Some Thoughts on the Judicial Process
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.