On OATHS and JURISDICTION – Cops are ignorant and stupid !

On Oaths and Jurisdiction

(Cops are ignorant and stupid!)

by John-Henry Hill, M.D.

Revised February 18, 2014

Ancient MAXIMS of Law: 

In law none is credited unless he is sworn. All the facts must, when established by witnesses, be under oath or affirmation.”

“There is no stronger bond between men than an oath.”

“They are perjured, who, preserving the words of an oath, deceive the ears of those who receive it.”

“An oath is a contract in law.”

Let’s be honest and blunt: Cops are very ignorant of the law; and many are also very stupid! They “joined the force” for the job security and the promised pension; NOT for the intellectual challenges! Indeed, it is not a difficult job and, contrary to some claims, it is not a very dangerous job. (In fact, construction workers are much more likely to be injured or killed.) Cops know NOTHING about Law, which means the Common Law – at most they know a few regulations and procedures, all of which are derived from acts (legislated statutes).

I have watched many videos in which people argue with police about their “rights”, the definitions of “lawful” versus “legal” or the difference between a “driver of a motor vehicle” versus a “traveler in a car”. These people are wasting their collective breath. The cop has absolutely NO IDEA what you are talking about! To him, you are simply a NUT! You might as well be discussing the philosophy of life with a worm: it momentarily may boost YOUR ego, but it accomplishes nothing. Simply say NOTHING; sign NOTHING. (Or, if threatened with arrest, sign it and write under your signature the U.C.C. disclaimers, “Without prejudice; All rights reserved. UCC 1-308”  Save your arguments for the court – YOUR court operating under the Common Law!

Most judges and attorneys of the lower courts have little, if any, knowledge of the Common Law. Why should they? They are never taught this in law school. And they practice in commercial courts operating under Admiralty-Maritime law within the terms of the U.S. bankruptcy agreement of 1933. For the most part, only appellate court judges have any knowledge of the Common Law. Most certainly the judges of the states’ and federal supreme courts know about the Common Law – which is why they are called “justices”; NOT “judges”. These justices of the superior courts understand that the Common Law is superior to and supersedes statutory law – even the U.S. Supreme Court had so stated. Indeed, while the Common Law is compulsory upon all men, all statutory law (legislated acts or civil law) is simply an OFFER TO CONTRACT requiring each man’s individual consent in order to gain the “force of law” upon that man. If that individual man refuses to consent to a statute (that is, he refuses to contract), then that statute has NO “force of law” over him – so the police and courts have NO jurisdiction over him for failing to obey it.

The police and lower court judges operate under the PRESUMPTION that you are under their jurisdiction. And, unless you directly and explicitly challenge this presumption, you lawfully fall under their jurisdiction. The old maxim of law states, “a presumption not rebutted becomes a fact in law.” Since the police and the judges operate under the presumption that you fall under their jurisdiction, you must challenge that presumption in court by filing a counter-claim, in which you become the counter-plaintiff. Once you challenge their presumption, ALL court procedures must stop until they PROVE as fact to YOU or to a JURY that they possess jurisdiction. ONLY the plaintiff or a jury may act as a tribunal – the decider of the Law and Facts of the case. (In point of fact, under the Common Law, either party can demand a jury decision on ANY point of fact or law.) A judge can NOT simply deny your “motion”, because a counter-claim is NOT a “motion”. In a counter-claim, which you should submit BEFORE attending any hearings or court appearances, you are the plaintiff in YOUR own “court of record” operating under the Common Law. In that counter-claim you must challenge the jurisdiction of the police, and the judge and his court.

In such a court, YOU, as the plaintiff and the sovereign, become the TRIBUNAL – the entity who makes all rulings and decisions. The only other tribunal available to the police and judge (as the named defendants in your counter-claim) is a JURY, which they must explicitly request. The judge can act ONLY as a magistrate – an administrator or “referee” regarding the orderly conduct of the proceeding – he can make NO rulings or decisions of fact or law in the case. And if he attempts to issue any rulings, you simply object, then later you issue a written court order from YOUR court over-ruling any rulings or decisions he has made.

The judge will probably be quite perplexed and even angry at your actions. And, if he has any common sense, he will consult a judge of a superior court for assistance. Only then will be the inferior court judge become aware that what you have done is LAWFUL and LEGAL – and he will back down. (Most often, the judge will dismiss the original charges against you for reasons left unstated.) BUT that should NOT be the end of the matter! By accepting his ruling of “charges dismissed”, you will be granting him jurisdiction over you! Instead, your final act in this drama will be your issuance of a court ruling in which you, as the Tribunal, declare that YOUR court:  (1) vacates the judge’s dismissal of the charges against you; (2) declare that the judge, police and prosecution failed to prove their presumption of jurisdiction; (3) declare that the police, the judge, and the judge’s court never had jurisdiction over you; (4) and your court dismisses the original charges against you, based on a lack of jurisdiction of the police, prosecution and the judge in his court.

However, before you proceed down this path, you should understand some basic precepts of the Common Law – a few of which are presented below. The next step will be learning what documents are necessary in a court of record in Common Law; and the procedures for establishing (and maintaining) YOUR own court under the Common Law. From this information, you will learn that a case is resolved to your benefit even BEFORE you ever appear in court hearing, so that in any hearing you should – except for OBJECTING to ALL rulings the judge may issue –  you will all but remain silent and let your DOUMENTS speak for you. In short, your DOCUMENTS, which means your COUNTER-CLAIM and all other evidentiary documents, should say EVERYTHING you wish to say, including points of law. The whole purpose of a hearing is for the judge to clarify any issues in written documents previously submitted by both sides to the court – and his goals in asking you questions will be: (1) for him to gain jurisdiction over you in HIS court (as opposed to you maintaining your jurisdiction over you and him in YOUR Common Law court); and (2) to get you to contradict yourself. Do NOT fall into his trap. If he states ANYTHING you do not like and/or he attempts to issues any decisions, rulings or orders, you need to clearly state, “For the record, I object.” When he asks the reason for your objection, simply state, “It is not my wish.” Should you attempt to explain your reasons, you will be ceding authority to him and to his jurisdiction. If the judge asks you to clarify any issue, simply state something like, “It is fully explained in my documents and I can not explain it any better than that.” Repeat as often as necessary. Do not let him bully you into saying anything more.

The most basic premises of law:

(1)    A presumption not rebutted becomes a fact in law.

(2) Jurisdiction over a man exists only by oath. Always has, always will. For a court to have jurisdiction, some one has to bring a charge or petition under an oath. In a criminal matter, the charge is forwarded under the oaths of the grand jurors (indictment) or under the oath of office of a federal or state officer (called an “information”). Even before a warrant may be issued, someone has to swear there is probable cause. Should it later be discovered that there was NOT probable cause, that person may be charged with a perjury. It’s all about oaths. And the one crime for which immunity, even “sovereign immunity,” cannot be extended is … perjury.

In all of history there has been but one successful protest against an income tax. The protest was begun in England about 400 years ago by the so-called Quakers about 400 years ago. It succeeded only because the term “jurisdiction” was still well understood at that time as meaning “oath spoken.” “Juris,” in the original Latin meaning, is “oath.” “Diction” as everyone knows, means “spoken.” In short, if a man has not sworn an oath to someone or something, then he is NOT under its jurisdiction. For example, when you file your income tax form and sign your name “under penalty of perjury”, you have confirmed that you have sworn an oath. When you sign a traffic ticket, you are signing an oath – which is simply a means of forming a contract.

Rather than “re-invent the wheel”, below I have copied excerpts from Bill Thornton’s excellent web site (www.1215.org – the year the Magna Carta was signed) on the basics of the Common Law. HOWEVER, for information about DOCUMENTS (including SAMPLES) you will need to prepare for court and PROCEDURES you will need before/during any hearings, I leave to you to read at Bill’s web site.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

COUNTERCLAIM NOTES

by Bill Thornton

www.1215.org

A statutory or constitutional court (whether it be an appellate or supreme court) may NOT second guess the judgment of a common law court of record. The Supreme Court of the USA acknowledges the Common Law as supreme: “The judgment of a court of record [a Common Law court ONLY] whose jurisdiction is final, is as conclusive on all the world as the judgment of this court [the U.S. Supreme Court] would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it.” Ex parte Watkins, 3 Pet., at 202-203. [cited by SCHNECKLOTH v. BUSTAMONTE, 412 U.S. 218, 255 (1973)]

U.S. Supreme Court

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Source:  www.1215.org/lawnotes/lawnotes/counterclaimnotes.htm

The only difference between an action at law and a counterclaim in a court of record is that the original parties have their identifications changed. The defendant becomes the counterplaintiff, and the plaintiff becomes the counterdefendant. Other than that, the counterclaim is written the same as an action at law.

A court of record proceeds according to the Common Law. It is not a criminal court and it is not a civil court; those two courts are statutory courts, not common law courts.

Also, note that in every county there is only ONE court. The court is typically subdivided into divisions. No matter what division you file the case in, it is still the same court. When you file a common law case the clerks typically don’t know what that is and tend to classify it as a civil case. Sometimes in the Federal courts it is filed as a “constitutional court” case or a “miscellaneous” case (which has a lower filing fee).

It is not necessary to argue too much with the clerk. If the clerk is too ignorant to do it the right way, don’t worry. If the clerk doesn’t like the caption at the top of the page, don’t ask what you should do because he cannot give you legal advice. Instead, you ask him what he requires: he can tell you that.

Changes to the paper can be made on the spot by hand printing IF you print very clearly. Hand printing is legally the same as typewriting. If the clerk objects to the term “counterclaim” you may change it to say “complaint”. It doesn’t really matter because it is the actual text in the body of the paper that is the substance. Titles, headings, and other items in the caption are merely aids to understanding. The substance of the paper is what controls, not the titles and headings.

There are two kinds of trial courts: superior and inferior.

The criminal court is an inferior court because it is operating according to special rules (criminal code) and not according to the common law. Even if its name is “Superior Court of …..” it is still an inferior court so long as it is operating according to some code or statutes rather than the common law.

On the other hand, a court of record, so long as it meets the criteria, is a true superior court.

The decisions and proceedings of an inferior court are not presumed to be valid. The inferior court can be sued in a superior court (that’s called a “collateral attack”). In other words, the superior court (court of record) out ranks the inferior court not of record”.

When you do a counterclaim, the primary issue is jurisdiction. By what authority does the inferior court presume to take jurisdiction over the parties? When the counterclaim is filed, all parties in the inferior court, and the inferior court itself, are served with the suit. Because the primary issue is jurisdiction, the proceedings in the inferior court must stop immediately and may not proceed until it proves in the superior court that it has jurisdiction. If it [the inferior court] fails to prove its jurisdiction, then the final judgment of the superior court will be that the inferior court had no jurisdiction and all proceedings thereafter are barred.

If the inferior court proceeds anyway, then contempt proceedings and judgment enforcement proceedings can be initiated in the superior court.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Court of Record

 www.1215.org/lawnotes/lawnotes/courtrec.htm 

A court of record is a court which must meet the following 
criteria:

     1.  generally has a seal
     2.  power to fine or imprison for contempt
     3.  keeps a record of the proceedings
     4.  proceeding according to the common law (NOT statutes or codes)
     5.  the tribunal is independent of the magistrate (judge)

     Note that a judge is a magistrate and is NOT the tribunal (the party that decides a conflict).  The tribunal is 
either the sovereign himself or a fully empowered jury (not paid by the government) 

-----------------------------------------------------------------

            Black's Law Dictionary, 4th Ed., 425, 426

COURT.  ...

                        INTERNATIONAL LAW

 COURT: The person and suite of the sovereign; the place where the 
sovereign sojourns with his regal retinue, wherever that may be. 
....

                         CLASSIFICATION

     Courts may be classified and divided according to several 
methods, the following being the more usual:
 
     COURTS OF RECORD and COURTS NOT OF RECORD.  The former being 
those whose acts and judicial proceedings are enrolled, or 
recorded, for a perpetual memory and testimony, and which have 
power to fine or imprison for contempt.  Error lies to their 
judgments, and they generally possess a seal.  Courts not of 
record are those of inferior dignity, which have no power to fine 
or imprison, and in which the proceedings are not enrolled or 
recorded.  3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas 
Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; 
Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. 
Davis, 96 Ohio St. 205, 117 N.E. 229, 231.

     A "court of record" is a judicial tribunal having attributes 
and exercising functions independently of the person of the 
magistrate designated generally to hold it, and proceeding 
according to the course of common law, its acts and proceedings 
being enrolled for a perpetual memorial.  Jones v. Jones, 188 
Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass., 
171, per Shaw, C.J.  See, also, Ledwith v. Rosalsky, 244 N.Y. 
406, 155 N.E. 688, 689.

                              ....
-----------------------------------------------------------------

See 7 Cal Jur 571 for more info 
about courts of record

7 California Jurisprudence, Bancroft Whitney (1922), Page 580-581
Courts of Record.--Courts are divided generally into courts of 
record and those that are not of record.  A court of record is a 
judidical tribunal having attributes and exercising functions 
independently of the person designated generally to hold it, and 
proceeding according to the course of the common law.4  In a court 
of record the acts and judicial proceedings are enrolled, whereas, 
in courts not of record, the proceedings are not enrolled.  The 
privilege of having these enrolled memorials constitutes the great 
leading distinction between courts of record and courts not of 
record.5

4.  Ex parte Thistleton, 52 Cal. 220.  As to what are "courts of 
common-law jurisdiction" within the meaning of the federal 
naturalization act, see Alienage and Citizenship, Vol. 1, p. 911.

5.  Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742, per Sawyer, J., 
concurring.  See infra, §§ 26-28, as to records.

Under the constitutional revision of 1863, the district, county 
and probate courts were also courts of record.  Caulfield v. 
stevens, 28 Cal. 118.

----------------------------------------------------------------

         Webster's New Practical Dictionary, 386 (1953)
             G. & C. Merriam Co., Springfield, Mass.

MAGISTRATE

     A person holding official power in a government; as: a The 
official of highest rank in a government (chief, or first, 
magistrate).  b An official of a class having summary, often 
criminal, jurisdiction.

-----------------------------------------------------------------

               Merriam-Webster On-Line Dictionary

MAGISTRATE

     an official entrusted with administration of the laws

-----------------------------------------------------------------

            Black's Law Dictionary, 4th Ed., 1103

MAGISTRATE

     Person clothed with power as a public civil officer.  State 
ex rel. Miller v. McLeod, 142 Fla. 254, 194 So. 628, 630.

     A public officer belonging to the civil organization of the 
state, and invested with powers and functions which may be either 
judicial, legislative, or executive.  But the term is commonly 
used in a narrower sense, designating, in England, a person 
intrusted with the commission of the peace, and, in America, one 
of the class of inferior judicial officers, such as justices of 
the peace and police justices.  Martin v. State, 32 Ark. 124; Ex 
parte White, 15 Nev. 146, 37 Am.Rep. 466; State v. Allen, 83 Fla. 
655, 92 So. 155, 156; Merritt v. Merritt, 193 Iowa 899, 188 N.W. 
32, 34.
....

     The word "magistrate" does not necessarily imply an officer 
exercising any judicial functions, and might very well be held to 
embrace notaries and commissioners of deeds.  Schultz v. 
Merchants' Ins. Co., 57 Mo. 336.

-----------------------------------------------------------------

                      California Penal Code

     7.  Words and phrases....The following words have in this 
code the signification attached to them in this section, unless 
otherwise apparent from the context:....

          9.  The word "magistrate" signifies any one of the 
officers mentioned in Section 808. ....

     807.  Magistrate defined.  A magistrate is an officer having 
power to issue a warrant for the arrest of a person charged with 
a public offense. (Enacted 1872.)

     808.  Persons designated as magistrates  The following 
persons are magistrates:

          1.  The judges of the Supreme Court

          2.  The judges of the courts of appeal.

          3.  The judges of the superior courts.

          4.  The judges of the municipal courts.

          5.  The judges of the justice courts.

-----------------------------------------------------------------

            Black's Law Dictionary, 4th Ed., 1602, 1603

SUIT

                         Old English Law

     The witnesses or followers of the plaintiff.  3 Bl. Comm. 
295.  See Secta.

                           Modern Law
     A generic term, of comprehensive signification, and applies 
to any proceeding by one person or persons against another or 
others in a court of justice in which the plaintiff pursues, in 
such court, the remedy which the law affords him for the redress 
of an injury or the enforcement of a right, whether at law or in 
equity.  See Kohl v. U.S., 91 U.S. 375, 23 L.Ed. 449; Weston v. 
Charleston, 2 Pet. 464, 7 L.Ed. 481; Syracuse Plaster Co. v. 
Agostini Bros. Bldg. Corporation, 169 Misc. 564 7 N.Y.S.2d 897.

-----------------------------------------------------------------

              Black's Law Dictionary, 4th Ed., 1677

TRIBUNAL

     The seat of a judge; the place where he administers justice.  
The whole body of judges who compose a jurisdiction; a judicial 
court; the jurisdiction which the judges exercise.  See Foster v. 
Worcester, 16 Pick. (Mass.) 81.

NOTE: Justice is defined as being in accordance with the Common Law, developed and practiced according to God’s Law, in the determination of truth and the restoration of rights. Justice is NOT the application of acts, statutes, codes and regulations dictated or legislated by man. A true judicial court, a court of record, operates solely under the Common Law. Any court, regardless of the title assigned to it, which operates under acts, statutes and/or codes is a legislative-administrative court acting under policy; not under Law. That is, as it does NOT operate under the Common Law, it can NOT be a true judicial court of Law or court of record. 
-----------------------------------------------------------------

         Webster's New Practical Dictionary, 707 (1953)
             G. & C. Merriam Co., Springfield, Mass.

TRIBUNE
     1.  In ancient Rome, a magistrate whose special function was 
to protect the interests of plebeian citizens from the patricians.
     2.  Any defender of the people.

-----------------------------------------------------------------

               Merriam-Webster On-Line Dictionary

COURT

     1.  the residence of a sovereign or similar dignitary  
     2:  a sovereign and his officials and advisers as a 
governing power  
     3:  an assembly of the retinue of a sovereign
     4:  an open space enclosed by a building or buildings
     5:  a space walled or marked off for playing a game (as 
tennis or basketball)  
     6: the place where justice is administered; also: a judicial 
body or a meeting of a judicial body

A “minute order” issued by a judge is not part of the record.

RECORD

The proceedings of the courts of common law are records. But every minute made by a clerk of a court for his own future guidance in making up his record is not a record. 4 Wash. C.C. 698. See 10 Penn. St. 157; 2 Pick. Mass. 448; 4 N. II. 450; 6 id. 567; 5 Ohio St. 545; 3 Wend. N.Y. 267; 2 Vt. 573; 6 id. 580; 5 Day, Conn. 363; 3 T. B. Monr. Ky. 63.

“The Common-Law Record consists of the Process, the Pleadings, the Verdict and the Judgment. After Judgment, such Errors were Reviewable by Writ of Error. Errors which occurred at the Trial were not part of the Common-Law Record, and could be Reviewed by a Motion for a New Trial, after Verdict and before Judgment; by Statute, such Errors could be Reviewed after judgment by incorporating them into the Record by means of a Bill of Exceptions. It was therefore essential to keep clearly in mind the distinction between Matter of Record and Matter of Exception.

“UNDER the ancient practice, the Proceedings in a litigated case were Entered upon the Parchment Roll, and when this was completed, the end product became known as the Common-Law Record. It consisted of Four Parts, the Process, which included the Original Writ and the Return of the Sheriff, by which the Court acquired Jurisdiction over the defendant; the Pleadings, presented by the Parties in the prescribed order to develop an Issue of Law or of Fact, and which included the Declaration and all subsequent Pleadings, together with the Demurrers, if any; the Verdict; and the Judgment. These Four Elements formed the Common-Law Record, but it should be observed that at the point where the Retrospective Motions come into play, the Record has not been developed beyond the Stage of Entering the Verdict upon the Roll. At this point it should also be recalled that between the time when the Pleadings Terminated in an Issue, which Joinder in Issue was duly Recorded on the Parchment Roll, and the time when an Entry of the Verdict was made, nothing was Recorded on the Parchment Roll. The reason for this was that between the Joinder of Issue and the Rendition of the Verdict, the Trial takes place, and what occurs during this Trial does not Appear upon the Face of the Common-Law Record. Thus, Offers and Rejection of Evidence, the Court’s Instruction of the Jury, or its Refusal to Instruct as requested by Counsel, or any Misconduct Connected with the Trial, such as Prejudicial Remarks on the Part of the Court, and the like—that is—any Error that occurs at the Trial—cannot be corrected by resort to the Common-Law Record because not Apparent Upon its Face. Such Errors were preserved only in the notes made by the Presiding Judge, or in his memory, and were reviewable, after Verdict and before Final Judgment, by a Motion for New Trial made before the Court En Banc at Westminster, within four days after the Commencement of the Next Term following the Rendition of the Verdict. As each of the Judges of the Court had Motions of a similar character coming up for decision from the Trials over which they had presided, the natural inclination of each Judge was to support the Rulings of his brother Jurists, and thus Overrule the Motion for a New Trial. Furthermore, Errors that occurred at the Trial were not Reviewable after Judgment on Writ of Error, because Not Apparent on any one of the Four Parts of the Common-Law Record. To remedy this Defect, Parliament enacted Chapter 31 of the Statute of Westminster II in 1285,6 which provided for Review of such Errors through the use of what came to be known as a Bill of Exceptions.

“Thus, it appears that in four out of five Retrospective Motions, the Court is permitted to consider only Defects Apparent Upon the Face of Part of the Common-Law Record—the Process, the Pleadings, and the Verdict—and Errors Occurring at the Trial were regarded as extraneous and not to be considered in rendering Judgment upon the Motions. Matters extraneous to or outside of the Record could be tested after Verdict and before Judgment only by a Motion for a New Trial. A distinction is made between Matter of Record and Matter of Exception, Matter of Record referring to those Errors Apparent upon the Face of the Common-Law Record and hence Reviewable after Final Judgment upon a Writ of Error, and Matter of Exception referring to those Errors which Occurred at the Trial, and were Not Apparent on the Face of the Common-Law Record, hence Reviewable after Final Judgment only by incorporating such Errors into the Record by means of a Bill of Exceptions, as authorized by Chapter 31 of the Statute of Westminster II in 1285.”
Koffler: Common Law Pleading 567-568

Proceedings in courts of chancery are said not to be, strictly speaking, records; but they are so considered. Gresley, Ev. 101. And see 8 Mart. La. N. S. 303; 1 Rawle, Penn. 381; 8 Yorg. Tenn. 142; 1 Pet. C. C. 352.
Bouvier’s Law Dictionary, 14th Ed. (1870)

MINUTE

In practice. A memorandum of what takes place in court, made by authority of the court. From these minutes the record is afterwards made up.

Toulier says they are so called because the writing in which they were originally was small; that the word is derived from the Latin minuta (scriptura), in opposition to copies which were delivered to the parties, and which were always written in a larger hand. 8 Toullier, n. 413.

Minutesare not considered as any part of the record. 1 Ohio, 268. See 23 Pick. Mass. 184.
Bouvier’s Law Dictionary, 14th Ed. (1870)

MINUTE BOOK:  A book kept by the clerk or prothonotary of a court, in which minutes of its proceedings are entered.
Bouvier’s Law Dictionary, 14th Ed. (1870)

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

A court of record is a “superior court.”

A court not of record is an “inferior court.”

“Inferior courts” are those whose jurisdiction is limited and special and whose proceedings are not according to the course of the common law.” Ex Parte Kearny, 55 Cal. 212; Smith v. Andrews, 6 Cal. 652

Criminal courts proceed according to statutory law. Jurisdiction and procedure is defined by statute. Likewise, civil courts and admiralty courts proceed according to statutory law. Any court proceeding according to statutory law is not a court of record (which only proceeds according to common law); it is an inferior court.

“The only inherent difference ordinarily recognized between superior and inferior courts is that there is a presumption in favor of the validity of the judgments of the former, none in favor of those of the latter, and that a superior court may be shown not to have had power to render a particular judgment by reference to its record. Ex parte Kearny, 55 Cal. 212. Note, however, that in California ‘superior court’ is the name of a particular court. But when a court acts by virtue of a special statute conferring jurisdiction in a certain class of cases, it is a court of inferior or limited jurisdiction for the time being, no matter what its ordinary status may be. Heydenfeldt v. Superior Court, 117 Cal. 348, 49 Pac. 210; Cohen v. Barrett, 5 Cal. 195” 7 Cal. Jur. 579

The decisions of a superior court may only be challenged in a court of appeal.

The decisions of an inferior court are subject to collateral attack. In other words, in a superior court one may sue an inferior court directly, rather than resort to appeal to an appellate court.

Decision of a court of record may not be appealed.
It is binding on ALL other courts.

A statutory or constitutional court (whether it be an appellate or supreme court) may NOT second guess the judgment of a common law court of record. The Supreme Court of the USA acknowledges the Common Law as supreme: “The judgment of a court of record [a Common Law court ONLY] whose jurisdiction is final, is as conclusive on all the world as the judgment of this court [the U.S. Supreme Court] would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it.” Ex parte Watkins, 3 Pet., at 202-203. [cited by SCHNECKLOTH v. BUSTAMONTE, 412 U.S. 218, 255 (1973)]

U.S. Supreme Court

 
Also see Counterclaim Notes

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

What is a court?

www.1215.org/lawnotes/lawnotes/court.htm 

This article is about the substantive definition of a court. For form, legal, and dictionary definitions, see Court of Record Most attorneys will tell you that a court is a forum where litigants may take problems for resolution. Others will tell you that the terms “court” and “judge” are interchangeable. Then there are the various dictionary definitions. But, here is the real substance of a court:

A court is a stage
upon which the sovereign conducts his show
so as to satisfy the rest of the world that his decision is a good one.

The modern concept of a court is based on the ancient English traditions. To best understand it, imagine how things were in the 12th century. The king was the sovereign. On his throne by Divine Right, he was the source of all law. So went the theory. But the king was as vulnerable to death as was anyone else.

Consider this scenario:

The king is sitting on his throne, gazing out the window, surveilling his kingdom. He notices one of the knaves stealing oranges from his favorite orange tree. No problem. Guards are summoned and instructed to incarcerate the knave for a month in the castle dungeon.

There you have all the elements of basic court procedure: jurisdiction, evidence, accusation, judgment, punishment. The king had the jurisdiction; he had personally seen the violation of his rules (the evidence), then he rendered and executed the judgment. Theoretically, that is all that is needed.

As a practical matter, there is more to the story.

In this case the criminal’s brother happens to be the king’s chief cook. The cook takes a day off to visit the dungeon. The prisoner complains about the injustice of it all, that he meant no harm, that he didn’t do it, and that the king was totally unfair. Mr. Cook, enraged by his brother’s story, promises to help. That evening the king dies from a slight overdose of arsenic (that’s how the nobility solved problems in those days).

The arsenic factor is what led to our modern court system. The royalty of that period realized that they were vulnerable, so they devised a trial system which would encourage others to not take it out on the king. This resulted in a

new scenario:

The king is sitting on his throne, gazing out the window, surveilling his kingdom. He notices that one of the knaves is stealing oranges from his favorite orange tree. No problem. He summons the guards and instructs them to bring the knave before the court. Papers are drawn up and a formal accusation is published for the world to see. A future date is set, and the knave is given an opportunity to round up defensive evidence and witnesses as well as a king-trained, tested, and licensed defense attorney.

On the appointed day, the king’s representative publicly announces the accusations, the defendant publicly states his innocence and the reasons therefor. Great argument is heard for both sides, and the king renders his judgment: 30 dungeon days. Attending the trial are the various court officers: judge, counsellors, marshall, court reporter, court jester, court clerk, and the various courtiers who invariably attach themselves to the seat of power. Among them all is the prisoner’s brother, the king’s chief cook.

On visiting day at the dungeon, the criminal complains on deaf ears. Brother chief cook says, “Sorry Bro. I was at the trial. I saw the evidence, I saw that you had an opportunity to defend, and I saw that the judgment was according to law. Even if the judgment was in error, the procedure was fair. There is nothing I can do for you.”

The king’s show was a success! Because of public judicial procedure he is guaranteed a long arsenic-free life, even though there was no difference in the final outcome.

In the first scenario the king acted according to theory. In the second scenario the king acted with prudent life-extending considerations.

Modern courts

Modern court procedure still adheres to the traditions of the past. You can see this in the various rules, statutes, and canons. For example, in Canon 2 of the CODE OF JUDICIAL CONDUCT it is well understood that “A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” There is no specific requirement that he actually have integrity and impartiality beyond that minimum required by law; only that the judge should act in a manner that promotes that image.

Maintaining image while protecting sovereign interests is probably the most important function of a court. The actual effectiveness of a government court in meting out justice has been questioned. Spend a day in any traffic court and you will get the full flavor of how the courts protect sovereign interests as they put on a show of procedural propriety.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Subject: NISI PRIUS COURT (is a "court of no record")  

"George H. Cullins" wrote:

> Black's Law Dictionary defines Nisi Prius Courts as:
> 
> "The nisi prius courts are such as are held for the trial of issues of fact
> before a jury and one presiding judge.  In America the phrase was formerly
> used to denote the forum (whatever may be its statutory name) in which the
> cause was tried to a jury, as distinguished from the appellate court."
> 
> To me, that says the nisi prius court is a TRIAL COURT, which of course is
> where the FACTS of a case are discovered.
> 
> Thornton says a nisi prius court is a "court of no record."  But a record 
> is kept in a trial court

===============================================================================

Bill Thornton replies:

On the surface of it, your doubts are reasonable.  I'll do my best to
explain nisi prius courts, courts of record, and courts of no record.

First, the mere keeping of a record does not qualify any court to be a
court of record.  Black's Law Dictionary, Fifth Edition, contributes to
the confusion by listing only two of the four requirements for a court
to qualify as a court of record.  If you want the full explanation, see
http://www.chrononhotonthologos.com/lawnotes/courtrec.htm.  In
California, all courts are named as courts of record.  However, if in an
individual case they are not operated as courts of record, then they
don't qualify as such.  It takes more than a name to make a court of
record.  Even though a court may be keeping a record, it is a court of
no record if it does not conform to the remaining three requirements for
a lawful court of record.

Black's Law Dictionary's omissions are subtle.  But, if you look deep
enough, you can recombine the information and get to the real meaning of
terms such as "nisi prius".

"Nisi prius" is a Latin term.  Individually, the words mean thus:

    "Prius" means "first."  For example, "Prius vitiis laboravimus, nunc
legibus" means "We labored first with vices, now with laws."  Quoted
from Black's Law Dictionary, Fifth Edition.

    "Nisi" means "unless."  Quoting from B.L.D., 5th Ed.:  "The word is
often affixed as a kind of elliptical expression, to the words 'rule,'
'order,' 'decree,' 'judgment,' or 'confirmation,' to indicate that the
adjudication spoken of is one which is to stand as valid and operative
unless the party affected by it shall appear and show cause against it,
or take some other appropriate step to avoid it or procure its
revocation."

A rule of procedure in courts is that if a party fails to object to
something, then it means he agrees to it.  A nisi procedure is a
procedure to which a person has failed to object (show cause) and
therefore it follows that the person agrees to it.  Or, conforming to
the format in the preceding paragraph, a nisi procedure is a procedure
to which a party agrees UNLESS he objects or shows cause.

A "nisi prius" procedure is a procedure to which a party FIRST agrees
UNLESS he objects.

A "nisi prius court" is a court which will proceed unless a party
objects.  The agreement to proceed is obtained from the parties first.

It is a matter of right that one may demand to be tried in a court of
recordBy sheer definition, that means that the court must proceed
according to the common law (NOT the statutory law).  The only way that
a court can suspend that right is by the prior agreement of the
parties.  For tactical reasons the state prefers to proceed according to
statutory law rather than common law.  The only way it can do that is to
obtain the prior agreement from the parties.  That is the primary (but
hidden) purpose of the arraignment procedure.  During arraignment the
court offers three choices for pleading (guilty, not guilty, nolo
contendre).  But all three choices lead to the same jurisdiction, namely
a statutory jurisdiction, not a common law jurisdictionThat is to
say, the question to be decided is whether or not the statute was
violated, not whether the common law was violated.

The dictionary does not lie in its definition of a nisi prius court.
But it does omit some important information.  Namely, that it is a court
that has been set up by prior agreement assumed because when the three
statutory options [guilty, not guilty, nolo contendre] were presented
to the defendant he chose one.  He thus failed to enforce his right to be
prosecuted in a court of record.

Once the agreement (as evidenced in the arraignment proceeding) has been
secured, the court proceeds under statutory authority.  Now the court
ceases to be a court of record and becomes a court of no record by prior
lack of objection, i.e. by prior agreement implied by failure to object..

Naturally, after securing the agreement, a nisi prius court can move on
to examine the facts with a judge and jury, etc. etc.

George H. Cullins wrote:

> Mr. Thornton says that the murderers have entered into a contract to go
> outside the rules of the "codes" even though they don't know it. Since a
> contract is an AGREEMENT between two or more people, how can a contract be
> made without the parties knowing about it.

Bill Thornton replies:

Yes.  If the party never objects, then he must have agreed.  Surely you
have heard of appeals that were lost because objection was not timely
made.  The appellate court treats unopposed actions by the trial court
as if those actions were agreed to by the party who untimely objected.

George H. Cullins wrote:

> He says the Penal Codes are not the "law."  My understanding is that the law
> is the statutes (codes) plus the law made by appellate judges every time they
> make a decision.  So if the Penal Code is not the law, what is?

Bill Thornton replies:

When the word "law" is used without qualification, then it means common
law.  An "attorney at law" means one who practices common law
(notwithstanding the fact that modern attorneys are not trained about the
subject).  An "attorney in equity" is one who practices before an equity
court.  In the U.S. 99.99999% of all proceedings are in equity, which is
why the judges may take liberties.

Statutes are expressions of will from the legislature.  To keep you
confused, they append the word "law" to it.  Naturally, you are supposed
to then believe that statutory law is the same as and equal to common
law (it isn't).  Codes are nothing more than a collection of statutes
and other rules arranged by subject instead of being arranged by date.
Law beats statutes; statutes beat codes.

A judge exercises his discretion.  Because he is authorized by the
statutes to exercise his discretion, most appeals of judges' decisions
will fail.  The appellate courts generally will not second guess a trial
court's use of discretion.

In a court of record, a judge has NO discretion; he can make no decisions or issue any rulings regarding the facts or law of the case. Discretion is reserved to the independent tribunal.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

A court of record is a “superior court.”

A court not of record is an “inferior court.”

“Inferior courts” are those whose jurisdiction is limited and special and whose proceedings are not according to the course of the common law.” Ex Parte Kearny, 55 Cal. 212; Smith v. Andrews, 6 Cal. 652

Criminal courts proceed according to statutory law
. Jurisdiction and procedure is defined by statute. Likewise, civil courts and admiralty courts proceed according to statutory law. Any court proceeding according to statutory law is not a “court of record” (which only proceeds according to common law); it is an inferior court.

“The only inherent difference ordinarily recognized between superior and inferior courts is that there is a presumption in favor of the validity of the judgments of the former (superior), none in favor of those of the latter (inferior), and that a superior court may be shown not to have had power to render a particular judgment by reference to its record. Ex parte Kearny, 55 Cal. 212. Note, however, that in California ‘superior court’ is the name of a particular court. But when a court acts by virtue of a special statute conferring jurisdiction in a certain class of cases, it is a court of inferior or limited jurisdiction for the time being, no matter what its ordinary status may be. Heydenfeldt v. Superior Court, 117 Cal. 348, 49 Pac. 210; Cohen v. Barrett, 5 Cal. 195” 7 Cal. Jur. 579

The decisions of a superior court may only be challenged in a court of appeal.

The decisions of an inferior court are subject to collateral attack. In other words, in a superior court one may sue an inferior court directly, rather than resort to appeal to an appelate court.

Decision of a court of record may not be appealed.
It is binding on ALL other courts.

However, NO statutory or constitutional court (whether it be an appellate or supreme court) can second guess the judgment of a court of record. “The judgment of a court of record whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it.” Ex parte Watkins, 3 Pet., at 202-203. [cited by SCHNECKLOTH v. BUSTAMONTE, 412 U.S. 218, 255 (1973)]

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Habeas Corpus: History and Definition

There are two definitions for habeas corpus: one formal and the other substantive. The formal definition may be found in any law dictionary. This essay is about the substantive definition. The substantive definiton of habeas corpus is not found in the dictionaries, but rather, in the history books.

In the early days (before Magna Carta), the king had many court systems operating: e.g. courts of Common Pleas, Exchequer, King’s Bench, Chancery, etc. Each court had its jurisdiction defined. Of course, as an arm of government, courts are simply another form of bureaucracy with assigned functions. Like any bureaucracy, they always want to expand their jurisdictions. If a court exceeded its jurisdiction, a person could go to the proper court that should have had jurisdiction, and ask for an order directing the errant court stop its proceedings and release jurisdiction to the proper court. The phrase, “habeas corpus,” meaning, “you have the body” was put at the end of pleadings to the second court asking that the first court be required to produce the body if it was being held. In its most common form, the full formal phrase for habeas corpus was “habeas corpus ad subjiciendum.”

Of course, as you might surmise, that would pit one court bureaucracy against another. The Habeas Corpus worked quite well because, as long as the defendant was not a common enemy to both bureaucracies, one bureaucracy would not miss any opportunity to put down a competing bureacracy. The practical result of all this is that the defendant would often be ordered released, which was the second court’s way of telling the first court that it didn’t know what it was doing and had strayed from it’s original jurisdiction (i.e. exceeded jurisdiction). The habeas corpus, as a by-product of bureaucratic turf protection, tended to serve personal liberty well. Over the centuries it became known as the “Great Writ of Liberty.” It was the only known privilege or right that became stronger with the passage of time.

In summary, habeas corpus is the process of one court sitting in judgment of another court’s jurisdiction. It is NOT a civil or criminal proceeding, but rather it is a family fight between courts. That is why, even though you find habeas corpus rules in the civil procedure books ( FRCP and Calif CCP) the procedures stand somewhat alone, independent of the rest of the procedures in those codes. The reason is obvious: Why would a court burden itself with procedural requirements? That stuff is ok for outsiders not part of the court system (i.e. plaintiffs, defendants, and attorneys) but not ok for judges themselves.

In America, everyone can be sovereign. When you move for habeas corpus, you are activating your own court, which is separate and distinct from their court. You sit in judgment of the jurisdiction of their court. When you order them to produce the injured party and to demonstrate the injury, and when they fail to produce, then your court can issue an order to dismiss the case for lack of jurisdiction. Your court is a court of record and takes precedence over the statutory court.

(Also, see Congressional Research Service’s Overview on Habeas Corpus.)

 

The concept of individual sovereignty stands on its own as a respected and valid concept – at least to those sufficiently educated and informed to understand it. As a king is a sovereign, so each man is an individual sovereign – and just as a sovereign king may consent to restrictions on his rights, so may each man so consent. But the king and the individual retain their sovereignty, which is not forfeited by any contracts or agreements.

SOVEREIGNTY (Black’s Law Dictionary, Fourth Edition)  The power to do everything in a state without accountability,–to make laws, to execute and to apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like.”  Story, Const. Sec 207

Sovereignty in government is that public authority which directs or orders what is to be done by each member associated in relation to the end of the association. It is the supreme power by which any citizen is governed and is the person or body of persons in the state to whom there is politically no superior. The necessary existence of the state and that right and power which necessarily follow is “sovereignty.””  Today “sovereignty in government” in its most expansive sense is meant as “supreme, absolute, uncontrollable power, the absolute right to govern. The word which by itself comes nearest to being the definition of “sovereignty” is will or volition as applied to political affairs.” City of Bisbee v. Cochise County, 52 Ariz. 1, 78 P.2d 982, 986.

“…at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects…with none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the land.” Chisholm v. Georgia (US) 2 Dall 419, 454, 1 L Ed 440, 455 @DALL 1793 pp471-472


The people of this State, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the King by his prerogative. Through the medium of their Legislature they may exercise all the powers which previous to the Revolution could have been exercised either by the King alone, or by him in conjunction with his Parliament; subject only to those restrictions which have been imposed by the Constitution of this State or of the U.S.”
Lansing v. Smith, 21 D. 89., 4 Wendel 9 (1829) (New York)
“D.” = Decennial Digest
Lansing v. Smith, 4 Wend. 9 (N.Y.) (1829), 21 Am.Dec. 89
10C Const. Law Sec. 298; 18 C Em.Dom. Sec. 3, 228;
37 C Nav.Wat. Sec. 219; Nuls Sec. 1`67; 48 C Wharves Sec. 3, 7.
NOTE: Am.Dec.=American Decision, Wend. = Wendell (N.Y.)

“The very meaning of ‘sovereignty’ is that the decree of the sovereign makes law.” American Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S. 347, 53 L.Ed. 826, 19 Ann.Cas. 1047.

“‘Sovereignty’ means that the decree of sovereign makes law, and foreign courts cannot condemn influences persuading sovereign to make the decree.” Moscow Fire Ins. Co. of Moscow, Russia v. Bank of New York & Trust Co., 294 N.Y.S. 648, 662, 161 Misc. 903.

Note that in America the various States were considered individual, sovereign countries; and each State was and is still today considered a “foreign country” with respect to the other States. Similarly, when the Union – named the United States of America – was formed, each of the various States was considered a “foreign country” with respect to the federal government. Therefore, a federal court is considered a “foreign court” with respect to each of the various States. This concept remains valid today, as the Supreme Court has affirmed numerous times.
Reservation of Sovereignty: “[15] (b) Even if the Tribe’s power to tax were derived solely from its power to exclude non-Indians from the reservation, the Tribe has the authority to impose the severance tax. Non-Indians who lawfully enter tribal lands remain subject to a tribe’s power to exclude them, which power includes the lesser power to tax or place other conditions on the non-Indian’s conduct or continued presence on the reservation. The Tribe’s role as commercial partner with petitioners should not be confused with its role as sovereign. It is one thing to find that the Tribe has agreed to sell the right to use the land and take valuable minerals from it, and quite another to find that the Tribe has abandoned its sovereign powers simply because it has not expressly reserved them through a contract. To presume that a sovereign forever waives the right to exercise one of its powers unless it expressly reserves the right to exercise that power in a commercial agreement turns the concept of sovereignty on its head. MERRION ET AL., DBA MERRION & BAYLESS, ET AL. v. JICARILLA APACHE TRIBE ET AL. 1982.SCT.394 , 455 U.S. 130, 102 S. Ct. 894, 71 L. Ed. 2d 21, 50 U.S.L.W. 4169 pp. 144-148.

In Bond v. U.S. (2011) the Supreme Court recognized individual sovereignty when it ruled 9-0 that a criminal defendant – not just states – indicted on charges of violating a federal statute, has standing to challenge the validity of the statute on the ground that it infringes on the powers reserved to the states and/or to the people under the Tenth Amendment. Bond v. United States, 131 S. Ct. 2355, 180 L. Ed. 2d 269 (2011) [2011 BL 158313]

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

The document below, the CONFIRMATIO CARTARUM of October 10, 1297, is the bridge between the Constitution’s protection of one’s access to the Common Law, and the Magna Carta. The modern value of the following is that it links the Magna Carta to the Common Law. The U.S. Constitution guarantees one’s access to the Common Law, i.e. the Magna Carta. The CONFIRMATIO CARTARUM reaffirms that the Magna Carta may be pleaded as the Common Law before a court.

(See the next to last line of the first paragraph.)

=====================================================================

CONFIRMATIO CARTARUM [26]
October 10, 1297

EDWARD, by the grace of God, King of England, Lord of Ireland, and Duke of Guian[27], to all those that these present letters shall hear or see, greeting. Know ye that we, to the honour of God and of Holy Church, and to the profit of our realm, have granted for us and our heirs, that the Charter of liberties, and the Charter of the forest[28], which were made by common assent of all the realm, in the time of King HENRY our father, shall be kept in every point without breach. (2) And we will that the same charters shall be sent under our seal, as well to our justices of the forest, as to others, and to all sheriffs of shires, and to all our other officers, and to all our cities throughout the realm, together with our writs, in the which it shall be contained, that they cause the foresaid charters to be published, and to declare to the people that we have confirmed them in all points; (3) and that our justices, sheriffs, mayors, and other ministers, which under us have the laws of our land to guide, shall allow the said charters pleaded before them in judgement in all their points, that is to wit, the Great Charter as the common law[*] and the Charter of the forest, for the wealth of our realm.

2. AND we will, That if any judgement be given from henceforth contrary to the points of the charters aforesaid by the justices, or by any other our ministers that hold plea before them against the points of the charters, it shall be undone, and holden for nought.

3. AND we will, That the same charters shall be sent, under our seal, to cathedral churches throughout our realm, there to remain, and shall be read before the people two times by the year.

4. AND that all archbishops and bishops shall pronounce the sentence of excommunication against all those that by word, deed, or counsel do contrary to the foresaid charters, or that in any point break or undo them. (2) and that the said curses be twice a year denounced and published by the prelates aforesaid. (3) And if the said prelates, or any of them, be remiss in the denunciation of the said sentences, the archbishops of Canterbury and York for the time being shall compel and distrein them to the execution of their duties in form aforesaid.

5. AND for so much as divers people of our realm are in fear that the aids and tasks[29] which they have given to us beforetime towards our wars and other business, of their own grant and good will (howsoever they were made) might turn to a bondage to them and their heirs, because they might be at another time found in the rolls, and likewise for the prises taken throughout the realm by our ministers: (2) We have granted for us and our heirs, that we shall not draw such aids, tasks, nor prises into a custom, for any thing that hath been done heretofore, be it by roll or any other precedent that may be founden.

6. Moreover we have granted for us and our heirs, as well to archbishops, bishops, abbots, priors, and other folk of holy church, as also to earls, barons, and to all the communalty of the land, that for no business from henceforth we shall take such manner of aids, tasks, nor prises, but by the common assent of the realm, and for the common profit thereof, saving the ancient aids, and prises due and accustomed.

7. AND for so much as the more part of the communalty of the realm find themselves sore grieved with the maletent of wools, that is to wit, a toll of forty shillings for every sack of wool, and have made petition to us to release the same; We at their requests have yearly released it, and have for granted us and our heirs, that we shall not take such things without their common assent and good will, saving to us and our heirs the custom of wools, skins, and leather, granted before by the communalty aforesaid. In witness of which things we have caused these our letters to be made patents. Witness EDWARD our son at London the tenth day of October, the five and twentieth year of our reign.

NOTES

[26] 25 Edw. i, c. i. Danby Pickering (ed.), Statutes at Large (Cambridge, 1726-1807), I, 273-75.

[27] Aquitaine, the territory in southwestern France.

[28] The Charter of the Forest was issued in 1217, early in the reign of Henry III, as a supplement to Magna Carta. It was confirmed by him in 1225. Some of the provisions omitted in the reissues of Magna Carta which relate to forest matters appeared in the Charter of the Forest.

[29] “Aids,” “tasks,” and “prises” were forms of taxation.

====================================================================

The above is quoted from “Sources of Our Liberties” Edited by Richard L. Perry, American Bar Foundation; distributed by Associated College Presses, 32 Washington Place, New York 3, New York.

[*] This reaffirms that the Magna Carta may be pleaded as the Common Law before a court.

Go to Confirmatio Cartarum Interpretation
MORE LAWNOTES      HOME
3-8-96

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

MAGNA CARTA

THE GREAT CHARTER OF ENGLISH LIBERTY
DECREED BY KING JOHN AT RUNNYMEDE
JUNE 15, A.D. 1215*


From
“Select Historical Documents of the Middle Ages,”
as translated from
“Stubb’s Charters”
by Ernest F. Henderson.


JOHN, by the grace of God, King of England, lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjuo: To the archbishops, bishops, abbots, earls, barons, justices, foresters, sheriffs, prevosts, serving men, and to all his bailiffs and faithful subjects, Greeting. Know that we, by the will of God and for the safety of our soul, and of the souls of all our predecessors and our heirs, to the honor of God and for the exaltation of the holy Church, and the bettering of our realm: by the counsel of our venerable fathers Stephen archbishop of Canterbury, primate of all England and cardinal of the holy Roman church; of Henry archbishop of Dublin; of the bishops William of London, Peter of Winchester, Jocelin of Bath and Glastonbury, Hugo of Lincoln, Walter of Worcester, William of Coventry and Benedict of Rochester; of master Pandulf, subdeacon and of the household of the lord pope; of brother Aymeric, master of the knights of the Temple in England; and of the nobel men, William Marshall earl of Pembroke, William earl of Salisbury, William earl of Warren, William earl of Arundel, Alan de Galway constable of Scotland, Warin son of Gerold, Peter son of Herbert, Hubert de Burgh seneschal of Poictiers, Hugo de Neville, Matthew son of Herbert, Thomas Basset, Alan Basset, Philip d’Aubigni, Robert de Roppelay, John Marshall, John son of Hugo, and others of our faithful subjects:

1. First of all have granted to God, and, for us and for our heirs forever, have confirmed, by this our present charter, that the English church shall be free and shall have its rights intact and its liberties uninfringed upon. And thus we will that it be observed. As is apparent from the fact that we, spontaneously and of our own free will, before discord broke out between ourselves and our barons, did grant and by our charter confirm–and did cause the lord pope Innocent III, to confirm– freedom of elections, which is considered most important and most necessary to the church of England. Which charter both we ourselves shall observe, and we will that it be observed with good faith by our heirs forever. We have also granted to all free men of our realm, on the part of ourselves and our heirs forever, all the subjoined liberties, to have and to hold, to them and to their heirs, from us and from our heirs:

2. If any one of our earls or barons, or of others holding from us in chief through military service, shall die; and if, at the time of his death, his heir be of full age and owe a relief: he shall have his inheritance by paying the old relief;–the heir, namely, or the heirs of an earl, by paying one hundred pounds for the whole barony of an earl; the heir or heirs of a baron, by paying one hundred pounds for the whole barony; the heir or heirs of a knight, by paying one hundred shillings at most for a whole knight’s fee; and he who shall owe less shall give less, according to the ancient custom of fees.

3. But if the heir of any of the above persons shall be under age and in wardship,–when he comes of age he shall have his inheritance without relief and without fine.

4. The administrator of the land of such heir who shall be under age shall take none but reasonable issues from the land of the heir, and reasonable customs and services; and this without destruction and waste of men or goods. And if we shall have committed the custody of any such land to the sheriff or to any other man who ought to be responsible to us for the issues of it, and he cause destruction or waste to what is in his charge: we will fine him, and the land shall be handed over to two lawful and discreet men of that fee who shall answer to us, or to him to whom we shall have referred them, regarding those issues. And if we shall have given or sold to any one the custody of any such land, and he shall have caused destruction or waste to it,–he shall lose that custody, and it shall be given to two lawful and discreet men of that fee, who likewise shall answer to us, as has been explained.

5. The administrator, moreover, so long as he may have the custody of the land, shall keep in order, from the issues of that land, the houses, parks, warrens, lakes, mills, and other things pertaining to it. And he shall restore to the heir when he comes to full age, his whole land stocked with ploughs and wainnages, according as the time of the wainnage requires and the issues of the land will reasonably permit.

6. Heirs may marry without disparagement; so, nevertheless, that, before the marriage is contracted, it shall be announced to the relations by blood of the heir himself.

7. A widow, after the death of her husband, shall straightway, and without difficulty, have her marriage portion and her inheritance, nor shall she give any thing in return for her dowry, her marriage portion, or the inheritance which belonged to her, and which she and her husband held on the day of the death of that husband. And she may remain in the house of her husband, after his death, for forty days; within which her dowry shall be paid over to her.

8. No widow shall be forced to marry when she prefers to live without a husband; so, however, that she gives security not to marry without our consent, if she hold from us, or the consent of the lord from whom she holds, if she hold from another.

9. Neither we nor our bailiffs shall seize any revenue for any debt, so long as the chattels of the debtor suffice to pay the debt; nor shall the sponsors of that debtor be distrained so long as the chief debtor has enough to pay the debt. But if the chief debtor fail in paying the debt, not having the wherewithal to pay it, the sponsors shall answer for the debt. And, if they shall wish, they may have the lands and revenues of the debtor until satisfaction shall have been given them for the debt previously paid for him; unless the chief debtor shall show that he is quit in that respect towards those same sponsors.

10. If any one shall have taken any sum, great or small, as a loan from the money-lenders, and shall die before that debt is paid,–that debt shall not bear interest so long as the heir, from whomever he may hold, shall be under age. And if the debt fall into our hands, we shall take nothing save the chattel contained in the deed.

11. And if any one dies owing a debt to the money-lenders, his wife shall have her dowry, and shall restore nothing of that debt. But if there shall remain children of that dead man, and they shall be under age, the necessaries shall be provided for them according to the nature of the dead man’s holding; and from the residue, the debt shall be paid, saving the service due to the lords. In like manner shall be done concerning debts that are due to others besides money-lenders.

12. No scutage or aid shall be imposed in our realm unless by the common counsel of our realm; except for redeeming our body, and knighting our eldest son, and marrying once our eldest daughter. And for these purposes there shall only be given a reasonable aid. In like manner shall be done concerning the aids of the city of London.

13. And the city of London shall have all its old liberties and free customs as well by land as by water. Moreover we will and grant that other cities and burroughs, and town and ports, shall have all their liberties and free customs.

14. And, in order to have the common counsel of the realm in the matter of assessing an aid otherwise than in the aforesaid cases, or of assessing a scutage–we shall cause, under seal through our letters, the archbishops, bishops, abbots, earls, and greater barons to be summoned for a fixed day–for a term, namely, at least forty days distant,–and for a fixed place. And, moreover, we shall cause to be summoned in general, through our sheriffs and bailiffs, all those who hold of us in chief. And in all those letters of summons we shall express the cause of the summons. And when a summons has thus been made, the business shall be proceeded with on the day appointed according to the counsel of those who shall be present, even though not all shall come who were summoned.

15. We will not allow any one henceforth to take an aid from his freemen save for the redemption of his body, and the knighting of his eldest son, and the marrying, once, of his eldest daughter; and, for these purposes, there shall only be given a reasonable aid.

16. No one shall be forced to do more service for a knight’s fee, or for another free holding, than is due from it.

17. Common pleas shall not follow our court but shall be held in a certain fixed place.

18. Assizes of novel disseisin, of mort d’ancestor, and of darrein presentment shall not be held save in their own counties, and in this way: We, or our chief justice, if we shall be absent from the kingdom, shall send two justices through each county four times a year; they, with four knights from each county, chosen by the county, shall hold the aforesaid assizes in the county, and on the day and at the place of the county court.

19. And if on the day of the county court the aforesaid assizes can not be held, a sufficient number of knights and free tenants, from those who were present at the county court on that day, shall remain, so that through them the judgments may be suitably given, according as the matter may have been great or small.

20. A freeman shall only be amerced for a small offence according to the measure of that offence. And for a great offence he shall be amerced according to the magnitude of the offence, saving his contenement; and a merchant, in the same way, saving his merchandize. And a villein, in the same way, if he fall under our mercy, shall be amerced saving his wainnage. And none of the aforesaid fines shall be imposed save upon oath of upright men from the neighbourhood.

21. Earls and barons shall not be amerced save through their peers, and only according to the measure of the offence.

22. No clerk shall be amerced for his lay tenement except according to the manner of the other persons aforesaid; and not according to the amount of his ecclesiastical benefice.

23. Neither a town nor a man shall be forced to make bridges over the rivers, with the exception of those who, from of old and of right ought to do it.

+24. No sheriff, constable, coroners, or other bailiffs of ours shall hold the pleas of our crown.

25. All counties, hundreds, wapentakes, and trithings–our demensne manors being excepted–shall continue according to the old farms, without any increase at all.

26. If any one holding from us a lay fee shall die, and our sheriff or bailiff can show our letters patent containing our summons for the debt which the dead man owed to us,–our sheriff or bailiff may be allowed to attach and enroll the chattels of the dead man to the value of that debt, through view of lawful men; in such way, however, that nothing shall be removed thence until the debt is paid which was plainly owed to us. And the residue shall be left to the executors that they may carry out the will of the dead man. And if nothing is owed to us by him, all the chattels shall go to the use prescribed by the deceased, saving their reasonable portions to his wife and children.

27. If any freeman shall have died intestate his chattels shall be distributed through the hands of his near relatives and friends, by view of the church; saving to any one the debts which the dead man owed him.

28. No constable or other bailiff of ours shall take the corn or other chattels of any one except he straightway give money for them, or can be allowed a respite in that regard by the will of the seller.

29. No constable shall force any knight to pay money for castleward if he be willing to perform that ward in person, or– he for a reasonable cause not being able to perform it himself– through another proper man. And if we shall have led or sent him on a military expedition, he shall be quit of ward according to the amount of time during which, through us, he shall have been in military service.

+30. No sheriff nor bailiff of ours, nor any one else, shall take the horses or carts of any freeman for transport, unless by the will of that freeman.

31. Neither we nor our bailiffs shall take another’s wood for castles or for other private uses, unless by the will of him to whom the wood belongs.

32. We shall not hold the lands of those convicted of felony longer than a year and a day; and then the lands shall be restored to the lords of the fiefs.

33. Henceforth all the weirs in the Thames and Medway, and throughout all England, save on the sea-coasts, shall be done away with entirely.

+34. Henceforth the writ which is called Praecipe shall not be served on any one for any holding so as to cause a free man to lose his court.

35. There shall be one measure of wine throughout our whole realm, and one measure of ale and one measure of corn–namely, the London quart;–and one width of dyed and resset and hauberk cloths–namely, two ells below the selvage. And with weights, moreover, it shall be as with measures.

+36. Henceforth nothing shall be given or taken for a writ of inquest in a matter concerning life or limb; but it shall be conceded gratis, and shall not be denied.

37. If any one hold of us in fee-farm, or in socage, or in burkage, and hold land of another by military service, we shall not, by reason of that fee-farm, or socage, or burkage, have the wardship of his heir or of his land which is held in fee from another. Nor shall we have the wardship of that fee-farm, or socage, or burkage unless that fee-farm owe military service. We shall not, by reason of some petit-serjeanty which some one holds of us through the service of giving us knives or arrows or the like, have the wardship of his heir or of the land which he holds of another by military service.

+38. No bailiff, on his own simple assertion, shall henceforth put any one to his law, without producing faithful witnesses in evidence.

+39. 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.

+40. To none will we sell, to none deny or delay, right or justice.

41. All merchants may safely and securely go out of England, and come into England, and delay and pass through England, as well by land as by water, for the purpose of buying and selling, free from all evil taxes, subject to the ancient and right customs–save in time of war, and if they are of the land at war against us. And if such be found in our land at the beginning of the war, they shall be held, without harm to their bodies and goods, until it shall be known to us or our chief justice how the merchants of our land are to be treated who shall, at that time, be found in the land at war against us. And if ours shall be safe there, the others shall be safe in our land.

42. Henceforth any person, saving fealty to us, may go out of our realm and return to it, safely and securely, by land and by water, except perhaps for a brief period in time of war, for the common good of the realm. But prisoners and outlaws are excepted according to the law of the realm; also people of a land at war against us, and the merchants, with regard to whom shall be done as we have said.

43. If any one hold from any escheat–as from the honour of Wallingford, Nottingham, Boloin, Lancaster, or the other escheats which are in our hands and are baronies–and shall die, his heir shall not give another relief, nor shall he perform for us other service than he would perform for a baron if that barony were in the hand of a baron; and we shall hold it in the same way in which the baron has held it.

44. Persons dwelling without the forest shall not henceforth come before the forest justices, through common summonses, unless they are impleaded or are the sponsors of some person or persons attached for matters concerning the forest.

+45. We will not make men justices, constables, sheriffs, or bailiffs, unless they are such as know the law of the realm, and are minded to observe it rightly.

46. All barons who have founded abbeys for which they have charters of the kings of England, or ancient right of tenure, shall have, as they ought to have, their custody when vacant.

47. All forests constituted as such in our time shall straightway be annulled; and the same shall be done for river banks made into places of defense by us in our time.

48. All evil customs concerning forests and warrens, and concerning foresters and warreners, sheriffs and their servants, river banks and their guardians, shall straightway be inquired into in each county, through twelve sworn knights from that county, and shall be eradicated by them, entirely, so that they shall never be renewed, within forty days after the inquest has been made; in such manner that we shall first know about them, or our justice if we be not in England.

49. We shall straightway return all hostages and charters which were delivered to us by Englishmen as a surety for peace or faithful service.

50. We shall entirely remove from their bailiwicks the relatives of Gerard de Athyes, so that they shall henceforth have no bailwick in England: Engelard de Cygnes, Andrew Peter and Gyon de Chanceles, Gyon de Cygnes, Geoffrey de Martin and his brothers, Philip Mark and his brothers, and Geoffrey his nephew, and the whole following of them.

51. And straightway after peace is restored we shall remove from the realm all the foreign soldiers, crossbowmen, servants, hirelings, who may have come with horses and arms to the harm of the realm.

+52. If anyone shall have been disseized by us, or removed, without a legal sentence of his peers, from his lands, castles, liberties or lawful right, we shall straightway restore them to him. And if a dispute shall arise concerning this matter it shall be settled according to the judgment of the twenty-five barons who are mentioned below as sureties for the peace. But with regard to all those things of which any one was, by king Henry our father or king Richard our brother, disseized or dispossessed without legal judgement of his peers, which we have in our hand or which others hold, and for which we ought to give a guarantee: We shall have respite until the common term for crusaders. Except with regard to those concerning which a plea was moved, or an inquest made by our order, before we took the cross. But when we return from our pilgrimage, or if, by chance, we desist from our pilgrimage, we shall straightway then show full justice regarding them.

53. We shall have the same respite, moreover, and in the same manner, in the matter of showing justice with regard to forests to be annulled and forests to remain, which Henry our father or Richard our brother constituted; and in the matter of wardships of lands which belong to the fee of another–wardships of which kind we have hitherto enjoyed by reason of the fee which some one held from us in military service;–and in the matter of abbeys founded in the fee of another than ourselves–in which the lord of the fee may say that he has jurisdiction. And when we return, or if we desist from our pilgrimage, we shall straightway exhibit full justice to those complaining with regard to these matters.

54. No one shall be taken or imprisoned on account of the appeal of a woman concerning the death of another than her husband.

+55. All fines imposed by us unjustly and contrary to the law of the land, and all amerciaments made unjustly and contrary to the law of the land, shall be altogether remitted, or it shall be done with regard to them according to the judgment of the twenty five barons mentioned below as sureties for the peace, or according to the judgment of the majority of them together with the aforesaid Stephen archbishop of Canterbury, if he can be present, and with others whom he may wish to associate with himself for this purpose. And if he can not be present, the affair shall nevertheless proceed without him; in such way that, if one or more of the said twenty five barons shall be concerned in a similar complaint, they shall be removed as to this particular decision, and in their place, for this purpose alone, others shall be substituted who shall be chosen and sworn by the remainder of those twenty five.

56. If we have disseized or dispossessed Welshmen of their lands or liberties or other things without legal judgment of their peers, in England or in Wales,–they shall straightway be restored to them. And if a dispute shall arise concerning this, then action shall be taken upon it in the March through judgment of their peers–concerning English holdings according to the law of England, concerning Welsh holdings according to the law of Wales, concerning holdings in the March according to the law of the March. The Welsh shall do likewise with regard to us and our subjects.

57. But with regard to all those things of which any one of the Welsh was, by king Henry our father or king Richard our brother, disseized or dispossessed without legal judgment of his peers, which we have in our hand or which others hold, and for which we ought to give a guarantee: we shall have respite until the common term for crusaders. Except with regard to those concerning which a plea was moved, or an inquest made by our order, before we took the cross. But when we return from our pilgrimage, or if, by chance, we desist from our pilgrimage, we shall straightway then show full justice regarding them, according to the laws of Wales and the aforesaid districts.

58. We shall straightway return the son of Llewelin and all the Welsh hostages, and the charters delivered to us as surety for the peace.

59. We shall act towards Alexander king of the Scots regarding the restoration of his sisters, and his hostages, and his liberties and his lawful right, as we shall act towards our other barons of England; unless it ought to be otherwise according to the charters which we hold from William, his father, the former king of the Scots. And this shall be done through judgment of his peers in our court.

60. Moreover all the subjects of our realm, clergy as well as laity, shall, as far as pertains to them, observe, with regard to their vassals, all these aforesaid customs and liberties which we have decreed shall, as far as pertains to us, be observed in our realm with regard to our own.

+61. Inasmuch as for the sake of God, and for the bettering of our realm, and for the more ready healing of the discord which has arisen between us and our barons, we have made all these aforesaid concessions,–wishing them to enjoy for ever entire and firm stability, we make and grant to them the following security: that the barons, namely, may elect at their pleasure twenty five barons from the realm, who ought, with all their strength, to observe, maintain and cause to be observed, the peace and privileges which we have granted to them and confirmed by this our present charter. In such wise, namely, that if we, our justice, or our bailiffs, or any one of our servants shall have transgressed against any one in any respect, or shall have broken some one of the articles of peace or security, and our transgression shall have been shown to four barons of the aforesaid twenty five: those four barons shall come to us, or, if we are abroad, to our justice, showing to us our error; and they shall ask us to cause that error to be amended without delay. And if we do not amend that error, or, we being abroad, if our justice do not amend it within a term of forty days from the time when it was shown to us or, we being abroad, to our justice: the aforesaid four barons shall refer the matter to the remainder of the twenty five barons, and those twenty five barons, with the whole land in common, shall distrain and oppress us in every way in their power,–namely, by taking our castles, lands and possessions, and in every other way that they can, until amends shall have been made according to their judgment. Saving the persons of ourselves, our queen and our children. And when amends shall have been made they shall be in accord with us as they had been previously. And whoever of the land wishes to do so, shall swear that in carrying out all the aforesaid measures he will obey the mandates of the aforesaid twenty five barons, and that, with them, he will oppress us to the extent of his power. And, to any one who wishes to do so, we publicly and freely give permission to swear; and we will never prevent any one from swearing. Moreover, all those in the land who shall be unwilling, themselves and of their own accord, to swear to the twenty five barons as to distraining and oppressing us with them: such ones we shall make to swear by our mandate, as has been said. And if any one of the twenty five barons shall die, or leave the country, or in any other way be prevented from carrying out the aforesaid measures,–the remainder of the aforesaid twenty five barons shall choose another in his place, according to their judgment, who shall be sworn in the same way as the others. Moreover, in all things entrusted to those twenty five barons to be carried out, if those twenty five shall be present and chance to disagree among themselves with regard to some matter, or if some of them, having been summoned, shall be unwilling or unable to be present: that which the majority of those present shall decide or decree shall be considered binding and valid, just as if all the twenty five had consented to it. And the aforesaid twenty five shall swear that they will faithfully observe all the foregoing, and will cause them to be observed to the extent of their power. And we shall obtain nothing from any one, either through ourselves or through another, by which any of those concessions and liberties may be revoked or diminished. And if any such thing shall have been obtained, it shall be vain and invalid, and we shall never make use of it either through ourselves or through another.

62. And we have fully remitted to all, and pardoned, all the ill-will, anger and rancour which have arisen between us and our subjects, clergy and laity, from the time of the struggle. Moreover we have fully remitted to all, clergy and laity, and–as far as pertains to us–have pardoned fully all the transgressions committed, on the occasion of that same struggle, from Easter of the sixteenth year of our reign until the re-establishment of peace. In witness of which moreover, we have caused to be drawn up for them letters patent of lord Stephen, archbishop of Canterbury, lord Henry, archbishop of Dublin, and the aforesaid bishops and master Pandulf, regarding that surety and the aforesaid concessions.

63. Wherefore we will and firmly decree that the English church shall be free, and that the subjects of our realm shall have and hold all the aforesaid liberties, rights and concessions, duly and in peace, freely and quietly, fully and entirely, for themselves and their heirs, from us and our heirs, in all matters and in all places, forever, as has been said. Moreover it has been sworn, on our part as well as on the part of the barons, that all these above mentioned provisions shall be observed with good faith and without evil intent. The witnesses being the above mentioned and many others. Given through our hand, in the plain called Runnimede between Windsor and Stanes, on the fifteenth day of June, in the seventeenth year of our reign.


* King John’s accession was on May 27, 1199, and he reigned for 18 years. Magna Carta was signed June 15, 1215 (17th year of his reign).
Henry III’s ascension was October 28, 1216. He reigned for 57 years. The Charter of the Forest was issued in 1217 as a supplement to Magna Carta. It was confirmed by him in 1225. Some of the provisions omitted in the reissues of Magna Carta which relate to forest matters appeared in the Charter of the Forest.
Edward I’s ascension was on November 20, 1272. He reigned for 35 years and reaffirmed Magna Carta October 10, 1297 (25th year of his reign)

“+” Article numbers marked with a “+” are recommended for beginning students of the Magna Carta. They deal with individual rights. Study the entire Magna Carta, but get as thorough an understanding as you can of the “+” marked Articles.

Go to Magna Carta Interpretation

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

CONFIRMATIO CARTARUM

1297
(PARTIAL INTERPRETATION)

ARTICLE MEANING

1             The Magna Carta must be accepted as the common law by government..

2             The Magna Carta is the supreme law. All other contrary law and judgments are void.

5             Voluntary taxes cannot be made permanent.


MAGNA CARTA

1215
(PARTIAL INTERPRETATION)

  • 20. A freeman shall only be amerced for a small offence
  • according to the measure of that offence. And for a great
  • offence he shall be amerced according to the magnitude of the
  • offence, saving his contenement; and a merchant, in the same way,
  • saving his merchandize. And a villein, in the same way, if he
  • fall under our mercy, shall be amerced saving his wainnage. And
  • none of the aforesaid fines shall be imposed save upon oath of
  • upright men from the neighbourhood.

The fine shall be proportional to the offense, and shall only be imposed upon testimony of non-government men.

  • 21. Earls and barons shall not be amerced save through
  • their peers, and only according to the measure of the offence.

Fines likewise proportional to the offense for the bottom two ranks of the greater nobility. A peer is a member of the peerage, i.e. a member of the nobility.

  • 24. No sheriff, constable, coroners, or other bailiffs of
  • ours shall hold the pleas of our crown.

No member of government may make a complaint against any individual. To “…hold the pleas of our crown” means to “…sue in the name of the king,” or, in America, to “…sue in the name of the sovereign people,” e.g. THE PEOPLE OF CALIFORNIA VS A.B.

  • 28. No constable or other bailiff of ours shall take the
  • corn or other chattels of any one except he straightway give
  • money for them, or can be allowed a respite in that regard by the
  • will of the seller.

Rule of eminent domain also applies to personal property, which must be paid for when taken.

  • 30. No sheriff nor bailiff of ours, nor any one else, shall
  • take the horses or carts of any freeman for transport, unless by
  • the will of that freeman.

No one may take your car without your permission. (However, if your car has a license plate, it is owned by the issuer of that license plate, and can be taken back anytime by that true owner). If your car is licensed, that is proof that it does not belong to you.

  • 31. Neither we nor our bailiffs shall take another’s wood
  • for castles or for other private uses, unless by the will of him
  • to whom the wood belongs.

Rule of eminent domain does not apply to privately owned wood.

  • 34. Henceforth the writ which is called Praecipe shall not
  • be served on any one for any holding so as to cause a free man to
  • lose his court.

“Praecipe” = order to show cause against property. “Rights” are property. A free man (i.e. nobleman) has his own land and people (slaves). The king may not force a nobleman into the kings court in such a way that the nobleman would deprived of his own court.

  • 36. Henceforth nothing shall be given or taken for a writ
  • of inquest in a matter concerning life or limb; but it shall be
  • conceded gratis, and shall not be denied.

All prosecutions by the government are free, if the prosecution involves the taking away the life or limb (liberty, rights) of the defendant.

  • 38. No bailiff, on his own simple assertion, shall
  • henceforth put any one to his law, without producing faithful
  • witnesses in evidence.

No government official may be a witness in court. And if he is going to impose his law on another, then be must have the support of non-governmental witnesses (2 or more). Witnesses paid by the government are not faithful witnesses.

  • 39. 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.

One can only be put in jail if a jury puts him there (or if he agrees to be put there). Peers are members of the peerage (duke, marquis, earl, viscount, or baron).

  • 40. To none will we sell, to none deny or delay, right or
  • justice.

Free justice, without delay. The government will assume the entire cost of prosecution.

  • 45. We will not make men justices, constables, sheriffs, or
  • bailiffs, unless they are such as know the law of the realm, and
  • are minded to observe it rightly.

Key officials must be knowledgeable about the law, and willing to obey it. If the sheriff takes his direction from the county counsel, then he must quit his job. In Orange County, California, a jury found that the sheriff intentionally disregarded the law and was unwilling to obey the law when he took extraordinary action to prevent two opposing candidates from winning his office. Despite that, he did not resign his position. To date, no one has sued to put him out of office. In 1996 he chose to not run for office.

  • 52. If anyone shall have been disseized by us, or removed,
  • without a legal sentence of his peers, from his lands, castles,
  • liberties or lawful right, we shall straightway restore them to
  • him. And if a dispute shall arise concerning this matter it
  • shall be settled according to the judgment of the twenty-five
  • barons who are mentioned below as sureties for the peace. But
  • with regard to all those things of which any one was, by king
  • Henry our father or king Richard our brother, disseized or
  • dispossessed without legal judgement of his peers, which we have
  • in our hand or which others hold, and for which we ought to give
  • a guarantee: We shall have respite until the common term for
  • crusaders. Except with regard to those concerning which a plea
  • was moved, or an inquest made by our order, before we took the
  • cross. But when we return from our pilgrimage, or if, by chance,
  • we desist from our pilgrimage, we shall straightway then show
  • full justice regarding them.

The civil grand jury is the surety of the peace. Any problems with government must be resolved by the grand jury. The civil grand jury has the last word–no appeal.

  • 55. All fines imposed by us unjustly and contrary to the
  • law of the land, and all amerciaments made unjustly and contrary
  • to the law of the land, shall be altogether remitted, or it shall
  • be done with regard to them according to the judgment of the
  • twenty five barons mentioned below as sureties for the peace, or
  • according to the judgment of the majority of them together with
  • the aforesaid Stephen archbishop of Canterbury, if he can be
  • present, and with others whom he may wish to associate with
  • himself for this purpose. And if he can not be present, the
  • affair shall nevertheless proceed without him; in such way that,
  • if one or more of the said twenty five barons shall be concerned
  • in a similar complaint, they shall be removed as to this
  • particular decision, and in their place, for this purpose alone,
  • others shall be substituted who shall be chosen and sworn by the
  • remainder of those twenty five.

Unjust judgments are unlawful, and can be ignored or invalidated by the civil grand jury.

  • 60. Moreover all the subjects of our realm, clergy as well
  • as laity, shall, as far as pertains to them, observe, with regard
  • to their vassals, all these aforesaid customs and liberties which
  • we have decreed shall, as far as pertains to us, be observed in
  • our realm with regard to our own.

Everyone, like the king, is obligated to treat his own subjects according to the Magna Carta.

  • 61. Inasmuch as for the sake of God, and for the bettering of
  • our realm, and for the more ready healing of the discord which has
  • arisen between us and our barons, we have made all these aforesaid
  • concessions, — wishing them to enjoy for ever entire and firm
  • stability, we make and grant to them the following security: that
  • the barons, namely, may elect at their pleasure twenty five barons
  • from the realm, who ought, with all their strength, to observe,
  • maintain and cause to be observed, the peace and privileges which
  • we have granted to them and confirmed by this our present charter.
  • In such wise, namely, that if we, our justice, or our bailiffs, or
  • any one of our servants shall have transgressed against any one in
  • any respect, or shall have broken some one of the articles of
  • peace or security, and our transgression shall have been shown to
  • four barons of the aforesaid twenty five: those four barons shall
  • come to us, or, if we are abroad, to our justice, showing to us
  • our error; and they shall ask us to cause that error to be amended
  • without delay. And if we do not amend that error, or, we being
  • abroad, if our justice do not amend it within a term of forty days
  • from the time when it was shown to us or, we being abroad, to our
  • justice: the aforesaid four barons shall refer the matter to the
  • remainder of the twenty five barons, and those twenty five barons,
  • with the whole land in common, shall distrain and oppress us in
  • every way in their power,–namely, by taking our castles, lands
  • and possessions, and in every other way that they can, until
  • amends shall have been made according to their judgment. Saving
  • the persons of ourselves, our queen and our children. And when
  • amends shall have been made they shall be in accord with us as
  • they had been previously. And whoever of the land wishes to do so,
  • shall swear that in carrying out all the aforesaid measures he
  • will obey the mandates of the aforesaid twenty five barons, and
  • that, with them, he will oppress us to the extent of his power.
  • And, to any one who wishes to do so, we publicly and freely give
  • permission to swear; and we will never prevent any one from
  • swearing. Moreover, all those in the land who shall be unwilling,
  • themselves and of their own accord, to swear to the twenty five
  • barons as to distraining and oppressing us with them: such ones we
  • shall make to swear by our mandate, as has been said. And if any
  • one of the twenty five barons shall die, or leave the country, or
  • in any other way be prevented from carrying out the aforesaid
  • measures,–the remainder of the aforesaid twenty five barons shall
  • choose another in his place, according to their judgment, who shall
  • be sworn in the same way as the others. Moreover, in all things
  • entrusted to those twenty five barons to be carried out, if those
  • twenty five shall be present and chance to disagree among
  • themselves with regard to some matter, or if some of them, having
  • been summoned, shall be unwilling or unable to be present: that
  • which the majority of those present shall decide or decree shall be
  • considered binding and valid, just as if all the twenty five had
  • consented to it. And the aforesaid twenty five shall swear that
  • they will faithfully observe all the foregoing, and will cause
  • them to be observed to the extent of their power. And we shall
  • obtain nothing from any one, either through ourselves or through
  • another, by which any of those concessions and liberties may be
  • revoked or diminished. And if any such thing shall have been
  • obtained, it shall be vain and invalid, and we shall never make
  • use of it either through ourselves or through another.

Civil grand jury procedure: self-elect 25 barons of the kingdom. 4 of the 25 go talk to the king and his persons. If that doesn’t work within 40 days, the 4 go back to the 25 and the 25 will then correct the problem in any way they see fit. Note that present day American grand juries consist of fewer than 25, and all are paid funds by the government. These are not true grand juries in the tradition of Magna Carta. They are merely advisory grand juries, meaning that the government may lawfully ignore them (though it may be politically risky).


Definitions

Amerce – To impose a fine. Also to publish by fine or penalty.

Assize – A court, usually but not always, consisting of twelve men, summoned together to try a disputed case. They performed the functions of jury, except the verdict was rendered from their own investigation and knowledge and not from upon evidence adduced.

Burage – One of three species of free socage holdings. A tenure where houses and lands formerly the site of houses in an ancient borough are held of some lord by a certain rent.

Chattel – Personal property as opposed to real property. A personal object which can be transported.

Darrein Presentment – Writ of Assize when a man or his ancestors under whom he claimed presented a clerk to a benefice, who was instituted, and afterwards, upon the next avoidance, a stranger presented a clerk and thereby disturbed the real patron.

Distrain – The act of taking as a pledge anothers property to be used as an assurance of performance of an obligation. Also a remedy to ensure a court appearance or payment of fees etc.

Disseise – To dispossess or to deprive.

Escheat – Right of the lord of a fee to re-enter upon the same when it became vacant by the extinction of the blood of the tenant.

Intestate – To die without a will.

Mort d’Ancestor – Real action to recover a person’s lands of which he had been deprived on the death of his ancestor by the abatement of intrusion of a stranger.

Novel Disseisin – Writ of Assize for the recovery of lands and tenements.

Peer – One who is a member of the peerage, i.e. the nobility. A jury of your peers is a jury of your nobility. In America everyone is a king without any subjects, so a jury of your peers means a jury of people, the owners of the country (NOT citizens, who by 14th Amendment constitutional definition, are all publicly owned slaves).

Praecipe – An original writ drawn up in the alternative commanding the defendant to do the thing required. An order to show cause.

Scutage – Tax or contribution raised by someone holding lands by knight’s service used to furnish the King’s army.

Socage – A species of Tenure where the tenant held lands in consideration of certain inferior services of husbandry by him to the lord of the fee.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Advertisements
%d bloggers like this: