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| Posted: Wed Sep 13th, 2017 01:39 pm |
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41st Post |
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Joe Kelley Administrator
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http://teachingamericanhistory.org/ratification/elliot/vol1/approaches/ 14th October, 1775 ___________________________ On the same day, Congress unanimously resolved, “that the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law.” They further resolved, “that they were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they have, by experience, respectively found to be applicable to their several and local circumstances.” They also resolved, that their ancestors, at the time of their immigration, were “entitled to all the rights, liberties, and immunities, of free and natural-born subjects within the realms of England.” ____________________________________ http://avalon.law.yale.edu/18th_century/jeffvir.asp _________________________________________ Laws 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. _____________________________________________ https://supreme.justia.com/cases/federal/us/1/236/ ___________________________________________ 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 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. __________________________________________________ http://teachingamericanhistory.org/ratification/elliot/vol1/approaches/ ____________________________________________ 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: June 8, 1776 _________________________________ https://founders.archives.gov/documents/Jefferson/01-01-02-0160
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| Posted: Wed Sep 13th, 2017 05:53 pm |
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42nd Post |
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Joe Kelley Administrator
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http://unionstatesassembly.info/journals/summaries/A%20Brief%20History%20of%20the%20ONLY%20Lawful%20Government.pdf Quote_________________________________ Here are the exact words for the approval of the Convention proposal (Constitution for the United States): “Resolved, That the proceeding Constitution be laid before the United States in Congress assembled, that is should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification; and that each Convention assenting to, and ratifying the Same, should give Notice thereof to the United States in Congress assembled.” This violates existing federal law (the Articles of Confederation and perpetual Union) in terms of how changes to the law form are to take place. Here, the Convention tells Congress to just look at (“be laid before”) the Constitution for the United States and then pass it on to the states. Article 13 of the Articles of Confederation and perpetual Union addresses changes to the law form and says “Every state shall abide by the determinations of the united states in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.” (Emphasis added) Notice the difference? With existing law, Congress FIRST has to agree to any proposed changes/alterations and then send it to the States for their approval. The recommendation from the Federal Convention bypasses Congress’s approval process, thus a violation of existing federal law. By violating federal law, the resolution of February 21, agreeing to only have the Federal Convention for the sole and express purpose of making alterations to the Articles of Confederation and perpetual Union (existing law) and NOT for a new type of government, and then the Federal Convention delegates propose to break federal law again by NOT abiding by Article 13 of the Articles of Confederation and perpetual Union by ignoring the approved process to change federal law. The “new and proposed” law form (Constitution for the United States) requires 2/3 majority to make changes or bring into execution the “new and proposed” law form, again violating existing law that requires a unanimous vote to make changes. Let’s look at the letter from Washington given to Congress. In the first paragraph is says “. . . a different organization.” The 2nd paragraph says “. . . give up a share of liberty . . . rights to be surrendered . . .” Clearly he is informing Congress that the proposed Constitution for the United States will not be pleasant to those states that want to retain their sovereignty, and the people that populate them. On September 27, 1787 Congress reads, for the first time, the proposals from the Federal Convention. Please read this passage from the Journals of the Continental Congress for this date carefully. These are the smoking guns of all smoking guns proving, once and for all, the unlawfulness, according to the law of the time, of the Constitution for the United States. Simply put, it was not brought forth and put into place according to the law of time, thereby making it 100% unlawful, meaningless, and irrelevant! (See Volume 33, pages 540-542). “On motion of Mr. [Edward] Carrington seconded by Mr. [William] Bingham the motion of Mr. [Abraham] Clark was postponed to take into consideration the following motion viz “Congress proceeded to the consideration of the Constitution for the United States by the late Convention held in the City of Philadelphia and thereupon resolved That Congress do agree thereto and that it be recommended to the legislatures of the several states to cause conventions to be held as speedily as may be to the end that the same may be adopted ratified and confirmed.” Yes, this is ACTUALLY stricken out in the Journals but still there to be able to be read. It clearly shows treason, and thus stricken out as if it never occurred. One can only conclude it is still in the Journals to provide remedy for those wishing to regain their freedom. What is treasonous about this? Simple, the fact the Congress took a vote to approve of the Constitution for the United States, clearly breaking federal law as Congress can ONLY deal with existing Federal law, the Articles of Confederation and perpetual Union, and not discuss any other law form. _____________________________________________ http://unionstatesassembly.info/journals/summaries/A%20Brief%20History%20of%20the%20ONLY%20Lawful%20Government.pdf
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| Posted: Fri Sep 15th, 2017 10:11 pm |
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43rd Post |
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Joe Kelley Administrator
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http://www.barefootsworld.net/antifederalist.html#afp41-43B "A federal, or rather a national city, ten miles square, containing a hundred square miles, is about four times as large as London; and for forts, magazines, arsenals, dock yards, and other needful buildings, congress may possess a number of places or towns in each state. It is true, congress cannot have them unless the state legislatures cede them; but when once ceded, they never can be recovered. And though the general temper of the legislatures may be averse to such cessions, yet many opportunities and advantages may be taken of particular times and circumstances of complying assemblies, and of particular parties, to obtain them. It is not improbable, that some considerable towns or places, in some intemperate moments, or influenced by anti-republican principles, will petition to be ceded for the purposes mentioned in the provision. There are men, and even towns, in the best republics, which are often fond of withdrawing from the government of them, whenever occasion shall present. The case is still stronger. If the provision in question holds out allurements to attempt to withdraw, the people of a state must ever be subject to state as well as federal taxes; but the federal city and places will be subject only to the latter, and to them by no fixed proportion. Nor of the taxes raised in them, can the separate states demand any account of congress. These doors opened for withdrawing from the state governments entirely, may, on other accounts, be very alluring and pleasing to those anti-republican men who prefer a place under the wings of courts. "If a federal town be necessary for the residence of congress and the public officers, it ought to be a small one, and the government of it fixed on republican and common law principles, carefully enumerated and established by the constitution. it is true, the states, when they shall cede places, may stipulate that the laws and government of congress in them shall always be formed on such principles. But it is easy to discern, that the stipulations of a state, or of the inhabitants of the place ceded, can be of but little avail against the power and gradual encroachments of the union. The principles ought to be established by the federal constitution, to which all states are parties; but in no event can there be any need of so large a city and places for forts, etc. , totally exempted from the laws and jurisdictions of the state governments. "If I understand the constitution, the laws of congress, constitutionally made, will have complete and supreme jurisdiction to all federal purposes, on every inch of ground in the United States, and exclusive jurisdiction on the high seas, and this by the highest authority, the consent of the people. Suppose ten acres at West Point shall be used as a fort of the union, or a sea port town as a dockyard: the laws of the union, in those places, respecting the navy, forces of the union, and all federal objects, must prevail, be noticed by all judges and officers, and executed accordingly. And I can discern no one reason for excluding from these places, the operation of state laws, as to mere state purpose for instance, for the collection of state taxes in them; recovering debts; deciding questions of property arising within them on state laws; punishing, by state laws, theft, trespasses, and offenses committed in them by mere citizens against the state law. "The city, and all the places in which the union shall have this exclusive jurisdiction, will be immediately under one entire government, that of the federal head, and be no part of any state, and consequently no part of the United States. The inhabitants of the federal city and places, will be as much exempt from the laws and control of the state governments, as the people of Canada or Nova Scotia will be. Neither the laws of the states respecting taxes, the militia, crimes of property, will extend to them; nor is there a single stipulation in the constitution, that the inhabitants of this city, and these places, shall be governed by laws founded on principles of freedom. All questions, civil and criminal, arising on the laws of these places, which must be the laws of congress, must be decided in the federal courts; and also, all questions that may, by such judicial fictions as these courts may consider reasonable, be supposed to arise within this city, or any of these places, may be brought into these courts. By a very common legal fiction, any personal contract may be supposed to have been made in any place. A contract made in Georgia may be supposed to have been made in the federal city; the courts will admit the fiction. . . . " Richard Henry Lee, 6th President of the United States of America in Congress Assembled, writing in opposition to the National (1789) Constitutional (criminal) usurpation by "legal fiction." https://teachingamericanhistory.org/library/document/federal-farmer-xviii/ Federal Farmer XVIII Richard Henry Lee, January 25, 1788
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| Posted: Sat Sep 16th, 2017 12:13 am |
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44th Post |
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Joe Kelley Administrator
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"In the Athenian state, as in any other, we can distinguish legislative, judicial, and executive functions. The Athenian legislative branch consisted of two bodies, a Council of 500 and an Assembly of 6000. At first glance, this system resembles the American bicameral legislature, with a small, select upper house and a larger, more popular lower house. But this appearance is deceptive. "To begin with, neither the Council nor the Assembly consisted of elected representatives. The members of the Council were selected not by election but by sortition — i.e., by lot. In other words, the 500 Councillors were selected randomly from the (male) citizen population. (And no Councillor could serve more than two terms.) The practice of selecting government officials randomly (and the Athenians developed some fairly sophisticated mechanical gadgets to ensure that the selection really was random, and to make cheating extremely difficult) is one of the most distinctive features of the Athenian constitution. We think of electoral politics as the hallmark of democracy; but elections were almost unknown at Athens, because they were considered paradigmatically anti-democratic. Proposals to replace sortition with election were always condemned as moves in the direction of oligarchy. "Why? Well, as the Athenians saw it, under an electoral system no one can obtain political office unless he is already famous: this gives prominent politicians an unfair advantage over the average person. Elections, they thought, favor those wealthy enough to bribe the voters, powerful enough to intimidate the voters, flashy enough to impress the voters, or clever enough to deceive the voters. The most influential political leaders were usually Horsemen anyway, thanks to their social prominence and the political following they could obtain by dispensing largesse among the masses. (One politician, Kimon, won the loyalty of the poor by leaving his fields and orchards unfenced, inviting anyone who was hungry to take whatever he needed.) If seats on the Council had been filled by popular vote, the Horsemen would have disproportionately dominated it — just as, today, Congress is dominated by those who can afford expensive campaigns, either through their own resources or through wealthy cronies. Or, to take a similar example, in the United States women have had the vote for over half a century, and yet, despite being a majority of the population, they represent only a tiny minority of elected officials. Obviously, the persistence of male dominance in the economic and social sphere has translated into women mostly voting for male candidates. The Athenians guessed, probably rightly, that the analogous prestige of the upper classes would lead to commoners mostly voting for aristocrats. "That is why the Athenians saw elections as an oligarchical rather than a democratic phenomenon. Above all, the Athenians feared the prospect of government officials forming a privileged class with separate interests of their own. Through reliance on sortition, random selection by lot, the Council could be guaranteed to represent a fair cross-section of the Athenian people — a kind of proportional representation, as it were. Random selection ensured that those selected would be representatives of the people as a whole, whereas selection by vote made those selected into mere representatives of the majority." http://www.freenation.org/a/f41l1.html
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| Posted: Sun Sep 24th, 2017 06:07 am |
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45th Post |
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Joe Kelley Administrator
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http://www.barefootsworld.net/antifederalist.html#afp03 http://resources.utulsa.edu/law/classes/rice/Constitutional/AntiFederalist/03.htm No. 3 - New Constitution Creates A National Government; Will Not Abate Foreign Influence; Dangers Of Civil War And Despotism ___________________________________ Like the nome de plume "Publius" used by pro Constitution writers in the Federalist Papers, several Anti-Federalists signed their writings "A FARMER. " While the occupation of the writers may not have coincided with the name given, the arguments against consolidating power in the hands of a central government were widely read. The following was published in the Maryland Gazette and Baltimore Advertiser, March 7, 1788. The true identity of the author is unknown. _____________________________________ There are but two modes by which men are connected in society, the one which operates on individuals, this always has been, and ought still to be called, national government; the other which binds States and governments together (not corporations, for there is no considerable nation on earth, despotic, monarchical, or republican, that does not contain many subordinate corporations with various constitutions) this last has heretofore been denominated a league or confederacy. The term federalists is therefore improperly applied to themselves, by the friends and supporters of the proposed constitution. This abuse of language does not help the cause; every degree of imposition serves only to irritate, but can never convince. They are national men, and their opponents, or at least a great majority of them, are federal, in the only true and strict sense of the word. Whether any form of national government is preferable for the Americans, to a league or confederacy, is a previous question we must first make up our minds upon. . . . That a national government will add to the dignity and increase the splendor of the United States abroad, can admit of no doubt: it is essentially requisite for both. That it will render government, and officers of government, more dignified at home is equally certain. That these objects are more suited to the manners, if not [the] genius and disposition of our people is, I fear, also true. That it is requisite in order to keep us at peace among ourselves, is doubtful. That it is necessary, to prevent foreigners from dividing us, or interfering in our government, I deny positively; and, after all, I have strong doubts whether all its advantages are not more specious than solid. We are vain, like other nations. We wish to make a noise in the world; and feel hurt that Europeans are not so attentive to America in peace, as they were to America in war. We are also, no doubt, desirous of cutting a figure in history. Should we not reflect, that quiet is happiness? That content and pomp are incompatible? I have either read or heard this truth, which the Americans should never forget: That the silence of historians is the surest record of the happiness of a people. The Swiss have been four hundred years the envy of mankind, and there is yet scarcely an history of their nation. What is history, but a disgusting and painful detail of the butcheries of conquerors, and the woeful calamities of the conquered? Many of us are proud, and are frequently disappointed that office confers neither respect nor difference. No man of merit can ever be disgraced by office. A rogue in office may be feared in some governments - he will be respected in none. After all, what we call respect and difference only arise from contrast of situation, as most of our ideas come by comparison and relation. Where the people are free there can be no great contrast or distinction among honest citizens in or out of office. In proportion as the people lose their freedom, every gradation of distinction, between the Governors and governed obtains, until the former become masters, and the latter become slaves. In all governments virtue will command reverence. The divine Cato knew every Roman citizen by name, and never assumed any preeminence; yet Cato found, and his memory will find, respect and reverence in the bosoms of mankind, until this world returns into that nothing, from whence Omnipotence called it. That the people are not at present disposed for, and are actually incapable of, governments of simplicity and equal rights, I can no longer doubt. But whose fault is it? We make them bad, by bad governments, and then abuse and despise them for being so. Our people are capable of being made anything that human nature was or is capable of, if we would only have a little patience and give them good and wholesome institutions; but I see none such and very little prospect of such. Alas! I see nothing in my fellow-citizens, that will permit my still fostering the delusion, that they are now capable of sustaining the weight of SELF-GOVERNMENT: a burden to which Greek and Roman shoulders proved unequal. The honor of supporting the dignity of the human character, seems reserved to the hardy Helvetians alone. If the body of the people will not govern themselves, and govern themselves well too, the consequence is unavoidable - a FEW will, and must govern them. Then it is that government becomes truly a government by force only, where men relinquish part of their natural rights to secure the rest, instead of an union of will and force, to protect all their natural rights, which ought to be the foundation of every rightful social compact. Whether national government will be productive of internal peace, is too uncertain to admit of decided opinion. I only hazard a conjecture when I say, that our state disputes, in a confederacy, would be disputes of levity and passion, which would subside before injury. The people being free, government having no right to them, but they to government, they would separate and divide as interest or inclination prompted - as they do at this day, and always have done, in Switzerland. In a national government, unless cautiously and fortunately administered, the disputes will be the deep-rooted differences of interest, where part of the empire must be injured by the operation of general law; and then should the sword of government be once drawn (which Heaven avert) I fear it will not be sheathed, until we have waded through that series of desolation, which France, Spain, and the other great kingdoms of the world have suffered, in order to bring so many separate States into uniformity, of government and law; in which event the legislative power can only be entrusted to one man (as it is with them) who can have no local attachments, partial interests, or private views to gratify. That a national government will prevent the influence or danger of foreign intrigue, or secure us from invasion, is in my judgment directly the reverse of the truth. The only foreign, or at least evil foreign influence, must be obtained through corruption. Where the government is lodged in the body of the people, as in Switzerland, they can never be corrupted; for no prince, or people, can have resources enough to corrupt the majority of a nation; and if they could, the play is not worth the candle. The facility of corruption is increased in proportion as power tends by representation or delegation, to a concentration in the hands of a few. . . . As to any nation attacking a number of confederated independent republics . . . it is not to be expected, more especially as the wealth of the empire is there universally diffused, and will not be collected into any one overgrown, luxurious and effeminate capital to become a lure to the enterprizing ambitious. That extensive empire is a misfortune to be deprecated, will not now be disputed. The balance of power has long engaged the attention of all the European world, in order to avoid the horrid evils of a general government. The same government pervading a vast extent of territory, terrifies the minds of individuals into meanness and submission. All human authority, however organized, must have confined limits, or insolence and oppression will prove the offspring of its grandeur, and the difficulty or rather impossibility of escape prevents resistance. Gibbon relates that some Roman Knights who had offended government in Rome were taken up in Asia, in a very few days after. It was the extensive territory of the Roman republic that produced a Sylla, a Marius, a Caligula, a Nero, and an Elagabalus. In small independent States contiguous to each other, the people run away and leave despotism to reek its vengeance on itself; and thus it is that moderation becomes with them, the law of self-preservation. These and such reasons founded on the eternal and immutable nature of things have long caused and will continue to cause much difference of sentiment throughout our wide extensive territories. From our divided and dispersed situation, and from the natural moderation of the American character, it has hitherto proved a warfare of argument and reason. A FARMER
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| Posted: Sun Sep 24th, 2017 06:21 am |
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46th Post |
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Joe Kelley Administrator
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No. 15 – Rhode Island Is Right! This essay appeared in The Massachusetts Gazette, December 7, 1787, as reprinted From The Freeman's Journal; (Or, The North-American Intelligencer?) The abuse which has been thrown upon the state of Rhode Island seems to be greatly unmerited. Popular favor is variable, and those who are now despised and insulted may soon change situations with the present idols of the people. Rhode Island has out done even Pennsylvania in the glorious work of freeing the Negroes in this country, without which the patriotism of some states appears ridiculous. The General Assembly of the state of Rhode Island has prevented the further importation of Negroes, and have made a law by which all blacks born in that state after March, 1784, are absolutely and at once free. They have fully complied with the recommendations of Congress in regard to the late treaty of peace with Great Britain, and have passed an act declaring it to be the law of the land. They have never refused their quota of taxes demanded by Congress, excepting the five per cent impost, which they considered as a dangerous tax, and for which at present there is perhaps no great necessity, as the western territory, of which a part has very lately been sold at a considerable price, may soon produce an immense revenue; and, in the interim, Congress may raise in the old manner the taxes which shall be found necessary for the support of the government. The state of Rhode Island refused to send delegates to the Federal Convention, and the event has manifested that their refusal was a happy one as the new constitution, which the Convention has proposed to us, is an elective monarchy, which is proverbially the worst government. This new government would have been supported at a vast expense, by which our taxes - the right of which is solely vested in Congress, (a circumstance which manifests that the various states of the union will be merely corporations) - would be doubled or trebled. The liberty of the press is not stipulated for, and therefore may be invaded at pleasure. The supreme continental court is to have, almost in every case, "appellate jurisdiction, both as to law and fact," which signifies, if there is any meaning in words, the setting aside the trial by jury. Congress will have the power of guaranteeing to every state a right to import Negroes for twenty one years, by which some of the states, who have now declined that iniquitous traffic, may re-enter into it - for the private laws of every state are to submit to the superior jurisdiction of Congress. A standing army is to be kept on foot, by which the vicious, the sycophantick, and the time-serving will be exalted, and the brave, the patriotic, and the virtuous will be depressed. The writer, therefore, thinks it the part of wisdom to abide, like the state of Rhode Island, by the old articles of confederation, which, if re-examined with attention, we shall find worthy of great regard; that we should give high praise to the manly and public spirited sixteen members, who lately seceded from our house of Assembly [in Pennsylvania]; and that we should all impress with great care, this truth on our minds - That it is very easy to change a free government into an arbitrary one, but that it is very difficult to convert tyranny into freedom. http://www.barefootsworld.net/antifederalist.html#afp15
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| Posted: Sun Sep 24th, 2017 06:31 am |
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47th Post |
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Joe Kelley Administrator
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More "information" from a poser: "Ten years later, in 1878, another travesty was allowed to occur. This one involved the similar incorporation of the Municipal (city state) government of Washington, DC. The actual Constitution allowed Congress "plenary" control of Washington, DC, so they took advantage of this fact to make Washington, DC an independent international city-state run by another commercial corporation under their own auspices. This then gave rise to the "Constitution of the United States"--- another corporate charter masquerading as a valid treaty document." How does that "information" compare to the message offered by the 6th President of the United States of America (before 1787) Richard Henry Lee here: http://www.barefootsworld.net/antifederalist.html#afp41-43B "A federal, or rather a national city, ten miles square, containing a hundred square miles, is about four times as large as London; and for forts, magazines, arsenals, dock yards, and other needful buildings, congress may possess a number of places or towns in each state. It is true, congress cannot have them unless the state legislatures cede them; but when once ceded, they never can be recovered. And though the general temper of the legislatures may be averse to such cessions, yet many opportunities and advantages may be taken of particular times and circumstances of complying assemblies, and of particular parties, to obtain them. It is not improbable, that some considerable towns or places, in some intemperate moments, or influenced by anti-republican principles, will petition to be ceded for the purposes mentioned in the provision. There are men, and even towns, in the best republics, which are often fond of withdrawing from the government of them, whenever occasion shall present. The case is still stronger. If the provision in question holds out allurements to attempt to withdraw, the people of a state must ever be subject to state as well as federal taxes; but the federal city and places will be subject only to the latter, and to them by no fixed proportion. Nor of the taxes raised in them, can the separate states demand any account of congress. These doors opened for withdrawing from the state governments entirely, may, on other accounts, be very alluring and pleasing to those anti-republican men who prefer a place under the wings of courts. "If a federal town be necessary for the residence of congress and the public officers, it ought to be a small one, and the government of it fixed on republican and common law principles, carefully enumerated and established by the constitution. it is true, the states, when they shall cede places, may stipulate that the laws and government of congress in them shall always be formed on such principles. But it is easy to discern, that the stipulations of a state, or of the inhabitants of the place ceded, can be of but little avail against the power and gradual encroachments of the union. The principles ought to be established by the federal constitution, to which all states are parties; but in no event can there be any need of so large a city and places for forts, etc. , totally exempted from the laws and jurisdictions of the state governments. "If I understand the constitution, the laws of congress, constitutionally made, will have complete and supreme jurisdiction to all federal purposes, on every inch of ground in the United States, and exclusive jurisdiction on the high seas, and this by the highest authority, the consent of the people. Suppose ten acres at West Point shall be used as a fort of the union, or a sea port town as a dockyard: the laws of the union, in those places, respecting the navy, forces of the union, and all federal objects, must prevail, be noticed by all judges and officers, and executed accordingly. And I can discern no one reason for excluding from these places, the operation of state laws, as to mere state purpose for instance, for the collection of state taxes in them; recovering debts; deciding questions of property arising within them on state laws; punishing, by state laws, theft, trespasses, and offenses committed in them by mere citizens against the state law. "The city, and all the places in which the union shall have this exclusive jurisdiction, will be immediately under one entire government, that of the federal head, and be no part of any state, and consequently no part of the United States. The inhabitants of the federal city and places, will be as much exempt from the laws and control of the state governments, as the people of Canada or Nova Scotia will be. Neither the laws of the states respecting taxes, the militia, crimes of property, will extend to them; nor is there a single stipulation in the constitution, that the inhabitants of this city, and these places, shall be governed by laws founded on principles of freedom. All questions, civil and criminal, arising on the laws of these places, which must be the laws of congress, must be decided in the federal courts; and also, all questions that may, by such judicial fictions as these courts may consider reasonable, be supposed to arise within this city, or any of these places, may be brought into these courts. By a very common legal fiction, any personal contract may be supposed to have been made in any place. A contract made in Georgia may be supposed to have been made in the federal city; the courts will admit the fiction. . . ." Richard Henry Lee, 6th President of the United States of America in Congress Assembled __________________________________________ If the words in that picture are true, then what is the process by which people consent to any codes, statutes, constitutions, or other written statements, records, claimed to be legal? Example: "US. SUPREEME COURT DECISION - The common law is the real law, the Supreme Law of the land, the code, rules, regulations, policy and statutes are "not the law", [Self v. Rhay, 61 Wn (2d) 261]"
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| Posted: Mon Sep 25th, 2017 04:06 pm |
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48th Post |
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Joe Kelley Administrator
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http://www.richardhenrylee.org/ ________________________ Extreme shyness prevented his taking any part in the debates for some time in House of Burgesses. His first speech was on a motion: "to lay so heavy a duty on the importation of slaves as effectually to put an end to that iniquitous and disgraceful traffic within the colony of Virginia." On this occasion, his hatred of slavery overcame his timidity and he made a powerful speech supplying proofs of principal points of view used by the northern Abolitionists through the 1860's. Lee had no profession beyond his public service. Like Samuel Adams, he was a professional politician. In times of need, especially when the real estate market declined after the French and Indian War, he found no other way to provide for his family than seeking lucrative appointive governmental offices. _______________________________________
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| Posted: Tue Sep 26th, 2017 10:10 am |
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49th Post |
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Joe Kelley Administrator
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http://ismor.com/cornwallis/cornwallis_2001/CVI_2001_Visco.pdf More Than You Ever Wanted to Know About Posse Comitatus E. P. Visco __________________________________ The execution of warrants for the return of escaped slaves was resisted in Pennsylvania. A posse was summoned to aid the commissioners but the posse refused to act. A federal judge asked President Millard Fillmore if he (the judge) could call for US troops as might be available. The president held two cabinet meetings to discuss the problem; there was unanimous agreement among the cabinet members that it should be done (that is, military force should be called out to help civil officers execute the Fugitive Slave Law). There was, however, disagreement on how the military should be called out. The president thought he had authority to call on troops without issuing a cease and desist order (as called for in the 1807 act). Some cabinet members disagreed; some felt that marshals might themselves call on members of Army as citizens to form part of posse comitatus. The cabinet decided on a mixture: give authority to US marshals and deputies to call for troops when a district judge or justice of Supreme Court ”should certify that in his opinion it was necessary” (Coakley, p. 128) ______________________________
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| Posted: Wed Sep 27th, 2017 07:07 pm |
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50th Post |
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Joe Kelley Administrator
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Liberty, as I understand the idea, is intolerance of intolerance. In other words the Golden Rule. In other words: do no harm enforced by making sure that doing harm earns the one harming all the costs that they cause: within the boundaries of human conscience.
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| Posted: Sat Oct 28th, 2017 11:15 am |
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51st Post |
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Joe Kelley Administrator
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American Nightmare: How Government Undermines the Dream of Homeownership (Google book) Abolishing primogeniture and entail eventually led to a more egalitarian nation. "No sooner was the law of primogeniture abolished than fortunes began to diminish, and all the families of the country were simultaneously reduced to a state in which labor became necessary to procure the means of subsistence," observed Alexis de Tocqueville in he early 1830s. Just having the land does not mean that the owners lived on it; instead, many held the land for speculative purposes or sold it to speculators. In the meantime, squatters often started farming lands wihtout a title. Squatters occupied some of George Washington's land in western Pennsylvania. He met with them in 1796, the last year of his presidency, and offered to sell the land to them. They preferred to dispute his title in court; the court decided in his favor and they had to leave. At the time of the Revolution, Virginia offered actual settlers 400 acres and North Carolina offered 640 acres "at the merest nominal price." Settlers in Main could also get 100 acres merely for clearing 16 within four years. Within tree years, Virginia settlers were required to build a house, plant one acre, and keep stock for one year, or they would lose the land. Just having the land does not mean that the owners lived on it; instead, many held the land for speculative purposes or sold it to speculators. In the meantime, squatters often started farming lands without a title. Squatters occupied some of George Washington's land in western Pennsylvania. He met with them in 1796, the last year of his presidency, and offered to sell the land to them. They preferred to dispute his title in court; the court decided in his favor and they had to leave. At the time of the Revolution, Virginia offered actual settlers 400 acres and North Carolina offered 640 acres "at the merest nominal price." Settlers in Main could also get 100 acres merely for clearing 16 within four years. Within tree years, Virginia settlers were required to build a house, plant one acre, and keep stock for one year, or they would lose the land. After the Revolution, the 1783 Treaty of Paris recognized the United States' sovereignty over land as far west as the Mississippi River. The states ceded to the United States their claims to land west of Appalachians - about 237 million acres of land that eventually became Alabama, Kentucky, Illinois, Indiana, Michigan, Mississippi, Ohio, Tennessee, Wisconsin, and much of Minnesota. That was a huge amount of land, about 60 acres for every resident of the United States in 1790. Rather than give the land to settlers, however, Congress, at the urging of Alexander Hamilton, tried to sell the land to pay off the nation's debt. In contrast to Hamilton, Jefferson was against selling land to pay the national debt. "The people who will migrate to the Westward whether they form part of the old, or of a new colony will be subject to their proportion of the Continental debt then unpaid," he wrote in 1776. "They ought not be subject to more." But by 1784, even Jefferson had accepted the idea of his land ordinance of that year provided for sales. In 1785, Congress asked a minimum of 1$ an acre in cash for blocks of at least 640 acres. The lands were to be sold at auction, but only after lands had been surveyed. Surveys were slower than anticipated, and only about 1.5 million acres were sold to private parties, mostly speculators, under this system. In 1796, Congress raised the price to 2$ an acre for a minimum of 640 acres, with half the money paid within 30 days and the other half within a year. That amount may sound inexpensive today, but in late 18th century those were high prices: based on the consumer price index, $640 dollars in 1785 would be almost $15,000 today. More significantly, in relation to the wages earned by unskilled workers, it would be more than 240,000 today. That amount is far more than an unskilled worker could pay in cash, especially for land that initially at least would have to be worked on a subsistence basis since it was located too far from markets to sell any crops. As a result, sales were slow, averaging only a little more than 500 640-acre parcels per year from 1800 through 1810. In 1800, Congress reduced the down payment to one-twentieth of the total cost and extended the time allowed for full payment, at 6 percent interest, to four years. The 1800 law also reduced the minimum number of acres that could be purchased to 320, which was reduced still further to 160 acres in 1804. The low down payment encouraged speculators, while the high cost per acre still led large numbers of settlers to default on their payments, especially after the recession of 1819. As a result, in 1820 Congress once again changed the terms of land sales: purchasers could buy a few as 80 acres for 1.25 an acre. To discourage speculation, all purchases were to be in cash. One settler who had trouble gaining secure title to land was Thomas Lincoln, the father of the future president. In 1803, he purchased a 250-acre farm in Kentucky for 118 English punds, but lost 38 acres of it because of an erroneous recording of the land survey. Five years later, he made a $200 down payment on a 348-acre farm, but lost the farm and the down payment because of a title dispute. He then bought a third farm that was part of a 10,000-acre grant received by Thomas Middleton in 1784. Lincoln and nine other farmers who had purchased part of that grant lost their land in a title dispute with Middleton's heirs. As one historian comments, "There were likely no people in America so cursed with land litigation as the pioneer Kentuckians, because of the lack of adequate land regulations pertaining to priority of ownership." Giving up on Kentucky, in 1816 Lincoln moved his family to Indiana. There he claimed 160 acres of federal land in 1817 with a down payment of $16, or one-twentieth of the total costs. Within 40 days, as specified by law, he paid another $64, bringing his total payment to one-fourth of the cost. However, he was unable to make any further payments. In 1821, Congress passed a law extending the payment period to as long as eight years. In 1827, Lincoln gave up some of his land to gain clear title of the rest, but then turned around and sold the land in 1830. Congress debated the sale of trans-Appalachian lands for more than 70 years. "More than half our time has been taken up with the discussion of propositions connected with the public lands," complained South Carolina Senator Robert Hayne in 1830. "Day after day the charges are rung on this topic, from the grave inquiry into the rights of the new States to the absolute sovereignty and property in the soil, down to the grant of a preemption to a few quarter sections to actual settlers." Meanwhile, settlers who could not afford to put up $640 were nevertheless moving west of the mountains, staking claims, and claiming squatters' rights to the land. In 1787, the federal government sent troops to burn homes and evict squatters along the Ohio River. But the squatters returned as soon as the troops left. From 1781 through 1788, Massachusetts aggressively tried to remove squatters from Maine. Continuing troubles with squatters contributed to the decision to spin off Maine as a separate state in 1820. Another obstacle to pioneers' taking title to the land was Indian ownership of some lands. Although the federal government recognized Indian title to much of the trans-Appalachian territory, it did not recognize the right of Indian tribes to sell land to white settlers. This policy and the government's acquisition was based on an 1823 Supreme Court decision, Jonson v. McIntosh, which in turn was based on a long-standing European tradition that only a sovereign nation has the right to extinguish Indians' interests in their land. The British government, for example, proclaimed in 1763 that "no private person do presume to make any purchase from the said Indians of any land reserved to the said Indians." Although the federal government did eventually negotiate the purchase of most trans-Appalachian lands from Indian tribes, the government's acquisition further delayed the ability of settlers to take title to land. In 1807, Jefferson ordered troops to expel squatters from lands recently purchased from the Chickasaw and Cherokee Indians as well as from lands still owned by Indians. 32 AMERICAN NIGHTMARE Giving Away the Federal Domain Eventually, Congress gave up on the idea of selling land to repay the Revolutionary War debt and began giving land to various groups. ___________________________________________ Quote:_____________________ 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 captain 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. Feel 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 End Quote____________ https://tinyurl.com/lo82dtu ___________________________________ Add to the above sourced information the following: http://avalon.law.yale.edu/18th_century/jeffvir.asp _____________________ The mode of acquiring lands, in the earliest times of our settlement, was by petition to the general assembly. If the lands prayed for were already cleared of the Indian title, and the assembly thought the prayer reasonable, they passed the property by their vote to the petitioner. But if they had not yet been ceded by the Indians, it was necessary that the petitioner should previously purchase their right. This purchase the assembly verified, by enquiries of the Indian proprietors; and being satisfied of its reality and fairness, proceeded further to examine the reasonableness of the petition, and its consistence with policy; and, according to the result, either granted or rejected the petition. The company also sometimes, though very rarely, granted lands, independently of the general assembly. As the colony increased, and individual applications for land multiplied, it was found to give too much occupation to the general assembly to enquire into and execute the grant in every special case. They therefore thought it better to establish general rules, according to which all grants should be made, and to leave to the governor the execution of them, under these rules. This they did by what have been usually called the land laws, amending them from time to time, as their defects were developed. According to these laws, when an individual wished a portion of unappropriated land, he was to locate and survey it by a public officer, appointed for that purpose: its breadth was to bear a certain proportion to its length: the grant was to be executed by the governor: and the lands were to be improved in a certain manner, within a given time. From these regulations there resulted to the state a sole and exclusive power of taking conveyances of the Indian right of soil: since, according to them, an Indian conveyance alone could give no right to an individual, which the laws would acknowledge. The state, or the crown, thereafter, made general purchases of the Indians from time to time, and the governor parcelled them out by special grants, conformed to the rules before described, which it was not in his power, or in that of the crown, to dispense with. Grants, unaccompanied by their proper legal circumstances, were set aside regularly by _scire facias_, or by bill in Chancery. Since the establishment of our new government, this order of things is but little changed. An individual, wishing to appropriate to himself lands still unappropriated by any other, pays to the public treasurer a sum of money proportioned to the quantity he wants. He carries the treasurer's receipt to the auditors of public accompts, who thereupon debit the treasurer with the sum, and order the register of the land-office to give the party a warrant for his land. With this warrant from the register, he goes to the surveyor of the county where the land lies on which he has cast his eye. The surveyor lays it off for him, gives him its exact description, in the form of a certificate, which certificate he returns to the land-office, where a grant is made out, and is signed by the governor. This vests in him a perfect dominion in his lands, transmissible to whom he pleases by deed or will, or by descent to his heirs if he die intestate. _______________________ Note: This vests in him a perfect dominion in his lands, transmissible to whom he pleases by deed or will, or by descent to his heirs if he die intestate. Another source: Jefferson's Freeholders and the Politics of Ownership in the Old Dominion By Christopher Michael Curtis References to terms "dominion" and "allodial" _____________________________________ Aristocracy through land control: The People's Panel The Grand Jury in the United States, 1634 - 1941 Richard D. Younger 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. __________________________________________ "I propose to begin by speaking briefly of the Forms of Action, with especial relation to those which protected the possession and ownership of land. It may---I am well aware of it---be objected that procedure is not a good theme for academic discussion. Substantive law should come first--adjective law, procedural law, afterwards. The former may perhaps be studied in a university, the latter must be studied in chambers. As to obsolete procedure, a knowledge of it can be profitable to no man, least of all to a beginner. With this opinion I cannot agree. Some time ago I wished to say a little about seisin, which still, with all our modern improvements, is one of the central ideas of Real Property Law; but to say that little I found impossible if I could not assume some knowledge of the forms of action. Let us remember one of Maine's most striking phrases, "So great is the ascendancy of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure." [Maine, Early Law and Custom, p. 389]. Assuredly this is true of our real property law, it has been secreted in the interstices of the forms of action. The system of Forms of Action or the Writ System is the most important characteristic of English medieval law, and it was not abolished until its piecemeal destruction in the nineteenth century." Medieval Sourcebook: F. W. Maitland: The Forms of Action at Common Law, 1909 https://sourcebooks.fordham.edu/basis/maitland-formsofaction.asp seisin "In brief, the term refers to the possession of land. However, the nature of this possession is a complex matter deserving a full academic explanation. In early English property law, a landholder was considered "seised of" his estate- an idea which somewhat overlaps with the modern meaning of ownership- but differs in a number of respects." https://www.law.cornell.edu/wex/seisin John Adams (aristocrat?) "Harrington has shown that power always follows property. This I believe to be as infallible a maxim, in politicks, as, that action and re-action are equal, is in mechanics. Nay I believe we may advance one step farther and affirm that the balance of power in a society, accompanies the balance of property in land. The only possible way then of preserving the balance of power on the side of equal liberty and public virtue, is to make the acquisition of land easy to every member of society: to make a division of the land into small quantities, so that the multitude may be possessed of landed estates. If the multitude is possessed of the balance of real estate, the multitude will have the balance of power, and in that case the multitude will take care of the liberty, virtue, and interest of the multitude in all acts of government." http://teachingamericanhistory.org/files/2018/09/Documents-and-Debates-in-American-History-and-Government-Vol.-1-and-Vol.-2.pdf
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| Posted: Tue Oct 31st, 2017 03:51 pm |
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52nd Post |
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Joe Kelley Administrator
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http://oll.libertyfund.org/titles/spooner-an-essay-on-the-trial-by-jury-1852 FOR more than six hundred years - that is, since Magna Carta, in 1215 - there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws. Unless such be the right and duty of jurors, it is plain that, instead of juries being a "palladium of liberty "- a barrier against the tyranny and oppression of the government - they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed. But for their right to judge of the law, and the justice of the law, juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them. That the rights and duties of jurors must necessarily be such as are here claimed for them, will be evident when it is considered what the trial by jury is, and what is its object. "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. So, also, if the government may dictate to the jury what laws they are to enforce, it is no longer a " trial by the country," but a trial by the government; because the jury then try the accused, not by any standard of their own - not by their own judgments of their rightful liberties - but by a standard. dictated to them by the government. And the standard, thus dictated by the government, becomes the measure of the people's liberties. If the government dictate the standard of trial, it of course dictates the results of the trial. And such a trial is no trial by the country, but only a trial by the government; and in it the government determines what are its own powers over the people, instead of the people's determining what are their own liberties against the government. In short, if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law. The jury are also to judge whether the laws are rightly expounded to them by the court. Unless they judge on this point, they do nothing to protect their liberties against the oppressions that are capable of being practiced under cover of a corrupt exposition of the laws. If the judiciary can authoritatively dictate to a jury any exposition of the law, they can dictate to them the law itself, and such laws as they please; because laws are, in practice, one thing or another, according as they are expounded. The jury must also judge whether there really be any such law, (be it good or bad,) as the accused is charged with having transgressed. Unless they judge on this point, the people are liable to have their liberties taken from them by brute force, without any law at all. The jury must also judge of the laws of evidence. If the government can dictate to a jury the laws of evidence, it can not only shut out any evidence it pleases, tending to vindicate the accused, but it can require that any evidence whatever, that it pleases to offer, be held as conclusive proof of any offence whatever which the government chooses to allege. It is manifest, therefore, that the jury must judge of and try the whole case, and every part and parcel of the case, free of any dictation or authority on the part of the government. They must judge of the existence of the law; of the true exposition of the law; of the justice of the law; and of the admissibility and weight of all the evidence offered; otherwise the government will have everything its own way; the jury will be mere puppets in the hands of the government: and the trial will be, in reality, a trial by the government, and not a "trial by the country." By such trials the government will determine its own powers over the people, instead of the people's determining their own liberties against the government; and it will be an entire delusion to talk, as for centuries we have done, of the trial by jury, as a "palladium of liberty," or as any protection to the people against the oppression and tyranny of the government. The question, then, between trial by jury, as thus described, and trial by the government, is simply a question between liberty and despotism. The authority to judge what are the powers of the government, and what the liberties of the people, must necessarily be vested in one or the other of the parties themselves - the government, or the people; because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with. If, on the other hand, that authority be vested in the people, then the people have all liberties, (as against the government,) except such as substantially the whole people (through a jury) choose to disclaim; and the government can exercise no power except such as substantially the whole people (through a jury) consent that it may exercise. Page 30 ________________________ The trial by jury was a part of legem terrœ,and we have the means of knowing what the trial by jury was. The fact that the jury were to fix the sentence, implies that they were totrythe accused; otherwise they could not know what sentence, or whether any sentence, ought to be inflicted upon him. Hence it follows that the jury were to judge of everything involved in the trial; that is, they were to judge of the nature of the offence, of the admissibility and weight of testimony, and of everything else whatsoever that was of the essence of the trial. If anything whatever could be dictated to them, either of law or evidence, the sentence would not be theirs, but would be dictated to them by the power that dictated to them the law or evidence. The trial and sentence, then, were wholly in the hands of the jury. _________________________________ Page 30 _______________________ The trial by jury was a part of legem terrœ,and we have the means of knowing what the trial by jury was. The fact that the jury were to fix the sentence, implies that they were to try the accused; otherwise they could not know what sentence, or whether any sentence, ought to be inflicted upon him. Hence it follows that the jury were to judge of everything involved in the trial; that is, they were to judge of the nature of the offence, of the admissibility and weight of testimony, and of everything else whatsoever that was of the essence of the trial. If anything whatever could be dictated to them, either of law or evidence, the sentence would not be theirs, but would be dictated to them by the power that dictated to them the law or evidence. The trial and sentence, then, were wholly in the hands of the jury. We also have sufficient evidence of the nature of the oath administered to jurors in criminal cases. It was simply, that they would neither convict the innocent, nor acquit the guilty. This was the oath in the Saxon times, and probably continued to be until Magna Carta. We also know that, in case of conviction,the sentence of the jury was not necessarily final; that the accused had the right of appeal to the king and his judges, and to demand either a new trial, or an acquittal, if the trial or conviction had been against law. So much, therefore, of the legem terræ of Magna Carta, we know with reasonable certainty. ______________________ 34 _____________________ “the judgment of the peers and the law of the land,” to authorize the king to make execution upon a party’s goods or person; but that in cases of arrest and imprisonment, simply for the purpose of bringing a man to trial, vel should be rendered by or,because there can have been no judgment of a jury in such a case, and “the law of the land” must therefore necessarily be the only guide to, and restraint upon, the king. If this guide and restraint were taken away, the king would be invested with an arbitrary and most dangerous power in making arrests, and confining in prison, under pretence of an intention to bring to trial. __________________________ That section begins to deal with common law grand jury investigation which is what I call Gate Keeping, whereby the idea is to arrest the government (to stop the government) from arresting presumed to be innocent people, keeping from presumed to be innocent people the means to survive (produce, live, exist in freedom) unless the people themselves authorize the legitimacy of the accusation. So...in other words the Grand Jury is the consent of the people, consenting that the government can (the light was red - STOP - and now the light is green: GO) go ahead with the arrest, if the accused does not agree to proceed voluntarily with his, or her, trial by the country. _____________________ No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner destroyed, (harmed,) nor will we (the king) proceed against him, nor send any one against him, by force or arms, unless according to (that is, in execution of) the sentence of his peers, and(or or, as the case may require) the Common Law of England, (as it was at the time of Magna Carta, in 1215.) ___________________ Meaning: If trial by jury has already proceeded and resulting in a guilty verdict, and the country (the people through a jury) prescribe punishment (typically a fine that does not ruin the freedom of life of the guilty), then the government is given the GO to ask, politely, for that fine (execute the judgment of the country), OR, in case of an accusation validated by the people (Grand Jury?) the government is given the GO to execute a demand for the accused to attend his, or her, trial by the country. I either case it can be assumed that some presumed to be innocent accused individuals will refuse to attend their trial, and some guilty individuals will refuse (not agree to) pay the fine, or submit to the judgment, or sentence, of the country (the jury). Page 37 __________________________ “The Saxons, who subdued Britain, as they enjoyed great liberty in their own country, obstinately retained that invaluable possession in their new settlement; and they imported into this island the same principles of independence, which they had inherited from their ancestors. The chieftains, (for such they were, more than kings or princes,)who commanded them in those military expeditions, still possessed a very limited authority;and as the Saxons exterminated, rather than subdued the ancient inhabitants, they were, indeed, transplanted into a new territory, but preserved unaltered all their civil and military institutions. The language was pure Saxon; even the names of places, which often remain while the tongue entirely changes, were almost all affixed by the conquerors; the manners and customs were wholly German; and the same picture of a fierce and bold liberty, which is drawn by the masterly pen of Tacitus, will suit those founders of the English government. The king, so far from being invested with arbitrary power, was only considered as the first among the citizens; his authority depended more on his personal qualities than on his station; he was even so far on a level with the people, that a stated price was fixed for his head, and a legal fine was levied upon his murderer, which though proportionate to his station, and superior to that paid for the life of a subject, was a sensible mark of his subordination to the community.” _____________________________ Page 38 __________________________ “The authority of a Saxon monarch was not more considerable. The Saxons submitted not to the arbitrary rule of princes. They administered an oath to their sovereigns, which bound them to acknowledge the laws, and to defend the rights of the church and people; and if they forgot this obligation, they forfeited their office. In both countries, a price was affixed on kings, a fine expiated their murder, as well as that of the meanest citizen; and the smallest violation of ancient usage, or the least step towards tyranny, was always dangerous, and often fatal to them.” ______________________________ Jumping around some: Page 154 in footnotes _________________________ I cite the above extract from Mr. Hallam solely for the sake of his authority for rendering the wordvelbyand;and not by any means for the purpose of indorsing the opinion he suggests, thatlegem terræ authorized “judgments by default or demurrer,” without the intervention of a jury. He seems to imagine that lex terræ, the common law, at the time of Magna Carta, included everything, even to the practice of courts, that is, at this day, called by the name of Common Law; whereas much of what is now called Common Law has grown up, by usurpation, since the time of Magna Carta, in palpable violation of the authority of that charter. He says, “Certainly there are many legal procedures, besides trial by jury, through which a party’s goods or person may be taken.” Of course there are now many such ways, in which a party’s goods or person are taken, besides by the judgment of a jury; but the question is, whether such takings are not in violation of Magna Carta. He seems to think that, in cases of “judgment by default or demurrer,” there is no need of a jury, and thence to infer that legem terræ may not have required a jury in those cases. But this opinion is founded on the erroneous idea that juries are required only for determining contested facts, and not for judging of the law. In case of default, the plaintiff must present a prima facie case before he is entitled to a judgment; and Magna Carta, (supposing it to require a jury trial in civil cases, as Mr. Hallam assumes that it does,) as much requires that this prima facie case, both law and fact, be made out to the satisfaction of a jury, as it does that a contested case shall be. As for a demurrer, the jury must try a demurrer (having the advice and assistance of the court, of course) as much as any other matter of law arising in a case. Mr. Hallam evidently thinks there is no use for a jury, except where there is a “trial”— meaning thereby a contest on matters of fact. His language is, that “there are many legal procedures, besides trial by jury, through which a party’s goods or person may be taken.” Now Magna Carta says nothing of trial by jury; but only of the judgment, or sentence, of a jury. It is only by inference that we come to the conclusion that there must be a trial by jury. Since the jury alone can give the judgment, or sentence, we infer that they must try the case; because otherwise they would be incompetent, and would have no moral right, to give judgment. They must, therefore, examine the grounds, (both of law and fact,) or rather try the grounds, of every action whatsoever, whether it be decided on “default, demurrer,” or otherwise, and render their judgment, or sentence, thereon, before any judgment can be a legal one, on which “to take a party’s goods or person.” In short, the principle of Magna Carta is, that no judgment can be valid against a party’s goods or person,(not even a judgment for costs,) except a judgment rendered by a jury. Of course a jury must try every question, both of law and fact, that is involved in the rendering of that judgment. They are to have the assistance and advice of the judges, so far as they desire them; but the judgment itself must be theirs, and not the judgment of the court. ____________________________ Page 155 __________________________ As to “process of attachment for contempt,” it is of course lawful for a judge, in his character of a peace officer, to issue a warrant for the arrest of a man guilty of a contempt, as he would for the arrest of any other offender, and hold him to bail, (or, in default of bail, commit him to prison,) to answer for his offence before a jury. Or he may order him into custody without a warrant when the offence is committed in the judge’s presence. But there is no reason why a judge should have the power of punishingfor contempt, any more than for any other offence. And it is one of the most dangerous powers a judge can have, because it gives him absolute authority in a court of justice, and enables him to tyrannize as he pleases over parties, counsel, witnesses, and jurors. If a judge have power to punish for contempt, and to determine for himself what is a contempt, the whole administration of justice (or injustice, if he choose to make it so) is in his hands. And all the rights of jurors, witnesses, counsel, and parties, are held subject to his pleasure, and can be exercised only agreeably to his will. He can of course control the entire proceedings in, and consequently the decision of, every cause, by restraining and punishing every one, whether party, counsel, witness, or juror, who presumes to offer anything contrary to his pleasure. This arbitrary power, which has been usurped and exercised by judges to punish for contempt, has undoubtedly had much to do in subduing counsel into those servile, obsequious, and cowardly habits, which so universally prevail among them, and which have not only cost so many clients their rights, but have also cost the people so many of their liberties. If any summary punishment for contempt be ever necessary, (as it probably is not,) beyond exclusion for the time being from the court-room, (which should be done, not as a punishment, but for self-protection, and the preservation of order,) the judgment for it should be given by the jury, (where the trial is before a jury,) and not by the court, for the jury, and not the court, are really the judges. For the same reason, exclusion from the court-room should be ordered only by the jury, in cases when the trial is before a jury, because they, being the real judges and triers of the cause, are entitled, if anybody, to the control of the court-room. In appeal courts, where no juries sit, it may be necessary—not as a punishment, but for self-protection, and the maintenance of order—that the court should exercise the power of excluding a person, for the time being, from the court-room; but there is no reason why they should proceed to sentence him as a criminal, without his being tried by a jury. If the people wish to have their rights respected and protected in courts of justice, it is manifestly of the last importance that they jealously guard the liberty of parties, counsel, witnesses, and jurors, against all arbitrary power on the part of the court. Certainly Mr. Hallam may very well say that “one may doubt whether these (the several cases he has mentioned) were in contemplation of the framers of Magna Carta”—that is, as exceptions to the rule requiring that all judgments, that are to be enforced “against a party’s goods or person,” be rendered by a jury. Again, Mr. Hallam says, if the word vel be rendered by and,“the meaning will be, that no person shall be disseized, &c., except upon a lawful cause of action.” This is true; but it does not follow that any cause of action, founded on statute only, is therefore a “lawful cause of action,” within the meaning of legem terræ, or the Common Law. Within the meaning of the legem terræ of Magna Carta, nothing but a common law cause of action is a “lawful” one. ________________________ Page 44 _____________________ SECTION II. The Ancient Common Law Juries Were Mere Courts Of Conscience. But it is in the administration of justice, or of law, that the freedom or subjection of a people is tested. If this administration be in accordance with the arbitrary will of the legislator—that is, if his will, as it appears in his statutes, be the highest rule of decision known to the judicial tribunals,—the government is a despotism, and the people are slaves. If, on the other hand, the rule of decision be those principles of natural equity and justice, which constitute, or at least are embodied in, the general conscience of mankind, the people are free in just so far as that conscience is enlightened. ____________________ Page 52 ________________ “From the moment when the crown became accustomed to the ‘Inquest,’ a restraint was imposed upon every branch of the prerogative.The king could never be informed of his rights, but through the medium of the people. Every ‘extent’ by which he claimed the profits and advantages resulting from the casualties of tenure, every process by which he repressed the usurpations of the baronage, depended upon the ‘good men and true’ who were impanelled to ‘pass’ between the subject and the sovereign; and the thunder of the Exchequer at Westminster might be silenced by the honesty, the firmness, or the obstinacy, of one sturdy knight or yeoman in the distant shire. Taxation was controlled in the same manner by the voice of those who were most liable to oppression. * * A jury was impanelled to adjudge the proportion due to the sovereign; and this course was not essentially varied, even after the right of granting aids to the crown was fully acknowledged to be vested in the parliament of the realm. The people taxed themselves; and the collection of the grants was checked and controlled, and, perhaps, in many instances evaded, by these virtual representatives of the community. The principle of the jury was, therefore, not confined to its mere application as a mode of trying contested facts, whether in civil or criminal cases; and, both in its form and in its consequences, it had a very material influence upon the general constitution of the realm. * * The main-spring of the machinery of remedial justice existed in the franchise of the lower and lowest orders of the political hierarchy. Without the suffrage of the yeoman, the burgess, and the churl, the sovereign could not exercise the most important and most essential function of royalty; from them he received the power of life and death; he could not wield the sword of justice until the humblest of his subjects placed the weapon in his hand.” —1Palgrave’s Rise and Progress of the English Constitution, 274-7. ________________________ Page 54 ________________ Also, “The same regulations, concerning the distribution of justice by the intervention of juries, . .were introduced into the baron courts of the king, as into those of the nobility, or such of his subjects as retained their allodial property.” _______________ Page 55 Creeping into the original common law - in the following report - are infections of SUMMARY JUST US. __________________________ But, in order to understand the common law trial by jury, as it existed prior to Magna Carta, and as it was guaranteed by that instrument, it is perhaps indispensable to understand more fully the nature of the courts in which juries sat, and the extent of the powers exercised by juries in those courts. I therefore give in a note extended extracts, on these points, from Stuart on the Constitution of England, and from Blackstone’s Commentaries.* That all these courts were mere courts of conscience, in which the juries were sole judges, administering justice according to their own ideas of it, is not only shown by the extracts already given, but is explicitly acknowledged in the following one, in which the modern “courts of conscience” are compared with the ancient hundred and county courts, and the preference given to the latter, on the ground that the duties of the jurors in the one case, and of the commissioners in the other, are the same, and that the consciences of a jury are a safer and purer tribunal than the consciences of individuals specially appointed, and holding permanent offices. “But there is one species of courts constituted by act of Parliament, in the city of London, and other trading and populous districts, which, in their proceedings, so vary from the course of the common law, that they deserve a more particular consideration. I mean the court of requests, or courts of conscience, for the recovery of small debts. The first of these was established in London so early as the reign of Henry VIII., by an act of their common council; which, however, was certainly insufficient for that purpose, and illegal, till confirmed by statute 3 Jac. I., ch. 15, which has since been explained and amended by statute 14 Geo. II., ch. 10. The constitution is this: two aldermen and four commoners sit twice a week to hear all causes of debt not exceeding the value of forty shillings; which they examine in a summary way, by the oath of the parties or other witnesses, and make such order therein as is consonant to equity and good conscience.* * * Divers trading towns and other districts have obtained acts of Parliament, for establishing in them courts of conscience upon nearly the same plan as that in the city of London. “The anxious desire that has been shown to obtain these several acts, proves clearly that the nation, in general, is truly sensible of the great inconvenience arising from the disuse of the ancient county and hundred courts, wherein causes of this small value were always formerly decided with very little trouble and expense to the parties. But it is to be feared that the general remedy, which of late hath been principally applied to this inconvenience, (the erecting these new jurisdictions,) may itself be attended in time with very ill consequences; as the method of proceeding therein is entirely in derogation of the common law; and their large discretionary powers create a petty tyranny in a set of standing commissioners; and as the disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances. How much rather is it to be wished that the proceedings in the county and hundred courts could be again revived, without burdening the freeholders with too frequent and tedious attendances; and at the same time removing the delays that have insensibly crept into their proceedings, and the power that either party has of transferring at pleasure their suits to the courts at Westminster! And we may, with satisfaction, observe, that this experiment has been actually tried, and has succeeded in the populous county of Middlesex, which might serve as an example for others. For by statute 23 Geo. II., ch. 33, it is enacted: 1.That a special county court shall be held at least once in a month, in every hundred of the county of Middlesex, by the county clerk. 2.That twelve freeholders of that hundred, qualified to serve on juries, and struck by the sheriff, shall be summoned to appear at such court by rotation; so as none shall be summoned oftener than once a year. 3.That in all causes not exceeding the value of forty shillings, the county clerk and twelve suitors(jurors)shall proceed in a summary way, examining the parties and witnesses on oath, without the formal process anciently used; and shall make such order therein as they shall judge agreeable to conscience.” —3Blackstone,81-83. What are these but courts of conscience? And yet Blackstone tells us they are a revival of the ancient hundred and county courts. And what does this fact prove, but that the ancient common law courts, in which juries sat, were mere courts of conscience? It is perfectly evident that in all these courts the jurors were the judges, and determined all questions of law for themselves; because the only alternative to that supposition is,that the jurors took their law from sheriffs, bailiffs, and stewards, of which there is not the least evidence in history, nor the least probability in reason. It is evident, also, that they judged independently of the laws of the king, for the reasons before given, viz., that the authority of the king was held in very little esteem; and, secondly, that the laws of the king (not being printed, and the people being unable to read them if they had been printed) must have been in a great measure unknown to them, and could have been received by them only on the authority of the sheriff, bailiff, or steward. If laws were to be received by them on the authority of these officers, the latter would have imposed such laws upon the people as they pleased. These courts, that have now been described, were continued in full power long after Magna Carta, no alteration being made in them by that instrument, nor in the mode of administering justice in them. There is no evidence whatever, so far as I am aware, that the juries had any less power in the courts held by the king’s justices, than in those held by sheriffs, bailiffs, and stewards; and there is no probability whatever that they had. All the difference between the former courts and the latter undoubtedly was, that, in the former, the juries had the benefit of the advice and assistance of the justices, which would, of course, be considered valuable in difficult cases, on account of the justices being regarded as more learned, not only in the laws of the king, but also in the common law, or “law of the land.” The conclusion, therefore, I think, inevitably must be, that neither the laws of the king, nor the instructions of his justices, had any authority over jurors beyond what the latter saw fit to accord to them. And this view is confirmed by this remark of Hallam, the truth of which all will acknowledge: “The rules of legal decision, among a rude people, are always very simple; not serving much to guide, far less to control the feelings of natural equity.” —2Middle Ages,ch. 8, part 2, p. 465. It is evident that it was in this way, by the free and concurrent judgments of juries, approving and enforcing certain laws and rules of conduct, corresponding to their notions of right and justice, that the laws and customs, which, for the most part, made up the common law, and were called, at that day, “the good laws, and good customs,” and “the law of the land,” were established. How otherwise could they ever have become established, as Blackstone says they were, “by long and immemorial usage, and by their universal reception throughout the kingdom,”*when, as the Mirror says, “justice was so done, that every one so judged his neighbor, by such judgment as a man could not elsewhere receive in the like cases, until such times as the customs of the realm were put in writing and certainly published?” The fact that, in that dark age, so many of the principles of natural equity, as those then embraced in the Common Law, should have been so uniformly recognized and enforced by juries, as to have become established by general consent as “the law of the land;” and the further fact that this “law of the land” was held so sacred that even the king could not lawfully infringe or alter it, but was required to swear to maintain it, are beautiful and impressive illustrations of the truth that men’s minds, even in the comparative infancy of other knowledge, have clear and coincident ideas of the elementary principles, and the paramount obligation, of justice. The same facts also prove that the common mind, and the general, or, perhaps, rather, the universal conscience, as developed in the untrammeled judgments of juries, may be safely relied upon for the preservation of individual rights in civil society; and that there is no necessity or excuse for that deluge of arbitrary legislation, with which the present age is overwhelmed, under the pretext that unless laws be made, the law will not be known; a pretext, by the way, almost universally used for overturning, instead of establishing, the principles of justice. _________________________ Highlighting from Page 55 (Essay on the Trial by Jury): “The anxious desire that has been shown to obtain these several acts, proves clearly that the nation, in general, is truly sensible of the great inconvenience arising from the disuse of the ancient county and hundred courts, wherein causes of this small value were always formerly decided with very little trouble and expense to the parties. But it is to be feared that the general remedy, which of late hath been principally applied to this inconvenience, (the erecting these new jurisdictions,) may itself be attended in time with very ill consequences; as the method of proceeding therein is entirely in derogation of the common law; and their large discretionary powers create a petty tyranny in a set of standing commissioners; and as the disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances. The cartelizing (monopolizing) criminals will counterfeit those valuable devices invented by the people, so as to then enforce the opposite (counterfeited) version of the original. The original is organic, adaptive, competitive, voluntary, arising in free markets of ideas; while the counterfeit is counterfeit, adaptive only toward maintaining the false front, monopolistic, involuntary, and arising out of criminal enforcement under the color of law. THE CONSTITUTIONAL RIGHT TO A TRIAL BY A JURY OF THE VICINAGE "From these, and other sources they had learned that among other modes, "The trial by jury, or by the Country, per patriam, is also that trial by the peers of every Englishman which, as the grand bulwark of his liberties is secured to him by the Great Charter." 4 Blk. (Lewis' Ed.) 349. It was immaterial to them whether it had its origin in the Great Charter, or whether, as is more probable, it existed before and was, by the Charter, secured against Royal interference. McKechnie, Magna Carta, Ch. 39. It was sufficient for them to know that it was "the great bulwark of their liberties," and was to be preserved at all hazards. Hence, when they held their first provincial conventions, or congresses, to declare their grievances and assert their rights, they invariably asserted this right and protested against its slightest invasion. They regarded it as fundamental, and not dependent upon, or subject to be taken from them by, either King or Parliament." On the cost of traveling in order to find the truth: "That which was the sport of a night at Westminster was something very different to those whom it most concerned at Boston. The chiefs of the popular party saw the full extent of their danger in a moment. " * * * To poor men, as most of them were, transportation to England at best meant ruin. Their one protection, the sympathy of their fellow-citizens, was now powerless to save them." People are the government: "Of the conditions prevailing in America, he makes this comment: "The times were such that the lawyers in America, like all other men there, had to choose their party. In the Government camp were those favored persons whom the Crown regularly employed in Court; and those who held or looked to hold, the posts of distinction and emolument with which the colonies abounded. For the Bar in America, as in Ireland and Scotland to this day, was a public service as well as a profession. But, with these exceptions, most lawyers were patriots; for the same reason that (as the royal Governors complained) every patriot was, or thought himself, a lawyer. The rights and liberties of the province had long been the all-pervading topic of conversation in Massachusetts." Again cost to find justice/punish disobedience: ""By virtue of an obsolete law, passed in one of the darkest periods of English history and at a time when England possessed not a single colony, any colonist who was designated by the Governor as a traitor might be carried 3000 miles from his home, from his witnesses, from the scene of his alleged crime, from all those who were acquainted with the general tenor of his life, to THE CONSTITUTIONAL RIGHT TO A be tried by strangers of the very nation against whom he was supposed to have offended." People power once again: "When the Governor undertook to execute its other provisions by arresting and holding citizens by military power, refusing to obey the writ of habeas corpus, the people elected a Senate and House of Representatives, which promptly impeached, convicted and removed him from office." Power limits reinforced: "It is a well-settled rule of constitutional interpretation that when words conferring executive, legislative or judicial powers are of doubtful meaning, the Court will interpret them in the light of the Bill of Rights, which has been well defined to be "An instrument which fixes limitations as well upon the powers of the civil magistrate as upon the legislative department, while it secures the civil and political rights of the citizen." Eason v. State, ii Ark. 482. "The maxims of Magna Carta and the common law are interpreters of constitutional grants of power, and those acts which, by those maxims the several departments of government are forbidden to do, cannot be considered within any grant or apportionment of power which the people, in general terms, have made to those departments. * * * Nor, when fundamental rights are declared by the Constitution, is it necessary at the same time to prohibit the Legislature, in express terms, from taking them away. The declaration is itself a prohibition and is inserted in the Constitution for the express purpose of operating as a restriction upon legislative power." Cooley Const. Lim., 2o8-20o9." https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=6792&context=penn_law_review Who (which group) claims authority to extort? Edward I Legislation "Edward's immediate answer was the Statute of Mortmain, which forbade the conveyance of land from private ownership to the "dead hand" of a corporation without the assent of the Crown." https://www.britainexpress.com/History/Edward-I-Legislation.htm
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| Posted: Wed Nov 1st, 2017 04:23 pm |
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53rd Post |
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Joe Kelley Administrator
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No. 4 - Foreign Wars, Civil Wars, And Indian Wars – Three Bugbears Patrick Henry was a somewhat the antithesis to James Madison of Federalist note. While every bit as emotional a writer, Henry (who penned the well remembered "Give Me Liberty of Give Me Death" phrase) opposed the new Constitution for many reasons. He delivered long speeches to the Virginia Ratification convention June 5, 7, and 9, 1788. The following is taken from Elliot's Debates, 111, 46, 48, 141-42, 150-56. If we recollect, on last Saturday, I made some observations on some of those dangers which these gentlemen would fain persuade us hang over the citizens of this commonwealth [Virginia] to induce us to change the government, and adopt the new plan. Unless there be great and awful dangers, the change is dangerous, and the experiment ought not to be made. In estimating the magnitude of these dangers, we are obliged to take a most serious view of them - to see them, to handle them, and to be familiar with them. It is not sufficient to feign mere imaginary dangers; there must be a dreadful reality. The great question between us is: Does that reality exist? These dangers are partially attributed to bad laws, execrated by the community at large. It is said the people wish to change the government. I should be happy to meet them on that ground. Should the people wish to change it, we should be innocent of the dangers. It is a fact that the people do not wish to change their government. How am I to prove it? It will rest on my bare assertion, unless supported by an internal conviction in men's breasts. My poor say-so is a mere nonentity. But, sir, I am persuaded that four fifths of the people of Virginia must have amendments to the new plan, to reconcile them to a change of their government. It is a slippery foundation for the people to rest their political salvation on my or their assertions. No government can flourish unless it be founded on the affection of the people. Unless gentlemen can be sure that this new system is founded on that ground, they ought to stop their career. http://www.barefootsworld.net/antifederalist.html#afp04
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| Posted: Wed Nov 1st, 2017 05:21 pm |
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54th Post |
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Joe Kelley Administrator
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Page 56 _________________ There is no evidence whatever, so far as I am aware, that the juries had any lesspower in the courts held by the king’s justices, than in those held by sheriffs, bailiffs, and stewards; and there is no probability whatever that they had. All the difference between the former courts and the latter undoubtedly was, that, in the former, the juries had the benefit of the advice and assistance of the justices, which would, of course, be considered valuable in difficult cases, on account of the justices being regarded as more learned, not only in the laws of the king, but also in the common law, or “law of the land.” The conclusion, therefore, I think, inevitably must be, that neither the laws of the king, nor the instructions of his justices, had any authority over jurors beyond what the latter saw fit to accord to them. And this view is confirmed by this remark of Hallam, the truth of which all will acknowledge: ___________________________ Take that information from the Essay on The Trial by Jury by Lysander Spooner and add the Notes on Virginia from Thomas Jefferson (following) together and find a demand for a position known as Justices. Justices are owing to the King in the Essay on The Trial by Jury, and in Thomas Jefferson's Notes on Virginal the Justices are appointed by the governor, but they are elected by the people themselves. http://avalon.law.yale.edu/18th_century/jeffvir.asp __________________________________ 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. __________________________
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| Posted: Wed Nov 1st, 2017 05:30 pm |
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55th Post |
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Joe Kelley Administrator
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The following are words taken from the following web-page, which is a link to the Essay on The Trial by Jury. I am finding differences (or difficulties) in the formats on various sources. http://www.barefootsworld.net/trial03.html#p51 SECTION II The Ancient Common Law Juries were mere Courts of Conscience ________________________________ "This establishment was formed both in Germany and England, by the inhabitants of a certain division, who extended their jurisdiction over the territory they occupied. [21] They bound themselves under a penalty to assemble at stated times; and having elected the wisest to preside over them, they judged, not only all civil and criminal matters, but of those also which regarded religion and the priesthood. The judicial power thus invested in the people was extensive; they were able to preserve their rights, and attended this court in arms. __________________________ AND __________________________ "The hundred, however, and county courts, were not equal of themselves for the purposes of jurisdiction and order. It was necessary that a court should be erected, of supreme authority, where the disputes of the great should be decided, where the disagreeing sentiments of judges should be reconciled, and where protection should be given to the people against their fraud and injustice. ___________________________ I've been searching for more references having to do with what I call Gate Keeping, as to who validated accusations so as open the gate and allow due process to proceed according to the common law principles. If the gate is kept closed by criminals operating a counterfeit government power, then they will never allow themselves to be held to an accurate accounting of their crimes: no more than a criminal who is profiting handsomely according to a well organized criminal enterprise is going to suddenly grow a conscience and start paying back all the money (power) stolen up to that point. The above quote is interesting as the people, employing themselves as jurists (judges of fact, law, guilt, innocence, and sentence, judgment, punishment, banishment, or whatever) attended their courts of conscience armed. That makes sense, contrary to today's procedure whereby the counterfeit government officials suspect everyone as potential terrorist, and subject everyone (excluding themselves of course) to RAPE - E - SCAN, body cavity searches, before anyone is allowed to attend the Kangaroo Courts of Summary Just US.
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| Posted: Wed Nov 1st, 2017 05:37 pm |
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56th Post |
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Joe Kelley Administrator
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Returning to the downloaded PDF version of the Essay on The Trial by Jury by Lysander Spooner (same section): SECTION II The Ancient Common Law Juries were mere Courts of Conscience http://oll.libertyfund.org/titles/spooner-an-essay-on-the-trial-by-jury-1852 Page 57 __________________________ There is no evidence whatever, so far as I am aware, that the juries had any lesspower in the courts held by the king’s justices, than in those held by sheriffs, bailiffs, and stewards; and there is no probability whatever that they had. All the difference between the former courts and the latter undoubtedly was, that, in the former, the juries had the benefit of the advice and assistance of the justices, which would, of course, be considered valuable in difficult cases, on account of the justices being regarded as more learned, not only in the laws of the king, but also in the common law, or “law of the land.” The conclusion, therefore, I think, inevitably must be, that neither the laws of the king, nor the instructions of his justices, had any authority over jurors beyond what the latter saw fit to accord to them. And this view is confirmed by this remark of Hallam, the truth of which all will acknowledge: _______________________________ AND ________________________________ It is evident that it was in this way, by the free and concurrent judgments of juries, approving and enforcing certain laws and rules of conduct, corresponding to their notions of right and justice,that the laws and customs, which, for the most part, made up the common law, and were called, at that day, “the good laws, and good customs,” and “the law of the land,” were established. How otherwise could they ever have become established, as Blackstone says they were, “by long and immemorial usage, and by their universal reception throughout the kingdom,”*when, as the Mirror says, “justice was so done, that every one so judged his neighbor, by such judgment as a man could not elsewhere receive in the like cases, until such times as the customs of the realm were put in writing and certainly published?” The fact that, in that dark age, so many of the principles of natural equity, as those then embraced in the Common Law, should have been so uniformly recognized and enforced by juries, as to have become established by general consent as “the law of the land;” and the further fact that this “law of the land” was held so sacred that even the king could not lawfully infringe or alter it, but was required to swear to maintain it, are beautiful and impressive illustrations of the truth that men’s minds, even in the comparative infancy of other knowledge, have clear and coincident ideas of the elementary principles, and the paramount obligation, of justice. The same facts also prove that the common mind, and the general, or, perhaps, rather, the universal conscience, as developed in the untrammelled judgments of juries, may be safely relied upon for the preservation of individual rights in civil society; and that there is no necessity or excuse for that deluge of arbitrary legislation, with which the present age is overwhelmed, under the pretext that unless laws be made,the law will not be known; a pretext, by the way, almost universally used for overturning, instead of establishing, the principles of justice. _________________________________
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| Posted: Wed Nov 1st, 2017 05:50 pm |
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57th Post |
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Joe Kelley Administrator
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On the barefootsworld page the Trial by Jury Essay offers more information concerning the encroachments from authoritative power (jurisdiction) commanded by the people as the people are represented by jury members randomly selected from the country, in trial by the country, in courts of conscience. Example: http://www.barefootsworld.net/trial03.html#p51 __________________________________ The hundred, however, and county courts, were not equal of themselves for the purposes of jurisdiction and order. It was necessary that a court should be erected, of supreme authority, where the disputes of the great should be decided, where the disagreeing sentiments of judges should be reconciled, and where protection should be given to the people against their fraud and injustice. ___________________________________ In context of previously explained powers of lawful action (jurisdiction) the people themselves try the case, fact finding, and consent to, or veto laws, determine sentencing, based upon determination of guilt, done so unanimously, and all it takes is ONE single juror to acquit. Which means no double jeopardy if a criminal judge demands as many retrials as will suffice to finally find 12 people who agree with the persecuting judge as to guilt of the accused. The government could appeal a guilty verdict rendered by a common law jury, if the judge could convince the people that the common law jury found guilt in error of procedure.
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| Posted: Wed Nov 1st, 2017 06:59 pm |
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58th Post |
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Joe Kelley Administrator
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Back to the downloaded copy of An Essay on the Trial by Jury is a reference to the formation time-period of the Gate Keeping, Grand Jury, process. Page 59 _______________________ SECTION III. The Oaths Of Jurors The oaths that have been administered to jurors, in England, and which are their legal guide to their duty,all(so far as I have ascertained them) corroborate the idea that the jurors are to try all cases on their intrinsic merits, independently of any laws that they deem unjust or oppressive. It is probable that an oath was never administered to a jury in England, either in a civil or criminal case, to try it according to law. The earliest oath that I have found prescribed by law to be administered to jurors is in the laws of Ethelred, (about the year 1015,) which require that the jurors “shall swear, with their hands upon a holy thing, that they will condemn no manthat is innocent, nor acquit any that is guilty.”—4Blackstone,302. 2Turner’s History of the AngloSaxons,155.Wilkins’ Laws of the Anglo-Saxons,117.Spelman’s Glossary,word Jurata. Blackstone assumes that this was the oath of the grand jury (4Blackstone,302); but there was but one jury at the time this oath was ordained. The institution of two juries, grand and petit, took place after the Norman Conquest. Hume, speaking of the administration of justice in the time of Alfred, says that, in every hundred, “Twelve freeholders were chosen, who, having sworn, together with the hundreder, or presiding magistrate of that division,to administer impartial justice,proceeded to the examination of that cause which was submitted to their jurisdiction.” ______________________________ So...previous to the Norman Conquest in England the law of the land (legem terrae) was the common law, and there was but one type of jury, not two, and before moving on, at this time, it seems appropriate to return to the American adaptation of Trial by Jury, according to the common law, whereby an American judge offers an opinion concerning the demarcation line between the two juries: 1. Petty or trial Jury, and 2. Grand or inquest jury (gate keeper). https://supreme.justia.com/cases/federal/us/1/236/ U.S. Supreme Court RESPUBLICA v. SHAFFER, 1 U.S. 236 (1788) Court of Oyer and Terminer, at Philadelphia February Sessions, 1788 ___________________________ 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 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 bias 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. _______________________________________
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| Posted: Wed Nov 1st, 2017 07:21 pm |
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59th Post |
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Joe Kelley Administrator
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Stepping back now, to be reminded of the employment of an employee, whose job is to inform the people, not order them to submit to the will of this employee, is the following: ______________________________ “Ad questionem juris non respondent Juratores.” (To the question of law the jurors do not answer.) “The Annotist says, that this is indeed a maxim in the Civil-Law Jurisprudence, but it does not bind an English jury, for by the common law of the land the jury are judges as well of the matter of law, as of the fact, with this difference only, that the (a Saxon word) or judge on the bench is to give them no assistance in determining the matter of fact, but if they have any doubt among themselves relating to matter of law, they may then request him to explain it to them, which when he hath done, and they are thus become well informed, they, and they only, become competent judges of the matter of law. And this is the province of the judge on the bench, namely, to show, or teach the law, but not to take upon him the trial of the delinquent, either in matter of fact or in matter of law.” (Here various Saxon laws are quoted.) “In neither of these fundamental [71] laws is there the least word, hint, or idea, that the earl or alderman (that is to say, the Prepositus (presiding officer) of the court, which is tantamount to the judge on the bench) is to take upon him to judge the delinquent in any sense whatever, the sole purport of his office is to teach the secular or worldly law.” —Ditto, p. 57, note. _______________________ Judges are there to teach the people about the law: not dictate to them. And reinforcing the allodial nature of land ownership: ____________________________ Also, “The same regulations, concerning the distribution of justice by the intervention of juries, . . were introduced into the baron courts of the king, as into those of the nobility, or such of his subjects as retained their allodial property.” —Same, p. 337. _____________________________ Both quotes above from SECTION I.: Weakness of the Regal Authority. Essay on the Trial by Jury
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| Posted: Sun Nov 12th, 2017 04:10 pm |
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60th Post |
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Joe Kelley Administrator
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https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?article=1096&context=facscholar The U.S. Supreme Court's Failure to Fix Plea Bargaining: The Impact of Lafler and Frye Plea bargaining is deeply entrenched in the U.S. criminal justice system. Overall, ninety-four percent to ninety-seven percent of criminal cases are resolved by guilty pleas and not through trials.' Plea bargaining in the United States began in the late eighteenth century and became the "dominant means of resolving criminal cases" by the nineteenth century.' The criticism includes that plea bargaining fails to protect defendants' rights,o is a form of torture, is overly coercive, 2 leads defendants to "game" the system," fails to take victims into account, 4 reinforces inequality (particularly towards ethnic minorities)," leads to disparate sentencing," gives defendants better deals than they deserve," and undermines our system of justice due to its overuse at the expense of jury trials." Critics of plea bargaining express concern both about specific aspects of plea bargaining'9 and about the system as a whole.20
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