Lawful Arrest, Search, Seizure, FAQ
Lawful Arrest FAQ -- Version 2.2c -- 08 Apr 2001
Whether you are being arrested, witnessing an arrest, or sitting on a jury, this is the most important thing you need to know:
In every criminal case, always ask:
"What is the name of the victim, and the nature of the injury?
"What is the name of the civilian that has made a complaint against [me/him/her]?
If they put the accused in jail, or threaten with this, then it is a criminal case.
This document provides information about the elements of a Lawful Arrest, and Lawful Police Actions in general, including detainment, search, seizure. There are additional sections on rights and powers, and for what happens after the arrest.
The primary references used for this document are
The Constitution and Declaration together define our Founding Principles of freedom and privacy, and denote the highest law of this land. The author hopes to inspire you to seek out these texts and to study them, and to consider the possibility of a free and gentle life for all creatures.
"Any "law" which is inconsistent with the Constitution is not law, but a "de jure" imposter, which may have the appearance or "color" of law, but is not "de facto" law. What if a police officer, judge, or other government agent violates the Constitution?
"If they are violating their oath to uphold the Constitution, then they commit an act of treason. If they use weapons and violence to commit treason, then they commit an act of war. If she is held captive by an act of war, then she is a Prisoner of War" -- Farrell Montgomery, when asked why he was flying a POW/MIA flag near Shirley Allen's house, Roby Illinois, Oct 1997
Brace yourself. You will never hear about this on CNN ;^)
Recently, a man was jailed in the United States of America, Land of the Free. For his crime, and without the benefit of trial by jury, he was detained for one week in a American Gulag, a huge facility surrounded by razor wire and machine-gun-wielding guards, with miles of underground tunnels made of steel and concrete where even the *screams* of the beaten cannot escape. In this place, this man was subjected to unsafe, and unsanitary conditions, deprived of food and water, deprived of contact with loved ones, deprived of the ability to work, and was subjected to barbaric violations of his mind and body, including sexual torture (in the guise of a "medical examination"). It might surprise you to know that this torture is quite common, and happens to every new "guest" of the place.
What was his crime that justified such horrors? He was accused of "injuring no person". You see, his "papers were not in order." He was caught driving with an expired driver's license. That's all. Shocking but true. It happens every day in every big city and every little town all across America. Don't believe it? The man was the author of this document. Don't care? Think "criminals deserve whatever they get"? Believe this: It could happen to YOU tomorrow, for something just as trivial.
Interested? Good! Read on...
The author asserts the legal system in the United States (as in many other countries) is horribly corrupt, as it jails and tortures innocent non-violent people, while violent people go free. Our legal system destroys careers, lives, and families of decent citizens. Ignorance of our country's Founding Principles perpetuates the injustice.
Here are some interesting facts, from Dec 1999 study by the Justice Policy Institute:
The author contends that one cause of these statistics is that in many or most of these cases, the "offender" was not properly arrested, according to the United States Constitution. This document describes what "properly arrested" means.
There is little good information available in public schools, colleges, libraries, or law textbooks, or from the corporate media on this subject, however, much DISinformation is available.
Everyone gets outraged upon learning the police use "racial profiling" to decide who to detain, search, etc., but never do we hear about what would define a *proper* police action. This document attempts to fill the void. It is presented as an alternative viewpoint.
This document is likely to arouse a bit of controversy ;^)
"We must learn to live together as brothers or perish together as fools." -- Martin Luther King
This tract provides needed knowledge of the law, but knowledge of the law is not enough. A great moral paradox is caused when those demanding freedom from harm from the government, by their chosen manner of living, cause harm to others.
"To use violence is to already be defeated." -- Chinese proverb
"Non-violence leads to the highest ethics, which is the goal of all evolution. Until we stop harming all other living beings, we are still savages." -- Thomas Edison
If you live your life following the principles of Non-Violence, you will always stand on the highest moral ground. This does not mean that you should be a victim to oppression; quite the contrary.
Mohandas K. Gandhi taught that the way to achieve a free and peaceable society can only be through mutual cooperation and kindness, and active, yet non-violent resistance to those that would cause injustices against us. He called this protest "Satyagraha". The force of truth and righteousness is more powerful than any gun.
Brief Words on Religion
"This country was founded as a Christian Nation!"
is not nearly as accurate or as helpful as
"This country was founded on the principles of tolerance and religious liberty for all".
So can we please stop with the "Christian Nation" mantra? There are all kinds of religions here, then and now: Moslem, Quaker, Jew, Shaker, Hindu, Taoist, Luciferian, Mennonite, Trekkie, Witch, Hopi, Unitarian, Deist, Atheist, Sub-Genius, Pagan, Deadhead, Moonie, Polytheist, Wiccan, Humanist, Universalist, Arawaki, Gnostic, Agnostic, Slacker, Buddhist, Peyoteist, Rastafarian, SomaSeeker, Bozoist, Fooist, etc... Who is to say which one is better?
We are here to discuss how people in a civil society should *act*, not what they should believe. Here is the rule:
Any religious practice or belief should be tolerated by all other religions, with one exception: If the practice causes injury to others.
The author of this document is not an attorney. In fact, the author asserts that much of the misinformation disseminated regarding this subject matter is due to the particular monopoly that attorneys enjoy over our legal system.
This document should not be considered legal advice, and is provided for its educational and entertainment value. The reader is encouraged to research the arguments provided herein, and make judgements accordingly.
The gentle, adult reader assumes all responsibility. (...thus becoming Sui Juris: responsible, self-owned, autonomous, not a ward, able to make friendly contracts in public, free :)
Other Sources of Information:
There is a loose band of people around the U.S. who regularly meet who talk about these topics. They sometimes call themselves Patriots, Libertarians, Constitutionalists, Militia, Freedom Fighters, Anarchists, etc. Seek out these folks for their law knowledge. (other info you get, use at your own risk/peril :)
LIST NOT MEANT TO BE COMPLETE
For information on Non-Violence or Civil Disobedience, study: Mohandas K. Gandhi, Henry David Thoreau, and Martin Luther King.
Also especially interesting is a possible rational/mathematical basis for cooperation/non-violence discussed in Douglas Hofstadter's Metamagical Themas ("Prisoner's Dilemma" series, based on the work of Richard Dawkins and Robert Axelrod).
This document is dedicated to victims of Government Violence, Church Oppression, Military Muscle, and Corporate Coercion in all countries; to all political prisoners everywhere (not just in America); to all people who are jailed, not because they've caused injury, but because of what they think, say or believe, or what books they read, what music they listen to, or what mutually consensual activities they are involved in, whatever their nature.
Special dedication to those jailed Freaks, and Outcasts, guilty of non-violent so-called "drug crimes", which may be better defined as:
You [we] are all God's children.
"And when all the broken hearted people, Living in the world agree, That there will be an answer: Let it Be" -- From a Beautiful Hymn by John Lennon
Special thanks to Marc Visconte ([email protected]), for spelling corrections, and for other very good suggestions. The RTF version is due to Marc's inspiration.
Thanks to Seth Golub for his txt2html, and Larry Wall for his Perl; both were used in creating the "official" HTML version. (This should not be considered an endorsement on their part.)
Thanks to those generous many who shared their knowledge with me.
2.0 Sections rearranged from prior version to put important stuff first.
Lawful Arrest FAQ -- Version 2.2c -- 08 Apr 2001
|Section 1: Lawful Arrest|
|1.1 What are the elements of a lawful arrest, detainment, search, or seizure?|
|1.2 What is "Probable Cause"?|
|1.3 What is a "Standing Army"?|
|1.4 What are "standing orders"?|
|1.5 You can't expect the police do nothing until AFTER a crime occurs!?|
|1.6 What is "Oath or Affirmation"?|
|1.7 Isn't "committing a crime" the same as "violating the law"?|
|1.8 What is a "Warrant"?|
|1.9 What is a "Cause of Action"?|
|1.10 What are "Miranda Warnings"?|
|1.11 Doesn't the U.S. Constitution only apply to the Federal Government?|
|1.12 Are Police un-Constitutional!!?|
|1.13 Is Jail "cruel and unusual"?|
|Section 2:After: Judges / Juries / Lawyers / Courts|
|2.1 Should I hire an attorney to represent me in court?|
|2.2 What is an Attorney At Law? What is an Esquire?|
|2.3 How do I "represent myself"?|
|2.4 How should I plead: Guilty, Not Guilty, or No Contest?|
|2.5 Judge or Jury?|
|2.6 What is "Jury Nullification"?|
|2.7 What is a Grand Jury?|
|2.8 How long can they hold me without charging me?|
|2.9 What is the Writ of Habeous Corpeus?|
|2.10Why won't my attorney argue my case on Constitutional grounds?|
|2.11What is a jurisdiction? What are the different kinds?|
|2.12What is "Due Process"?|
|2.13How does the Constitution help me?|
|2.14Why do they speak Latin in court? I don't speak Latin!|
|2.15What is Double Jeopardy? What is "Multiplicity"?|
|2.16 Aren't these just your opinions? Aren't you are misquoting the Constitution?|
|Section 3: Basic Principles: Rights and Powers|
|3.1 What are my most basic rights as a living person?|
|3.2 Are rights only for men?|
|3.3 Are there any limits on the exercise of a right?|
|3.4 Is there a right to a job/health insurance, etc?|
|3.5 Does a corporation have rights?|
|3.6 Can the State be a crime victim?|
|3.7 What is a right vs. a privilege?|
|3.8 What is a license?|
|3.9 Do I have a right to defend myself?|
|3.10 Do "property rights" exist in nature?|
|3.11 Can I give up a right?|
|3.12 Where does government power come from?|
|3.13 What are "inherent powers"?|
|3.14 Where does the Police power come from?|
|3.15 Why don't they teach this is public schools?|
|Lawful Arrest FAQ -- Version 2.2c -- 08 Apr 2001|
For your reference: Here is the Fourth Amendment of the United States Constitution:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Perhaps you should memorize it!
So, according the Fourth Amendment of the United States Constitution, the elements are as follows:
(NOTE: the ordering is important! 1 and 2 should happen before 3, and 3 before 4.) This means, in common language:
Yet today, here is what usually happens:
This is explained further below.
(Note: other Amendments discuss what is supposed to follow after the arrest: presentment before and accusation by the people: the Grand Jury indictment, and trial by the people: the petit or trial jury. READ THE CONSTITUTION!)
1.2 What is "Probable Cause"? back to top
"The officer had *probable cause* to believe that the person had violated a law."
Probable cause is NOT a simple synonym for "reason", yet this is how it is used most often.
Law dictionaries often define Probable Cause as "A reasonable belief that a crime has been committed."
While this is close, it is not adequate, as we will soon see...
If this *were* the definition, then the most common usage wouldn't make sense! Make the replacement in the above phrase:
"The officer had *a reasonable belief that a crime has been committed* to believe that the person had violated a law."
Huh? Something is wrong here.
Now, if "probable cause" is simply "reason to believe a crime has occurred", then it offers the people little protection against harassment, given the number of obscure "laws" on the books that the people are subject to. Such a definition would give the police wide powers to detain just about anybody for any reason at any time. Hmmm....
Also, there is a common misunderstanding as to the definition of "crime". Many people think that a crime is a "violation of the law", but this is a circular definition! Which came first, law or crime? If crime is "things which the law prohibits", and law is "that which is crime", we have self-reference, a tautology, begging the question, a circular reference. Anyone who has studied logic will tell you that this has no meaning at all. (see any logic text, or www.wdv.com/Writings/Stories/TheRules/fallacy.html)
The Founding Fathers wrote *probable cause* and not "reason to believe that a violation of the law occurred", because they were *defining* the law! They obviously meant something different.
We must all *begin* with an agreement of what is a crime BEFORE we codify the Law, or else we end up with a meaningless law that refers to itself, corruption of the courts, legislature, and the police, and people going to jail for absurd things like "possessing forbidden flowers", "not having proper paperwork", "having a bad opinion about the court" or "talking about doing something really nasty". (Wait! That IS what we have today...)
So, let's come up with a USEFUL definition of crime:
The body of a crime (Corpus Delicti) must have 2 components [from Gifis]:
A crime is an injury caused by criminal agency (not an accident or act-of-god). You can injure someone accidentally: not a crime. Someone can get hurt from a falling meteorite: not a crime. Someone causes an injury intentionally: *this* is true crime.
Now replace this in the dictionary definition, and we have the following:
PROBABLE CAUSE *IS*:
So if a civilian complaintant, and a body of the people such as the Grand Jury, can reasonably assert:
"The accused PROBABLY CAUSED the injury to the victim", then we have met the Constitutional requirement, and the origin of the phrase becomes clear. (It could alternately be interpreted as "Probable Cause of Action", but it is no different, since a "cause" is a claim, and a claim requires a right, an injury, and a petition for restitution)
Finally! Now that we know what *probable cause* really is, now we can define what is required to show or determine probable cause:
PROBABLE CAUSE *REQUIRES*:
There is really more to it than this; for example, certain human-caused injury may be simple accident, thus it should be shown that the injury was intentional and malicious.
But here is the *really* important thing to remember:
If there is NO VICTIM, or the "victim" has suffered NO INJURY, there can be NO PROBABLE CAUSE. Most police detainments in the United States these days begin as traffic "offences" (there is no offended party): Speeding, safety checks, no seat belt, expired tags, etc. In the absence of any injury, these all lack Probable Cause, and are thus, unConstitutional.
Think: "He PROBABLY CAUSED the Injury to the Victim".
1.3 What is a "Standing Army"? back to top
An Army (an armed force) can be called up by volunteers from the community *as needed* when there is some threat, such as the threat of invasion. This is called the "Militia".
But a Standing Army is a paid, armed military force that exists before there is any threat. A Standing Army that lives among the citizenry is most likely to be used against the citizenry. Our present system demonstrates this.
While none of the Founding Documents mention the word "police", our Municipal, City, County, and State Police fit this description of a Standing Army. The Founding Fathers are on record for opposing the abuses of Standing Armies:
"[The King of Great Britain] has kept among us, in times of peace, standing armies without the consent of our legislature. He has affected to render the military independent of and superior to civil power... For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states ... For depriving us in many cases, of the benefits of trial by jury, For transporting us beyond seas to be tried for pretended offenses...." -- Declaration of Independence
"No State shall, without the Consent of Congress, ... keep Troops, or Ships of War in time of Peace" -- United States Constitution, Article I, Section 10
"The objections which have been brought against a standing army, ... may also at last be brought against a standing government. The standing army is only an arm of the standing government. The government itself, which is only the mode which the people have chosen to execute their will, is equally liable to be abused and perverted before the people can act through it." -- Henry David Thoreau
A Standing Army (or police) with Standing Orders define a Police State, Marshall Law, or military rule. This condition was recognized by our Founding Fathers as perhaps the greatest single threat to the blessings of liberty for ourselves and our posterity.
1.4 What are "standing orders"? back to top
Military Troops, Police Forces, etc. follow the orders of their commanders, and these orders come in 2 varieties: Direct Orders ("You go do this now!") and Standing Orders.
A Standing Order is a "general order" to be obeyed if some condition comes into existence in the future. Note that a standing order is made at some time prior to the event, and is non-specific as to the name of the accused.
"ARREST ANYONE YOU SEE JAYWALKING!"
"ARREST MR. JOE R. BLOE, 123 MAIN STREET. HE IS ACCUSED OF ROBBING HIS NEIGHBOR, JANE DECENT, WHO HAS SIGNED A COMPLAINT AGAINST HIM."
Police officers today generally have (or *think* they have!) standing orders to detain, search, and/or arrest those *they feel* violated a law. The Founding Fathers were very much opposed to this kind of discretionary power being placed in the hands of ANY one person (and is evident by the general design of the Federal Government: the distribution of power across 3 branches, the system of "checks and balances", etc.).
The Founders intended for there to be a civilian defense force, and for it to be reactive to the needs of the people, for they knew that an autonomous (self-directed) police force or standing army is ultimately unaccountable to the People, and uncontrollable by the People, and thus a thing to be feared. They knew, because they were occupied by a tyrannical force, the English Army. Today, the conditions are similar, however, while it isn't a foreign army that occupies us, the abuses against the people are the same.
There are 2 elements of the Fourth Amendment that were intended to prevent Standing Orders from being executed against the people:
The first is the "oath or affirmation": A sworn civilian complaint, and the second is that warrants must be specific. Both are intended to remove the discretion of arrest/search/seizure from the arresting officer, and provides the needed "checks and balances".
If the complaint MUST ALWAYS come from a civilian (i.e., not the government; not the arresting authority) this eliminates the invocation of "general" or standing orders (and a big conflict of interest!), and ensures that the Police Force is *reactive*, and not self-directed. If ALL arrests/searches/seizures are documented with the specific justifications of the action (the warrant), this also removes the arbitrary discretion from the officer.
The Fourth Amendment requires both specific Warrants and that the complaint be initiated by a civilian, and thus prohibits the police from executing "Standing Orders" against the people. However in modern America, when the police arrest someone, there is rarely a specific warrant, and rarely is there the "oath or affirmation" of a complaining civilian. The lawyers, political pundits, corporate-owned "free press", and even college textbooks will argue why this is "necessarily so", but the simple fact remains:
1.5 You can't expect the police do nothing until AFTER a crime occurs!? back to top
This is exactly what we should expect!
If the government acts BEFORE there is a crime, this is known as "Prior Restraint", or "Restraint Before Injury", which the Supreme Court has decided (in many decisions regarding free speech and free assembly) to be Unconstitutional.
Even the police know this! Often times when called to a scene, perhaps a domestic dispute, they will refuse to take a person into custody until that person commits a crime (causes injury).
Besides, how can the police *know* that a crime *will* occur (in the future)? Are they clairvoyant? Do they have crystal balls and know the future? Certainly not.
The role of the police as agents of "Crime Prevention" is a myth. It may be a reasonable goal for Superman with his super powers; but when mortal men try it, they *always* violate the rights of innocent people.
1.6 What is "Oath or Affirmation"? back to top
This is the sworn complaint of a civilian; it is the accusation of wrong-doing.
Why must it come from a civilian? Because there is a HUGE conflict of interest if
The design of the United States Government as described by the Constitution made it quite clear that the designers intended WE THE PEOPLE to be in control and the beneficiary of each step of the way:
In the days before the Constitution was written, the Colonists were being accused, arrested, and transported "beyond the seas to be tried for pretended offences" [Declaration of Independence] by the British government.
(Note: While it doesn't say what a pretended offence is, one could guess that it is like "Failure to pay the Tea Tax", where the government is the plaintiff/complaintant, and there is no victim. Hmmm. Sound Familiar?)
The Founders made this requirement of the Sworn Complaint of a civilian as insurance against tyranny. It was common in those days that there was no civilian complaint; the people were often arrested for "Violations of the King's Law" by the King's Standing Army, because of Standing Orders to do so. (Do you see a similarity to an occupying Police force who have standing orders to arrest violators of the State Law?!)
Now, there may be extreme circumstances when decent people sitting on a jury may waive the requirement of the complaint of a civilian, such as if a police officer witnesses a murder (and the victim is unable to complain!), but one might imagine that these cases should be uncommon, and the officer should be prepared to answer to a public inquiry on the matter.
"For in a Republic, who is 'the country?' Is it the Government which is for the moment in the saddle? Why, the Government is merely a servant - merely a temporary servant; it cannot be its prerogative to determine what is right and what is wrong, and decide who is a patriot and who isn't. Its function is to obey orders, not originate them." -- Mark Twain
Today, most police and judicial actions are *not* initiated by the complaint of a civilian. To cover up for this fact, most court summons or indictments are listed as
"THE STATE OF TEXAS vs. JOHN HENRY DOE"
...as if to imply that even though the courts are acting without the complaint of *just ONE civilian*, they are somehow representing the interests of "all the people".
1.7 Isn't "committing a crime" the same as "violating the law"? back to top
No. "Crime" traditionally has *not* been defined in terms of the Law, moreover, it *cannot* without leading to paradox.
If the law is the "prohibition of crime", and crime is "that which the law prohibits", we do not come closer to an understanding of anything. It is a tautology: A circular definition!
Crime must be defined in terms the victim's injury. This is known by the Latin: "Malum In Se", meaning "Evil of itself", true crime. Thus, if there is no injury, there can be no crime.
"We suspect he's involved in ... FREELANCE SUBVERSION!" -- from Terry Gilliam's film Brazil
The facts of the crime are collectively called (more Latin!) "Corpus Delicti" [From Gifis]:
Here are examples of true crime, which always produces a victim with injury:
Conversely, Laws ("Malum Prohibitum") are seldom defined in terms of victims or injury. These are all examples of common violations-of-law for which there is no *guaranteed* victim-with-injury:
Judge: You are accused of "injuring no person"! How do you plead?"
Accused: I try to "injure no person" at all times, m'Lawd!
In fact, certain categories of law are not defined in terms if the severity of act, but in terms of the severity of the punishment!! (e.g., Felony, "Capital Offenses", etc.) Thus, ridiculous as it might seem, *if* the punishment for spitting on the sidewalk was death, it would be considered a felony!
Which leads the author to ask:
IF YOU HAD TO CHOOSE,
The author suggests that a truly free, thoughtful, and civil society shouldn't give a damn about one, but care very deeply about the other.
WARNING! Once you realize this simple fact, it may change your entire world view. You may stop eating cheeseburgers, for example ;^)
1.8 What is a "Warrant"? back to top
A justification or reason to arrest/search/seize, which exists *PRIOR to the arrest*, usually described in a document. The Warrant describes exactly what is to be searched, or who/what is to be seized (and why!). All proper arrests, searches, seizures need this in order to be valid (except perhaps for some extremely rare circumstances).
We often hear today of the multitude of conditions under which a warrantless search or arrest can happen. "It's OK, you see! The courts have approved it" (which, by the way, is the same court that makes a "fine" profit when you are found guilty of the charges).
A Warrant is more than a piece of paper. (And under the present system, having the Warrant issued by a judge is like putting the wolf in charge of protecting the sheep!)
Look up the word in any dictionary. Warrant means "justification, reason". If there is no Warrant for arrest, there is no "just reason" for arrest. There is no just action.
Imagine a world where a Warrant is not needed! If there is no Warrant to arrest, then there is no proof of a valid reason to arrest. In such a system, nothing would prevent the Occupying Force from setting up blockades, and searching every ship (or automobile!), and taking/impounding/stealing anything they please. This common event today is what the Founders were trying to prevent by the Fourth Amendment requirement of a specific warrant.
Note that the officer often obtains a "consent to search" by asking, "Do you mind if I search your car?" This may appear to waive the Constitutional requirement for a Warrant, but it is very much in violation of the spirit of it. Many people feel coerced into consenting, because of fear of the consequences. Also, many people feel that not consenting to a search implies guilt.
Further violations of the spirit of the Constitution: Having a dog or x-ray instruments, etc. perform the search; Requiring "implied consent to search" in order to obtain a Driver's License, etc.
1.9 What is a "Cause of Action"? back to top
This can be thought of as "The Cause of Police Action", or "The Cause of State Action". From [Gifis]:
"Claim in Law sufficient to demand judicial attention."
The elements of a valid Claim are:
Once again, we see that before the force of the people/government (the Police, the militia, etc.) can act, there should be an injured victim, and a complaint by the injured party.
This notion has a long history, and is derived from concepts in Common Law, the long unwritten legal code of our ancient European ancestors.
1.10 What are "Miranda Warnings"? back to top
The courts have decided (in Miranda vs. Arizona) that for a proper interrogation to occur, the accused must be informed of certain rights, such as the "right to remain silent". This comes from the Fifth Amendment (the right against being compelled to be a witness against oneself). Also in Miranda is the "right to an attorney". This comes from the Sixth Amendment: that the accused has "right to the assistance of Counsel" Note: the Sixth Amendment never mentions the word attorney. A Counsel might be your wife, your neighbor, your friend, your landlord, or your boss, anyone you talk to for advice.
[A particular perversion of the readings of these two amendments commonly happens in court: You are *required* to be silent, and you are *required* to hire an attorney to speak for you in court. By the way, your State Licensed Attorney will almost never argue a case on Constitutional grounds. Hmmm. Coincidence? Go figure...]
In actual fact, Miranda is used as a trick to get you agree to waive or forfeit some of your rights! The text of the trickery is highlighted below.
Note: The police do not need to read you Miranda in order to arrest you, but they must inform you of these rights before they question you.
Note: There is no "requirement" that one be notified of other rights, such as those described in the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, or Tenth Amendments, or of the Declaration of Independence. All of this may be relevant to interactions with the Police, Courts, etc.
Here is the text of Miranda:
"You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to an attorney, and to have the attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand AND WAIVE THESE RIGHTS?"To which you answer:
I understand my rights and WAIVE NONE OF THEM. Furthermore, I *demand* that all of my natural and common-law rights as denoted by my Constitution be respected.
1.11 Doesn't the U.S. Constitution only apply to the Federal Government? back to top
No. The U.S. Constitution binds what the States can and cannot do in many places (example: Article I sec, 9-10), and the Bill of Rights.
Even in places where it specifically mentions the Federal Government, it has widely been interpreted as applying to the States as well. An example is the First Amendment:
"Congress shall make no law ... abridging the freedom of speech..."
Despite the language "Congress shall make no law", in hundreds of cases over the last few decades the Supreme Court has upheld that the right to free speech (as well as the others listed in the Bill of Rights) are so sacred to us as a people, that the State Governments have been compelled to not trod upon them.
Now what about corporate employers? Are they exempt for being compelled to observe and respect the rights of their employees? Perhaps, but consider that corporations are created by their "State Charter". In this way, the "private corporate business sector" might actually be considered a branch of the government. Corporations certainly are a creation of the government!
Remember, you cannot convey a right which you don't already have. Thus, if the State has no right abridge the freedom of speech, they cannot create an entity (like a corporation) which *does*.
1.12 Are Police un-Constitutional!!? back to top
Well, perhaps State Police are. Don't Believe it!?
"No State shall, without the consent of Congress, ... Keep Troops or Ships of War in Time of Peace...."
Keep this in mind the next time you get stopped and accused of the crime of "possessing improper velocity" by a STATE TROOPER!
It is clear from the founding documents, that the Founding Fathers considered any occupying government police force one of the greatest threats to liberty imaginable. The Founders imagined that instead we should have a local, civilian defense force, made up of every able-bodied man in the community, called the militia.
Notice the words "without the consent of Congress". This could explain the Presidential edicts to "Fight the War on Drugs", "Fight the War on Poverty", "Fight the War on Illiteracy", etc., and the laws passed by Congress to fight these bogus "wars".
OK, this question really isn't asked all that frequently ;^)
1.13 Is Jail "cruel and unusual"? back to top
Jail is certainly cruel: In the South, you start out in 130 degree F. mobile sweat box and they deny you fresh air. They find this "mellows out" most detainees. In the North, they use cold similarly.
They strip you and make you spread you cheeks for inspection. They hose you with water. They are always yelling at you. Sometimes, detainees get "roughed up". Who's to know? You are deep underground in cement caves with thick walls and steel doors and 24 hour buzzing flickering fluorescent lights. Inmates shouting, echoing cries, screams, assaults, suicides, retching heroin addicts at your feet...
You sleep in overcrowded dungeons sometimes on the floor. The place smells like piss. The toilets are sometimes dirty. Even the clean water is foul.
Depending on what you say, they can take you to a special ward, named after YOU since after all, you are now a Ward of the State, right? They claim the just power to inject drugs into your body against your consent. They strap you to a bed and forget about you. Commonly, people in jail are tortured in ways that are almost unspeakable.
So, cruel? Yes. Unusual? Unfortunately, no.
Lawful Arrest FAQ -- Version 2.2c -- 08 Apr 2001
Section 2: After: Judges / Juries / Lawyers / Courts back to top
You tried to live a good and moral life, and you would never intentionally cause any injury, but nevertheless, you now find yourself in the "belly of the beast". Now What?
2.1 Should I hire an attorney to represent me in court? back to top
This is an ancient legal maxim: "A man who represents himself in court, has a fool for a client!" But I've got one of my own:
"HIRING A LAWYER TO REPRESENT YOU IN COURT IS A BIT LIKE DECLARING YOURSELF TO BE INSANE."
REPRESENTATION DIMINISHES "SUI JURIS" STATUS
Part of being free is having "Sui Juris" status: A responsible adult with the ability to make friendly contracts in public. Insane people are declared Non Compos Mentis, thus Non-Sui Juris, prohibited from making friendly contracts in public, prohibited from managing one's own affairs. They become wards of the State. (I'm not saying this is proper, just that it *is*.)
Now, when you ask a lawyer to "represent you", that is, you assign someone your "power of attorney", you are diminishing your own "Sui Juris" status, as the lawyer (your agent) now can sign your name, negotiate deals with the judge, engage in contracts, etc., without your knowledge or further consent!
Your lawyer "acting on your behalf" has degenerated into "Acting/Speaking for You". In court it is even worse: "You are forbidden to speak/act for yourself". These days, you MUST have an agent in court. You are forced / compelled / coerced to delegate part of your essential liberties (your power to contract) to this fellow, licensed by the same State that made the accusation against you! Yes, and the same State that will grab a tidy sum of your money when you are found guilty. Fair system, huh? ;^(
You have been tricked into becoming a ward. You have been deceived into *thinking* you are no longer free. You are required to hire your State Licensed "advocate" (who is not even sworn to tell the truth in court) to do all your talking for you. He is not your advocate. His only interest is in getting paid, not offending the judge or the monopolistic Bar Association, and thus, keeping his job, and making his Mercedes payment.
(You should know that your ultimate responsibility is non-delegatable. It is YOU that will go to jail upon a guilty verdict, NOT the lawyer! And. he gets paid even if you are found guilty)
DRIVERS: YOU MUST DECLARE YOURSELF INSANE, BY LAW!
Also interesting is "liability insurance", like the kind required "by law" in the event that you want to pilot an automobile without harassment. Having insurance is like saying, "I am not responsible for my future actions; my agent is". Let me say that again. Having liability insurance is like saying, "I AM NOT RESPONSIBLE...". Remember that Sui Juris status is a *responsible* adult, free to make contracts at large, in public.
Thus, hiring an attorney, or having insurance, is similar to saying, "I am not responsible. I am not able to manage my own affairs. My agent will act for me. My agent will engage in contracts on my behalf. I am not a free adult, but I am a ward".
DO YOU TRUST YOUR REPRESENTITIVE?
As a last sidebar, it can be now shown that in this way, a *representative* democracy (a republic) is inferior to true participatory democracy. Don't be tricked into fearing "mob rule"; the Constitution asserts and protects individual rights. (You might suspect someone critical of Democracies as advocating substituting a different despot for the one you've got now!)
Our republic was the only practical form of the ideal democratic state that could have existed 100 years before automobiles and 200 years before the Internet ;^)
Hiring an attorney is a personal decision, and now that you understand the issues, you can make an informed decision. Do so if you think it is in your best interest. Frankly, this may be the path of least resistance.
For real excitement, bring a legal expert along as your "Counsel" who is not a state-licensed attorney. This is your right. Be prepared for a charge of "having a bad opinion about the court" (contempt).
You can also "appear before the court as your own proper person". DO NOT say that you are REPRESENTING YOURSELF. This is a trick like "have you stopped beating your wife". (explained below).
You can also try this: Hire an attorney as your counsel, but DON'T give him general power of attorney (you could outline exactly what the attorney is to do, or not do). YOU do all the talking in court, YOU defend yourself as you see fit, and require your agent to advise you only.
No matter what you choose to do, stay calm, do your homework, be prepared.
2.2 What is an Attorney At Law? What is an Esquire? back to top
I bet you didn't know this!
"At Law" means "governed by the rules of law", as opposed to the rules of "equity" (contracts). An "Attorney at Law" is by definition an "officer of the court". He essentially works for the court. He is granted the right to work by permission of the court, in the jurisdiction of the court.
Is such a man without bias? Can such a man defend you properly!? NO!
A very interesting topic to research on your own: The is evidence to suggest that the United States is still under British rule. Evidence? Many or most lawyers use the title "Esquire", which is a title of the English gentry. Like "Count", or "Knight", etc., it is granted by the reigning Monarch. The use of such a title in a court is evidence that the Constitution is being subverted, replaced by the King's Law. The English Gentry believe that the people are not sovereign, but the Monarch is.
David Dodge has uncovered a very interesting fact: there appears to be a missing Amendment of Constitution, and may have been properly ratified. It is the so-called "Titles of Nobility" amendment, and it appears to forbid lawyers from serving in public office. It would have been the 13th Amendment. If you search the internet you should be able to find his research, or check out the back issues of the Anti-Shyster.
This topic has been known to get lawyers pretty agitated:
The usual crap 'bout the "Titles of Nobility Amendment" which was not ratified and would do nothing of the sort. For a comprehensive look at the bizarre myths some hate groups have created about this "amendment": http://www.nyx.net/~jsilvers/nobility.html Clear sign that the poster/author of this "FAQ" is a nutjob. -- [email protected] (quoted in news:misc.legal)
"Hate Groups". I guess "tennish" wasn't paying attention when we were speaking about non-violence, huh? ;^)
2.3 How do I "represent myself"? back to top
You should never say that you "represent yourself" ("Pro Se")! This is a trick to get you to think you have given up your rights. If you do not have a lawyer, you are "appearing before the court as your own proper person". ("Pro Per", or "In Propria Persona").
Here is the trick:
This is an important distinction. You can appear before the court as your own person, without an agent/representative and STILL have someone who gives you advice!
What is the basis for the State-sanctioned monopoly of the Bar Association, especially when you grievance may be with the State? Let's open up the practice of law to good old fashioned American Competition!
So, if you say "I Represent myself", then the judge will usually say, "Then, you waive your 6th Amendment right to Counsel?"
To which you calmly reply: "I assert all of my rights and waive none of them. I respectfully demand that this court recognize all of my rights under the Constitution. I appear without representative, but I still assert my right to the Counsel of my choosing. My Counsel will advise me, but will not represent me."
2.4 How should I plead: Guilty, Not Guilty, or No Contest? back to top
This answer comes primarily from research by Richard Nagol, and appeared as the "Generic Plea, Criminal" in the AntiShyster magazine, June 1991, and Jan/Feb 1993 issues.
If you enter any plea, you are accepting the jurisdiction of the court. If you hire an Attorney, At Law (an officer of the court), you are implicitly accepting jurisdiction of the court.
A perfectly valid tactic is to cry "NO JURISDICTION!", and the Court must prove subject matter, geographic, and personal jurisdiction over you. You appear before the court not because you accept it's jurisdiction, but because of threats of incarceration, loss of work, fines, all of which constitute threats to your life and family, etc. You challenge jurisdiction in ALL matters before the court.
You must state, "I assert all my rights under the Constitution and under Common Law at all times. I wave none of my rights". If the Court fails to observe your rights as a free and natural person in every respect, the court becomes renegade to the Constitution of the United States, and loses all jurisdiction over you, the accused.
Supposedly, one cannot be incarcerated by the court unlessone has Counsel at trial. Thus, you should never sign a waiver to Counsel.
If you must enter a plea, REMEMBER THIS: If you enter a plea of Guilty or No Contest (or plea bargain, or "cop a plea"), then you are WAIVING YOUR RIGHT TO TRIAL BY JURY. If you are innocent of wrongdoing, if you haven't hurt anybody, you must plead INNOCENT and get a jury trial.
2.5 Judge or Jury? back to top
Always, always, always get a trial by jury. NEVER "plea bargain", as by pleading guilty to a lesser charge, you are waiving your right to a jury trial, which is probably your only hope of getting a fair trial.
If you do not get a jury, the Judge will find you guilty. This is called a "Summary Judgement". Yes, he may find you innocent, but it is rare. Why should he? The court keeps your money if you are found guilty, and is thus BIASED. That's right, if the court makes a profit from the guilt of the accused, then THE COURT IS BIASED. Your money goes into the "general fund", which pays the judges salary, and buys police cars. Is this fair?
Remember the words of Sunshine George:
"Pay close attention to what they say, and then follow the money"
In the ancient days of England (where our legal system originates), there were no juries. They had the Star Chamber, where those accused were beaten into confessions, and the masked man dressed in black robes spoke your sentence in Latin. The abuses of the Star Chamber were well known to the Founding Fathers, and caused them to require Grand and Trial Juries in the Bill of Rights.
2.6 What is "Jury Nullification"? back to top
Please seek out the Fully Informed Jury Association! (www.fija.org/). Also, Whitten's Citizen Rule Book has good info on your rights and responsibilites as a juror.
When you sit on a Jury, you have more power than as almost under any other capacity as a citizen, 1000 times more power than when you vote. You have more power than the judge, than the legislators, than the police. You have a right and a duty to judge the facts according to the law, AND TO JUDGE THE LAW ITSELF!
Jury Nullification is when a jury nullifies bad law. A jury can say "not guilty" for ANY reason, especially if the jury thinks the person violated a law, but finds that the law was a bad one.
Research what happened to Edward Bushnell, who sat on the jury of William Penn, accused of practicing an illegal religion.
Also research how Jury Nullification helped eliminate prohibition. (Well, of course I mean *alcohol prohibition*. we still have prohibition today, just a different kind!)
2.7 What is a Grand Jury? back to top
Here is the entire 5th Amendment, for your reference:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
A Grand Jury is a body of the people whose purpose is to:
If the police arrest a woman based on the complaint that "she turned me into a newt!", and if this is considered a serious crime (like if the accused is faced with any jail time), then this accusation should go before a body of the people, the Grand Jury, BEFORE it goes to court. The people see that the injury is false, and have the accused released.
2.8 How long can they hold me without charging me? back to top
This is not clearly defined, but the trial should be "speedy and public". Here is the 6th Amendment, for your reference:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
If they put you in jail, or threaten you with jail, then they are treating you like a criminal, and the 6th amendment applies. Notice that is says you have a right to "the Assistance Counsel", and not "you are required to have an officer of the court do your speaking for you".
2.9 What is the Writ of Habeous Corpeus? back to top
It is a petition by the people to the court. It is called the Great Writ. It means "Why are you holding this person!?" It is a demand to show just cause of action, or release the person from custody.
These Writs are RARE these days, and no one seems to understand how they work. People will tell you that they must be issued by a judge, which is absurd, if it is the judges that are corrupt!
If there is corruption of the cops, courts, etc., and someone is jailed unjustly, then try to get the Grand Jury to issue this Writ. The Grand Jury is really just "The People", which is you and your friends and family. Create your own writ. Post it up in front of the Courthouse, jail, and police station. Demand the release of the innocent. Demand due process!
2.10 Why won't my attorney argue my case on Constitutional grounds? back to top
2.11 What is a jurisdiction? What are the different kinds? back to top
The Constitution defines 3 jurisdictions of lower courts, and a very limited federal jurisdiction for dealing mainly with conflicts between states. According to the Constitution, THERE IS NO SUCH THING AS A FEDERAL CRIME!
"Well, don't make a federal offense out of it!" -- Larry, The Three Stooges
Here are the 3 jurisdictions of the lower courts:
The Constitution asserts certain rights for people accused of serious crimes (criminal or capital offenses). But if you ask a judge the jurisdiction of the court you will often get a fuzzy of vague definition like "this court has general jurisdiction". They will not say that this is a criminal court, because then you might invoke your rights as a criminal suspect!
If you challenge the courts jurisdiction over you, they must prove it. They must show that they have the following:
1.12 What is "Due Process?" back to top
All of this is due process. It is probably not a complete list!
1.13 How does the Constitution help me? back to top
The Constitution won't help you. You must study and learn the Constitution in order to help yourself. It isn't easy. But you may learn that at the core, the law is really on the side of We the People.
Here is a brief guide to the Bill of Rights:
2.14 Why do they speak Latin in court? I don't speak Latin! back to top
Just like the solemn ceremonies of the Roman Catholic church, read in Latin by the highest priests, the black robed judges speak the accusations and maxims of the Most Holy Law in Latin. It is an attempt to make the law obscure, strange, intangible to the mortal man.
This is not what the authors of the Constitution wanted for We the People.
I once heard Harvey Wysong of the FIJA suggest this: Since non-English speakers get courtroom translators, when the lawyers and judges start speaking in Latin, we should demand a translator!
What is Double Jeopardy? What is "Multiplicity"? back to top
The 5th Amendment says:
"nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"
This is commonly interpreted to mean that a person can not be tried again and again for the same offence. This *does* happen today. People found innocent of a criminal charge will often be tried again in civil courts.
But there is more to it than this. There is something which happens that Marcus Anarcus calls "Multiplicity", which the 5th Amendment may be trying to prevent. Often a single "offense" will become 20 separate charges. Listen very carefully to the charges. It is very common.
Does it remind you of the old George Carlin routine about all the sins produced by simply thinking about "feeling up Ellen"? ;^)
And usually they throw some or all of these, just for good measure:
Even if the charges *seem* different, you may wish to consider that every "offense" which produces no injured victim are all really multiple counts of the same thing, the pseudo-crime of "injuring no person".
2.16 Aren't these just your opinions? Aren't you are misquoting the Constitution? back to top
Perhaps, but imagine for one moment that YOU get to design a new country. Would you design a system of slaves and masters with the expectation that YOU will get to be a master? Or do you design a system where all creatures are of equal right in the eyes of the law, and equal beauty in the eyes of God?
Do you design a system where the Police detain anyone for any reason at any time, or do you make them reactive to a civilian complaint?
"She turned me into a Newt!"
And what of the complaint? Do you allow government agents make the complaints? Do you allow someone to be jailed for being ugly? Or smelly? Or being annoying? Or by saying something unpleasant?
"Why 'you different? Why be that way? If you don't get in line, we'll lock you away..."
...Or do you insist that there be some connection between the accused and the victim's injury?
And what of the injury? Do you suggest that the police be given the power to arrest or detain those for "victimless crime"? Yes? Then which "actions which do not cause injury" are crimes? Breathing? Thinking? Moving about? Aren't we all guilty of "injuring no person" right now? Do YOU want to be jailed for nothing at all?
The time for peaceable revolution is upon us. Let's make the new system more fair, and the creatures more free. How do YOU think it should be done?
Lawful Arrest FAQ -- Version 2.2c -- 08 Apr 2001
Section 3: Basic Principles: Rights and Powers back to top
Before we can fully understand what the Police are doing wrong, we first must ask some basic questions about rights.
This section ventures into off-topic areas, so you may want to skip right to Section 2.
3.1 What are my most basic rights as a living person? back to top
Thomas Jefferson wrote these words:
"We hold these truths to be self-evident, that all men are created equal, and were endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are created among men and derive their just powers from the consent of the governed. And when any government becomes destructive to these ends, it is the right of the people to alter or abolish it."
So according to TJ, we all have the right to life, the right to be free, the right to seek happiness, and the right to resist/destroy a government that is oppressive these rights. These are the natural rights.
[Note that Jefferson asserts that these rights are "self-evident", and that he does not appeal to any particular god or religious text. While he does use the word "Creator", this has many interpretations and should not be interpreted to deny those of different beliefs their rights, even atheists. (Many of the Founding Fathers, including Jefferson, were Deists, which today might be considered a branch of Paganism).]
3.2 Are rights only for men? back to top
While the Declaration of Independence says that all *men* are created equal and endowed with certain rights, "men" is commonly interpreted to mean "mankind". A better word might be "persons", or "natural persons" (this would help to distinguish between living, breathing creatures with eyes and a brain, and "artificial persons", a.k.a., corporations, which do not deserve rights such as the right to life since they never were alive to begin with!).
"Our task must be to free ourselves...by widening our circle of compassion to embrace all living creatures and the whole of nature and its beauty." -- Albert Einstein
Our notion of "whom is deserving of rights" is constantly expanding. In the days when the Declaration was written, it is possible that Jefferson actually meant "men" so as to exclude women. Slaves and bonded servants were once commonplace and also thought to be less than a person and undeserving of rights. However, as this concept expands, perhaps one day all things with eyes and a brain will be recognized as persons and deserving to live and be free.
3.3 Are there any limits on the exercise of a right? back to top
Yes. Imagine a man whose "pursuit of happiness" involves murder. Obviously this is wrong because it infringes upon another's right to live.
If we all have the right to live and be free to do as we please, it must follow that if the exercise of one man's right violates another's, then either there are limits to the exercise of this right, or no such right ever existed.
3.4 Is there a right to a job/health insurance, etc? back to top
A right implies that an injury is always suffered when it is violated. Conversely, an injury *may* indicate a violated right (but may not, as in the case of human-caused accidents or natural disasters).
We must be careful here not to classify our petty or vain desires as rights, for if we do, then we may unintentionally introduce a huge class of "non-injuries" for the government to oppress us with.
While we all want rewarding work, there is no such thing as a right to a job. Once we do have a job, then this employer/employee relationship is bound (as are all contracts) not by criminal law, but by equity jurisdiction.
We also have no right not to be offended, and we have no right to a government handout, health insurance, or socialized medicine. These things are used by politicians to raise taxes and increase government power.
3.5 Does a corporation have rights? back to top
This is a long answer, but when people are being accused of all kinds of "pretended offenses" against corporate "victims", it is important to understand. In many ways, the oppressions against the people by the government pales in comparison to the harm that corporations cause.
WHAT IS A CORPORATION?
A corporation by definition an "artificial person", a legal fiction, let's call him 'Ersatz Ernie', created immortal by men (and the government that charters it.) The purpose is to reduce tax liability, raise money through stock sales, and to protect the personal assets and otherwise limit the liability of the human founders in the event of civil or criminal wrongdoing.
HOW DO THEY FUNCTION?
For corporations to work, they need to be endowed with the "rights" of property ownership and the ability to engage in contracts. But while we humans evidently claim to have figured out how to create artificial life, we have certainly not figured out how to endow little Artificial Abbott, Ltd., with a soul, or a conscience, or a moral code. Corporations "live" for one purpose: profit. They consume natural resources and human labor in the process.
"IF I ONLY HAD A BRAIN..."
Yep, Pretends to be Pete (Inc.), Not Really Nick (LLC), False Fran (Corp.), Made Up Marvin (Ltd), Mimeograph of Mike, Nowhere to be Found Norman, Isn't Isabelle, A Figment of Fred, Never Was Wally, Cardboard Charles, Polystyrene Pam, Surrogate Sam, Victor the Invented, Propped Up Paul, Silhouette of Alice; Substitute Sue, Spurious Steve, Pat Placebo, Mock Mike, Faux Roe, Artificial Wanda, Image of Ivan, Negative Ned, Mary the Marionette, David the Dummy, Pete the Puppet, Howard Handupme, Opposite of Opie, ...whatever, has no soul, has no moral conscience, no memories, no values, cannot suffer injury, cannot strive to seek self-redemption, cannot feel guilt or be punished. It has no consciousness and is not Sui Juris (responsible, adult) and thus is closer to insanity than other living states. Dave Ratcliffe (of www.ratical.com/corporations) calls them "corpses" as a play-on-words, and to indicate their non-living nature.
Why would such a fiend (or living agents thereof), driven by profit alone, act properly amongst living creatures? They won't and they don't.
THE LIVING DEAD? IMMORTAL ZOMBIES? back to top
In the past, corporations were created for a specific purpose, and for a certain time. Today, Corporate Charters are "indefinite". This makes our Artificial Life, immortal. We have created a God in the image of a man, so we claim.
Why should a "corp'se" be created immortal? What about punishing bad ones by revoking the charter: Corporate death? An argument can be found to say that killing any creature with eyes and a brain is wrong, but who can argue against dismantling a misbehaving machine? A corporation (or the State) is a robot, a servant, an automaton, designed and fabricated to do the will of the people. When the masters find themselves slaves to the machine, it becomes their duty to dismantle it.
BACK TO: RIGHTS OF "CORP'SES"
Lately we have also heard that corporations have the right to free speech, and the right to make a profit. We will examine these in detail, but first...
THE RIGHT TO CONTRACT
An essential right of all natural persons is the right to engage in friendly agreements (contracts), which derives from the natural right of free association (Remember when TJ talked about Life, Liberty and pursuing happiness?).
Contracts are extremely important in civilized societies. Not only are these voluntary agreements the basis of commerce ("you give me A and I'll give you B"), marriage, employment (as opposed slavery), etc., but Jefferson, Locke, Rousseau, Bastiat, and others argued that the social contract was the basis of government itself:
SINCE no man has a natural authority over his fellow, and force creates no right, we must conclude that conventions form the basis of all legitimate authority among men. -- Jean Jacques Rousseau, Social Contract
Now think about humans moving about freely and acting freely in public and making friendly agreements with other civilized creatures. Now, consider the Corporation, an Artificial Person. Can Invisible Eddie, Ltd. move about? Can something without a brain agree to something?
"Sui Juris" (Latin: "Self Law") is a legal term used for an adult natural person, able to engage in contracts The following are generally considered incapable of engaging in contracts, thus, defined to be non-Sui Juris: Children, animals, trees[*], buildings, and "the mentally incompetent". (Whom that judges what "incompetent" is another matter for further inquiry!)
( [*] It is interesting to ponder forming a contract with a tree. Can a tree honor an obligation? Perhaps! Living trees can be very reliable in providing oxygen, and homes for birds and squirrels and insects. Related: In Athens Georgia, there is a tree which owns itself. Gerry Spence in "From Freedom to Slavery" suggests that a tree may even have "legal standing". We encourage you to research and debate this notion, but we assume that only conscious beings with eyes and a brain have rights. We *DON'T* encourage you to go burn an entire forest, or destroy a species, however :^)
ELEMENTS OF A CONTRACT
Contracts are friendly promises between creatures of honor, and have the following characteristics [from Gifis]:
CAN ARTIFICIAL PERSON CAN'T SHAKE YOUR HAND
Yet a "legal fiction" is not a living thing. It is without a soul and without honor. In a very real sense, a corporation (like the State that created it) does not really exist, nor ever existed. It is not a thing at all; it cannot be touched or seen, it cannot act, and thus, it *certainly* cannot act morally, or with honor. It does not have a mind, thus cannot understand or consent. Something which cannot act with honor, lacks understanding or the ability to consent is, by definition, Non Sui Juris, and thus not fit to engage in contracts.
Natural living beings need to possess and consume the living capital of the earth (water, air, plants) and occupy land in order to sustain life.
This necessary possession, occupation, consumption of land, water, air, and plants, is the basis of the human notion of "ownership", which is more like "possession by right".
The author asserts this notion of ownership is seriously flawed in all cases. Humans owning land, humans owning animals, humans owning other humans... there is something arrogant about each of these, because the assertion of the "right" of ownership always DENYS this right to others. The denial of any proper right produces an injury. "Property rights" is a paradox!
"In India, people believe that you should give generously to beggars. Why? Because the thing was never yours to begin with. It belongs to God; so give it back to God." -- Julius Victor
But even if you accept that humans can own things, what does it mean that an artificial person can own? Can a legal fiction own property and exclude living creatures from it? Can an artificial person own cattle or slaves? Can an artificial person own an ocean? Why? This could only be for an evil purpose.
Please see a later question for other problems with so-called "property rights" in general.
THE RIGHT TO SPEAK FREELY VS. THE RIGHT TO SPAM back to top
It is absurd to think that something without a mouth, tongue, or vocal chords has a right to free speech, yet today we hear that Corporations do. Of course there is no right to corporate "free" speech, which ironically is usually *paid* advertising.
ADVERTISING IS NOT TRUTH OR FACT OR EVEN OPINION!
Advertising has interesting properties:
Consider this slogan (not to pick on one corporation over another):
"Serta. The World's Best Mattress (TM)"
Well, it sort of looks like a statement of fact:
"Serta *is* the world's best mattress."
...which itself is rubbish, for claiming to make the world's best anything is simply an opinion! Now: the opinion of *whom*? There is no antecedent speaker. No brain ever conceived this thought, except the brain of an advertising executive for sloganization, which doesn't count. Even in the ad-man's mind, it is unproven. Should we burn coal and cut trees to "expose" millions of people to an unproven, biased, and quite likely deceptive and misleading statements?
Advertising is not news, it is not truth. Advertising is not even opinion! It isn't really a lie, because only something with a brain and a honor could choose to lie. It is NOT FREE SPEECH, it is PAID SPEECH; corpo-speak; profit-speak. It does not inform, it does not educate. Should the government grant protections to this sort of "speech", especially when it is at the expense of the people expressing themselves, or perhaps should we should ban it!?
"TV: Just say NO! Why do you think they call it *programming*?" -- David Neff
The Founders couldn't conceive of Nike Ads on Television, but they wrote the First Amendment to prevent a corrupt government of giving aid to ANY entity that would subvert communications with such bias as we have today. When the government grants special protections to artificial person advertise-speak, and by not giving similar aid to natural-person free-speak, this is equivalent to establishing the Religion of Capitalism, and violates the letter and spirit of the First Amendment in several ways.
ADVERTISING: MIND CONTROL
Commercials are designed to make real persons think they are lacking, diseased, in pain, deficient, and that the product the corporation makes is the cure for this malaise. Advertising is mind control propaganda, Manchurian programming designed to make us shop. Commerce-Speak dominates and controls all media and drowns out the speech of natural persons. And since the government created the corporations, and the political candidates are funded by corporations, and the television stations are owned by corporations, and the government and banks make most of the money available to the corporations, and we need this money to pay taxes to the same state which chartered/created the corporations ...
...Is it any wonder that speech that is critical of state oppression or corporate crime is rarely heard over the din of jingles, slogans, and registered marks of trade?
"Corporate speech" is of a different nature than natural speech, and does not deserve the same protections as the speech of natural persons.
THE RIGHT TO "MAKE A KILLING" DOWN AT THE FREE MARKET
And if we consider that corporations have a right to make a profit, then we might consider "loss of corporate profit" a felony, such as assault. Of course, this is absurd! Humans are living, breathing creatures which bleed and suffer injury and thus deserve rights, corporations can not suffer injury and thus do not have rights.
3.6 Can the State be a crime victim? back to top
The state, like a corporation, is another soul-less abstraction, an artificial person. There are many such things: Charitable trusts, incorporated churches, 501c3 non-profit corporations, universities, etc.
Only natural living things with eyes and a brain are born free, and can suffer injury, and thus be crime victims.
3.7 What is a right vs. a privilege? back to top
A right is something you are born with, and you will die with, granted to you by your "Creator" (whatever you imagine He/She/It/Them to be). A privilege is granted to you by the King, General, Church, or the State, and may be revoked at any time, if one loses favor. This is usually caused by a failure "consider the king", a failure to pay the "royalty", tax, indulgence, tithe, license fee, etc.
So-called "Civil Rights" are by definition, conveyed by positive law, and thus are more akin to privileges than to natural rights. So-called "Civil Liberties" are by definition natural immunities to government interference, and are thus are more akin to proper natural rights.
Rights exist before, and are thus superior to, privileges.
3.8 What is a license? back to top
By definition, a license is an instrument conveying a right. This is, of course, absurd, except to a tyrant: Someone who wants to exersize control over another. A license is a right turned into a privilege.
The right to travel or move about freely is one such right, exemplified by the "privilege" of the driver's license. The passport, voter registration, the liberty card (used by U.S. military personal), are more examples.
3.9 Do I have a right to defend myself? back to top
While this may seem simple and obvious, it isn't, because warring parties often disagree as to who struck the first blow. One side may call it the first attack. While the other side calls it a retaliatory strike in "self-defense". Wars almost always escalate until one side is destroyed, and in a nuclear war, there may be no winners.
If the right to self-defense does exist, it should be exercised with great restraint. Gandhi taught that we should better suffer the blows of our attackers than to strike them and risk resembling/becoming creatures of violence ourselves, which of course we aren't!
3.10 Do "property rights" exist in nature? back to top
The "right" of property seems to very ancient in the minds of many peoples, and the "injuries" of trespass and theft seem very real, even to this author. Certainly, each living creature needs the use of a certain amount of "property" in order to live: land to grow food and build shelter, etc. But there are a couple of troublesome areas to point out. (As this is a sidebar to our primary discussion, we won't draw any conclusions. We leave these issues for you to explore.)
MIGHT DOES NOT EQUAL RIGHT
While a "just power" may be used to enforce a right, a power is not the same thing as a right.
Animals can be observed "staking claim" to (and defending by force) food and water sources, nesting areas, etc., but just because something is accomplished by force does not mean that a right to do so ever existed. Barbarians have attacked, conquered, and pillaged peaceful societies, by using force against them, but this does imply the right to do so.
TITLED LAND INCONSISTANT WITH COMMON USE
The Earth is a living eco-system, and for it to be healthy (well functioning), certain areas must be left in a natural state for the benefit and enjoyment of all living things. And do not all creatures enjoy the same right to enjoy life and nature's bounty (within reason)?
If all land is titled to an owner who has rights of possession, modification, and "disposal", what is to happen to the wetlands needed for water purification, or forests needed for clean air? Will every square inch of the earth eventually be devoted to shopping malls, strip mines, roads, factories, and human housing? Will all coal be burned and will all rivers be dammed to make electricity for lighted fast-food restaurant signs? Will all forests be cut to make grazing land for slave animals destined for slaughter and human consumption?
OWNERSHIP AS DIFFERENT FROM POSSESSION?
An "owner" is defined as someone who "holds title" to "property", and is entitled to quiet possession of the property at the exclusion of all others. The owner is claimed to have the right to modify, or dispose of this property.
Should every square inch of the earth have an "owner"? Does it make sense that ownership should mean something different than possession? Yes, in a world of bonded tenants and rent-seeking land-lords, but is this an ideal system, or the only conceivable one? Can an artificial person own anything?By what right?
How much land should one man be allowed to "own"? Could one rich man (or government, or corporation, etc.) claim title to everything, forcing all creatures to pay rent? Should every square inch of the earth be "owned" by someone? Who owns the moon?
SLAVES / "CHATTEL" AS OWNABLE PROPERTY?
Historically, there have been 3 kinds of property:
This last sort (#3) works contrary to our premise that all things with eyes and a brain have a right to live and are born free.
This question is of great importance for all to consider, not just for "animal rights kooks". Consider that humans have eyes and a brain and beating hearts and breathe, ... are thus *animals!* What is the basis for granting rights to *some* animals (humans), and denying them to others (cows)? What about whores? Which category do you put them in? Do whores get rights, or are they more like inanimate property? What about "niggers" or women or Jews or dope fiends or drunks or untouchables?
Where do you draw the line? And, do you obtain a different answer depending on who gets to choose?
Living, breathing, self-directed beings possessing the animating force are by definition free agents: they should never be considered the "property" of another. Certainly no such right, for one creature to "own" another, exists.
Some may say that animals do not deserve rights because they are not "moral agents". While most animals may not be "moral agents" (neither are most humans!), this is irrelevant. Moral responsibility is only a requirement if the creature is engaging in contracts. If the creature is without moral responsibility, perhaps you should not make a contract with it! If the creature is a wild savage, perhaps you should just keep your distance!
A creature with different morals than me is still free, self-directed, deserving to live. Who am I to judge the morals of another, especially if they live their lives peaceably?
Consider the cheetah: A born killer. Proper "moral agents" may consider the cheetah a savage brute, because it kills, and these same proper moral agents may feel that "even though the cheetah has not harmed me, or my family, it still should die, because it is likely to kill again."
That is, "Society should kill the killer, why? Because our premise is that killing is wrong!"
Does anyone see the contradiction in this line of thinking?
Do we kill the cheetah for being a killer, and if so, isn't the executioner a killer too, who should now be killed? When does the killing stop?
Proper moral agents have no right to kill the cheetah simply for being a cheetah. The cheetah has "cheetah nature", and every creature in the jungle understands the arrangement. The cheetah must kill in order to live.
Intelligent moral agents, who *can* live without killing, do so by their own free choice. On the other hand, intelligent creatures, who *can* live without killing, yet choose to kill for profit or other selfish motive are by definition: the true savages.
Anything that moves on its own, and cries out and struggles to be free when captured is asserting "I am a conscious agent and deserving to be free!", and therefore is. To say that "a cow is merely an animal" to justify its imprisonment is the same argument as "a slave is merely an animal" to justify his.
The animals of the world exist for their own reasons. They were not made for humans any more than black people were made for white, or women created for men. -- Alice Walker
Humans are also "merely" animals: So what? Humans have all the characteristics of other animals: living breathing creatures with a beating heart, feels pleasure and pain, needs food, air and water, self-directed, moves about and makes sounds, has eyes and a brain, etc. Possessing animal spirit is justification to DESERVE rights, not to be denied of right.
If the world is to be considered filled with owners and property (and I am not saying that it should), and, if our basic premise is *freedom, and the equal right of life and freedom for all*, then things that wiggle about, make unique sounds (name themselves?), have beating hearts and sensory organs and a central nervous system, are the OWNERS, and should never be considered the property of another.
(That being said, the remaining "property", the ownable stuff of the earth, the Body of our Mother Gaia, should never be treated with selfishness, or without reverence.)
EXCLUSIVE USE? BY WHAT RIGHT?
If you read a deed or a land title, you will see words like: "The legal holder of this title shall possess the right to quiet possession at the exclusion of all others". "Right"? By what right can any creature assert such a thing? If you trace the title to the previous owners, from where did this title originate? God? But why would God grant a greater right to one creature, at the exclusion of all others? Or is the title a legal convenience formed by mutual contract of all creatures?And if *this* is true, then did the excluded creatures agree to the arrangement? (mutual agreement is an essential element to all contracts.) Why would they agree to such a thing?
TITLES / OWNERSHIP [a] "MODERN" EUROPEAN CONCEPT
There was a time when land titles did not exist. Sometime during the middle ages, the King asserted his right to reign allegedly by divine providence: by the fiat or will of God. This "sovereign" had an army of savage thugs called Lords (the English Gentry) that fanned out across Europe and set up shop. They claimed that since the Christian God owned everything, and since the King was God's chosen representative, that all land was therefore "owned" (controlled, stewarded) by God's representative: the King.
The King granted each lord a region to control, made up of several feudal serf farmers. The lord would give each serf a "choice":
... in exchange for a tenancy, that is, to be allowed to live on the land that his ancestors had lived on for perhaps generations! Some deal!
This was acknowledged in a ceremony called "paying homage", which was denoted with a tap on each shoulder with the tip of the lord's saber, and a gentle kiss on the cheek. And what if the serf refused? Then the lord was not so gentle with the saber! Non-compliance was dealt with swiftly and harshly, and the severed head was displayed to encourage others to "make the right decision".
This savagery was the beginning of out modern notion of "property rights". In this way, it can be shown that really (in the words of Proudhon),
"ALL PROPERTY IS THEFT"
When America was born, it abandoned many of the precepts of the former savage system, by creating a separation of church and state, forbidding the issuance of "titles of nobility", etc. However, we still held on to the "civilized" European concept of property, yet ironically dispossessed and slaughtered nearly all the native Americans in the process of creating "titles" for the Land of the Free.
3.11 Can I give up a right? back to top
No. A right is a right granted to you by at birth. You can not waive, forfeit, relinquish, sign-away, or otherwise lose a right. Only a tyrant or a thief would try to convince you of something different.
3.12 Where does government power come from? back to top
If you accept the words of Thomas Jefferson, governments "derive their just powers from the *consent* of the governed". The key word here is "consent". Consensual, mutually beneficial agreements are called "contracts", which lead many libertarians to call the United States Constitution "the REAL Contract with America!"
3.13 What are "inherent powers"? back to top
Inherent powers are powers which governments must have in order to rule. They are not conveyed upon it by the people, they preexist or are endowed upon it by fiat of God.
If you believe, along with Thomas Jefferson, that governments "derive their just powers from the consent of the governed", then there is no such thing as inherent powers; the government has exactly the powers that the people delegated to it. (And the people can only delegate powers which they originally had).
3.14 Where does the Police power come from? back to top
From Bastiat, The Law:
If every person has the right to defend (even by force) his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right -- its reason for existing, its lawfulness -- is based on individual right....
Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force - for the same reason - cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.
Such a perversion of force would be, in both cases, contrary to our premise. Force has been given to us to defend our own individual rights. Who will dare to say that force has been given to us to destroy the equal rights of our brothers?
If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.
Like Bastiat, many libertarian philosophers believe that the police power derives from the right of self-defense and the right to contract (make friendly agreements).
When all of the able-bodied men in a village or town gather for the purpose of self-defense, this has historically been called the "militia". For convenience sake, we form a mutually beneficial agreement amongst ourselves (a contract) to delegate this power to the people we hire for the job: the police.
Remember, essential elements of contracts are mutual *consent*, benefit, and understanding, proper subject matter, and adult parties. Remember these words?
"Governments ... derive their just powers from the consent of the governed."
Governments are created when people in a society delegate certain powers collectively to the group, but, we cannot delegate a power which we do not enjoy as individuals.
Thus, if we do not possess the right to attack for no good reason, then certainly we cannot delegate this to a government that we create, or to the police.
If the police act to detain, restrain, or take property, or worse, without the complaint of just one civilian, then this is a violation of the social contract which created the job. When you get detained for "speeding" or any other petty traffic "offence" (in the absence of a civilian complaint, or a victim with injury), you *feel* violated, because your rights *are being* violated.
3.15 Why don't they teach this is public schools? back to top
"Humanity by nature is gifted to think freely, but in order that this free thought should lead him to the goal of liberty and independence, his way of thinking must be shaped be the process of education."
So, should we be having the police DARE-ing our children to turn in Daddy for that little baggie in the back of his sock drawer, or should we be instructing them in the Freedoms promised by our Constitution?
Why don't we teach our children that Thomas Jefferson and George Washington grew the very same plant that Will Foster grew in Oklahoma, but which landed *him* a 99 year prison sentence?!
Should we teach our children to follow the rules of law by their own free choice, because they are good rules, or to "get in line, shut the hell up, and do as you are told" in fear of the harsh hand of a psychopathic, antisocial, and UNCONSTITUTIONAL government power?
Which is most likely the better path to the goal of liberty and independence for all?
"Teach your children well!" -- Crosby, Stills, and Nash
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