Committee of Safety – Common Law Court

Unlike the common law courts that you hear about, so often, usually in a bad light — as trying to “bring justice” to government officials, the Committee of Safety — Common Law Court (CoS-CLC) is to bring balance to the patriot community.

The Division in the patriot community has, for decades, been our most serious problem.  Perhaps a means to resolve those disputes that lead to division will substantially reduce the problem of division.  This is the idea behind the CoS-CLC.  Suppose there is a name-calling going on between two people.  Others are bound to take sides; generally, it will be the side of a friend or someone who has “your ear” more than the other does.

Unfortunately, such controversy can wreak havoc in portions of the community, often resulting in the disruption, or even dissolution, of an organization.

So, just how can such a problem be avoided?

Let’s suppose that both sides to such controversy are given an equal platform to “air their grievances”.  A platform that will moderate the “debate”, allow evidence to be submitted, both sides being heard, even allowing testimony from witnesses, without any prejudicial intervention.  After all of the evidence is submitted, witnesses heard, and statements made, by both parties, it is turned over to a jury of 12 peers (members of the patriot community) to deliberate and come up with a verdict.

Once the verdict is presented, it will be available for all to read, along with the pertinent portions of the trial.  It will remain as reference, for all who might have questions about either, or both of the parties.

The same can be held for questionable organizations or programs.  All that is required is that someone file a Complaint, and the other party answer.  The CoS-CLC will then begin the process for the “trial”.

All that is needed for this invaluable tool to become available for us it to have members of the community, from as diverse a sampling of Patriots as possible, from all walks of life, from all parts of the country.  This is your chance to have your say, to make your voice be heard, to help rid the infighting, and to provide justice, and vindication or validation for those who have been harmed.

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You can learn more about the Court, and volunteer to serve at http://www.committee.org/Court

You can visit the Forum where you can discuss Committees of Safety or join in conversation at the Green Dragon Inn (need not be registered), or, see the Courtroom (must register), at http://www.committee.org/LibertyTree.

We need volunteers to be judges, jurors, and grand jurors.

[For more information on the Common Law Court, see  Committee of Safety – Common Law Court (introduction)]

 

 

The Constitution is NOT a Suicide Pact

Gary Hunt
Outpost of Freedom
March 30, 2011

Through the process of conditioning (programming), especially in government schools and the press, we have lost sight of what this country really is, and, what it stands for.

Though there have been many nations throughout the history of the world, there is only one that was established, independent of outside source, by the people of that nation.  It was a nation of independent people who had learned to cherish their freedom, primarily established by an absence of control from across the ocean.

They had found, though bound by English laws and English government, that absent a regular imposition of that authority, that they did quite well for themselves, taming a wilderness and establishing a productive society, within the limits imposed by that far away government. They were, for all intents and purposes, the first and only truly free civilized nation.

When that foreign government began to impose upon these people who had developed self-sufficiency, beyond any before them, they resented their treatment as “children” rather than being treated as adults, and true sons of England, with all of the rights enjoyed by Englishmen.

Just eleven years after their separation from the then greatest power on the Earth, they established a government in a form that would best suit them — developed, in part, by the political philosophers that preceded them; in part, from what they had learned from the natives of the land they shared; and, in part from their experiences with the previous government, which bonds they had so recently broken.

This new government was embodied in a document which was then styled, “Constitution for the United States of America”. It was, through conventions in the various states, truly a document approved by “We The People”, as its suggests in its preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

In this modern day, we have lost sight of the intention of the Framers of that great document. We can however, look to the past to understand just who embodied those “People” who set on forth this greatest venture in self-government that the world has ever seen.

Our best understanding can be found in a Supreme Court decision, rendered in Dred Scott v. Sandford [60 U.S. 393] , in 1856. Chief Justice Taney, who gave the decision of the Court, went into great detail in defining just who those “People” were.

The case hinges on who had standing, as a “citizen of the United States” (prior to the Fourteenth Amendment) to sue in court.  The details of the case is not necessary to understand the following.

The case ended up in the Supreme Court.  In its decision (below), the Court pointed out that Scott had claimed to be a citizen of Missouri, which would give him standing to sue Sandford.  It found that though Scott was not a citizen of Missouri, or of the United States, that standing for the Court to hear the case was based upon the Courts acting on the fact that the question of citizenship was not in the plea that brought the matter before the Court.

Going directly to the Final Decision, given my Justice Taney, we have the Court’s determination of just who was a “citizen of the United Sates:

“The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing.  They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives.  They are what we familiarly call the ‘sovereign people,’ and every citizen is one of this people, and a constituent member of this sovereignty.  The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty?  We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.  On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.  “

* * *

The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endow him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State, and in its own courts?

The court think the affirmative of these propositions cannot be maintained.  And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts.”

It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, became also citizens of this new political body; but none other; it was formed by them, and for them and their posterity, but for no one else.  And the personal rights and privileges guaranteed to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded.  It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States.  And it gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States.

* * *

“It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted.  And in order to do this, we must recur to the Governments and institutions of the thirteen colonies, when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations.  We must inquire who, at that time, were recognised as the people or citizens of a State, whose rights and liberties had been outraged by the English Government; and who declared their independence, and assumed the powers of Government to defend their rights by force of arms.

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

Now, clearly, it is those who initiated the fight for independence that are of the class recognized by the Constitution as “citizens of the United States”.  Many have pointed out that one of the first to “die for the cause” was a negro named Crispus Attucks, who was shot to death in the “Boston Massacre”, in 1770.  This, however, in the eyes of the Court, does not qualify him as one of the people — for which the country was intended.

Though the decision of the Court continues to give examples of just how the Court perceived this relationship, I would prefer to not include too many more of the over one-hundred and ten thousand words in the Decision.  There are some words, however, that warrant our attention in fully understanding what was intended by the founding of this nation, and so I will provide these few paragraphs:

“The language of the Declaration of Independence is equally conclusive:

It begins by declaring that, ‘when in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and nature’s God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation.’

It then proceeds to say: ‘We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.‘

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood.  But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

Yet the men who framed this declaration were great men-high in literary acquirements-high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting.  They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery.  They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them.  The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language.

The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection.  It declares that it is formed by the people of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity.  It speaks in general terms of the people of the United States, and of citizens of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen.  It does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people.  It uses them as terms so well understood, that no further description or definition was necessary.

So, we have, from many angles, the Supreme Court’s interpretation of who the Constitution was written both by, and, for.  It was never intended to be a catch all for the diverse populations, cultures, and religions of the world.

In 1867, the Fourteenth Amendment to the Constitution was ratified. Though many of the Congressmen believed that its purpose was to provide a place, in this country, for the negro population (recently freed slaves, as well as those negros previously freed), it has since been interpreted, by the government, not the Court, to be inclusive of all walks of life.

The Amendment first made “[a]ll persons born or naturalized. . . . citizens of the United States”. It then prohibited any state from passing laws which would “abridge the privileges and immunities of citizens of the United States”.

Since the Fourteenth Amendment extended the privileges and immunities to those who were henceforth known as “citizens of the United States”, it made no mention, nor is there any wording that would confer upon them, the status of those “sovereign people” who had established this government, and nation. It simply granted to them the “privileges and immunities”.

This left the original intent in place, though extended only certain rights to those who had, prior to the Amendment, no access to those “privileges and immunities”.

The country was still, as intended, only for those who were as described by Justice Taney, “it was formed by them, and for them and their posterity, but for no one else,” though it was then willing to share some of the bounty of this great land with others. In essence, it took  phrase, “citizen of the United States”, and made it a legal term. It did not remove the meaning of “citizen of the United States”, as it existed prior to the amendment, it simply created a second meaning, which, in legal context, conveyed only certain specified rights, and nothing more.

Regardless of the Amendment, we can clearly understand that if the door were opened to include any who wished to walk in and enjoy that bounty, it would absolutely destroy the context in which the country was formed. It was, after all, the heritage and culture, and the moral foundation espoused by Christianity, that was the very foundation for the great experiment. To allow that a single amendment, with an alleged purpose of only extending certain rights, could not be subsequently interpreted to be the means by which all that was embodied in the document to retracted  whiteout specific wording nullifying that original intent.

A nation has to have some binding force. In most nations, that force is the common language, heritage, and, culture, of the dominant people of the nation.  In the United States, that language is English; the heritage is English and the culture is European.  It is under such conditions that the United States evolved into an effective world force between its inception (the Declaration of Independence in 1776) and its ability to defend itself against outside forces (the War of 1812).

Its growth in prestige, power, influence, productivity, and pride, continued to grow, providing what became the deciding factor in World Wars I and II.  It had, without a doubt, become the dominant world power, especially considering that it did not suffer the devastation that most other countries realized in those conflicts.

Since that time, we have begun a downward spiral, destructive of both the nation (integrity of) and the Constitution, with but few exceptions.

In 1954, the Congress enacted the Communist Control Act of 1954. This act recognized that the Communist Party posed an eminent threat to the United States and its Constitution.  The codification of that act, at 50 U.S.C. § 842 , provides that:

The Communist Party of the United States, or any successors of such party regardless of the assumed name, whose object or purpose is to overthrow the Government of the United States, or the government of any State, Territory, District, or possession thereof, or the government of any political subdivision therein by force and violence, are not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof; and whatever rights, privileges, and immunities which have heretofore been granted to said party or any subsidiary organization by reason of the laws of the United States or any political subdivision thereof, are terminated. . .

Clearly, there is legitimate concern that the Communist Party might use force to overthrow the government. Unfortunately, at the time, there was no due consideration of an overthrow by other means, such as subversion of the Constitution by political chicanery.  After all, subversive means had not then been developed to the fine art that has been achieved in the past half-century.

The authority within the Constitution, however, to enact laws that would protect the Constitution were, clearly, within the means and authority of the government.  Would it make any sense to be able to outlaw force as a means of supervision of the Constitution and not to allow means to avoid such an overthrow, without force?

What has effectively happened is that the manipulation, without Amendment to the Constitution, and with the abrogation of the Supreme Court’s responsibility to rule upon the constitutionality of laws (see About Ashwander v. TVA), we have seen a dilution of the Constitution which has resulted in a de facto revision to the Preamble, as follows:

We the People of the United States, in Order to form a more perfect workers Union, establish Justice Injustice, insure domestic Tranquility disharmony, provide for the common defence of any nation we see fit, promote provide the general Welfare, and secure the Blessings of Liberty to all but ourselves and our Posterity, do ordain and establish this Constitution for the United States of America, which shall continue in effect until such time as the people decide that they will burden their posterity with unmanageable debt and allow revision to this Constitution, without regard to the provision in Article V for amendment hereto.

Unless we stand firm and demand that the Nation be retained, as intended by the Framers of the Constitution, we will find that our children will be living in a third world country by the time they have grandchildren.  There is no middle ground.

We must understand that any organization, association, political philosophy, or, religion, which is not consistent with the Constitution, and, our way of life, should of necessity, be made unlawful, since its purpose would be to allow the Constitution to be the weapon of its own demise

The Communist Party and the Socialist Party espouse a politics of government control of, and, redistribution of, wealth.  Islam, though a religion, retains social, political and legal requirements that are inconsistent with our Constitution. Labor unions, though they may have served a useful purpose, in times past, before the government instituted laws that were protective of labor, are now too powerful and political to be consistent with the intention of the Constitution. They have become manipulators of the law, to their own favor, and with total disregard to the economy and our world trade situation.  These serve no useful purpose to the continuation of our way of life, and must be outlawed.

If we don’t act, firmly and soon, we will find that the new Preamble to the Constitution will be taught, at our expense, to our own children:

We the People of the United States, in Order to form a workers Union, establish Injustice, insure domestic disharmony, provide the defence of any nation we see fit, provide the general Welfare, and secure the Blessings of Liberty to all but ourselves and our Posterity, do ordain and establish this Constitution for the United States of America, which shall continue in effect until such time as the people decide that they will burden their posterity with unmanageable debt and allow revision to this Constitution, without regard to the provision in Article V for amendment hereto.

Though the Constitution may be equated to a “birth certificate” for the new nation conceived and embodied within it, unlike a birth certificate that certifies that you and I have entered life, only to leave it at some point in the future, that “birth certificate” was written to include posterity — it was the birth of a perpetual union – intended to live as long as free men do.

* * *

For more information on  who “We the People”, those whom the Constitution was written, by and for, are, see the five part series beginning with “We the People”, but, Who are We? – Part I    and the four part series beginning with Factions — The Chains of Oppression – Part I.

 

 

Committee of Safety
Common Law Court

Introduction

Just prior to and during the Revolutionary War, there was an absence of lawful courts in certain areas affected by the removal of British government, or removal of Charter government.  During this period, the Committees of Safety would establish courts, if the need arose.  They would handle criminal matters, where necessary, though their focus was greater in based upon the need to control Tory activity.  Punishment for being a Tory could be as simple as restriction of travel; house arrest; removal of “long arms”; imprisonment; or, execution.

Of course, there was a war going on, and the means and necessity were different than today.  However, the patriot community is plagued by accusation, defamation, and other activities that are very disruptive, and, are not conducive to a unified effort to restore constitutional government to the United States.

This Committee of Safety — Common Law Court is intended to provide a means, considering both the abilities (ease of communication, etc.) and the disabilities (proximity, etc.), of conducing “trials”, when charges are brought, and providing the fairest means within those constraints of dealing with those problems.

When someone is found “guilty”, they may consider revising their ways, to avoid the stigma of the verdict. They may decide that they no longer want to be a part of the patriot community. They may, also, resort to asking their boss for a reassignment.  In each instance, the patriot community will find itself slightly improved, and, perhaps discourage such activities in others.

Purpose

Empanelled only to hear complaints regarding disruption to the patriot community; creating division in the patriot community; personal attacks unfounded by the evidence; accusations of individuals having allegiance to the government instead of the Constitution; any malicious behavior which brings discredit to the patriot community.

There is a lot of disruption and division within the patriot community. Some is a result of human nature; some may be a result of intentional activity directed at creating division and animosity; and, some may be totally unfounded, perhaps just an error in communication. Regardless of the cause, it is the effect that is so detrimental to our cause of restoring constitutional government to the United States of America.

In looking towards a solution, aimed at minimizing the damaging impact, it only makes sense to look to that same community, those who seek to restore sound constitutional government, for the solution — a solution based upon the very document that we esteem so highly.

Understanding that many of the means that have been utilized, historically, to resolve such matters, what is being presented here is a common law court that will only hear cases of slander: libel: defamation: or, activities which are associated with the patriot community that tend, by their nature, to be disruptive and bring discredit to a segment, or, the entire community, it must also be adapted to the current means of communication, and the vastness of the community.

The process will begin with the filing of a Complaint. The Complaint will go to the Clerk of the Court, who will not be judgmental, only an administrative arm of the Committee of Safety – Common Law Court.

Composition of the Court

Before proceeding with the explanation, the elements of the Court need to be identified. There will be a pool of judges (voluntary) from which three (3) judges will be picked, at random, for any case brought before the Court. The purpose of the judges will be to maintain decorum and order in the court. They may assist parties in preparing coherent documentation; formulating orders from the court, assisting the Grand Jury in preparing an indictment

There will be a pool of Grand Jurors (voluntary), of which five (5) regular jurors and two (2) alternate jurors will be randomly selected every six months, and will not be able to sit, again, until six months after the completion of any term that have participated in, even as an alternate juror. The Grand Jury shall be unknown and inaccessible during their entire term. They will prepare indictments, based upon Complaints, if probable cause is determined.

There will be a jury pool (voluntary), from which seven (7) jurors will be randomly selected, for each trial. In addition both the Accuser and the Accused will appoint one (1) juror to the jury.  Three (3) alternative judges will be randomly selected, though will be in “read only” participation, unless a regular juror is unable to participate, or removed for cause. The Jury will try the case, and will be allowed to ask questions, through the judges, during the course of the trial. Their verdict shall be the final decision of the Court, unless an appeal is granted.

There will be a Clerk of the Court who will retain that position as long as they desire, subject, however, to removal by the judges for failure to perform, or, failure to maintain records, correspondence, etc., or to divulge any information to other than those intended to receive such information, records, etc.   There shall also be an Assistant Clerk who will fill in when the Clerk is unable to attend to duties, or has been discharged for cause.  Any two (2) judges sitting on a current proceeding may require the removal of a Clerk. The Clerk will maintain, in proper order, all correspondence, complaints, indictments, verdicts and any other records for every case. He may delegate to the Assistant Clerk, as necessary, though this shall only be done when the workload warrants additional help.

There will be an Internet Forum which shall serve as the Courthouse for trials and all information pertaining to any case brought before this Court.

This is the composition of the Court, which personnel will change with each case, with the exception of the Grand Jury.

Procedure for a Complaint

An Accuser, who wishes to accuse another, and bring them to trial in the Committee of Safety – Common Law Court can file a complaint with the Clerk.  Participation of the Accuser, and agreement to jurisdiction of the Court; its procedures; and, its final decision, are granted by filing a Complaint.

The Accused, once they answer any request for information or indictment from the Grand Jury, has agreed to jurisdiction of the Court; its procedures; and, its final decision, by virtue of their response. Absent a response, there is no jurisdiction granted, and the Court may publish any information provided by the Accuser, any findings, and, the indictment, along with an explanation that the Accused refused to respond to the Complaint and/or indictment, and has thereby waived consideration of any answer to the accusations.

Once the Complaint is filed with the Clerk of the Court, the Clerk will forward copies of all information received to the three judges which the Clerk will select, randomly, from the pool of judges. If any of the selected judges finds that he is familiar with either party, or for any reason determines himself unable to be impartial, he shall remove himself, in which case the Clerk will select another judge to fill such vacancy.

The Clerk will also notify the Accuser of the names of the judges. The Accuser, for cause, may request recusal of any of the judges that he feels may not be impartial; however, he must provide written cause along with the request for recusal. The judge in question may remove himself, however, if he does not voluntarily remove himself, the other two judges may rule on the recusal, however, if more than one judge is named in the recusal, the Clerk shall call two (2) judges from the judge pool who will sit with the third judge to weigh the merit, and make determination on the recusal. The Clerk will then fill any vacancies created by recusal from the judge pool.

The judges will prepare a concise presentation of the Complain. If evidence is necessary to substantiate information provided in the Complaint, the judges will notify the Clerk that additional information is needed. The Clerk shall then inform the Accuser, who shall provide the additional information requested.

Once the judges have determined that the Compliant, and supportive information, be complete, the package shall be provided to the Grand Jury. The Grand Jury may, through the Clerk, request additional information through the judges, who will pass the request to the Clerk, who will pass the request to the Accuser.

When the Grand Jury has completed its review of the information provided supportive of the Complaint, they shall prepare an indictment. They may request the assistance of the judges in preparing the indictment, if they so desire. When the indictment is completed, they shall provide the indictment, along with any copies of evidence they feel should be included, to the Clerk to send to the Accused. The Clerk shall also provide the names of the judges currently assigned to the matter, and the Accused shall have the same right to request recusal of any of the judges. This will be the first knowledge of the Accused that proceedings are being considered against him.

The Accused will have the opportunity to reply to the Grand Jury, with evidence, answering the accusations made against him. This will be the only opportunity, prior to trial, to address the Complaint. This information will be returned to the Clerk who will provide the Accused’s answer to the Grand Jury and the judges.

The Grand Jury shall then review the answer provided by the Accused and determine if there is merit to the accusation, in which cause the y will find probable cause and provide a True Bill to the Clerk. If they find that there is insufficient probable cause, they will provide a No Bill to the Clerk, who will then destroy all records pertaining to the case.

In the event that the Accused refuses to recognize the Court and submit to jurisdiction, which may be indicated by a direct answer, or, failure to respond to the indictment within thirty (30) working days (six weeks), the Court shall make public the indictment and any evidence supportive of the indictment, at the discretion of the judges, by posting the documentation in the Closed Docket Forum.

Jury Selection.

The jury will be composed as described above. Jurors will have their name posted at the beginning of the trial, in the Courtroom (see below). Either party, for cause, may request the removal of a juror. A reason must be given and the judges will rule on removal. The party selected jurors shall not be subject to removal. Vacancies in the jury will be filled by the Clerk prior to opening arguments.

Proceedings

If the Accused has answered, a Courtroom will be opened in the Forum Courthouse, bearing the name of both the Accuser and the Accused, along with a very general statement of the cause of action. Access to the Courtroom, at this point, will be Clerk – read only; judges – read/write; Accuser and Accused – read/write; jury – read only; others, no access during the trial.

At trial, the Accuser and the Accused shall restrain themselves from posting, unless the floor is theirs. The judges will open the proceedings by reading the charges.

Then, opening arguments from the Accuser; then the Accused, shall be presented. Each will have a thread in the Courtroom Forum. The charges will be presented in “Counts”. All discussion relative to a Count shall be on the thread for that Count. To maintain a proper sequence, the judges (court) will advise when and what either of the parties may post.  The parties may write their comments in a text editor, but they should not be pasted in the forum until told to do so.

There will be a thread named “bench” where the parties can pose questions to the court, at any time. This “bench” will not be made a public record, so what is posted there will not be a part of the public trial, available after the case is closed.

Jurors may direct questions they wish asked of either, or both, of the parties, by posting them to the “Clerk” thread. The judges will then formulate the question to be presented to the party to whom it is directed, including a Count assignment, where the party shall answer the question.

Objections will be posted at the Bench thread. Any objection will be ruled upon by the bench prior to proceeding with the trial.

Witnesses may be called, and they will be allowed access to the Courtroom only during their testimony.  They will be subject to cross examination. Any witness may be recalled by either party, though there is no subpoenaed power in this forum. The jury will also be allowed to ask questions of witnesses through the Clerk. If a witness testifies for one party and refuses to answer cross examination by the other party, or questions from the jury, his testimony will be stricken, and the jury will ignore the testimony. The trial will conclude with closing arguments (threaded) after the completion of the submission of all evidence.

Closing arguments will be presented by both parties, Accuser being the first to offer closing, with a short rebuttal allowed to each party. Closing arguments and rebuttals will mark the end of the trail.

Jury Deliberation

The jury will then be directed to the Jury Room Forum where they will deliberate. They will have full access to the Courtroom, and may ask any questions of the judges, if they so desire. Their deliberations should be maintained in the Count threads, or in a general thread, depending on particular discussion — based upon the judgment of the jurors.

Every effort should be made to come to a unanimous verdict, on each of the Counts. This will be highly unlikely, since each party has a juror present. If six jurors do find for one side, the Court will consider that verdict as unanimous.

Final Decision

The final verdict, however, will be based upon the preponderance of evidence, for each count, and the verdict will be final, subject only to appeal (explained later). The jury will then prepare, with the assistance of a judge, or judges, final pronouncement of the Court (Final Decision). The final decision will be posted on the Docket Forum. Others are able to copy and utilize the final decision, for information purposes, so long as it remains unedited and the source (URL) for the permanent record (Docket Forum) is attached to any copies distributed. Violations of this practice (complete decision and URL) will result in a contempt of court against the violator(s), and that violation will be posted, attached to the final decision, in the Docket Forum.

At this time, the Courtroom will be opened (read only) to provide public access to the proceedings. It will be locked, and no changes or postings will be made after the close of trial, except that the final decision will also be posted in the Courtroom.

Appeals

Decisions of the Court are subject to appeal. Appeal Hearings may be granted by a five (5) judge panel, randomly selected by the Clerk, none of which can be judges from the original trial.

Basis for Appeals:

New evidence, unavailable at time of trial

New witnesses, unavailable at trail

Other circumstances which, when brought forward, might affect the outcome of the original trial

To Appeal a Decision of the Court, the Appellant must submit to the Clerk a request for a hearing before the above mentioned panel, which will be empanelled upon receipt of the request. Full detail, including evidence to support request for appeal, must be submitted with the original request. The appeals panel may require additional information.

If the determination of the appeals panel is in favor of the appeal, the Panel may:

Hold hearings, with both parties participating; or,

Retry the matter, subject only to the additional information brought toward, though incorporated with the Jury deliberations form the original trial.

Either hearing or retrial can result in setting aside portions, or all, of the original Final Decision of the Court.

All records, evidence, etc., brought up in hearing or retrial will become a permanent part of the record of the trial.

[For more information on the Common Law Court, see Committee of Safety – Common Law Court (an explanation]

 

Introduction to Committees of Safety

Committees of Safety, or like elements, existed throughout the history of colonial America.  Though known by various names (Committees of Protection, Associations, or, as the case in Plymouth Colony, an unnamed civil body politic, and, in Jamestown, simply governing council), they had the characteristic of being a civil government absent a government established by the sovereign.

* * * * * * * * * * * * *Mayflower CompactIn ye name of God Amen· We whose names are vnderwriten, the loyall subjects of our dread soueraigne Lord King James by ye grace of God, of great Britaine, franc, & Ireland king, defender of ye faith, &cHaueing vndertaken, for ye glorie of God, and aduancemente of ye christian ^faith and honour of our king & countrie, a voyage to plant ye first colonie in ye Northerne parts of Virginia· doe by these presents solemnly & mutualy in ye presence of God, and one of another, couenant, & combine our selues togeather into a ciuill body politick; for ye our better ordering, & preseruation & fur= therance of ye ends aforesaid; and by vertue hearof, to enacte, constitute, and frame shuch just & equall lawes, ordinances, Acts, constitutions, & offices, from time to time, as shall be thought most meete & conuenient for ye generall good of ye colonie:  vnto which we promise all due submission and obedience.  In witnes wherof we haue herevnder subscribed our names at Cap= Codd ye ·11· of Nouember, in ye year of ye raigne of our soueraigne Lord king James of England, france, & Ireland ye eighteenth and of Scotland ye fiftie fourth. Ano: Dom ·1620·| * * * * * * * * * * * * *

 

In the early eighteenth century, Committees of Safety were quite common, especially on the frontiers, where the possibility if Indian attacks were likely.  The Committee would appoint watchmen, hog reeves, fence reeves, and, militia officers.  These are functions that were taken on by more organized governments, in some towns, though were common through most of the colonies, leading up to the War of Independence.

Committees served, primarily, to fill in gaps that were left by existing colonial and county governments, providing services that were otherwise unavailable.

As tensions grew between the colonists and the Crown government in England, the need for Committees increased, especially in western Massachusetts and South Carolina.  After the Massachusetts Government Act (May 20, 1774), which revoked the Massachusetts Charter and replace the locally elected governments with appointments by the King, the farmers in western Massachusetts began forming Committee to assure a continuity of government and to take charge in expelling courts and judges who were not abiding by the original charter, and replacing them with their owns courts, though primarily only for criminal matters.

There were sufficient numbers of Committees in most of the colonies to call for the First Continental Congress, in 1774.  These Committees were not subject to Royal governance, because, quite simply, to call for such a Congress would have been a contradiction of their authority granted by the various charters.  Subsequently, the Second and Third Continental Congress were called by the Committees, which by this time, had evolved to the point where sufficient numbers of participating Committees established a Provincial Committee of Safety.

Committees of Safety continued to operate as functions of local government throughout the War of Independence, until each state adopted a Constitution, or otherwise revised their form of government, absent any Royal control.  Once the Article of Confederation were instituted (1781), the need for the Committees, except, once again, in the frontiers, diminished, as did the Committees.

Their next occurrence was in 1835, when President Santa Anna abolished the Constitution of 1824, granting himself enormous powers over the government.  Colonists in Texas began forming Committees of Correspondence and Safety.  A central Committee in San Felipe de Austin coordinated their activities.  This de facto government waged the revolution against Mexico, directing and supplying the militia, until independence was won.

What role could Committees of Safety play in today’s world?

Events such as Katrina, as well as the possibility of man caused disasters, are potential threats to the security, safety, and well-being of our families.

If a Committee existed in your community, and you were a member, then your family is also a member.  Suppose there was some sort of event that affected food supply, utilities, water, or otherwise threatened your safety.  You have in place, through the Committee, a cooperative with which to share needed resources.  Though short lived in Plymouth Colony and Jamestown, this “cooperative” served quite well for survival in a hostile land, for the first few years.

It also allowed the sharing of crops in the frontier towns and agricultural communities, in later colonial times, when Indian raids, or weather, destroyed crops, which would leave those affected short of food, had their neighbors (fellow Committee members) not shared with them what food was available.

In the aftermath of Katrina, if a Committee existed in a consolidated area (a community), and sent a representative to the local law enforcement with the message, “we will provide our own protection in our area”, describing the limits of the area protected by the Committee, it would make sense the law enforcement would be relieved that their job was made easier based upon the Committee relieving them of a substantial area that might otherwise require their patrolling.

The Committee would be a resource for such eventualities, and would be an ideal place from which to gain recognition by launching programs to help those in need.  Roof repairs, painting, yard maintenance, etc., for those unable to care for their own property.  This would encourage friendship, appeal to potential members, improve the quality of the neighborhood, and set the Committee out as supportive of the neighborly attitude that prevailed in this country, many decades ago.  This would result in reduced crime, safer streets and communities, and, a reaffirmation of our rights, freedoms, and liberty.

Committees of Safety are quite able to fill in where government fails to provide, at least for those who see the need, join, and, participate in, Committees of Safety.

http://www.committee.org/

A Simplified Explanation of
“The Plan for the Restoration of Constitutional Government”

I have been asked for a sentence, or two, to describe “The Plan For the Restoration of Constitutional Government”. Well, I could not provide such a short description due to the complexity of the Plan, itself.

However, in numerous phone conversations, I have tried to provide an explanation of the Plan, and I do believe that I have found a descriptive means of demonstrating just how it would work.

Suppose you had a map of the United States and it was all black. Black represents areas that are under the control of repressive government (yes, this also includes all state governments that have submitted to receiving federal funds — all of them).

Now, suppose a very small white dot appears on the map. Within a few days, a few more white dots appear. These white areas (even though very, very small, at first) represent areas that have returned to Constitutional government, regardless of the means. As time goes on, these small white dots become more frequent, and, they begin to become larger.

After a short period of time, some of the dots, now growing into definable shape, stretch out and merge with another white area.

As time goes on, these areas become even large, merging with other areas, and, soon, encompassing counties within their respective state. Growing and merging, the will soon encompass most of the state, perhaps wrapping around large population areas (cities and metropolitan areas).

As they continue to grow, they will cross state lines and begin absorbing the high population areas, until the map has been reversed, and the black areas are reduced to dots, and then disappear completely.

So, if I have been successful in reducing the Plan to a simple and easily conveyed explanation, perhaps you would like to go to The Plan for Restoration of Constitutional Government,  and download a copy of The Plan.

When you read the Plan, you will see that it is based upon our own history. It is an emulation of the same course taken by our own Founders in securing the colonies that were soon to become the United States of America.

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

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.

Some Thoughts on Taxation

Gary Hunt
Outpost of Freedom
November 24, 2010

 Introduction

Taxation is often considered one of the most burdensome and oppressive duties of government.  “There are only two things certain; Death and Taxes”, quite adequately describes the effect of taxes upon our daily lives.

Though far from truth, schoolbooks have, for generations, proclaimed that “No Taxation without Representation” was the cause of the Revolutionary War.  There is no doubt that the fact that the colonies had no representation in Parliament was one of many points of contention between colonies and Crown.  This very fact was the subject of many speeches, on both sides of the Atlantic.

It has been suggested, on the western side of the Atlantic, that if the colonies were allowed to raise their own taxes, based upon both their needs and requisitions from Parliament, this objection would have been overcome.  So, let’s keep that thought in mind as we look at our history with regard to the subject of taxation.

We need to understand that the Framers had to deal with the touchy subject of taxation based upon the role it played in leading up to separation from England as well as the brief history and problems posed between Independence and the Constitution.  The former has just been addressed, so we will look at the later.

Two situations provided the Framers some concern in dealing with the subject.  The first was that the requisitions imposed by the Continental Congress, both before and under the Articles of Confederation were ignored by a number of states, ultimately resulting in abandoning efforts to collect the requisitions and relieving those debts not paid.

The second situation was known as Shay’s Rebellion [1787].  Farmers in Western Massachusetts had been taxed by the State, the purpose being for the State to be able to pay its obligations to the Congress, as well as have operating funds for the function of the Massachusetts government.  This was compounded by the absence of specie (gold or silver) through the colonies.  Repayment of debt on foreign loans required specie.

Now, to source documents:

Constitution

Article I, Section 2, clause 3:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons…

Article I, Section 7, clause 1:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Article I, Section 8, clause 1:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Article I, Section 9, clause 1:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Article I, Section 9, clauses 4 & 5:

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

Article I, Section 10, clauses 1 thru 3:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts;

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Amendment 16 [1913]:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Amendment [XVII] [1913]

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.  The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

Amendment 19 [1964]:

Section 1–The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Federalist Papers

The Federalist Papers are accepted as an indication of the intent to the Framers, and, of those who ratified that Constitution.

Federalist Papers #12, Alexander Hamilton:

The prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares….  It has been found in various countries that, in proportion as commerce has flourished, land has risen in value.

***

The ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates.  Commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury.

***

But it is not in this aspect of the subject alone that Union will be seen to conduce to the purpose of revenue.  There are other points of view, in which its influence will appear more immediate and decisive.  It is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation.  Tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the States have remained empty.

***

No person acquainted with what happens in other countries will be surprised at this circumstance.  In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises.  Duties on imported articles form a large branch of this latter description.

***

Revenue, therefore, must be had at all events.  In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land.

Federalist Papers #30, Alexander Hamilton:

Let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged.  We will presume, for argument’s sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the Union.  Thus circumstanced, a war breaks out.  What would be the probable conduct of the government in such an emergency?  Taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defence of the State?  It is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety.

Federalist Papers #45, James Madison:

If the federal government is to have collectors of revenue, the State governments will have theirs also.  And as those of the former will be principally on the sea-coast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side.  It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; then an option will then be given to the States to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States.

***

The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people and the internal order, improvement, and prosperity of the State.

Constitutional Intent

“Representation and Direct Taxes shall be apportioned among the several States” provides an insight into one of the methods of funding for the federal government.  Representation was to be based upon population, and, the funds needed in excess of those derived by other means were to be supplemented proportioned on the strength of voting power of each state in the House of Representatives.

Let’s look at the relationship between taxation, spending, and representation.  First, we have “All Bills for raising Revenue shall originate in the House of Representatives“, giving that representative body the exclusive power to raise taxes, though concurrence by the Senate and the President were still required.

Now, let’s look at the Senate.  Senators were appointed by the State legislatures, prior to the adoption of the 17th Amendment, and, consequently, would look out for the interest of the State, while the representatives would look out for the interests of the people who comprised their constituency.  So, we have both the people and the state with representation to look out for their respective interests.

If the Representatives felt a need for raising revenue, the would “originate” a bill to that effect.  The Senate, if the burden were put upon the states to raise the revenue, might be concerned and refuse to approve the bill, saving the respective legislatures from having to raise taxes to raise revenues to meet the needs of the federal government.

In a sense, we would have three, independent bodies exerting caution over any increase in revenue; the House of Representatives ; the Senate; and, the respective state legislatures, which would have the responsibility of raising additional revenue, as well as the ire of the people in so doing. 

If we delve a bit deeper into this concept, we can see that there is a consistency with the feelings of the Founders when they coined the phrase, “No Taxation without Representation“.  If we equate the Parliament with the Congress, and, the state legislatures with the colonial assemblies, we can see a parallel, which would require the state legislature (colonial assembly) to enact revenue laws based upon requisitions by the Congress (Parliament).  Clearly, this concept has strong support from our history books.

To address the Founders concerns, perhaps it would be appropriate to have representatives in the Congress to enact and approve revenue bills, and then, requisition to the states; the state legislature to raise the revenues so required.

Also, the intent of the involvement of the states in collecting the revenue was made clear by James Madison (FP #45), when he said, “It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; then an option will then be given to the States to supply their quotas by previous collections of their own.” 

We need not wonder why this method, of the state paying quotas, was not primary.  The experience of the recent past had proven, under the Articles of Confederation, that collection would be, at best, difficult.  There had been no experience under the Constitution and strengthened federal government to dispel such concern.  Recent history, however, has demonstrated that the federal government is quite able to enforce compliance, which makes moot this concern.

Madison also points out, in the same number, that the primary need for additional revenue would be consistent with, “The powers delegated by the proposed Constitution to the federal government [which] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”

Subsequently, in 1913, this whole concept of taxation was turned on end.  With the enactment of the 16th and 17th Amendments to the Constitution (coincidently, the same year that the Federal Reserve Act and currency contrary to the Constitution) were ratified, changing our whole economic structure by rendering gold and silver equal to, or subordinate to, promissory notes (Federal Reserve Notes).  Money was relegated to a system without value.

Clearly, the type of expenditures we have today were not within the scope imagined by Madison.  Quite possibly, if the tax structure was maintained along the original concepts, we would not have the enormous debt to repay.

Continuing on with the subject, let’s see what Alexander Hamilton thought should be the primary source of revenue. 

In Federalist Papers # 12, he said, “The prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth, and has accordingly become a primary object of their political cares…” 

He continues, “The ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates.  Commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury.”

He then advises that, “[i]t is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation…”

In support of the use of commerce as the primary source of revenue, he says, “No person acquainted with what happens in other countries will be surprised at this circumstance.  In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, for the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises.  Duties on imported articles form a large branch of this latter description.”  Included in this is a comparison to England, where the rich are well defined, and a source of revenue.  Something that might be worthy of consideration.

Finally, in this number, he concludes with the significance of the burden on other sources than revenue, when he says, “Revenue, therefore, must be had at all events.  In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land.”

To demonstrate the nature of change in how government operates, we can look at the concerns that Mr. Hamilton placed upon the ability of the country to borrow money, should the need arise, in Federalist Papers #30:

Let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged.  We will presume, for argument’s sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the Union.  Thus circumstanced, a war breaks out.  What would be the probable conduct of the government in such an emergency?  Taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defence of the State?  It is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety.

Clearly, times have changed.  The ability of the government to borrow money on the “public credit” is, without question, indisputable.  So, many of the concerns of the Framers have fallen by the wayside.  Perhaps legitimate under the then circumstances, times, and the new federal government under the Constitution, have changed.  Perhaps, now, it is time to reevaluate the method of federal taxation to be consistent with what was expressed, then, though not put into service because of those concerns.

Some Definitions

From Webster’s 1828 Dictionary:

Apportion, v. t.
To divide and assign in just proportion; to distribute among two or more, a just part or share to each; as, to apportion undivided rights; to apportion time among various employments.

Duty, n.
Tax, toll, impost, or customs; excise; any sum of money required by government to be paid on the importation, exportation, or consumption of goods.  An impost on land or other real estate, and on stock of farmers, is not called a duty, but a direct tax.

Impost, n.
1.  Any tax or tribute imposed by authority; particularly, a duty or tax laid by governments on goods imported, and paid or secured by the importer at the time of importation.

Excise, n.
An inland duty or impost, laid on commodities consumed, or on the retail, which is the last stage before consumption; as an excise on coffee, soap, candles, which a person consumes in his family.  But many articles are excised at the manufactories, as spirit at the distillery, printed silks and linens at the printers, &c.

Capitation, n.
1.  Numeration by the head; a numbering of persons.
2.  The tax, or imposition upon each head or persons; a poll tax.

Income, n.
That gain which proceeds from labor, business or property of any kind; the produce of a farm; the rent of houses; the proceeds of professional business; the profits of commerce or of occupation; the interest of money or stock in funds.

Tarif, n.
1.  Properly, a list or table of goods with the duties or customs to be paid for the same, either on importation or exportation, whether such duties are imposed by the government of a country, or agreed on by the princes or governments of two countries holding commerce with each other.
2.  A list or table of duties or customs to be paid on goods imported or exported.

Considerations

There can be little doubt that the structure of government and apportionment had a purpose, in the minds of the Framers.  At the time of the Federal Reserve Act, 16th and 17th Amendments [1913], the national debt had remained relatively level with that of just after the Civil War, about 2.5 billion dollars.  Within just a few years, it has gone from that stable 2.5 billion to nearly 5,000 times that amount in 2010.  Can there be any question as to the ability of the government to borrow money.  The problem remains, however, that as we continue to borrow, can that debt be repaid.  Taxation has become a means to pay the interest, though it is not sufficient to retire the debt.

By having direct taxes, without apportionment, easily imposed upon us, we have implemented a direct line from our wallets to the government.  Considering that all direct taxes were intended to be apportioned, we can look at the Sixteenth Amendment to see what it really says.  Remember, the Constitution required apportionment, and, it anticipated that direct taxes would be on land, not on the earnings of a workingman.  The Amendment reads:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Rather than going in to the legal ramifications of the Amendment, which has yet to be resolved by the courts, we can wonder what “gain” (definition of income) meant, then, as well as, if it was a direct tax upon something not previously granted, why it had to include the exclusion of apportionment.

If our debt had not grown since the civil war, and there was no need for additional revenue, why would Congress propose, and the states ratify, an amendment that created a completely new method of taxation.  After all, they had not exercised all of those taxes anticipated by the Framers, though in the slow evolution of the “income tax” to what it has become, invading our private records for information; multitudes of new officers to seize our property.  After all, from an historical perspective, we can look to the Declaration of Independence to see that such a means as was to be used to collect this new tax was well defined in the objections to the British Rule that resulted in our independency.  From the enumerated complaints in the Declaration, “He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance”.  What conceivable method of taxation could require more new offices and officers to harass our people and eat out their substance?

Now, with this in mind, what impelled Congress to establish the most burdensome and intrusive means of tax collection possible?  Duties are based upon tariffs, and easily collected at ports of entry.  Excise taxes are collected by those licensed for the particular activity upon which the tax applies.  Finally, land, which doesn’t move, is already assessed as to value, and has collection methods in place.  Instead, the Congress established a new form of taxation, never before conceived as to being practical, and at present, requiring review and collecting from over two hundred million people, along with the forces necessary to review, audit and collect those taxes.  To add to the idiocy of that system, how many of the people’s own hours of life are committed, each year, to the production of the necessary records to satisfy those tens of thousands of agents, taking that time away from them, their families, their leisure, and their productive pursuits?

We need to consider, too, a couple more events in our history that reflect on taxation.  First was the excise tax on WHISKEY, resulting in the Whiskey Rebellion in 1791.  The country needed money.  They imposed a tax on the production of whiskey.  Whiskey was a product of surplus grain. Since the producers of whiskey in Pennsylvania had very little in the way of circulating money, they were unable to pay the taxes.  So, they would either have to stop producing, which meant that they could not barter with the whiskey, or they would have to find some “hard currency” to pay the taxes.  They were put down by force, and all we have to gain from this event is the experience of the effect of misplaced excise taxes.

The other situation lead to the bloodiest war in our history.  Contrary to popular belief, the slave issue was not the primary event leading to the Civil War.  Slavery did not become an issue until well into the war, though states had seceded from the Union even before Lincoln was inaugurated.

Congress, however, had enacted tariffs that were unequal, and detrimental to the South and its economy.  High important tariffs forced them to buy manufactured goods from the North, paying more than what overseas source would require for the same products.  It was based upon forms of taxes more than slavery that forced the disjointing of the Union.

Conclusion

Federal taxes must be Constitutional, and should be as little burden on the people as possible.  Regardless of what the tax is imposed on, the people will ultimately be the source of that revenue.  If on import duties, the people will pay higher prices.  If on excise taxes, the people will pay higher prices.  The importers and manufacturers will simply add the cost to the product to recover the cost of the taxes.

Excise, impost and duties can be applied in an equitable manner if due consideration (not benefit for contributions to campaigns) of their source is considered. 

Let’s look at Duty taxes.  If the duty is on a product produced in a foreign country, and also produced in the United States, a duty tax that penalized the foreign importer in favor of the American producer might be warranted, unless it was high enough to be protective of the American product, allowing excessive profit to the American Manufacturer.  Balance of trade should also be considered with regard to import duties.  If we allow too many imports and reduce our exports, we create an imbalance of trade whereby we owe foreign nations more than they owe us.  Ultimately, this will have a detrimental effect on our whole economy.

Consideration should also be made as to whether a product is a necessity, or, for comfortable life, or, a luxury, something only desired by a small portion of our population.  Consideration of the circumstance that lead to the Civil War, where the duties tended to place an economic burden on an entire region should be avoided.

To provide fairness in such taxes, perhaps a list of general categories could be developed and all products within that category be taxed at the same rate, or a very small range within that category.

Excise taxes pose a different sort of problem.  When the tax is applied to one object, the price of that object is increased.  In many instances, today, the tax on an item may well exceed the cost to produce, distribute, and sell that item.  This amounts to an extremely unfair burden on those who use that product.  It might also provide an economic favor to a similar item that is not subject to the same excise tax.

* * *

Now, let us look at the direct taxes.  At the time of the Constitution, there were two forms of direct tax.  One was on land; the other was a capitation tax, which was an equal tax on each ‘head’.  One form of capitation tax was the poll tax, which was made illegal by the 19th Amendment.  The only tax even remotely similar to the Capitation Tax, that we have, today, though not envisioned by the Framers, is the income tax.  It is not apportioned, though the Framers considered apportioning to be absolutely necessary in both direct taxes and representation.  Surely, the impracticality, along with the expense associated with collecting the income tax, makes it a likely candidate for history, not for a means of efficiently and effectively raising revenue.

Perhaps an alternative in the method of collection, consistent with what Mr. Madison gave us, would be in order.  Suppose we realize that the federal government will never again face the difficulty in receiving monies due from requisitions to the states.  Can there be any doubt that the means, and, more than likely, the willingness to “pay up”, by the states, exists?  Especially, if the 17th Amendment is repealed, thereby returning to the state legislatures the means to resist excessive taxation that they will have to eat out [the] substance of their constituent’s pockets?  Clearly, they understand more than the federal government the economic abilities of their own state.  Clearly, they would best represent us in defending against excessive spending by the federal government.

We can include another benefit to this method of collection.  Today, the federal government collects taxes through their burdensome system.  They then establish a bureaucracy, which is assigned the responsibility to determine redistribution back to the states, based upon evaluation of need determined by people appointed, not elected, into that capacity.  How susceptible to undue influence is such a system?  And, how many dollars are squandered in the re-administration of funds that left the state only to be returned to them?  Finally, how much influence has the redistribution given to the state and local government by simply putting conditions, probably detrimental to the people, on those agencies that are the beneficiary of these returned funds?  Are not our local and state governments more qualified to determine where this money should go to support the needs of the state?  Need we pay federal people to ask state people, whom we also have to pay, to decide the what, where and how much will come back to the state, and pay both ends of this middleman when he is not even necessary if the State collects the funds before settling the requisition, and then retains that which is left?

Some Thoughts on the Election Process

 Gary Hunt
Outpost of Freedom
November 22, 2010

 Introduction

Whether we want to refer to the United States as a Democracy, a Republic or a Constitutional Republic is inconsequential.  It is how the government operates that really matters.

In all three decryptions, it is assumed that there will be elections, and that we will have our choice of candidates — to represent us in local, state, and federal offices.

We must wonder, considering the results of elections, especially in our recent past, whether we have been exercising that franchise in a proper manner — as was intended by the Framers.

Understand that what we are talking about is “electors”.  This is not to be misunderstood as to be referring to the electors in the “electoral college” any more than students of a grade school would be misunderstood to include students of a college.

Though the minimum qualifications may be the same, the various levels of electors are based upon their function.  The function described herein is of those at the lowly level of electors within a Republican (Article IV, Section 4) State.

Constitution

Article I, Section 2, clause 1:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Article I, Section 4, clause 1:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Article II, Section 1, clause 2:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Article IV, Section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Amendment XIV [1868]

Section 1–All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2–Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.  But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 5–The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Amendment XV [1870]

Section 1–The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2–The Congress shall have power to enforce this article by appropriate legislation.

Amendment [XIX] [1920]

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Amendment [XXIV] [1964]

Section 1–The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2–The Congress shall have power to enforce this article by appropriate legislation.

Amendment [XXVI] [1971]

Section 1–The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2–The Congress shall have power to enforce this article by appropriate legislation.

Federalist Papers

In Federalist Papers #52, James Madison says, “Those of the former [House of Representatives] are to be the same with those of the electors of the most numerous branch of the State legislature.  The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.  It was incumbent on the convention, therefore, to define and establish this right in the Constitution.  To have left it open for the occasional regulation of the Congress, would have been improper…”

Later, in that same Paper, he says, “Who are to be the electors of the federal representatives?  Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune.  The electors are to be the great body of the people of the United States.  They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State.“

Other Historical Sources

Delaware Charter of 1701:

FOR the well governing of this Province and Territories, there shall be an assembly a yearly chosen, by the Freemen thereof…

Address of General Assembly of New York to Lieutenant Governor George Clarke,
September 7, 1737.

Persons that are fairly and freely chosen, have only right to represent the People, and are most likely to do the most effectual, as well as the most acceptable Service to the Public: Whereas those who have recourse to Frauds and unbecoming Arts, to procure themselves to be raised to those Stations, must be under the Government of narrow and selfish Views, unworthy any Representation of a free People, and will no doubt basely submit to those same detestable Measures, to continue themselves (by any Means) in the Exercise of a Trust unjustly acquired.  It is by such as these, that the Liberties of the most free People have been in various Ages of the World, undermined and subverted: And it is to prevent this, as much as we may, that we gave Leave to bring in the Bill, for regulating of the Elections.

William Blackstone, Commentaries 1:165, [1765]

1.  As to the qualifications of the electors.  The true reason for requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own.  If these persons had votes, they would be tempted to dispose of them under some undue influence or other.  This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with the general liberty.  If it were probable that every man would give his vote freely, and without influence of any kind, and, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life.  But, since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other.

John Adams, On the Importance of Property for the Suffrage [1776]

James Sullivan, a member of the provincial congress of Massachusetts, corresponded with John Adams in May 1776 when the latter was a member of the Second Continental Congress.  On May 6, Sullivan wrote a letter to Adams in which he discussed the principles of representation and legislation and called for some alterations in the qualifications for voters.  Adams replied in the following letter of May 26, 1776.

IT IS CERTAIN, in theory, that the only moral foundation of government is the consent of the people.  But to what an extent shall we carry this principle?  Shall we say that every individual of the community, old and young, male and female, as well as rich and poor, must consent, expressly, to every act of legislation?  No, you will say, this is impossible.  How, then, does the right arise in the majority to govern the minority against their will?  Whence arises the right of the men to govern the women without their consent?  Whence the right of the old to bind the young without theirs?

But let us first suppose that the whole community, of every age, rank, sex, and condition, has a right to vote.  This community is assembled.  A motion is made, and carried by a majority of one voice.  The minority will not agree to this.  Whence arises the right of the majority to govern, and the obligation of the minority to obey?

From necessity, you will say, because there can be no other rule.

But why exclude women?

You will say, because their delicacy renders them unfit for practice and experience in the great businesses of life, and the hardy enterprises of war, as well as the arduous cares of state.  Besides, their attention is So much engaged with the necessary nurture of their children that nature has made them fittest for domestic cares.  And children have not judgment or will of their own.  True.  But will not these reasons apply to other?  Is it not equally true that men in general,  in every society, who are wholly destitute of property are also too little acquainted with public affairs to form a right judgment, and too dependent upon other men to have a will of their own?  If this is a fact, if you give to every man who has no property a vote, will you not make a fine encouraging provision for corruption by your fundamental law?  Such is the frailty of the human heart that very few men who have no property have any judgment of their own… talk and vote as they are directed by man of property who has attached their minds to his interest.

Upon my word, Sir, I have long thought an army a piece of clockwork, and to be governed only by principles and maxims, fixed as any in mechanics; and, by all that I have read in the history of mankind and authors who have speculated upon society and government, I am much inclined to think a government must manage a society in the same manner; and that this is machinery too.

Harrington has shown that power always follows property.  This I believe to be as infallible a maxim in politics, as that action and reaction are equal is in mechanics.  Nay, I believe we may advance one step farther, and affirm that the balance of power in a society accompanies the balance of property in land.  The only possible way, then, of reserving the balance of power on the side of equal liberty and public virtue is to make the acquisition of land easy to every member of society; to make a division of the land Into small quantities, so that the multitude may be possessed of landed estates.  If the multitude is possessed of the balance of real estate, the multitude will have the balance of power, and in that case the multitude will take care of the liberty, virtue, and interest of the multitude in all acts of government.  I believe these principles have been felt, if not understood, in the Massachusetts Bay from the beginning; and therefore I should think that wisdom and policy would dictate in these times to be very cautious of making alterations.  Our people have never been very rigid in scrutinizing into the qualifications of voters, and I presume they will not now begin to be so.  But I would not advise them to make any alteration in the laws, at present, respecting the qualifications of voters.

Your idea that those laws which affect the lives and personal liberty of all, or which inflict corporal punishment, affect those who are not qualified to vote, as well as those who are, is just.  But so they do women as well as men; children as well as adults.  What reason should there be for excluding a man of twenty years eleven months and twenty-seven days old from a vote, when you admit one who is twenty-one?  The reason is you must fix upon some period in life when the understanding and will of men in general is fit to be trusted by the public.  Will not the same reason justify the state in fixing upon some certain quantity of property as a qualification?

The same reasoning which will Induce you to admit all men who have no property to vote with those who have, for those laws which affect the person, will prove that you ought to admit women and children; for, generally speaking, women and children have as good judgments, and as independent minds, as those men who are wholly destitute of property; these last being to all intents and purposes as much dependent upon others who will please to feed, clothe, and employ them, as women are upon their husbands, or children on their parents.

As to your idea of proportioning the votes of men, in money matters, to the property they hold, it is utterly impracticable.  There is no possible way of ascertaining, at any one time, how much every man in a community is worth; and if there was, so fluctuating is trade and property that this state of it would change in half an hour.  The property of the whole community is shifting every hour, and no record can be kept of the changes.

Society can be governed only by general rules.  Government cannot accommodate itself to every particular case as it happens, nor to the circumstances of particular persons.  It must establish general comprehensive regulations for cases and persons.  The only question is, which general rule will accommodate most cases and most persons.

Depend upon it, sir, it is dangerous to open so fruitful a source of controversy and altercation as would be opened by attempting to alter the qualifications of voters; there will be no end of it.  New claims will arise; women will demand a vote; lads from twelve to twenty-one will think their rights not enough attended to; and every man who has not a farthing will demand an equal voice with any other, in all acts of state.  It tends to confound and destroy all distinctions and prostrate all ranks to one common level.

North Carolina Constitution of 1776, Arts.  7 – 8

VII. That all freemen, of the age of twenty-one years, who have been inhabitants of any one county within the state 12 months immediately preceding the day of any election, and possessed of a freehold within the same county of 50 acres of land, for six months next before, and at the date of the election, shall be entitled to vote for a member of the Senate. 
VIII.  That all freemen of the age of twenty-one years, who have been inhabitants of any one county within the state 12 months immediately preceding the day of any election, and shall have paid public taxes, shall be entitled to vote for members of the House of Commons for the county in which you resides.

Georgia Constitution of 1777, Art. 9

ART. IX. All male white inhabitants, of the age of twenty-one years, and possessed in his own right of ten pounds value, and liable to pay taxes in this state…

Usurpation

We can see that the Constitution recognized that every state was guaranteed “a Republican Form of Government”.  That being the case, the Constitution clearly made the determination of who shall be “electors” a prerogative of each state.  The only federal intervention was to set qualifications as to who may hold office in the legislative and executive branches of government.

The states, in their “republican” capacity could determine who was qualified as an elector for the most numerous branch (House of Representatives or equivalent), and that those so qualified could also participate as an elector in all federal elections.

The “Time, Places and Manner of holding Elections” could be regulated by the Congress, though nothing is said of the qualifications of the electors.  Clearly, then, the qualifications of electors was not within the purview of the Congress and the federal government.

Even the selection of the electoral college was not restricted, rather was simply defined as to the number of such electors and a prohibition against anyone serving in such capacity if they were a “Senator or Representative, or Person holding an Office of Trust or Profit under the United States”.

This absence of authority was further recognized in the Federalist Papers, by James Madison, when he explained that “the right of suffrage is very justly regarded as a fundamental article of republican government”, and, that “[t]o have left it open for the occasional regulation of the Congress, would have been improper.”

So, it would be improper, and, a denial of that Republican Form of Government to allow the federal government to intrude upon the right of any state to determine just who could be an elector, and, who could not.

Even after the Civil War, the Congress realized that it could not go where the Constitution provided prohibition against its intrusion.  With the ratification (this raises a whole new question, which will not be addressed in this paper) of the 14th Amendment [1868], Congress realized that they could not determine who could be an elector, and, who could not.

Following the only recourse that the Constitution allowed, they modified the representation, for the number of Representatives to be adjusted based upon denial of allowing some males over twenty-one the franchise of voting, the representation would be reduced by the same proportion as those not allowed to vote to the whole number of such class of males.  Congress realized that they had no authority to remove the right of the state, in its “Republican Form of Government”, to determine who the electors could be.

It is also interesting to note that the anti-slavery amendment was the first, though not the last, to incorporate the wording that “Congress shall have power to enforce this article by appropriate legislation”, as if to provide them authority which was not granted by the Constitution — to legislate outside of their originally granted powers.

It would appear, however, that having been able to pass two Amendments to the Constitution (“anti-slavery and 14th), that they felt that they could go beyond the authority granted by the Constitution (usurpation — the unlawful encroachment or assumption of the use of property, power or authority which belongs to another.), so, two years later [1870], they passed to the states and obtained ratification of the 15th Amendment.

The Fifteenth Amendment, taking advantage of the newly created class of “citizen” (see Two Classes of Citizen), provided that “race, color or previous condition of servitude” could not be cause for denying a member of this new class of citizen to vote — including both federal and state elections.

Though many states had already allowed women to vote, apparently, given the success of previous usurpations, determined that they wanted the states to extent equal suffrage (contrary to what the Constitution and Madison had declared as the right of the states) to women with the 19th Amendment [1920].

By 1964, the 24th Amendment removed the obstacle that required a demonstration of commitment (see “Qualification”, below) to allow one to vote.  Though many states had already dropped the provision for a “poll tax”, the Congress was looking for total equality in the election process.

In a final blow to the authority reserved to the States, in the Constitution, and in the pursuit of equality (submission of the “Republican Form of Government” within the respective states), they removed the centuries old provision for age twenty-one and incorporated a whole new class of voters — those who had yet to have experienced life and its responsibilities, with the ratification of the 26th Amendment [1971].  The argument was that if they could go to war, they should be able to vote, notwithstanding the fact that the Revolutionary War, the Civil War, and, World Wars I and II were fought by young men who had no right to participate. 

It becomes difficult to imagine that a franchise that should be so sacred can be extended even further.  In all of the above, the rights extended to the voting franchise only apply to “citizens of the United States”.  Though without an amendment on the subject, it does seem that Congress has removed the State’s right to determine if a potential elector has that qualification.

The extension of the voting franchise had been subordinated to federal authority, and the pool of participants was increased to allow all to vote.  This, along with current prohibition regarding determination of citizenship, have made American elections open to just about anybody who is present at the time of elections and willing to take the time to vote.

Qualifications

Beginning with the 15th Amendment (above), we see that there has been a change in the method of addressing the franchise.  This, and the subsequent amendments on the subject, do not address qualifications of electors; rather, they talk about the right to vote. 

From Webster’s 1828 Dictionary:

elector, n.

One who elects, or one who has the right of choice; a person who has, by law or constitution, the right of voting for an officer.  In free governments, the people or such of them as possess certain qualifications of age, character and property, are the electors of their representatives, &c., in parliament, assembly, or other legislative body.  In the United States, [also] certain persons are appointed or chosen to be electors of the president or chief magistrate.

freeholder, n.

One who owns an estate in fee-simple, fee-tail or for life; the possessor of a freehold [basically, a land owner],   Every juryman must be a freeholder.

freehold, n. 

That land or tenement which is held in fee-simple, fee-tail, or for term of life.  It is of two kinds; in deed, and in law.  The first is the real possessor of such land are tenement; the last is the right of a man as to such land are tenement, before is entry or seizure.
In the United States, a freehold is an estate which a man holds in his own right, subject to no superior nor to conditions.

Freeman, n. 

1. One who enjoys liberty, or who is not subject to the will of another; one not a slave or vassal.
2.  One who enjoys or is entitled to a franchise or peculiar privilege, as the freemen of a city or state.

From Black’s Law Dictionary, Fifth Edition:

Elector. 

A duly qualified voter; one who has a vote in the choice of any officer; a constituent.  One who elects or has the right of choice, or who has the right to vote for any functionary, or for the adoption of any measure.  And in a narrower sense, one who has the general right to vote, and the right to vote for a public officers.  One authorized to exercise the elective franchise.
[also]  One of the persons chosen to comprise the electoral college.

Freeholder. 

One having title to realty; either of inheritance or for life; either legal or equitable title.  A person who possesses a freeholder estate.

Freeman. 

A person in the possession and enjoyment of all the civil and political rights accorded to the people under a free government.

From colonial times through the 14th Amendment, the colonies/states have always had the right to determine just who should be an elector, and who should not.  In early colonial times, a freeman had to have an estate of 14 schillings.  This means that he had to have 14 schilling above and beyond any debt obligation that he might have.

The Delaware Constitution of 1701 simply requires that one be a “Freeman”.  A Freeman, as defined above, is someone who is not a slave or vassal.  A vassal is one who owed servitude.  And, since credit, as we know it today, was unheard of in colonial times, and if an obligation was owed, it was owed to the point that it would require no less than servitude until the obligation was satisfied, it would seem that a Freeman is one without obligation.

When Lt. Governor Clarke addressed the New York General Assembly, he justified the enactment of a “Bill, for regulating of the Elections”.  In so doing, he made clear that “those who have recourse to Frauds and unbecoming Arts” to secure elections, and, when elected, must be “ of narrow and selfish Views, unworthy any Representation of a free People, and will no doubt basely submit to those same detestable Measures, to continue themselves (by any Means) in the Exercise of a Trust unjustly acquired.”  This was the justification to pass laws necessary to assure that those elected were “fairly and freely chosen”.

If we consider some of the problems we face, today, we can see that they are not new to this country, nor the history of man.  Divisive people pursuing public office will use divisive means to gain and retain that office.

William Blackstone provides us some insight into why ownership of property (freeholder) should be a requisite to becoming an elector.  He explains that those without property have proven to be in “so mean (vulgar, lacking dignity) a situation that they are esteemed to have no will of their own”.  Suggesting that they would subject their vote to influences that should not be considered in choosing proper officers or representatives.

In 1776, North Carolina adopted one of the first Constitutions subsequent to the Declaration of Independence.  In that document, the need to qualify electors for both houses of the legislature, each qualification being different, is clearly understood.  For the higher house, the Senate, ownership (freehold) of fifty acres was required.  For the House of Commons, one need only be a taxpayer.  In both instances, he must be twenty-one years of age.

Georgia, just one year later, required that one have ten pounds of his own money and pay taxes.

There can be little doubt that the understanding that the electors must be both mature (aged twenty-one) and responsible was a condition of becoming an elector.  The idea that someone who was unable to make well for himself was, in any way, competent to make decisions so important to the community, state or federal government, was not worthy of consideration.

One might wonder what good is served by extending the franchise to everybody, without consideration of maturity or ability.  Well, from history, the 14th and 15th Amendments, we know that the federal government wanted to punish the Confederate States for the insurrection by both denying the vote to those who fought for the South and to give the vote to those who had never demonstrated their ability to be responsible for their own lives, which leads to a nearly untenable situation for many decades, putting the ex-slaves as masters over the white man, at least politically.

In a rather curious turn of events, we can see that by 1920, nine states had granted women suffrage.  Obviously, as per the Constitution, the prerogative was left with the states.

Since just a few years before, in 1913, the Seventeenth Amendment, requiring popular vote for Senators, taking the state legislature’s assertion of state input into Congressional decisions away, we see that though only the nine states had enacted suffrage, three quarters of the states ratified the Nineteenth Amendment, granting women suffrage.  One must wonder why only nine states had granted suffrage and then 36 states (of the then 48) ratified the universal suffrage amendment.  Both a usurpation and a statistical quandary.

One of the early measures of participation in the election process was that of status.  If one was a freeholder or freeman, he could participate.  Some had to pay public taxes.  A poll tax was a measure of that capability and some states retained that qualifier in the form of a poll tax.

In 1964, the Twenty-fourth Amendment was ratified, which outlawed this measure of participation and commitment on the part of the elector, “the right of the elector… shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”  This provision made room for participation by those who could not even take responsibility for their own lives, though they were now qualified to help determine the course and future of the state and country.

Considerations

Both William Blackstone and John Adams provide us some insight into the reasons behind the existence of the qualification for electors.  Clearly, the more one participated in his community, by ownership of land (which is, nowadays, rather easily achieved by those who wish to and are willing to work for it), or, at least, by independency and his ability to care for his family, without reliance upon others.

Age, another consideration of whether one has the maturity and ability to judge and reason, is probably more significant today than in 1776.  Ages fourteen to 17 allowed entry into the military service.  Many college students entered their institution of learning at age 12.  By 21 years of age, most males had already established their own home, and, were far more worldly than those of the same age, today.

Should these requisites be considered in the determination of who is qualified as an elector?

Should electors and candidates have clearly established investment in their community?

Should registration of electors be as carefully scrutinized as many other aspects in our society?

Conclusion

In the early years of this country, nobody ran for office, as they do, today, though their friends and associates would encourage voting for them.  Today, massive campaigns are conducted, many costing in the tens to hundreds of millions of dollars for a job that pays less than two million for a full term.  Therefore, we must carefully consider what effect the qualifications of electors would have on the election process.

Let’s start with the candidates, themselves.  Residence requirements were six months or a year, required citizenship, and, in many instances, required a freehold (land ownership).  Back then, six months in a community would familiarize you with the community and the people who resided in it.  Commuting dozens of miles was impractical, and simply renting space to establish ‘residency’ was unheard of.  Where your family was and lived, was where you had your roots set.

Nowadays, you can buy an expensive house in New York (having moved from Arkansas to Washington, and then deciding that Arkansas was too backward and lacked influence), stop there from time to time to furnish the house, and then, having establish national name recognition, running for Senator from that state in complete violation of the intent, as described above.

This modern age has made transient living quite easy.  That being the case, perhaps, to achieve the intent of investment in the community, the time for residency of a candidate should be longer than it was in our past.

Now, for the electors.  Were Adams, Blackstone and the various constitutions correct in judging that certain requirements imposed upon qualifying as an elector provide a more reasoned and qualified elector?  Surely those who have earned their way in life, and, in so doing, have provided more to the upkeep of the nation (via various forms of taxation); have a vested interest in the course and cost of government by virtue of land ownership; and, are inclined to keep the expense of government down, since they are, ultimately, the ones who most pay the cost of maintaining government, are more qualified to make rational decisions with regard to those who take the reins of government and make decisions that will affect all.

It is unlikely that a corporation would allow employees to vote in the election of officers, though shareholders, by all means, should be allowed to participate.  After all, they are vested in the corporation and have far more at stake than the employees have.  Their concern for the productive direction of the corporation is far greater than that of the employees.

Should a country be any different?  Should those vested, or, at least, productive in support of the country be considered more competent to make rational decisions with regard to the course of the country than those who would be more inclined to vote because of influence, threats, coercion, or, to achieve gain for themselves?

Some Thoughts on the Judicial Process

Gary Hunt
Outpost of Freedom
November 16, 2001

Introduction

If you watch a child grow, you see every stage of that child’s life and cannot really discern the transition from infant to adult, except upon reflection.

If, however, you are introduced to an adult, you have no means by which to recognize the infancy and growth to the point where you have met.

Of course, if you look at a scrapbook, carefully prepared by a doting mother, though you will not have an entire picture of those many transitions of life, you will be able to begin to understand the foundation that brought that person from infancy to adulthood.

Our legal system is introduced to us in much the same way.  When we first become aware of what the entire judicial system is, we acquire most of our understanding from both the television and schooling.  We tend not to look for that scrapbook; rather, we accept what we are taught, at face value.

If we are among the older observers, we might recognize that there has been a lot of ‘growing’ in that judicial system since we were first introduced to it, though we tend to accept those changes as necessary, since we still rely upon television or other media, even the courts, to determine what course this system should take.

We understand those changes to be a result of progress.  Progress, however, is a rather interesting word, though we seldom give much thought to what it really means.

We can progress in our studies, with the objective of an education and a degree to be the goal of that progress.  If we make progress in a trip, we know that we are getting closer to a destination, with the goal being a location which course was set out at the beginning of our journey.  As we progress through life, our destination is what we perceive to be the end result of that journey, most often defined as passing out of this life — a goal which might not be sought though it is inevitable.  We can clearly see, then, that progress has in mind a goal — a purpose for the pursuit of that progression.

So, let’s return to the progress we see in the judicial system.  What, exactly, or even remotely, is the goal that we are pursuing?  Is it a higher degree of justice?  Perhaps a more equitable administration of justice.  Not much difference between the two, however, it is hard to conceive of a positive goal that would not pursue one or the other.

On the other hand, and, once again referring to the older amongst us, if we stop and look back at what has occurred in our lifetime, we can see that the changes that have occurred, though couched in the term of law and order, generate little semblance to a progression in that direction.

So, let’s see if we can find the scrapbooks that will give us a better picture of the transition, from the beginning to the present, of our American judicial system.

So as to develop a foundation upon which the judicial system was created, we will look, first, at the Constitution.

Constitution

In the Preamble, the Constitution sets forth the authority and responsibility of the government:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Establishing Justice is one of the principle objectives in the creation of both the government and the Union known as the United States of America.  Note that it does not say that it is to establish “Law”, rather, to establish “Justice”.  This is an important consideration in the transition from what was to what is.

Next, we can look at what created the federal judiciary, in Article III of the Constitution:

Section 1– “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish….  “

Section 2– “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority…”

So, we have a supreme Court established as well as inferior courts that the Congress might “ordain and establish“.  We also see that the power of these courts “extends to all Cases, in Law and Equity, arising under” the Constitution and the Laws of the United States.  This, of course, would include all laws made pursuant to the Constitution, so, obviously, they cannot conflict with the Constitution.

Next, we find in Article III:

Section 2, clause 3– “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

So, all crimes shall be tried by a jury (more later on the proper role of the jury) and we have the introduction of jurisdiction, whereby such trial “shall be held in the State where the said Crimes shall have been committed“.

To understand what is meant by this limitation on jurisdiction, we need to look back at Article I

Section 8– “The Congress shall have Power …”
Clause 17 “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;…”

Note that the Congress has the power for “exclusive Legislation” only in the venue (geographic area where the injury or crime occurred) defined as Washington, D.C. (District – not exceeding ten Miles square), all Places purchased by the Consent of the Legislature of the State (which, too, have to have cession of jurisdiction to be included in the exclusive legislative jurisdiction) for purposes related to government functions.  Land simply purchased by the government, without the State having granted jurisdiction, does not fall in this category.

It might be worthwhile to point out that the Supreme Court has recognized that there are three United States’, from a legal standpoint, when they ruled in Hooven & Allison Co. v. Evatt, [324 U.S. 652], when they declared that, “The term {United States} has several meanings.  It may be merely the name of the sovereign occupying the position analogous to that of other sovereigns in the family of nations, it may designate territory over which sovereignty of the United States extends, or it may be collective name of the states which are united by and under the Constitution.  “The lands described in Section 8, above, fall within the second definition, “territory over which sovereignty of the United States extends”.  It might also be worth noting that subsequent decisions extended that sovereignty over territories that have not become states.  The States which were members of the Union (the United States of America) fall, clearly, within the third definition.

The, in Article IV, we find a reference which suggests that the Common Law (more on that, later) is the means by which justice will be established.

Section 1– “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.  And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

“Full Faith and Credit”, this provides a means of establishing justice on an equitable, or, at least, relatively equal basis throughout the States.  This is a concept of common law, not of civil law.

The Bill of Rights was ratified on December 15, 1791.  It was prefaced with an oft-overlooked Preamble that included the following, to set forth its purpose:

“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.”

First, we find in Amendment IV:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This protection evolves from what was practiced in England, and was ignored here, here, in colonial times.  William Pitt, a Member of Parliament said, in the House of Commons, “The poorest man may in his cottage bid defiance to all the forces of the Crown.  It may be frail, its roof may shake; the wind may blow through it; the storm may enter, the rain may enter — but the King of England cannot enter; all his force dares not cross the threshold of the ruined tenement!”  This might begin to explain that old adage; “a man’s home is his castle”.

Early on, well before the War of Independence, James Otis spoke out against Writs of Assistance.  A Writ of Assistance was, quite simply, a blanket search warrant.  It did not say exactly what was being looked for, nor, did it say exactly where it was to be looked for.  It might best be described as a “fishing expedition”, and was, without question, intolerable, in the eyes of the Framers.

The Oath or affirmation is a sworn statement of personal knowledge.  It is not third party, or hearsay, it is absolute knowledge.  That “John Doe told me that you robbed a bank” is only personal knowledge that “John Doe” told you something.  Only John Doe can swear to what you told him.

We are then provided the protections contained in Amendment V”

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

So, we can see that the Framers were concerned over the power of the government to make arrests (held to answer), even in capital offenses (death penalty) or infamous crimes (felonies, which would be any crime that would include at least 1 year of imprisonment), unless on a presentment or indictment of a Grand Jury.  The significance of the Grand Jury will become more apparent as we go on.

Next, we will visit Amendment VI:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance of counsel for his defence.”

So, here we have a guarantee of a speedy and public trial by an impartial jury (more on the petit jury, later), again, held where the crime was committed.  He is assured that he has a right o know the “nature and cause” of the accusation.  We also see that the right to confront all witnesses against the accused is assured and that he has a right to counsel (it does not say lawyer) for his defense.

Finally, within the Bill of Rights, we have Amendment VII:

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”

This speaks for itself, except that it does say that the decision of thee jury may not be reexamined in any court.

There were subsequent amendments that had minor effect on the judiciary, though they are not worth mentioning.

What might be worthy of your consideration is that within the Federalist Papers, the arguments published in support of ratification of the Constitution, and, recognized as the best representation of the intent of that Constitution, mentions “courts of justice” eight times, though never once mentions a “courts of law.”

Common Law

To understand the Common Law is a rather complex study.  There have been numerous older books written on the subject.  Many recent claims that its foundation is on Christian or, Judeo-Christian principles is unfounded, though there is no doubt that these principles have influenced the course of Common Law.

In the earliest accounts, ordeal by fire was a means of judging, and, a person could not be compelled to enter the court (or, whatever forum was in use at the time).  That evolution had proceeded over 11 centuries when that Common Law, as it had evolved, was adopted by the new States who had come together under the banner of the United States of America.

Many old state statute books (perhaps some still do) included something similar to, “and adopt the common law of England as it existed on July 4, 1776”.  It was qualified that the common law so adopted could not be in conflict with the constitution or statutes.

So, in body, where not in conflict, and, in principle, the common law was adopted by all of the states except Louisiana (which had its Napoleonic Code).  Many state’s statutes have been revised to remove this reference, though we must wonder why.

To have a general understanding of the Common Law, sufficient to the purpose of this paper, we can look to Black’s Law Dictionary, Fifth Edition:

From Black’s Law Dictionary, Fifth Edition:

Common law.  As a distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the governments and security of persons and property, which derive their authority solely from usages and customs of a immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England.  The “common law” is all the statutory and case law background of England and the American colonies before the American revolution. 

Common-law consists of those principles, usages and rules of action applicable to government and security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the legislature.

As distinguished from ecclesiastical law, it is the system of jurisprudence administered by the purely secular tribunals.

California civil code, section 22.2, provides that the “common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decisions in all the courts of this State.”

In a broad sense, “common law” may designate all that part of the positive law, juristic theory, and ancient custom of any state or nation which is of general and universal application, thus marking off special or local rules or customs.

Judge.  An officer so named in his commission, who presides in some court; a public officer, appointed to preside and to administer the law in a court of justice; the chief member of a court, and charged with the control of proceedings and the decisions of questions of law or discretion.

“Judge”, “justice”, and “court” are often used synonymously or interchangeably.

Preside.  To occupy the place of authority as of president, chairman, moderator, etc.  To direct, control or regulate proceedings as chief officer, moderator, etc.  To posses or exercise authority.  To preside over a court is to “hold” it.  — to direct, control and govern it as the chief officer.  A judge may “preside” whether sitting as sole judge or as one of several judges.

Magistrate.  The term in its generic sense refers to a person clothed with power as a public civil officer, or the public civil officer invested with executive or judicial power.

U. S. magistrates.  A judicial officer, appointed by judges of federal DISTRICT courts, having some but not all of the powers of a judge.  In the federal district courts magistrates may conduct many of the preliminary or pre-trial proceedings in both civil and criminal cases.

Perhaps, from the above, you can begin to see what is relevant to the Common Law and what is not a part of the Common Law.

Properly, a Common Law Court (not those that you hear about on the news, rather, those which were acknowledged as our right), could only be deemed courts of justice.  A court of law is the administration of rules in an arbitrary manner and is based upon Roman Civil Law.

Common Law, then, is made more by the people and less by the government.  “How so?” you ask.  Well, to understand this we must look at who decides innocence or guilt, for that interpretation would tell us what crime really is.  The juries, both Grand and Petit, achieve this, in Common Law.

Grand Jury

Early reference to the Grand Jury process can be found in the Magna Carta (1215 AD), in Article 36, “In future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs.  It shall be given gratis, and not refused.”

Grand juries have been described in numerous ways, over the centuries.  In 1694, Lord Somers described them as, “security of Englishmen’s lives”.  They have also been described as the “conserver of liberties” and “the noblest check upon the malice and oppression of individuals and states”.

From Webster’s 1828 Dictionary:

Jury, n.
A number of freeholders, selected in the manner prescribed by law, empanneled [sic] and sworn to inquire into and try any matter of fact, and to declare the truth on the evidence given them in the case.

Grand juries consist usually of twenty-four freeholders at least, and are summoned to try matters alleged in indictments.

The purpose they serve is to consider complaints (not limited to those submitted by the state, rather, the including of any complaint against state officials), and determine whether a petit jury trial is warranted to determine innocence or guilt.

Through their history, Kings have enacted statutes that wrested control of the Grand Jury from the people and provided the King more leeway in prosecuting people, though these changes were apt to be turned over by outrage, violence, or even revolution.

They were not, as they are construed, now, especially on the federal level, simply an arm of government for the prosecution of people who violate laws.  They were instituted to determine if any crime, including a denial of rights, was committed, based upon investigation by the Grand Jury, itself, and having available to them the right to call any witness, including the accused, to determine if an indictment or true bill was warranted.

Once issued, the indictment or true bill could not be quashed and the matter had to go to trial.  Nowadays, many states and the federal government allow a prosecutor to refuse a true bill, denying a trial where the Grand Jury had called for it.  The best-known instance of this had to do with an FBI sniper named Ron Horiuchi, who was indicted by an Idaho Grand Jury under the charge of murder, based upon his killing of Vicki Weaver.  Probable cause was established by the Grand Jury, though the federal court usurped the authority of the State to try the case and moved it into federal jurisdiction.  The federal court then determined, contrary to the Idaho Grand Jury, that no crime had been committed and the accused never stood trial.

Each state has its own laws regarding grand juries, and they vary, often significantly.  The primary elements, however, used to include little or no control by government officers and gave broad inquisitorial powers to the jury.  Without these, they would not be safeguard to our liberties.

To fully understand the history and authority of grand juries in the United States, see an article by G. B. Edwards on “Essay on the Grand Jury in America” (1904), at the Outpost of Freedom Library.

Petit Jury

More often simply called “petty juries”, trial juries”, “common juries”, or, just plain “juries”.  These are the mainstay of a system of justice, and, can be a tool of oppression in a system of laws.

Here is how Webster’s 1828 Dictionary explains them:

Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions.  The decision of a petty jury is called a verdict.

Notice that he said that this jury would decide “both the law and the fact”, not just the fact, as we are told, today.  And, understand that Webster’s definition is the same definition understood by the Framers when they mentioned juries in the Constitution.

Through our history, from John Peter Zenger, in 1735, where the jury rejected the law, to trials regarding slaves, where juries refused to convict those who violated the laws regarding the return of slaves to their master, to during the Prohibition Era, where juries refused to convict many of those accused of “moon shining”, we have seen the jury reject law (which is often followed by the legislature overturning the law) when the facts presented clearly suggested a violation of that “law”.

The power to judge the law was an inherent right in the days of the Framers.  Since we are a self-governed people, the ultimate responsibility to judge what we must abide by MUST be in our hands, not the hands of those in government.

Here is how Lysander Spooner sets out the purpose of petit juries:

“FOR more than six hundred years that is, since Magna Carta, in 1215 there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.”

To understand more about petit juries and jury trials, see the entire Lysander Spooner “Essay on Trial by Jury” (1852) at the Outpost of Freedom Library.

Courts

First, let’ look at what a court is, as perceived by the Framers, according to Webster’s 1828 Dictionary (irrelevant definitions excluded):

Court.  n.

3. A palace; the residence of a king or sovereign prince.

4. The hall, chamber or place where justice is administered.

5. Person who compose the retinue or council of a king or emperor.

6. The persons or judges assembled for hearing and deciding causes, civil, criminal, military, naval, or ecclesiastical: as a court of law; a court of chancery; a court martial; a court of admiralty; an ecclesiastical court’ court baron; &c.

***

7. Any jurisdiction, civil, military or ecclesiastical.

When we look at these definitions, we might wonder whether the meaning of the word (definition #4) as intended by the Framers is the one that the government has continued to operate on our behalf.

Courts, as they are perceived today, are tribunals intent on imposition of laws, fines and penalties, whose primary beneficiary is the State.  Restitution, “making whole” of a victim of a crime, is left to the victim.  If he has insurance, he has paid for the privilege of restitution; if he has none, then he must bear his loss.

This raises the question as to whether the courts that we have become familiar with are those same courts that the Framers intended for their Posterity.

As mentioned earlier, the Federalist Papers recognized “courts of justice”, though they made no mention of “courts of law”.

Courts of Justice are “The hall, chamber or place where justice is administered“.  They would include the grand and petit juries, as intended, and would have consideration of any injury, whether imposed by a private individual or a government official.

Courts of law, on the other hand, are courts of punishment.  They are intended to force the will of the government on the people and endeavor to impress upon all the consequences of violation of the government’s rules.

It is true that there are beneficial results couched in these forums of obedience, where truly bad people are sent to prison, though, often, those truly bad people are back on the streets in a short period of time, to redo their misdeeds.

It is also true that those in government who do misdeeds under color of law [“The appearance or semblance, without the substance, of legal right” – Black’s Law Dictionary] are, for the most part, exempt from any criminal prosecution, regardless of whether their crime is simple, as a misdemeanor, or capital, as murder.

We need to return to courts of justice, and remove the taint of obedience to the King through courts of law from our landscape.  Without such change, we will remain vassals in the country of our birthright, which our forefathers were willing to give their lives to assure to us.

Crimes

Crime is a word that can be defined in many ways, today.  However, when crime is coupled with justice, the definition narrows considerably.  From Webster’s 1828 Dictionary:

Crime.  n,

1.  An act which violates a law, divine or human; an act which violates a rule of moral duty; an offense against the laws of right, prescribed by God or man, or against any rule of duty plainly implied in those laws.  A crime may consist in omission or neglect, as well as in commission, or positive transgression.  The commander of a fortress who suffers the enemy to take possession by neglect, is as really criminal, as one who voluntarily opens the gate without resistance.

But in a more common and restricted sense, a crime denotes an offence, or a violation of public law, of a deeper and more atrocious nature; a public a wrong; or a violation of the commands of God, and the offenses against the laws made to preserve the public rights; as treason, murder, robbery, theft, arson, &c.  The minor wrongs committed against individuals or private rights, are denominated trespasses, and the minor wrongs against public rights are called misdemeanors.  Crimes and misdemeanors are punishable by indictment, information or public prosecution; trespasses or private injuries, at the suit of the individuals injured.  But in many cases an act is considered both as a public offense and a trespass, and is punishable both by the public and the individual injured.

2. Any great wickedness; iniquity; wrong.

Capital crime, a crime punishable with death.

The Framers, when they devised the Constitution, the document that defined just what powers the new government was to have, were very cautious in what was perceived as crime.  Of what they did perceive, there were two types of crime envisioned.  First would be those that were to secure rights and protect individuals from transgressions by others.  These provide the authority to pass laws that would give a source of recourse to those offended by another.  An example would be Article I, Section 8, clause 8, the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries, which provided legal recourse if others violated that right.

The other is those activities that threaten the government directly.  Of this second class, in their wisdom, they were only able to define three crimes of this nature:

Article I, Section 8, clause 6, “To provide for the Punishment of counterfeiting the Securities and current Coin of the United States.”

Article I, Section 8, clause 10, “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations”.

Article III, Section III, clause 2, “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

Though they were given powers to enact other laws, it is apparent that they had determined that crimes against the state were the only crimes that could be defined by the federal government, except while in military service, or in service to the government — those being employees or officers of the government).

Crime is, by its nature, an offense, whether that offense be against another individual or against the public [understand that public is not the government, it is the people — see Charity and General Welfare].  When against an individual, a damage or injury would be the result.  When done against the public, it can only be appropriate to a crime that affects those within a limited community, for, how can it be an offense against someone in another state, or even another county, if committed in this county?  If it is too broad in its coverage, it is an attempt by a few (those who legislate) to dictate how others may live their lives.  This, in concept, is contrary to the ideals of self-government, and is indicative of an attempt at social engineering.

When the ability of any legislature to impose upon larger bodies of people their will, whatever the incentive, that power will grow in its effect and administration until the large body of people come under abject subjugation.  When carried to the next logical step in the subjugation and oppression of the people, even the remotest possibility of someone committing a crime becomes a crime, in itself.  (See Thought Crimes)

When determining what crime really is, when the activity causes a damage or injury, laws instituted to punish that crime make sense, so long as they leave the discretion of punishment to the jury.

However, when laws, by their very nature, create crime, which does not result in loss or injury, the laws, themselves, have become the crime.  The laws result in injury or loss where none existed, absent the law, when the accused has, then, become the victim.

Arrest

Arrest is nothing less than denial of liberty.  Liberty was one of the major maxims for the War of Independence.  It, unlike freedom, is best defined as being free, where freedom, generally, has to do with not being obligated or enslaved.

Let’s look at how these two words would be perceived by the Framers, from Webster’s 1828 Dictionary:

Arrest v.t.

1. To obstruct; to stop; to check or hinder motion; as, to arrest the current of a river; to arrest the senses.

2. To take, seize or apprehend by virtue of a warrant from authority; as, to arrest one for debt or for a crime.

Arrest, n.

1. The taking or apprehending of a person by virtue of a warrant from authority.  An arrest is made by seizing or touching the body.

2. Any seizure, or taking by power, physical or moral.

3. A stop, hindrance or restraint.

4. In law, an arrest of judgment is the staying or stopping of a judgment after verdict, for causes assigned.  Courts have power to arrest judgment for intrinsic causes appearing upon the face of the record; as when the declaration varies from the original writ; when the verdict differs materially from the pleadings; or when the case laid in the declaration is not sufficient in point of law, to found an action upon.  The motion for this purpose is called a motion in arrest of judgment.

Freedom, n. A state of exemption from the power or control of another; liberty; exemption from slavery, servitude or confinement.

Liberty, n.

1. Freedom from restraint, in a general sense, and applicable to the body, or to the will or mind.  The body is at liberty, when not confined; the will or mind is at liberty, when not checked or controlled.  A man enjoys liberty, when no physical force a operates to restrain his actions or are volitions.

2.  Natural liberty, consists in the power of acting as one thinks fit, without any restraint or control, except from the laws of nature.  It is a state of exemption from the control of others, and from positive laws and the institutions of social life.  This liberty is abridged by the establishment of governments.

3.  Civil liberty, is the liberty of men in a state of society are, or natural liberty, so far only abridged and restrained, as is necessary and expedient for the safety and interest of the society, state or nation.  A restraint of natural liberty, not necessary or expedient for the public, is tyranny or oppression.  Civil liberty is an exemption from the arbitrary will of others, which exemption is secured by established laws, which restrain every man from injuring or controlling another.  Hence the restraints of law are essential to civil liberty.

The liberty of one depends not so much on the removal of all restraint from him, as on the due restraint upon the liberty of others.
                                                                                    Ames

In this sentence, the letter word liberty denotes natural liberty.

4.  Political liberty, is sometimes used as synonymous with civil liberty.  But it more properly designates the liberty of a nation, the freedom of a nation or state from all unjust abridgment of its rights and independence by another nation.  Hence, we often speak of the political liberties of Europe, or in the nations of Europe.

5.  Religious liberty, is the free right of adopting and enjoying opinions on religious subjects, and of worshipping the Supreme Being according to the dictates of conscience, without external control. 

Clearly, then, when someone is arrested, he is restrained of his liberty, as well as having his freedom removed.  It is liberty, then, that is offended when one is arrested.  This, according to the Constitution, can only occur when warranted (warrant), which can only be issued by a jury, grand or petit, or by “Probable cause supported by Oath or affirmation” [Article IV, Bill of Rights].  There have been some exceptions, under the Constitution, such as allowing a person to be arrested to stop the completion of a felony [John Bad Elk v. US, 177 U.S. 529 (1900)].

Now, if the arrest was made and no indictment by a Grand Jury, the person who sought the warrant was liable for false arrest.  After al, he denied the accused his liberty and could not prove his claim.

To begin to see the child that we have not been able to see grow, and must piece together the transition to what we accept as lawful, today, we can review what arrest was treated like by the United States Supreme Court in 1900.

John Bad Elk was told that he was under arrest by deputies, though they had no warrant for his arrest.  One of the deputies had a gun, but did not raise it to threaten John Bad Elk, though the means of threat of force to retrain liberty were present.  John Bad Elk shot and killed the deputy and was convicted of murder.  The case then went to the Supreme Court where the Court ruled that, absent a lawful warrant, John Bad Elk had every right to shoot and kill the officer who was trying to restrain his liberty — that it would be a misdemeanor, or not crime, at all.  (See The Right to Self Defense).

As astounding as they may appear to us, today, if we understand just what was intended, perhaps we can return to true freedom and liberty.

Can you imagine a world where the government hardly ever made an arrest?  Where if an arrest had to be made, the person filing the complaint was responsible for making the arrest?  Where the person making the complaint need simply go to a Justice of the Peace, a magistrate, or the Sheriff, swear out an affidavit, and get the arrest warrant?  Where he gathered a posse of citizens, and even the Sheriff, if he chose to, to make the arrest?  Where justice was administered not by the government, but, by the people, themselves?

Considering the apparent gross disparity between what we have today versus that which was, and that which we should still have, proof of that stated in the above paragraph, is even more lost in childhood.

More information can be found at Are Cops Constitutional?

The ability to arrest, as you will learn from the above references, was reserved to the people, not to the government.  Government was not allowed to restrain our liberty without the consent of at least a small body of people who were not a part of that government, or an individual who had been wronged and was willing to “swear out an arrest warrant”..

Indictment

To understand what an indictment is, we will refer to Webster’s 1828 Dictionary:

Indictment, n.

The written accusation or formal charge of a crime or misdemeanor, preferred by a grand jury under oath to a court.

2.  The paper or parchment containing the accusation of a grand jury. 

Once the Grand Jury issues an indictment, it is indicative of the determination of “probable cause” for the accused to stand trial.  At trial, the accused will have the rights, protected by the Constitution, for a speedy and public trial with the right to meet the accuser and call the witnesses.

By the Constitution, there is no other means by which one can be held to answer to a criminal charge.  What is generally known as an “information” does not satisfy those judicial protections provided for in the Constitution.

Trial

Amendment VII (bill of Rights provides, as explained earlier, that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial“,

This does not preclude the accused agreeing to be tried at the “bench”, where the judge sits as the jury, though it does guarantee his right to insist on the jury trial.  In either case, the other rights, as to witnesses, etc., is not diminished.  This, however, is the only instance where the judge becomes the trier of facts and law.

So, we have both civil and criminal trials before juries.  Interestingly, we have been raised to believe that the judge is senior to the jury and can overrule them; can instruct them, with an extensive checklist, what they must do to determine innocence or guilt; and, can actually tell them what the laws means/says, as if the jurors are incompetents, unable to even read our language.  Is this the sort of person that we should trust with the administration of justice?

That is not the way that it was intended, though we have, through a progression through over a century, allowed the exodus justice to be replaced by what is no less than Roman Civil Law, with all decisions made by the judge, or, at least, so strongly influenced as to effect, negatively, the ability of the people to judge both law and fact.

Another term that we have heard often associated with juries, though not written into the Constitution, is “a jury of our peers”.  Peerage is a separation of classes.  In olden times, it separated lords from serfs.  So, if my peer is one of equal rank, can I be judged by a jury that is composed of foreigners, or others, that, by the way that they accept the condition impose by government, believe that we must submit to such abuse of the judiciary process?

If one were to understand that he was a citizen of a state, while some of those sitting on a jury believed that they were citizens of a country, would they be peerage?  Can they judge lawfully if they believe that the government is all-powerful and always right (i.e.  The King can do no wrong)?

For a better understanding of the two classes of citizen, you would recommend reading Two Classes of Citizen.

Punishment

Punishment applies to both criminal and civil trials.  We’ll begin with the criminal variety.

Punishment can take two forms.  It can be intended to discourage future behavior, or, it can be intended to be retribution or revenge.  In the sense of justice that we have been taught, it is intended to be the former.  However, quite often in the press, it takes on the meaning of the latter.  In true justice, the former can be quite more severe than the latter, or, it can be much more lenient.

We can look at what has happened to the jury’s right to judge fact, law and determine punishment as a means where each case is judged, by supposedly intelligent people (or, why would we have the alternatives that follow?) who can review the evidence, are intimately familiar with the case, and, can look in to the eyes of the accused and judge his actions and reactions, if determined to be guilty, to determine if there is guilt, if it was an unintentional crime, if he shows malice or regret, and, from this information judge which punishment best suits all of the circumstances surrounding the crime.

Instead, we have had imposed upon us two rather cold and rigid ‘systems’ under the headings of “Sentencing Guidelines” and “The Three Strikes Rule”.

Sentencing guidelines require that if the accused stole bread to feed his starving children, he is subject to the same sentence as one who stole bread to sell for money to buy drugs.  Can that possibly be defined as justice?

The Three Strike Rule is based upon three convictions.  In some states, the mandate is life in prison for the third violation, regardless of the type of crime.  So, if you stole bread three times, or robbed a bank three times, you are destined to spend the remainder of your life in prison.  Of course, the judge administering such “justice” will apologize and say that the law made him do it.  Can that possibly be defined as justice?

We will not enter a realm that makes exceptions for certain behavior by certain classes of people, except to say that if you kill a cop, you will probably be sentenced, under statutory law, to execution, while, if a cop kills you, he will get time off, with pay, and more than likely not even go to trial.

Let’s go to the last step in punishment — Capital Crimes.  These would be any that may result in a punishment of execution.

We have all lived through the period of public proclamation that the death penalty is unconstitutional, or, is cruel and unusual punishment.

Of the latter, how can that be cruel and unusual when execution (recognition that there are capital crimes, see Amendment V, above) is in the Constitution?  Considering that cruel and unusual did not include a firing squad or hanging, we have opted for some very unpleasant “cruel and unusual punishments.  Gas chamber and the electric chair were fallible.  Reports of witnesses indicate grotesque contortions in the gas chamber and failures of the electric chair resulting in fried people waiting to die.

In an endeavor to be less cruel, we now watch people see a series of injections, each one depriving him of pain, awareness, and, finally, life.  Wouldn’t car exhaust into a closed area be less painful and less expensive?  However, we seem to have a passion for creativity in killing people.  Why?  They deserve the sentence that the jury finds, if justice is to be served.

Along that line, at what point do we consider, as a collective society, that some criminals serve no useful purpose to that society?  I believe that this was the purpose of the death sentence, in the first place.  What else would motivate a society to get rid of a human life?

Given that the purpose is to dispose of those who have nothing to offer to society, why have we set so many steps, expensive in lawyer’s fees, time and providing for the accused,

Now, in civil matters, the punishment comes in the form of restitution and rewards to the injured party.  The court will recognize these real damages and punitive damages.

Real damages can be easily calculated.  They are based upon loss, including, but not limited to, lost wages, medical expenses, replacement of damaged property, etc.

Punitive Damages used to be awarded, or not, based upon a rather simple formula.  If there was no negligence, then only real damages would be awarded.

For the other two, we can look to Black’s Law Dictionary, 5th Edition:

Negligence (simple).  The omission to do something that a reasonable man, guided by those ordinary considerations that ordinarily regulate human affairs, would do, or of the doing of something that a reasonable and prudent man would not do.

Gross negligence.  The intentional failure to perform a manifest duty and reckless disregard of the consequences as affecting the life or property of another.

Awards of up to three times the real damages could be awarded for simple negligence.  This was expected to encourage more caution in the future.

In the determination of gross negligence, the award could be up to 10 times the real damages.  This, obviously, was more punitive in nature, encouraging a greater concern for the life or property of others, in the future.

Understand that awards of millions of dollars, such as overly hot coffee causing serious burns, serve only to punish the society, as a whole.  When awarded by a jury, the millions of dollars must be paid.  The accuser’s attorney will probably receive 40% and the injured party will receive the remaining 60%.  However, the entire 100% will be paid by those who drink coffee and are intelligent enough to not to burn themselves.  Is this justice?

We have allowed attorneys to manipulate juries into thinking that unreasonable awards serve a valid purpose, that on top of the fact that we have a proliferation of rules requiring labeling (i.e. “coffee is very hot”), and those who don’t heed the warning are, as a result, worthy of receiving compensation from everybody for their idiocy.

We need to return to reasonable punishment for both criminal and civil crimes, for, without such reasonableness, we have a lottery and the luck of the draw.

The Ultimate Court

Going just a bit further, we can look at what has transpired in the judicial community of the United States.  When a trial is held, there is an appellate process that can lead all of the way to the United States Supreme Court.  If either party is dissatisfied with the verdict, the trial can be appealed.  It must stand “on the record”, meaning that the case will not be retried, only that based upon the record of the original trial, a higher court can rule on what has already been presented.

So, for instance, if you believe that your Constitutional rights were violated, or that the government was operating outside of its authority under the law, their methods, or any other aspect of what had occurred, you can seek redress in that Supreme Court.  Interestingly, that Court, in its early years, actually rode circuit to hear cases appealed from the lower courts.  Over time, however, they attained a more noble stature by holding all of their sessions in single building in Washington, D.C.

Within two decades of its creation, this Supreme Court established its authority to rule on the Constitutionality of any case brought before it.  Judicial review, then, became what we have, in our lifetimes, always respected as the ultimate decision on the Constitutionality of a matter that could be brought to that level of review.

We expect that any law passed by the Congress (or even under its authority) can be tested as to its Constitutionality by this ultimate review.  After all, if we have a Constitution that limits the power of government and affords them only certain privileges, this ultimate court must be our protection from the governments violation of that very Constitution that created it.

Occasionally, we read of a Supreme Court decision that makes us want to scratch our head in wonderment.  How could they possibly rule that a certain decision was decided in a manner that does not seem to fit what we perceive the Constitution to say?  We tend to assume that they, by their articulate arguments, must understand something that we are not able to comprehend — about the Constitution.

Well, quite often, we may be more correct in our interpretation than the ruling of that august body.  In 1937, that court, by its own admission, declared that ruling on the Constitutionality of a matter before them, well, let me use their words to say this, “The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it…  ‘It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”

To understand more why the Court will, only in a last resort, rule on the Constitutionality, I would suggest that you read About Ashwander v. TVA

Conclusion

Since that infant (the judicial system) was conceived in 1776 and came into life in 1789, it had grown through its infancy by 1860.  As it reached adulthood, it was well matured, though, perhaps, gone astray.

We have learned to look at it only in its very senior years, and have no idea what it was as in its youth.  Unfortunately, that wonderful child has gone through some changes during its lifetime that have obscured what it was when it was brought into life, with loving care.

As if relegated to a senior citizen’s home, cared for by abusive and self-serving attendants, the judicial process has been abused, manipulated, and, lost all semblance of that great and wonderful object of adoration that it was to the Framers.  It is only by virtue of a scrapbook that we can see that transition, and, perhaps, restore that child to the dignity and respect that it truly deserves.