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 Posted: Fri Sep 21st, 2018 03:16 pm
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Joe Kelley
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1. The historical conundrum.

The notion that standing is a bedrock requirement of constitutional law has a surprisingly short history. Frothingham v. Mellon, n20 which rejected [*1376] a taxpayer suit to enjoin a federal spending program, is generally thought of as the first modern standing case. n21 In fact, it is not. Fairchild v. Hughes, n22 decided a year before Frothingham and authored by Justice Brandeis, was the first case to reject a taxpayer suit because the "[p]laintiff's alleged interest in the question submitted is not such as to afford a basis for this proceeding." n23 The Frothingham Court reached its conclusion that Ms. Frothingham could not sue without citing or identifying any precedent either for that conclusion or the premises it offered in support of that conclusion. n24
Perhaps more surprising, Frothingham was preceded by three federal and two state taxpayer actions that the Court adjudicated on the merits. n25 Moreover, as late as 1935, neither Professors Frankfurter nor Hart discussed Frothingham, Fairchild, or the concept of standing in their writings on article III justiciability limits on federal courts. n26 All of this [*1377] is unusual to say the least. One legitimately may wonder how a constitutional doctrine now said to inhere in article III's "case or controversy" language could be so late in making an appearance, do so with so skimpy a pedigree, and take so long to be recognized even by the primary academic expositors of the law of federal courts.

The traditional answer places heavy emphasis on the function of the common law writ system to do the work now done by the concept of standing. n27 According to this analysis, the concept of standing could only arise after the breakdown of the writ system and of common law pleading. Standing then developed as an elaboration of the essence of the private causes of action previously embodied in the writs. n28 As such, the modern concept of standing, with its focus on injury-in-fact, is thought to be only the preservation of the private rights model n29 of adjudication known to the Framers.
The traditional account is, however, inconsistent with the historical data. It cannot account for the five taxpayer actions that preceded Frothingham and Fairchild. n30 Moreover, it ignores the established practice in state courts, throughout the nineteenth century, that provided for public rights suits brought by plaintiffs who had no personal interest or injury-in-fact. n31 Finally, it is disproved by the fact that the Supreme Court, in 1875, specifically approved of this public rights [*1378] practice in a federal case without any constitutional objection. n32 I expand and develop this history in Section III; I then chart and attempt to explain its demise in Section IV.

https://constitution.org/duepr/standing/winter_standing.htm


Useful quotes:

A critical key to achieving federal constitutional compliance is to resurrect quo warranto and other common law writs. This involves reasserting and strengthening the original All-Writs Act and repealing or declaring unconstitutional legislation, such as the Tax Anti-Injunction Act, and those Rules of Judicial Procedure, that have restricted the jurisdiction of federal courts to accept these writs and grant a fair hearing ("oyer") and a decision on the merits ("terminer") on such demands.

"Jurisdiction can be challenged at any time." Basso v. Utah Power & Light Co., 495 F 2nd 906 at 910.

"It is axiomatic that the prosecution must always prove territorial jurisdiction over a crime in order to sustain a conviction therefore." U.S. v. Benson, 495 F.2d, at 481 (5th Cir., 1974).

"The law provides that once State and Federal Jurisdiction has been challenged, it must be proven." Main v. Thiboutot, 100 S. Ct. 2502 (1980).

"Where there is absence of proof of jurisdiction, all administrative and judicial proceedings are a nullity, and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack." Thompson v Tolmie, 2 Pet. 157, 7 L. Ed. 381; and Griffith v. Frazier, 8 Cr. 9, 3 L. Ed. 471.

"the burden of proving jurisdiction rests upon the party asserting it." Bindell v. City of Harvey, 212 Ill.App.3d 1042, 571 N.E.2d 1017 (1st Dist. 1991).

https://www.constitution.org/writ/quo_warranto.htm


Several things should be noted in these statutes:
These statutes are codifications of existing common law practices, albeit practices that had been used little if at all for a long time.
Normally such a writ would be issued to one claimant to authority (his "franchise") at a time, but these statutes are notice that all of the grants of feudal privilege are being challenged at the same time.
Since the judgments would be by judges appointed by the King, he was in a position to strip anyone of his feudal privileges, together with all the power and income that might come with them.
This was essentially a move to put all feudal lords on the defense, so that the King could remove any that opposed him or his policies, and confirm the obeisance of the rest.
Despite this irregular use of the writ, it does serve to formally embed the common law pleading in the English constitution, which it does explicitly.
Once established as a tool that could be used by a monarch, it also establishes it as a tool for use by the people when they become the sovereign, as happened upon adoption of the U.S. Declaration of Independence.
The two statutes, although adopted on the same day, and saying much the same thing, are in law Latin and law French, and the English translations were apparently done later. The differences are subtle but interesting, and seemed to be for somewhat different audiences.
It should also be noted that the original common law writs of quo warranto were demands on the party claiming authority, the respondent, who had the burden of proof, not petitions for relief from the court, other than declaratory., with the burden of proof on the petitioner.

Once established as a tool that could be used by a monarch, it also establishes it as a tool for use by the people when they become the sovereign, as happened upon adoption of the U.S. Declaration of Independence.

https://www.constitution.org/eng/stat_quo_warranto_1290.html

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 Posted: Tue Sep 25th, 2018 04:09 pm
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Joe Kelley
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Why bother anyone with this type of information?

"Statutory bond requirements are found within the individual state codes."

https://www.tn.gov/content/dam/tn/tacir/commission-meetings/2013-october/2013-10Tab%204AttachA.pdf


The point at which a fellow traveler through life turns from the path of living and let living, or turns from the path of peaceful coexistence, and turns instead to a path of willfully harming innocent people is a concern for anyone targeted by a guilty criminal, and furthermore this is a concern for everyone who may find their loved ones on the list of targets.


That type of concern for loved ones, where the concern involves the protection of loved ones against harm by guilty criminals, is the type of concern that inspires people to volunteer to be a part of a government that is formed for the purpose of protecting innocent victims from guilty criminals.


What happens when someone in the government turns from innocent protector to aggressive, guilty, criminal?


One thing that people have learned through thousands of years of struggling to protect innocent victims from guilty criminals who turn government into a criminal organization is the process of bonding those people in the government.


The bond intends to bond each individual in government inside of voluntary, mutual, protection boundaries, and the bonding of each individual government office holder intends to keep each individual in government from stepping outside of voluntary, mutual, protection boundaries.

In other words: A Public Office Bond is like a shackle around the government employees neck, with a chain that chains the government employee to a massive metal ball, and these chains chain the government employee to moral behavior.




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 Posted: Wed Sep 26th, 2018 04:59 pm
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Joe Kelley
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"For generations students of the American legal system who have studied the history of the law of civil pleading and procedure have devoted most of their attention to one single incident-the enactment of the Field Code of Procedure in New York in 1848. The interpretation advanced has been that prior to the 1840's the common law system of pleading "taken from England served well enough, and the people manifested little inclination to take up the burden of revision." Instead they "were too busily concerned with financial, social, and industrial problems to permit of any great activity in the direction of reforming legal procedure."' But, then, David Dudley Field with the aid of a tiny band of lawyer-reformers, perceiving that the common law rules of pleading were outmoded and unduly expensive, conceived the Code and induced the legislatures of New York and most other states to adopt it.2

"This story of Field and his Code has undoubtedly inspired generations of practitioners with faith that thought and effort are the chief ingredients of successful reform. A comprehensive study of the surviving records of trial and appellate courts in Massachusetts from 1760 to 1830 suggests, however, that the traditional view of the impact of the Field Code may be mistaken. At least in Massachusetts, the abandonment of the system of common law pleading did not occur suddenly. Instead, the common law system was gradually transformed during a period of more than a half century into something like a modern system of notice pleading. The transformation, moreover, was largely the work of the courts and was not given statutory form until it was nearly complete."


False history:
"...faith that thought and effort are the chief ingredients of successful reform..."

Questioning false history:
"...the traditional view of the impact of the Field Code may be mistaken."

The fact is that where the people once defended their power to govern the government, to insist on trial by jury in cases where someone in the government is probably causing injury to innocent people, now, clearly, the people have to ask the criminals in government for permission to try a case - trial by the country - where someone in government is caught red-handed perpetrating crimes that include treason.

THE REFORM OF COMMON LAW PLEADING IN MASSACHUSETTS 1760-1830: ADJUDICATION AS A PRELUDE TO LEGISLATION
WILLIAM E. NELSON
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5712&context=penn_law_review

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 Posted: Wed Sep 26th, 2018 05:22 pm
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Joe Kelley
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"Characterized neither by the private rights model of the seven common law forms of action nor by the "injury-in-fact" paradigm of modern standing doctrine, these matters took forms astonishingly similar to the "standingless" public action or "private attorney general" model that modern standing law is designed to thwart.... Adjudicatory models premised on a part-whole schema, like mandamus, are ultimately crowded out of our concept of justiciable controversies.... Procedurally, the models of access for raising claims of public right allowed individuals to command the attention of the law, as in the private rights model.... The Frothingham Court began its analysis with a discussion of nonconstitutional doctrines of equity, proceeded to reason from the constituent model in a way that shows clear prototype effects, then rejected the intermediate status of the public rights model, and finally raised constitutional considerations that helped lead to a modern conception of standing.... For over a hundred years, the metaphor of "standing" was shorthand for the question of whether a plaintiff had asserted claims that a court of equity would enforce...."


The Metaphor of Standing and the Problem of Self-Governance.
Steven L. Winter
https://constitution.org/duepr/standing/winter_standing.htm

"All of the actions commonly in use in England, such as trespass, trover, case, debt, covenant, assumpsit and replevin were also in use in Massachusetts, and one even finds obscure actions, such as recout, in occasional use."

"Over the years the courts recognized other forms of actions that permitted recovery for injuries that did not exactly fit the forms of trespass or trespass on the case. Eventually, writs were also issued for these various types of actions."
http://law.jrank.org/pages/10897/Trespass-Common-Law-Form-Action.html

Common Law Forms of Action (Not genuine bottom up, grass roots, voluntary common law, rather English top down, dictatorial, divide and conquer, counterfeit Common Law: see Lysander Spooner an Essay on the Trial by Jury):


1. Trespass

"The fine in this criminal proceeding developed into an award of damages to the plaintiff. This change marked the beginning of tort action under the common law."

Look-up in Essay on the Trial by Jury the section concerning fines charged to the guilty that were not injurous to the guilty (ruinous).

"Over the years the courts recognized other forms of actions that permitted recovery for injuries that did not exactly fit the forms of trespass or trespass on the case. Eventually, writs were also issued for these various types of actions."

Organic (bottom up) common law, being adaptive, affords each indivdual seeking remedy for any percieve injury their right (1st ammendment) to create a writ of action that fits the individual situation. Reference needed here...

http://law.jrank.org/pages/10897/Trespass-Common-Law-Form-Action.html


2. Trover

"Early in its history, the English Common Law recognized the rights of a person whose property was wrongfully held (or detained). Such a person could bring an action of Detinue to recover the goods or, later, could bring an action on the case to recover the value of the goods. In the course of the sixteenth century, the action of trover developed as a specialized form of action on the case."
https://legal-dictionary.thefreedictionary.com/trover

Detinue
"Dating back to the twelfth century, detinue is one of the oldest forms of action in common law, along with the action of debt—a lawsuit for a specific sum of money owed."
https://legal-dictionary.thefreedictionary.com/detinue

Above lends validity to the accurate measure of liberty versus a profitable monopoly, as liberty is when all people are on equal footing according to the voluntary mutual defense association laws, and each indivdiual can tailor fit the common law action required to inform the country (the jury) as to what precisely is the injury done to the innocent victim, the same injury done by the guilty criminal. Civil rather than criminal cases, do not threaten the people as a whole: the public, as in "disturbing the peace," suggests. See Roger Roots work.


The encroachments upon individual freedom is this enforcement of assumed authority to define the injuries done by one indiviudal to another (or many to many) that are deemed worthy of due process, and only these specified formes are allowed, and no other forms are allowed, which thereby removes the actual power (indivdiual) to adapt to each situation. The many reasons to assume such authority include the reason that the "elite" can transfer more, and more, power from the "subjects," as each individual seeking remedy has to pay for boilerplate A, which turns out to be rejected, then pay for boilerpalte B, which turns out to be rejected, on and on and on, utill the cost of "justice" is unafordable.

3. Case



4. Debt

5. Covenant

6. Assumpsit

7. Replevin

Down into a rabbit hole...

"Let it be granted that one man has been wronged by another; the first thing that he or his advisers have to consider is what form of action he shall bring. It is not enough that in some way or another he should compel his adversary to appear in court and should then state in the words that naturally occur to him the facts on which he relies and the remedy to which he thinks himself entitled. No, English law knows a certain number of forms of action, each with its own uncouth name, a writ of right, an assize of novel disseisin or of mort d'ancestor, a writ of entry sur disseisin in the per and cui, a writ of besaiel, of quare impedit, an action of covenant, debt, detinue, replevin, trespass, assumpsit, ejectment, case. This choice is not merely a choice between a number of queer technical terms, it is a choice between methods of procedure adapted to cases of different kinds. Let us notice some of the many points that are implied in it."
Medieval Sourcebook:
F. W. Maitland:
The Forms of Action at Common Law, 1909

Why are commoners (subjects subjected to criminals inforcing a profitable monopoly that counterfeits rule of law) unable to afford due process of law?

"As early as the time of the American Revolution, lawyers and laymen alike were aware of the needless expense of litigation. One writer in 1770, for example, told a correspondent that "[L]aw suits are what we wish to avoid and always advise our friends against it, as tedious and very expensive..." (Letter from Anderson Bannatyne Co., Glasgow, to John Russel, Plymouth, June 5, 1770, in plymouth Notary Public Records, 1768-1830) The Reform of Common Law Pleading in Massachusetts 1760-1830: Adjudication as a Prelude to Legislation William E. Nelson


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 Posted: Wed Sep 26th, 2018 08:18 pm
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Joe Kelley
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"If a defendant did not wish to plead the general issue, he could plead specially. Although special pleading was used only rearely before the Revolution, its use became more frequent thereafter. Special pleas could be of great variety, depending upon the circumstances of a defendant's case. A defendant might plead an accord and satisfaction, arbitration, conditions performed, infancy or some other fact which precluded the plantiff from maintaining his action. He could also put in a plea in justification, as, in actions of assult and battery, self-defense or defense of freehold;"

Footnote: See Allen v, Spooner, [June 1772] Worc. C.P. 397, appeal dismissed, [May 1773] Worc. Super. Ct. 33.

The Reform of Common Law Pleading in Massacsusetts 1760-1830: Adjudication as a Prelude to Legislation
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5712&context=penn_law_review

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 Posted: Thu Oct 18th, 2018 08:26 pm
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Joe Kelley
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Admitting the fiction: legal standing?:

"The Court has insisted on these minima with an amazing degree of orthodoxy: "Any other conclusion," the Court has warned, "would mean that the Founding Fathers intended to set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts." n10"

Legal fiction rights (a group is an individual) traced to "standing" fictions: deception employed in the effort to gain absolute power:

"This apparent inconsistency in the application of the particularization requirement has led some commentators to ask whether there are some constitutional rights that are "group rights" and others that are "personal rights." n59 In Section VI, I suggest that this false dichotomy is an artifact of standing law, that it is out of sync with social reality, and that it is responsible for much of the perceived incoherence of standing doctrine."


All but the guilty are disenfranchised:

"All too often, the inevitable consequence of a decision denying standing is "that the most injurious and widespread Governmental actions c[an] be questioned by nobody.""


"There is a developing body of work on human cognition which suggests that human thought is grounded in physical experience and extended by means of idealized cognitive models and metaphoric projections. n71 According to this theory, basic preconceptual experiences (or schema) provide the organizing principles for the construction of conceptual models. n72 Examples include link schema (such as the umbilical cord, hand holding); container schema (we experience our [*1385] bodies as having an in-out orientation); part-whole schema (we experience directly the relationships between our hands and the rest of the body); n73 and source-path-goal schema (from earliest childhood, we move from one place to another to obtain desired objects). n74 The human capacity to conceptualize allows us to project these structures and to use them to organize other aspects of our experience. To take a simple example, we conceptualize purposes in terms of the source-path-goal schema; this gives rise to systematic source-path-goal metaphors that we use in our thinking about purposes. We can therefore perceive our purposive efforts as going a long way toward our goal, conceptualize something or somebody that interferes with our purposes as an obstacle that gets in our way, and describe some of our failings in terms of being sidetracked. n75"

"There are analogous narrowing effects in the context of standing. When the metaphor of "standing" becomes the conduit of certain "truths," it structures our perception of the boundaries of the legal world in a way that is distorting. n95 The "standing" metaphor affects both how we perceive our past and what we receive from it in terms of available legal tools. n96 Viewed through the lens of "standing," adjudication was always about the settlement of private disputes; questions of public values are implicated only incidentally. But this was not always the case. At the time of the Framers, non-individualistic, group models of adjudication, like mandamus and informers' actions, had been designed to deal with public issues. n97 These public rights models were structured in terms of other schemata very much at odds with the modern conceptualization of standing. The "standing" metaphor, therefore, deprives us of a knowledge of our own history. As a result, we lose an understanding of what that history could say to us about our possibilities."

https://constitution.org/duepr/standing/winter_standing.htm


In that last quote are words that ought to be weighed in context of the following words from Roger Roots book The Conviction Factory:


Page 40
Private Prosecutors

"For decades before and after the Revolution, the adjudication of criminals in America was governed primarily by the rule of private prosecution: (1) victims of serious crimes approached a community grand jury, (2) the grand jury investigated the matter and issued an indictment only if it concluded that a crime should be charged, and (3) the victim himself or his representative (generally an attorney but sometimes a state attorney general) prosecuted the defendant before a petit jury of twelve men. Criminal actions were only a step away from civil actions - the only material difference being that criminal claims ostensibly involved an interest of the public at large as well as the victim. Private prosecutors acted under authority of the people and in the name of the state - but for their own vindication. The very term "prosecutor" meant criminal plaintiff and implied a private person. A government prosecutor was referred to as an attorney general and was a rare phenomenon in criminal cases at the time of the nation's {notice the affect of misrepresenting here, as there were 13 nations that were founded, not one: nation supplants federation, or profitable monopoly supplants voluntary association for mutual defense} founding. When a private individual prosecuted an action in the name of the state, the attorney general was required to allow the prosecutor to use his name - even if the attorney general himself did not approve of the action.
Private prosecution meant that criminal cases were for the most part limited by the need of crime victims for vindication. Crime victims held the keys to a potential defendant's fate and often negotiated the settlement of criminal cases. After a case was initiated in the name of the people, however, private prosecutors were prohibited from withdrawing the action pursuant to private agreement with the defendant. {plea-bargaining is voluntary when no other people are threatened by the offender, but involuntary when the potential for injury yet to be done by the offender is bought off by a private person, which then allows the offender to run amok in the playground} Court intervention was occasionally required to compel injured crime victims to appear against offenders in court and "not to make bargains to allow [defendants] to escape conviction, if they...repair the injury."
The Conviction Factory: The Collapse of America's Criminal Courts, Roger Roots, 2014


So...personal injury is repaired, but a threat to everyone is unaccounted for, thereby enabling that threat (giving license to) to move onto other victims. Modern Injustice fake government "courts" routinely extort confessions by threatening severe punishments under the guise (metaphor) of "plea bargaining," which thereby results in a private bargain, for private profit, at the expense of everyone: not the public thing, thereby not republican.

Returning to Winter writing about Standing, the following quote ought to be weighed in the context of Corporate Rights, as in "limited Liability" legal fiction, corporate personhood. In other words the "Courts" (so-called Article III summary justice "courts") assume the power to act as gatekeepers, and the routine for those in power is to deny access to due process on the grounds that there is no public thing (no republic) that can be injured, when in fact every single injury to every single individual is an injury to that public thing. And furthermore, while the one hand is waving this magic wand that disenfranchises all the slaves (everyone who produces anything worth stealing) from due process, the other hand is busy defending the all powerful nation state, with it's so-called National Interest. See for example the murder of Martin Luther King Jr.

"The very availability of these writs as means to control governmental action belies the private rights model; these procedural devices were designed to restrain unlawful or abusive action by lower courts or public agencies, especially actions that were beyond their jurisdiction. n125 These writs fit easily within the jurisprudential thought of the time. n126 As Blackstone explained it, mandamus and prohibition redressed the legal injuries of "refusal or neglect of justice" n127 and "encroachment of jurisdiction," n128 respectively. Neither of these concepts entails a view in which only individuals can be rights-holders. To the contrary, "neglect of justice" and "encroachment of jurisdiction" are essentially communal concerns. n129 And, if Blackstone's definitions of these "injuries" sound strange to modern ears, it is because today's jurisprudence treats "injury-in-fact" in literalist terms. But the common law usage of the term "injury" was plainly metaphoric. n130 The term "injury" referred to "any infringement of the rights of another ... for which an action lies at law." n131 Legal injuries were conceptualized in terms of the experience of physical injury, but the former was not confused with the latter. It is only in this sense that there could be a notion of damnum absque injuria — that is, damage without cognizable legal injury."

Reinforcing the private prosecutor process:

"The English relator practice, which applied also in equity, provided a formalized procedure for this part-whole metonymy. On issues of public rights or public duties, where the English attorney general could sue on behalf of the Crown, any person might seek one of the prerogative writs or bring a suit for an injunction in the name of the attorney general. The litigant, or relator, needed only to obtain the fiat or permission of the attorney general to use his name; such permission was [*1399] granted as a matter of course. Once permission was obtained, the relator prosecuted the action at his or her own expense and without direction from the attorney general. n136 The attorney general, however, was not a necessary party — that is, his fiat was not needed — "where the interference with the public right is at the same time an interference with some private right or is a breach of some statutory provision for the protection of the plaintiff." n137 This latter rule demonstrates that the relator practice clearly contemplated actions by those without a direct stake in the controversy. Thus, as a practical and historical matter, the relator's action extended the availability of judicial remedies to persons not immediately affected by the challenged action by allowing any part to invoke the name and the power of the whole and represent its interests before the courts."

Evidence of usurpation (treason against the public thing, treason against the whole people, treason against any individual as one part of the whole respublica) as the "Judiciary Act" 1789 is referenced:

"In Hayburn's Case, Attorney General Randolph filed in the Supreme Court a petition for a writ of mandamus to the federal circuit court for Pennsylvania to enforce a congressional statute providing disability pensions to Revolutionary War veterans. n140 The statute empowered the federal circuit courts (which were the superior trial courts) to serve as commissions, determining the amount of the pensions and certifying those determinations to the secretary of war. The secretary of war, however, could disallow a pension and refer the case to Congress. The circuit courts refused to accept these cases.
The Attorney General first sought mandamus in his own behalf, ex officio, to enforce the statutory scheme. He argued that section 35 of the Judiciary Act of 1789 n141 authorized the attorney general to act in this manner. n142 But, only a few months before the argument in Hayburn's Case, Congress had rejected an amendment to the Process Act of 1792, n143 proposed by Randolph, that would have explicitly authorized such actions. n144 A divided Court denied the ex officio motion. n145 Rayburn's [*1400] response was to seek mandamus on behalf of Hayburn, an interested party. n146"

Spelled out well enough perhaps in the following quote is this battle over who speaks for everyone, whereas a petit jury (trial by the country) is the ancient common law voice of the whole public, and expressly not a faction (oligarch) assuming (falsely) power to speak for, or act for, the whole, and certainly not an individual (king) assuming (criminally enforcing by treason) powers to speak for the whole number of individuals that constitute the public thing:

"But Hayburn's Case did not affect the viability of adjudicatory models premised on the part-whole schema — that is, it did not reflect a rejection of the English practice treating such cases as justiciable. Rather, the concern in Hayburn's Case was with the proper definition of the whole in a constitutional system of separated powers. The English practice upon which Randolph relied presupposed a sovereign with plenary power to enforce its laws through its attorney general and its courts. It was this premise that the Court did not accept. The executive was no longer the "head" of the body politic, and the federal courts, unlike the King's Bench, could no longer assume that they were free to speak for the whole. Rather, both organs were limited to the exercise of powers given either by the Constitution or, within constitutional limits, by the Congress. n148 Congress was the branch most representative of the American sovereign — the people. It was, therefore, the closest American equivalent to society's "head.""

And there it is the usurpation. Rather than the whole people (respublica) being represented in the petit jury (democratically selected by lot), the faction known as a "congress" assumes the power to speak for, and act for, the whole. Gone is trial by jury, gone is consent of the governed.


"Different institutional premises, rather than doubts about justiciability, led to the demise of the relator form of action in the federal courts. Indeed, Hayburn's Case affirmed another adjudicatory model premised on the part-whole schema. That is, if the Court had intended to require that plaintiffs must have personal injuries in order to establish [*1401] a "case or controversy," then it would have dismissed Randolph's ex officio action at the outset for want of justiciability. Similarly, it would have held the case unjusticiable even after Randolph declared that he was suing on behalf of another.
The Court did not dismiss Randolph's actions for lack of justiciability because it did not repudiate the essence of the public rights model. Today we would see Randolph's actions as an instance of jus tertii — raising the rights of third parties — or what I will call a representational model. The Hayburn Court accepted Randolph's invocation of a representational model, premised on a part-whole structure, that did not require allegation of specific, personal injury: Randolph, a representative of the whole, was allowed to proceed with the mandamus petition on behalf of Hayburn, a part. n149"

So what happened to the grand jury made up of people who are independent, not part of the government?

Furthermore, the question of who is more powerful, each individual at peace with each other individual represented by a petit jury, as the final say so on any matter of fact, law, or justice, or, on the contrary, a band of deceiving criminals falsely assuming absolute authority on anything, is...

The whole country where each is as powerful as each other:

"Although Hayburn's Case undermined the institutional premises of the relator action, American courts continued to entertain similar suits premised on a part-whole schema. Those courts familiar with the English precedents invoked them to allow citizens without particularized injury or interest to question governmental authority. In State v. Justices of Middlesex, n150 the New Jersey Supreme Court invoked the theory that jurisdiction lay to redress what Blackstone called "neglect of justice" n151 to hold that certiorari was available to challenge the conduct of an election. The court found support for its conclusion in the writings of the English jurists, including Coke n152 and Hawkins, who observed that "whatever crime is manifestly against the publick good, it comes within the conusance of this court [the King's Bench], though it do not directly injure any particular person...." n153 The New Jersey court indicated that its discretionary power of certiorari "is sometimes exercised before an injury actually accrues to any one, by issuing a mandamus...." n154 The Court justified this power in communitarian terms:
Where the injury is extensive, and involves any considerable portion of the community, it is better to take up the business in gross.... The reason is [that] the power is necessary for the preservation of the peace of the community; — and with what colour can it be pretended that this court, whose duty it emphatically is to take care that justice is done to [*1402] every one, has no power to protect the interests, and redress the wrongs of an entire county. n155"


Each is as powerful as each other overturned by a "higher" authority:

"Although Middlesex was apparently reversed on appeal..."

Much like the recent trial by jury case involving the Federal Reserve, whereby the judgment of the people, seconded by a judge, is over"RULED" by a summary justice court.


https://constitution.org/duepr/standing/winter_standing.htm

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 Posted: Mon Oct 22nd, 2018 07:00 pm
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The reformation of American administrative law Richard B. Stewart


The book above looks good, but it is kept inside the gate by the gatekeepers.

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 Posted: Mon Oct 22nd, 2018 08:50 pm
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18 U.S. Code § 242 - Deprivation of rights under color of law
"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death."
https://www.law.cornell.edu/uscode/text/18/242


"The Supreme Court held that the suppression of favorable evidence violated Brady's rights under the Due Process Clause of the Fourteenth Amendment. 69

66. See Kyles, 514 U.S. at 437-38.
67. See Brady, 373 U.S. at 87 ("The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.").
68. Id
69. Id. at 86. The Due Process Clause states that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV.


"While the Supreme Court requires prosecutors to disclose certain evidence to the defense, consequences for withholding such evidence do not exist in the criminal justice system."
87. See Weeks, supra note 78, at 878 ("[T]he prospect of a civil suit under federal law for a Brady violation simply does not exist. We will have to look elsewhere to discover the incentive for prosecutors to comply with their constitutional obligation to disclose exculpatory evidence.").

"In fact, the Supreme Court has granted prosecutors absolute immunity from civil liability for failure to disclose exculpatory evidence.88"
88. See Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also Bruce A. Green, Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement?, 8 St. Thomas L. Rev. 69, 79 n.54 (1995) [hereinafter Green, Enforcement] (stating that "prosecutors have absolute immunity for misconduct related to their prosecutorial function").
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3689&context=flr

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Joe Kelley
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Edward I Legislation
"The next step was concerned with a different subject. Various barons claimed and exercised various rights of jurisdiction locally, with exemption from interference on the part of the king's officers, and in effect superseding the royal authority. The Statute of Gloucester empowered the king's officers to examine, in virtue of the writ called Quo Warranto, the authority under which the barons claimed and exercised these privileges; on the hypothesis that the claims were null and void, unless supported by documentary proof that they had been conferred by royal grant."
https://www.britainexpress.com/History/Edward-I-Legislation.htm

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 Posted: Thu Jul 18th, 2019 10:47 pm
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(Lat. For replevying a man.) A writ which lies to replevy a man out of prison, or out of the custody of a private person, upon giving security to the sheriff that the man shall be forthcoming to answer any charge against him. Fitzh. Nat. Brev. 66; 3 Bl. Comm. 129. This writ has been superseded almost wholly, in modern practice, by that of habeas corpus; but it is still used, in some of the states, in an amended and altered form. See 1 Kent, Comm. 404n; 34 Me. 136.
https://thelawdictionary.org/de-homine-replegiando/

Note: "custody of a private person"

“If treason or felony be committed, and one hath just cause of suspicion, this is a good cause, a warrant in law, for any man to arrest the person suspected, but he must shew certainly the cause of his suspicion be just or lawful, shall be determined by the justices in an action of false imprisonment brought by the party grieved, or upon an habeas corpus, &c.”
British Liberties, or the Free-born Subject’s Inheritance
Printed by H.Woodfall and W. Strahan, 1766

Introduction
“As to public crimes, though they are all public, yet we must distinguish between those which more nearly concern the mutual communication of citizens, and those which more nearly interest the state in the relation it has to its subjects. The first are called private the second public.” (legal fiction dogma)

“The punishments inflicted upon the latter crimes are such as are properly distinguished by that name, they are kind of retaliation, bu which the society refuses security to a member, who has actually or intentionally deprived another of his security. These punishments are derived from the nature of the thing, founded on reason, and drawn from the very source of good and evil. A man deserves death when he has violated the public security so far as to deprive, or to attempt to deprive another man of his life. This punishment of death is the remedy, as it were, of a sick society.” (Note the concept “refuses security to a member,” and how that can be seen alternatively as a choice by someone to refuse false security, or how that can be seen as merely recognizing that a criminal is by definition choosing to reject an offer of security: out-law)

“In countries where liberty is most esteemed, there are laws by which a single person is deprived of it, in order to preserve it for the whole community. Such are in England what they call bills of attainder. These are relative to those Athenian laws, by which a private person was condemned, provided they were made by the unanimous suffrage of six thousand citizens. They are relative also to those laws which were made at Rome against private citizens, and were called privileges. These were never passed, unless in great meetings of the people. But in what manner foever they are enacted, Cicero is for having them abolished, because the force of law, consists in its being made, for the whole community. I must own, notwithstanding, that the practice of the freest nation that ever existed, induces me to think that there are cases in which a veil should be drawn for a while over liberty, as it was customary to veil the statues of the gods.” (more might makes right dogma, but note: ...for the whole community… meaning perhaps that there are no exceptions)

bills of attainder

https://upload.wikimedia.org/wikipedia/commons/7/79/British_Liberties%2C_or_the_Free-born_Subject%27s_Inheritance_%281st_ed%2C_1766%29.pdf

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Joe Kelley
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Dunklin County v. District County Court of Dunklin County, 23 Mo. 449, 454 (Mo. 1856)
https://www.ravellaw.com/opinions/df398fe110fd5580e071d8f911ac0bff

"The writ of mandamus is in form a command in the name of the state, directed to some tribunal, corporation, or public officer, requiring them to do some particular thing therein spe­cified, and which the court has previously determined that it is the duty of such tribunals or other person to perform. It is­sues in England^only out of the King’s Bench, the highest court in the kingdom, and was introduced, it is said, in order to pre­vent disorder from a failure of justice or defect of police, and is therefore granted only in cases when the law has provided no specific remedy, and in justice and good government there ought to be one. It does not lie to correct the errors of in­ferior tribunals by annulling what they have done erroneously, nor to guide their discretion, nor to restrain them from exer­cising power not delegated to them; but it is emphatically a writ requiring the tribunal or person to whom it is directed, to do some particular act appertaining to their public duty, and which the prosecutor has a legal right to have done."

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 Posted: Sun Aug 18th, 2019 02:56 am
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A treatise on extraordinary legal remedies, embracing mandamus, quo warranto and prohibition
by High, James L. (James Lambert), 1844-1898
https://archive.org/details/treatiseonextrao00highuoft/page/10


Originally the writ of mandamus was purely a prerogative remedy, and to this day it preserves in England some of its prerogative features. It was called a prerogative writ from the fact that it proceeded from the king himself, in his court of king’s bench, superintending the police and preserving the peace of the realm, and it was granted where on was entitled to an office or function, and there was no other remedy. Blackstone terms it a “high prerogative writ, of a most extensive remedial nature.” and it is uniformly referred to in the earlier cases as a prerogative remedy, and is spoken of as one of the flowers of the king’s bench. In this country, however, a mandamus can not in any strict sense be termed a prerogative writ, and much confusion of ideas has resulted from the efforts of many of the courts to attach prerogative features to the remedy, as used in the United States. This confusion has resulted chiefly from a failure to properly discriminate between the Engish and American systems. Under the English constitution, the king is the fountain and source of justice, and when the law did not afford a remedy by the regular forms of proceedings, the prerogative powers of the sovereign were invoked in aid of the ordinary judicial powers of the courts, and the mandamus was issued in the king’s name, and by the court of king’s bench only, as having a general supervisory power over all inferior jurisdictions and officers. Originally, too, the king sat in his own court in person and aided in the administration of justice; and although he has long since ceased to sit there in person, yet by a fiction of law his is still so far presumed to be present as to enable the court to exercise its prerogative powers in the name and by the authority of the sovereign. And the fact that a mandamus was formerly allowed only in cases affecting the sovereign, or the interests of the public at large, lent additional weight to the prerogative theory of the writ. These suggestions are believed to sufficiently explain the statements so frequently met in the reports, that the writ of mandamus is a prerogative writ, issuing not of strict right, but at the will of the sovereign, and as an attribute of sovereignty.
As fonfied to the English system, and to the jurisdiction of the court of the king’s bench, these statements may be accepted as correct. But even in the country there seems to be a growing tendency to divest the writ of its prerogative features, and to treat it in the nature of a writ of right.
& 4. In the United States, from the nature of our system of government, the writ has necessarily been stripped of its prerogative features. Indeed, it is difficult to perceive how a mandamus can in any sense be deemed a prerogative write in this country, unless the power of granting it were confined to one particular court in each state, or to a particular federal court, whose general functions should correspond to those of the court of king’s bench, and which should represent the sovereignty of the country in the same sense in which it was represented in England by the king’s bench. And the better considered doctrue now is, that the writ has, in the United States, lost its prerogative aspect, and that it is to be regarded much in the nature of an ordinary action between the parties, and as a writ of right to the extent to which the party aggrieved shows himself entitled to this particular species of relief. In other words, it is regarded as in the nature of an action by the person in whose favor the writ is granted, for the enforcement of a right in cases where the law affords him no other adequate means of redress. And a judgment in a mandamus proceeding, as in case of an ordinary action at law, is subject to review by writ of error or appeal upon like conditions as in other cases.
& 5. Under the American system the writ having, as we have thus seen, been stripped of its prerogative features, it has necessarily lost some of the characteristics which formerly distinguished it as an extraordinary writ, and has been assimilated to the nature of an ordinary remedy. It is still, however, regarded as an extraordinary remedy in the sense that it is used only in extraordinary cases, and where the usual and ordinary modes of proceeding and forms of remedy are powerless to afford redress to the party aggrieved, and where without its aid there would be a failure of justice. In this sense, its character as an extraordinary writ bears a striking resemblance to that of injunction, which is the principal extraordinary remedy of courts of equity, and which is granted only when the usual and accustomed modes of redress are unavailing. And it is to be constantly borne in mind in investigating the law of mandamus as it now prevails both in England and in the United States, that by treating the remedy as an extraordinary one, it is not to be understood that the writ is left to the arbitrary caprice of every court vested with the jurisdiction, or that its use is not governed by rules as fixed and principles a clearly defined as those which regulate any branch of our jurisprudence, on the contrary, it is believed that few branches of the law have been shaped into more symmetrical development, and few legal remedies are administered upon more clearly defined principles, that those which govern the courts in administering relief by the extraordinary aid of mandamus.

yet by a fiction of law

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 Posted: Fri Aug 23rd, 2019 04:37 pm
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A treatise on extraordinary legal remedies, embracing mandamus, quo warranto and prohibition
by High, James L. (James Lambert), 1844-1898

A comparison of the writ of mandamus, as now used in England and America, with the writ of injuction, discloses certain striking points of resemblance as well as of divergence in the two writs. Both are extraordinary remedies, the one the principal extraordinary remedy of courts of equity, the other of courts of law, and both are granted only in extraordinary cases, where otherwise there courts would be powerless to administer relief. Both, too, are dependent to a certain extent upon the exercise of a wise judicial discretion, and are not grantable as of absolute right in all cases. It is only when we come to consider the object and purpose of the two writs that the most striking points of divergence are presented. An injunction is essentially a preventive remedy, mandamus a remedial one. The former is usually employed to prevent future injury, the latter to redress past grievances. The functions of an injunction are to restrain motion and to enforce inaction, those of a mandamus to set in motion and to compel action. In this sense an injunction may be regarded as a conservative remedy, mandamus as an active one. The former preserves matters in status quo, while the very object of the latter is to change the status of affairs and to substitute action for inactivity. The one is, therefore, a positive or remedial process, the other a negative or preventative one. And since mandamus is in no sense a preventive remedy, it can not take the place of an injunction, and will not be employed to restrain or prevent an improper interference with the rights of relators.

Footnote: See further as to the distinctions here noted, People v. Inspectors of State Prison, 4 Mich.187; Attorney-General v. New Jersey R.& T. Co., 2 Green Ch.136; Washington University v. Green, 1 Md. Ch. 97; Blakemore v. Glamorganshire R. Co., 1 Myl. & K. 154; Crawford v. Carson, 35 Ark. 565; Fletcher v. Tuttle, 151 Ill. 41.
Legg v. Mayor of Annapolis, 42 Md. 203.

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