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 Posted: Thu May 11th, 2017 05:40 pm
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Joe Kelley

 

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Embattled Bench: The Pennsylvania Supreme Court and the Forging of a the Forging of a Democratic Society (1684 - 1809)
By Gail Stuart Rowe

Justices of the Peace (page 25)
Common Law "forms"
Double damages against the informer or prosecutor (page 21)
County courts (presumably common law) vs Appeals (page 25)

Page 26 Embattled Bench
Perhaps, after laying the ground work for a provincial court by including a reverence to one of The Great Law of December 1682, Penn became persuaded that his county courts would prove sufficient for most exigencies. He may have believed that he or his Council could handle the rare case that the county courts could not adjudicate. The surviving dockets of the region's county criminal courts to 1682 provide credible basis for such an assumption. 22

Page 28 Embattled Bench
"to try all Criminal & Titles of Land, and to be a court of Equity, [and] to decide all Differences
upon appeals from the County Courts."


Here now are references to county courts, economically handling most cases (trial by jury?), involving Justices of the Peace (See Thomas Jefferson Notes on Virginia electing Justices of the Peace by the people, and approved by the governor). Then there are equity courts, also known (labelled) as Chancellery Courts, and Exchequer Courts (summary justice?).

What is the following from page 22?

Penn believed that to employ common law forms to plague and to punish English citizens for failing to adhere to government imposed religious principles was to err in two respects. In the first place, it was patently unjust to harass citizens with laws they could not read and did not understand. He viewed his own 1670 arraignment as resting on an illegal indictment, maintaining that the indictment, founded as it was in the common law, was too vague, too little understood by the common citizenry to be just.

This is more evidence showing how common law (original and voluntary) had become Common Law (counterfeit and involuntary), with incremental moves from trial by jury toward plea bargaining, going from judge to judge to find a judge that will pardon an offender, when trial by jury (trial by the country) determined (the country determined) the law, the facts, and the punishment (typically a fine according to the Essay on The Trial by Jury by Lysander Spooner).

Page 21 Embattled Bench
The promise of Penn's novel court system appeared first in the 1682 "Laws agreed upon in England." [voluntary] There Penn proclaimed his intent to see that all courts were "open" and that justice would not "be sold, denied, or delayed." People "of all persuasions" were to be permitted to appear in court "according to their own manner" and to "plead their own cause themselves." All records, pleadings, and processes were to "be short and in English and in an ordinary and plain character, that they may be understood and justice speedily administered." Juries, "as near may be, peers or equals, and of the neighborhood," were to be guaranteed. Individuals "wrongfully imprisoned or prosecuted" were to receive "double damages against the informer or prosecutor." Prisons were to "be free, as to fees, food, and logging." Fines were to be "moderate."

Above, in just the Prologue of this work, is all the information required to understand how, and even why (motive), the voluntary association for mutual defense (law) is counterfeited from the original, moving from the original to the counterfeit, fraudulent, opposite of the original.

Note the original concept (principle) and then start listing the numbers of words (terms) that work against the original concept.

Original concept (principle) stated in words:

"In the first place, it was patently unjust to harass citizens with laws they could not read and did not understand."

Now a list of places for people to go as people seek defense against harm.

1. County courts (presumably common law trial by jury) the one place to go, in a county under rule of law, to seek remedy, restitution, redemption at law: justice (the 911 place)
2. Court of Oyer and Terminer.
3. Chancellery Courts
4. Supreme Courts
5. Circuit Courts
6. Provincial Courts
7. Equity Courts
8. Exchequer Courts
9. Nisi Prius Courts
10. Assizes Courts
11. Appellate Courts
12. Admiralty Courts
13. Maritime Courts
14. Provincial Bench
15. The Bar
16. Goale Delivery

The first court listed is assumed to be a court of conscience in trial by the country according to the common law whereby randomly selected people, representing the whole country as one, must unanimously decide law, fact, guilt, and punishment, or there is no power afforded to the government in that case involving that individual accused of that crime in that place, at that time. Appeal power, or no appeal power when the country, in trial by jury (original common law), determine judgment in the case according to the civil and criminal jurisdiction the people have naturally?

Page 28 Embattled Bench

The law gave it power "to try all Criminals & Titles of Land, and to be a court of Equity, [and] to decide all Differences upon appeals from the County Courts." it was to exercise original powers in cases of murder and treason, and (if the bill is to be taken literally) other criminal matters, as well. In addition to its mandate twice yearly Philadelphia sessions, its five justices or any two of them were to ride circuit twice each year in each county. It is not clear whether the court's circuit duties were to be carried out under the judges' commissions to the court, or also under commissions of oyer and terminer and nisi prius. Nor is it altogether clear whether the court was invested with nisi prius responsibilities beyond those of oyer and terminer. In England, to complete their circuit duties, judges carried more than their supreme court commissions. There practice armed judges on circuit with assize commissions, commissions of oyer and terminer, of general goal delivery, of the peace, a writ of admittance, a writ of si non omnes, and a writ of nisi prius.

The Motive?

Take (involuntary) wealth (power) from the slaves.

Or in the words in this Prologue:

Penn believed that to employ common law forms to plague and to punish English citizens for failing to adhere to [false, counterfeit, criminal] government imposed...

Si non omnes?
https://dictionary.thelaw.com/si-non-omnes/

A writ of association of justices whereby if all in commission cannot meet at the day assigned it is allowed that two or more may proceed with the business. If there be no inference which leads to a different result words are to be understood according to their proper meaning not in a grammatical, but in a popular and ordinary, sense.

https://en.wikipedia.org/wiki/Etiam_si_omnes,_ego_non
"Even if all others, not I".

Chapter 1
Uncertain Beginnings (1684- 1700)

And the author (for the first as far as my reading goes in this work) expresses his color (which side he is on: 1. Voluntary association for mutual defense, with trial by the country, trial by jury, for consent by the people, as people command a veto power over any so called law, including a tax law, 2. Involuntary association or organized crime under the color of law) on page 30.


"...an almost pathological sensitivity among Quakers regarding their rights..."

If the right of enforcing voluntary association for mutual defense is not secured peacefully (sensitivity regarding rights) all rights are in jeopardy, see the Essay on The Trial by Jury by Lysander Spooner, particularly the first chapter and the Appendix on Taxation.

So...how does sensitivity concerning peaceful life in liberty while criminals posing as "the government" (pathological liars, robbers, enslavers, torturers, murderers, and mass murderers, under the color of law) are working to take-over voluntary association: become pathological? It is, in the author's estimation, that it is a pathology when people want to make sure that the government remains consensual? Is there something about the Quakers that is non-consensual to begin with: pathological? They, as far as I have read, were refusing to resort to violence during the Revolutionary War, under threat of punishment in some cases, and they refused to resort to violence when violence was visited upon them personally: pacifists.

Page 30 Embattled Bench
These social, political, economic, and religious realities often provoked seemingly mindless charges and countercharges against individuals and institutions that stun and perplex readers of the twentieth century.

Who was in power to discriminate between a reasonable (actionable) charge (accusation) and an unreasonable charge in any case, anywhere, in any place: particularly colonies that would become states in America: before the criminals took over in 1789?

Jefferson's Notes on Virginia suggest that those in power were the Justices of the Peace, or Magistrates, elected by the people themselves, which were the people from which a common law Grand Jury was formed.

Page 31 Embattled Bench
Understandably, the Provincial Court experienced difficulties from the first. As early as December 1684 Chief Justice Nicholas More informed Penn that "we have had a Circuit in all the Six County's here there was little business to do, partly throw [sic] the Negligence of our sheriff who left a felon to run away, and some Magistrates who Make up business that should not be put up."

See Lysander Spooner Essay on The Trial by Jury concerning "our" (The King's owned) sheriff (involuntary association "tax" collector agent) as opposed to the original concept of a common law sheriff as one of the people, representing the people, not the government, as part of a voluntary, consensual, agreement. Also, whose "magistrates" are in charge of allowing, making-up, or disallowing some accusations to cause an action such as a presentment or bill, leading to a trial by jury?

Page 31 Embattled Bench
Several difficulties experienced by the early court flowed naturally from the novelty of its charge, the immaturity of its staff, and the embryonic nature of Pennsylvania society. The most likely candidates for the superior bench, for example, were to be found among Philadelphia's merchant elite, and it was from their ranks that the initial appointments came. Wood, Turner, and Welsh all fit this description. Only John Ackley did not. Another merchant, the Delawarean William Clarke, came to the bench when Welsh died in the summer of 1684. These practical and very ambitious businessmen were put off not only by the inadequate compensation attached to the service on the Provincial Court, but also by the absence of any clearly delineated system of appropriating monies for judicial salaries. They also often resented court obligations that took them away from their warehouses and counting rooms.

In Virginia, according to Thomas Jefferson, the Magistrates (Justices of the Peace) were elected by the people themselves, and they worked without pay, so as to remove the "interest" in collecting "donations" from the people who were not the elite merchants.

More's tenure as chief justice was brief. He faced impeachment proceedings less than a year after he was commissioned when ten charges, including "several high Crimes and Misdemeanors," were leveled against him.

And

Whether a formal trial and conviction took place is not clear...

Who has the power to accuse? Who has the power to move an accusation along, so as to then put the accused on his trial? Who has the power to delay, or to reject the process, and avoid being held accountable in trial by the country?

Earlier in this narrative it was repeated that the people were generally peaceful, and there was little for a judge to do, other than accusations of wrongdoing concerning those people, and those groups, fighting each other over their "turf" which can be understood as the people as a whole, whereby the people as a whole are subject to the demands made upon them by the class of people (division of the whole) calling themselves the government: including Penn.

On four points the following from Jefferson is offered:


The state is divided into counties. In every county are appointed magistrates, called justices of the peace, usually from eight to thirty or forty in number, in proportion to the size of the county, of the most discreet and honest inhabitants. They are nominated by their fellows, but commissioned by the governor, and act without reward. These magistrates have jurisdiction both criminal and civil. If the question before them be a question of law only, they decide on it themselves: but if it be of fact, or of fact and law combined, it must be referred to a jury. In the latter case, of a combination of law and fact, it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right, which is casual only, is less dangerous to the state, and less afflicting to the loser, than one which makes part of a regular and uniform system. In truth, it is better to toss up cross and pile in a cause, than to refer it to a judge whose mind is warped by any motive whatever, in that particular case. But the common sense of twelve honest men gives still a better chance of just decision, than the hazard of cross and pile. These judges execute their process by the sheriff or coroner of the county, or by constables of their own appointment. If any free person commit an offence against the commonwealth, if it be below the degree of felony, he is bound by a justice to appear before their court, to answer it on indictment or information. If it amount to felony, he is committed to jail, a court of these justices is called; if they on examination think him guilty, they send him to the jail of the general court, before which court he is to be tried first by a grand jury of 24, of whom 13 must concur in opinion: if they find him guilty, he is then tried by a jury of 12 men of the county where the offence was committed, and by their verdict, which must be unanimous, he is acquitted or condemned without appeal.

Point 1:
Nominated by their fellows.

Point 2:
Act without reward.

Point 3:
Most discrete and honest inhabitants

Point 4:
Jurisdiction both civil and criminal.

Point 5:
If the judge be suspected of bias (by the jury) the jury decide both law and fact; especially in cases involving the public liberty (which is any case where the government, or government agents, are defendant/accused), and 12 jurors (randomly selected representatives of the country in trial by the country) offer a more likely chance of just decision, judgment, of law, and of fact, rather than an interested (or disinterested, magistrate, acting without reward) acting with summary justice (equity, exchequer, chancellery, nisi prius) power.

Point 6:
Grand Jury powers versus Petit Jury Powers (double jeopardy) and who is given the power to accept or reject an accusation by anyone against anyone?

Point 7:
Appeal power or no Appeal Power?

Back to Page 35 Embattled Bench
The eagerness of the court to accept appeals from the county courts following 1686, and to reverse judgments arising in those tribunals, elicited additional complaints. Frustrated at having verdicts overturned by the higher court, judges in the lower courts embraced a policy of routinely refusing to permit appeals.

If the government has already been taken over by criminals, having already made taxation (extortion) involuntary (robbery), then the so called higher courts have access to more slaves, and are therefore extorting more power, and those so called higher courts can afford to offer convicts (or innocent people wrongly convicted) another chance at tossing the coin.

Page 38 Embattled Bench

Not surprisingly these factors led to overblown private and public accusations that the court was a largely ineffective judicial mechanism.

What constitutes a common law lawful accusation, one in which the accuser is subject to laws governing false accusations? Affidavit filed in person at a court of record, so as to place the accusation on the public record?

What constitutes a lawful accusation other than a (original not counterfeit) common law accusation? A demand b someone for a Sherriff on the take to actually do something about the accused who confesses his criminality on the public record, demanding that the Sheriff of the county stop hiding under his desk?

If a common law affidavit is placed on the public record in a court of record, and nothing is done about it, does that not constitute material omission, and mixed war, for failure to provide equal protection under the law?

Page 39 Embattled Bench

Blackwell made it excruciatingly plain to Penn that he was no admirer of Pennsylvania courts or judges. "in as much as the duty incumbent on Justices by Law & Commission is not only that of Ordinary Justices of the peace (as in England), but also of judges of Assize, Oyer terminer & Goale delivery (wherein truly few of them are skilld or fitt to be exercised)," he wrong Penn, "I can not learne that there are so many persons of sober & humane conversations as will make a quorum." He concluded "that the constitution of creating Justices of the peace into such Courts & with such powers (as are needful) is incompetent with the Education this Province is like to give for some time to come in most of the Countyes if not all." He proposed a new Provincial Court with special powers whereby "two or there Grave & prudent pious persons" would "go their Circuits at least twice a yeare, & taking those occasions of the greatest concourse of people to inspect the manners Conversations & professions of the Looser sort principally but punishing also all evill & corrupt communication even in the justices themselves whom they shall finde faulty."36

Goale delivery

What is that? I found very little information on Goale delivery.

Here:
https://tinyurl.com/lqvq52g
Henry III. to James II. A.D. 1235-6 - 1685, Volume 1

...the prisoner is delivered to a constable or other inferiour officer to carry such prisoner to some common goale [or where any person is sent by order of any judge of assize or justice of the peace to any common worke-house or house of correction or where the prisoner is removed from one prison or place to another within the same county in order to his or her tryall or discharge is due course of law or in case of suddaine fire or infection or other necessity 1]...

Common goale

https://tinyurl.com/ny9ogrr

...And all Malefactors or Disturbers of ye Peace, or Other offenders or Misdemeanors who shall be Appointed within the said Citty or Liberties thereof, May Send & Committ or Cause to be Sent and Committed to the Common Goale of ye Said Citty there to Remaine And be Kept In Safe Custody by ye Keeper of ye said Goale or his Deputy for the time being until such offender & offenders shall Lawfully be Delivered thence.

A place where people convicted by summary justice are kept at a place funded by extortion payments paid by the victims of summary justice? In the counties where "circuit judges" are not sent (to collect extortion fees, or make sure collections of extortion fees are maintained), the local forms of law had managed to keep the peace with what; trial by the country according to the common law original, not counterfeit?

Why is the word goale almost absent on a Google Search, or Law Definition Dictionary service?

Page 39 Embattled Bench

To Anglicans the whole concept of Quaker order appeareed to be dangerously permissive. Friends, they protested, were almost congenitally unable to impose severe penalties, including capital punishment. Anglicans insisted that Quaker abhorrence of the death penalty or, for that matter, their disapproval of corporal punishment generally, rendered them unqualified for such responsibilities. Moreover, their refusal to take oaths often brought courts to a standstill. Quaker insistence on an affirmation rather than an oath prepatory to their participation in court created numerous quarrels and confusion in the seventeenth century and led to occasional judicial paralysis in the eighteenth century. Anglicans grumbled that Quaker justices who refused either to take the traditional oath or to hold defendants, witnesses, and jurors to it, could not legally administer justice. Thus, they argued, convictions by Quaker juries and sentences imposed by Quaker justices were null and void.

See Lysander Spooner Essay on The Trial by Jury and find no need for a goale, no prison "system" (run by criminals punishing those who fail to pay the extortion fees), because juries in common law (original) typically asked for a fine to be paid in order for the accused, and found guilty individual, to redeem him, or her, self. If the voluntarily associated guilty individual chooses not to pay the fine, said individual was voluntarily placing him, or herself, outside of the law, and anyone caught injuring the out-law was not guilty of a crime.

Outside the law, there is no sanctuary. Inside the law, there is sanctuary: your choice, and there are no involuntary taxes: see again Essay on The Trial by Jury in the Appendix section under Taxation.

The Google version of this book Embattled Bench is incomplete. I may find a way to get a copy.