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From: ims@frogfarm.org (Ian M. Schirado)
Organization: The Frog Farm
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Subject: The Frog Farm Frequently Asked-for Quotes (FFFAQ)
Summary: No original thinking, just a lot of well-settled precedent
Keywords: common law sovereign government philosophy activism individualism
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The Frog Farm FAQ
September 1st, 1993
"Laws are made for us; we are not made for the laws."
- William Milonoff
*****
TABLE OF CONTENTS
1....Introduction
2....Disclaimer
3....Revision History
4....List of Topics
5....Actual Topics
*****
INTRODUCTION
The purpose of the Frog Farm is to discuss issues which involve a Free People
and their Public Servants, and how to deal with the various problems that can
arise between a free person who exercises and demands Rights and errant public
servants who exceed the scope of their powers. Topics covered include the
rights of Man and subsequent obligations, the nature of the contract for
government, the Federal and State Constitutions of the United States and their
Amendments, various types of Jurisdiction, and defending rights in the
courtroom.
The newsgroup alt.society.sovereign has recently (May 1993) become relatively
active recently in providing relevant information. Those interested in the
topics presented are highly encouraged to thoroughly read this document before
posting or requesting subscriptions to the mailing list.
The Frog Farm's FAQ is unique among FAQ's in that the answers consist of
information derived from only one source, that being the courts of the fifty
States and the federal Supreme Court (and thus the only authoritative source
regarding the subject matter). The information in question is also in the form
of legal citations, rather than a question-and-answer format. The Supreme
Court and the lesser appellate courts have repeatedly ruled on many points,
and they are rightfully described as "well settled". Unfortunately, most of
the time this established law goes unused out of fear or ignorance. The Frog
Farm is a clearinghouse for all information regarding defending one's rights
in the courtrooms of America. With the recent expansions of the Internet's
size and scope, and the millions of participants now discovering its vast,
untapped potential which is even now struggling to throw off the last vestiges
of its governmental umbilical cords, it is hoped that this information will
find an appreciative audience.
*****
DISCLAIMER
The Frog Farm was created to provide participants with a forum with which to
share their findings and opinions based on research and analysis of the
subject matter covered, drawing from personal experience where applicable.
Information is not provided for the purpose of providing legal or any other
professional services, which can only be provided by professionals. The
material written by the host and other private participants on this message
base is not intended to be construed as legal advice. Information contained
herein that may pertain to tax or legal situations is for informational or
descriptive purposes only and no attempt to advise is intended or implied.
Information relative to such areas may be used in cooperation with competent
jurists or otherwise at the discretion of the reader. As there is always an
element of risk in exercising and defending one's lawful rights regardless of
the country one chooses to live in, neither the moderator, author of any
posted message or the administrator of any site involved in the transmission
of any messages posted, assumes any responsibility or liability for any loss
or damage incurred either directly or indirectly, as a consequence of the use
of any information herein provided through the Frog Farm.
All information provided is applicable, firstly, only to those living within
the geographical boundaries of one of the fifty States of North America.
(Those living in other countries would be well advised to educate their
friends and neighbors regarding America's unique legal foundation, and perhaps
look into the possibility of moving here.)
After that, whether or not you can exercise and defend Rights will depend on
whether or not you have the following things:
o Pencil and paper. A typewriter helps; a computer may also.
o Access to a good law dictionary. (Bouvier's is the best; use Black's only
if you have no other choice.)
o The ability to competently read and write at least 10% of the English
language.
o The will to learn, change your Status appropriately and defend your
position. The first is much more easily acquired than the others.
*****
REVISION HISTORY
1.0: Released May 10, 1993. Uploaded to uglymouse.css.itd.umich.edu in
/pub/Politics/FrogFarm.
1.1: Released July 4th, 1993. Added new information on Jurisdiction and
Venue; miscellaneous cleaning up and reorganizing.
1.2: Released September 1st, 1993. Cleaned up and reorganized a bit more;
added new citations on the First Amendment and Civil Liability; added
first-ever Frequently Asked Question, to wit, "Why the heck is it
called the Frog Farm?"
*****
LIST OF TOPICS
The best way to view this file is to search for a given string. Each entry in
the list of topics shows what string you should search for in order to find
the beginning of each topic entry. All topics are listed in the order they are
presented in.
To find information about Search for this
--------------------------------------------------------------------
SO WHY THE HECK IS IT CALLED THE FROG FARM, ANYWAY? :whyfrog
ASHWANDER RULES: QUALIFYING FOR THE SUPREME COURT :ashwand
RIGHT TO TRAVEL VS. PRIVILEGE TO DRIVE :drive
RIGHT OF JURIES TO JUDGE BOTH LAW AND FACT :jury
RIGHTS OF INDIVIDUALS VS. RIGHTS OF THE STATE :state
SOME FOURTH AMENDMENT SPECIFIC CASES :4th
HALE VS. HENKEL: INDIVIDUALS ARE SOVEREIGN :hale
WHAT IS SOVEREIGNTY AND WHO ARE SOVEREIGNS? :sov
WHAT IS JURISDICTION AND WHAT ARE ITS LIMITS? :juris
WHAT IS MONEY? :money
SOME QUICK NOTES ON THE 2ND AMENDMENT :2nd
INCOME TAXATION AND THE INFERNAL REVENUE SERVICE :irs
WHAT ABOUT THE FIRST AMENDMENT? :1st
MISCELLANEOUS :misc
****
TOPICS
:whyfrog
There is a tale, possibly apocryphal or metaphorical, attributed by most to
Mark Twain, of how to cook a frog. If you drop a frog in a pot of boiling
water, so the story goes, he'll jump right back out just as quickly. But if
you put him in a pot of cold water, and slowly heat it up, he'll stay right
there...until it's too late, and he's boiled alive.
The tale is usually mentioned in the context of gradualism, or the tendency
of governments to always increase its power at the expense of the governed.
About three and a half years ago, I met someone on an electronic bulletin
board who called himself "Frog Farmer", who introduced me to the topics
discussed herein. (Although I use the masculine, it should be noted that I
never met FF in person, and it is equally likely for FF to be female.) When
I asked him why he chose that particular handle, he told me the above story.
In honor of his tireless sense of humor, and everything he introduced me to,
this FAQ is dedicated to him.
:ashwand
THE ASHWANDER RULES: QUALIFYING YOUR CASE FOR THE SUPREME COURT
The Supreme Court has developed seven rules, called the "Ashwander Rules"
(Ashwander v. Tennessee Valley Authority 297 US 288,346 (1935)) for qualifying
a case to be heard there. According to Justice Brandeis:
"The Court developed, for its own governance in the cases confessedly
within its jurisdiction, a series of rules under which it has avoided passing
upon a large part of all the constitutional questions pressed upon it for
decision. They are:
1. The Court will not pass upon the constitutionality of legislation in a
friendly, non-adversary, proceeding, declining because to decide such
questions 'is legitimate only in the last resort, and as a necessity in the
determination of real, earnest and vital controversy between individuals. It
was never thought that, by means of a friendly suit, a party beaten in the
legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.' Chicago & Grand Trunk RR v.
Wellman, 143 U.S. 339,345.
2. The Court will not 'anticipate a question of constitutional law in
advance of the necessity of deciding it.' Wilshire Oil Co. v. US, 295 US 188
'It is not the habit of the Court to decide questions of a constitutional
nature unless absolutely necessary to the decision of a case.' Burton v. US,
196 US 283,295.
3. The Court will not 'formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be applied.'
Liverpool N.Y. & P.S.S. Co. v. Emigration Commissioners, 113 US 33,39.
4. The Court will not pass upon a constitutional question although
properly presented by the record, if there is also present some other ground
upon which the case may be disposed of. This rule has found most varied
application. Thus, if a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter. Light v.
US, 220 US 523,538.
5. The Court will not pass upon the validity of a statute upon complaint
of one who fails to show that he is injured by its operation. Tyler v. The
Judges, 179 US 405 Among the many applications of this rule, none is more
striking than the denial of the right of challenge to one who lacks a personal
or property right.
6. The Court will not pass upon the constitutionality of a statute at the
instance of one who has availed himself of its benefits. Great Falls Mfg. Co.
v. Attorney General 124 US 581.
7. 'When the validity of an act of Congress is drawn in question, and
even if a serious doubt of constitutionality is raised, it is a cardinal
principle that this Court will first ascertain whether a construction of the
statute is fairly possible by which the question may be avoided.' Crowell v.
Benson, 285 US 22,62."
:drive
RIGHT TO TRAVEL V. PRIVILEGE TO DRIVE
"The navigable waters leading into the Mississippi and St. Lawrence,
*and the carrying places between the same, shall be common highways and
forever free*, as well to the inhabitants of the said territory as to
the citizens of the United States, and those of any other States that
may be admitted into the confederacy, without any tax, impost, or duty
therefor." [Northwest Ordinances, Article 4]
"Highways are for the use of the traveling public, and all have the right to
use them in a reasonable and proper manner; the use thereof is an inalienable
right of every citizen." Escobedo v. State 35 C2d 870 in 8 Cal Jur 3d p.27
"Users of the highway for transportation of persons and property for
hire may be subjected to special regulations not applicable to those
using the highway for public purposes." Richmond Baking Co. v.
Department of Treasury 18 N.E. 2d 788.
"Constitutionally protected liberty includes... the right to travel..."
13 Cal Jur 3d p.416
In California, a license is defined as "A permit, granted by an
appropriate governmental body, generally for a consideration, to a
person or firm, or corporation to pursue some occupation or to carry on
some business subject to regulation under the police power." Rosenblatt
v. California 158 P2d 199, 300.
"Operation of a motor vehicle upon public streets and highways is not a
mere privilege but is a right or liberty protected by the guarantees of
Federal and State constitutions." Adams v. City of Pocatello 416 P2d 46
"A citizen may have the right, under the 14th amendment to the
Constitution of the United States, to travel and transport his property
upon the public highways by auto vehicle, but he has no right to make
the highways his place of business by using them as a common carrier for
hire; such use being a privilege which may be granted or withheld by the
state in its discretion, without violating the due process or equal
protection clauses." In Re Graham 93 Cal App 88.
"The license charge imposed by the motor vehicle act is an excise or
privilege tax, established for the purpose of revenue in order to provide
a fund for roads while under the dominion of the state authorities, it is
not a tax imposed as a rental charge or a toll charge for the use of the
highways owned and controlled by the state." - PG&E v. State Treasurer,
168 Cal 420.
"The same principles of law are applicable to them as to other vehicles
upon the highway. It is therefore, the adaptation and use, rather than
the form or kind of conveyance that concerns the courts." Indiana Springs
Co. v. Brown, 74 N.E. 615.
"The automobile is not inherently dangerous." Moore v. Roddie, 180 P.
879, Blair v. Broadmore 93 S.E. 632.
"The use of the automobile as a necessary adjunct to the earning of a
livlihood in modern life requires us in the interest of realism to
conclude that the RIGHT to use an automobile on the public highways
partakes of the nature of a liberty within the meaning of the
Constitutional guarantees. . ." Berberian v. Lussier (1958) 139 A2d 869,
872
"Truck driver's failure to be licensed as chauffeur does not establish
him or his employer as negligent as a matter of law with respect to
accident in which driver was involved, in absence of any evidence that
lack of such license had any casual or causal connection with the accident."
Bryant v. Tulare Ice Co. (1954) 125 CA 2d 566
"The RIGHT of the citizen to DRIVE on the public street with freedom
from police interference, unless he is engaged in suspicious conduct
associated in some manner with criminality is a FUNDAMENTAL CONSTITUTIONAL
RIGHT which must be protected by the courts." People v. Horton 14 Cal. App.
3rd 667 (1971)
"The RIGHT to TRAVEL on the public highways is a constitutional right."
Teche Lines v. Danforth, Miss. 12 So 2d 784, 787.
"The right to travel is part of the 'liberty' that a citizen cannot be
deprived without due process of law." Kent v. Dulles 357 U.S. 116, U.S. v.
Laub 385 U.S. 475
"A citizen may have the right, under the 14th amendment to the
Constitution of the United States, to travel and transport his property upon
the public highways by auto vehicle, but he has NO right to make the
highways his place of business by using them as a common carrier for hire;
such use being a privilege which may be granted or withheld by the state in
its discretion, without violating the due process or equal protection
clauses." In Re Graham 93 Cal App 88.
"One who DRIVES an automobile is an operator within meaning of the Motor
Vehicle Act." Pontius v. McClean 113 CA 452
"The word 'operator' shall not include any person who solely transports
his own property and who transports no persons or property for hire or
compensation." Statutes at Large California Chapter 412 p.833
"The right of a citizen to travel upon the public highways and to transport
his property thereon, by horse-drawn carriage, wagon, or automobile is
not a mere privilege which may be permitted or prohibited at will, but a
common right which he has under his right to life, liberty, and the
pursuit of happiness." Slusher v. Safety Coach Transit Co., 229 Ky 731, 17
SW2d 1012, and affirmed by the Supreme Court in Thompson v. Smith 154 S.E.
579.
"CVC 17459. The acceptance by a resident of this state of a
certificate of ownership or a certificate of registration of any motor
vehicle or any renewal thereof, issued under the provisions of this code,
shall constitute the CONSENT by the person that service of summons may be
made upon him within or without this state, whether or not he is then a
resident of this state, in any action brought in the courts of this state
upon a cause of action arising in this state out of the ownership or
operation of the vehicle." California Vehicle Code
"CVC 17460. The acceptance or retention by a resident of this state of
a driver's license issued pursuant to the provisions of this code, shall
constitute the CONSENT of the person that service of summons may be made upon
him within or without this state, whether or not he is then a resident of
this state, in any action brought in the courts of this state upon a cause
of action arising in this state out of his operation of a motor vehicle
anywhere within this state." California Vehicle Code
:jury
INFORMED JURIES OF BOTH LAW AND FACT
"It may not be amiss here, gentlemen, to remind you of the good old rule, that
on the question of fact, it is the province of the jury, and on the question
of law, it is the province of the court to decide....it is presumed, that
juries are the best judges of facts; it is, on the other hand, presumed that
the courts are the best judges of law. But, it must be observed that by
law...you have nevertheless a right to take it upon yourselves to judge both,
in controversy...both objects are lawfully within your power of decision."
Justice John Jay to the jury, Georgia v. Brailsford, 3 Dall 1 (1794)
"The jury has an unreviewable and irreversible power...to acquit in disregard
of the instructions on the law given by the trial judge." U.S. v Dougherty,
473 F2d 1113, 1139 (1972). Other info related to Dougherty case: 16 Am Jur
2d, Sec. 177.
"Jury lawlessness is the greatest corrective of law in its actual
administration. The will of the state at large imposed on a reluctant
community, the will of a majority imposed on a vigorous and determined
minority, find the same obstacle in a local jury that formerly confronted
kings and ministers." Dougherty, cited above, note 32, at 1130.
"The pages of history shine on instances of the jury's exercise of its
prerogative to disregard uncontradicted evidence and instructions to the
judge. Most often commended are the 18th century of Peter Zenger of seditious
libel, on the plea of Alexander Hamilton, and the 19th century acquittals in
prosecutions under the fugitive slave law." Dougherty, cited above, at 1130.
"The way the jury operates may be radically altered if there is alteration in
the way it is told to operate." (Dougherty, cited above, at 1135.) The jury's
options are by no means limited to the choices presented to it in the
courtroom...The jury gets its understanding as to the arrangements in the
legal system from more than one voice. There is the formal communication from
the 'judge'. There is the informal communication from the total culture -
literature; current comment, conversation; and, of course, history and
tradition." Dougherty, cited above, at 1135.
"...the jury has the power to bring in a verdict in the teeth of both law and
facts." Oliver Wendell Holmes, 1920 Horning v DC. 254 US 135
"...no fact tried by a jury shall be otherwise reexamined in any court of the
United States, than according to the rules of the common law." U.S.
Constitution, 7th Amendment. [Only another common law jury can review a
decision of a jury. There is no other appeal. Not even the Supreme Court can
review a jury's decision.]
"We recognize, as appellants urge, the undisputed power of the jury to
acquit, even if its verdict is contrary to the law as given by the judge,
and contrary to evidence. This is a power that must exist as long as we
adhere to the general verdict in criminal cases, for the courts cannot
search the minds of jurors to find the basis upon which they judge. If the
jury feels that the law under which the defendant is accused is unjust, or
that exigent circumstances justified the actions of the accused, or for
any reason which appeals to their logic or passion, the jury has the
power to acquit, and the courts must abide by the decision." U.S. vs. Moylan,
417 F2d 1002, 1006 (1969).
"The People themselves have it in their power effectually to resist
usurpation, without being driven to an appeal in arms. An act of
usurpation is not obligatory: it is not law; and any man may be
justified in his resistance. Let him be considered as a criminal by the
general government, yet only his fellow citizens can convict him, they are
his jury, and if they pronounce him innocent, not all the powers of Congress
can hurt him; and innocent they surely will pronounce him, if the supposed
law he resisted was an act of usurpation." 2 Elliot's Debates, 94; 2
Bancroft, History of the Constitution, 297.
:states
INALIENABLE RIGHTS AND STATES' RIGHTS
"There can be no sanction or penalty imposed upon one because of his
exercise of Constitutional rights." Sherar v. Cullen 481 F. 946
"Where rights secured by the Constitution are involved, there can be no
rule-making or legislation which would abrogate them." U.S. Supreme
Court in Miranda v. Arizona 380 U.S. 436 (1966)
"Constitutional rights may not be infringed simply because the majority
of the people choose that they be." Westbrook v. Mihaly 2 C3d 756
"The right to counsel exists not only at the trial thereof, but also at
every stage of a criminal proceeding where substantial rights of a
criminal accused may be effected." Mempha v. Rhay 389 U.S. 128
"A conviction obtained where the accused was denied counsel is treated
as void for all purposes." Burgett v. Texas 389 U.S. 109
"A plaintiff who seeks damages for violation of constitutional or
statutory rights may overcome the defendant official's qualified
immunity only by showing that those rights were clearly established at
the time of the conduct at issue." Davis v. Scherer, 82 L.Ed.2d 139,151.
"All laws which are repugnant to the Constitution are null and void."
Marbury v. Madison, 5 US (2 Cranch) 137, 174, 176, (1803)
"The Bill of Rights was provided as a barrier, to protect the individual
against arbitrary exactions of majorities, executives, legislatures,
courts, sheriffs, and prosecutors, and it is the primary distinction
between democratic and totalitarian processes." STANDLER. Supreme
Court of Florida en Banc, 36 So 2d 443, 445 (1948)
"Government may not prohibit or control the conduct of a person for
reasons that infringe upon constitutionally guaranteed freedoms." Smith
v. U.S. 502 F2d 512 CA Tex (1974)
"Where rights secured by the constitution are involved, there can be no
rule-making or legislation which would abrogate them." Miranda v.
Arizona (U.S. Supreme Court) 380 US 436 (1966)
"There can be no sanction or penalty imposed upon one because of his
exercise of Constitutional rights." Sherar v. Cullen 481 F2d 946 (1973)
"We find it intolerable that one constitutional right should have to be
surrendered in order to assert another." Simmons v. US, 390 US 389
(1968)
"The claim and exercise of a Constitutional right cannot be converted to
a crime." Miller v. US, 230 F 486 at 489
"When any court violates the clean and unambiguous language of the
constitution, a fraud is perpetrated and no one is bound to obey it."
State v. Sutton 63 Minn 167, 65 NW 262, 30 LRA 630
"The state cannot diminish rights of the people." Hurtado v. California
110 US 516.
"A state may not impose a charge for the enjoyment of a right granted
by the Federal Constitution." Murdock v. Pennsylvania, 319 U.S. 105 (1943)
"Justice Douglas maintained that the privileges and immunities clause
was the proper basis for the holding and further insisted that freedom
of movement was a right of national citizenship binding upon the states
and recognized as such by Crandall v. Nevada (73 US 35) before the 14th
Amendment was ratified." in Edwards v. California 314 US 160
"Moreover, a distinction must be observed between a regulation of an
activity which may be engaged in as a matter of right and one carried on
by government sufference or permission. In the latter case the power to
exclude altogether generally includes the lesser power to condition and
may justify a degree of regulation not admissable in the former."
Packard v. Banton 264 US 140
"Failure to obey the command of a police officer constitutes a
traditional form of breach of the peace. Obviously, however, one cannot
be punished for failing to obey the command of an officer if the command
itself is violative of the constitution." Wright v. Georgia 373 US 284
"Constitutional rights may not be infringed simply because the majority
of the people choose that they be." Westbrook v. Mihaly 2 C3d 756
:4th
SOME FOURTH AMENDMENT SPECIFIC CASES
Brown v Texas,443 U.S. 47 (1979): "Two police officers, while
cruising near noon in a patrol car, observed appellant and another man
walking away from one another in an alley in an area that had a high
incidence of drug traffic. They stopped and asked appellant to identify
himself and explain what he was doing. One officer testified that he
stopped appellant because the situation 'looked suspicious and we had
never seen that subject in that area before.' The officers did not
claim to suspect appellant of any specific misconduct, nor did they have
any reason to believe that he was armed. When appellant refused to
identify himself, he was arrested for violation of a Texas statute which
makes it a criminal act for a person to refuse to give his name and
address to an officer 'who has lawfully stopped him and requested the
information.' Appeallant's motion to set aside information charging him
with violation of the statute on the ground that the statute violated
the First, Fourth, Fifth, and Fourteenth Amendments was denied, and he
was convicted and fined."
HELD: The application of the Texas statute to detain appellant and
require him to identify himself violated the Fourth Amendment because
the officers lacked any reasonable suspicion to believe that appellant
was engaged or had engaged in criminal conduct. Detaining appellant to
require him to identify himself constituted a seizure of his person
subject to the requirement of the Fourth Amendment that the seizure be
'reasonable.' Cf. Terry v. Ohio, 392 U.S. 1;... Delaware v. Prouse, 440
U.S. 648. Here, the state does not contend that appellant was stopped
pursuant to a practice embodying neutral criteria, and the officer's
actions were not justified on the ground that they had a reasonable
suspicion, based on objective facts, that he was involved in criminal
activity. Absent any basis for suspecting appellant of misconduct, the
balance between the public interest in crime prevention and appellant's
right to personal security and privacy tilts in favor of freedom from
police interference. Pp. 50-53.
Mr. Chief Justice Burger delivered the opinion of the court; "This
appeal presents the question whether appellant was validly convicted for
refusing to comply with a policeman's demand that he identify himself
pursuant to a provision of the Texas Penal Code which makes it a crime
to refuse such identification on request."
"Appellant refused to identify himself and angrily asserted that
the officers had no right to stop him."
"The Fourth Amendment, of course, `applies to all seizures of the
person, including seizures that involve only a brief detention short of
traditional arrest.' Davis v. Mississippi, 394 U.S. 721 (1969); Terry
v. Ohio, 392 U.S. 1, 16-19 (1968). '[W]henever a police officer accosts
an individual and restrains his freedom to walk away, he has 'seized'
that person... and the fourth Amendment requires that the seizure be
'reasonable'.' U.S. v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)"
"We need not decide whether an individual may be punished for
refusing to identify himself in the context of a lawful investigatory
stop which satisfies Fourth Amendment requirements. See Dunaway v. New
York, 442 U.S. 200,210 n.12 (1979); Terry v. Ohio... the county judge
who convicted appellant was troubled by this question, as shown by the
colloquy set out in the appendix to this opinion."
"Accordingly, appellant may not be punished for refusing to
identify himself, and the conviction is Reversed."
"APPENDIX TO THE OPINION OF THE COURT
"THE COURT:...What do you think about if you stop a person lawfully,
and then if he doesn't want to talk to you, you put him in jail for
committing a crime?"
"MR. PATTON [prosecutor]: Well first of all, I would question the
defendant's statement in his motion that the first amendment gives an
individual the right to silence."
"THE COURT:...I'm asking you why should the State put you in jail
because you don't want to say anything?"
"MR. PATTON: Well, I think there's certain interests that have to be
viewed."
"THE COURT: Okay, I'd like you to tell me what those are."
"MR. PATTON: Well, the Governmental interest to maintain the safety
and security of the society and the citizens to live in the society,
and there are certainly strong Governmental interests in that
direction and because of that, these interests outweigh the interests
of an individual for a certain amount of intrusion upon his personal
liberty. I think these Governmental interests outweigh the
individual's interests in this respect, as far as simply asking an
individual for his name and address under the proper circumstances."
THE COURT: But why should it be a crime to not answer?"
"MR. PATTON: Again, I can only contend that if an answer is not given,
it tends to disrupt."
"THE COURT: What does it disrupt?"
"MR. PATTON: I think it tends to disrupt the goal of this society to
maintain security _over_ its citizens to make sure they are secure in
their gains and their homes."
"THE COURT: How does that secure anybody by forcing them, under
penalty of being prosecuted, to giving their name and address, even
though they are lawfully stopped?"
"MR. PATTON: Well I, you know, under the circumstances in which some
individuals would be lawfully stopped, it's presumed that perhaps this
individual is up to something, and the officer is doing his duty
simply to find out the individual's name and address, and to determine
exactly what is going on."
"THE COURT: I'm not questioning, I'm not asking whether the officer
shouldn't ask questions. I'm sure they should ask everything they
possibly could find out. What I'm asking is what's the State's
interest in putting a man in jail because he doesn't want to answer
something. I realize lots of times an officer will give a defendant a
Miranda warning which means a defendant doesn't have to make a
statement. Lots of defendants go ahead and confess, which is fine if
they want to do that. But if they don't confess, you can't put them
in jail, can you, for refusing to confess to a crime?"
Davis v. Mississippi, 394 U.S. 721: "Fingerprint evidence is no exception to
the rule that all evidence obtained by searches and seizures in violation of
the constitution is inadmissible in a state court. Pp.723-724. The Fourth
Amendment applies to involuntary detention occurring at the investigatory
stage as well as at the accusatory stage. Pp. 726-727. Detentions for the
sole purpose of obtaining fingerprints are subject to the constraints of the
Fourth amendment.. P.727. "Nor can fingerprint detention be employed
repeatedly to harass any individual, since the police need only one set of
each person's prints...the general requirement that the authorization of a
judicial officer be obtained in advance of detention would seem not to admit
of any exception in the fingerprinting context."
:hale
HALE VS. HENKEL: INDIVIDUALS EXIST FOR THEIR OWN SAKE
AND ARE SOVEREIGNS OVER GOVERNMENT
Hale v. Henkel, 201 U.S. 43:
"...we are of the opinion that there is a clear distinction in this
particular between an INDIVIDUAL and a CORPORATION, and that the latter
has no right to refuse to submit its books and papers for an examination
at the suit of the state. The individual may stand upon his
constitutional rights as a citizen. He is entitled to carry on his
private business in his own way. His power to contract is unlimited. He
owes no duty to the state or to his neighbors to divulge his business,
or to open his doors to an investigation, so far as it may tend to
criminate him. He owes no such duty to the state, since he receives
nothing therefrom, beyond the protection of his life and property. His
rights are such as existed by the law of the land long antecedent to the
organization of the state, and can only be taken from him by due process
of law, and in accordance with the Constitution. Among his rights are a
refusal to incriminate himself, and the immunity of himself and his
property from arrest and seizure except under a warrant of the law. He
owes nothing to the public so long as he does not trespass upon their
rights. Upon the other hand, the corporation is a creature of the state.
..."
"The right of a person under the 5th Amendment to refuse to incriminate
himself is purely a personal privilege of the witness. It was never
intended to permit him to plead the fact that some third person might
be incriminated by his testimony, even though he were the agent of such
person."
And this case also gives us one of the Frog Farm's Golden Rules:
"Rights are only afforded the belligerent claimant in person."
Some other lines of defense can be seen in the following cases:
Powell v. Alabama, 287 U.S. 45: "In this court the judgements are assailed
upon the grounds that the defendants, and each of them, were denied due
process of law and the equal protection of the laws, in contravention of
the Fourteenth amendment, specifically as follows... (2) they were denied
the right of counsel, with the accustomed incidents of consultation and
opportunity of preparation for trial;" "However guilty defendants, upon
due inquiry, might prove to have been, they were, until convicted,
presumed to be innocent. It was the duty of the court having their cases in
charge to see that they were denied no necessary incident of a fair
trial, with any error of the state court involving alleged contravention of
the state statutes or constitution we, of course, have nothing to do.
The sole inquiry which we are permitted to make is whether the federal
Constitution was contravened... and as to that, we confine ourselves, as
already suggested, to the inquiry whether the defendants were in substance
denied the right of counsel..." "It is hardly necessary to say that, the
right to counsel being conceded, a defendant should be afforded a fair
opportunity to secure counsel of his own choice. Not only was that not done
here, but such designation of counsel as was attempted was either so
indefinite or so close upon the trial as to amount to a denial of
effective and substantial aid in that regard." "In any event, the
circumstance lends emphasis to the conclusion that during perhaps the most
critical period of the proceedings against these defendants, that is to
say, from the time of their arraignment until the beginning of their
trial, when consultation, thoroughgoing investigation and preparation were
vitally important, the defendants did not have the aid of counsel in any
real sense, although they were as much entitled to such aid during that
period as at the trial itself. People ex rel. Burgess v. Risley, 66
How.Pr. (N.Y.) 67; Batchelor v. State, 189 Ind. 69, 76; 125 N.E. 733."
"It is not enough to assume that counsel thus precipitated into the case
thought there was no defense, and exercised their best judgement in proceeding
to trial without preparation. Neither they nor the court could say what a
prompt and thoroughgoing investigation might disclose as to the facts. No
attempt was made to investigate. No opportunity to do so was given.
Defendants were immediately hurried to trial."
"Under the circumstances disclosed, we hold that defendants were not
accorded the right of counsel in any substantial sense." "It is vain to
give the accused a day in court, with no opportunity to prepare for it, or
to guarantee him counsel without giving the latter any opportunity to
acquaint himself with the facts or law of the case."
"As early as 1798 it was provided by statute, in the very language of the
Sixth amendment to the Federal Constitution, that 'In all criminal
prosecutions, the accused shall enjoy the right... to have the assistance of
counsel for his defence;"
"What, then, does a hearing include? Historically and in practice, in our own
country at least, it has always included the right to the aid and assistance
of counsel when desired and provided by the party asserting the right."
"The United States by statute and every state in the Union by express
provision of law, or by the determination of its courts, make it the duty of
the trial judge, where the accused is unable to employ counsel, to appoint
counsel for him."
[Frog Farmer sez: Be careful! Use the due process provisions of the 5th
amendment, not the unlawful 14th! Powell claimed 14th amendment
citizenship.]
Almeida-Sanchez, 413 U.S. 266: Petitioner, a Mexican citizen and
holder of a valid work permit, challenges the constitution-ality of the
Border Patrol's warrantless search of his automobile 25 air miles north
of the mexican border. The search, made without probable cause or
consent, uncovered marihuana, which was used to convict petitioner of a
federal crime. . .
Held: The warrantless search of petitioner's automobile, made
without probable cause or consent, violated the Fourth Amendment. Pp
269-275. (a)The search cannot be justified on the basis of any special
rules applicable to automobile searches, as probable cause was lacking;
nor can it be justified by analogy with administrative inspections, as
the officers had no warrant or reason to believe that petitioner had
crossed the border or committed an offense, and there was no consent by
petitioner. Pp269-272.
"The search in the present case was conducted in the unfettered
discretion of the members of the border Patrol, who did not have a
warrant, probable cause, or consent. The search thus embodied precisely
the evil the court saw in Camara when it insisted that the 'discretion
of the official in the field' be circumscribed by obtaining a warrant
prior to the inspection."
"Two other administrative inspection cases relied upon by the
government are equally inapposite. Colonnade Catering Corp. v. U.S.,
397 U.S. 72, and U.S. v. Biswell, 406 U.S. 311, both approved
warrantless inspections of commercial enterprises engaged in businesses
closely regulated and licensed by the Government...A central difference
between those cases and this one is...petitioner here was not engaged
in any regulated or licensed business."
Just in case our rights are violated by some well-meaning but errant
public servant, we have this handy little law to assist us in obtaining
redress of our grievances:
Title 42 USC )1983:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or territory, or the District
of Columbia, subjects, or causes to be subjected, any citizen of the
United States, or other person within the jurisdiction thereof, to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity or other proper proceedings for redress."
Notice that this statute recognises the fact that "statutes,
ordinances, and regulations" together with "custom", can be
unconstitutional and violate our rights. Where they do so, it is up to
us to challenge their jurisdiction over us. Failure to challenge
jurisdiction at the first instance of a rights violation can be fatal to
your case, and will be seen as an admission that the law in question
does indeed have jurisdiction over you. So you better know your rights,
right?
"To maintain an action under 42 USC 1983, it is not necessary to
allege or prove that the defendants intended to deprive plaintiff of his
Constitutional rights or that they acted willfully, purposefully, or in
a furtherance of a conspiracy. . . it is sufficient to establish that
the deprivation. . . was the natural consequences of defendants acting
under color of law. . . ." Ethridge v. Rhodos, DC Ohio 268 F Supp 83
(1967), Whirl v. Kern CA 5 Texas 407 F 2d 781 (1968)
Title 18 United States Code, Section 241, provides that... "any
person who goes on the highway in disguise to prevent or hinder the free
exercise and enjoyment of any right so secured by law...shall be fined
not more than $10,000.00 or imprisoned not more than ten years or both.
Further, Title 18, United States Code, Section 242, provides for
one or more persons who, under color of law, statute, ordinance,
regulation, or custom, willfully subjects any inhabitant of any state,
territory, or district to the deprivation of rights, privileges, or
immunities secured by the Constitution, or laws of the United States. .
. shall be fined not more than $1,000.00 or imprisoned not more than one
year or both.
Title 18, United States Code, Section 242, with its color of law
provision, gives a cause of action to apply Title 18, United States
Code, Section 241, because Section 241 needs two persons in disguise and
Section 242 provides the second person under color of law as the "QUASI
SUMMONS" mentioned herein implies that a judge in the Municipal Court is
acting in concert to commit an overt act of fraud and extortion for
conversion.
Further, United States Code, Title 18, section 242 provides for one
or more persons who, under color of law, statute, ordinance, regulation,
or custom, willfully subjects any inhabitant of any state, territory, or
district to the deprivation of rights, privileges, or immunities secured
or protected by the Constitution or laws of the United States. . . shall
be fined not more than $1,000 or imprisoned not more than one year or
both.
Usually, it can be phrased something like:
"Demand is upon you to withdraw the invalid Notice #_____ within ten (10)
days from receipt of this Notice and Demand or Action will commence in
the United States District Court pursuant to Rule 7(a) and (c) of the
criminal rules of procedure by the jurisdiction provided in Title 42,
United States Code, sections 1983 and 1985; Title 28, U.S.C. sections
1331 and 1343 and others with Title 18, U.S.C., sections 241, 242, 872,
1621, 1622, and 1623 providing for the administration of the penalties."
"...an...officer who acts in violation of the Constitution ceases to represent
the government." Brookfield Co. v Stuart, (1964) 234 F. Supp 94, 99 (U.S.D.C.,
Wash.D.C.)
"...an officer may be held liable in damages to any person injured in
consequence of a breach of any of the duties connected with his office...The
liability for nonfeasance, misfeasance, and for malfeasance in office is in
his 'individual', not his official capacity..." 70 AmJur2nd Sec. 50, VII Civil
Liability.
"Decency, security, and liberty alike demand that government officials be
subjected to the same rules of conduct that are commands to the citizen. In
a Government of laws, existence of the government will be imperiled if it
fails to observe the law scrupulously. Crime is contagious. If government
becomes a lawbreaker, it breeds contempt for the law...it invites every man
to become a law unto himself...and against that pernicious doctrine, this
court should resolutely set its face." Olmstead v U.S., 277 US 348, 485; 48
S. Ct. 564, 575; 72 LEd 944.
"Law and court procedures that are 'fair on their faces' but administered
'with an evil eye or a heavy hand' was discriminatory and violates the equal
protection clause of the Fourteenth Amendment." Yick Wo v. Hopkins, Sheriff,
118 US 356, (1886).
"Judges must maintain a high standard of judicial performance with particular
emphasis upon conducting litigation with scrupulous fairness and
impartiality." 28 USCA 2411; Pfizer v. Lord, 456 F 2d 532; cert denied 92 S
Ct 2411; US Ct App MN, (1972).
"State Judges, as well as federal, have the responsibility to respect and
protect persons from violations of federal constitutional rights." Gross v.
State of Illinois, 312 F 2d 257; (1963).
:sov
WHO ARE SOVEREIGNS?
"...at the Revolution, the sovereignty devolved on the people; and they are
truly the sovereigns of the country, but they are sovereigns without
subjects.. with none to govern but themselves; the citizens of America are
equal as fellow citizens, and as joint tenants in the sovereignty." CHISHOLM
v. GEORGIA (US) 2 Dall 419, 454, 1 L Ed 440, 455 @DALL 1793 pp. 471-472.
"The words 'sovereign people' are those who form the sovereign, and who hold
the power and conduct the government through their representatives. Every
citizen is one of these people and a constituent member of this sovereignty."
Scott v. Sandford, Mo., 60 US 393, 404, 19 How. 393, 404, 15 L.Ed. 691.
"Sovereignty itself is, of course, not subject to the law, for it is the
author and source of law, but in our system, while sovereign powers are
delegated to the agencies of government, sovereignty itself remains with the
people, by whom and for whom all government exists and acts...For, the very
idea that one man may be compelled to hold his life, or the means of living,
or any material right essential to the enjoyment of life, at the mere will of
another, seems to be intolerable in any country where freedom prevails, as
being the essence of slavery itself." Yick Wo v. Hopkins, Sheriff, 118 U.S.
356.
"'Sovereignty' in government to that public authority which directs or orders
what is to be done by each member associated is relation to the end of the
association. It is the supreme power by which any citizen is governed and is
the person or body of persons in the state to whom there is politically no
superior. The necessary existence of the state and that right and power which
necessarily follow is 'sovereignty'. By 'sovereignty' in its largest sense is
meant supreme, absolute, uncontrollable power, the absolute right to govern.
The word which by itself comes nearest to being the definition of
'sovereignty' is will or volition as applied to political affairs." City of
Bisbee v. Cochise County, 28 P.2d. 982, 986, 52 Ariz. 1.
"'Sovereignty' is a term used to express a supreme political authority of an
independent state or nation. Whatever rights are essential to the existence of
this authority are rights of sovereignty. The rights to declare war, to make
treaties of peace, to levy taxes, and to take property for public uses, termed
the 'right of eminent domain,' are all rights of sovereignty. In this country
this authority is vested in the people, and is exercised through the joint
action of the federal and state governments. To the federal government is
delegated the exercise of certain rights or powetrs of sovereignty, and with
respect to sovereignty, 'rights' and 'powers' are synonymous terms; and the
exercise of all other rights of sovereignty, except as expressly prohibited,
is reserved to the people of the respective states, or vested by them into
their local government. When we say, therefore, that a state of the Union is
sovereign, we only mean that she possesses supreme political authority, except
as to those matters over which such authority is delegated to the federal
government or prohibited to the states." Moore v. Smaw, 17 Cal. 199, 218, 79
Am. Dec. 123.
"The 'sovereign powers' of a government include all the powers necessary to
accomplish its legitimate ends and purposes. Such powers must exist in all
practical governments. They are the incidents of sovereignty, of which a state
cannot divest itself." Boggs v. Merced Min. Co., 14 Cal. 279, 309.
"In all governments of constitutional limitations 'sovereign power' manifests
itself in but three ways. By exercising the right of taxation; by the right of
eminent domain; and through its police power." United States v. Douglas-Willan
Sartoris Co., 22 P. 92, 96. 3 Wyo. 287.
"The term 'sovereign power' of a state is often used without any very definite
idea of its meaning, and it is often misapplied. Prior to the formation of the
federal Constitution, the states were sovereign in the absolute sense of the
term. They had established a certain agency under the Articles of
Confederation, but this agency had little or no power beyond that of
recommending to the states the adoption of certain measures. It could not be
properly denominated a government, as it did not possess the power of carrying
its acts into effect. The people of the states, by the adoption of the federal
Constitution, imposed certain limitations in the exercise of their powers
which appertain to sovereignty. But the states are still sovereign. The
sovereignty of a state does not reside in the persons who fill the different
departments of its government, but in the people, from whom the government
emanated; and they may change it at their discretion. Sovereignty, then, in
this country, abides with the constituency, and not with the agent; and this
remark is true, both in reference to the federal and state governments."
Spooner v. McConnell, 22 Fed. Cas. 939, 943.
"Sovereignty means supremacy in respect of power, domination, or rank; supreme
dominion, authority or rule." Brandes v. Mitteriling, 196 P.2d 464, 467, 657
Ariz 349.
"'Government' is not 'sovereignty.' 'Government' is the machinery or expedient
for expressing the will of the sovereign power." City of Bisbee v. Cochise
County, 78 P.2d 982, 986, 52 Ariz. 1.
"The 'sovereignty' of the United States consists of the powers existing in the
people as a whole and the persons to whom they have delegated it, and not as a
seperate personal entity, and as such it does not posssess the personal
privileges of the sovereign of England; and the government, being restrained
by a written Constitution, cannot take property without compensation, as can
the English government by act of king, lords, and Parliament." Filbin
Corporation v. United States, D.C.S.C., 266 F. 911, 914.
"'Sovereignty' is the right to govern. In Europe the sovereignty is generally
ascribed to the prince; here it rests with the people. There the sovereign
actually administers the government; here, never in a single instance. Our
governors are the agents of the people, and at most stand in the same relation
to their sovereign in which regents in Europe stand to their sovereign. Their
princes have personal powers, dignities, and pre-eminences. Our rulers have
none but official, nor do they partake in the sovereignty otherwise, or in any
other capacity than as private citizens." Chisholm v. State of Georga, Ga., 2.
U.S. (2 Dall.) 419, 471, 1 L. Ed. 440.
"States and state officials acting officially are held not to be 'persons'
subject to liability under 42 USCS section 1983." Wills v. Michigan Dept. of
State Police, 105 L.Ed. 2nd 45 (1989).
"Statutes employing the word 'person' are ordinarily construed to exclude the
sovereign." 56 L.Ed. 2d. 895
"A foreign sovereign power must in courts of United States be assumed to be
acting lawfully, the meaning of 'sovereignty' being that decree of the
sovereign makes law." Eastern States Petroleum Co. v. Asiatic Petroleum
Corporation, D.C.N.Y., 28 F.Supp. 279, 281.
"The very meaning of 'sovereignty' is that the decree of the sovereign makes
law." American Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S.
347, 53 L.Ed. 826, 19 Ann.Cas. 1047.
"'Sovereignty' means that the decree of sovereign makes law, and foreign
courts cannot condemn influences persuading sovereign to make the decree."
Moscow Fire Ins. Co. of Moscow, Russia v. Bank of New York & Trust Co., 294
N.Y.S. 648, 662, 161 Misc. 903.
:juris
JURISDICTION AND LAWS VOID _ab initio_
"When any court violates the clean and unambiguous language of the
Constitution, a fraud is perpetrated and no one is bound to obey it."
State v. Sutton, 63 Minn. 147, 65 N.W. 262
"Since an unconstitutional law is void, the general principles follow
that it imposes no duties, confers no rights, creates no offices, bestows
no power or authority on anyone, affords no protection, and justifies
no acts performed under it." 16 Am Jur 2d 177.
"It cannot be assumed that the framers of the constitution and the
people who adopted it, did not intend that which is the plain import of
the language used. When the language of the Constitution is positive
and free of all ambiguity, all courts are not at liberty, by a resort to
the refinements of legal learning, to restrict its obvious meaning to
avoid the hardships of particular cases. We must accept the
constitution as it reads when it's language is unambiguous, for it is
the mandate of the sovereign power." Cooke v. Iverson 122 N.W. 251
"Under our form of government, the legislature is not supreme. . . like
other departments of government, it can only exercise such powers as
have been delegated to it, and when it steps beyond that boundary, its
acts, like those of the most humble magistrate in the state who
transcends his jurisdiction, are utterly void." Billings v. Hall 7 CA 1
"The powers of state government are legislative, executive, and judicial.
Persons charged with the exercise of one power may not exercise either of
the others except as permitted in this Constitution." Article III, Section 3,
Constitution of the State of California
"If the legislature clearly misinterprets a Constitutional provision,
the frequent repetition of the wrong will not create a right." Amos v.
Mosley, 77 SO 619. Also see Kingsley v. Metril, 99 NW 1044
"Where the meaning of the Constitution is clear and unambiguous, there can
be no resort to construction to attribute to the founders a purpose or
intent NOT MANIFEST IN ITS LETTER." Norris v. Baltimore 192 A 531
"No legislative act contrary to the Constitution can be valid. To deny this
would be to affirm that the deputy is greater than his principal; that the
servant is above the master; that the representatives of the people are
superior to the people; that men, acting by virtue of powers may do not
only what their powers do not authorize, but what they forbid. It is not to be
supposed that the Constitution could intend to enable the representatives of
the people to substitute their will to that of their constituents. A
Constitution is, in fact, and must be regarded by judges as fundamental law.
If there should happen to be an irreconcilable variance between the two,
the Constitution is to be preferred to the statute." A. Hamilton, Federalist
Papers #78
See also Warning v. The Mayor of Savannah, 60 Georgia, P.93; First
Trust Co. v. Smith, 277 SW 762, Marbury v. Madison, 2 L Ed 60; and
Am.Juris. 2d Constitutional Law, section 177-178
16 Am. Jur. 2d 256: "The general rule is that an unconstitutional
statute, whether federal or state, though having the form and name of
law, is in reality no law, but is wholly void, and ineffective for any
purpose; since unconstitutionality dates from the time of its enactment,
and not merely from the date of the decision so branding it, an
unconstitutional law, in legal contemplation, is as inoperative as if it
had never been passed...since an unconstitutional law is void, the
general principles follow that it imposes no duties, confers no rights,
creates no office, bestows no power or authority on anyone, affords no
protection, and justifies no acts performed under it...NO ONE IS BOUND
TO OBEY AN UNCONSTITUTIONAL LAW [my emphasis], and no courts are bound
to enforce it."
SEVEN ELEMENTS OF JURISDICTION
1. The accused must be properly identified, identified in such a fashion there
is no room for mistaken identity. The individual must be singled out from all
others; otherwise, anyone could be subject to arrest and trial without benefit
of "wrong party" defense. Almost always, the means of identification is a
person's proper name, BUT ANY MEANS OF IDENTIFICATION IS EQUALLY VALID IF SAID
MEANS DIFFERENTIATES THE ACCUSED WITHOUT DOUBT. (There is no constitutionally
valid requirement you must identify yourself (4th Amendment); see Brown v.
Texas, 443 US 47 and Kolender v Lawson, 461 US 352.)
2. The statute of offense must be identified by its proper or common name. A
number is insufficient. Today, a citizen may stand in jeopardy of criminal
sanctions for alleged violation of statutes, regulations, or even low-level
bureaucratic orders (example: Colorado National Monument Superintentdent's
Orders regarding an unleashed dog, or a dog defecating on a trail). If a
number were to be deemed sufficient, government could bring new and different
charges at any time by alleging clerical error. For any act to be triable as
an offense, it must be declared to be a crime. Charges must negate any
exception forming part of the statutory definition of an offense, by
affirmative non-applicability. In other words, any charge must affirmatively
negate any exception found in the law.
Example of exception: ".... thereof to make a return (other than a return
required under authority of 6015).....Indictment or information is defective
unless every fact which is an element in a prima facie case of guilt is
stated. Assumption of element is not lawful. Otherwise, accused will not be
thoroughly informed. 26 USC 6012 is a necessary element of the offense. Since
6012 isn't cited, the information is fatally defective. Additionally,
information did not negate the exception (other than required under authority
of section 6015)."
After reading 6012 and 6015, and knowing that the 7203 elements are:
A. You were required to perform
B. You failed to perform
C. Your failure was willful
you may wish to ask, "how often is a valid 7203 or other information or
indictment brought? How many citizens have been convicted on a fatally
defective process?"
3. The acts of alleged offense must be described in non-prejudicial language
and detail so as to enable a person of average intelligence to understand
nature of charge (to enable preparation of defense); the actual act or acts
constituting the offense complained of. The charge must not be described by
parroting the statute; not by the language of same. The naming of the acts of
the offense describe a specific offense whereas the verbiage of a statute
describes only a general class of offense. Facts must be stated. Conclusions
cannot be considered in the determination of probable cause.
4. The accuser must be named. He/she may be an officer or a third party, but
some positively identifiable person (human being) must accuse; some certain
person must take responsibility for the making of the accusation, not an
agency or an institution. This is the only valid means by which a citizen may
begin to face his accuser. Also, the injured party (corpus delicti) must make
the accusation. Hearsay evidence may not be provided. Anyone else testifying
that they heard that another party was injured does not qualify as direct
evidence.
5. The accusation must be made under penalty of perjury. If perjury cannot
reach the accuser, there is no accusation. Otherwise, anyone may accuse
another falsely without risk.
6. To comply with the five elements above, that is for the accusation to be
valid, the accused must be accorded due process. Accuser must have complied
with law, procedure and form in bringing the charge. This includes
court-determined probable cause, summons and notice procedure. If lawful
process may be abrogated in placing a citizen in jeopardy, then any means may
be utilized to deprive a man of his freedom, and all dissent may be stifled by
utilization of defective process.
7. The court must be one of competent jurisdiction. To have valid process, the
tribunal must be a creature of its constitution, in accord with the law of its
creation, i.e., Article III judge.
Lacking any of the seven elements or portions thereof, (unless waived,
intentionally or unintentionally) all designed to ensure against further
prosecution (double jeopardy); it is the defendant's duty to inform the court
of facts
alleged for determination of sufficiency to support conviction,
should one be obtained. Otherwise, there is no lawful notice, and charge must
be dismissed for failure to state an offense. Without lawful notice, there is
no personal jurisdiction and all proceedings prior to filing of a proper trial
document in compliance with the seven elements is void. A lawful act is always
legal but many legal acts by government are often unlawful. Most bureaucrats
lack elementary knowledge and incentive to comply with the mandates of
constitutional due process. They will make mistakes. Numbers beyond count have
been convicted without benefit of governmental adherence to these seven
elements. Today, informations are being filed and prosecuted by "accepted
practice" rather than due process of law.
See Corpus Juris Secundum (CJS), Volume 7, Section 4, Attorney & client: The
attorney's first duty is to the courts and the public, not to the client, and
wherever the duties to his client conflict with those he owes as an officer of
the court in the administration of justice, the former must yield to the
latter. Clients are also called "wards" of the court in regard to their
relationship with their attorneys.
Corpus Juris Secundum assumes courts will operate in a lawful manner. If the
accused makes this assumption, he may learn, to his detriment, through
experience, that certain questions of law, including the question of personal
jurisdiction, may never be raised and addressed, especially when the accused
is represented by the bar. (Sometimes licensed counsel appears to take on the
characteristics of a fox guarding the hen house.)
Jurisdiction, once challenged, is to be proven, not by the court, but by the
party attempting to assert jurisdiction. The burden of proof of jurisdiction
lies with the asserter. The court is only to rule on the sufficiency of the
proof tendered. Se McNutt v. GMAC, 298 US 178. The origins of this doctrine
of law may be found in Maxfield's Lessee v Levy, 4 US 308.
DIFFERENT KINDS OF JURISDICTION
IN PERSONAM: Power which a court has over the defendant's person. It is
absolutely required before a court may enter a personal judgment. Jurisdiction
over a person may be waived by consent.
In Personam jurisdiction may be acquired by an act of the defendant within a
jurisdiction under a law or statute by which the defendant implies consent to
the jurisdiction of the court over his person.
Examples of how a court may acquire personal jurisdiction: Entry of
appearance, proper service, or implication (e.g., the operation of a motor
vehicle on the highways of a State may confer jurisdiction of the operator and
owner on the courts of that State).
For more info, see Hess v Pawloski, 274 US 352.
IN REM: Power of a court over a thing, so that its judgment is valid against
the rights of every person in the thing. An action in rem is a proceeding that
takes no cognizance of the owner, but determines the right in specific
property against all of the world, equally binding upon everybody.
In this action, the court is required to have control or power over the
thing. Examples: A boat or other vehicle inside of which narcotics are
discovered; a judgment of registration of title to land.
For more info, see Calero Toledo v Pearson Yacht Leasing Co., 416 US 663.
Also look at any cases which are in the form of "United States v X", where X
is a thing instead of a person, e.g., "$20,000 in United States currency" or
"Forty Barrels and Twenty Kegs of Coca-Cola".
QUASI IN REM: The power of a court over the defendant's interest in property,
real or personal, within the geographical limits of the court. The court's
judgment or decree binds only the defendant's interest, and not the whole
world, as in the case of in rem. This term is applied to proceedings which are
not strictly in rem, but are brought against the defendant personally, though
the real object is to deal with particular property, or to subject property to
the discharge of asserted claims.
Examples: Foreclosure of a mortgage, quieting title, effecting a partition.
For more info, see Freeman v Alderson, 119 US 185.
SUBJECT MATTER: The power of a particular court to hear a type of case. Three
elements must be present for a court to have proper jurisdiction over the
subject matter:
1) The court must have cognizance of the class of cases.
2) The proper parties must be present.
3) The point decided upon must be, in substance and effect, within the issue.
See Reynolds v Stockton, 140 US 254.
"The criminal jurisdiction of the United States is wholly statutory." U.S. v
Flores, 289 US 137,,151 (1933).
"The legislative authority of the Union must first make an act a crime, affix
a punishment to it, and declare the court that shall have jurisdiction of the
offense." U.S. v Hudson, 7 Cranch 32,34 (1812).
Subject matter jurisdiction, unlike personam and venue (see below), may NOT
be waived or conferred by consent of the parties and the court.
VENUE: Venue does not actually refer to jurisdiction at all. "Jurisdiction"
means the inherent power of the court to decide a case. "Venue" designates the
PARTICULAR GEOGRAPHICAL AREA (county, city, district, state, etc) in which a
court with jurisdiction may properly hear a case.
In federal cases, the prosecutor's discretion regarding the location of the
prosecution is limited by Article III, Section 2 of the federal Constitution,
which requires trial in the State where the offense "shall have been
committed", and the Sixth Amendment, which guarantees an impartial jury "of
the State and district wherein the crime shall have been committed".
The addressing of venue in reference to an accusation of failing to "file a
document" can be seen in U.S. v Lombardo, 241 US 73,76-7. Here, interestingly,
the court stated that "filing is not complete until the document is delivered
and received...to the office and not sent through the United States mails."
A challenge of venue may be waived, so as always, it is crucial that if a
challenge is to be made, that it be timely.
[Further review of the topics of jurisdiction and venue should be made prior
to submitting any Motions. Good sources that will lead to other sources are
the law encyclopedias _American Jurisprudence_ and _Corpus Juris Secundum_.]
Things to think about and take care of in a typical case: (partial list)
The act or omission in question: Is it declared by law to be a crime?
Research the law/code/ordinance
The victim: Who?
What Life, Liberty or Property was harmed?
Is the person Natural or Juristic?
Is he At Law, or in Equity?
Is the person competent to testify?
The complaint: Verified by affidavit signed by victim?
If no victim, serve & file constructive notice on gov't agent and judge
Ten days later, file Suit
Grand jury indictment/information
Grand Jury represents the People
District Attorney = The State
Object to prosecution by information, Demand Grand Jury Indictment.
Warrant - Made out for the party arrested?
Check spelling-Joe Blow is not Jo Bloe!
Signed by a judge?
Check "judge's" Oath of Office/compare with required oath in Constitution
Arrest - You have the right to remain silent
You have the right to counsel present
Not required to give fingerprints [Davis v. Mississippi]
Give Miranda/Titles 18,42 warning
Writ of Habeas Corpus
Arraignment - Starts calendar for speedy trial
Appear specially, not generally
Demand all rights at all times
Disclaim equity jurisdiction
Give Miranda/Titles 18,42 warning
Demand to see a verified complaint - Must be sworn to by complainant within 15
days of Notice to Appear
Must have the seal of the court
Defendent cannot understand charges without counsel
Demand counsel of choice
Object to denial by judge
Cite cases
File written Demand for Counsel of Choice
If judge appoints Public Defender, object!
You have to talk with Public Defender before you can accept him as counsel.
You cannot relate to him.
You have no confidence in him
You cannot be forced to employ counsel beholden to your adversary
Stand "mute"
Judge will enter "Not guilty" plea
Object! Let the record show that defendant stands mute
File "Arraignment & Plea"
File Demand for Plaintiff to Show Constraining Need or in the Alternative
to Dismiss
File Demand for Jury Trial in which the jury decides both the law and the
facts At Law
File Notice of intention to tape record the proceedings per Rule 980(f)
"unless otherwise ordered for cause"
File Demand for court reporter to take transcripts at all hearings
File Demand for transcripts of all proceedings
File Demand for Evidentiary Hearing
File/serve Declaration-Petition for Redress of Grievances
The Preliminary (Evidentiary)Hearing
Appear specially, not generally
Claim all rights at all times
Challenge jurisdiction
ADMINISTRATIVE AND PROCEDURAL MATTERS
Demand formal, verified complaint
You intend to challenge jurisdiction but you need counsel to adequately argue
jurisdiction
Appearing pro per, not pro se
Get judicial notice of demand for counsel of choice and supporting brief
Get judicial determination for the record that the court is denying
unfettered counsel of choice [final judgement on the matter]
Demand that hearing be postponed so that denial of counsel may be appealed to
higher court
Does court honor demand for rights sua sponte?
Demand that the court prove both agency's and court's jurisdiction on the
record.
"Jurisdiction cannot be assumed & must be decided" Maine v. Thiboutot
100S.Ct.2502 (1980)
"Jurisdiction cannot be presumed" Smith v. McCullough 46S.Ct.338(1926)
Examine/cross-examine witnesses
Discovery:File/serve Demand
Suppression hearing
file Demand to Supress Evidence
Formulate jury instructions
They must have foundation in the record
in the Evidence Exhibits
in the Testimony of Witnesses
Formulate questions for witnesses
For Cross-exam
For Direct exam
Keep Proposed Jury Instructions in mind
Subpoena Witnesses
Expert witnesses
Gov't agents
Witnesses at scene of arrest
Alibi
Motion [Demand] Hearing
Give equity disclaimer/Demand rights
Challenge ensign v. flag
Give Miranda/Title 18 warning
File Constructive Notice
Demand Counsel of choice
File paper
Demand Dismissal for Lack of Jurisdiction
File jurisdiction briefs on Status, Status of Citizens, Merchant At Law,
Rights, Memorandum of Law, Equity, The Monetary System
Demand Rights Sua Sponte
File paper
Demand jury trial w/12 jurors
File Notice & Demand
Jury Selection
Questions for Jurors
Prosecution's Opening Statement
Defense Opening Statement (may wait)
Prosecution Examines Witnesses
Object! Object! Object!
Defense Cross-examines
Defense may testify
Not required to take Oath
Prosecution Closing Statement
Prosecution rests
Defense challenges Prima Facie Case
Code Pleading
Defense moves for directed verdict of aquittal
Defense Opening Statement if delayed
Defense Examines Witnesses
Prosecution cross-examines
Object! Object! Object!
Defense Closing Statement
Defense rests
Prosecution 2nd Closing Statement
Judge's Instuctions to Jury
Object! Object! Object!
Jury Deliberations
Jury Verdict
Defense Motion for Verdict of Aquittal Notwithstanding Jury Verdict
Motion for New Trial if appropriate
Notice of Appeal
Demand for Stay of Execution Pending Appeal and Order
If denied, file Writ of Habeas Corpus
Demand for transcripts at gov't expense
Proposed statement on Appeal
Use court's form as a cover sheet
Fill blanks with "see Proposed Settled Statement [Attached]
Don't put signature on form
Prosecution's Amendments
Defense Revised Proposed Statement
Settlement conference
Opening Brief on Appeal
Prosecution's Rebuttal to above
Prosecution's Opening Brief
Defense rebuttal
Defense Closing Brief
:money
THE FEDERAL RESERVE, MONEY, AND DEBT
Current Law: No State Shall Make Any Thing But Gold And Silver Coin
A Tender In Payment Of Debt. (U.S. Constitution, Art. 1, sec. 10)
Current Law: 31 United States Code 371: "The money of account of
the United States shall be expressed in dollars or units, dimes or
tenths, cents or hundredths, and mills or thousandths, a dime being the
tenth part of a dollar, a cent the hundredth part of a dollar, a mill
the thousandth part of a dollar, and all accounts in the public offices
and all proceedings in the courts shall be kept and had in conformity to
this regulation."
The question was put to an attorney: Is Article 1, section 10, of
the United States Constitution, particularly the words "No state shall
... make any Thing but gold and silver coin a tender in payment of
debt..." still binding on a State?
He replied, in writing, "...the only lawful answer is Yes. Meant
to 'crush paper money' by unanimous consent of the constitutional
Convention of 1787, this section prohibits the States from imposing upon
the people a paper currency, paper money, or anything else other than
gold or silver coin as a medium of exchange in the discharge of debts.
Since the Constitution can be changed by amendment only, and since no
amendment has changed this section, no federal action can excuse a State
of this prohibition.
The effect of this section is thus:
If a paper FRN is delivered to, or received from a State-authorized
party without particular objection to its being an unlawful tender under
Article 1, Section 10, no Constitutional question has arisen, and the
payor/payee, in remaining silent, has renounced his individual rights
flowing from the Constitutional prohibition.
Those rights are the following:
A. Discharge of the debt in gold or silver coin, if provided for in
the debt;
B. Dismissal or forgiveness of the debt altogether, if the debt is
not denominated in gold or silver coin, since any rule or judgement that
is repugnant to the Constitution is void, invalid, and without effect.
As with other rights, the right to gold and silver coin, and the
right to be forgiven of any debt not denominated in same, are considered
waived unless properly and timely asserted."
Specifically regarding "notes" and such, the courts have had some equally
interesting things to say:
"They had a certain contingent value, and were used as money in
nearly all the business transactions of many millions of people. They
must be regarded therefore, as a currency imposed on the community by
irresistable force." 75 U.S. 11
"Considered in themselves, and in the light of subsequent events,
these notes had no real value, but they were made current as dollars by
irresistable force. They were the only measure of value which the
people had, and their use was a matter of almost absolute necessity.
And this use gave them a sort of value, insignificant and precarious
enough it is true, but always having a sufficiently definite relation to
gold and silver, the universal measure of value, so that it was always
easy to ascertain how much gold and silver was the real equivalent of a
sum expressed in this currency." 75 U.S. 13
"One is said to act in a fiduciary capacity when the business that he
transacts, or the money or property which he handles, is not his
own..." A "fiduciary relation" can include "informal relations which
exist whenever one man trusts and relies upon another--it exists where there
is special confidence reposed in one who in equity and good conscience is
bound to act in good faith and with due regard to interests of one reposing
the confidence." Black's Law Dictionary, 4th ed.
The Federal Reserve itself tells you that it is "confidence" that is the
reason that anyone at all accepts FRNs! By accepting the government's
obligations in good faith and confidence, besides becoming a fiduciary
(with a corresponding duty, making you "subject" to specific performance,
you then become an "accomodation party", in effect becoming like a
co-signor for the government's debts. Until the Federal Reserve has been
fully paid for use of it's special paper, it has a lien upon all that you
have acquired with it. Thus that man that passed the FRN to you does not
really own your goods - now the Fed owns them, although they do not have
possession of them. It is like the plantation owner, who owns the clothes on
the backs of his slaves.
Don E. Williams Co. v. Commissioner of Internal Revenue, 429 U.S. 569
(1977): Notes cannot pay debt, debt cannot pay debt.
"No state shall make any thing but gold and silver coin a tender in
payment of debts." U.S. Constitution, Article 1, section 10, never
amended. Thus, any other form of promised money is a fraud.
"Federal Reserve Notes are not legal money." Justice Martin V. Mahoney,
Credit River Township, Dec. 7-9, 1968 in Jerome Daly vs. First National
Bank of Montgomery, Minn.
:2nd
SOME QUICK NOTES ON THE 2ND AMENDMENT
In a recently decided U.S. Supreme Court case, United States versus
Verdrigo-Urquidez, 110 S. Ct. 1056, 1060-61 (1990), the Court referred
to the Second Amendment and specifically addressed the meaning of the
words "the people" as used in the First, Second, and Fourth Amendments
to the U.S. Constitution. While the specific case involved only the
protections afforded to individuals under the Fourth Amendment, the
Court did clearly state that the words "the people" in the Second
Amendment have the same meaning as they do in the First and Fourth
Amendments, i.e., the rights of individuals.
While the dicta doesn't define how the Supreme Court would rule on
a particular Second Amendment case, it does indicate the Court believes
that the "right to keep and bear arms" is an _individual_ right rather
than a _collective_ right as the anti-gun movement and the mass media
would like everyone to believe.
In 1856 the U.S. Supreme Court declared that local law enforcement had no
duty to protect a particular person, but only a general duty to enforce the
laws. [South v. Maryland, 59 U.S. (HOW) 396,15 L.Ed., 433 (1856)].
In 1982, the U.S. Court of Appeals, Seventh Circuit, held that:
"...there is no constitutional right to be protected by the state against
being murdered by criminals or madmen. It is monstrous if the state fails to
protect its residents against such predators but it does not violate the due
process clause of the Fourteenth Amendment or, we suppose, any other provision
of the Constitution. The Constitution is a charter of negative liberties: it
tells the state to let people alone; it does not require the federal
government or the state to provide services, even so elementary a service as
maintaining law and order." [Bowers v. DeVito, U.S. Court of Appeals, Seventh
Circuit, 686F.2d 616 (1982) See also Reiff v. City of Philadelphia,
477F.Supp.1262 (E.D.Pa. 1979)].
There are a few, very narrow exceptions. in 1983, the District of
Columbia Court of Appeals remarked that:
"In a civilized society, every citizen at least tacitly relies upon the
constable for protection from crime. Hence, more than general reliance is
needed to require the police to act on behalf of a particular individual.
...Liability is established, therefore, if the police have specifically
undertaken to protect a particular individual and the individual has
specifically relied upon the undertaking. ...Absent a special relationship,
therefore, the police may not be held liable for failure to protect a
particular individual from harm caused by criminal conduct. A special
relationship exists if the police employ an individual in aid of law
enforcement, but does not exist merely because an individual requests, or a
police officer promises to provide protection." [Morgan v. District of
Columbia, 468 A2d 1306 (D.C. App. 1983)].
As a result, the government - specifically, police forces - has no
legal duty to help any given person, even one whose life is in imminent
peril.
In a New York case, a Judge Keating dissented, bitterly noting that Linda
Riss was victimized not only because she had relied on the police to protect
her, but because she obeyed New York laws that forbade her to own a weapon.
Judge Keating wrote:
"What makes the city's position particularly difficult to understand is that,
in conformity to the dictates of the law, Linda did not carry any weapon for
self-defense. Thus, by a rather bitter irony she was required to rely for
protection on the City of New York, which now denies all responsibility to
her." [Riss v. City of New York, 293 N.Y. 2d 897 (1968)].
The California Court of Appeals held that any claim against the police
department:
"...is barred by the provisions of the California Tort Claims Act,
particularly Section 845, which states: `Neither a public entity nor a public
employee is liable for failure to establish a police department or otherwise
provide police protection or, if police protection service is provided, for
failure to provide sufficient police protection." [Hartzler v. City of San
Jose, App., 120 Cal.Rptr 5 (1975)].
The Superior Court of the District of Columbia held that:
"...the fundamental principle (is -ed.) that a government and its agents are
under no general duty to provide public services, such as police protection,
to any particular individual citizen...The duty to provide public services is
owed to the public at large, and, absent a special relationship between the
police and an individual, no special legal duty exists."
In an accompanying memorandum, the Court explained that the term "special
relationship" did not mean an oral promise to respond to a call for help.
Rather, it involved the provision of help to the police force. [Warren v.
District of Columbia, D.C. App., 444 A.2d 1 (1981)].
"...the defendant law enforcement agencies and officers did not owe them (the
children - ed.) any legal duty of care, the breach of which caused their
injury and death...Our law is that in the absence of a special relationship,
such as exists when a victim is in custody or the police have promised to
protect a particular person, law enforcement agencies and personnel have no
duty to protect individuals from the criminal acts of others; instead their
duty is to preserve the peace and arrest law breakers for the protection of
the general public. In this instance, a special relationship of the type
stated did not exist....Plaintiff's argument that the children's presence
required defendants to delay (the) arrest until the children were elsewhere is
incompatible with the duty that the law has long placed on law enforcement
personnel to make the safety of the public their first concern; for permitting
dangerous criminals to go unapprehended lest particular individuals be injured
or killed would inevitably and necessarily endanger the public at large, a
policy that the law cannot tolerate, much less foster." [Lynch v. N.C. Dept.
of Justice, 376 S.E. 2nd 247 (N.C. App. 1989)].
"....a distinction must be drawn between a public duty owed by the officials
to the citizenry at large and a special duty owned to a specific identifiable
person or class of persons.....Only a violation of the latter duty will give
rise to civil liability of the official....to hold a public official civilly
liable for violating a duty owed to the public at large would subject the
official to potential liability for every action he undertook and would not be
in society's best interest.".....no special relationship existed that would
create a common law duty on the defendants to protect the decedent (Marshall -
ed.) from Mundy's criminal acts. Similarly, without a special relationship
between the defendants and the decedent, no constitutional duty can arise
under the Due Process Clause as codified by 42 U.S.C. Sec. 1983. Therefore,
plaintiff's (Mrs. Marshall - ed.) due process claim also must fall." [Marshall
v. Winston, 389 S.E.2nd 902 (Va. 1990)].
:irs
THE IRS, INCOME TAXATION, AND THE 16TH AMENDMENT
"Income is realized gain." Schuster v. Helvering, 121 F 2d 643.
"The word profit, as ordinarily used, means the gain made upon any
business or investment-a different thing altogether from mere
compensation for labor. There is a clear distinction between profit and
wages or compensation for labor. Compensation for labor cannot be
regarded as profit within the meaning of the law." Oliver v. Halstead,
196 Va. 992.
"Reasonable compensation for labor or services rendered is not profit."
Laurendale Cemetary Assoc. v. Matthews, 245 Pa. 239.
"The general term 'income' is not defined in the Internal Revenue
Code." US v. Ballard, 535 F. 2d 400 (1976)
"...it becomes essential to distinguish between what is, and what is not
'income'...Congress may not, by any definition it may adopt, conclude
the matter, since it cannot by legislation alter the Constitution,
from which alone it derives its power to legislate, and within whose
limitations alone, that power can be lawfully exercised." Eisner V. Macomber,
252 US 189 (1920)
"...'income,' as used in the statute should be given so as not to include
everything that comes in. The true function of the words 'gains' and
'profits' is to limit the meaning of the word 'income'." So. Pacific
v. Lowe, 2389 F. 847 (US Dist Ct. S.D. N.Y., 1917); 247 US 330 (1918)
"Income within the meaning of the Sixteenth Amendment and the Revenue
Act, means 'gain'... and in such connection 'Gain' means
profit...proceeding from property, severed from capital, however
invested or employed, and coming in, received, or drawn by the taxpayer, for
his seperate use, benefit and disposal." Staples v. US, 21 F. Supp 737 (US
Dist. Ct. ED PA, 1937)
"...the definition of 'income' approved by this court is: The gain derived
from capital, from [not by] labor, or from both combined, provided it
be understood to include profits gained through sale or conversion of
capital assets." Eisner v. Macomber, 252 US 189 (1920)
They define the IRS income tax in Title 26 of the US code in Section
1: "there is hereby imposed on the taxable income of every... individual, a
tax..." This is clearly a direct tax, even if we knew what they were
taxing, in direct violation of the constitution. This is confirmed by the
courts: "such a tax would be by nature a capitation rather than excise
tax." Peck & Co. v. Lowe, 247 US 165 (1918)
"Our tax system is based upon VOLUNTARY assessment and payment, not upon
distraint." - U.S. Supreme Court in Flora v. U.S. (1959) ["Voluntary" means
"acting or done without any present legal obligation to do the thing
done" Webster's Third World International Dictionary]
"Statutes levying taxes should be construed, in case of doubt, against
the government and in favor of the citizen." Miller v. Gearing 258 F.
225
"The legal right of a taxpayer to decrease the amount of what
otherwise would be his taxes, OR ALTOGETHER AVOID THEM, by means which
the law permits, cannot be doubted." Gregory vs. Helvering 293 U.S. 465
"The explanations and examples in this publication reflect the official
INTERPRETATION by the IRS of tax laws enacted by Congress and...Court
decisions...The publication covers some subjects on which CERTAIN COURTS HAVE
TAKEN POSITIONS MORE FAVORABLE TO TAXPAYERS THAN THE OFFICIAL POSITION OF THE
SERVICE. Until these interpretations are resolved by higher court
decisions, or otherwise [like when there is no higher court, in the case of
a Supreme Court decision!--FF], the publication will continue to present
the viewpoint of the Service." IRS, Publication 17
"One does not derive taxable income by rendering services and charging for
them. IRS cannot enlarge the scope of the statute." Edwards v. Keith, 231 F
110,113
"An income tax is neither a property tax nor a tax on occupations of common
right, but is an excise tax...The legislature may declare as 'privileged'
and tax as such for state revenue, those pursuits not matters of common
right, but it has no power to declare as a 'privilege' and tax for revenue
purposes, occupations that are of common right." Sims v. Ahrens, 271 SW 720
(1925)
"Income is realized gain." Schuster v. Helvering, 121 F 2nd 643
"The word profit, as ordinarily used, means the gain made upon any business
or investment - a different thing altogether from mere compensation for labor.
There is a clear distinction between profit and wages or compensation for
labor. Compensation for labor cannot be regarded as profit within the
meaning of the law." Oliver v. Halstead, 196 Va. 992
"Decided cases have made the distinction between wages and income and have
refused to equate the two." Central Illinois Publishing Service v. U.S., 435
U.S. 31, p.90
"Income, as used in the statute should be given the meaning so as NOT to
include everything that comes in. The TRUE function of the words 'gains'
and 'profits' is to LIMIT the meaning of the word 'income'." So.Pacific v.
Lowe, 238 F. 847
"...the provisions of the Sixteenth Amendment conferred no new power of
taxation but simply prohibited the previous complete and plenary power
of income taxation possessed by Congress from the beginning from being
taken out of the catagory of indirect taxation to which it inherently
belonged and being placed in the category of direct taxation..." Stanton v.
Baltic Mining Co., 240 U.S. 103.
"A tax laid upon the happening of an event, as distinguished from its
tangible fruits, is an indirect tax..." Tyler v. U.S. 281 U.S. 497
"The conclusion reached in the Pollock Case did not in any degree involve
holding that income taxes generically and necessarily came within the
class of direct taxes on property, but on the contrary recognized the
fact that taxation on income was in its nature an excise entitled to be
enforced as such..." Brushaber v. Union Pacific R.R. Co., 240 U.S. 1
"Excises are taxes laid...upon licenses to pursue certain
occupations, and upon corporation privileges...The tax under
consideration may be described as an excise upon the particular
privilege of doing business in a corporate capacity. The requirement to pay
such taxes involves the exercise of privileges." Flint v. Stone Tracy Co.,
220 U.S. 107.
"The individual, unlike the corporation, cannot be taxed for the mere
privilege of existing. The corporation is an artificial entity which owes
its existence and charter powers to the state; but the individuals'
rights to live and own property are natural rights for the enjoyment of which
an EXCISE cannot be imposed." Redfield v. Fisher, 292 P. 813.
"The right to labor and to its protection from unlawful
interference is a constitutional as well as a common-law right. Every man
has a natural right to the fruits of his own industry." 48 Am Jur 2d,
section 2, page 80.
:1st
Well, okay, yes we do have some quick quotes on the First Amendment. Freedom
of speech per se doesn't usually come up too often, but note that this
amendment also gives us freedom of (OR FROM) religion, the right to speak or
not speak (i.e., remain silent), etc. Bear this in mind when reading the
following...
"The several states has no greater power to restrain individual freedoms
protected by the First Amendment than does the Congress of the United States."
Wallace v Jaffree, 105 S Ct 2479; 472 US 38, (1985).
"Loss of First Amendment Freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury. Though First Amendment rights
are not absolute, they may be curtailed only by interests of vital importance,
the burden of proving which rests on their government." Elrod v. Burns, 96 S
Ct 2673; 427 US 347, (1976).
:misc
MISCELLANEOUS
From the Roger Sherman Society:
The question is often asked, "How can one individual stand alone against
'City Hall'?" After serious practice combined with continued faith,
study, and prayer, our answer came:
1. Obtain, and study carefully, a copy of West's Annotated California
Codes, Government Code, Title 2, Div. 3, Ch. 5 Administrative
Adjudication sections 11500-11528. If you have difficulty understanding
it, ask a lawyer to explain it. If the lawyer discourages you and tells
you it does not apply to the letter, bill, ticket, or other accusation
you received from the IRS, DMV, FTB, Licensing Agency or other ABC
government administrative agency/officer, then find another lawyer, or a
paralegal, or even a teacher of the English language. Find someone who
can help you UNDERSTAND this legal procedure; not necessarily someone to
do it for you. (For those living in other states, see #7 below.)
2. Upon receipt of the accusation, send the Agency Hearing Board a
NOTICE OF DEFENSE (sec. 11506) and be sure to ask for a hearing.
(Bender form 15.)
3. The Administrative Hearing is the place where you will put ON THE
RECORD your Evidence of substantive Rights. This is the place where you
enter your Recisions and Waivers and Claims and Declarations, etc., on
the RECORD. You may also enter questions of Discovery such as "Where
does the Agency have an Interest in Respondent (that's you) to convert
his right to travel/contract into the privilege to drive/be employed?"
or "What evidence does the Agency depend upon to show that Respondent is
subject to the licensing requirements and state administrative police
powers in this instant case?" or "Is a Tax Identification Number
mandatory or voluntary and what section of the Code says that?" or "As I
do not have a license, by what section of the Code does the Licensing
Agency claim it may regulate Respondent?" (Do not become angry with any
answers you may receive, as all of this information is entered here for
the Record.)
4. If/When the Administrative Hearing Board rules against you, you may
take their Decision for a review in the Superior Court of your County by
a Petition for Writ of Mandate (CCP secs. 1085, 1086) to Review
Administrative Decision (CCP sec. 1094.5) cost of bringing this Writ of
Mandate is included in the Petition. There is no charge to file it.
5. If you are denied the Administrative Hearing, you have been denied
due process of law (Gov't Code Sec. 11506) and you might want to file
the Mandate for Review of the Administrative Decision (Bender form 35)
and claim some damages.
6. If you followed the above instructions you may have eliminated any or
all of the following: going to Justice Court, Municipal Court, Tax
Court, losing your property, and even going to jail; AND you may be
rewarded for being vigilant and claiming your Rights just by following
the Forms. Be sure to read carefully the instructions following each
Form, and Govt Code secs. 11500-11528.
7. Evry State in the Union must have equivalent statutes and Forms.
You legal researchers out there get busy and find your state's codes
which are equivalent to Calif. Govt. Code 11500-11528 and the procedural
code sections for the Review Mandate--Calif. CCP secs. 1085, 1086, and
1094,5, and the equivalent to Bender Form Numbers 15 and 35. Let the
people in your state know the forms they can use to stand up and claim
their Rights so that the agencies will get the message to do their job
of regulating the business of the state and nothing more.
Maybe we should begin to entertain the possibility that we, the
individual sovereigns, DID SOMETHING to change our sovereign status to
that of a 14th Amendment subject who is in debt (the validity of which
cannot be questioned).
We do have the right to contract (somehow) out of the jurisdiction
of sovereignty secured (though not granted) by the Constitution; and
maybe we did exercise that right to contract into a commercial status
and abandoned our sovereign status.
We submit that we were registered at birth into an eleemosynary
corporate estate which made us eligible to apply for benefits and
privileges. Did we not make application for the benefits of the social
security insurance policy and other benefits which are in the commercial
jurisdiction?
REMEMBER: Commerce is a subject of the U.S. If you are registered
in commerce, you are registered as a subject. Birth Certificates are
registered in the U.S. Department of Commerce; ALSO, the commercial
jurisdiction is the one that uses NOTES (which are evidences of debt)
and not SUBSTANCE to pay debts. (For purposes of this discussion we
will not address the validity of the NOTES or PROMISES TO PAY nor will
we address the subject of discharge of debt in contrast to the
extinguishment of debt. However, to discourage perpetual debt, always
offer to pay debts with unborrowed subtantive money, and afford those
indebted the opportunity to do likewise.)
We at the Judge Roger Sherman Society have concluded that if an
individual has sovereign status, he may simply BAR the state/legislative
courts-for-subjects (see Art.1, sec.8, cl.9 & Art.3, sec.1, cl.1 U.S.
Constitution) from exercising the jurisdiction of THEIR courts ("COURT--
the person and suit of the sovereign" Black's Law dictionary 3rd Ed.
pg. 457) against another sovereign. They recognize that the law does not
give them jurisdiction over another sovereign. But they HAVE
jurisdiction over their subjects (those who signed in and showed a birth
certificate).
*****
End of FAQ
*****
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E-mail regarding these topics may be forwarded to
schirado@lab.cc.wmich.edu
and encrypted with the above public key if desired.
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