Miraculous Trial

The Miraculous Trial of Anthony Hargis

The Inquisition,

And compelled testimony

Natural-law copyright by Anthony L. Hargis

(Copyright notice: to lawfully reproduce all or part of this article, the following attribution must be included: “Natural-law copyright by Anthony Hargis, redressone.wordpress.com)

A summary of the case,

U. S. v Anthony Hargis,

SACV-04-00273

(David O Carter, judge, Federal District Court, Santa Ana, Cal.; and cases nos. 04-55257 and 04-55258, Ninth Circuit.)

Persons to contact:

For Anthony Hargis:

Derek Tabone, 818-785-5000

For the government:

Michael Pahl, trial attorney                                         Shereen Hawkins, revenue agent

202-514-6488 v                                                     714-347-9502

202-514-6770 fax

Summary of Issues

Beginning about 2003 Feb, the IRS began a prosecution against Anthony Hargis & Co. (ALH & Co) that would eventually occasion violations of several constitutional rights and procedures; it resulted in a classic inquisition, commonly known as a judicial assassination: no evidence, no victims, no witnesses, all property seized before trial, no discovery, no trial – just a summary judgment for a crime that never happened.  During this process, I spent more than five months in jail for refusing to turn over records to the IRS.

It started with a letter from the IRS requesting records pertaining to alleged violations under Internal Revenue Code, sections 6701-3.  These sections pertained to helping people “organize illegal tax shelters” and “preparing fraudulent tax returns”; both actions which I had never done.  I did, however, write an essay pertaining to the real law relative to tax return “1040”, which only applies to “United States Citizens”.  I discovered, for example, 1) that the term “United States Citizen” was created by the Civil Rights Act of 1866 to give a status to recently freed black slaves; and 2) that there is a clearly established constitutional distinction between “black citizen” (that is, “United States citizen”) and “white citizen”. Hence, according to the law as it is currently written, the tax on the income of “every individual” (IRC section 1) does not apply to “white citizens” (also known as “preamble citizens”, members of “we the people”, and “state citizens”) see this introduction to my booklet, Plantation America.

The following is roughly divided into two parts: 1) a brief summary of four major violations and 2) a lengthy discussion of the fact that, to American Founders, it was inconceivable that a government could bring a civil action for any reason.  This second item is significant because the IRS filed suit against me as a civil action.  In recent decades American governments prefer to file civil actions against citizens, instead of criminal actions, based on the erroneous assumption that rules of procedure and evidence are less strict for civil cases than for criminal cases.  I came to these conclusions based on a study of numerous Founding documents.

Personal v. Company Property

While we were contesting the summons, the government alleged that the property in question belonged to the Company, owing, presumably, to the fact that such property was owned by depositors and shareowners.  Thus, the property in question was not my personal property.  In this capacity the government said the target records were corporate records; thus, I could not assert Fifth Amendment protections.

While I sat in jail the government added deposits from fifteen Company banks, attributed the totals to me as personal income, and fabricated tax liabilities of over thirty-two millions.  To do this the government had to regard the property in question as my personal property.

In other words, the IRS fabricated a tax liability against me based on property belonging to all my customers.  At least some, maybe all, this property had already been taxed as property of customers in question.  Hence, the IRS attempted to impose taxes twice on at least some of such property.

If this Company property had been considered as my personal property in the initial stages of this case, I would have been able to assert Fifth Amendment protections and we would have defeated the summons.

Obviously, if we can prevail on this point, everything after 2004 March 15th becomes illegal: my jail time, confiscation of Company, the ridiculous tax liabilities – among other things.

Third-party disguised as First-party

The summons was defective in that it was a third-party summons disguised as a first-party summons.  A third-party summons is, for example, a summons given to a bank to deliver records pertaining to a particular depositor to the IRS.  According to IRC 7609, a third-party summons requires that the target of the summons be given notice of the summons so he can “bring a proceeding to quash the summons”; and that (according to regulations) the expense of providing this notice shall be reimbursed by the IRS.

If (A) any summons described in subsection (c) [which includes a summons issued under 7602 (a) (2)] is served on any person who is a third-party recordkeeper, and (B) the summons requires the production of any portion of records made or kept of the business transactions or affairs of any person (other than the person summoned) who is identified in the description of the records contained in the summons, then notice of the summons shall be given to any person so identified within three days of the day on which such service is made, but no later than the twenty-third day before the day fixed in the summons as the day upon which such records are to be examined. Such notice shall be accompanied by a copy of the summons which has been served and shall contain an explanation of the right under subsection (b)(2) to bring a proceeding to quash the summons. 7609 (a) (1)

The summons served on me requested records of “all customers” of ALH & Co.  Altho the IRS claimed that it had identified some two hundred and fifty three such customers, not a single one was particularly named on the summons.  Thus, while the IRS had the ability to name these customers, it failed to do so.

So, this raises several questions, ‘Can the IRS avoid the requirements of 7609 simply by identifying the person under investigation by referring to him by some other symbol than his name?’

‘Can the IRS violate due-process rights as long as it doesn’t inform the victim thereof?’

For the sake of argument, the IRS alleged several times that ALH & Co. was a bank; hence, a third-party summons would have been required, or proper.  Section 7609 would have required (a) that every customer be particularly named, (b) that each customer be given notice of the summons and (c) that he be informed of his remedies under 7609 (b).

If you’ll notice, none of these requirements appeared on the summons in question.

Judge Carter referred to the summons, at the March 15th hearing – which sent me to jail, as a “scoop shovel.”

He also said, approximately, “It was too much trouble to make the government go back and issue a proper summons.”  It was so much easier to put me in jail – and to violate due-process rights of all my customers.

Another possible violation: if there is “a Justice Department referral in effect with respect to the person” being investigated, the IRS is not authorized to issue such a summons.  That is, if “the Secretary has recommended to the Attorney General a grand jury investigation of, or the criminal prosecution of, such person for any offense connected with the administration or enforcement of the internal revenue laws,” a summons under this section cannot issue, apparently because it would violate Amendment Five. See 7602 (c) (2) (A) and (B).

So, it should be worthwhile to determine whether or not there was “a Justice Department referral in effect” at the time of the summons.

Altho these restrictions related to the issuance of a summons are imposed by an act of Congress (I think), they appear to derive from a significant grievance of the American Revolution pertaining to “general warrants”.

The defendants (king’s men executing a general warrant) claimed a right, under precedents, to force persons houses, break open escrutores, seize their papers, et cetera, upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders’ names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall.  If such a power is truly invested in a Secretary of State, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.

… If they [these powers] should be found to be legal, they are certainly of the most dangerous consequences; if not legal, [they] must aggravate damages.  (Wilkes v. Wood, 98 Eng. Rep. 489, 498-9 (C.P. 1763); Kurland and Lerner, v, 231.

American Rebels complained early about these general warrants; and these complaints led to the Ratification of the Fourth Amendment.

[Section] 10.  That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact [offense] committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted. Virginia Declaration of Rights, 1776 June 12.

Sect. 17.  That all warrants without oath to search suspected places, or to seize any person or his property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend all persons suspected, without naming or describing the place or any person in special, are illegal and ought not to be granted.  Delaware Dec of Rts, 1776 Sep 11.

Now, a general warrant authorizes an agent or messenger to inspect and take whatever he pleases – without particularly describing anything that may be inspected or taken.

I think the warrant against us is fatally defective because it failed to name persons whose records the IRS wanted.

Additionally, the fact that the IRS specified records it wanted to inspect does not change its quality as a general warrant to a legal warrant; for, the IRS specified every conceivable kind of record that it might encounter – and this is no different from specifying no records and authorizing an agent to inspect and take anything that pleases him, or her.  That is, a) to impose no limits to a search, and b) to impose limits that embrace every conceivable record are, in practical execution of a warrant, identical: both will authorize an agent to take whatever he pleases.

Summary judgment

In American law, judges are not authorized to determine facts.

When facts are disputed, they have to be determined by a jury according to the ‘law of the land.’

If, however, neither party requests a jury trial, the judge may determine facts.

If no facts are in dispute, either party may request a summary judgment.

I disputed most, maybe all, facts and demanded a jury trial.

Thus, the summary judgment was unlawful, and represents a denial of due process.

Authorities

Although the thrust of the Amendment (Seven) was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common-law forms of action recognized at that time. Curtis v. Loether, 415 U. S. 189, 193 (1974)

Comments: the implication here is that rights under the Bill of Rights must be preserved as they existed in 1791; and, all rights stand on an equal footing.  Hence, if one right is to be preserved in a certain way, they all are to be preserved that way.  If it is to be otherwise, a constitutional amendment, according to the procedures of Article five, is required to establish a new meaning or procedure.

[During the ratification process relative to the proposed Constitution, an argument erupted concerning the provision that gave the “Supreme court… jurisdiction to review facts”, US Constitution, iii, 2, 2)  Here an essential principle of the civil law is established, and the most noble and important principle of the common law exploded. (Storring 2.8. 189)  [Common law is opposed to Civil law, also known as ecclesiastical law, best exemplified in inquisitorial courts, see below.]

By the common law, in Great Britain and America, there is no appeal from the verdict of a jury, as to facts, to any judges whatsoever – the jurisdiction of the jury is complete and final in this; and only errors in laws are carried up to the house of lords, the special supreme court in Great Britain; or to the special supreme courts in Connecticut, New York, New Jersey et cetera.  Thus the juries are left masters as to facts: but, by the proposed constitution, directly the opposite principle is established. (194)  Federal Farmer, no. 15, 1788 Jan. 18 [Brackets and parenthesis added.], Storring 2.8.189, 194; Kurland, iv, 374.

In these [civil-law] courts, the judges determine both on the law and the fact; and appeals are allowed from the inferior to the superior courts, on the whole merits: the superior tribunal will re-examine all the facts as well as the law, and frequently new facts will be introduced, so as many times to render the cause in the court of appeals very different from what it was in the courts below…

The common law is a stranger to any such jurisdiction: no appeals can lie from any of our common law courts, upon the merits of the case; the only way in which they can go up from an inferior to a superior tribunal is by habeas corpus before a hearing, or by certiorari, or writ of error, after they are determined in the subordinate courts; but in no case, when they are carried up, are the facts re-examined, but they are always taken as established in the inferior courts.  Brutus, no. 14, Kurland, iv, 374.

That trial by jury of facts where they arise is one of the greatest securities of the lives, liberties and estates of the people.  Delaware Declaration of Rights, 1776 September 11.

… in all… cases before mentioned, the Supreme Court shall have appellate jurisdiction, as to law only, except in cases of equity, and of admiralty, and maritime jurisdiction, in which the Supreme Court shall have appellate jurisdiction both as to law and fact,

The good old rule that on questions of fact, it is the province of the jury, on questions of law it is the province of the court to decide.  But the jury may decide both.  Georgia v. Brailsford, 3 Dall. 1 (1794); Kurland, v, 364.

It is a matter well known, and well understood, that by the laws of our country, every question which affects a man’s life, reputation or property, must be tried by twelve of his peers; and that their unanimous verdict is, alone, competent to determine the fact in issue.  Respublica v. Shaffer, 1 Dall. 236 (Pa. 1788).

But challenges to the polls of the jury (who are judges of fact)…  William Blackstone, Commentaries, 3:349-67 (about 360); Kurland, v, 347.

Cross examination of witnesses.

[Facts]  Nothing can be more essential than the cross examining witnesses, and generally before the triers (jury) of the facts in question.  The common people can establish facts with much more ease with oral than written evidence.  Federal Farmer, no. 4, 1787 Oct. 4, Storing, 2.8.53-55; Kurland, v, 354.

[Facts]  Whenever a difference arises about a matter of fact in the courts of equity in America or England, the fact is sent down to the courts of common law to be tried by a jury, and it is what the lawyers call a feigned issue.  A Democratic Federalist, 1787 October 17, Storing 3.5.5-9; Kurland, v, 354-5.


“Civil case” by government is unconstitutional.

Based on the meanings of at least four phrases, as they were understood during America’s Founding Era – and as they were used by proponents of the Constitution during the ratification process, it appears that American governments have no authority to file civil cases; and, hence, the civil action against us (ALH & Co.) is unconstitutional.  The four phrases are, (a) civil law, (b) civil case, (c) criminal case and (d) due process of law.

A Summary. (Source material follows this Summary)

According to the meanings at the time of the ratification,

  • Civil law meant a body of law “governed by the civil or ecclesiastical law of the Romans.” (See Extended Discussion immediately following this summary for citations.)  This law was based on the Code of Justinian; it was perpetrated and modified by the Catholic Church; and is best illustrated in courts of the Catholic Inquisition.
  • Civil case meant a trial between “man and man,” or between “citizen and citizen,” conducted according to common-law procedures.  In other words, at the time of the American founding – and, in both England and America, it was widely understood that ‘civil law’ did not operate in ‘civil cases.’
  • Criminal case meant a trial between government and citizen conducted according to common-law procedures.  It’s a very simple distinction: for purposes of constitutional law, if the government is a party, it is a criminal case; if the government is not a party, it is a civil case.  And, according to original chapter 29 of the magna charta, the criminal case had to be conducted according to “the law of the land.”

However, for some criminal cases, the English government used procedures that were derived from civil, or ecclesiastical, law; the prisoner could be tortured to obtain a confession, he had no rights of counsel, of being informed of the evidence against him, of being able to question witnesses nor of presenting any kind of exculpatory defense.

  • Law of the land.  This phrase derives from the original chapter twenty nine of the Magna Charta; there it is rendered, legem terræ; and is translated as “law of the land.”  Other equivalent phrases are, ‘law of nature,’ ‘custom and tradition,’ ‘common law,’ ‘due process of law,’ ‘due course of the law’ and ‘the unwritten law.’

These are maxims and practices that have received the approval of time for the purpose of discovering the truth of a question and rendering a proper verdict.  This law is generally regarded as the most effective means for guarding against arbitrary government.

Americans have raised this law to constitutional status in several places; Amendments Five, Six and Seven are the most notable examples.

These ecclesiastical procedures in criminal cases were a major grievance of the American Revolution; and, from its earliest moments, Americans repeatedly declared intentions to abolish them and give criminal defendants some of the protections then enjoyed by civil-case defendants.  These intentions culminated in Amendments Five and Six.  And, just to be safe, Amendment Seven was ratified to reserve the rights and protections of civil-case defendants.

So, thru Amendments Five and Six, Americans abolished procedures that had oppressed government-prosecuted defendants in all Europe for over five hundred years – probably longer; it was an epochal innovation – and it has gone almost unheralded.  Amendment Seven declared and reserved rights and procedures that had been enjoyed by civil-case defendants for that same period of time – at least in England.

But it was not enough; for, the criminal element of mankind is relentless.  Since the Founding, bureaucrats, government attorneys and judges have perpetrated the fallacy that civil-case defendants do not have the same protections that criminal-case defendants have.  This fallacy was developed by the argument that Amendments Five and Six give no protections to civil-case defendants.  The implication was, that, if government sued a man with a civil case, he had no protections from these amendments.  But this would be a kind of freak of law; for, during the Founding Era, it was widely understood that only private parties could appear in a civil case.  If a government appeared as a party in any lawsuit to enforce a statute, it was, ipso facto, a criminal case – and Amendments Five and Six came into operation.  If both parties of a lawsuit were private men, it was, ipso facto, a civil case – and Amendment Seven came into operation (at least in federal courts).

Today, it is common practice that civil-case defendants are compelled to give testimony against themselves.  But, here, common practice has no basis in constitutional law; it is purely a derivation from ecclesiastical (or, civil law) doctrines.

The fact that the law of the land held compelled testimony from a civil-case defendant to be against law is, for all practical purposes, irrefutable.

Commentator after commentator, in both America and England, complained forcefully against the ecclesiastical-law practice of torturing prisoners to obtain confessions – as well as against its other barbarous rules and procedures.

From the earliest moments of the American Revolution, Americans declared this ecclesiastical law, and its satanic practices, to be grievances – and then repeatedly declared an intention to make them unlawful.

In not a single instance do we find those commentators or American rebels to complain about such practices relative to civil-case defendants.  What possibly could be the reason for this?  Could it be that there was not a single instance of it?  If torture had been used against both criminal-case and civil-case defendants, it is inconceivable that those commentators and American rebels would have complained of one and stood mute relative to the other.  They would have complained of both.

Only a small exercise of imagination is necessary to demonstrate why all said nothing about using torture on civil-case defendants.  If a civil-case plaintiff had used torture to obtain a confession of guilt from a civil-case defendant, I, for one, would imagine that someone would have complained of it; or, at least, they would have reported it.  But I find none of either one.

Further, if torture was used in civil cases, all of the elaborate rules and procedures, described by Blackstone, designed to obtain voluntary and truthful evidence and testimony would have been a great big exercise for nothing.  For, if a plaintiff could obtain a confession thru torture, what need of the elaborate selection and questioning of jurors, and examination of witnesses?  If a civil-case defendant could be tortured to obtain a confession, there is nothing for a jury to determine.  If there were such a right in civil-case plaintiffs to torture defendants, a man would be a damn fool not to use it; and civilization would be at an end.

Another perspective: civil-case parties each have a particular set of rights – one for plaintiffs and one for defendants.  The set of rights for plaintiffs is identical for all civil-case plaintiffs; the set of rights belonging to defendants, also, is identical for all civil-case defendants.  To argue otherwise would imply a kind of caste system in common law.

This would be a major innovation; for, in all my research I have never seen any mention of this caste system.  It would violate man’s nature and a constitutional principle: if one man receives a kind of protection, all men will have it – and there will be no rest until they have it; and, to give a protection, or advantage, to one man and deny it to others would violate the principle that all are to receive equal protection of the law.

Therefore, if we accept the theory that the government, as a civil-case plaintiff, can compel a defendant to testify against himself, we have to accept that all civil-case plaintiffs have an equal right to torture defendants to obtain a confession.  These questions just keep coming: ‘How does one private man obtain the right to torture another?’

While we are on the topic of the equal-protection doctrine, we should notice that, to compel one man to testify against himself (as a civil-case defendant) while another man cannot be so compelled (as a criminal-case defendant) would be a violation of the equal-protection doctrine.  It would also imply that American governments were established to give more protections to bandits and assassins than to their victims; or that American governments have been captured by such banditti.

The argument, that Amendments Five and Six do not give protections to civil-case defendants, is true: these amendments were designed to give protections to defendants in all cases prosecuted by government – not in cases between “man and man.”  Since an essential purpose of a constitution is to secure rights of citizens relative to governmental depredations, it would have been a pointless exercise to provide protections in civil cases for the simple reason that a government could never appear as a party in a civil case (to enforce a law) – as Founders understood such a case.  It is pointless to provide protection where it would never be needed.

But Founders did not anticipate the satanic duplicity of judges and bureaucrats that would later capture American governments.

The implication, that civil-case defendants had less rights than criminal-case defendants, is false: the former have at least the same – more probably, more – protections, thru the law of the land (secured by Amendment Seven), than defendants prosecuted by government.

As noted, if the government filed a civil case to enforce a law – according to constitutional meanings, it would be a kind of freak of law; it would be equivalent to putting red ruffles on a trash can and calling it a rose.

But, the lust for plunder over-rides all rules and rights that get in the way.  If the government could ignore the original meaning of civil case – and perpetrate the fallacy that civil-case defendants were subject to ecclesiastical procedures, the government could file civil actions and avoid restrictions imposed by Amendments Five and Six – it could do clandestinely what it is specifically forbidden to do by Amendments Five, Six and Seven.

Accordingly, when the government files a civil action, its purpose is to impose ecclesiastical-law procedures against a defendant – which were outlawed by Amendments Five and Six; it represents a constructive intention to subvert the constitution.

The considerations relative to the government assuming the role of a civil-case plaintiff are demonstrative of delusion on a grand scale.  If it is a true civil case, government must come in as a private party; this would seem to foreclose the possibility that it could invoke the powers conveyed by acts of Congress; for, it is unlawful for American governments to give privileges of power to one set of private men and deny it to others.

If the government files civil cases in order to impose ecclesiastical procedures, it violates the constitutional proscriptions against these procedures by Amendments Five, Six and Seven; for they all require all prosecutions, whether civil or criminal, to be conducted according to the law of the land.

Imposing ecclesiastical procedures violates a far more fundamental principle of American law.  The Declaration of Independence declares that American law is founded on “the law of nature” – not on the law of revelation, or canon law.  This character of American law was declared numerous times in official enactments of American assemblies (from town meetings to Continental Congresses) during the Revolution; so, when American governments today employ ecclesiastical-law procedures, they sweep away all that Founders won with the Revolution.

Qualification.  Another distinction that seems to determine whether a case is criminal or civil is the subject of the case: if it concerns property questions or money obligations (as in a debt), it is considered a civil case; if it concerns questions of possible fines or imprisonment, it is a criminal case – since only governments can impose fines or imprisonment.

The words “matter in dispute,” seem appropriated to civil cases, where the subject in contest has a value beyond the sum mentioned in the [Judiciary] act [of 1789].  But in criminal cases, the question is the guilt or innocence of the accused.  And although he may be fined upwards of $100, yet that is, in the eye of the law, a punishment for the offence committed, and not the particular object of the suit.  U. S. v. More, 3 Cranch 159 (1805); Kurland and Lerner, iv, 383 [Brackets and underline added].

Thus, it seems that the character of parties and nature of penalties (private obligation or public fine or imprisonment), distinguish between a civil and a criminal case.  That is, in a civil case, there can be no fine or imprisonment; these are only lawful in a criminal case.

By the language used by American Founders, they very clearly conveyed the sense that, if a government appeared as a party in a civil case, it would be a kind of freak of law.  They (James Wilson and Alexander Hamilton) could not understand why a trial by jury in a civil case would be defended on the basis that it provides a guard against governmental tyranny; for, as a civil case was understood at the time, only private parties could appear in a civil case.

This raises a problem, ‘How would a government or private party prosecute the other in order to enforce provisions of a contract?’  Here, punishment for violating a law would not be an issue; such a case would apparently deal with the subject matter of a civil case (questions of contract or property) but not involve the traditional private-type parties of a civil case.  Would it be classified as a quasi-civil case, or a quasi-criminal case?  Or, should a new term be invented in order to prevent confusion regarding the distinction between the traditional meanings of the two types of cases?

Questions like these would carry us beyond the main issue of this Summary.  We can only observe that it was the practice, and widely understood, during the American Founding Era that a government could not appear in a civil case; or, at least, a government could not use a civil case to impose a fine, imprisonment or any other kind of punishment.

Reiteration of main points.

At the time of the Revolution, it was understood by most or all Founders,

… that ‘civil case’ meant a trial between “man and man” conducted according to rules of common law (or equivalent phrases);

… that ‘civil law’ meant ecclesiastical, Roman or Italian law; that is, rules and procedures copied from the Catholic Inquisition: for example, a) a prisoner could be tortured to testify against himself; b) he had no rights [1] of counsel, [2] to be informed of the cause and nature of the charge against him; [3] of confronting his accusers or examining witnesses against him; nor [4] of calling friendly witnesses;

… that civil law did not operate in civil cases;

… that ‘criminal case’ meant a trial with government as plaintiff, conducted according to rules derived from ecclesiastical law;

… that ‘law of the land’ meant the rules and procedures developed since “time out of mind” for the purpose of providing guards and protections against arbitrary actions of government; one of the earliest expressions of it occurred in the original chapter twenty nine of the Magna Charta: legem terræ, ‘law of the land’ – also known as ‘common law,’ ‘custom and tradition,’ unwritten law,’ due process of law,’ and ‘due course of the law.’

Also at the time of the Revolution, it was widely understood and practiced that civil-case defendants had all protections of this law of the land.  Some of those protections were (and are) a) that no man could be compelled (or tortured) to testify against himself; that he had rights [1] of counsel, [2] to be informed of the cause and nature of the charge against him; [3] of confronting his accusers or examining witnesses against him; and [4] of calling friendly witnesses.

The imposition of ecclesiastical rules in criminal cases was a major grievance to American Founders, who declared repeatedly an intention to make such rules unconstitutional and to secure rights and protections of the ‘law of the land’ for all defendants – whether sued by government or a private party.  These intentions culminated in the ratification of Amendments Five, Six and Seven.

Everything about the prosecution against us (ALH & Co) was unconstitutional.

According to ecclesiastical-law (or, canon-law) procedures – and contrary to the law of the land,

… I was compelled, by threat of jail and seizure of property, to submit to an ecclesiastical-law interrogation – in violation of Amendments One and Five;

… I was jailed when I attempted to exercise my right to not testify against myself – in violation of Amendments Five and Seven;

… My resources were taken without due process of law – in violation of Amendments Four, Five and Seven;

… The judge, by summary judgment, determined facts – in violation of Amendments Five and Seven;

… My website was “burned” – in violation of Amendments One, Five and Seven;

… My right to a trial by jury was denied – in violation of Amendments Five, Six and Seven;

… I and all others (including my customers) were terrorized by the threat of audit and by the assessment of taxes and penalties against me in an amount approaching eighty millions (imposed as a jeopardy assessment; an amount reported by the court-appointed receiver) – with customer property serving as the basis for such assessments – in violation of Amendments Five, Six, Seven and Eight;

… My ability and right to call friendly witnesses and present an exculpatory defense were destroyed (by the terrorist nature of the ridiculous assessments, arbitrary rulings of the district court, and arbitrary confiscation and destruction of resources) – in violation of Amendments Five and Seven;

… I was denied opportunities to examine evidence and witnesses against me, owing to the same terrorist acts of government and court – in violation of Amendments Six and Seven.

The violations listed above are not crimes committed only against my customers and me – they are crimes committed against the whole country; for, if the government can commit such crimes against one man with impunity, it can – and will – commit them against any man.

These violations against me demonstrate the maxim that if evil, or criminal behavior, is not corrected, it progressively becomes worse.  When the government and court realized that jail was not sufficient torture to compel me to turn over records, they proceeded to the next level of torture – the seizure of my resources and destruction of my Company, along with the threat of torture (thru audits and barbarous fines and penalties; that is, the arbitrary assessments) for anyone who would come forward to provide assistance to me.  When these instruments of terror fail to suppress dissent, shall we expect the government to set its death squads in motion?

 A more extended discussion pertaining to ‘civil action’.

It is necessary to understand these Founding-Era meanings (civil case, civil law, criminal case, and law of the land) so we can understand the limitations, principles and intentions of the Constitution and Bill of Rights.  It is simple, basic contract law, to properly construe a contract – or constitution – it is necessary to determine what its parties meant by the words they used; and by learning these meanings, we learn what the parties intended to accomplish.  Even the Supreme Court recognizes this, at least impliedly,

Although the thrust of the Amendment (Seven) was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common-law forms of action recognized at that time. Curtis v. Loether, 415 U. S. 189, 193 (1974)

It is a widely accepted principle that each right secured by the Bill of Rights is equal in importance to all others; thus, if one right is to be preserved as it existed in 1791, they all are to be equally preserved.  If it is to be otherwise, a constitutional amendment, according to the procedures of Article five, is required to establish a new meaning or procedure.

If we construe a contract in any other manner, we propose wishful thinking, and disguise it in clothes of the contract or constitution in question.

Now, let’s examine the phrases in question.

Civil law.  At the time of the American founding the phrase, ‘civil law’ meant a body of law “governed by the civil or ecclesiastical law of the Romans.

This law was based on the Code of Justinian; it was perpetrated and modified by the Catholic Church; and is best illustrated in courts of the Catholic Inquisition.

“Those courts have always been considered in England as a grievance, and have all been established by the usurpations of the ecclesiastical over the civil power.  It is well known that the courts of chancery in England were formerly entirely in the hands of ecclesiastics, who took advantage of the strict forms of the common law, to introduce a foreign mode of jurisprudence under the specious name of Equity.” A Democratic Federalist, 1787 October 17, Storing 3.5.5-9; Kurland, v, 354-5.

According to ecclesiastical law, a defendant could be compelled, thru torture, to be a witness against himself; he had no rights of counsel of choice, of being informed of the nature of the charges against him – nor of being informed of contrary witnesses.  He had no right to question contrary witnesses.  He had no right to make a defense in order to exculpate himself.  Testimony of witnesses was given in secret, in the form of written interrogatories.

That “foreign mode of jurisprudence” had its clearest demonstrations in such tribunals as the Catholic Inquisition courts, the Star Chamber, and the High Commission (the Anglican version of the Inquisition).

Rights of defendants

(‘self-testimony’; In common law)

“The law will not tempt a man to make shipwreck of his conscience, in order to disculpate himself.” The King v. Dr. Purnell, 96 Eng. Rep. 20 (K. B. 1748); Kurland, v, 219.

[A juror challenged] under propter delictum¸a juror may not be questioned; for it would make him either forswear or accuse himself, if guilty.  William Blackstone, Commentaries, 3:349-67 (about 360); Kurland, v, 347.

Examination of defendants and witnesses.

[Discussing the expense to parties for cases tried originally by Supreme Court]  … to avoid the expense and inconvenience of calling witnesses from a great distance, to give evidence before the supreme court, [if] the expedient of taking the deposition of witnesses in writing should be adopted, it would not help the matter.  It is of great importance in the distribution of justice that witnesses should be examined face to face, that the parties should have the fairest opportunity of cross examining them in order to bring out the whole truth; there is something in the manner in which a witness delivers his testimony which cannot be committed to paper, and which yet very frequently gives a complexion to his evidence, very different from what it would bear if committed to writing…  Brutus, no. 14, 1788 Feb. 28-Mar. 6 [Brackets added.], Storing 2.9.168-85; Kurland, iv, 376.

Examinations of Witnesses upon Interrogatories, are only by the Civil Law.  Interrogatories are unknown at common Law, and Englishmen and common Lawyers have an aversion to them if not an abhorrence of them.  Writs of Assistance, Quincy’s Rep. (Mass.), App. 1:461 [Underline added.]; Kurland, v, 226.

Challenges to the polls [potential jurors], in capitia, are exceptions to particular jurors; and seem to answer the recusatio judicis in the civil and canon laws: by the constitutions of which a judge might be refused upon any suspicion of partiality.  By the laws of England also, in the times of Bracton and Fleta, a judge might be refused for good cause: but now the law is otherwise, and it is held that judges or justices cannot be challenged.  For the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea…. Blackstone, Commentaries, 3:349-67 (about 360) [Underline added.]; Kurland, v, 347.

[Military law is derived from ecclesiastical or canon law, Deuteronomy, xx, 14-18; and Sir Matthew Hale, reported that the law of necessity was limited to martial law; and, in the following, he compares common-law examination to ecclesiastical-law interrogation.]

But touching the Business of Martial Law, these Things are to be observed, viz.

First, That in Truth and Reality it is not a Law, but something indulged rather than allowed as a Law; the Necessity of Government, Order and Discipline in an Army, is that only which can give those Laws a Countenance. Quod enim Necessitas cogit desendi.

Secondly, This indulged Law was only to extend to Members of the Army, or to those of the opposite Army, and never was so much indulged as intended to be (executed or) exercised upon others; for others who were not listed under the Army, had no Color of Reason to be bound by Military Constitutions, applicable only to the Army, whereof they were not Parts; but they were to be ordered and governed according to the Laws to which they were subject, tho it were a Time of War.

Thirdly, That the exercise of Martial Law, whereby any Person should lose his Life or Member, or Liberty, may not be permitted in Time of Peace, when the King’s Courts are open for all Persons to receive Justice, according to the Laws of the Land… (26-7)

[Face to face examination compared to Interrogatories]

Ninthly, The Excellency of this open Course of Evidence to the Jury in Presence of the Judge, Jury, Parties and Council [sic], and even of the adverse Witnesses, appears in these Particulars:

1st , That it is openly; and not in private before a Commissioner or Two, and a couple of Clerks, where oftentimes Witnesses will deliver that which they will be ashamed to testify publickly.

2dly, That it is Ore Tenus personally, and not in Writing, wherein oftentimes, yea too often, a crafty Clerk, Commissioner, or Examiner, will make a Witness speak what he truly never meant, by his dressing of it up in his own Terms, Phrases, and Expressions; whereas on the other Hand, many times the very Manner of a Witness’s delivering his Testimony will give a probable Indication whether he speaks truly or falsely; and by this Means also he has Opportunity to correct, amend, or explain his Testimony upon further Questioning with him, which he can never have after a Deposition is set down in Writing.

3rdly, That by this Course of personal and open Examination, there is Opportunity for all Persons concern’d, viz. The Judge, or any of the Jury, or Parties, or their Council [sic] or Attornies [sic], to propound occasional Questions, which beats and boults out the Truth much better than when the Witness only delivers a formal Series of his Knowledge without being interrogated; and on the other [ecclesiastical] Side, preparatory, limited, and formal Interrogatories in Writing, preclude this Way of occasional Interrogations, and the best Method of searching and sifting out the Truth is choak’d and suppressed.

4thly, Also by this personal Appearance and Testimony of Witnesses, there is Opportunity of confronting the adverse Witnesses, of observing the Contradiction of Witnesses sometimes of the same Side, and by this Means great Opportunities are gained for the true and clear Discovery of the Truth.

5thly, And further, The very Quality, Carriage, Age, Condition, Education, and Place of Commorance [sic] of Witnesses, is by this Means plainly and evidently set forth to the Court and the Jury, whereby the Judge and Jurors may have a full Information of them, and the Jurors, as they see Cause, may give the more or less Credit to their Testimony, for the Jurors are not only Judges of Fact, but many Times of the Truth of Evidence; and if there be just Cause to disbelieve what a Witness swears, they are not bound to give their Verdict according to the Evidence or Testimony of that Witness; and they may sometimes give Credit to one Witness, tho opposed by more than one.  And indeed, it is one of the Excellencies of this Trial above great Regard to Witnesses and their Testimony, yet they are not always bound by it, but may either upon their Credibility, tho otherwise in themselves in Strictness of Law they are to be heard, pronounce a Verdict contrary to such Testimonies, the Truth whereof they have just Cause to suspect, and may and do often pronounce their Verdict upon one single Testimony, which Thing the Civil Law admits not of. (163-4)  Sir Matthew Hale, History of the Common Law, edited by Charles M. Grey, Classics of British Historical Literature.  [Underline and brackets added.]  Chicago: U. of Chicago, 1971, 26-7, 163-4; Kurland and Lerner, v, 247-8.

Thus, interrogatories are instruments of ecclesiastical (that is, ‘inquisitorial’) law; and would seem to violate many rights supposedly reserved by several amendments.

In the reigns of Henry I, Stephen, and Henry II, “the term per legem terræ was employed in contradistinction to the civil law, then called the Italian law, having been lately discovered and adopted in Italy, and which had been, or were then begun to be, introduced into England in exclusion of the laws of Edward the Confessor, or, in other words, in the law of England.  State v. [Blank], 1 Hayw, 28 (N.C. 1794); Kurland and Lerner, v, 315.

 Civil case

From the time of the earliest American settlements to the Revolution – and for hundreds, maybe thousands, of years in England, the phrase, ‘civil case’ meant a trial between “man and man,” or between “citizen and citizen,” conducted according to common-law procedures.

The fact, for purposes of constitutional law, that a civil case only involves private parties is simply incontrovertible.  The Virginia Declaration of Rights had this provision,

That controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.  1776 June 12, Mason’s Papers, I, 287-9; Kurland and Lerner, v, 3.

Declarations and Constitutions of North Carolina, Delaware, Pennsylvania, New York, Massachusetts, among others contained similar declarations with almost identical language.

In other words, at the time of the American founding – and, in both England and America, it was widely understood that a government could not appear as a party in a civil case and that civil law did not operate in civil cases.

The phrase, “civil case,” meant a case between “man and man” (A Democratic Fvederalist, 17 Oct 1787, Storing, 3.5.5-9. Kurland and Lerner, v, 354.) or “citizen and citizen” tried by the rules of common law (or, equivalent phrases, lex terræ, law of the land, or due process of law).  This is in contradistinction to the phrase, “criminal case,” which meant a case where the government was the plaintiff; this, also, was to be tried according to rules of the law of the land, but with some differences.  (See notes below on ‘criminal case’ and ‘due process.’)

Between “man and man.”  ‘A Democratic Federalist’ thought the proposed constitution would operate to abolish the trial by jury in civil cases.  “Let us now attend to the consequences of this enormous innovation, and daring encroachment, on the liberties of the citizens.  Setting aside the oppression, injustice, and partiality that may take place in the trial of questions of property between man and man, we will attend to one single case.”

That is, a civil case meant a trial between “man and man,” according to the rules of common law.

A ‘Democratic Federalist’ explains his fears relative to the Article iii provision that gave appellate jurisdiction to the supreme court, “both as to law and fact.”

The word appeal, if I understand it right, in its proper legal signification includes the fact as well as the law, and precludes every idea of a trial by jury – It is a word of foreign growth, and is only known in England and America in those courts which are governed by the civil or ecclesiastical law of the Romans.  Those courts have always been considered in England as a grievance, and have all been established by the usurpations of the ecclesiastical over the civil power.  It is well known that the courts of chancery in England were formerly entirely in the hands of ecclesiastics, who took advantage of the strict forms of the common law, to introduce a foreign mode of jurisprudence under the specious name of Equity.  Pennsylvania, the freest of the American States has wisely rejected this establishment, and knows not even the name of a court of chancery.  And, in fact, there cannot be any thing more absurd than a distinction between Law and Equity….

An appeal therefore is a thing unknown to the common law.  Instead of an appeal from facts, it admits of a second, or even third trial by different juries, and mistakes in points of law, are rectified by superior courts in the form of a writ of error – and to a mere common lawyer, unskilled in the forms of the civil law courts, the words appeal from law and fact, are mere nonsense, and unintelligible absurdity.

… in such cases [abuse of government power] a trial by jury would be our safest resource, heavy damages would at once punish the offender, and deter others from committing the same: but what satisfaction can we expect from a lordly court of justice, always ready to protect the officers of government against the weak and helpless citizen, and who will perhaps sit at the distance of many hundred miles from the place where the outrage was committed?  What then shall we then have to shelter us from the iron hand of arbitrary power?  A Democratic Federalist, 1787 October 17, Storing 3.5.5-9; Kurland, v, 354-5.

Between “citizen and citizen.”

If we identified the five men most responsible for writing and ratifying the constitution, I think James Wilson would be on that list.  He participated in the Constitutional convention and in the Pennsylvania Ratifying Convention; later, he was appointed to the Supreme Court; and several of his written opinions have become classics in American Jurisprudence.

Wilson objected to the assertion that the proposed constitution would abolish trial by jury in civil cases.

Dec. 7 [James Wilson]  It is very true that [in the proposed constitution] trial by jury is not mentioned in civil cases; but I take it that it is very improper to infer from hence that it was not meant to exist under this government.  Where the people are represented, where interest of government cannot be separate from that of the people, (and this is the case in trial between citizen and citizen,) the power of making regulations, with respect to the mode of trial may certainly be placed in the legislature; for I apprehend that the legislature will not do wrong in an instance from which they can derive no advantage [that is, since a government cannot appear in a civil case, it “can derive no advantage” from a civil case].

[Dec. 11, James Wilson]  We have been told, sir, by the honorable member from Fayette, (Mr. Smilie,) “that the trial by jury was intended to be given up, and the civil law was intended to be introduced into its place, in civil cases.” [Please notice, “civil law” and “civil cases” are distinguished.]

Before a sentiment of this kind was hazarded, I think, sir, the gentleman ought to be prepared with better proof in its support than any he has yet attempted to produce.  It is a charge, sir, not only unwarrantable, but cruel: the idea of such a thing, I believe, never entered into the mind of a single member of that Convention; and I believe further, that they never suspected there would be found, within the United States, a single person that was capable of making such a charge.

[Dec. 11, James Wilson] … in all cases where the cause has come originally before a jury, that the last examination ought to be before a jury likewise.  Debate in Pennsylvania Ratifying Convention, [Brackets added, parenthesis in original] 1787 Dec. 7, 11, Elliot, 2: 488-9, 515-19; Kurland, v, 356.

The following are some Founding-Era declarations that pertain to civil trials; that is, trials between “man and man” or “citizen and citizen.”

Virginia Declaration of Rights

“That controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.”  1776, June 12, Mason’s Papers, I:287-9; Kurland and Lerner, v, 3.

Delaware Declaration of Rights

Sect. 12.  That every freeman for every injury done him in his goods, lands or person, by any other person, ought to have remedy by the course of the law of the land…

Penn. Const of 1776

[XI.]  That in controversies respecting property, and in suits between man and man, the parties have a right to trial by jury, which ought to be held sacred.

Mass. Constitution of 1780

[XV.]  In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways [sic] used and practiced, the parties have right to trial by jury…  Mass. Constitution of 1780, Pt. 1, Handlin, 442-8; Kurland and Lerner, v, 7.

Virginia Ratifying Convention

11th.  That, in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and [ought] to remain sacred and inviolable.  Virginia Ratifying Convention, Proposed Amendments to the Constitution, 1788 June 27 (Elliot, 3:657-61); Kurland and Lerner, v, 15-7.

The common law, therefore, of one state, is not the common law of another; but the common law of England is the law of each state, so far as each state has adopted it; and it results from that position, connected with the judicial act, that the common law will always apply to suits between citizen and citizen, whether they are instituted in a federal or a state court.  U. S. v. Worrell, [Underline added.] 2 Dall. 384 (C.C.D. Pa. 1798); Kurland, iv, 262.


Criminal case.

Now we must distinguish between “criminal case” and “civil case,” as American Founders understood them; a “criminal case” meant a trial between government and citizen conducted according to common-law procedures.

It’s a very simple distinction: for purposes of constitutional law, if the government is a party, it is a criminal case; if the government is not a party, it is a civil case.  And, according to chapter 29 of the magna carta, the criminal case had to be conducted according to “the law of the land”; also known as “due process of law” or “common law.”

However, for some criminal cases, the English government used procedures that were derived from civil law; the prisoner could be tortured to obtain a confession, he had no rights of counsel, of being informed of the evidence against him, of being able to question witnesses nor of presenting any kind of exculpatory defense.

William Blackstone made numerous observations concerning the differences between common-law and ecclesiastical-law practices – although he mistakenly, in my opinion, referred to these oppressive ecclesiastical-law rules as aberrant common-law rules.

But it is a settled rule at common law, that no counsel shall be allowed [to] a prisoner upon his trial, upon the general issue, in any capital crime, unless some point of law shall arise proper to be debated.  A rule, which (…) seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law.  For upon what face of reason can that assistance be denied to save the life of a man, which yet is allowed him in prosecutions for every petty trespass?  Nor indeed is it strictly speaking a part of our antient law: for the Mirrour, having observed the necessity of counsel in civil suits, “who know how to forward and defend the cause, by the rules of law and customs of the realm,” immediately afterwards subjoins; “and more necessary are they for defence upon indictments and appeals of felony, than upon other venial causes.”

Lastly, it was an antient and commonly received practice, (derived from the civil [ecclesiastical] law, and which also to this day obtains in the kingdom of France) that, as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of any witnesses.  … In general the courts grew so heartily ashamed of a doctrine so unreasonable and oppressive, that a practice was gradually introduced of examining witnesses for the prisoner, but not upon oath: the consequence of which still was, that the jury gave less credit to the prisoner’s evidence, than to that produced by the crown.

… judges themselves are so sensible of this defect in our modern practice, that they seldom scruple to allow a prisoner counsel to stand by him at the bar, and instruct him what questions to ask, or even to ask questions for him, with respect to matters of fact…

[By] statute 7 W. III, c. 3, persons indicted for such high treason, as works a corruption of the blood, or misprision thereof, may make their full defence by counsel, not exceeding two…  William Blackstone, Commentaries, [Parenthesis in original, brackets added] 4:317-9, 342-50, 352-3 (1769); Kurland and Lerner, v, 256-7.

This open examination of witnesses viva voce [according to procedures in civil cases], in the presence of all mankind, is much more conducive to the clearing up of truth than the private and secret examination taken down in writing before an officer, or his clerk, in the ecclesiastical courts, and all others that have borrowed their practice from the civil law: where a witness may frequently depose that in private, which he will be ashamed to testify in a public and solemn tribunal.  There an artful or careless scribe may make a witness speak what he never meant, by dressing up his depositions in his own forms and language; but he is here at liberty to correct and explain his meaning, if misunderstood, which he can never do after a written deposition is once taken.  Besides the occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled: and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had upon any other method of trial…

… the civil law, as it is now modeled, rejects all public examination of witnesses.  William Blackstone, Commentaries, (Parenthesis in original, brackets and underline added) 3:349-67, 370-81 (1768); Kurland and Lerner, v, 350.

Every new tribunal, erected for the decision of facts, without the intervention of a jury, (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience [inquisitorial courts], or any other standing magistrates) is a step towards establishing aristocracy, the most oppressive of absolute governments.  Blackstone, [Underline added.]  id, 352.

Most commentators refer to these debilities imposed on criminal-case defendants as part of the common law; however, when these same commentators discuss the mode of proceedings in civil-law courts, they list the same debilities as were then prevailing in common-law criminal cases.  Thus, it is more likely that when ecclesiastics dominated the court of Chancery, they introduced inquisitorial practices into criminal cases and represented them as common-law rules in order to avoid responsibility for the horrid results that naturally ensued.  What makes this a reasonable explanation is that English commentators, who wrote prior to the introduction of ecclesiastical law into England, never mention such barbarous practices in criminal cases – as reported by Blackstone relative to the Mirror.

Furthermore, Magna Charta was intended to operate as a limitation on the English government; its chapter twenty-nine required that “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed – nor will we [the king or his magistrates] go upon or send upon him – save by the lawful judgment of his peers or the law of the land.”  If this requirement had any operation, it would have provided protection against ecclesiastical-law procedures in all cases between man and government.

Due Process for Criminal Defendants.

The prisoner by himself or counsel, is then allowed to produce witnesses to counteract and obviate the testimony against him; and to exculpate himself with the same freedom as in civil cases.  We have never admitted that cruel and illiberal principle of the common law of England that when a man is on trial for his life, he shall be refused counsel, and denied those means of defence, which are allowed, when the most trifling pittance of property is in question.  Zephaniah Swift, A System of Laws of the State of Connecticut, 2:398-9 (1796); Kurland, v, 265.

Joseph Story, an early Supreme Court Justice, early in his career was hostile towards the common law; but, with experience, he became a proponent of it.

§1783.  The other part of the clause [of Amendment Five] is but an enlargement of the language of magna charta, “nec super eum ibimus, nec super eum mittimus, nisi per legale judicium parium suorum, vel per legem terrae.” Neither will we pass upon him, or condemn him, but by the lawful judgment of his peers, or by the law of the land.  Lord Coke says, that these latter words, per legem terrae (by the law of the land,) mean ‘by due process of law’, that is, without due presentment or indictment, and being brought in to answer thereto by due process of the common law.  So this clause in effect affirms the right of trial according to the process and proceedings of the common law.

§1786.  [Here, Story reviews Blackstone’s 4:349-50, 352-3, pertaining to denial of right of counsel and of confronting witnesses for criminal defendants; and observes,]  The right seems never to have been doubted, or denied, in cases of mere misdemeanors.  For what causes, and upon what grounds this distinction was maintained, or even excused, it is impossible to assign any satisfactory, or even plausible reasoning.  Surely, a man’s life must be of infinitely more value, than any subordinate punishment; and if he might protect himself against the latter by proofs of his innocence, there would seem to be irresistible reasons for permitting him to do the same in capital offences….  Witnesses for the government may swear falsely, and directly to the matter in charge; and, until opposing testimony is heard, there may not be the slightest ground to doubt its truth; and yet, when such is heard, it may be incontestable, that it is wholly unworthy of belief.  Joseph Story, Commentaries on the Constitution [Underline and brackets added, parenthesis in original.] 3; Kurland, v, 296.

To deny right of confronting adverse witnesses for one kind of trial but allow it for another is a denial of equal protection of the law.

The declarations and resolves that follow demonstrate the intention of Founders to make ecclesiastical-law procedures illegal.

[Virginia] Section 8.  That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land, or the judgment of his peers.  Virginia Declaration of Rights, 1776 June 12.

[Delaware] Sect. 14.  That in all prosecutions for criminal offences, every man hath a right to be informed of the accusation against him, to be allowed counsel, to be confronted with the accusers or witnesses, to examine evidence on oath in his favor; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.

Sect. 15.  That no man in the Courts of Common Law ought to be compelled to give evidence against himself.  Del. Dec. of Rights.

Pennsylvania Constitution of 1776

Declaration of Rights

[Section] IX.  That in all prosecutions for criminal offences, a man hath a right to be heard by himself and his council, [sic] to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favor, and a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury he cannot be found guilty; nor can he be compelled to give evidence against himself; nor can any man be justly deprived of his liberty, except by the laws of the land, or the judgment of his peers.  Penn. Constitution of 1776, Dec. of Rights, Thorpe, 5:3082-4; Kurland and Lerner, v, 6.

Mass Const of 1780

[Section] XII. –No subject shall be held to answer for any crime or offence, until the same is fully and plainly, substantially and formerly, described to him; or be compelled to accuse or furnish evidence against himself.  And every subject shall have a right to produce all proofs that may be favorable to him; to meet the witnesses against him face to face and to be fully heard in his defence by himself, or his counsel, at his election.  And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate; but by the judgment of his peers, or the law of the land.

New York Ratifying Convention

That no person ought to be taken, imprisoned, or disseized of his freehold, or be exiled, or deprived of his privileges, franchises, life, liberty or property, but by due process of law.

That (except in the government of the land and naval forces, and of the militia where in armed service, and in cases of impeachment) a presentment or indictment by a grand jury ought to be observed as a necessary preliminary to the trial of all crimes cognizable by the judiciary of the United States; and such trial should be speedy, public, and by an impartial jury of the county where the crime was committed: and that no person can be found guilty without the unanimous consent of such jury.  … and that, in all criminal prosecutions, the accused ought to be informed of the cause and nature of his accusation, to be confronted with his accusers and the witnesses against him, to have the means of producing his witnesses, and the assistance of counsel for his defence; and should not be compelled to give evidence against himself.

That the trial by jury, in the extent that it obtains by the common law of England, is one of the greatest securities to the rights of a free people, and ought to remain inviolate.  New York Ratification of Constitution, [Underline added, parenthesis in original.] 1788 July 26, Elliot, 1:327-31; Kurland and Lerner, v, 11.

Virginia Ratifying Convention,

Proposed Amendments to the Constitution,

That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following: –

8th.  That, in all criminal and capital prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence, and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty… nor can be compelled to give evidence against himself.

9th.  That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges, or franchises, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land.

11th.  That, in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and [ought] to remain sacred and inviolable.  Virginia Ratifying Convention, Proposed Amendments to the Constitution, 1788 June 27 (Elliot, 3:657-61); Kurland and Lerner, v, 15-7.

North Carolina Ratifying Convention,

Declaration of Rights and Other Amendments

 [Section] 8.  That, in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence, and be allowed counsel in his favor, and a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, not can he be compelled to give evidence against himself.

[Section] 9.  That no freeman ought to be taken, imprisoned, or disseized of his freehold, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land.

[Section] 11.  That, in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable.  North Carolina Ratifying Convention, Declaration of Rights and Other Amendments 1788 August 1 (Elliot, 4:242-46, 248-9); Kurland and Lerner, v, 17-8.

Joseph Story

§  1781.  Another clause [of Amendment Five] declares, that no person shall be subject, “for the same offence, to be twice put in jeopardy of life and limb.”  This, again, is another great privilege secured by the common law

§  1782.  The next clause prohibits any person from being compelled, in any criminal case, to be a witness against himself; or being deprived of life, liberty, or property, without due process of law.  This also is but an affirmance of a common-law privilege.  But it is of inestimable value.  It is well known, that in some countries, not only are criminals compelled to give evidence against themselves, but are subjected to the rack or torture in order to procure a confession of guilt.  And what is worse, it has been (as if in mockery or scorn) attempted to excuse, or justify it, upon the score of mercy and humanity to the accused.  It has been contrived, (it is pretended), that innocence should manifest itself by a stout resistance, or guilt by a plain confession; as if a man’s innocence were to be tried by the hardness of his constitution, and his guilt by the sensibility of his nerves.  Cicero, many ages ago, though he lived in a state, wherein it was usual to put slaves to the torture, in order to furnish evidence, has denounced the absurdity and wickedness of the measure in terms of glowing eloquence, as striking, as they are brief.  They are conceived in the spirit of Tacitus, and breathe all his pregnant and indignant sarcasm.  Ulpian, also, at a still later period in Roman jurisprudence, stamped the practice with severe reproof.

§ 1783.  The other part of the clause is but an enlargement of the language of magna charta, “nec super eum ibimus, nec super eum mittimus, nisi per legale judicium parium suorum, vel per legem terrae.” Neither will we pass upon him, or condemn him, but by the lawful judgment of his peers, or by the law of the land.  Lord Coke says, that these latter words, per legem terrae (by the law of the land,) mean by due process of law, that is, without due presentment or indictment, and being brought in to answer thereto by due process of the common law.  So this clause in effect affirms the right of trial according to the process and proceedings of the common law.

§  1785.  The other article, in declaring, that the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state or district, wherein the crime shall have been committed, (which district shall be previously ascertained by law) and to be informed of the nature and cause of the accusation, and to be confronted with the witnesses against him, does but follow out the established course of the common law in all trials for crimes.  The trial is always public; the witnesses are sworn, and give in their testimony (at least in capital cases) in the presence of the accused; the nature and cause of the accusation is accurately laid down in the indictment; and the trial is at once speedy, impartial, and in the district of the offence.  Without in any measure impugning the propriety of these provisions, it may be suggested, that there seems to have been an undue solicitude to introduce into the constitution some of the general guards and proceedings of the common law in criminal trials, (truly admirable in themselves) without sufficiently adverting to the consideration, that unless the whole system is incorporated, and especially the law of evidence, a corrupt legislature, or a debased and servile people, may render the whole little more, than a solemn pageantry.  If, on the other hand, the people are enlightened, and honest, and zealous in defence of their rights and liberties, it will be impossible to surprise them into a surrender of a single valuable appendage of the trial by jury.

§  1786.  [Here, Story reviews Blackstone’s 4:349-50, 352-3, pertaining to denial of right of counsel and of confronting witnesses for criminal defendants, and remarks,]  The right seems never to have been doubted, or denied, in cases of mere misdemeanors.  For what causes, and upon what grounds this distinction was maintained, or even excused, it is impossible to assign any satisfactory, or even plausible reasoning.  Surely, a man’s life must be of infinitely more value, than any subordinate punishment; and if he might protect himself against the latter by proofs of his innocence, there would seem to be irresistible reasons for permitting him to do the same in capital offences….  Witnesses for the government may swear falsely, and directly to the matter in charge; and, until opposing testimony is heard, there may not be the slightest ground to doubt its truth; and yet, when such is heard, it may be incontestable, that it is wholly unworthy of belief.  Joseph Story, Commentaries on the Constitution [Underline and brackets added, parenthesis in original.] 3; Kurland, v, 296.

One thing to notice about judge Story’s comments on Amendments Five and Six is that he declares their intention to be to recognize and secure common-law rights for criminal-case defendants: as to Amendment Five, to “prohibit[..] any persons from being compelled, in any criminal case, to be a witness against himself; or being deprived of life, liberty, or property, without due process of law… is but an affirmance of a common-law privilege.” (§ 1782)

The due-process clause of Amendment Five is “an enlargement of the language” of the original chapter twenty-nine of the magna carta, and “affirms the right of trial according to the process and proceedings of the common law.” (§ 1783)

The rights and procedures enumerated in Amendment Six “follow out the established course of the common law in all trials for crimes.” (§ 1785)

In other words, Amendments Five and Six pertain only to criminal cases; and they were intended to secure to such defendants the same common-law rights and procedures that civil-case defendants already had.

Judge Story was only partly right; he wrongly uses the phrase “common-law privilege,” which is a contradiction of terms: there are no privileges in common law.  A privilege is a permission granted by one class of men (generally identified as ‘slave holders’) to another class of men (generally identified as slaves).  A privilege depends on nothing more than the smiles of bureaucrats and judges; it can be withdrawn at any time; it is a kind of legal trinket, and has no value to a free man.  Rights are derived from the laws of nature: specifically, a right is the result of productive labor.  In other words, rights are not given: there is no one in the law of nature to give rights to another; if one man has such a right (if he has earned it by productive labor), all men have the same right.  The eternal problem with such rights is how to effectively secure them.

Thus, the rights and procedures enumerated in Amendments Five and Six were not invented by Americans; it had been recognized for more than five hundred years that such rights belonged to civil-case defendants.  Americans only extended them to protect men prosecuted by government.

Law of the land.

This phrase derives from the original chapter twenty nine of the Magna Charta; there it is rendered, legem terræ; and is translated as “law of the land.”  Other equivalent phrases are, ‘law of nature,’ ‘custom and tradition,’ ‘common law,’ ‘due process of law,’ ‘due course of the law’ and ‘the unwritten law.’

These are maxims and practices that have received the approval of time for the purpose of discovering the truth of a question and rendering a proper verdict.  This law is generally regarded as the most effective means for guarding against arbitrary government.

For purposes of American law, this ‘law of the land’ is probably best explained by William Blackstone in his Commentaries.

Americans have raised this law to constitutional status in several places; Amendments Five, Six and Seven are the most notable examples.

As a law of constitutional status, it is to be construed as it was understood and practiced prior to 1791.  Curtis v. Loether, 415 U. S. 189 @ 193.

With this constitutional status, neither legislatures nor judges have authority to alter or depart from the ‘law of the land.’

A very important attribute of it is that it does not include enactments of a legislature.  See notes below on ‘due process of law.’

[Bouvier’s] Due Process of Law.

The phrase is equivalent to “law of the land,” as derived from Magna Carta, c. 29; also equivalent to “due course of the law.”

Denotes “indictment or presentment of good and lawful men,” Coke 2nd Inst. 50.

“Law of the land”: “Statutes [that] would deprive a citizen of the rights of person or property without a regular trial according to the course and usage of the common law would not be the law of the land.” Hoke v. Henderson, 15 N. C. 15, 25 Am. Dec. 677.

“By the law of the land is more clearly intended the general law, a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.  The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society.  Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land.”  Dartmouth Collage Case, 4 Wheat (U. S.) 518, 4 L. Ed. 629.

Magna Carta, c. 29 invoked in Petition of Right of 1628; there, “due process of law” was used for the first time and coupled with “law of the land.”

The phrase as used in the constitution does not “mean a statute passed for the purpose of working the wrong.  That construction would render the restriction absolutely nugatory and turn this part of the constitution into mere nonsense.  The people would be made to say to the two houses: ‘You shall be vested with the legislative power of the state, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you pass a statute for that purpose.  In other words, you shall not do the wrong unless you choose to do it’;” per Bronson, J., in Taylor v. Porter, 4 Hill (N. Y.) 140, 40 Am. Dec. 274.

And then, under the category of gabble, we have

Taking property under the taxing power is taking it by due process of law.  High v. Shoemaker, 22 Cal 363; Springer v. U. S., 102 US 585, 26 L. Ed. 253.

“We think that any legal process which was originally founded in necessity, has been consecrated by time, and approved and acquiesced in by universal consent, … is embraced in the alternative “law of the land.” (Bouvier’s, under ‘due process.’)

 [End of Bouvier’s]

The words “due process” have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature.  Alexander Hamilton, Remarks on an Act for Regulating Elections, New York Assembly, 1787 Feb. 6, Papers¸4:35; Kurland and Lerner, v, 313.

Controversy regarding loss of trial by jury in civil cases.

Civil case; civil law; criminal case; and law of the land.

These four phrases were fairly extensively discussed during the ratification process of the Constitution because of a controversy that arose over a provision in the Constitution that gave appellate jurisdiction to the supreme court, “both as to law and fact,” relative to all cases enumerated in Article iii, section two.  This led many people to the conclusion that this provision would effectively abolish the jury trial in civil cases.  This controversy nearly prevented ratification of the Constitution, as reported by Joseph Story (see his Commentaries, § 1757, below).

§ 1757. “the supreme court shall have appellate jurisdiction, both as to law and fact.”  This provision was a subject of no small alarm and misconstruction at the time of the adoption of the constitution, as it was supposed to confer on the Supreme Court, in the exercise of its appellate jurisdiction, the power to review the decision of a jury in mere matters of fact; and thus, in effect, to destroy the validity of their verdict, and to reduce to a mere form the right of a trial by jury in civil cases.  The objection was at once seized hold of by the enemies of the constitution and it was pressed with an urgency and zeal which were well nigh preventing its ratification.  There is certainly some foundation, in the ambiguity of the language to justify an interpretation, that such a review might constitutionally be within the reach of the appellate power if congress should choose to carry it to this extreme latitude.  But, practically speaking, there was not the slightest danger; that congress would ever adopt such a course, even if it were within their constitutional authority; since it would be at variance with all the habits, feelings, and institutions of the whole country.  At least it ought be affirmed, that congress would scarcely take such a step, until the people were prepared to surrender all the great securities of their civil, as well as of their political rights and liberties; and in such an event the retaining of the trial by jury would be a mere mockery.  The real object of the provision was to retain the power of reviewing the fact, as well as the law, in cases of admiralty and maritime jurisdiction.  And the manner, in which it is expressed, was probably occasioned by the desire to avoid the introduction of the subject of a trial by jury in civil cases, upon which the convention were greatly divided in opinion.  Story, Commentaries, 3: §1757; Kurland, iv, 388 [Underline added.].

In civil cases, there were elaborate procedures to assure (a) that defendants would be informed as to the nature of the complaint against them; (b) that impartial jurors would be selected, (c) that defendants could examine witnesses in open court; (d) that, in case of error, defendants could obtain a second trial; e) among other protections.

It had been the practice in America from its first settlement and in England for hundreds, maybe thousands, of years that questions of facts were the province of juries, questions of law were the province of judges.  Sometimes juries took it upon themselves to determine law; but, it was a strict rule that judges could never determine facts; nor could they alter a jury’s verdict – it was final, and was not subject to review or appeal.  Judges could authorize a second or third trial; but they could not alter a jury’s verdict.

Critics of the Constitution feared that, if supreme-court justices had authority to overturn jury determinations of facts, the trial by jury would effectively be destroyed as a guard against governmental tyranny – since its verdicts would be subject to review by the very tyranny it was designed to guard against.

To counter this fear, friends of the Constitution responded with at least six measures to secure trial by jury in all criminal and civil cases.

[1]  Participants of the constitutional convention (James Wilson and Alexander Hamilton, for example) reported that it never entered the mind of a single convention participant to alter a trial by jury in civil cases; and that every such participant regarded a trial by jury the most effective means by which to guard a man’s life, liberty and property against despotic government.

Further, Wilson and Hamilton couldn’t understand why people would defend a trial by jury in civil cases on the grounds that it served as a bulwark against governmental tyranny.  It was an argument that made no sense; for, only private parties (“man and man” or “citizen and citizen”) could appear in a civil case.

Wilson objected to the assertion that the proposed constitution would abolish trial by jury in civil cases.

It is very true that [in the proposed constitution] trial by jury is not mentioned in civil cases; but I take it that it is very improper to infer from hence that it was not meant to exist under this government.  Where the people are represented, where interest of government cannot be separate from that of the people, (and this is the case in trial between citizen and citizen,) the power of making regulations, with respect to the mode of trial may certainly be placed in the legislature; for I apprehend that the legislature will not do wrong in an instance from which they can derive no advantage.  Debate in Pennsylvania Ratifying Convention, (Parenthesis in original, brackets added) 1787 Dec 7, Elliot, 2:488-9.

In other words, Wilson’s remarks were about a “trial by jury… in civil cases.”  In his next sentence, he described such cases as “trials between citizen and citizen”; for, he never used any other phrase but “civil cases.”  In this same sentence, he amplified on this character of a civil case by describing such a case as “an instance from which they (a legislature) can derive no advantage.”  That is, governments can derive no advantage from civil cases because they cannot appear as a party in a civil case.

Alexander Hamilton also addressed the concern that the failure to mention trial by jury in civil cases would result in the abolition of such trials.  He observed that members of the Constitutional Convention regarded trial by jury as a valuable safeguard to liberty… the very palladium of free government.  For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; [a] and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to as a defence against the oppression of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government.  [b] Discussions of this kind would be more curious than beneficial as all are satisfied of the utility of the institution, and of its friendly aspect to liberty.  [c] But I must acknowledge that I cannot readily discern the inseparable connection between the existence of liberty and the trial by jury in civil cases.  [d] Arbitrary impeachments, arbitrary methods of prosecuting pretended offences, and arbitrary punishments upon arbitrary convictions have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings.  The trial by jury in criminal cases¸ aided by the habeas corpus act, seems therefore to be alone concerned in the question [of trial by jury “as a barrier to tyranny of popular magistrates and judicial despotism”].  Hamilton, Federalist No. 83 [Brackets added]; Kurland and Lerner, v, 359-360.

[a] He thought it was “superfluous” to discuss its utility “in a representative republic, or… as a defence against the oppression of an hereditary monarch”; because it was more important to discuss its utility “as a barrier to the tyranny of popular magistrates in a popular government.”

[b] Even then, such discussions would be “more curious than beneficial as all are satisfied of the utility of the institution, and of its friendly aspect to liberty.”

[c] Because only private parties appear in civil cases, and because oppression of a defendant is only a concern relative to contests between government and private citizen, Hamilton could not “discern the inseparable connection between the existence of liberty and the trial by jury in civil cases.

In other words, governmental tyranny could never oppress a civil-case defendant because governments could not appear as parties in a civil case; their appearance as a party automatically makes the case a criminal case.

[d] He thought the utility of the trial by jury to guard against “the tyranny of popular magistrates… and judicial despotism” was only a concern in cases where government was a party; and he described these as criminal proceedings and criminal cases.

He reported that it never even entered their minds, much less did they speak, about altering the trial by jury in any kind of trial.  “The pretence therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognition to the determination of juries, is a pretence destitute of all just foundation.”  Furthermore, he couldn’t understand why the jury trial in civil cases had anything to do with the preservation of liberty, “But I must acknowledge that I cannot readily discern the inseparable connection between the existence of liberty and the trial by jury in civil cases.

Liberty and security of rights are only a concern relative to cases where government is a party.  If the trial by jury does not preserve liberty in civil cases, government does not appear as a party in civil cases – as such trials were contemplated by Founders; and as such trials would be contemplated by the Constitution – if it had mentioned them.

Now, the federal government has constitutional jurisdiction over certain civil cases – where both parties are private citizens and the controversy extends across state lines; but the government cannot be a party in such cases.

Hamilton wrote that his observations in The Federalist, No. 83, “show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention.”  This remark conveys the meaning that only private parties can appear in civil cases and that government can appear only in criminal cases.  Hamilton, id; Kurland and Lerner, v, 363.

[2] A second response to the fear of losing jury trials in civil cases consisted of a rather hollow explanation that the supreme court’s appellate jurisdiction relative to “law and fact” only applied to maritime and admiralty cases.  This, (a) despite the clear language of the Constitution that gave this appellate jurisdiction to the supreme court for all ten categories of cases enumerated in Article iii, section two; and, (b) despite the ancient practice in maritime and admiralty cases to submit questions of fact to special juries – not judges.

[3] The third response consisted of certain sections in the Judiciary Act of 1789, which provided for jury trials to determine questions of fact in all federal courts – district, circuit and supreme – except in equity, maritime and admiralty cases, see sections 9, 12 and 13.

[4, 5 and 6] The remaining responses consisted of Amendments Five, Six and Seven.

The ecclesiastical rules that operated in criminal cases was a major grievance that motivated the Revolution.  Several states issued declarations of rights in 1776 that included provisions to guarantee that all criminal defendants would receive the same rules and protections as were enjoyed by civil-case defendants.  These provisions read, almost word for word, identically to what are now Amendments Five and Six.

The first example appeared in the Virginia Declaration of Rights, 1776 June 12.

That in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by a jury in his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land, or the judgment of his peers.  Mason’s Papers, id.

The pertinent language in Amendment Five is,

No person… [a] shall be compelled in any criminal case to be a witness against himself, [b] nor be deprived of life, liberty or property without due process of law…

By part [a], torture was outlawed; and, by part [b], the original chapter 29 of the Magna Charta was incorporated into the Constitution.

As to the words from Magna Charta… the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principle of private right and distributive justice.  Bank of Columbia v. Okely, 4 Wheat. 235 (1819); Kurland, v, 366.

Remember, American Founders did not invent this proscription against compelling a man to be a witness against himself; they borrowed it from the procedures for civil cases  “… no man may be examined to prove his own infamy.”  William Blackstone, Commentaries, 3:349-67, 370-81, 383-5; Kurland, v, 349.

Compelling a man to testify against himself in civil cases was so rare, or non-existent, that few states included an express proscription in their declarations or constitutions; Delaware was one of them, “That no man in courts of common law ought to be compelled to give evidence against himself.”  (Delaware Declaration of Rights, 1776 Sept. 11, Sources of Our Liberties, Perry and Cooper, [Chicago] American Bar Foundation, 1952, 338-40; Kurland and Lerner, v, 6.)  All other states included this proscription in the protections given by ‘the law of the land,’ or equivalent phrases.

The pertinent language of Amendment Six,

In all criminal prosecutions, the accused shall enjoy the right… to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

Remember, for “criminal cases” and “criminal prosecutions”, substitute the words, “in every case prosecuted by government”; and you will understand the true meaning of these reserved rights.  That is, whenever the government files an action against a citizen, it is a criminal action, case, or prosecution; and restrictions of Five and Six are required.

Along with wanting to abolish ecclesiastical rules that operated against criminal defendants – and to give such defendants some of the protections enjoyed by civil-case defendants, Founders also expressly sought to secure rights of civil-case defendants.  An early declaration of this intention appeared in the Virginia Declaration of Rights, 1776 June 12, “In controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other.”  Mason’s Papers, id.

This declaration was duplicated in declarations and constitutions of several other states; and eventually appeared as the Seventh Amendment to the federal Constitution, that is,

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

§ 1762.  …  This amendment completely struck down the objection [that jury trials in civil cases would be abolished], and has secured the right of a trial by jury, in civil cases, in the fullest latitude of the common law…  It is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty.  Story, §1762 [Underline added.]; Kurland and Lerner, v, 388.

In other words, both Amendments Five and Six were aimed precisely at procedures of the civil, or ecclesiastical, law procedures for criminal prosecutions – and were intended to make them unconstitutional.  And, Amendment Seven gave a positive declaration as to the rights and protections provided by the common law to defendants in cases between citizen and citizen, otherwise known as civil cases.

We should take notice that, while it had been the practice in ecclesiastic law to legally bound and gag criminal defendants charged with capital crimes, American Founders sought to make such procedures unconstitutional for all criminal defendants; that is, for all defendants prosecuted by government.

Summary

At the time of the Revolution, it was understood by most or all Founders,

… that ‘civil case’ meant a trial between “man and man” conducted according to rules of common law (or equivalent phrases);

… that ‘criminal case’ meant a trial with government as plaintiff, and according to rules of a nominal common law perverted by ecclesiastical law;

… that ‘civil law’ meant ecclesiastic, Roman or Italian law; that is, rules and procedures copied from the Catholic Inquisition: for example, a) a prisoner could be tortured to testify against himself; b) he had no rights [1] of counsel, [2] to be informed of the cause and nature of the charge against him; [3] of confronting his accusers or examining witnesses against him; nor [4] of calling friendly witnesses;

… that ‘law of the land’ meant the rules and procedures developed since “time out of mind” for the purpose of providing guards and protections against arbitrary actions of government; one of the earliest expressions of it occurred in the original chapter twenty nine of the Magna Charta: legem terræ, ‘law of the land’ – also known as ‘common law,’ ‘custom and tradition,’ unwritten law,’ due process of law,’ and ‘due course of the law.’

Also at the time of the Revolution, it was widely understood and practiced that civil-case defendants had all protections of this law of the land.  Some of those protections were (and are) a) that no man could be compelled (or tortured) to testify against himself; that he had rights [1] of counsel, [2] to be informed of the cause and nature of the charge against him; [3] of confronting his accusers or examining witnesses against him; and [4] of calling friendly witnesses.

The imposition of ecclesiastical rules in criminal cases was a major grievance to American Founders, who declared repeatedly an intention to make such rules unconstitutional and to secure rights and protections of the ‘law of the land’ for all defendants – whether sued by government or a private party.  These intentions culminated in the ratification of Amendments Five, Six and Seven.

Notes

Commentary on how the meaning of civil case has been perverted.

Since Amendments Five and Six said nothing about civil cases, government attorneys and bureaucrats began to perpetrate the nostrum that these Amendments gave no protections against government prosecutions in civil cases.  This is true, partly.  According to Founding-Era understanding and practice, governments could not appear in civil cases; it would have been a pointless exercise to provide protection where none would ever be needed; for, if a government appears in a case, the case is automatically a criminal case.

You see, if a government filed a criminal case against a citizen, it would be constrained by Amendments Five and Six; if it, somehow, filed a “civil case”; and, if it were true that civil-case defendants did not have protections similar to those provided to criminal-case defendants, the government could avoid constraints imposed by Amendments Five and Six – since these Amendments do not mention civil cases.

Before the government could do this, however, it had to (a) invent a new meaning for “civil case”; and (b) perpetrate the falsehood that civil defendants had no rights of due process – that is, that civil, or ecclesiastical, law governed common-law civil cases.  I believe the first civil action filed by the government was in the latter part of the nineteenth century.  So it took the government near a hundred years to adequately smother the original conception of a “civil case,” and replace it with the nostrum that civil defendants had no rights and no protections.

The problem here is that, according to the practice at the time of the American Founding, civil-case defendants had elaborate protections; so, even if the government could masquerade as a civil-case plaintiff it would be constrained by procedures that are just as protective of a defendant’s rights as protections enumerated in Amendments Five and Six; this protection would be mandated by Amendment Seven.

To get around this problem, bureaucrats, judges and government attorneys had to patiently and quietly erase the knowledge of these protections from American memories and law books.  Whether they did this or not doesn’t matter.  What matters are the meanings of ‘civil case’ and ‘criminal case’ as these terms were understood during the Founding Era.  When new definitions are substituted for original definitions, we have an attempt to subvert the Constitution; an attempt to do clandestinely what would otherwise be unconstitutional.

Thus, when a government files a civil action, it is either pretending to be a private citizen (and cannot invoke the laws of Congress), or it is perpetrating a constitutional usurpation.

Further, even if the government could legally file a civil action, it then would be constrained by Amendment Seven,…

Positive Thinking

An English jury gave exemplary damages to a man who was arrested on the basis of a “general warrant.”

They [jury members] saw a magistrate over all the King’s subjects, exercising arbitrary power, violating Magna Charta, and attempting to destroy the liberty of the kingdom, by insisting upon the legality of this general warrant before them; they heard the King’s Counsel, and saw the solicitor of the Treasury endeavouring to support and maintain the legality of the warrant in a tyrannical and severe manner.  These are the ideas which struck the jury on the trial; and I think they have done right in giving exemplary damages.  To enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition (that is, civil law); a law under which no Englishman would wish to live an hour; it was a most daring public attack made upon the liberty of the subject.  I thought that the 29th chapter of Magna Charta, nullus liber homo capiatur vel imprisonetur, et cetera nec super eum ibimus, et cetera nisi per legale judicium parium suorum vel per legem terræ, which is pointed against arbitrary power, was violated.  Huckle v. Money, 95 Eng. Rep. 768 (C. P. 1763); Kurland and Lerner, v, 230.

(Chapter 29: No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed – nor will we go upon or send upon him – save by the lawful judgment of his peers or by the law of the land.  (In my copy of the Magna Charta, this is chapter 39.))

The defendants (king’s men executing a general warrant) claimed a right, under precedents, to force persons houses, break open escrutores, seize their papers, et cetera, upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders names are specified in the warrant, and therefore a discretionary power given to messengers to search wherever their suspicions may chance to fall.  If such a power is truly invested in a Secretary of State, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.

… If they [these powers] should be found to be legal, they are certainly of the most dangerous consequences; if not legal, must aggravate damages.  (Wilkes v. Wood, 98 Eng. Rep. 489, 498-9 (C.P. 1763); Kurland and Lerner, v, 231.

The principles of Huckle and Wilkes were carried over the Atlantic by emigrating Englishmen.

In those general warrants issued by Lord Halifax, as secretary of state, in search of libels, the persons to be arrested were pointed out in every warrant; but it was to ransack a man’s house, and to bring all his books, papers, et cetera before Lord Halifax.  A number of suits were brought against those employed by Lord Halifax for having executed these warrants; and in every instance, the plaintiff prevailed, and recovered exemplary damages, by verdicts of the jury; which verdicts were approbated by the court…

From the case of Entick v Carrington, 2 Wils. 275, we have the opinion of the Chief Justice, that if a warrant which is against law be granted, such as no justice of the peace or other magistrate , high or low, has power to issue, the justice who issues and the officer who executes it are liable to an action of trespass.  Grumon v. Raymond, 1 Conn. 40 (1814); Kurland and Lerner, v, 240.

… the great charter declares that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land… all such imprisonments shall be illegal; that the person, who shall dare to commit another contrary to this law shall be disabled from bearing any office, shall incur the penalty of a præmunire, and be incapable of receiving the king’s pardon: and the party suffering shall also have his private action against the person committing, and all his aiders, advisers and abettors, and shall recover treble costs; besides his damages, which no jury shall assess at less than five hundred pounds.  William Blackstone, Commentaries 1:120-141 (about 135); Kurland and Lerner, v, 392.

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Is the Mortgage Crisis the Mother of Opportunity?  The mortgage crisis revealed that those banks too-big-to-fail produced 50 million mortgages with seriously clouded titles.  It produced a situation where no one could provide lawful authority to collect or foreclose on such mortgages.  In other words, property law 4,000 years old had been violated on a national scale.  So far, solutions require that bank shareholders, bank depositors, and taxpayers suffer losses -while those who engineered the crisis waltz away each with millions in plunder.  What can be done about it – without creating a new class of victims?  Please see the full article.

One in Ten Thousand.  This relates how English rebels (1620-50) took down corrupt judges and tax-collectors, bishops and kings who thot they had a divine right to impose taxes or debt on other men without the latters’ consent; men who, 150 years later, would guide American rebels.  These examples represent some of the most dramatic and significant scenes in the long struggle from barbarism to civilized society – scenes that have almost been completely erased from current history and law books.

Turn Back the Clock.  I’m a year shy of 70, but I have the health, vitality and body of a near-professional athlete, aged 25 to 35.  I routinely have former pro and college baseball players tell me I would “do well” (a modest remark) if I played “men’s senior league”, a level of play equal to a major college.  In other words, I’m living proof that people do not have to grow old; they can retain or recover the health and vitality of youth; they don’t have to suffer from arthritis, diabetes, kidney failure or any of hundreds of other ailments.  Look what you’ll gain: more strength and a longer life to enjoy the adventures we all know are coming.  You might even want to take part in them.

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