my work is done, I do worry and mainly about Joseph. Some of our neighbors say that all this anger at the Mother Country started here-abouts with the speech he gave last year at the Middlesex Convention when he defended our rights against Mr. Daniel Bliss, the famous Tory lawyer, who mocked our folly in resisting the mighty British empire and urged us all to stand loyally by King George and Old England.

I was proud of my husband that day. Mr. Bliss stood up in front of the Convention, handsome in his fine clothes, with a sarcastic smile on his face. Joseph was near the back of the room wearing a plain butternut suit that I had spun, wove, and dyed for him. At first he spoke slowly as if he was feeling his way with the words, but he wound up with such eloquence that he confounded Mr. Bliss and set our neighbors on fire with new ideas of our rights and freedom. Folks, even lawyer Bliss himself, they say, has been naming my Joseph the most dangerous man in Concord, ever since. And that makes me both proud and frightened. Joseph is thirty-nine years old now and our neighbors say his influence over the young men of the town is strong, and where he leads, they’ll follow.

Yesterday, the Committee of Safety ordered the dispersal of the military supplies here in Concord into the neighboring towns. Last night Joseph and I drove by ox team two wagon loads of ammunition from Acton to hide on Deacon Jonathan Hosmer’s farm there. His twenty-year-old son, Abner, is Joseph’s third cousin and an Acton Minuteman.

Lucy Hosmer was quite correct. Abner Hosmer was not only an Acton Minutemen, but Captain Davis’s right-hand man! Just before dawn on April 19, 1775, Captain Davis quietly mustered his men. All equipment was checked out. Abner Hosmer was there and his training was to meter out the cadence on his drum — 120 beats to the minute. Carrying a drum, he would go into battle unarmed. James Haywood was there. The fifer, Luther Blanchard, got there just as the red morning sun stabbed its welcome light through the naked trees surrounding the Davis homestead. This was the day that this Company had been training for, and the Acton Minutemen were ready. Captain Davis had not only trained his men well, but as you will learn here for the first time, instilled in them an unusual spirit of dedication to God and Country.

“All present and accounted for, Sir!” a sergeant quietly called out, and the small band of men moved out for their six mile march to Concord. Every second, on the second, came the beat of Abner’s drum. The fifer was silent. It was in Concord that the King’s men were searching, house to house, for arms — but now you know where they were — in Deacon Hosmer’s barn in Acton, and driven there by a courageous woman named Lucy, just the night before! Yes, yes, there was the serious matter concerning taxation, and other grievances against the Parliament, but at the level of the Acton and Concord Minutemen, the issue was the confiscation of firearms. Today they would be called assault weapons.

Well, you know much of the rest of the story. Some three hundred patriots converged on Concord from the surrounding towns and villages to confront the Red Coats. It was about 10 o’clock AM and the village of Concord was nearly deserted. The women and children had left to be safe with friends. All the Minutemen were assembled on the north side of town near the North Bridge where six companies of British soldiers were posted to attack.

Lucy Hosmer wrote:

The reverend William Emerson, who is always impetuous (even Phebe, his wife, says so) proposed: “Let’s go after them and fight ’em right now!” But Colonel Barrett ignored this from The Cloth and ordered our men to withdraw to a position on the heights above the North Bridge where they would be near enough to see what was going on there.

I have inserted this information from Lucy to show you that during the early days of America, not only the Old North Church in Boston was involved in the cause of Liberty, but so were the ministers throughout the colonies, who were more directly involved. Pastor Emerson was there, and Deacon Hosmer was hiding arms, and AHD his son right out in front. Those were the Good Old Days… The Red Coats, over-confident as agents of admiralty government, have a fatale tendency to be, sent in some men to the abandoned Concord and began to steal whatever they could find from the abandoned homes. Lucy Hosmer then gives us an insight into what happened that many of us had not known before, and a lesson that all of us can use today–

…Then they set the village Liberty Pole on fire just to mock us. That fire got out of control and spread to the roof of the Court House which surely would have been destroyed if it hadn’t been for old Martha Moulton, who keeps house for Dr. Minot. She saw the Court House beginning to burn and rushed up to some British Officers, who were standing nearly on the green, and implored them to put out the fire. At first they laughed at her and mocked her pleas. But, she kept on pleading loudly and gave them no peace until they put out the fire.

Here is the interesting part! The patriots over by the North Bridge could not see what was going on in town, but they did see the billowing smoke which continued as the Red Coats were giving the widow a hard time. Imagine, the only one who dared to confront the Red Coats was this frail old lady. That pattern is being seen again and again today in America. However, as recorded in Lucy’s journal, it was the smoke of the burning Liberty Pole and the Court House roof that actually triggered the minutemen into action.

Understand, the Red Coats were on the Concord side of the North Bridge, and to take Concord to save the town, it was necessary for the Minutemen to cross the bridge in the face of British fire. Since the immediate military mission was to save Concord, the honor of leading troops fell to the Concord Company. Instead, according to historical fact, the Concord Captain asked to be excused on the grounds that some of his men were not prepared, and others were afraid. Confusion and doubt were beginning to spread among the men. At that moment the steel voice of Captain Issac Davis came thundering over the confusion. It was the only direct statement by Davis that has been recorded in history, but it was the right on, at exactly the right moment in American history  — “I haven’t a man who is afraid to go!” he said.

He then marched the Acton Company to the head of the column of Minutemen. Lucy tells us what happened, next:

They marched in double file toward the North Bridge to the fife strains of “The White Cockade” with Captain Issac Davis’s company in front of the lines. As they advanced they could see three British companies crowding together at the far end of the bridge. Two or three of the Red Coats were observed trying to pull up the planks! But they soon gave up and ran back to their companions. Our men marched nearer and nearer to the bridge to the beat of Abner Hosmer’s drum. The British fired warning shots into the air. Our men were marching foreward. Suddenly, the Red Coats fired a volley and Abner Hosmer and his Captain, Issac Davis, fell dead… Joseph said that the battle of the North Bridge did not take more than two or three minutes, but I’ll wager that those brief moments will not be forgotten by any of our people.

This first organized attack against the Red Coats, and King George’s admiralty regulations was led by an Acton, Massachusetts man whose name, Issac Davis, is all but forgotten today.

One history book carries this account of those fateful few minutes of history that began the cause of American Liberty:

“As they marched toward the Red Coats, the shrill and stirring music of Luther Blanchard’s fife pierced the morning air. Weapons were loaded and primed. Hammers were cocked as they got into range of the British rifles. Bang! A puff of smoke appeared followed closely by the report of a British rifle. Two more followed in quick succession. Fifer Blanchard was hit and the fife was heard no more. A strange silence hung about three feet off the ground for about thirty seconds, and then came the first volley from the British. Captain Issac Davis and the drummer Abner Hosmer, were killed instantly. The war, hardly begun, was over for them.”

For a few moments, the death of Captain Davis and drummer Hosmer stunned the Acton Company. This was now the real thing! Over it all came the thundering voice of Major Buttrick, the Commanding Officer of the Concord Company, “Fire, fellow soldiers, for God’s sake, Fire!”

So, fire they did. The battle near Concord’s North Bridge was the one which set the stage for the greatest land of Liberty mankind has ever known. The battle began when King George’s forces attempted to disarm the American colonists.


* Text from Lucy Hosmer’s diary has been provided through the courtesy of Mary Hosmer Lupton of the Albemarle Chapter, Daughters of the American Revolution, Charlottesville, Virginia.

An Economic Solution

Wednesday, December 1st, 2010

An Economic Solution

Gary Hunt
Outpost of Freedom
September 17. 2010

To return to a sound economic base, primarily a free market economy, a series of steps must be taken to achieve an understanding of where “existing” money is, and how it will be accounted in the conversion to the plan proposed herein.

To initiate the plan, fractional reserve banking must cease. Usury laws shall be enacted limiting interest to 3% per annum. All outstanding obligations to any financial institution will be held in abeyance, with no accruing interest, until the redemption process (2 years) has been completed.

The plan calls for the replacement of currency in two general areas, internal money and external money. Internal being that held by citizens of the United States or corporations operating solely within the United States. External being money held by any person not a citizen of the United States and any corporation operating internationally.

The sources of obligations are of three natures. First is the money circulating within the United States, currently, which will be identified as “A”. Next will be money circulating in the international realm based upon trade or other money legitimately held. This will be referred to as “B”. Finally, there is a lot of money which is circulating internally and internationally which was acquired by means considered illegal, such as the millions of dollars stacked in closets in Mexico, which will be identified as “C”.

The money of the “A” type will be redeemed as follows All coins and currency in circulation or on deposit , of an internal nature, will be identified based upon criteria to be developed, though will not include banking reserves, or any dollars not based upon real assets.

Replacement of value for internal money will be replaced . first, with US Greenback dollars, based on the full faith and credit of the United States. All redemption will require a physical return of Federal Reserve Notes in exchange for US Greenback dollars. This will become the interim money for internal use only, until the final resolution to specie based dollars.

Redemption will be conducted over a period of one year, with an additional years in which to hear appeals to decisions regarding whether the dollars are redeemable, or not, and any other petitions for consideration of redemption, all of which can only be presented by citizens of the United States.

For the sake of discussion, we will assume that the recognized type “A” money, Greenback Dollars ($), issued over this period amounts to $4 trillion.

The gold and silver on deposit at Fort Knox is to be audited and the actual dollar value determined based upon the original value of $20 per ounce of gold and $1 per ounce of silver. This will include only the assets of the United States held at Fort Knox. We will assume, then, that the value determined by this audit comes to $80 billion.

Gold and Silver Certificates will be issued based upon the value determined by the audit. The certificates are not redeemable for gold or silver, but are value based upon the deposit at Fort Knox, which will be audited every five years to assure that the sound backing of the United States Dollar (designated by $ ) continues, and that the internal money supply is limited, and cannot be expanded by other than additional gold or silver deposits made to the Depository.

Gold and silver may circulate as specie, though the United States government will not mint, guarantee, or participate in circulation thereof. Any specie made in payment to, or bought by, the United States government will be deposited in the Depository and Certificates ($) issued into circulation.

The existing United States Greenback Dollars ($) will be redeemed for the new United States Dollars ($) based upon the ratio of recognized type “A” money ($4,000,000,000,000.00) to the United States Dollar ($80,000,000,000.00), [ $/$ = 50 ], the Greenback dollars will be redeemed at the rate of $50 for one United States Dollar ($1). This would require an adjustment of the value of goods to 1/50th of their current value. For example, if something now costs $5, the new price would be $0.10 (10¢).

The new United States Dollars would only circulate within the United States. If returned from outside of the United States, they will be redeemed for United States Trade Credits (see below), at the value at the time of redemption.

Type “B” money and any type “A” money not redeemed as aforesaid shall be redeemed by redeeming all such outstanding obligations for United States Trade Credits. A determination will be made of each application to determine the rate of redemption. For Treasury Bills (full faith and credit of the United States), redemption should be at face value. For Federal Reserve Notes and other obligations based upon Federal Reserve Notes, redemption should be based upon the ratios determined for type “A” greenback to United States Dollars.

United States Trade Credits, while determined in dollars ($), will not be on par with the United States Dollar ($). Trade Credits will be used only for international commerce, and will not be circulated within the United States. They will be converted to United States Dollars upon entry into the country, based upon the aforesaid ratio, and United States Dollars will be converted to Trade Credits (even for citizens of the United States going abroad) upon leaving the country. United States Dollars returned to the United States will be penalized and redeemed at 50% of value.

Adjustments may be made to the Dollar to Trade Credit ratio, from time to time, to assure that a beneficial to the United Sates value is attached thereto.

Outstanding obligations in Trade Credits (existing outstanding obligations) will be assured, though no timely redemption is implied.

Balance of trade, in the international market, must be pursued to extinguish the outstanding debt in Trade Credits.

Type “C” money along with any type “A”: or type “B” money not redeemed timely, or determined to be ill-gotten, will not be redeemed, and will not become an obligation on the United States. This does not preclude actions against the Federal Reserve Board, which will, upon initiation of this plan, no longer have standing within the United States.