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 Posted: Fri Dec 22nd, 2017 12:44 pm
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Joe Kelley
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"THE GRAND JURY originated in England as the accusing body in the administration of criminal justice. At the Assize of Clarendon, in 1166, Henry II provided that twelve knights or twelve "good and lawful men" of every hundred and four lawful men of every vill disclose under oath the names of those in the community believed guilty of criminal offenses. Members of this inquisitorial body were obliged to present to the judge sworn accusations against all suspected offenders. Unlike petit juries, grand juries were not to pass upon guilt or innocence but were to decide only whether an individual should be brought to trial. At first all accusations originated with the members of the inquest themselves, but gradually the juries came to consider accusations made by outsiders as well. The jurors then heard only witnesses against the accused and, if they were convinced that there were grounds for trial, indicted him. They also passed upon indictments laid before them by crown prosecutors, returning a "true bill" if they found the accusation true or "no bill" if they found it false. However, the juries never lost their power to accuse on their own knowledge. This they did by making a presentment to the court. The presentment represented an accusation on the jury's own initiative while an indictment represented a charge that originated outside the membership. Under their power of presentment English grand juries could and did investigate any mater that appeared to them to involve a violation of the law."


https://scannedretina.files.wordpress.com/2014/01/the_peoples_panel_rotated.pdf

The People's Panel
The Grand Jury in the United States, 1634 - 1941
Richard D. Younger

Page 3

"They proved their effectiveness during the Colonial and Revolutionary periods in helping the colonists resist imperial interference. They provided a similar source of strength against outside pressure in the territories of the western United States, in the subject South following the Civil War, and in Mormon Utah. They frequently proved the only effective weapon against organized crime, malfeasance in office, and corruption in high places.

But appreciation of the value of grand juries was always greater in times of crisis, and, during periods when threats to individual liberty were less obvious, legal reformers, efficiency experts, and a few who feared government by the people worked diligently to overthrow the institution. Proponents of the system, relying heavily on the democratic nature of the people's panel, on its role as a focal point for the expression of the public needs and the opportunity provided the individual citizen for direct participation in the enforcement of law, fought a losing battle. Opponents of the system leveled charges of inefficiency and tyranny against the panels of citizen investigators and pictured them as outmoded and expensive relics of the past. Charges of "star chamber" and "secret inquisition" helped discredit the institution in the eyes of the American people, and the crusade to abolish the grand jury, under the guise of bringing economy and efficiency to local government, succeeded in many states.


Page 8

The grand jury system of Connecticut developed on different lines than those of Massachusetts and Plymouth. From the earliest period the colony made use of the "information," a written accusation filed in the court by a prosecuting officer acting under oath; juries confined themselves almost entirely to capital cases; and the town meetings did not elect jurors. In 1643, an order of the General Court provided for the first grand jury required the clerk of the General Court to "warn" twelve men to appear at each September session.


There are:

Presentments
Indictments
True Bills
No Bills
Informations

__________________________________
Page 4:

Grand juries, on the other hand, could issue their own subpoenas for witnesses for contempt and bring perjury charges against those who refused to tell the truth.


Pages 14,15

When English rule began in 1664, the English proprietor, the Duke of York, made provision neither for the grand jury nor for a representative assembly. The first grand inquest to convene in New York attended the Provincial Court of Assize in 1681 in the reason case of William Dyer. The jury indicted Dyer for treason and charged that as customs collector he had imposed unlawful customs duties and had used troops to enforce his unlawful practices. The grand jurors also took this occasion to present "the great, manifold and insupportable grievances under which the province still doth groan." They petitioned the proprietor to remedy the situation by giving the colony a elected assembly. The Court of Assize sent their petition to Duke and he granted New York a representative assembly. IN 1683, at its first session, the new assembly enacted the "Charter of Liberties and Privileges," which included a guarantee of the right to indictment in all capital or criminal cases. Upon his accession to the throne the Duke disallowed the Charter and abolished the assembly, but these actions had little effect upon the grand jury in the colony. It was already in operation and it remained as a regular part of the judicial machinery without any suggestion that it be abolished. Furthermore, it the absence of a representative assembly the powers of the grand juries were gradually expanded. Partly because of the lack of an efficient police system, but partly also because of a desire on the part of the colonists to extend their control over the government, the practice of indicting upon the information of a prosecuting officer eventually disappeared.

Pages 16

The constitution of the Carolinas, like that of Pennsylvania, made specific provision for grand juries. However, the elaborate and artificial Fundamental Constitutions written by John Locke also included a property qualification. In keeping with his attempt to establish a feudal aristocracy, Locke restricted grand jury service in the precinct courts to persons holding fifty acres of land and in the county and provincial courts to persons owning at least three hundred acres. Early presentments in the Carolinas followed the same pattern as those in the other colonies. In addition to indictments for various crimes and misdemeanors, the juries took an active part in local government.

Pages 17

As colonial towns grew and were incorporated, the grand jury became an instrument for popular participation in municipal as well as in county and provincial government. Grand juries operated in conjunction with the local borough courts of incorporated towns. The powers of these courts varied, but they often exercised criminal jurisdiction equal to that of the county courts. Such municipal courts constituted one of the most valuable privileged associated with incorporation, but when no municipal corporation existed, the county or provincial grand juries often turned their attention to city problems and furnished a means of agitating for municipal reforms. Through their presentments grand juries served to arouse public opinion to the need for reforms, and occasionally they managed to stir public officials to action. In some areas towns could be prosecuted upon the presentment of a grand jury. Just such a threat inspired the Boston town meeting to vote a thousand pounds for the repair of streets which the jurors had presented as being "in a ruinous condition."

In some areas towns could be prosecuted upon the presentment of a grand jury.

Page 20:

In 1769, the "regulators" of Rowan County, North Carolina found the local grand jury packed against them when they attempted to bring local officials to trial for charging exorbitant fees. Only three men on the panel were not officers of the government. In March, 1771, Governor William Tryon adjourned the Superior Court of North Carolina because he was dissatisfied with the temper of the grand jury. He directed sheriffs to select as jurymen "only gentlemen of the first rank, property and probity." The resulting grand jury returned sixty-two indictments against the regulators for violating the riot act. Following this, the hand-picked jurors signed the "association" agreeing to support the government and accepted the governor's offer to accompany an armed force to crush the regulators.

Page 21:

In 1682, John Somers, Lord Chancellor of England, wrote a tract entitled The Security of Englishmen's Lives or the Trust, Power and Duty of Grand Juries of England. Lord Somers hailed the grand jury as the only security against malicious prosecution by the government and denied the courts could "magisterially impose their opinions upon the jury." He construed the powers of grand juries very broadly and emphasized that they were not restricted to those matters given them in charge by the judge, but could extend their inquiry to "all other matters which come to their knowledge." Henry Care's English Liberties or Free Born Subject's Inheritance was published in 1698. It emphasized the importance of maintaining the independence of inquests from judicial interference.

Pages 22

Colonists in Georgia, lacking a representative assembly found a substitute in the grand jury and made a series of attempts to use the inquest as a means of airing their grievances against the trustees and their representatives. As early as 1737 a jury protested against the keeper of the trustee's store and complained that the lack of servants prevented proper cultivation of the land. The jurors urged the granting of larger tracts of land and the legalization of the ownership of Negro slaves.

Pages 22, 23, 24

Colonists in Georgia, lacking a representative assembly found a substitute in the grand jury and made a series of attempts to use the inquest as a means of airing their grievances against the trustees and their representatives. As early as 1737 a jury protested against the keeper of the trustee's store and complained that the lack of servants prevented proper cultivation of the land. The jurors urged the granting of larger tracts of land and the legalization of the ownership of Negro slaves. In the following year several members of the grand jury claimed the power to administer general oaths and to inquire into any matter they saw fit. The court denied this power, and Colonel William Stephens, Secretary to the Trustees, declared that such an oath was contrary to English usage. While waiting for a decision from the trustees in England on the matter, the justice adjourned the court for six weeks "in order to have as little to do as possible with grand jurors." Stephens confided to his journal the belief that "a few malcontents" had started the whole mater in order to take control of the government. The trustees decided that the grand juries of the Georgia could require witnesses to take only an oath to testify about particular crimes. Stephens wrote elatedly to the trustees that their decision "would put a happy end to the matter of grand juries."

Colonel Stephens' optimism was ill-founded. In the next year the grand jury again brought up the subject of a general oath, but finally agreed to abide by he ruling of the trustees. In July, 1741, however, the jurors were not as easily persuaded. Led by their foreman, Robert Williams, who had also been foreman of the 1738 grand jury, a majority of the jurymen opposed the policies of the trustees. They proceeded to administer a general oath to all persons they called before them and did not tell the witnesses upon what matters the grand inquest would examine them. Stephens, now president of Savannah County, suspected that the action of the grand jury "tended to no good end" and refused to go before it. He had no desire to allow the jury to engage in a "fishing expedition" at his expense. The jurors presented Stephens for ignoring their summons and in the same return indicted Richard Kent, the justice of the peace for the Indian Nations, for illegally forcing persons to enter into recognizances with him. The jurymen interrogated other witnesses regarding the disposition of the sums of money the trustees had sent to the colony and demanded that officials make a full accounting for such funds. At this point, the court instructed the jurors that they could not compel persons to come before them to be examined under an general oath. Several members of the panel "grew very warm and clamorous" when they heard the court's instructions and in the argument that ensued claimed loudly that all grand juries enjoyed the right of sending for and examining under oath whomsoever they pleased, touching what matters they saw fit. After a heated debate between the bench and the jurors, the judge dismissed the grand jury and adjourned the court.

Undaunted, the panel retired to a private residence and sought the legal opinion of Sir Richard Everard. Sir Richard had just come to Georgia from North Carolina, where his father was royal governor. In spite of this connection, he immediately sided with those who opposed the local officials in the Georgia controversy. As the basis for his advice to the jurors he used Henry Care's English Liberties. He advised the jurors not to submit to dismissal by the court. They heeded this advice and continued to hold their meetings and examine witnesses. When the court learned of Sir Richard's action, the justices required him to post bail and stand trial on the charge of "trying to create jealousies and feuds and alienate the minds of the grand jury." The court then adjourned for two weeks, hoping that the matter would subside. Stephens was less hopeful this time. Taking no chances, he began to consider means to "quash with sufficient authority" any future pretentions on the part of the grand jury.

Blocked in their attempt to use the grand jury as a means of protest, those opposed to the policies of the trustees called a meeting of all the settlers to discuss their grievances. At the meeting they named Thomas Stephens, son of President Stephens, as agent to represent them in England. Young Stephens carried with him instructions to seek land grants equal in size to those in South Carolina, to ask for permission to own Negro slaves, and to work for a representative assembly for the colony."

[an obvious case of criminality, but a possible effort to gain criminal power in defense against criminal power: not an excuse, or justification, merely a natural course along the lines of lies beget lies, and violence begets violence - also look into Slave Population demographics in Georgia 1741 for "before/after" consequences of "legalizing" more slavery done in this case by "grand jury"]

Slavery by Grand Jury

[Look also into Richard Kent Justice of Peace for Indian Nations versus Robert Williams Grand Jury Forman 1738, 41, etc.]

After a heated debate between the bench and the jurors, the judge dismissed the grand jury and adjourned the court.

American (colonial) grand jury, British "bench," and British "judge"?

Undaunted, the panel retired to a private residence and sought the legal opinion of Sir Richard Everard. Sir Richard had just come to Georgia from North Carolina, where his father was royal governor. In spite of this connection, he immediately sided with those who opposed the local officials in the Georgia controversy. As the basis for his advice to the jurors he used Henry Care's English Liberties.

Side A: British court/judge works to overpower colonial grand jury.

Side B: Colonial grand jury and Sir Richard Everard work to overpower British court/judge (to extend slavery franchise beyond monopoly held by British?)

When the court learned of Sir Richard's action, the justices required him to post bail and stand trial on the charge of "trying to create jealousies and feuds and alienate the minds of the grand jury."

British Side moves to overpower grand jury.

Blocked in their attempt to use the grand jury as a means of protest, those opposed to the policies of the trustees called a meeting of all the settlers to discuss their grievances. At the meeting they named Thomas Stephens, son of President Stephens, as agent to represent them in England. Young Stephens carried with him instructions to seek land grants equal in size to those in South Carolina, to ask for permission to own Negro slaves, and to work for a representative assembly for the colony."

NOTE ABOVE: Land/Labor Moral/Immoral Power Struggle

Page 25, 26

The Virginia Assembly replied that the sheriff, an appointee of the governor, selected the jurymen under the governor's "constant infuence and direction." The Assembly observed that, under this system, "the country never had nor will have so bad a governor that a grand jury so pickt will not justify."

By preventing the excessive use of information's signed by royal prosecutors, the grand juries constituted still another important curb on royal authority in the colonies. A Maryland statute of 1715 prohibited criminal proceedings except upon the presentment of a grand jury. The law provided a fine of five thousand pounds of tobacco for judges holding a trial upon an information of the attorney general. A committee of the South Carolina Assembly reported in 1727, that a royal official had introduced a new method of "prosecuting people by way of information." In the same year, the New York Assembly enacted a law prohibiting trial upon information except by order of the governor. The legislators aimed the restriction at an attorney general who had been particularly "vexatious" in bringing persons to trial. Lieutenant Governor Cadwallader Colden of New York reported to the Board of Trade that the Assembly had limited the courts of the colony by its actions, as a part of "their design to weaken His Majesty's government here." Royal officers wanted to avoid referring all criminal matters to local grand juries, since such juries frequently refused to indict, especially if the official desiring the indictment was unpopular. In 1735, Chief Justice William Smith of North Carolina told grand jurors that they had perjured themselves by not bringing a bill of indictment in a certain case. He then ordered the attorney general to bring the matter before him on an information.

By the end of the Colonial period the grand jury had become an indispensable part of government in each of the American colonies. Grand juries served as more than panels of public accusers. They acted as local representative assemblies ready to make known the wishes of the people. They proposed new laws, protested against abuses in government, and performed many administrative tasks. They wielded tremendous authority in their power to determine who should and who should not face trial. They enforced or refused to enforce laws as they saw fit and stood guard against indiscriminate prosecution by royal officials.

[When are the people (as a whole) ever unfit for authority at law? Possible answer: When they (as a whole) are found guilty of willfully injuring innocent people: doing onto the innocent what the people (as a whole) would not have done to themselves. In other words self-destructive.]

The case here is an established limit placed upon the device known as a Grand Jury, that established limit being exceeded, and the device is then used to injure innocent people. The grand jury, rather than being limited to only representing the victims, so as to hold the accused to account in trial by the country (trial by jury), the grand jury becomes aggressor, to enforce the will of the grand jury upon the whole people.


___________________________________________________

Chapter 3
REVOLUTION

The colonists had long fought the practice of bringing individuals to trial on an information of a royal prosecutor, and British efforts to limit the powers of Colonial juries by establishing admiralty courts and providing that Colonial offenders be tried in England met with stiff resistance. Furthermore, the political importance of the juries made the colonists doubly jealous of their right to indictment before being brought to trial. On the eve of the Revolution local grand juries were in an excellent position to take the lead in opposing the imperial government.

[See: Richard Henry Lee explain "legal fiction"]

Page 30

Residents of Boston complained that soliders guilty of serious offensies went unpunished because the attorney general refuse to prosecute them. They also claimed tha the prosecutor was bringing colonists to trial upon his own information in cases where the grand juries refused to indict. In response to these complaints the Massachusetts Assembly adopted a resolution denouncing the actions of the attorney general as "a daring breach of trust and an unsupportable grievance." The Assembly and the town meetings could do little except protest, but the grand juries kept up their end of the dispute by continuing to return "ignoramus' all bills laid before them by the judge or royal prosecutor.

Page 37

Only two of the new state constitutions drafted in 1776 and 1777 specifically guaranteed the right to indictment by a grand jury, but both Revolutionary leaders and ordinary citizens took the institution for granted. Each of the states enacted laws providing for grand juries and gave no thought to abolishing the institution. Since the early days of the struggle against England, Revolutionary leaders had effectively labeled the information of a prosecutor as an odious instrument of British tyranny, while at the same time they had hailed indictment by grand jury as one of their rights as Englishmen.

Page 39

The Rhode Island Assembly also provided that the estates of those who remained loyal to Great Britain could be confiscated and sold at public auction. Proceedings for confiscation did not have to be instituted by a grand jury, but could be carried out by the court on the basis of an information filed by the prosecutor.

[more information concerning land transfers done criminally, or lawfully, and according to who, or what power]

Page 39

In New York the legislature created an emergency body known as the Commissioners for Detecting and Defeating Conspiracies. This committee moved from place to place throughout the state, and with the assistance of the army sought out and arrested "enemies of the state." Although the commissioners had unlimited authority to confine persons, those arrested had to be indicted by a grand jury before they could be brought to trial. Grand juries thus served to prevent suspected individuals from being tried without sufficient evidence to warrant prosecution, and local juries frequently released persons arrested by the commissioners.

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 Posted: Mon Feb 12th, 2018 07:40 pm
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Joe Kelley
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(MAGNA CARTA.) Care, Henry, ed. English Liberties, Or The Free-Born Subject’s Inheritance: Containing Magna Charta . . . The Habeas Corpus Act, And Several Other Statutes
Boston: Printed by J. Franklin, for N. Buttolph, B. Eliot, and D. Henchman, 1721

Notes on Magna Carta

"Farther, though it be said here, that the king hath given and granted these liberties, yet it must not be understood that they were meer emanations of Royal favour, or new bounties granted, which the people could not justly challenge, or had not a right unto before; for as lord Coke in divers places asserts, and as is well known to every gentleman professing the law, this charter is, for the most part, only declaratory of the principal grounds of the fundamental laws and liberties of England. Not any new freedom is hereby granted, but a restitution of such as the subject lawfully had before, and to free them from the usurpations and incroachments of every power whatever. It is worthy observation, that this charter often mentions sua jura, their rights, and libertates suas, their liberties, which shews they were before intitled to and possessed them, and that those rights and liberties were by this charter not granted as before unknown, but confirmed, and that in the stile of liberties and privileges long before well known.”
https://quod.lib.umich.edu/e/eebo/A33823.0001.001/1:4?rgn=div1;view=fulltext

English Liberties, Or The Free-Born Subject’s Inheritance: Containing Magna Charta,
The Habeas Corpus Act, And Several Other Statutes, Henry Care
Boston: Printed by J. Franklin, for N. Buttolph, B. Eliot, and D. Henchman, 1721

“Generally all monopolies are against this Great Charter, because they are against the liberty and freedom of the subject, and against the law of the land; and it is hoped that the publication of this opinion of lord Coke’s will induce some person of property and spirit, to try the validity of it, by commencing and carrying on with vigour, a prosecution against some of the many monopolizers that now exist in this kingdom, to the great distress of the poor, and band of industrious merit, and the total subversion of all order and good government.”
https://upload.wikimedia.org/wikipedia/commons/7/79/British_Liberties%2C_or_the_Free-born_Subject%27s_Inheritance_%281st_ed%2C_1766%29.pdf

Compare that to the American Revolutionary Congress statement concerning a Declaration of Independence:

"That the question was not whether, by a declaration of independence, we should make ourselves what we are not; but whether we should declare a fact which already exists:

"That, as to the people or Parliament of England, we had always been independent of them, their restraints on our trade deriving efficacy from our acquiescence only, and not from any rights they possessed of imposing them; and that, so far, our connection had been federal only, and was now dissolved by the commencement of hostilities:

"That, as to the king, we had been bound to him by allegiance, but that this bond was now dissolved by his assent to the late act of Parliament, by which he declares us out of his protection, and by his levying war on us —a fact which had long ago proved us out of his protection, it being a certain position in law, that allegiance and protection are reciprocal, the one ceasing when the other is withdrawn:"

http://teachingamericanhistory.org/ratification/elliot/vol1/approaches/

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 Posted: Mon Jul 23rd, 2018 11:32 pm
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Joe Kelley
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When a social (mass mankind) connection is glued together with criminal aggression (fraud, extortion, aggressive violence upon the innocent), then power flows to the guilty criminals from the innocent victims: rendering the innocent victims powerless, and the guilty criminals powerful. That is a known error. The fix is individual responsibility and accountability replacing the criminal glue that connects individuals to each other. I am not wrong, and those who can't even contemplate what is now offered are those who confess their malignancy that is either injected into the individual as a consequence of defenselessness, or a commonly understood cancer infecting mankind in the form known as either psychopath, sociopath, or sycophant. Joe Kelley, 7-23-1018, Facebook response.


When power is taken without consent, those who take can take more, and more, until there is no more to take. Joe Kelley, 7-23-1018, Facebook response.

Englishman’s Right
A DIALOGUE BETWEEN A BARRISTER at LAW AND A JURYMAN
Printed in the Year MDCCLXIII. (1762)

Barrister.
My old Client! a - good morning to you: whither so fast? you seem intent upon some important affair.

Jurym.
Worthy Sir! I am glad to see you thus opportunely, there being scace any person that I could at this time rather have wished to meet with.

Barr.
I shall esteem myself happy, if in any thing I can serve you. - The business, I pray?

Jurym.
I am summoned to appear upon a Jury, and was just going to try if I could get off. Now I doubt not but you can put me into the best way to obtain that favour.

Barr.
It is probable I could: but first let me know the reasons why you desire to decline that service.

Jurym.
You know, Sir, there is something of trouble and loss of time in it; and men's lives, liberties, and estates (which depend upon a jury's Guilty, or Not Guilty, for the plaintiff, or for the defendant) are weighty things. I would not wrong my conscience for a world, nor be accessary to any man's ruin. There are others better skilled in such matters. I have ever so loved peace, that I have forborne going to law, (as you well know many times) though it hath been much to my loss.

Barr.
I commend your tenderness and modesty; yet must tell you, these are but general and weak excuses.

As for your time and trouble, it is not much; and however, can it be better spent than in doing justice, and serving your country? to withdraw yourself in such cases, is a kind of Sacrilege, a robbing of the public of those duties which you justly owe it; the more peaceable man you have been, the more fit you are. For the office of a Juryman is, conscientiously to judge his neighbour; and needs no more law than is easily learnt to direct him therein. I look upon you therefore as a man well qualified with estate, discretion, & integrity; and if all such as you should use private means to avoid it, how would the king and country be honestly served? At that rate we should have none but fools or knaves entrusted in this grand concern, on which (as you well observe) the lives, liberties, and estates of all England depend.
Your tenderness not to be accessary to any man's being wronged or ruined, is (as I said) much to be commended. But may you not incur it unawares, by seeking this to avoid it? Pilate was not innocent because he washed his hands, and said, He would have nothing to do with the blood of that just one. There are faults of omission as well as commission. When you are legally called to try such a cause, if you shall shuffle out yourself, and thereby persons perhaps less conscientious happen to be made use of, and so a villain escapes justice, or an innocent man is ruined, by a prepossessed or negligent verdict; can you think yourself in such a case wholly blameless? Qui non prohibet cum potest, jubet: That man abets an evil, who prevents it not, when it is in his power. Nec caret scrupulo sosietatis occultae qui evidenter facinori definit obviare: nor can he escape the suspicion of being a secret accomplice, who evidently declines the prevention of an atrocious crime.

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 Posted: Fri Aug 17th, 2018 11:39 pm
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Joe Kelley
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https://realitybloger.wordpress.com/2013/08/05/cracking-the-cult-of-the-constitution-part-i/

CRACKING THE CULT OF THE CONSTITUTION
A three-part essay by: Clint Richardson

"Sound confusing? Well it’s supposed to. For you are not supposed to be a party to or have even a basic knowledge of this common law elitist privilege."

OK, I have a problem with that use of the term common law.


Lawyers and Legal Change
Claire Priest
Yale Law School
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2303&context=fss_papers
"Between 1765 and 1840, the number of trained lawyers in Massachusetts rose from fifty to more than six hundred (57). McNamara asserts that lawyers led a successful movement for the building of courthouses that conferred greater legitimacy on the profession and that enabled them to elevate their status above that of untrained laymen, clerks, and scriveners."

"How was architecture-the move from tavern to courthouse-related to the decline of the self-informing jury?"

12 - Law and Commerce, 1580–1815
By Claire Priest
https://www.cambridge.org/core/books/cambridge-history-of-law-in-america/law-and-commerce-15801815/20E5CD04E37FD76C3FFE8B5ED0B9607F
"Was empire-building an animating objective of the U.S. government in its early years? Was the Constitution enacted to achieve mercantilist purposes? Were early federal government policies mercantilist? In the early twenty-first century, scholars have been answering these questions with a resounding “yes.” Their answers suggest that American colonialism of the late nineteenth century and the record of U.S. military interventions abroad since then are a continuation of values held since the founding.

"The scholarship contending that the federal government in the Founding Era was by nature mercantilist (or “neo-mercantilist”) and imperial, however, is imprecise and anecdotal. Moreover, it raises complex historical questions that scholars have not addressed. Why would a nation of colonies that fought a revolution against an imperial power immediately adopt the core values of the mercantilist government it had rejected? How “radical” could the Revolution have been if the framers of the U.S. Constitution viewed empire-building as a primary objective? More broadly, if that were indeed the objective, why did the United States avoid the European race for colonies in Africa, Asia, and the Middle East for most of the nineteenth century?

"Here, I provide a detailed history of British mercantilism and explain why its core principles were rejected by American political leaders in the Founding Era. Part I follows Adam Smith’s Wealth of Nations in defining “mercantilism” as the policies in force during British imperial history in the seventeenth and eighteenth centuries. According to this definition, mercantilism comprises several interrelated positions: first, a commitment to the belief that political power and national strength are achieved by government regulations that improve the home country’s balance of trade;"

Colonial Courts and Secured Credit:
Early American Commercial
Litigation and Shays' Rebellion
Claire Priest
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2298&context=fss_papers

"Yet, while the debt-recording interpretation of colonial courts is the dominant explanation of default judgments in current colonial law scholarship, other evidence characterizes the operations of the colonial court system in a dramatically different way. In 1786 and 1787, shortly after the Revolution, Shays' Rebellion constituted a widespread attack on the structure of the colonial court system, culminating in the violent takeover and closing of many county courts in western Massachusetts and throughout New England. The Shaysites (who referred to themselves as "Regulators") raised an armed revolt against the colonial court system.
They condemned its injurious costliness, its fee structure which, they claimed, enabled judges, witnesses, and sheriffs to profit at the expense of litigants, and its cooptation by lawyers.4"

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Joe Kelley
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"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."

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



"One of the traditional criticisms of standing law is that it is confusing and seemingly incoherent."

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


"These statutes are codifications of existing common law practices, albeit practices that had been used little if at all for a long time."

"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."

"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."

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


"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 one was entitled to an office or function, and there was no other remedy. Blackstone terms it a "high prerogative writ, of a most extensively 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 English 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 he 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 confined to the English system, and to the jurisdiction of the court of king's bench, these statements may be accepted as correct. But even in that 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.

"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 writ 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 doctrine 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 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.

"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 as 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."

https://archive.org/details/treatiseonextrao00highuoft


Page 33
A treatise on legal on the legal remedies of mandamus and prohibition, habeas corpus, certiorari and quo warranto by Wood, H.G. (Horace Gay), 1831-1893

Mandamus and Prohibition

"The facts should be set forth with precision, so that an indictment for perjury could be maintained upon them if false,..."

https://archive.org/details/cu31924022885580

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"The author demonstrates that ownership in common law — insofar as it exists — is constructed on the ruins of the feudal system. Having been developed in an ad hoc manner from such origins, the law of property is seen to be an amalgam of technical and complex principles, built around institutions which sometimes have archaic features that serve no useful purpose in the present day. The theory of "estates", which is espoused, is however acclaimed for its flexibility, its most celebrated attribute being that invaluable institution, the Trust. Ownership in civil law in contrast, is shown to have developed from the romanisation of the feudal system. The law of property, its principles and institutions, are more systematically and rationally organised. They are therefore more easily assimilated and applied. The theory of absolute ownership which is at its core, is however criticised for being, to some extent, inflexible. "

Classification of Property and Conceptions of Ownership in Civil and Common Law, 1997

https://www.erudit.org/fr/revues/rgd/1997-v28-n2-rgd02413/1035639ar.pdf

Does "ad hoc" mean the same thing as organic, grass-roots, natural, free market, voluntary association based upon agreements that include the agreement to avoid harming anyone for profit?


I tried reading further in Classification of Property and Conceptions of Ownership in Civil and Common Law, but the "common law" in that work appears to be the counterfeit version of the common law, in other words the original, genuine, organic, natural law common law that is explained in Spooner's work is voluntary association, and the counterfeit Common Law (tm) is involuntary association that appears to "develop" from the original.

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Lee’s Objections to the Constitution
Richard Henry Lee

extracts

October 16, 1787

It cannot be denied, with truth, that this new Constitution is, in its first principles, highly and dangerously oligarchic; and it is a point agreed, that a government of the few is, of all governments, the worst.
The only check to be found in favor of the democratic principle, in this system, is the House of Representatives; which, I believe, may justly be called a mere shred or rag of representation; it being obvious to the least examination, that smallness of number, and great comparative disparity of power, render that house of little effect, to promote good or restrain bad government. But what is the power given to this ill-constructed body? To judge of what may be for the general welfare; and such judgments, when made the acts of Congress, become the supreme laws of the land. This seems a power coëxtensive with every possible object of human legislation. Yet there is no restraint, in form of a bill of rights, to secure (what Doctor Blackstone calls) that residuum of human rights which is not intended to be given up to society, and which, indeed, is not necessary to be given for any social purpose. The rights of conscience, the freedom of the press, and the trial by jury, are at mercy. It is there stated that, in criminal cases, the trial shall be by jury. But how? In the state. What, then, becomes of the jury of the vicinage, or at least from the county, in the first instance—the states being from fifty to seven hundred miles in extent? This mode of trial, even in criminal cases, may be greatly impaired; and, in civil cases, the inference is strong that it may be altogether omitted; as the Constitution positively assumes it in criminal, and is silent about it in civil causes. Nay, it is more strongly discountenanced in civil cases, by giving the Supreme Courts, in appeals, jurisdiction both as to law and fact.
Judge Blackstone, in his learned Commentaries, art. Jury Trial, says, “It is the most transcendent privilege, which any subject can enjoy or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals—a constitution that, I may venture to affirm, has, under Providence, secured the just liberties of this nation for a long succession of ages. The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely intrusted to the magistracy,—a select body of men, and those generally selected, by the prince, of such as enjoy the highest offices of the state,—these decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity. It is not to be expected from human nature, that the few should always be attentive to the good of the many.” The learned judge further says, that “every tribunal, selected for the decision of facts, is a step towards establishing aristocracy—the most oppressive of all governments.”

http://teachingamericanhistory.org/library/document/richard-henry-lees-objections-to-the-constitution/

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A Disquisition on Government
John C. Calhoun, (Published Posthumously) 1851
"But the difference in their operation, in this respect, would not end here. Its effects would be as great in a moral, as I have attempted to show they would be in a political point of view. Indeed, public and private morals are so nearly allied, that it would be difficult for it to be otherwise. That which corrupts and debases the community, politically, must also corrupt and debase it morally. The same cause, which, in governments of the numerical majority, gives to party attachments and antipathies such force, as to place party triumph and ascendency above the safety and prosperity of the community, will just as certainly give them sufficient force to overpower all regard for truth, justice, sincerity, and moral obligations of every description. It is, accordingly, found that in the violent strifes between parties for the high and glittering prize of governmental honors and emoluments—falsehood, injustice, fraud, artifice, slander, and breach of faith, are freely resorted to, as legitimate weapons—followed by all their corrupting and debasing influences."

A DISQUISITION ON GOVERNMENT
"But of what possible avail could the strict construction of the minor party be, against the liberal interpretation of the major, when the one would have all the powers of the government to carry its construction into effect—and the other be deprived of all means of enforcing its construction? In a contest so unequal, the result would not be doubtful. The party in favor of the restrictions would be overpowered. At first, they might command some respect, and do something to stay the march of encroachment; but they would, in the progress of the contest, be regarded as mere abstractionists; and, indeed, deservedly, if they should indulge the folly of supposing that the party in possession of the ballot box and the physical force of the country, could be successfully resisted by an appeal to reason, truth, justice, or the obligations imposed by the constitution."

PUBLIC LETTER TO J[OHN] BAUSKETT AND OTHERS, EDGEFIELD DISTRICT, S.C.
John C. Calhoun, November 3, 1837
"Of all the interests in the community, the banking is by far the most influential and formidable—the most active; and the most concentrating and pervading; and of all the points, within the immense circle of this interest, there is none, in relation to which the banks[484] are more sensitive and tenacious, than their union with the political power of the country. This is the source of a vast amount of their profits, and of a still larger portion of their respectability and influence."
https://oll.libertyfund.org/titles/calhoun-union-and-liberty-the-political-philosophy-of-john-c-calhoun

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Natural law

All are responsible for their actions.

All actions are either willful or accidental.

All actions can be accountable to those who are responsible.

As a rule, those who are responsible for the least harm done to innocent people are most likely to desire accurate accountability.

As a rule, those who are responsible for the most harm done to innocent people are the least likely to desire accurate accountability.

Those rare exceptions to the rule are those who have done no harm who are also those who choose to avoid accurate accountability and those who have done the most harm and are also those who seek accurate accountability.

Those who do the least harm and reject accurate accountability are called saints.

Those who do the most harm and seek accurate accountability are called dead.

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The Federalist Papers : No. 81
The Judiciary Continued, and the Distribution of the Judicial Authority
From McLEAN's Edition, New York.
HAMILTON

Falsehood:

"That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested."

Evidence:
The Debate over the Judicial Branch
https://csac.history.wisc.edu/document-collections/constitutional-debates/judiciary/

"The Agrippa letters appear to have been written by James Winthrop, who was register of probate in Middlesex when these letters were written."
http://www.constitution.org/afp/agrippa.htm

Agrippa V, Massachusetts Gazette, 11 December 1787:

"Authority is also given to the continental courts, to try all causes between a state and its own citizens. A question of property between these parties rarely occurs. But if such questions were more frequent than they are, the proper process is not to sue the state before an higher authority; but to apply to the supreme authority of the state, by way of petition. This is the universal practice of all states, and any other mode of redress destroys the sovereignty of the state over its own subjects."

That is also false, but the obvious false claim by Al Hamilton (the claim of absolute authority: not likely to be contested) is contested by James Winthrop, as a matter of fact.

The falsehood of James Winthrop appears to me to be on the subject of what is or is not a free member of a free people in liberty.

1. A subject of an all-powerful state.
2. A volunteer in a voluntary mutual defense association under the common laws of free people in liberty.

People can waffle between the two, but in time and place, there are accurately measurable transfers of power from one to another, transfers that are contestable or agreeable, such as for two examples the removal of the power to speak out against arbitrary governors in arbitrary government as Martin Luther King Jr. and Lavoy Finicum have their lives removed from them, along with their liberty. Agents of the all-powerful Nation-State created by the likes of the liar Al Hamilton routinely murder people to keep them from blowing the whistle, and in at least the MLK case the country, through a jury, found agents of the State guilty of that conspiracy murder.

Being subject to arbitrary government at a State level, or at a Federal level, is despotic in either case, so the non-arguable Hamilton position of a National (not federal) all-powerful judiciary is - in fact - argued (proving that Hamilton is false) by James Winthrop whose argument is that a State, not a Nation (falsely called a federation) ought to have the power to subject people to arbitrary enforcement of arbitrary decisions made by dictators in black robes or uniforms.

Missing (so far) in this non-argument that is argued (a conflict of interest, and a cause to act morally i.e. the law) is the actual law at the time, which was the common law, whereby people volunteer to be subject to the decisions made by the country (the whole people) represented by jurors in a jury trial. Those who don't volunteer don't agree with the common law, and they are by their decision outside that law.

So...these people in this non-argument that is an argument (a controversy) as to who (or which legal fiction) is given arbitrary (absolute) power, could be settled according to the existing voluntary association for mutual defense. The country (through the jury) could decide the matter in each case, every time this conflict arises.

Petitioner A, such as Al Hamilton, wants everyone in every county in every (soon to be overpowered) state to give up their rights to Legal Fiction A: an all-powerful Nation-State hid behind a federalist facade.

Petitioner B, such as James Winthrop, wants everyone in every county in his State to give up their rights to Legal Fiction B: his all-powerful Nation-State Massachusetts, the crime scene known as Shays’s Rebellion.

Falsehood was not yet ubiquitous in those days, not like today. Today almost everyone, each individual everywhere, invests into The Cult of Might Makes Right as if there wasn't any other viable, reasonable, option.


Back to James Winthrop:

"The individual is to take his trial among strangers, friendless and unsupported, without its being known whether he is habitually a good or a bad man; and consequently with one essential circumstance wanting by which to determine whether the action was performed maliciously or accidentally. All these inconveniences are avoided by the present important restriction, that the cause shall be tried by a jury of the vicinity, and tried in the county where the offence was committed. But by the proposed derangement, I can call it by no softer name, a man must be ruined to prove his innocence. This is far from being a forced construction of the proposed form. The words appear to me not intelligible, upon the idea that it is to be a system of government, unless the construction now given, both for civil and criminal processes, be admitted. I do not say that it is intended that all these changes should take place within one year, but they probably will in the course of half a dozen years, if this system is adopted. In the mean time we shall be subject to all the horrors of a divided sovereignty, not knowing whether to obey the Congress or the state. We shall find it impossible to please two masters."

Now here:
https://hammeringshield.wordpress.com/2015/10/16/federalists-v-anti-federalists-part-twelve-the-judiciary-least-dangerous-branch-or-most-repugnant/

This:
"“I suppose the supreme judicial ought to be liable to be called to account, for any misconduct, by some body of men who depend upon the people for their places; and so also should ALL great officers of the State, who are not amenable to some superior officers in the State.” It’s as if he’s trying to suggest that the Constitution should establish an elected Court Of Impeachment."

Why are private prosecutors and grand jurors erased from history?

In both the Articles of Confederation and the 1789 fraudulent Constitution are these words:

AoC
"Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests or imprisonments, during the time of their going to and from, and attendence on Congress, except for treason, felony, or breach of the peace."

FC1789
"7. Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law."

Pre-dating Magna Carta, every State Constitution, the Articles of Confederation, and the fraudulent Constitution of 1789 is due process of law by the people themselves: the common law.

"the members of Congress shall be protected in their persons from arrests or imprisonments, during the time of their going to and from, and attendence on Congress, except for treason, felony, or breach of the peace."

"...shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law."

The criminals, as a rule, volunteer themselves to be above the law, despite the fact that the words that they claim to be their source of authority contradict that criminal, fraudulent, claim made arbitrarily.

Now here:
https://histcsac.wiscweb.wisc.edu/wp-content/uploads/sites/281/2017/07/Brutus_XI.pdf
[Melancton Smith or Robert Yates or perhaps John William]

"The only causes for which they can be displaced, is, conviction of treason, bribery, and high crimes and misdemeanors."

" From this court there is no appeal."

Why not? It was just stated that none of these criminals are above the common laws of free people in liberty. What is missing is the knowledge, and the will, to indict, and try, these criminals for their crimes against humanity, and do so according to very well established routines.

The People's Panel
The Grand Jury in the United States, 1634 - 1941
Richard D. Younger

Page 3

"They proved their effectiveness during the Colonial and Revolutionary periods in helping the colonists resist imperial interference. They provided a similar source of strength against outside pressure in the territories of the western United States, in the subject South following the Civil War, and in Mormon Utah. They frequently proved the only effective weapon against organized crime, malfeasance in office, and corruption in high places."


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Moving on to:

The Dissent of the Minority of the Pennsylvania Convention, Pennsylvania Packet (December 18, 1787)

https://histcsac.wiscweb.wisc.edu/wp-content/uploads/sites/281/2017/07/Dissent_of_the_Minority_of_the_Pennsylvania_Convention.pdf

"That this mode of proceeding is the one which must be adopted under this constitution, is evident from the following circumstances:
1st. That the trial by jury, which is the grand characteristic of the common law, is secured by the constitution, only in criminal cases.
2d. That the appeal from both law and fact is expressly established, which is utterly inconsistent with the principles of the common law, and trials by jury. The only mode in which an appeal from law and fact can be established, is, by adopting the principles and practice of the civil law; unless the United States should be drawn into the absurdity of calling and swearing juries, merely for the purpose of contradicting their verdicts, which would render juries contemptible and worse than useless.
3d. That the courts to be established would decide on all cases of law and equity, which is a well known characteristic of the civil law, and these courts would have cognizance not only of the laws of the United States and of treaties, and of cases affecting ambassadors, but of all cases of admiralty and maritime jurisdiction, which last are matters belonging exclusively to the civil law, in every nation in Christendom."

https://www.consource.org/document/the-dissent-of-the-minority-of-the-pennsylvania-convention-pennsylvania-packet-1787-12-18/

"Trial by jury in criminal cases may also be excluded by declaring that the libeller for instance shall be liable to an action of debt for a specified sum; thus evading the common law prosecution by indictment and trial by jury. And the common course of proceeding against a ship for breach of revenue laws by information (which will be classed among civil causes) will at the civil law be within the resort of a court, where no jury intervenes. Besides, the benefit of jury trial, in cases of a criminal nature, which cannot be evaded, will be rendered of little value, by calling the accused to answer far from home; there being no provision that the trial be by a jury of the neighbourhood country."


“The principles that judicial tribunals should conduct open, public proceedings and give redress to every person who has suffered a legal injury are two of the linchpins of AngloAmerican law. Other basic precepts require that notice and hearing precede such hearings, and that tribunals be impartial. Together, this modest bundle of principles—in large part procedural—defines what people think of as the vital core of our legal system. Everything else flows from them.”
COURTS TO BE OPEN; SUITS AGAINST THE COMMONWEALTH
BY Donals Marritz
https://www.pabar.org/public/committees/lspublic/atj/Chapter14-final.pdf

Evidence:
“By the late sixteenth century, and especially with the accession of the Stuarts, the court of chancery was closely associated with the royal prerogative and became the target of opposition. Equity was therefore disadvantageously contrasted with common law in an era when “ancient law” took on revolutionary constitutional overtones. The struggle between the two systems of law became explicit in Glandville’s case, the 1616 litigation, jurisdiction over which sought by Chancellor Ellsmere, who enjoined suitors from proceeding at law, and by Chief Justice Coke, who prohibited the same litigants from proceeding in equity, and in which James I finally intervened on the side of chancery. The common lawyers of the early Stuart period strongly objected to the prerogative character of equital law, but they also attacked particular abuses: the use of chancery jobs as royal patronage, the delay and expense of chancery proceedings, and the increasing formalism of equity litigation. At bottom, of course, they anticipated Selden, who sneered that “Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. ‘Tis all one as if they should make the standard for measure a Chancellor’s foot.””
Source: Perspectives in American History, Law in American History, Fleming and Bailyn
https://trove.nla.gov.au/work/21199443?selectedversion=NBD59380

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Following eludes to early Grand Jury Presentments which can be either ancient common law (previous to Magna Carta) of and by the people themsleves (not the King, or the government), or this possible Grand Jury Presentment power could be subject to the King's exclusive prerogative. This is a vital point to uncover the facts that matter in the case.

“Against this ancient and fundamental law, an act of parliament was made, that as well justices of assize as justices of peace, (without any finding or presentment by the verdict of twelve men) upon a bare information for the king before them made, should have full power and authority by their discretions to hear and determine all offences and contempts committed or done by any person or persons against the form, ordinance and effect of any statute made and not repealed, 7c. By colour of which act, shaking this fundamental law, it is incredible what oppressions and exactions, to the ruin of infinite numbers of people, were committed by Sir Richard Empson and Edmund Dudley justices of peace, throughout England; and upon this unjust and injurious act (as is common in like cases) a new office was erected, and they were made masters of the king’s forfeitures.”
Page 36
English Liberties, Or The Free-Born Subject’s Inheritance: Containing Magna Charta,
The Habeas Corpus Act, And Several Other Statutes, Henry Care
Boston: Printed by J. Franklin, for N. Buttolph, B. Eliot, and D. Henchman, 1721
https://upload.wikimedia.org/wikipedia/commons/7/79/British_Liberties%2C_or_the_Free-born_Subject%27s_Inheritance_%281st_ed%2C_1766%29.pdf

_________________________________

1994 Reviving Federal Grand Jury Presentments Renée B. Lettow

https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=7541&context=ylj

"The grand jury was a creation of English medieval law carried to the American colonies and later formally enshrined in the United States Constitution. By including the grand jury in the Bill of Rights, the United States inherited not only the institution's defensive function, but also its accusatory function.8

"8. Established by Henry U's Assize of Clarendon in 1166, the grand jury's original function was to bring accusations before royal judges. At first all accusations originated with the grand jury, but later the jurors considered accusations from outsiders and passed upon indictments drawn up by crown prosecutors. The jurors, however, retained the power to accuse on their own initiative. Such an accusation was called a presentment. See I WILLIAM S. HoLDSwoRTH, A HISTORY OF ENGLISH LAW 147-48 (1908); 2 FREDERICK POLLOCK & FREDERIC W. MAITLAND, THE HISTORY OF ENGLISH LAW 641-42 (photo. reprint 1982) (1898); 4 JAMES F. STEPHEN, COMMENTARIES ON THE LAWS OF ENGLAND 243-44 (21st ed. 1950); 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 590-93 (Boston, Little, Brown, 3d ed. 1858)."

"A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king.... upon which the officer of the court must afterwards frame an indictment, before the party presented as the [perpetrator] can be put to answer it.10"

"10. 4 WILLIAM BLACKSTONE, COMMENTARIES *298 (footnote omitted). According to Blackstone, therefore, the accused could not be put to trial unless an official drew up an indictment. The "officer of the court" may have had limited discretion as to whether to frame an indictment. See SIDNEY & BEATRICE WEBB, ENGLISH LOCAL GOVERNMENT FROM THE REVOLUTION TO THE MUNICIPAL CORPORATIONS ACT: THE PARISH AND THE COUNTY 308 (1906) ("The officer or locality 'presented' might be formally indicted . .... " (emphasis added)). Before a regular system of public prosecution was established, the officer was likely to have been the clerk of the court, JULIUS GOEBEL JR. & T. RAYMOND NAUGHTON, LAW ENFORCEMENT IN COLONIAL NEW YORK: A STUDY IN CRIMINAL PROCEDURE (1664-1776) 352 (1944), or a justice of the peace, YALE KAMISAR Er AL., MODERN CRIMINAL PROCEDURE 635 (7th ed. 1990). Given the court clerk's limited knowledge of the locale and the limited resources of justices of the peace, it is likely that framing an indictment based on the grand jury's accusation was usually automatic. This was virtually the case in the American colonies, generally. RICHARD D. YOUNGER, THE PEOPLE'S PANEL: THE GRAND JURY IN THE UNITED STATES, 1634-1941, at 5-6 (1963). In the colonial New York Supreme Court, the Attorney General reduced the presentment to form. In other courts, either a deputy attorney general or the clerk of the peace performed this task. GOEBEL & NAUGHTON, supra, at 352-53. Interestingly, the New York Courts of Sessions exercised considerable discretion over prosecution: "If the Crown's representative refused to draw the indictment, the court would order someone else to do so." Id. at 353. The court also occasionally quashed presentments rather than ordering them to be put in form. Id. By the late eighteenth century in England, constables had gradually taken more initiative in making accusations. 4 HOLDSWORTH, supra note 8, at 144-45 (1924); YOUNGER, supra, at 5."

"Although historians chiefly celebrate the English grand jury for refusals to indict in the late seventeenth century, 11 grand juries also won respect for making accusations against the Crown's desires. Grand juries took advantage of their wide investigative powers and gained prominence in fighting government corruption by issuing presentments against royal officials.12

11. In 1681, a grand jury refused to indict the Earl of Shaftsbury, a supporter of the Protestant cause, on charges of treason. Rex v. Shaftsbury, 8 Howell's State Trials 759 (1681); see Helene E. Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 AM. CRIM. L. REV. 701, 710-21 (1972); Comment, Federal Grand Jury Secrecy, 5 GONZ. L. REV. 255, 256 (1970).
12. In the seventeenth and eighteenth centuries, English grand juries criticized justices of the peace who accepted excessive fees, constables who were lax in enforcing the law, and other officials who failed to maintain bridges, jails, highways, and other county property. Often these accusations did not include charges of criminal wrongdoing, but many of these breaches of the public trust would be criminal today. WEBB, supra note 10, at 448-56; see also 10 HOLDSWORTH, supra note 8, at 146-51 (1938). This function of watching over public officials was ancient even then. In the thirteenth century, the justices in eyre (on circuit) carried with them a list of questions, called the Articles of the Eyre, to ask local grand juries. "[A] large group of articles relates to the official misdoings of royal officers, sheriffs, coroners and bailiffs." POLLOCK & MAITLAND, supra note 8, at 520-21."

This function of watching over public officials was ancient even then.

"The same pattern of grand jury independence crossed the Atlantic to the colonies. Indeed, since the colonies lacked an efficient constabulary, colonial grand juries exercised greater independence than their English counterparts.13 American grand juries had a penchant for presenting government officials. These presentments could be for crimes or noncriminal violations of the public trust. The latter type of accusation would now, and sometimes then, be called a report.14 Colonies that lacked a representative legislature often turned to grand juries as a substitute; grand juries regulated areas higher officials did not address.15 As tensions between the colonies and the mother country grew, grand juries played an increasingly prominent role. They not only refused to indict,16 but also issued angry and well-publicized presentments and indictments against British officials and soldiers.17 Because of its boldness and independence in both defending and accusing, the grand jury emerged from the Revolution with enhanced prestige."

13. Grand juries also took on many administrative roles. In certain colonies grand juries could determine the amount of compensation for land taken for public purposes. Where local courts collected taxes, grand juries set rates and helped gather the taxes. See Wright, supra note 3, at 473.
14. The first regular American grand jury, that of the Massachusetts Bay Colony in 1635, took its mission seriously. After listening to the Ten Commandments and hearing Governor John Winthrop's charge to present all crimes and misdemeanors that came before them, the jurors proceeded to present more than a hundred offenders, including several colonial magistrates. Other colonial grand juries followed their example. Plymouth grand juries were especially eager to present officials. YOUNGER, supra note 10, at 6-7.

Plymouth grand juries were especially eager to present officials.

"Although historians typically portray early federal grand juries as mere tools of the central government,18 an examination of actual charges and presentments reveals a different picture.19 After the Constitution's ratification, grand jurors continued to take initiative in making presentments.
Given that the Federalists wanted to assuage Anti-Federalist fears of a powerful central government, it is not surprising that ratification documents emphasized the grand jury's shield rather than its sword.20 Early post ratification charges to and writings about the federal grand jury, however, reveal an equal if not greater concern for the sword. Without fail, judges and justices reminded grand jurors of their oaths to make diligent inquiries and true presentments." Indeed, judges mentioned presentments more often than indictments. In his charge to the first grand jury impaneled for the Circuit Court for the district of Delaware, Justice Wilson urged grand jurors: "[Y]ou will be sedulous that criminals be discovered and punished, and you will be equally sedulous that the innocent be guarded and protected. With regard to both, it will be your zealous effort, as it is your unquestionable right, to make diligent enquiries, and to offer true presentments.22 In a lecture to students at the University of Pennsylvania, the Justice emphasized the grand jury's independence from the prosecutor:

[Grand jurors] are not appointed for the procecutor [sic] or for the court: they are appointed for the government and for the people: and of both the government and people it is surely the concernment, that ... all crimes, whether given or not given in charge, whether described or not described with professional skill, should receive the punishment, which the law denounces .... 23

Following such admonitions, early federal grand juries used their power of presentment both to accuse24 and to present grievances to the government.25"


15. New York grand juries were particularly active in legislating and regulating, since New York lacked any other representative body after the Duke of York abolished the Assembly upon his accession to the throne. In 1688, an Albany grand jury required anyone selling spirits to keep lodging for men and horses. Another New York grand jury prohibited riding over cornfields. GOEBEL & NAUGHTON, supra note 10, at 336, 355-56, 361. Colonial methods of grand juror selection gave the jurors considerable legitimacy as lawmakers. In one model, exemplified by Massachusetts, jurors were elected from each town; in another, the local elected sheriff or the court selected grand jurors, usually from a pool of the wealthiest and most respected men of the area. Wright, supra note 3, at 474-75.
16. The American equivalent of the Earl of Shaftsbury's case was the Crown's unsuccessful attempt to indict John Peter Zenger for seditious libel. Zenger, a journalist, had published articles criticizing William Cosby, the English governor of New York. When the Governor sought indictments against Zenger in 1734, the grand jury twice refused to indict. Zenger was finally prosecuted by information and acquitted. Richard H. Kuh, The Grand Jury "Presentment": Foul Blow or Fair Play?, 55 CoLuM. L. REV. 1103, 1108-09 (1955); see also LEROY D. CLARK, THE GRAND JURY 18 (1975); MARVIN E. FRANKEL & GARY P. NAFrALIS, THE GRAND JURY: AN INSTITUTION ON TRIAL 11 (1975); CHARLES F. HEARTMAN, CHARLES F. HEARTMAN PRESENTS JOHN PETER ZENGER AND His FIGHT FOR THE FREEDOM OF THE AMERICAN PRESS (1934). The above authors disagree on the dates of the attempted indictments.
17. In 1769, for example, the Boston grand jury accused soldiers quartered in the town of "breaking and entering dwellings, waylaying citizens, and wounding a justice of the peace .... The attorney general refused to prosecute, whereupon the Massachusetts Assembly vigorously denounced him, and the grand jury, in revenge, rejected all bills of indictment laid before it. YOUNGER, supra note 10, at 29-3 1.
18. See, e.g., id. at 47 ("Federal grand juries ... tended to become instruments of the central government rather than representatives of the people."). 19. Early federal grand jury presentments have been collected and published in 2 THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789-1800 (Maeva Marcus ed., 1988) [hereinafter DOCUMiENTARY HISTORY]; 3 id. (Maeva Marcus ed., 1990). 20. See 2 DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 110 (Jonathan Elliot ed., 1987) (1888) (the Massachusetts debates, Mr. Holmes); "Hampden," Letter to Mr. Russell, MASS. CENTINEL, Jan. 26, 1788, reprinted in 4 THE COMPLETE ANTI-FEDERALIST 198, 200 (Herbert J. Storing ed., 1981). Having apparently overlooked these sources, one author implies, first, that Anti-Federalists did not voice concern about executive prosecutorial power and, second, that they failed to do so because they did not view it as an exclusively executive function. Stephanie AJ. Dangel, Note, Is Prosecution a Core Executive Function? Morrison v. Olson and the Framers' Intent, 99 YALE L.J. 1069, 1076-77 (1990). This simply is not the case. They openly feared prosecutorial power, attributed it to the executive branch, and found a check not in the legislative or judicial branches, but in the grand jury."

25. This aspect of grand juries' activity links the institution strongly with the right to petition and with the other expressive rights of the First Amendment. See infra note 131.
This aspect of grand juries' activity links the institution strongly with the right to petition and with the other expressive rights of the First Amendment.

Like their English and colonial predecessors, federal grand juries continued to present government officials; the most controversial presentment by a federal grand jury was an accusation against a U.S. Congressman.26

131. See Marc A. Franklin, A Declaratory Judgment Alternative to Current Libel Law, 74 CAL. L. REV. 809, 812-13 (1986). Grand jurors are, and were traditionally, immune from libel suits. See United States v. Briggs, 514 F.2d 794, 808 (5th Cir. 1975); RESrATEMENT (SECOND) OF TORTs § 589 (1977). (California is the exception. See CAL PENAL CODE § 930 (West 1985) (denying immunity to grand jurors for comments on a person who has not been indicted).) The same remedy could be applied to untruthful petitions, which would also have the potential to become "hit and run" vehicles if the Supreme Court were to recognize their traditional, nearly absolute, immunity from libel actions. See Eric Schnapper, "Libelous" Petitions for Redress of Grievances-Bad Historiography Makes Worse Law, 74 IOWA L. REV. 303 (1989) (arguing that McDonald v. Smith, 472 U.S. 479 (1985), was wrongly decided because petitions were absolutely immune from libel actions at the time of ratification of the Bill of Rights); Norman B. Smith, "Shall Make No Law Abridging...": An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 U. CIN. L. REv. 1153 (1986). Note that grand jury noncriminal presentments were often petitions for redress of grievances. See supra note 25. Insulating petitions and grand jury presentments from libel laws helped ensure that the most significant channels of communication between rulers and ruled would remain open. The right to petition is closely linked to the other First Amendment rights of speech, the press, and assembly, id. at 1168-69; the grand jury presentment also is closely linked to these "expressive" rights. As Judge Leval notes, the Framers frowned on secrecy and strove to encourage the free spread of ideas. The "underlying objectives" of the Copyright Clause, for example, "parallel those of the first amendment"; the clause was intended "'[t]o promote the Progress of Science and the useful Arts."' Pierre N. Leval, Commentary, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1135 (1990) (quoting U.S. CONST. art. I, § 8, c1. 8).

26. After a charge from Justice Iredell emphasizing the powers of the grand jury and the danger created by those who opposed the new government, a federal grand jury in Virginia presented Samuel J. Cabell, a Congressman from that commonwealth, for disseminating "unfounded calumnies" against the federal government in a letter to his constituents. Thomas Jefferson was quick to defend his Representative and declared that "Federalist judges had perverted grand juries from a legal to a political engine" by urging them "to become inquisitors on the freedom of speech." YOUNGER, supra note 10, at 50. For a defense of the grand jury's power, see "A Friend to Juries" to Samuel Jordan Cabell, VA. GAZETTE, & GEN. ADVERTISER, June 30, 1797, reprinted in 3 DOCUMENTARY HISTORY, supra note 19, at 207, 209 ("In the liberty of their opinions and the subject of their presentments, juries have no other limitation than the observance of their oath. They are sworn to present every irregular and disorderly, as well as illegal and criminal act, that comes within their knowledge.").

The Documentary History of the Supreme Court of the United States, 1789-1800
"In the liberty of their opinions and the subject of their presentments, juries have no other limitation than the observance of their oath. They are sworn to present every irregular and disorderly, as well as illegal and criminal act, that comes within their knowledge."

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Joe Kelley
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Perspectives in American History
Editors: Donald Fleming and Bernard Bailyn

Volume V 1971

Law in American History

The court of chancery was never quite so “equitable” as theory claimed, and under the Tudors it had already acquired a fairly well-defined area of jurisdiction. The difficulty of defining the scope of its power is best illustrated by Maitland’s formulation:

For suppose that we ask the question - What is Equity? We can only answer it by giving some short account of certain courts of justice which were abolished over thirty years ago. In the year 1875 we might have said “Equity is that body of rules which is administered only by those Courts which are known as Courts of Equity.”4

4 Fredric W. Maitland, Equity: A Course of Lectures ([1909], rev. Ed., Cambridge, 1969). p. I.

Nevertheless several descriptive categories can be listed.

(1) Equity remedies defects in the common law. It takes notice of fraud, accident, mistake, and forgery. It administers relief according to the true intentions of the parties. It gives specific relief in actions for contract and tort, and it gives relief against the penalties assessed by other courts. It has unique powers of examining witnesses, and joining parties to a suit.

(2) Equity supplies omissions in the jurisdiction of the common law. It deals with uses and trusts, and especially, with mortgages and equities of redemption. It disposes of the guardianship of minors and lunatics. It has competence in mercantile law, family settlement, female property, and divorce.

(3) Courts of equity afford procedures not available at law: the writ of subpoena, interrogatory process, discovery of evidence, written pleadings, judgment without jury trial, leeway for errors in pleading, specific performance, injunction, imprisonment for contempt, ability to act in personam rather than ad rem, powers of account, and administration of estates.

Note: Important information here concerning the move from Voluntary Mutual Defense (common law) to Slavery Under the Color of Law. Injunction, for example, appears to be a top down exclusive warrant taken by agents of the state to order people to perform or else, and there is no trial by the country to prevent such abuse by agents of the government, according to agents of the government: arbitrary power in the hand of the few over everyone.

Was "discovery" not used by Grand Jurors according to common law? Is "discovery" one of those counterfeit words used to bring into power an exclusive monopoly commanded by a few over everyone else: only those with the license can "discover," and thereby set in motion due process of law?

How about subpoena?

Why would people suddenly stop actions in defense of threats (probable cause) made by malicious aggressors upon innocent victims because they had no piece of paper giving them authority to question reluctant witnesses?

Again (from Englishman’s Right):
“Your tenderness not to be accessary to any man's being wronged or ruined, is (as I said) much to be commended. But may you not incur it unawares, by seeking this to avoid it? Pilate was not innocent because he washed his hands, and said, He would have nothing to do with the blood of that just one. There are faults of omission as well as commission. When you are legally called to try such a cause, if you shall shuffle out yourself, and thereby persons perhaps less conscientious happen to be made use of, and so a villain escapes justice, or an innocent man is ruined, by a prepossessed or negligent verdict; can you think yourself in such a case wholly blameless? Qui non prohibet cum potest, jubet: That man abets an evil, who prevents it not, when it is in his power. Nec caret scrupulo sosietatis occultae qui evidenter facinori definit obviare: nor can he escape the suspicion of being a secret accomplice, who evidently declines the prevention of an atrocious crime.”

Also, the Divine Right of Kings Fallacy (Confidence Scheme) was exposed (held to an accurate accounting of the facts that matter in those cases) as a fraud in - at least - the efforts to document the revolution in America (free people in liberty against fake government) as explained here:

The Statute of Quo Warranto,
made Anno 18 Edw. I Stat. 2 and Anno Dom. 1290.

"These statutes are codifications of existing common law practices, albeit practices that had been used little if at all for a long time."

"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."

"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."

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

A treatise on extraordinary legal remedies, embracing mandamus, quo warranto and prohibition
by High, James L. (James Lambert), 1844-1898

"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 one was entitled to an office or function, and there was no other remedy. Blackstone terms it a "high prerogative writ, of a most extensively 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 English 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 he 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 confined to the English system, and to the jurisdiction of the court of king's bench, these statements may be accepted as correct. But even in that 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.

"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 writ 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 doctrine 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 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.


"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 as 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."

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Missing italics in the quote:

"A friend to Juries” to Samuel Jordan Cambell Virginia Gazette, and General Advertiser June 30, 1797, Albermarle County, Virginia

Sir,
ADMIRING your attachment to the cause of liberty as I do, I cannot but lament, that the means you have adopted for its promotion, are not as promising of success, as both the object and intention deserve. That your intentions are pure, I never had a doubt. But unfortunately, those who are the greatest advocates for the freedom and exercise of opinion themselves, are of late, the greatest enemies, in reality, to that freedom of opinion in others, when it happens to differ from their own. Thus while you are supporting the freedom of opinion as it applies to yourself, you are endeavouring to sap the foundation of that same freedom in others; and that too is the most dangerous part to the community at large.
Your right, as an individual, to entertain whatever sentiment your judgment may dictate to you to be right, is not more valuable to yourself, than the maintenance of your independence, as a representative, in divulging those sentiments, is of consequence to your fellow-citizens at large. But neither the freedom of individual thought, nor the independence of representative expression, can be more valuable to either, than the protection and preservation of the judiciary. On whose freedom and independence, not only those, but all our other rights depend.
How far the judges are warranted to go, or what is the exact rule by which they ought to be governed in their charges, I will not undertake to say; nor do I believe it can be possibly shewn. That it is as much their duty however, to recommend temperance and good order in society, as it is to point out the actual offences against the laws, I have not the smallest doubt. How they are to do either, and yet avoid political topics, is what you and a few other late writers, who are entitled to all the honor of the discovery, can best point out. In order to have fixed the exact point to which the judges have a right to go in their charges to grand juries, you should have told us by what rule we might distinguish a political from a legal charge. The actual offences against the laws, you admit, are properly within their reach. The punishment of these offences, and the means of arriving at that punishment, I had ever thought, were a part of the political oeconomy of the state. The judiciary itself is a part of the government of America, recognized by the Constitution, which is the written and only guide to all the different departments of that government. That the principles of that government can be too well understood, or those who are appointed to administer it, to whatever branch they may belong, can too often point out the reciprocal duties of the people and the government toward each other, is, I confess, what I never expected to hear from as arm and admirer of free government as yourself. Your own letters, as a member of one of the branches of that government, I make no doubt, were intended to explain to your constituents what you conceived to be the true doctrines of political happiness for them to embrace. In this I have as little doubt, you conceived you were discharging your duty. Why then may the judge, who is a member of another branch of the government, not explain to the grand-jury, what he conceives to be the obligation of the citizen to the government, and the government to the citizen? This I take it was the judge’s object in the observations he made to the grand-jury at Richmond, of which you complain so much.
But your charge against the judge is far from being the most serious part of your complaint. In calling upon the indignation of the people to support you in the freedom of your opinions, you have made a direct attack on the freedom of the people themselves. Who, Sir, were the jury who made the presentment? A part of the free and independent people of America. Who had a right to controul their opinons? Not a power upon this earth certainly. As individuals they had as much right to enjoy their opinions as any other citizens. By becoming jurors they could not be abridged in those privileges. But if the offence was not punishable in any other way than by a naked presentment, you conclude, that the judge ought to have silenced the presentment. This, Sir, is an error, I am sure, which proceeded from your not being much accustomed to courts and juries, and not a wilful mistatement to deceive your countrymen. It is well known to every one that least conversant in these things, that there are offences which cannot be and never are punished in any other way. And it is obvious to any one who will reflect a moment on the nature of the punishment, that it is beyond the reach of any power of controul, short of that of the jurors themselves. It is the punishment of censure, which consists in the bare publication of a disapprobation of opinion. That publication must be made before the judge or any one else, besides the jurors can know the contents of the presentment. If then the law had given the judge the power of erasing the presentment, it must have given him the powers of Lethe [1. In Greek mythology, a river in Hades whose water caused forgetfulness in those who drank it. OED.] also, to have extended the benefit to a suspension of the punishment. But the judge had neither of those powers; and the jury might have presented his own charge, and he must, like yourself, have submitted to the punishment.
In the liberty of their opinions and the subject of their presentments, juries have no other limitation than the observance of their oath. They are sworn to present every irregular and disorderly, as well as illegal and criminal act, that comes within their knowledge. How then, if they conceived your letters were calculated to produce disorders in the society by inflaming the people, were they to avoid presenting them, and yet answer that neglect to their own consciences and the community whose peace and welfare they were thus bound to protect? Here, and here only then, they differed in their quality as jurors from their other quality as private citizens. The one has a right to conceal his opinions; the other is bound to declare them to his country. This you say you were bound to do from similar obligations as a member of Congress. You and the jury then stand upon precisely the same ground in point of official duty; as well as in the right to enjoy your opinions as private citizens. But in some other respects, the jury will have the advantage, I should suppose, in the appeal that has been made to the public in the case.
This attack which has been made upon juries, who have ever been considered the greatest and best guardians of all our rights, calls for the most serious and attentive consideration of the people! Can there possibly be a more alarming attempt to overawe the freedom of opinion? If members of our Federal Legislature, will, at this early period of their existence, attempt to abridge this sacred institution in its rights, to serve their own ambtiouis or party views, what may we expect will be their regard for the people’s rights at a more advnaced period? - In England indeed the judges have sometimes attempted to prescribe the duty of juries. But never, in that corrupt country even, have the representatives of the people yet called upon the people themselves to direct that their conduct should be held sacred and above enquiry. Reflect, Sir, but a moment, on the consequences of such a precedent, and your own intentions in making the appeal, I am sure, will be at variance immediately with its obvious tendency!
I know the zeal and openess of your disposition. May I not be permitted then, to believe, that your name and the occasion, have been made use of by men, more designing than yourself, to answer their political views? I know not those suspected of being the substantial authors of the design. But if I may judge of the sentiments it is meant to exalt above the enquiry and animadversions of the people, from some of the literary labours of certain members in Congress, I think, I may venture to predict, without assuming to myself more sagacity than belongs to every citizen who pretends to look at all into his future prospects of political happiness, that the preservation of the independence of juries will be of infinitely more consequence toward the support of real liberties of our country, than all the light that will ever be reflected from their letters; and, that if any are to be abridged in the freedom of opinions, by the indignation of the people, it had, at least, as well be, a few of those letter-writing politicians in Congress, as our juries, who are, in fact, the people themselves, in original, and other their secondary or representative shape.
But, Sir neither is necessary. You and those gentlemen too, have a right to think and write for one-another whatever you please; and the people, either in their individual or collective capacities, have a right to judge of your sentiments. Whether this inquest of the people over the body of this state have judged right or wrong, is not for me or any one else but themselves to determine. Perhaps if I had been one of them, my opinion might have differed from those who made the presentment, in the means of correcting the evil it was meant to remedy. But if a majority of the jurors thought the presentment necessary, as I make no doubt they did, there can be no question about their right to make it.
Give me leave to set you right in another particular respecting the jury, which strikes at once, at the reputation of the court, the marshal, and the jury, who are all too honest, I am sure to merit such a censure. You insinuate that the jury was packed, and that of foreigners, to answer the particular purpose of supporting certain party politics. This, Sir, was an ungenerous insinuation to be made at random; and (as it only could have been made from a sight of the panel, at such a distance from the spot where they were impannelled) I am sure was done without giving yourself time to reflect, that there are many people often of the same name. I have enquired into the actual persons of the jurors, and know them all except two. These might have been foreigners for ought I know. The rest were native Americans, taken from very different parts of the state, as they ought to have been. And one of them, who, I will venture to presume, you concluded from the name, was an inhabitant of Richmond, was a citizen of Campbell, or Bedford county, and opposed to the presentment, I will hazard and assertion which, I doubt not [you] will find to be correct on further examina[tion.]
[Permit me?] now to close those observations, which have been designedly delayed until you returned from Congress, with assuring you, that I am personally, your friend. Many considerations combined to make me so. And it has often been a subject of regret, that the difference of opinion in politics, had separated so far from me in his public pursuits, a man, who had been among my most early and intimate associates in private life: who, belive me, upon every other ground, possesses still the affections of - a real constituent, and -
A FRIEND TO JURIES.
Albermarle, June 30, ‘97. 6

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THE REVOLUTIONARY AMERICAN JURY:
A CASE STUDY OF THE 1778-1779
PHILADELPHIA TREASON TRIALS
Carlton F.W. Larson

https://scholar.smu.edu/cgi/viewcontent.cgi?article=1547&context=smulr

"The jury was "the most excellent method for the investigation and discovery of truth; and the best guardian of both public and private liberty, which has hitherto been devised by the ingenuity of man."

trial never dropped below 59.7% for any decade between 1680 and 1800 in Pennsylvania. JACK MARIETTA & G.S. ROWE, TROUBLED EXPERIMENT: CRIME AND JUSTICE IN
PENNSYLVANIA, 1682-1800, at 46 (2006). Similarly, in Frederick County, Maryland, between 1749 and 1779, 62% of all defendants in criminal jury trials were convicted. James
D. Rice, The Criminal Trial Before and After the Lawyers: Authority, Law, and Culture in Maryland Jury Trials, 1681-1837,40 AM. J. LEGAL HIST. 455, 459 (1996); see also DOUGLAS
GREENBERG, CRIME AND LAW ENFORCEMENT IN THE COLONY OF NEW YORK, 1691-1776, at 71 (1976) (finding that only 15% of criminal cases in eighteenth-century New York resulted in acquittal); P.J.R. King, "Illiterate Plebeians, Easily Misled": Jury Composition, Experience, and Behavior in Essex, 1713-1815, in TWELVE MEN GOOD AND TRUE: THE
CRIMINAL JURY TRIAL IN ENGLAND, 1200-1800, at 254-55 (J.S. Cockburn & Thomas A.
Green eds., 1988) (finding acquittal rate of 34% in five English counties between 1782 and
1787) [hereinafter TWELVE MEN].

"Third, the trials raised issues that spoke dramatically
to the violent and disruptive nature of the Revolution itself-the severance of ties to Great Britain and the imposition of mandatory allegiance to the new states of the American union."

Already a see a problem with this writer, there are dictators, tyrants, and enforcers of Might Makes Right on every side in every mass conflict, an example here is George Washington, who enforce "mandatory allegiance," which is slavery, or conscription, or whatever word someone might chose to label the process of enforcing a criminal order that goes against the moral conscience of the criminal's targeted victim. In Pennsylvania in particular were the Quakers, and as pacifists they showed how their moral conscience was treated by various people (individuals) on all sides in the conflict, including tyrants on the American side, as well as non-tyrants on the American side (references wanted)

"As this Article will explain, it
is most unlikely that the acquitted defendants were all factually innocent."

Again the Cult of Might Makes Right is confessed. The country (through the jury) must unanimously agree to any fact (such as "factually innocent"), and if the jury is misinformed (jury tampering) about their powers, about what is or is not a fact in the case, such as a "fact" dictated as a fact by a potentially corrupt judge, such as who has the power to determine a fact at issue: the jury, or the judge, then the "adjudication" is null and void, due to that jury tampering, by that corrupt judge. That means that the moral conscience of 12 randomly selected representatives of the whole country command the power to represent the moral conscience of the whole country, and no single so-called "Judge," has the lawful power to usurp that power to judge facts in any case, by inserting the individual "judges" own corrupt will power, at odds with the moral conscience of the entire country represented through the jury. So...with an author as corrupt as this author what is likely to be the hand picked information chosen by that author in this "study"?

"And these jurors did not serve by accident;
as this Article explains, they were carefully selected by the adroit use of peremptory challenges under a common law regime that awarded thirtyfive peremptory challenges to the defense-and none to the prosecution."

And this author does not point out the obvious effort known as jury stacking, which is known in common law as a crime, because the ideal is to find representatives of the whole country as if everyone in the whole country must agree to find guilt in fact, once guilt is proven to the whole country in fact, otherwise no government power is allowed to be "executed" by any government agent anywhere, anytime, lawfully. To select jurors that will favor a special interest (prosecutor or defendant), other than the common interest in discovering the truth that matters in the case, is to empower a special interest with special (outside the law) powers.

"Jurors repeatedly sought to mitigate the effects of the death penalty, even in those cases in which they convicted. The experienced trial jurors had much in common with the defendants they tried, and it was doubtless easy for them to imagine themselves in the defendants' shoes."

How does that not confess the fact that the government, not the jury, is assuming the power to decide what is or is not just, and what is or is not liberty according to the people themselves? That is clearly despotic.

"The statute specified seven offenses that would
constitute high treason:
(1) receiving a commission from the King of Great Britain; (2) levying war against the state or its government;
(3) aiding or assisting enemies at war with the state by joining their armies, or persuading others to join their armies;
(4) furnishing enemies with arms, ammunition, or other provisions, for their aid and comfort;
(5) carrying on a traitorous correspondence with the enemy; (6) conspiring to betray the state or the United States of America to a foreign enemy; and
(7) sending intelligence to the enemy. Two witnesses were required for conviction, and trials were to be held in courts of oyer and terminer.
Pennsylvania had traditionally tried felonies before the justices of the Pennsylvania Supreme Court, acting under a commission of oyer and terminer, and this practice would continue under the new state constitution. The statute also defined misprision of treason, which included a variety of lesser offenses, such as discouraging enlistment in the armed forces. Misprision cases also required two witnesses and were cognizable before the justices of the peace in the courts of quarter sessions."

I am looking for references involving assembly of anything like a Grand Jury, or a panel of magistrates (non-government officials-NGO) or justices of the peace, who receive and process accusations, so as to then put the accused on trial before the country: trial by jury according to the common law.

The idea that no one would do something lawful, such as being a witness to someone leading the British Troops secretly into the local armory to take the means of defense from the defenders, and then once the witness could safely alert the other defenders about the treasonous actions perpetrated by the traitor, such as make a formal accusation that would lead to a trial by jury, because - no one would do anything - because they did not have permission written on a statute, is stupid, and servile.

"McKean was a signer of the Declaration of Independence who represented Delaware in the Continental Congress."

So this book, by this author, has his Cult of Might Makes Right dogma going full speed, but here is an opportunity to put into the flow of information a significant message:

U.S. Supreme Court
RESPUBLICA v. SHAFFER, 1 U.S. 236 (1788)
1 U.S. 236 (Dall.)
Court of Oyer and Terminer, at Philadelphia
February Sessions, 1788
https://supreme.justia.com/cases/federal/us/1/236/

M'Kean, Chief Justice.

"The Chief Justice, accordingly, addressed the Grand Jury to the following effect:

Were the proposed examination of witnesses, on the part of the Defendant, to be allowed, the long established rules of law and justice would be at an end. It is a matter well known, and well understood, that by the laws of our country, every question which affects a man's life, reputation, or property, must be tried by twelve of his peers; and that their unanimous verdict is, alone, competent to determine the fact in issue. If then, you undertake to enquire, not only upon what foundation the charge is made, but, likewise, upon what foundation it is denied, you will, in effect, usurp the jurisdiction of the Petty Jury, you will supercede the legal authority of the court, in judging of the competency and admissibility of witnesses, and, having thus undertaken to try the question, that question may be determined by a bare majority, or by a much greater number of your body, than the twelve peers prescribed by the law of the land. This point has, I believe, excited some doubts upon former occasions but those doubts have never
Page 1 U.S. 236, 237
arisen in the mind of any lawyer, and they may easily be removed by a proper consideration of the subject. For, the bills, or presentments, found by a grand Jury, amount to nothing more than an official accusation, in order to put the party accused upon his trial: 'till the bill is returned, there is, therefore, no charge from which he can be required to exculpate himself; and we know that many persons, against whom bills were returned, have been afterwards acquitted by a verdict of their country. Here then, is the just line of discrimination: It is the duty of the Grand Jury to enquire into the nature and probable grounds of the charge; but it is the exclusive province of the Petty Jury, to hear and determine, with the assistance, and under the direction of the court, upon points of law, whether the Defendant is, or is not guilty, on the whole evidence, for, as well as against, him. You will therefore, readily perceive, that if you examine the witnesses on both sides, you do not confine your consideration to the probable grounds of charge, but engage completely in the trial of the cause; and your return must, consequently, be tantamount to a verdict of acquital, or condemnation. But this would involve us in another difficulty; for, by the law it is declared that no man shall be twice put in jeopardy for the same offence: and, yet, it is certain that the enquiry, now proposed by the Grand Jury, would necessarily introduce the oppression of a double trial. Nor is it merely upon maxims of law, but, I think, likewise, upon principles of humanity, that this innovation should be opposed. Considering the bill as an accusation grounded entirely upon the testimony in support of the prosecution, the Petty Jury receive no biass from the sanction which the indorsement of the Grand Jury has conferred upon it. But, on the other hand, would it not, in some degree, prejudice the most upright mind against the Defendant, that on a full hearing of his defence, another tribunal had pronounced it insufficient? which would then be the natural inference from every true bill. Upon the whole, the court is of opinion, that it would be improper and illegal to examine the witnesses, on behalf of the Defendant, while the charge against him lies before the Grand Jury.

It is a matter well known, and well understood, that by the laws of our country, every question which affects a man's life, reputation, or property, must be tried by twelve of his peers; and that their unanimous verdict is, alone, competent to determine the fact in issue.

It is the duty of the Grand Jury to enquire into the nature and probable grounds of the charge; but it is the exclusive province of the Petty Jury, to hear and determine, with the assistance, and under the direction of the court, upon points of law, whether the Defendant is, or is not guilty, on the whole evidence, for, as well as against, him.

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THE REVOLUTIONARY AMERICAN JURY:
A CASE STUDY OF THE 1778-1779
PHILADELPHIA TREASON TRIALS
Carlton F.W. Larson

"The British occupation of Philadelphia was the seminal event of the War for Independence in Pennsylvania. Following Washington's defeat at Brandywine Creek, the British army entered Philadelphia on September 26, 1777. The Continental Congress and the Pennsylvania state government had already fled the city, and Washington would eventually withdraw his army to Valley Forge for the winter. Historians estimate that about one-third of Philadelphia's population, some 12,000 people, had fled the city in advance of the invasion.
The state government, in exile in Lancaster, soon began hearing reports of Pennsylvanians who were actively aiding or joining the British army. In March 1778, the Assembly, with assistance from Chief Justice McKean, passed a law entitled "An Act for the attainder of divers traitors." The law named twelve prominent individuals who had sided with the British and required them to appear for trial by April 20, 1778. If they failed to appear, they would be deemed "convicted and attainted of high treason, to all intents and purposes whatsoever." The Act also authorized the Supreme Executive Council to issue additional proclamations naming persons who had joined the British army. Any such persons who failed to appear for trial would also be attainted of high treason. Although such conditional bills of attainder would soon be prohibited by the U.S. Constitution, Pennsylvania did not seek primarily to hang people without trials, but to seize promptly the abandoned estates of loyalists who had fled to the British. The law accordingly set forth various procedures for seizing the estates of those persons who failed to report for trial."

Article I, Section 9, Clause 3 is "No Bill of Attainder or ex post facto Law shall be passed".

Here again is evidence of the opposing viewpoints as:
1. Might Makes Right (criminal power)
2. Golden Rule (law power)

This is clearly the case in this case of extreme conflict.

Demand obedience to falsehood without question, is on one side.

On the other side is an offer extended as a method of returning to voluntary association for mutual defense in cases where someone is suspected of, or even found guilty of, joining the aggressive, criminal, gang.

It takes 2 witnesses (or false accusers) to set the ball rolling, and those in power actually allow the ball to get rolling, rather than those in power ignoring the information brought to the cognizance of those in power.

Who is in power on either side?

On the criminal side the criminals are in power, and they do whatever pleases them with impunity.

On the other side everyone is in power, and everyone has the power of veto, in any case, so long as the individual in power has not volunteered to give up their power in any number of ways. An example is found in a jury trial whereby a prosecutor (private individual not government agent) and a defendant (again not a corporate agent, an actual individual living person) ask a potential juror questions such as:

1. Are you currently guilt of the same crime alleged against the defendant?

2. In your opinion is it perfectly reasonable for you to do harm to innocent people simply because you can get away with it?

3. Is it reasonable for you to pay an extortion fee, as an investment, so as to empower a criminal gang with the means to protect you from other criminal gangs, while knowing that there are many peaceful alternatives such as due process of law?

4. Is mass murder of innocent people morally acceptable to you, so long as you are a member of the murdering gang of course?

5. Is it morally acceptable to you to enslave by any means not limited to extortion, torture, and mass murder, a group of innocent people - not your group of course - whose subsequent forced labor can increase your standard of living and lower your cost of living?

Those are just 5 questions that could alert those intending to apply due process of law to a possible need to exclude some people for the vital job called jury duty, which includes both Grand and Petty jury duty?

In other words; confessed criminals do not make a jury lawful, the opposite can be reasonably expected.

Criminals may very well want to convict other criminals, and send other criminals to the gallows, or worse, because that is their nature, they want to eliminate the competition as there are only so many innocent victims in the pile. Criminal may very well want to avoid convicting other criminals, and this is also easy to reason out, because criminals need fellow criminals, in their gang, when crime because organized.

Example:

Mob Boss A (King George III, George Washington, or Lucky Luciano) is on a Grand Jury to accept accusations against Mob Boss B.

According to my understanding the Mob Boss on the Grand Jury will ignore accusations against his fellow members of his gang, and the same Mob Boss will pass on to the Trial Jury all accusations against members (except perhaps double agents) of a rival criminal gang.

What about a criminal cartel? The answer is clear, the members of a cartel will help each other avoid accurate accountability (to the public) concerning their nefarious activities, but any rival gang, and rival gang members, not joining the cartel is fair game. Think in terms of "honor" among thieves.

The same applies to Petty (trial) jurors. If individual A is a fellow gang member, then the prosecutor is going to want that fellow gang member on the jury. If both prosecutor and defendant are members of the same gang, then the idea begins to explain itself. Why would the prosecutor and the defendant, if they were on the same side, want the whole country of people to decide how the defendant, if found guilty, can be returned into lawful society after having volunteered to depart from it?

If they are on the same side, the criminal side, why would one gang member rat out another gang member, and place his fellow gang member at the feet of the public's moral compass?

"Definition
Latin for "from a thing done afterward."
Overview
Ex post facto is most typically used to refer to a criminal statute that punishes actions retroactively, thereby criminalizing conduct that was legal when originally performed. Two clauses in the United States Constitution prohibit ex post facto laws:"
https://www.law.cornell.edu/wex/ex_post_facto

Now here this: What kind of mind assumes these types of thoughts? Is it a mind that says anything not unauthorized is perfectly acceptable behavior, or only things authorized is acceptable behavior? Is it a mind that assumes to invent the right and wrong of behavior by decree?

I think the answer is yes.

That type of mind requires an external authority, a God, to permit, or not permit, behavior, before, during, or after the behavior in question becomes a fact of the matter.

Everyone bound by that type of thinking is subject to the higher power's will. Everyone bound by that type of thinking is looking for their Boss whenever an action is contemplated, so as to gain permission to perform the act in question.

That type of thinking absolves everyone except the ultimate Boss of accountability. The Boss made me do it.

The member of the Cult of Might Makes Right is allowed to do anything at all, so long as the Boss hasn't yet placed that specific action on the list of crimes. So...how many crimes will have to be listed? How many victims are needed, before the list is complete? Each criminals has to get caught, tortured into a confession, brought before the Boss, and thumbs are up, or down, in that case, and then the Boss orders subordinates to add to the list, and do so or else.

An example may be:

"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances."

Martin Luther King Jr. was given a death sentence for peaceful assembly and petitioning the government for a redress of grievances, by the government. That was proven to the representatives of the country in a trial by jury case. The Boss issued the death sentence, and that execution was performed by the subjects subjected to that decree.

Where is the law? If you ask the Boss, the Boss would probably not answer honestly, but if the Boss did answer honestly then the Boss would inform those questioning the boss that the Boss is the Boss, don't question the Boss, or suffer obvious, demonstrated, consequences.

Martin Luther King Jr. was merely questioning the Boss, see what happened to him?

So, what really are those things called Statutes?

What, what are you talking about?

Written orders to be obeyed without question are precisely what they are, and Statutes, on the other hand, are suggestions to fellow peaceful members of voluntary associations, for their benefit, whenever they may be doubt concerning what is, or is not, acceptable behavior.

Acceptable to whom?

If the Boss does not except your behavior, with or without a Statute telling you in advance, you may get summarily dead.

If, on the other hand, the whole country is asked for a unanimous opinion in any specific case, then there are examples of specific cases where the whole country unanimously says no, such as murder, that is not acceptable, and here is your fine, pay it if you want to return inside the law, after having stepped outside the law, and the fine isn't supposed to ruin the outlaw as the outlaw works to get back inside the law. (that can be shown in the literature, which includes the statutes)

The most obvious check on what is or is not acceptable behavior is for the emerging criminals to merely ask their targeted victims for permission (not extorted "permission") to go ahead with whatever is a questionable, on the fence, act performed by someone upon someone else.

A case in point is a number of people operating a business whereby there are byproducts, or wastes, such as radioactive isotopes, or deadly poisons, are in need of disposal. Do the operators of the business, in charge of disposing the deadly poisons, take the deadly poisons home, to bury in their own back yards? Do the same operators of the business, in charge of disposing the increasing piles of poisons, go to the people down the river of water that may serve as a dumping point, to ask those people for permission to dump all that poison in that river?

Will the operators of the business look instead at the pile of statutes and find a way to argue their profitable decision to the Boss, and perhaps pay a larger extortion fee to the Boss, as insurance against loss for dumping the increasing piles of poisons into the river upstream from the targeted victims?





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THE REVOLUTIONARY AMERICAN JURY:
A CASE STUDY OF THE 1778-1779
PHILADELPHIA TREASON TRIALS
Carlton F.W. Larson

In late eighteenth-century England, most felony cases were prosecuted by private parties, generally the victims.82

82. JOHN H. LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL 99 (2003).

Treason cases, by contrast, were generally prosecuted by professional attorneys working for the crown such as the attorney general or solicitor general. Pennsylvania followed England's lead with respect to treason trials, entrusting all of the cases to the state's attorney general, Jonathan Dickinson Sergeant. On August 7, 1778, the SEC informed the Assembly that as "the professors of law are supposed to be making great sums of money by espousing the cause of the disaffected," it would be necessary to increase Sergeant's funding and to provide him with at least one assistant.85 This was the "more necessary, as there is every reason to suppose that some of the persons charged with treasonable practices will endeavour to obtain, at any expense, the most experienced council in this and the neighboring states."'86 The SEC warned, "[t]he bringing of Traitors to justice is at all times an object of great importance, and more especially so in our present circumstances. '87 The Assembly acquiesced, and the SEC offered the assistantship to Joseph Reed, a member of the Patriotic Society, noting the "important trials of traitors, which would employ the Supreme Court during the next winter." And thus the wheels of English criminal procedure, rusty from several years of disuse, again began to turn on the banks of the Delaware. The common law criminal jury, developed over hundreds of years in an island kingdom 3000 miles away, would be deployed in a way Englishmen could never have imagined-to try as traitors those men who had remained loyal to their English king. The process began on August 21, 1778, when the three justices of the Supreme Court issued a precept to Philadelphia County Sheriff James Claypoole for holding a Court of Oyer and Terminer and General Gaol Delivery at the State House, beginning on Monday, September 21.89 The next day, Claypoole issued a proclamation announcing the court's sitting.90 Claypoole presumably selected and summoned the grand jury and the panel of trial jurors sometime between
August 21 and September 21. 91

Note here the misinformation concerning the age of the ancient law, as it was the counterfeit "common law" in forms such as so-called "Equity" that was only recently developed "over hundreds of years in an island kingdom 3000 miles away." The ancient law (common law), goes way back before the Romans conquered England, bringing in Summary Justice with the Roman conquers. Saxons developed the common law in Germany, and once the Romans left (or were driven off), the Saxons imported the common law with them. The English, after the Roman Empire fell, or was pushed back, adapted the adaptable common law well before Magna Carta (1215), as explained here:


"Farther, though it be said here, that the king hath given and granted these liberties, yet it must not be understood that they were meer emanations of Royal favour, or new bounties granted, which the people could not justly challenge, or had not a right unto before; for as lord Coke in divers places asserts, and as is well known to every gentleman professing the law, this charter is, for the most part, only declaratory of the principal grounds of the fundamental laws and liberties of England. Not any new freedom is hereby granted, but a restitution of such as the subject lawfully had before, and to free them from the usurpations and incroachments of every power whatever. It is worthy observation, that this charter often mentions sua jura, their rights, and libertates suas, their liberties, which shews they were before intitled to and possessed them, and that those rights and liberties were by this charter not granted as before unknown, but confirmed, and that in the stile of liberties and privileges long before well known.”
https://quod.lib.umich.edu/e/eebo/A33823.0001.001/1:4?rgn=div1;view=fulltext

So...obviously the author F.W. Larson is misinformed or is alternatively well-informed and writing (false) propaganda. I want this work to gain currency not because it is written from a member of the Cult of Might Makes Right, but because the facts of the matter: matter.

The specific facts that matter include how the jurors judged with leniency, while the Bosses in power were more inclined to represent an angry mob.

Perhaps I cannot repeat this enough, not so much to convince myself as to offer this to other people for their judgment, in case mine is terrible wrong. The idea with voluntary association for mutual defense, with the goal of holding each offender to an accurate accounting of the facts that matter in any case of conflict involving injury done to innocent people, or even threats of injury to as yet targeted innocent people, is the idea that is categorically not wishful thinking that wishes away the angry mobs.

The angry mobs are those people who, by their power of will, become outlaws, and they target people who may or may not be innocent, and they will to maliciously attack potentially innocent people, for something called vengeance, or revenge, or just to have fun, who knows? Who knows if the facts that matter in the case are not discovered, not put in front of representatives of the whole country, and not determined in that ancient way of arriving at the law of the land?

If the

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Political Papers, Speeches, And Judicial Opinions Of James
Wilson
http://lf-oll.s3.amazonaws.com/titles/2072/Wilson_4140_EBk_v6.0.pdf

“All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government.” (“Considerations,” August 17, 1774, James Wilson)

Considerations On The Nature And Extent Of The Legislative
Authority Of The British Parliament, 1774.
British liberty, it was thought, could not be effectually secured, unless those who made the laws were freely, and without influence, elected by those for whom they were made. Upon this principle is reasonably founded the maxim in law—that every one, who is capable of exercising his will, is party, and presumed to consent, to an act of parliament.

AND:

One of the most ancient maxims of the English law is, that no freeman can be taxed at pleasure. But taxes on freemen were absolutely necessary to defray the extraordinary charges of government. The consent of the freemen was, therefore, of necessity to be obtained. Numerous as they were, they could not assemble to give their consent in their proper persons; and for this reason, it was directed by the constitution, that they should give it by their representatives, chosen by and out of themselves. Hence the indisputable and peculiar privilege of the house of commons to grant taxes.

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Replay on finding reference to private prosecutors and the grand jury process in pre-Subsidized Slavery National Despotic Crime Syndicate (U.S.A. Inc. 1789):

Revolutionary American Jury: A Case Study of the
1778-1779 Philadelphia Treason Trials
Carlton F. W. Larson
https://scholar.smu.edu/cgi/viewcontent.cgi?article=1547&context=smulr

In late eighteenth-century England, most felony cases were prosecuted by private parties, generally the victims. Treason cases, by contrast, were generally prosecuted by professional attorneys working for the crown such as the attorney general or solicitor general. Pennsylvania followed England's lead with respect to treason trials, entrusting all of the cases to the state's attorney general, Jonathan Dickinson Sergeant. On August 7, 1778, the SEC informed the Assembly that as "the professors of law are supposed to be making great sums of money by espousing the cause of the disaffected," it would be necessary to increase Sergeant's funding and to provide him with at least one assistant. This was the "more necessary, as there is every reason to suppose that some of the persons charged with treasonable practices will endeavour to obtain, at any expense, the most experienced council in this and the neighboring states." The SEC warned, "[t]he bringing of Traitors to justice is at all times an object of great importance, and more especially so in our present circumstances. The Assembly acquiesced, and the SEC offered the assistantship to Joseph Reed, a member of the Patriotic Society, noting the "important trials of traitors, which would employ the Supreme Court during the next winter."

And thus the wheels of English criminal procedure, rusty from several years of disuse, again began to turn on the banks of the Delaware. The common law criminal jury, developed over hundreds of years in an island kingdom 3000 miles away, would be deployed in a way Englishmen could never have imagined-to try as traitors those men who had remained loyal to their English king. The process began on August 21, 1778, when the three justices of the Supreme Court issued a precept to Philadelphia County Sheriff James Claypoole for holding a Court of Oyer and Terminer and General Gaol Delivery at the State House, beginning on Monday, September 21. The next day, Claypoole issued a proclamation announcing the court's sitting. Claypoole presumably selected and summoned the grand jury and the panel of trial jurors sometime between August 21 and September 21.
Pages 1453, 1454

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Joe Kelley
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"The trial by jury," then, is a "trial by the country" - that is, by the people - as distinguished from a trial by the government.
It was anciently called " trial per pais" - that is, "trial by the country." And now, in every criminal trial, the jury are told that the accused "has, for trial, put himself upon the country; which country you (the jury) are."
The object of this trial " by the country," or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or "the country," judge of and determine their own liberties against the government; instead of the government's judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the government, if they are not allowed to determine what those liberties are?
Any government, that is its own judge of, and determines authoritatively for the people, what are its own powers over the people, is an absolute government of course. It has all the powers that it chooses to exercise. There is no other - or at least no more accurate - definition of a despotism than this.
On the other hand, any people, that judge of, and determine authoritatively for the government, what are their own liberties against the government, of course retain all the liberties they wish to enjoy. And this is freedom. At least, it is freedom to them; because, although it may be theoretically imperfect, it, nevertheless, corresponds to their highest notions of freedom.
To secure this right of the people to judge of their own liberties against the government, the jurors are taken, (or must be, to make them lawful jurors,) from the body of the people, by lot, or by some process that precludes any previous knowledge, choice, or selection of them, on the part of the government. This is done to prevent the government's constituting a jury of its own partisans or friends; in other words, to prevent the government's packing a jury, with a view to maintain its own laws, and accomplish its own purposes.
It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of "the country” at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government, (if the government have any opponents,) will be represented there, as well as its friends; that the classes, who are oppressed by the laws of the government, (if any are thus oppressed,) will have their representatives in the jury, as well as those classes, who take sides with the oppressor - that is, with the government.
It is fairly presumable that such a tribunal will agree to no conviction except such as substantially the whole country would agree to, if they were present, taking part in the trial. A trial by such a tribunal is, therefore, in effect, "a trial by the country." In its results it probably comes as near to a trial by the whole country, as any trial that it is practicable to have, without too great inconvenience and expense. And as unanimity is required for a conviction, it follows that no one can be convicted, except for the violation of such laws as substantially the whole country wish to have maintained. The government can enforce none of its laws, (by punishing offenders, through the verdicts of juries,) except such as substantially the whole people wish to have enforced. The government, therefore, consistently with the trial by jury, can exercise no powers over the people, (or, what is the same thing, over the accused person, who represents the rights of the people,) except such as substantially the whole people of the country consent that it may exercise. In such a trial, therefore, "the country," or the people, judge of and determine their own liberties against the government, instead of the government's judging of and determining its own powers over the people.
But all this " trial by the country" would be no trial at all "by the country," but only a trial by the government, if the government could either declare who may, and who may not, be jurors, or could dictate to the jury anything whatever, either of law or evidence, that is of the essence of the trial.
If the government may decide who may, and who may not, be jurors, it will of course select only its partisans, and those friendly to its measures. It may not only prescribe who may, and who may not, be eligible to be drawn as jurors; but it may also question each person drawn as a juror, as to his sentiments in regard to the particular law involved in each trial, before suffering him to be sworn on the panel; and exclude him if he be found unfavorable to the maintenance of such a law."* [footnote]

[footnote]
*To show that this supposition is not an extravagant one, it may be mentioned that courts have repeatedly questioned jurors to ascertain whether they were prejudiced against the government- that is, whether they were in favor of, or opposed to, such laws of the government as were to be put in issue in the then pending trial. This was done (in 1851) in the United States District Court for the District of Massachusetts, by Peleg Sprague, the United States district judge, in empanelling three several juries for the trials of Scott, Hayden, and Morris, charged with having aided in the rescue of a fugitive slave from the custody of the United States deputy marshal. This judge caused the following question to be propounded to all the jurors separately; and those who answered unfavorably for the purposes of the government, were excluded from the panel.
“Do you hold any opinions upon the subject of the Fugitive Slave Law, so called, which will induce you to refuse to convict a person indicted under it, if the facts set forth in the Indictment, and constituting the offence, are proved against him, and the court direct you that the law is constitutional"
The reason of this question was, that “the Fugitive Slave Law, so called,” was so obnoxious to a large portion of the people, as to render a conviction under it hopeless, if the jurors were taken indiscriminately from among the people.
A similar question was soon afterwards propounded to the persons drawn as jurors in the United States Circuit Court for the District of Massachusetts, by Benjamin R. Curtis, one of the Justices of the Supreme Court of the United States, in empanelling a jury for the trial of the aforesaid Morris on the charge before mentioned; and those who did not answer the question favorably for the government were again excluded from the panel.
It has also been an habitual practice with the Supreme Court of Massachusetts, in empanelling juries for the trial of capital offences, to inquire of the persons drawn as jurors whether they had any conscientious scruples against finding verdicts of guilty in such cases; that is, whether they had any conscientious scruples against sustaining the law prescribing death as the punishment of the crime to be tried; and to exclude from the panel all who answered in the affirmative.
The only principle upon which these questions are asked, is this - that no man shall be allowed to serve as juror, unless he be ready to enforce any enactment of the government, however cruel or tyrannical it may be.
What is such a jury good for, as a protection against the tyranny of the government? A jury like that is palpably nothing but a mere tool of oppression in the hands of the government. A trial by such a jury is really a trial by the government itself - and not a trial by the country - because it is a trial only the men specially selected by the government for their readiness to enforce its own tyrannical measures.
It that be the true principle of the trial by jury, the trial utterly worthless as a security to liberty. The Czar might, with perfect safety to his authority, introduce the trial by jury into Russia, if he could but be permitted to select his jurors from those who were ready to maintain his laws, without regard to their injustice.
This example is sufficient to show that the very pith of the trial by jury, as a safeguard to liberty, consists in the jurors being taken indiscriminately from the whole people, and in their right to hold invalid all laws which they think unjust.
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https://docs.google.com/document/d/17bxxD3cm1zoeWu02UGPNZg4ifbaqZNRzhPNqplGLQmo/edit


Ancient Law Right of resistance

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That this right of resistance was recognized as a common law right, when the ancient and genuine trial by jury was in force, is not only proved by nature of the trial itself, but is acknowledged by history.*

*Hallam says, “The relation established between a lord and his vassal by the feudal tenure, far from containing principles of any servile and implicit obedience, permitted the compact to be dissolved in case of its violation by either party. This extended as much to the sovereign as to inferior lords. * * If a vassal was aggrieved, and if justice wad denied him, he sent a defiance, that is, a renunciation of fealty to the king, and was entitled to enforce redress at the point of his sword. It then became a contest of strength as between two independent potentates, and was terminated by treaty, advantageous or otherwise, according to the fortune of war. * * There remained the original principle, that allegiance depended conditionally upon good treatment, and that an appeal might be lawfully made to arms against an oppressive government. Nor was this, we may be sure, left for extreme necessity, or thought to require a long enduring forbearance. In modern times, a king, compelled by his subjects’ swords to abandon any pretension, would be supposed to have ceased to reign; and the express recognition of such a right as that of insurrection has been justly deemed inconsistent with the majesty of law. But ruder ages had ruder sentiments. Force was necessary to repel force; and men accustomed to see the king’s authority defied by a private riot, were not much shocked when it was resisted in defence of public freedom.” - 3 Middle Ages, 240-2.
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The bounds set to the power of the government, by the trial by jury, as will hereafter be shown, are these - that the government shall never touch the property, person, or natural or civil rights of an individual, against his consent, (except for the purpose of bringing them before a jury for trial.) unless in pursuance and execution of a judgment, or decree, rendered by a jury in each individual case, upon such evidence, and such law, as are satisfactory to their own understandings and consciences, irrespective of all legislation of the government.
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AND

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The king was, therefore, constitutionally the government; and the only legal limitation upon his power seems to have been simply the Common Law, usually called “the law of the land,” which he was bound by oath to maintain; (which oath had about the same practical value as similar oaths have always had.) This “law of the land” seems not to have been regarded at all by many of the kings, except so far as they found it convenient to do so, or were constrained to observe it by the fear of arousing resistance. But as all people are slow in making resistance, oppression and usurpation often reached a great height; and, in the case of John, they had become so intolerable as to enlist the nation almost universally against him; and he was reduced to the necessity of complying with any terms the barons saw fit to dictate to him.
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AND

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Coke’s rendering is, if possible, the most absurd and gratuitous of all. What is there in the words, “nec super eum mittemus,” that can be made to mean “nor shall he be condemned before any other commissioner or judge whatsoever?” Clearly there is nothing. The whole rendering is a sheer fabrication. And the whole object of it is to give color for the exercise of a judicial power, by the king, or his judges, which is nowhere given them.
Neither the words, “nec super eum ibimus, nec super eum mittemus,” nor any other words in the whole chapter, authorize, provide for, describe, or suggest, any judicial action whatever, on the part either of the king, or of his judges, or of anybody, except the peers, or jury. There is nothing about the king’s judges at all. And there is nothing whatever, in the whole chapter, so far as relates to the action of the king, that describes or suggests anything but executive action.
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Clearly there is nothing. The whole rendering is a sheer fabrication. And the whole object of it is to give color for the exercise of a judicial power, by the king, or his judges, which is nowhere given them.

AND

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*Perhaps the assertion in the text should be made with this qualification - that the words" per "per legem terrae," (according to the law of the land,) and the words "per legale judicium parium sworum,” (according to the legal judgment of his peers,) imply that the king, before proceeding to any executive action, will take notice of “the law of the land," and of the legality of the judgment of the peers, and will execute upon the prisoner nothing except what the law of the land authorizes, and no judgments of the peers, except legal ones. With this qualification, the assertion in the text is strictly correct - that there is nothing in the whole chapter that grants to the king, or his judges, any judicial power at all. The chapter only describes and limit his executive power.
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AND

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It is evident that the difference between the true and false translations of the words, nec super eum ibimus, nec super eum mittemus, is of the highest legal importance, inasmuch as the true translation, nor will we (the king) proceed against him, nor send (any one) against him by force or arms, represents the king only in an executive character, carrying the judgment of the peers and “the law of the land” into execution; whereas the false translation, nor will we pass upon him, nor condemn him, gives color for the exercise of a judicial power, on the part of the king, to which the king had no right, but which, according to the true translation, belongs wholly to the jury.
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...the difference between the true and false translations of the words...gives color for the exercise of a judicial power...


AND

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The true meaning of the phrase, per judicium parium suorum, is, according to the sentence of his peers. The word judicium, judgment, has a technical meaning in the law, signifying the decree rendered in the decision of a cause. In civil suits this decision is called a judgment; in chancery proceedings it is called a decree; in criminal actions it is called a sentence, or judgment, indifferently. Thus, in a criminal suit, “a motion in arrest of judgment,” means a motion in arrest of sentence.
In cases of sentence, therefore, in criminal suits, the words sentence and judgment are synonymous terms. They are, to this day, commonly used in law books as synonymous terms. And the phrase per judicium parium suorum, therefore, implies that the jury are to fix the sentence.
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AND

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If any additional proof were wanted that juries were to fix the sentence, it would be found in the following provisions of Magna Carta, viz.:
“A freeman shall not be amerced for a small crime, (delicto,) but according to the degree of the crime; and for a great crime in proportion to the magnitude of it, saving to him his contenement; and after the same manner a merchant, saving to him his merchandise. And a villein shall be amerced after the same manner, saving to him his waynage, if he fall under our mercy; and none of the aforesaid amercements shall be imposed, (or assessed, ponatur,) but the oath of honest men of the neighborhood. Earls and Barons shall not be amerced but by their peers, and according to the degree of their crime.”
Pecuniary punishments were the most common punishments at that day, and the foregoing provisions of Magna Carta show that the amount of those punishments was to be fixed by the jury.
Fines went to the king, and were a source of revenue; and if the amounts of the fines had been left to be fixed by the king, he would have had a pecuniary temptation to impose unreasonable and oppressive ones. So, also, in regard to other punishments than fines. If it were left to the king to fix the punishment, he might often have motives to inflict cruel and oppressive ones. As it was the object of the trial by jury to protect the people against all possible oppression from the king, it was necessary that the jury, and not the king, should fix the punishments.

Footnotes: Contenement of a freeman was the means of living in the condition of a freeman.
Waynage was a villein's plough-tackle and carts.
Tomlin says, “The ancient practice was, when any such fine was imposed, to inquire by a jury quantum inde regi dare valeat per annum, salva sutentatione sua et uroris et liberorum suorum, (how much is he able to give to the king per annum, saving his own maintenance, and that of his wife and children). And since the disuse of such inquest, it is never usual to assess a larger fine than a man ss able to pay, without touching the implements of his livelihood; but to inflict corporal punishment, or a limited imprisonment, instead of such a fine as might amount to imprisonment for life. And this is the reason why fines in the king's courts are frequently denominated ransomed by a pecuniary fine.” - Tomlin’s Law Dict., word Fine.
Because juries were to fix the sentence, It must not be supposed that the king was obliged to carry the sentence into execution; but only that he could not go beyond the sentence. He might pardon, or he might acquit on grounds of law, notwithstanding the sentence; but he could not punish beyond the extent of the sentence. Magna Carta does not prescribe that the king shall punish according to the sentence of the peers; but only that he shall not punish "unless according to" that sentence. He ma acquit or pardon, notwithstanding their sentence or judgment; but he cannot punish, except according to their judgment.
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AND:

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Judging, therefore, from the special provisions in Magna Carta, requiring fines, or amercements, to be imposed only by juries, (without mentioning any other punishments; ) judging; also, from the statutes which immediately followed Magna Carta, it is probable that the Saxon custom of punishing all, or nearly all, offences by fines, (with the alternative to the criminal of being imprisoned, banished, or outlawed, and exposed to private vengeance, in case of non-payment,) continued until the time of Magna Carta; and that in providing expressly that fines should be fixed by the juries, Magna Carta provided for nearly or quite all the punishments that were expected to be inflicted; that if there were to be any others, they were to be fixed by the juries; and consequently that nothing was left to be fixed by “legem terrae.”

AND

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We also know that, by Magna Carta, amercements, or fines, could not be imposed to the ruin of the criminal; that, in the case of a freeman, his contenement, or means of subsisting in the condition of a freeman, must be saved to him; that, in the case of a merchant, his merchandise must be spared; and in the case of a villein, his waynage, or plough-tackle and carts. This also is likely to have been a princple of the common law, inasmuch as, in that rude age, when the means of getting employment as laborers was not what they are now, the man and his family would probably have been liable to starvation, if these means of subsistence had been taken from him.
We also know, generally, that, at the time of Magna Carta, all acts intrinsically criminal, all trespasses against persons and property, were crimes, according to lex terrae, or the common law.
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must be saved to him

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We also know that, by Magna Carta, amercements, or fines, could not be imposed to the ruin of the criminal; that, in the case of a freeman, his contenement, or means of subsisting in the condition of a freeman, must be saved to him; that, in the case of a merchant, his merchandise must be spared; and in the case of a villein, his waynage, or plough-tackle and carts. This also is likely to have been a princple of the common law, inasmuch as, in that rude age, when the means of getting employment as laborers was not what they are now, the man and his family would probably have been liable to starvation, if these means of subsistence had been taken from him.
We also know, generally, that, at the time of Magna Carta, all acts intrinsically criminal, all trespasses against persons and property, were crimes, according to lex terrae, or the common law.
Beyond the points now given, we hardly know anything, probably nothing with certainty, as to wah the “legem terrae” of Magna Carta did authorize, in regard to crimes. There is hardly anything extant that can give us any real light on the subject.
It would seem, however, that there were, even at that day, some common law principles governing arrests; and some common law forms and rules as to holding a man for trial, (by bail or imprisonment;) putting him on trial, such as by indictment or complaint; summoning and empanelling jurors, &c, &c. Whatever these common law principles were, Magna Carta requires them to be observed; for Magna Carta provides for the whole proceedings, commencing with the arrest, (“no freeman shall be arrested,” &c.,) and ending with the execution of the sentence. And it provides that nothing shall be done, by the government, from beginning to end, unless according to the sentence of the peers, or “legem terrae,” the common law. The trial by peers was a part of legem terrae, and we have seen that the peers must necessarily have governed the whole proceeding at the trial. But all the proceedings for arresting the man, and bringing him to trial, must have been had before the case could come under the cognizance of the peers, and they must, therefore, have been governed by other rules than the discretion of the peers. We may conjecture, although we cannot perhaps know with much certainty, that the lex terrae, or common law, governing these other proceedings, was somewhat similar to the common law principles, on the same points, as the present day. Such seem to be the opinions of Coke, who says that the phrase nisi per legem terrae means unless by due process of law.
This, he says:
“Nisi per legem terrae. But by the law of the land. For the true sense and exposition of these words, see the statute of 37 Edw. III., cap. 8, where the words, by the law of the land, are rendered without due process of law; for there it is said, though it be contained in the Great Charter, that no man be taken, imprisoned, or put out of his freehold, without process of the law; that is, by indictement or presentment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law.
“Without being brought in to answer but by due process of the common law.
“No man be put to answer without presentment before justices, or thing of record, or by due process, or by writ original, according to the old law of the land.” - 2 Inst. 50.
The foregoing interpretations of the words nisi per legem terrae are corroborated by the following statutes, enacted in the next century after Magna Carta.
“That no man, from henceforth, shall be attached by any accusation, nor forejudged of life or limb, nor his land, tenements, goods, nor chattels, seized into the king’s hands, against the form of the Great Charter, and the law of the land.” - St. 5 Edward III., Ch. 9. (1331.)
“Whereas it is contained in the Great Charter of the franchises of England, that none shall be imprisoned, nor put out of his freehold, nor of his franchises, nor free customs, unless it be by the law of the land; it is accorded, assented, and established, that from henceforth none shall be taken by petition, or suggestion made to our lord the king, or to his council, unless it be by indictment of presentment of good and lawful people of the same neighborhood where such deeds be done in due manner, or by process made by writ original at the common law; nor that none be put out of his franchises, nor of his freehold, unless he be duly brough into answer, and forejudged of the same by the course of the law; and if anything be done against the same, it shall be redressed and holden for none.” - St. 25 Edward III., Ch. 4. (1350.)
“That no man, of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law.” - St. 28 Edward III., Ch. 3. (1354.)
“That no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land. And if anything from henceforth be done to the contrary, it shall be void in law, and holden for error.” - St. 42 Edward III., Ch. 3. (1368.)
The foregoing interpretation of the words nisi per legem terrae - that is, by due process of law - including indictment, &c., has been adopted as the true one by modern writers and courts; as, for example, by Kent, (2 Comm. 13,) Story, (3 Comm. 661,) and Supreme Court of New York, (19 Wendell, 676; 4 Hill, 146.)
The fifth amendment to the constitution of the United States seems to have been framed on the same idea, inasmuch as it provides that “no person shall be deprived of life, liberty, or property, without due process of law.” *

*Coke, in his exposition of the words legem terrae, gives quite in detail the principles of the common law governing arrests; and takes it for granted that the words “nisi per legem terrae” are applicable to arrests, as well as to the indictment, &c. - 2 Inst., 51, 52.
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https://docs.google.com/document/d/1jcshWyNQn6nMA5Udvo2U_WODy62YaqXxbVjW-vAFRVE/edit


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