Thursday, April 09, 2009

ABOUT THE COMMON LAW AND THE CONSTITUTION OF THE UNITED STATES

Q. WAS THE CONSTITUTION OF THE UNITED STATES OF AMERICA BASED ON THE COMMON LAW?

A. Yes. The Constitution of the united States of America originated as a Common Law document. That was the underlying law the founding fathers based the entire structure of our nation upon. It was the law of the land until the 1938 Supreme Court ruling (Erie Railroad) which statutorized the Common Law.

    "It is never to be forgotten that in the construction of the
     language of the Constitution,  we are to place ourselves as
     nearly as possible  in the condition of  the men who framed
     that instrument." Ex Parte Bain. 12 U.S. 1 7 S. Ct. 781.

    "We are bound to interpret the  Constitution in the light of
     the law as it existed  at the time it was adopted."  Mattos
     v. U.S. 156 U.S. 237 at 243.

    "It must  be  interpreted  in the light  of Common Law,  the
     principles and  history  of which were  familiarly known to
     the  framers  of  the  Constitution.  The  language  of the
     Constitution  could not be understood  without reference to
     the Common Law."  U.S. v. Wong Kim. Ark. 169 U.S. 649.18 S.
     Ct. 456.

    "In this, as in other respects, (a Constitutional provision)
     must be  interpreted  in the light of the  Common Law,  the
     principles and  history of which  were familiarly  known to
     the framers of the Constitution..." Minor v. Happersett. 21
     Wall. 162.

    "The  language  of the Constitution,  as has been well said,
     could  not be  understood without  reference to the Common
     Law."  1 Kent. Comm. 336,  Kepner v. U.S.  195 U.S. 100 at
     125.

Q. IS THE CONSTITUTION OF THE UNITED STATES THE SUPREME LAW?


A. Yes. The Constitution of the united States of America is the Supreme Law of the Land. Even after the Common Law was statutorized, and courts became Merchant Law courts imposing the Uniform Commercial Code, it must be noted that the U.C.C itself declares that it cannot be in conflict with the Common Law -- and in situations where it is, it bows to the tenants of the original Common Law.

    "Law of the Land" means the "Common Law." State v. Simon 2
     Spears 761.767 (1884) Justice O'Neal.

    "Law of the Land" means "The Common Law." Taylor v. Porter
     4  Hill  140.  146  (1843)  Justice Bronson.    Webster's
     definition of "Law of the Land" at Dartmouth 4 Wheat 518.
     581.

Q. MUST THE STATE CONSTITUTIONS AND STATE LAWS CONFORM AND COMPLY WITH THE CONSTITUTION OF THE UNITED STATES?


A. Yes. State Constitutions and State laws must be in compliance with, and in conformity to, the Constitution of the united States of America for that State to be acceptable as one of the sovereign states of the union of the united States of America.
"Provided,  the Constitution  to be formed in  virtue of the
     authority herein given, shall be republican, and consistent
     with the  Constitution of the united States;  that it shall
     contain the  fundamental principles  of civil and religious
     Liberty;  conformable to the provisions of the Constitution
     of the United States."  Enabling Act of Congress.  Feb. 20,
     1811. C.21. 2 U.S. Statute 641.

Q. IS ADMIRALTY AND MARITIME JURISDICTION SUBJECT TO COMMON LAW REMEDY?

A.  "Even Admiralty and maritime jurisdiction, when brought inland,
     is subject to the  Common Law remedy  the same as  Equity; and
     cannot  supersede the  sovereign  Citizens'  God endowed/given
     unalienable/inalienable  rights,  and  these  same  rights  as
     secured in and under the  Constitution of the united States of
     America."  Title  5 USC.  Sec. 559 Sentence #2,  Title 28 USC.
     Sec. 2072, Miranda v. Ariz. 384 U.S. 436 at 491 (1966).

    "(a) Saving to suitors, in all cases, the right to a Common Law
     remedy,  where the  Common Law  is competent  to give it;  and
     shall also have  exclusive original cognizance of all seizures
     on land,  or other waters than  as aforesaid made,  and of all
     suits for  penalties  and forfeiture  res incurred,  under the
     laws of the United States." 1 Statute 177. Sec. 9(a).

    "Third.  Of all causes of Admiralty  and Maritime jurisdiction:
     saving  to suitors,  in all cases,  the right of a  Common Law
     remedy,  where  the  Common Law  is competent  to give it." 36
     Statute 1161. Section 3rd.

    "The district courts shall have original jurisdiction exclusive
     of the Courts of the States, of:
     (1)     Any civil case of Admiralty  or Maritime jurisdiction,
             saving to Suitors  in all cases all other  remedies to
             which  they are  otherwise  entitled."  Title 28 US.C.
             Section 1333.

[Note that the term "Common Law" no longer appears in 28 U.S.C. 1333.]

Q. MUST THE DEPARTMENTS, AGENCIES, AND AGENTS OF THE THREE BRANCHES OF GOVERNMENT CONFINE THEIR ACTIONS UNDER THE CONSTITUTION OF THE UNITED STATES OF AMERICA?


A. The three branches of government and their bureaucratic departments, agencies, and agents, must confine themselves to acting in and under the Constitution of and for the united States of America and its boundaries, restraints, limitations, and prohibitions it imposes upon them.
    "That the people have an original right to establish, for future
     government,  such principles as,  in their opinion,  shall most
     conduce  to their  own happiness,  is the basis,  on  which the
     whole  American fabric  has been erected.  The exercise of this
     original right is a very great exertion,  nor can it, nor ought
     it to be  frequently repeated.  The principles,  therefore,  so
     established,  are deemed fundamental and as the authority, from
     which  they proceed,  is supreme,  and can seldom  act they are
     designed to be permanent."

    "This original  and supreme  will organize  the government,  and
     assigns, to different departments, their respective powers.  It
     may either  stop here,  or establish  certain limits  not to be
     transcended by those departments."

    "Between  these  alternatives  there is no  middle  ground.  The
     Constitution is either a superior,  paramount law, unchangeable
     by  ordinary  means,   or  it  is  on  a  level  with  ordinary
     legislative acts,  and like other acts,  is alterable  when the
     legislature  shall please  to alter it."  Marbury v. Madison. 2
     Cranch (5 U.S.) 137.176. 177 (1803).

    "..because, the United States have no constitutional capacity to
     exercise municipal jurisdiction, sovereignty, or eminent domain,
     within the limits of a  State or elsewhere, except in the cases
     in which it is expressly granted..." -Pollard's Lessee v. Hagan.
     44 U.S. 212 at 233; Article 1 Sec 8 Clause 17 U.S. Constitution.

    "That the Legislative,  Executive  and Judicial  departments are
     each formed in a separate and independent manner;  and that the
     ultimate basis  of  each is  the Constitution  only  within the
     limits  of which  each department can alone  justify any act of
     authority/jurisdiction." Hayburn's Case. 2 Dall. (2 U.S.) 409.

    "Neither the Legislative, Executive and the Judicial departments
     of the Federal Government  can lawfully exercise  any authority
     beyond the limits marked out  by the Constitution."  Dred Scott
     v. Sanford. 19 How. 393.

    "The  United  States  is  entirely  a creature  of  the  Federal
     Constitution,  its power and authority  has no other source and
     it can only act in accordance with  all the limitations imposed
     by the Constitution."  Reid v. Covert 354 U.S. 1(1957). IL. Ed.
     2nd. 1148.

    "The  Federal  Constitution  has  supremacy  over a  treaty  and
     executive agreement" Reid v. Covert. 354 U.S. 1.

    "The rights and liberties  of the Citizens of  the united States
     are not  protected by  custom and  tradition  alone,   they are
     preserved from the  encroachments of the government by express/
     enumerated  provisions of the  Federal  Constitution."  Reid v.
     Covert. 354 U.S. 1.

    "The prohibitions  of the Federal Constitution  are designed to
     apply to all branches of the national government and cannot be
     nullified by the executive  or by the executive and the senate
     combined." Reid v. Covort. 354 U.S.1.1 L. Ed. 2nd; 1148 (1957).

Q. IS THE CONSTITUTION OF THE UNITED STATES SUPERIOR TO ADMINISTRATIVE LAWS, RULES AND REGULATIONS?


A. Yes. The Constitution of the united States of America is not only the Supreme Law of the Land, and the actual government of the united States, but it is superior to all administrative laws, rules and regulations, and their administrative law, rules and regulations must be in compliance with and in conformity to, the Constitution of and for the united States of America.
    "Where rights are secured by Constitution are involved, there can
     be no rule making or legislation which will abrogate them"
     Miranda v. Ariz. 384 U.S. 436 at 491(1966).

    "..A regulation which is inconsistent with law is invalid." Title
     5 U.S.C. Sect. 301.

    "... because  a statute  may  not  operate in  derogation  of the
     Constitution." Title 5 U.S.C. Section 559. Sentence 2.

    "Congress may not,  by any definition it may adopt,  conclude the
     matter, since it cannot by legislation alter the Constitution."
     Eisner v. McComber. 252 U.S. 189 at 207.

    "Such rules shall not abridge, enlarge or modify  any substantive
     right and shall preserve the right of trial by jury as at Common
     Law and as declared by the Seventh Amendment to the Constitution."
     Title 28 U.S.C. Section 2072 at Clause #2.

Q. WHAT IS THE DIFFERENCE BETWEEN AN ARTICLE I AND AN ARTICLE 3 COURT?

A. Administrative tribunals and administrative judges must restrict themselves to acting in and under the Constitution of the united States of America at Article 1, Section 8, Clause 9, and under the Administrative Procedures Act at Title 5 U. S. C. Sections 701 through 706, Olmstead vs. U.S. 277 U.S. 438 at 485, and are prohibited from hearing any issue At Law which has been enumerated to Constitutional Article 3 courts only. Since the Constitution of the united States of America has no provisions for Article I administrative tribunal courts to hear issues of law enumerated to them, they are prohibited for doing so in and under the further declaratory and restrictive clauses of the Preamble, too, and the Bill of Rights, Amendments 9 and 10; and Article 3 of the Constitution itself.
    "To constitute tribunals inferior to the supreme Court." Article
     1. Sec 8. Clause 9. U.S. Constitution.

    "The judicial power of the United States  shall be vested in one
     supreme Court, and in such inferior Courts as the Congress may,
     from time to time, ordain and establish..." Article 3 Section 1
     U.S. Constitution.

    "The judicial power shall extend to all cases, in law and equity,
     arising under this Constitution."  Article 3. Section 2. Clause
     1. U.S. Constitution.

    "The enumeration  in the Constitution  of certain rights  not be
     construed to deny or disparage others retained by the people."
     Amendment 9, the U.S. Constitution.

    "The  powers   not  delegated  to  the  United  States   by  the
     Constitution,  nor prohibited by it to the States, are reserved
     to the States  respectively,  or to the people."  Amendment 10,
     the U.S. Constitution.

Q. DOES THE SUPREME COURT OF THE UNITED STATES HAVE SUPERINTENDENCY OVER BOTH ARTICLE 1 AND ARTICLE 3 COURTS?


A. The supreme Court of the united States of America has the superintendency of all inferior administrative Article 1, Sec. 8, Clause 9 tribunals/courts and all Article 3 inferior At Law/Common Law courts created/ordained and established by the Congress of the united States of America.
    "This is the supreme Court,  and by reason of  its supremacy must
     have the superintendence of the inferior tribunals and officers,
     whether judicial or ministerial."   Marbury v. Madison, I Cranch
     143 at Pg. 63 (1803).

Q. WHAT ARE THE DUTIES OF COURT JUDGES?

A. It is the prime duty of court judges to protect the God endowed unalienable rights of the individual sovereign Citizen from governmental encroachments.
    "The judicial branch has only one duty, to lay the Article of the
     Constitution  which is  involved  beside  the  statute  (rule or
     practice)  which is challenged  and to decide whether the latter
     squares with the former." U.S. v. Butler. 279 U.S. 116th Am. Jur
     2nd. Sec. 177.178.210 and 547.

    "It  is  the   duty  of  the  courts   to  be  watchful  for  the
     Constitutional   rights   of  the   citizen   against   stealthy
     encroachments thereon." Boyd v. U.S. 116.635.

    "This Constitution  is the supreme Law of the Land.  All judicial
     officers of the united States  are bound by oath or affirmation,
     to support this Constitution." Hayburn's Case. 2 Dali.(2 U.S.S.)
     409; Article #6. Clauses 2 and 3, U.S. Constitution.

    "Disobedience  or evasion of a  constitutional mandate may not be
     tolerated,  even though  such disobedience  may promote  in some
     respects  the best interests  of the public."  Slote v. Board of
     Transfer. 274 N.Y. 367.

    "...And  officers  (of government)  that  carry  on a  government
     independent  of  a  Constitution,  constitute  but  a  de  facto
     government of assumed and unlimited powers." Hepburn v. Griswald
     8 Wall. 611.

    "Law repugnant to the Constitution is void..." Marbury v. Madison
     1 Cranch 137 (1803).

    "The law provides  that once State  and federal  jurisdiction has
     been challenged,  it must be proven."  Main v. Thiboutot. 100 5.
     Ct. 2502 (1980).

    "Where  there   is  absence   of  proof   of  jurisdiction,   all
     administrative  and  judicial  proceedings  are a  nullity,  and
     confer   no   right,   offer  no  protection,   and   afford  no
     justification, and may be rejected upon direct collateral attach."
     Thompson v. Tolmie. 2 Pet. 157.7 L.Ed. 381. Griffith Vs. Frazier
     8 Cr. 9.3 L.Ed. 471.

    "Once jurisdiction is challenged,  it must be proven."  Hagens v.
     Lavine. 415 U.S. 533 Note3.

    "No  sanctions  can be  imposed  absent  proof of  jurisdiction."
     Standard v. Lavine. 415 U.S. 533 Note 3.

    "The proponent  of the Rule  has the burden  of proof..." Title 5
     U.S.C.. Sec. 556(d).

    "Jurisdiction  can  be  challenged  at any  time,  even on  final
     determination." Basso v. Utah Power & Light Co. 495 F 2nd 906 at
     910.

Q. CAN THE STATE GOVERNMENTS GRANT OR TAKE AWAY AN INDIVIDUAL'S RIGHTS?


A. No. Individuals have God endowed unalienable Rights (Declaration of Independence, Paragraph 2) and these same rights are secured in the Preamble and the Constitution of the united States of America, and in the Preamble and the Bill of Rights (the first ten Amendments) of the Constitution of the united States of America. These Rights existed long before the organization of the State and can be taken from an individual only by Constitutional due process of law that is in conformity with the Constitution of the united States of America.
    "The individual may stand upon his Constitutional rights as a
     citizen.  He is entitled to carry on his private business in
     his own way.  His power to contract is unlimited. He owes no
     duty  to  the  State  or to  his  neighbors  to  divulge his
     business,  or to open his doors  to an investigation, so far
     as it may  tend to incriminate him.  He owes  no duty to the
     State,  since  he receives  nothing  therefrom,  beyond  the
     protection of his life and property."

    "His rights  are such as existed by the  Law of the Land long
     antecedent to the organization of the State, and can only be
     taken from him by due process of law, and in accordance with
     the Constitution."

    "Among his rights are  a refusal to  incriminate himself, and
     the immunity  of himself  and his  property  from arrest  or
     seizure except under warrant of the law."

    "He  owes  nothing  to  the  public  so  long  as he does not
     trespass upon their rights."

    "Upon the other hand,  the corporation  is a creature  of the
     State.  It is presumed to be incorporated for the benefit of
     the  public.  It receives  certain  special  privileges  and
     franchises, and holds them  subject to the laws of the State
     and the limitations of its charter."

    "Its powers  are limited by law.  It can make no contract not
     authorized   by  its  charter.   Its  rights  to  act  as  a
     corporation are only preserved to it so long as it obeys the
     laws  of  its  charter."  Hale v. Henkel.  201 U.S. 43 at 89
     (1906); Pinkerton v. Verberg 78 Mich. 573.584.

Q. DO INDIVIDUALS HAVE RIGHTS TO LABOR?


A. Yes. Individuals have a God given unalienable right to labor, and to the fruits of that labor. That right is a natural right and a constitutional right, from unlawful interference from government encroachment.
    "A State may not impose a charge for the enjoyment of a right
     secured by the Federal Constitution."  Murdock v. Penns. 319
     U.S. 105.

    "Where rights secured by the Constitution are involved, there
     can be no rule  making or  legislation which  would abrogate
     them." Miranda v. Ariz. 384 U.S. 436 at 491(1966).

2 comments:

zounds456 said...

"It was the law of the land until the 1938 Supreme Court ruling (Erie Railroad) which statutorized the Common Law."

I am enjoying the many citations who have provided us, on your site.

I have noted your comment about the "Erie" decision. A number of othere have claimed that Erie is the basis for the federal resort to a wholesale shift to "administrative (probably commerical or admiralty) law." Yet, I can find nothing explicit in that ruling to suggest this. This ruling seems to be about there being no federal common law, as distinguished from state common law.

Although, just now, I had a flash that were this interpreted in a very weird way, one might say that--at least on a federal leval--all law is something other than the common law. Yet, even granting that, this would not seem to affect local courts...which should be operating under common law rules.

zounds456 said...

--Errors in previous message--

"It was the law of the land until the 1938 Supreme Court ruling (Erie Railroad) which statutorized the Common Law."

I am enjoying the many citations who have provided us, on your site.

I have noted your comment about the "Erie" decision. A number of others have claimed that Erie is the basis for the federal resort to a wholesale shift to "administrative (probably commerical or admiralty) law." Yet, I can find nothing explicit in that ruling to suggest this. This ruling seems to be about there being no federal common law, as distinguished from state common law.

Although, just now, I had a flash that were this interpreted in a very weird way, one might say that--at least on a federal level--all law is something other than the common law. Yet, even granting that, this would not seem to affect local courts...which should be operating under common law rules.