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Joe Kelley

Joined: Mon Nov 21st, 2005
Location: California USA
Posts: 6408

It was a principle of the Common Law, as it is of the law of nature, and of common sense, that no man can be taxed without his personal consent. The Common Law knew nothing of that system, which now prevails in England, of assuming a man’s own consent to be taxed, because some pretended representative, whom he never authorized to act for him, has taken it upon himself to consent that he may be taxed. That is one of the many frauds on the Common Law, and the English constitution, which have been introduced since Magna Carta. Having finally established itself in England, it has been stupidly and servilely copied and submitted to in the United States.

If the trial by jury were reëstablished, the Common Law principle of taxation would be reëstablished with it; for it is not to be supposed that juries would enforce a tax upon an individual which he had never agreed to pay. Taxation without consent is as plainly robbery, when enforced against one man, as when enforced against millions; and it is not to be imagined that juries could be blind to so self-evident a principle. Taking a man’s money without his consent, is also as much robbery, when it is done by millions of men, acting in concert, and calling themselves a government, as when it is done by a single individual, acting on his own responsibility, and calling himself a highwayman. Neither the numbers engaged in the act, nor the different characters they assume as a cover for the act, alter the nature of the act itself.

If the government can take a man’s money without his consent, there is no limit to the additional tyranny it may practise upon him; for, with his money, it can hire soldiers to stand over him, keep him in subjection, plunder him at discretion, and kill him if he resists. And governments always will do this, as they everywhere and always have done it, except where the Common Law principle has been established. It is therefore a first principle, a very sine qua non [essential] of political freedom, that a man can be taxed only by his personal consent. And the establishment of this principle, with trial by jury, insures freedom of course; because: 1. No man would pay his money unless he had first contracted for such a government as he was willing to support; and, 2. Unless the government then kept itself within the terms of its contract, juries would not enforce the payment of the tax. Besides, the agreement to be taxed would probably be entered into but for a year at a time. If, in that year, the government proved itself either inefficient or tyrannical, to any serious degree, the contract would not be renewed. The dissatisfied parties, if sufficiently numerous for a new organization, would form themselves into a separate association for mutual protection. If not sufficiently numerous for that purpose, those who were conscientious would forego all governmental protection, rather than contribute to the support of a government which they deemed unjust.

All legitimate government is a mutual insurance company, voluntarily agreed upon by the parties to it, for the protection of their rights against wrong-doers. In its voluntary character it is precisely similar to an association for mutual protection against fire or shipwreck. Before a man will join an association for these latter purposes, and pay the premium for being insured, he will, if he be a man of sense, look at the articles of the association; see what the company promises to do; what it is likely to do; and what are the rates of insurance. If he be satisfied on all these points, he will become a member, pay his premium for a year, and then hold the company to its contract. If the conduct of the company prove unsatisfactory, he will let his policy expire at the end of the year for which he has paid; will decline to pay any further premiums, and either seek insurance elsewhere, or take his own risk without any insurance. And as men act in the insurance of their ships and dwellings, they would act in the insurance of their properties, liberties and lives, in the political association, or government.

The political insurance company, or government, have no more right, in nature or reason, to assume a man’s consent to be protected by them, and to be taxed for that protection, when he has given no actual consent, than a fire or marine insurance company have to assume a man’s consent to be protected by them, and to pay the premium, when his actual consent has never been given. To take a man’s property without his consent is robbery; and to assume his consent, where no actual consent is given, makes the taking none the less robbery. If it did, the highwayman has the same right to assume a man’s consent to part with his purse, that any other man, or body of men, can have. And his assumption would afford as much moral justification for his robbery as does a like assumption, on the part of the government, for taking a man’s property without his consent. The government’s pretence of protecting him, as an equivalent for the taxation, affords no justification. It is for himself to decide whether he desires such protection as the government offers him. If he do not desire it, or do not bargain for it, the government has no more right than any other insurance company to impose it upon him, or make him pay for it.

Trial by the country, and no taxation without consent, were the two pillars of English liberty, (when England had any liberty,) and the first principles of the Common Law. They mutually sustain each other; and neither can stand without the other. Without both, no people have any guaranty for their freedom; with both, no people can be otherwise than free. *

By what force, fraud, and conspiracy, on the part of kings, nobles, and “a few wealthy freeholders,” these pillars have been prostrated in England, it is designed to show more fully in the next volume, if it should be necessary.

* Trial by the country, and no taxation without consent, mutually sustain each other, and can be sustained only by each other, for these reasons: 1. Juries would refuse to enforce a tax against a man who had never agreed to pay it. They would also protect men in forcibly resisting the collection of taxes to which they had never consented. Otherwise the jurors would authorize the government to tax themselves without their consent,—a thing which no jury would be likely to do. In these two ways, then, trial by the country would sustain the principle of no taxation without consent. 2. On the other hand, the principle of no taxation without consent would sustain the trial by the country, because men in general would not consent to be taxed for the support of a government under which trial by the country was not secured. Thus these two principles mutually sustain each other.

But, if either of these principles were broken down, the other would fall with it, and for these reasons: 1. If trial by the country were broken down, the principle of no taxation without consent would fall with it, because the government would then be able to tax the people without their consent, inasmuch as the legal tribunals would be mere tools of the government, and would enforce such taxation, and punish men for resisting such taxation, as the government ordered. 2. On the other hand, if the principle of no taxation without consent were broken down, trial by the country would fall with it, because the government, if it could tax people without their consent, would, of course, take enough of their money to enable it to employ all the force necessary for sustaining its own tribunals, (in the place of Juries,) and carrying their decrees into execution.

It was a principle of the Common Law, as it is of the law of nature, and of common sense, that no man can be taxed without his personal consent. The Common Law knew nothing of that system, which now prevails in England, of assuming a man’s own consent to be taxed, because some pretended representative, whom he never authorized to act for him, has taken it upon himself to consent that he may be taxed. That is one of the many frauds on the Common Law, and the English constitution, which have been introduced since Magna Carta. Having finally established itself in England, it has been stupidly and servilely copied and submitted to in the United States.

On government by consent and taxation is this:

Reference link 1:

Reference link 2:
To the officers and soldiers in the service of the king of Great Britain, not subjects of the said king :

The citizens of the United States of America are engaged in a just and necessary war—a war in which they are not the only persons interested. They contend for the rights of human nature, and therefore merit the patronage and assistance of all mankind. Their success will secure a refuge from persecution and tyranny to those who wish to pursue the dictates of their own consciences, and to reap the fruits of their own industry.

That kind Providence, who from seeming evil often produces real good, in permitting us to be involved in this cruel war, and you to be compelled to aid our enemies in their vain attempts to enslave us, doubtless hath in view to establish perfect freedom in the new world, for those who are borne down by the oppression and tyranny of the old.

Considering, therefore, that you are reluctantly compelled to be instruments of avarice and ambition, we not only forgive the injuries which you have been constrained to offer us, but we hold out to your acceptance a participation of the privileges of free and independent states. Large and fertile tracts of country invite and will amply reward your industry.

Townships, from twenty to thirty thousand acres of land, shall be laid out and appropriated to such of you as will come over to us, in the following manner.

[Every captian who shall bring with himself forty men from the service of the enemy, before the first day of September, 1778, shall receive eight hundred acres of good woodland; also four oxen, one bull, three cows, and four hogs.2 If this captain is accompanied with his lieutenant, the lieutenant shall receive four hundred acres of woodland, also two oxen, two cows, and four hogs.
[Every sergeant who shall accompany his captain shall receive two hundred acres of land, two oxen, one bull, one cow, and three hogs.

[Every soldier who shall accompany his captain shall receive fifty acres of land, one ox, one cow, and two hogs.
[If a lieutenant, or other commissioned officer under the rank of a captain, shall bring off from his company twenty five men, he shall receive six hundred acres of land, two oxen, two cows, and four hogs.
[Every sergeant, or non-commissioned officer who shall bring off parties of men, shall receive an additional bounty of twenty acres of land for every man so brought off. And every soldier, who shall come off without a commissioned or non-commissioned officer, shall receive fifty acres of land; and if he brings off his arms and accoutrements, an additional bounty of twenty dollars.

Both Officers and Soldiers who shall come off together, shall be at Liberty either to separate themselves, or to unite for the purpose of affording to each other Mutual Succor in the Establishments they make, and to form themselves into Townships after the Model of many German Settlements in various Parts of these States, which Exhibit an Example of that Happiness which is now offered to those who are wise Enough to accept of it.

[Such officers and soldiers shall be at Liberty immediately to employ themselves in the settlement of their farms, without being obliged to do any military duty;2 and they shall receive rations in proportion to their rank for the space of six weeks.3

[The stock hereby offered shall be given to such officers and soldiers as shall actually settle on the lands respectively granted to them.4

Such of the officers and non-commissioned officers as choose to enter into the military line, shall receive an additional rank in detached corps, which shall be formed of native Germans of those who now reside in America; which corps shall not be employed but with their own consent in any other service than that of guards at a distance from the enemy, or in garrison upon the western frontier. 1

Such of you as are skilled in manufactures, over and above these lands and other articles, will find riches in prosecuting your occupations, the necessaries of life being very cheap in proportion to the price of manufactures, and the demand for them is so great, that every mechanick will find full employment. Some of you have had an opportunity of observing the truth of these assertions, and will doubtless inform their countrymen and acquaintance of these facts.

We have hitherto met you in the field of battle, with hostile minds, urged on by the great principle of self-defense; yet in those instances, where the fortune of war hath delivered any of your countrymen into our hands, we appeal to them that our enmity hath ceased the moment they were disarmed; and we have treated them more like citizens than prisoners of war. We now address you as part of the great family of mankind, whose freedom and happiness we most earnestly wish to promote and establish.

Distain, then, to continue the instruments of frantick ambition and lawless power. Fee the dignity and importance of your nature. Rise to the rank of free citizens of free states. Desist from the vain attempt to ravage and depopulate a country you cannot subdue, and accept from our munificence what can never be obtained from our fears. We are willing to receive you with open arms into the bosom of our country. Come, then, and partake of the blessings we tender to you in sincerity of heart.

In the name of these sovereign, free, and independent states we promise and engage to you that great privilege of man, the free and uninterrupted exercise of your religion, complete protection of your persons from injury, the peaceable possessions of the fruits of your honest industry, the absolute property in the soil granted to you to defend, unless you shall otherwise dispose of it, to your children and your children's children for ever.1

Resolved, That it be recommended to the several states, who have vacant lands, to lay off with as much expedition as possible, a sufficient quantity of lands to answer the purposes expressed in the forgoing address; for which lands no charge is to be made against the United States.1

the absolute property in the soil granted to you to defend

An Essay on the Trial by Jury (Lysander Spooner) Footnote 4

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 was 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 Age, 240-2.

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.

Elliot's Debates Volume I (Congressional Record First Congress)

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:

An Essay on the Trial by Jury
Lysander Spooner
The History of Magna Carta

The king was, therefore, constitutionally the government; and the only legal limitation upon his power seems to have been simply theCommon 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.

It was under these circumstances, that the Great Charter of English Liberties was granted. The barons of England, sustained by the common people, having their king in their power, compelled him, as the price of his throne, to pledge himself that he would punish no freeman for a violation of any of his laws, unless with the consent of the peers—that is, the equals—of the accused.

punish no freeman for a violation of any of his laws, unless with the consent of the peers

The question here arises, Whether the barons and people intended that those peers (the jury) should be mere puppets in the hands of the king, exercising no opinion of their own as to the intrinsic merits of the accusations they should try, or the justice of the laws they should be called on to enforce? Whether those haughty and victorious barons, when they had their tyrant king at their feet, gave back to him his throne, with full power to enact any tyrannical laws he might please, reserving only to a jury (“the country”) the contemptible and servile privilege of ascertaining, (under the dictation of the king, or his judges, as to the laws of evidence), the simple fact whether those laws had been transgressed? Was this the only restraint, which, when they had all power in their hands, they placed upon the tyranny of a king, whose oppressions they had risen in arms to resist? Was it to obtain such a charter as that, that the whole nation had united, as it were, like one man, against their king? Was it on such a charter that they intended to rely, for all future time, for the security of their liberties? No. They were engaged in no such senseless work as that. On the contrary, when they required him to renounce forever the power to punish any freeman, unless by the consent of his peers, they intended those peers should judge of, and try, the whole case on its merits, independently of all arbitrary legislation, or judicial authority, on the part of the king. In this way they took the liberties of each individual—and thus the liberties of the whole people—entirely out of the hands of the king, and out of the power of his laws, and placed them in the keeping of the people themselves. And this it was that made the trial by jury the palladium of their liberties.

In this way they took the liberties of each individual—and thus the liberties of the whole people—entirely out of the hands of the king, and out of the power of his laws, and placed them in the keeping of the people themselves.

Footnote concerning Magna Carta:

It is plain that the king and all his partisans looked upon the charter as utterly prostrating the king’s legislative supremacy before the discretion of juries. When the schedule of liberties demanded by the barons was shown to him, (of which the trial by jury was the most important, because it was the only one that protected all the rest,) “the king, falling into a violent passion, asked, Why the barons did not with these exactions demand his kingdom?* *and with a solemn oath protested, that he would never grant such liberties as would make himself a slave.” * * But afterwards, “seeing himself deserted, and fearing they would seize his castles, he sent the Earl of Pembroke and other faithful messengers to them, to let them know he would grant them the laws and liberties they desired.” * * But after the charter had been granted, “the king’s mercenary soldiers, desiring war more than peace, were by their leaders continually whispering in his ears,that he was now no longer king, but the scorn of other princes; and that it was more eligible to be no king, than such a one as he.” * * He applied “to the Pope, that he might by his apostolic authority make void what the barons had done. * * At Rome he met with what success he could desire, where all the transactions with the barons were fully represented to the Pope, and the Charter of Liberties shown to him, in writing; which, when be had carefully perused, he, with a furious look, cried out, What! Do the barons of England endeavor to dethrone a king, who has taken upon him the Holy Cross, and is under the protection of the Apostolic See; and would they force him to transfer the dominions of the Roman Church to others? By St. Peter, this injury must not pass unpunished. Then debating the matter with the cardinals, he, by a definitive sentence, damned and cassated forever the Charter of Liberties, and sent the king a bull containing that sentence at large.”—Echard’s History of England,p. 106-7.

These things show that the nature and effect of the charter were well understood by the king and his friends; that they all agreed that he was effectually stripped of power. Yet the legislative power had not been taken from him; but only the power to enforce his laws, unless juries should freely consent to their enforcement.

Yet the legislative power had not been taken from him; but only the power to enforce his laws, unless juries should freely consent to their enforcement.

Joe Kelley

Joined: Mon Nov 21st, 2005
Location: California USA
Posts: 6408
By what power does an individual, or a group of individuals working cooperatively to exercise that power, nullify voluntary association in any form, including the form known as trial by jury, or trial by the country?


The papal bull annulling Magna Carta

We refuse to overlook such shameless presumption which dishonours the Apostolic See, injures the king's right, shames the English nation, and endangers the crusade... on behalf of Almighty God, Father, Son and Holy Ghost, and by the authority of Saints Peter and Paul His apostles, [we] utterly reject and condemn this settlement. Under threat of excommunication we order that the king should not dare to observe and the barons and their associates should not insist on it being observed. The charter with all its undertakings and guarantees we declare to be null and void of all validity forever. [2]

2. Translation of the bull of Innocent III, Etsi karissimus, 24 August 1215. T.B. Costain, Conquering Family: A History of the Plantagenets, 1962, p. 60. 

NOTE here how someone might assume that someone calling themselves King John, or someone calling themselves Baron, or someone calling themselves Pope, can dictate, and enforce said dictate, anything at all, including involuntary association, which is also called slavery.

He, she, or they claim that you, you, and you, all of you, are property of he, she, or they.

If that is assumed to be true, then what else follows that assumption?

If, on the other hand, people refuse to blindly obey such dictates, and instead of blind obedience to such falsehoods, people, on their own, figure out how to maintain voluntary association in time and in place. If that is what people do, instead of blind obedience to falsehood without question, if people instead of servile obedience are people inspired to defend each other voluntarily, what would people dream up as a means to that end. If you want to reinvent the wheel, then perhaps you may do so, but there is, in the history of people, a process that worked to reach the goal of voluntary association for mutual defense. It was common knowledge, and it was called the common law.

An Essay on the Trial by Jury
Lysander Spooner
History of Magna Carta

This charter, in its most essential features, and without any abatement as to the trial by jury, has since been confirmed more than thirty times; and the people of England have always had a traditionary idea that it was of some value as a guaranty against oppression. Yet that idea has been an entire delusion, unless the jury have had the right to judge of the justice of the laws they were called on to enforce.

Joe Kelley

Joined: Mon Nov 21st, 2005
Location: California USA
Posts: 6408
In the Language of Magna Carta is an important reference as to the process that was labelled "construction" during the American Revolution.

Example of Construction:
The Power Of The Judiciary (Part 2)
From the 11th essay of "Brutus" taken from The New-York Journal, January 31, 1788

What latitude of construction this clause should receive, it is not easy to say. At first view, one would suppose, that it meant no more than this, that the courts under the general government should exercise, not only the powers of courts of law, but also that of courts of equity, in the manner in which those powers are usually exercised in the different states. But this cannot be the meaning, because the next clause authorises the courts to take cognizance of all cases in law and equity arising under the laws of the United States; this last article, I conceive, conveys as much power to the general judicial as any of the state courts possess.

The cases arising under the constitution must be different from those arising under the laws, or else the two clauses mean exactly the same thing. The cases arising under the constitution must include such, as bring into question its meaning, and will require an explanation of the nature and extent of the powers of the different departments under it. This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or in equity.

lst. They are authorised to determine all questions that may arise upon the meaning of the constitution in law. This article vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law. These rules give a certain degree of latitude of explanation. According to this mode of construction, the courts are to give such meaning to the constitution as comports best with the common, and generally received acceptation of the words in which it is expressed, regarding their ordinary and popular use, rather than their grammatical propriety. Where words are dubious, they will be explained by the context. The end of the clause will be attended to, and the words will be understood, as having a view to it; and the words will not be so understood as to bear no meaning or a very absurd one.

This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or in equity.

An Essay on the Trial by Jury
Lysander Spooner
Language of Magna Carta

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 ajudicialpower, by the king, or his judges, which is nowhere given them.

The whole rendering is a sheer fabrication. And the whole object of it is to give color for the exercise of ajudicialpower, by the king, or his judges, which is nowhere given them.

Joe Kelley

Joined: Mon Nov 21st, 2005
Location: California USA
Posts: 6408

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?

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.

"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.


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.

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


...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.

Joe Kelley

Joined: Mon Nov 21st, 2005
Location: California USA
Posts: 6408
1. State v. Robinson, 145 Me 77, 72 Alt. 2d 260, 262 (1950)
2. State v. Gum, 68 W. Va. 105
3. State v. Rouseau, 40 Wash. 2d. 92, 241, 242 P.2d 447, 449 (1952)
4. State v. Mobley, 240 N.C. 446, 83 S.E., 2d 100, 102 (1954)
5. Wilkinson v. State, 143 Miss. 324, 108 So. 711
6. Thomas v. State, 91 Ga. 204, 18 SE 305
7. Presley v. State, 75 Fla. 434, 78 So. 523
8. Burkhardt v. State, 83 Tex Crim 228, 202 S.W. 513
9. Mullis v. State, 196 Ga. 569, 27 SE 2d 91 (1943)
10. Owen v. State, 58 Tex Crim 261, 125 S.W. 405 (1910)
11. Franklin,118 Ga. 860, 45 S.E. 698 (1903)
12. Graham v. State, 143 Ga. 440 85 S.E. 328, 331
13. City of Columbus v. Holmes, 152 N.W. 2d, 301, 306 (Ohio App. 1058)
14. Adams v. State, 121 Ga 163, 48 S.E. 910 (1904)
15. Robertson v. State, 198 S. W2d 633, 635-36 Tenn. (1947)
16. Roberts v. Dean, 187 So. 571, 575 Fla. 1939
17. The State of Connecticut against Leach, 7 Conn, Rep. 452 (1829)
18. Housh v. The People, 75 ILL Rep. 487, 491 (1874)
19. Plummer v. The State, 135 Ind. 308, 313, 334 N.E. 968 (1893)
20. John Bad Elk v. U.S. 177 U.S. 529 (1899)
21. People v. Hevern, 127 Misc. Rep. 141, 215 NY Supp 412
22. U.S. v. Cerciello, 86 NJL 309, 90 Atl.1112, (1914)
23. U.S. v. Kelly, 51 Fed 2d 263 (1931)
24. Bednarik v. Bednarik, 16 A 2d, 80, 90, 18 NJ Misc. 633 (1948)
25. State v. Height, 117 Iowa 650, 91 NW 935
26. People v. Corder, 244 Mich. 274, 221 NW 309
27. Boyd v. U.S., 116 U.S.


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