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IN PROPRIA PERSONA - Lat. "In ones own proper person" To represent ones
self in court without assistance of an attorney.
The United States Supreme Court recently observed in its unanimous
decision in Kay v. Ehrler, supra, 499 U.S. 432, that a lawmaking body
may instead prefer to discourage attorneys from electing to appear in
propria persona because such self-representation may often conflict with
the general public and legislative policy favoring the effective and
successful prosecution of meritorious claims. The high court observed
that "Even a skilled lawyer who represents himself is at a disadvantage
in contested litigation. Ethical considerations may make it
inappropriate for him to appear as a witness. He is deprived of the
judgment of an independent third party in framing the theory of the
case, evaluating alternative methods of presenting the evidence, cross-
examining hostile witnesses, formulating legal arguments, and in making
sure that reason, rather than emotion, dictates the proper tactical
response to unforeseen developments in the courtroom. The adage that 'a
lawyer who represents himself has a fool for a client' is the product of
years of experience by seasoned litigators." Id. at 437-438
In his own person. It is a rule in pleading that pleas to the
jurisdiction of the court must be pleaded in propria persona, because,
if pleaded by attorney, they admit the jurisdiction, as an attorney is
an officer of the court, and he is presumed to plead after having
obtained leave, which admits the jurisdiction.
An appearance may be in propria persona, and need not be by attorney.
Understanding the Use of Force By and Against the Police.
Series: NIJ Research in Brief
Published: November 1996
15 pages
30,224 bytes
U.S. Department of Justice
Office of Justice Programs
National Institute of Justice
National Institute of Justice
Research in Brief
Jeremy Travis, Director
November 1996
=============================================
Figures, charts, forms, and tables are not included
in this ASCII plain-text file. To view this
document in its entirety, download the Adobe
Acrobat graphic file available from this web site
or order a print copy from NCJRS at 800-851-3420.
=============================================
Understanding the Use of Force By and Against the
Police
Issues and Findings
Discussed in this Brief: An NIJ-sponsored study of
1,585 adult custody arrests in Phoenix, Arizona,
the eighth largest city in the United States, to
determine the use of force both by and against the
police.
Key issues: The research conducted by Rutgers
University and Arizona State University was
prompted by a perceived need on the part of the
Phoenix Police Department and NIJ to gather
information about arrest situations, tactics,
policy, training, and practices. The study surveyed
police officers over a 2-week period in June 1994
and interviewed 185 suspects.
Key findings: Force was used infrequently by the
police and even less frequently by suspects.
Suspects interviewed reported levels of police
force similar to those obtained from officer self-
reports.
Among the other findings:
o Police used some physical force in about one of
every five arrests. Suspects used some physical
force in about one of every six arrests.
o Phoenix police officers are required to restrain
only felony or belligerent suspects. In 20 percent
of all adult custody arrests studied, officers
opted to use no restraints.
o When force was used by the police or suspects, it
was typically at the low end of the severity scale.
o Weapons were used by the police in 2 percent of
all arrests. The weapon most frequently used by the
police was a flashlight (12 times in 1,585
arrests).
o Of 41 factors examined, only 9 consistently
contributed to the prediction of police use of
force.
o The single best predictor of police use of force
was suspect use of force.
o Two-thirds of the variation in the amount of
force used by police remains unexplained.
Target audience: Law enforcement policymakers,
practitioners, and police trainers
=============================================
Understanding the Use of Force By and Against the
Police
by Joel Garner, John Buchanan, Tom Schade, and John
Hepburn
The Phoenix Police Department, in conjunction with
Rutgers University and Arizona State University,
designed and implemented a study of the use of
force by and against Phoenix police officers.
Conducted during a 2-week period in June 1994, the
research was prompted by the need to generate
systematic information on the role of force in
arrest tactics policy, training, and practice. This
study, sponsored by the National Institute of
Justice (NIJ), was concerned with determining the
characteristics of arrest situations, suspects, and
officers associated with the use of force, as well
as the amount of force actually used.
Research results showed that, during the study
period, the Phoenix police employed some degree of
physical force in 22 percent of adult custody
arrests and that suspect use of physical force was
even less frequent. Further, in situations where
members of either group did employ force, the
levels typically were low. Despite a policy that
requires the routine use of restraints in arrests
of felons and belligerent suspects, officers did
not restrain suspects in one-fifth of all custody
arrests involving adults. Finally, a number of
factors--most notably, suspect use of force--were
found to predict police use of force (see exhibit
1).
This Research in Brief explains the methodology
used to measure the use of force, discusses study
results, and presents the implications of these
findings for future policy and research.
Study method
The research was designed to address some of the
more important limitations of prior research on use
of force. First, measures were developed to capture
the range of force used within the Department's
standard force continuum. Measures of the simple
dichotomy between force and no force (or excessive
and reasonable force) neither capture the full
range of police or suspect behavior nor recognize
the great variety of force-related behavior in law
enforcement. Second, rather than focusing
exclusively on situations that involved severe uses
of force such as firearm discharges, serious
injuries, or deaths, data were collected from a
representative sample of arrests to permit
examination of the range of instances where some
degree of force could be used.
A third aim of the study was to determine the
correlates of force. Although helpful, descriptive
data on arrest situations or force levels do not
provide, by themselves, an appropriate basis for
developing arrest tactics training. Therefore,
researchers sought to understand the specific
circumstances and situations where more or less
force is used to accomplish an arrest and to use
that information to improve training and practice
in arrest tactics.
Obtaining the information. The primary source of
data was a one-page (front and back) survey
completed by Phoenix police officers after arrests
were made during a 2-week period in June 1994 (see
exhibit 2). This form was used to record specific
behavioral aspects of the arrests and gather
information on police mobilization, the nature of
the offense, and officer and suspect
characteristics.
From these surveys, detailed information was
compiled about the frequency of specific officer
and arrestee behaviors along five dimensions:
o Voice (officer/suspect spoke in a conversational
tone, articulated threats, issued commands,
shouted, or cursed).
o Motion (mode of officer pursuit/suspect flight).
o Restraints (mechanical devices used by police to
control arrestee, e.g., handcuffs, body cuffs,
hobble).
o Weaponless tactics (officer/suspect grabbing,
twisting, pushing, shoving, punching, kicking,
biting, scratching, wrestling, scuffling, and use
of control holds or pressure points).
o Weapons (suspect possession or officer/suspect
threatened use, or actual use of martial arts or a
baton, flashlight, knife, blunt instrument,
chemical agent, canine, handgun, rifle, or shotgun;
includes use of a motor vehicle as a weapon).
The detailed survey responses were used to
construct three measures of force--physical force,
continuum of force, and maximum force. These
measures were designed to capture the full range of
force used, including low levels of force not
traditionally examined by police use-of-force
research. Multivariate statistical models also were
developed to evaluate the extent to which officer,
suspect, and arrest situation characteristics
consistently predicted the amount of force used.
The reliability of the police survey was assessed
by interviewing a sample of suspects booked in the
Maricopa County Jail; 185 interviews were matched
to officer surveys. Both the officer surveys and
suspect interviews were voluntary and anonymous.
Overview of survey results
Of the 1,777 surveys obtained during the 2-week
period covered by the study, 1,585 pertained to
adults who were booked by Phoenix police officers
at the Maricopa County Jail (noncustody and
juvenile arrests were excluded). The Department's
automated information system (PACE) recorded 1,826
arrests in which an adult suspect was booked. Thus,
surveys were obtained for more than 85 percent of
arrests involving detained adults.
The surveys revealed that, in making these 1,585
adult custody arrests, officers:
o Used threats or shouts less than 4 percent of the
time.
o Pursued a fleeing suspect 7 percent of the time.
o Placed cuffs or restraints on 77 percent of the
suspects.
o Used a weaponless tactic (holding, hitting, etc.)
in 17 percent of the arrests.
o Threatened to, but did not, use a weapon 3.7
percent of the time.
o Used a weapon in 2 percent of the arrests.
Surveyed officers also reported that the weapon
most frequently used by them against a suspect was
a flashlight (12 arrests). They also noted that no
restraints were used in 20 percent of the surveyed
cases (3 percent of completed surveys did not
indicate whether restraints were used). According
to survey data, use of force was reported rarely by
either police officers or suspects; when some form
of force was used, it was typically at the low end
of the study's measures.
The three measures of force
Physical force. "Physical force" was defined as
officer or suspect use of any weaponless tactic
(such as kicking or shoving) or the threatened or
actual use of any weapon. In addition, police use
of physical force included the application of
severe restraints, including cuffing suspects while
they were prone, hobbling (hog-tying a suspect's
legs), leg cuffing, and body restraint (e.g., a
straitjacket). The possibility that suspects would
use restraints on police officers was excluded from
consideration. Suspect possession of a weapon, even
if not used or threatened, was included as an
example of physical force by suspects. Officer
possession of a weapon was not considered use of
physical force by officers.
In 349 of the 1,585 surveyed arrests (22 percent),
the police reported using some form of physical
force. In nearly four out of every five adult
custody arrests, police officers used no physical
force at all. The surveys indicated that suspects
used physical force in 228 (14.4 percent) of the
1,585 incidents. In roughly five out of every six
adult arrests, suspects reportedly used no physical
force.
Continuum of force. The study's second measure of
force was based on two six-step rankings used by
the Phoenix Police Department (see exhibit 3),
which are similar to those used in many other
jurisdictions to locate degrees of force in a
progression. The rankings are independent; a "3" on
the police scale (control and restraint) is not
necessarily equivalent to a "3" on the suspect
scale (passive resistance). The measurement of this
"continuum of force" was intended not only to
reflect the official policies of the Phoenix Police
Department but also to incorporate the widely held
notion that the force/no force dichotomy is
inadequate to capture all important variations in
the ways police handle encounters with the public.
Exhibits 4 and 5 show the highest level of force
used by police and suspects in terms of the force
continuum. In 918 (57.9 percent) arrests, the
highest level of force used by the police was some
form of restraint; in another 350 (22.1 percent),
no restraints were used. Chemical weapons were the
highest level of force employed by the police in 2
(.01 percent) arrests; although not discharged,
firearms were threatened or somehow used in 54 (3.4
percent) arrests. Other weapons and weaponless
tactics were used in 261 (16.5 percent) arrests.
In 977 (61.6 percent) arrests, suspects offered no
resistance to officers. In another 196 (12.4
percent), the forms of resistance were either
psychological or verbal. In 136 (almost 9 percent)
arrests, suspects used or threatened to use a
physical tactic or a weapon; in 11 (0.7 percent) of
those arrests, the weapon was a firearm (see
exhibit 5).
Maximum force. A measure of maximum force was
constructed by identifying the single most severe
use of force employed by the police, based on a
ranking of 80 different types of police statements,
physical restraints, tactics, and weapon use. These
rankings ranged on a scale of 0 to 100 (with 100
denoting maximum force). The severity of behaviors
was weighed according to the judgment of 11
experienced and currently active Phoenix patrol
officers, whose opinions were solicited for this
purpose. In a similar exercise, a measure of the
maximum amount of force used by suspects was
developed (see exhibits 6 and 7).
Suspects' views on use of force. In order to assess
the reliability of the study's force measures,
results of interviews with suspects from a sample
of 185 adults taken into custody during the 2-week
period were matched to corresponding police
surveys. Interviewers from Arizona State University
asked detainees about the force used by police in
the course of their arrests, as well as the force
that they themselves exhibited. The interviews
resulted in findings that were comparable to those
of the police surveys (see exhibit 8).
Influences on use of force
In addition to developing three measures of force,
the study team compiled detailed information on how
the police were mobilized, the nature of each
offense, the location of each offense, the personal
characteristics of officers, the personal
characteristics of suspects, and any associations
that could be made between police and suspect
characteristics. Information about each arrest was
collected on 41 specific items thought to influence
the use of force.
Analyses of these variables in relation to each
measure of force identified 16 consistent
nonpredictors, 16 inconsistent predictors, and 9
consistent predictors of force.
Consistent nonpredictors. More than one-third (16)
of the 41 factors examined did not predict any of
the three measures of police or suspect use of
force. These factors were:
MOBILIZATION OF THE POLICE
Custody status of arrestee
Dispatch or on-view arrest
Night time
Weekends
Weekend nights
NATURE OF THE OFFENSE SITUATION
Number of suspects at initial contact
Number of suspects at arrest completion
Victim and suspect friends or same family
Bystander and suspect friends or same family
NATURE OF THE ARREST LOCATION
Inside a residence
Location known for criminal activity
PERSONAL CHARACTERISTICS OF THE POLICE
Number of arrests in past 30 days
Years since last training
PERSONAL CHARACTERISTICS OF SUSPECTS
Known to have criminal record
ASSOCIATED SUSPECT AND OFFICER CHARACTERISTICS
Height
Weight
Given the size and representative nature of the
sample of adult arrests from which various measures
of potential predictors were obtained and the
strength of the multivariate analyses employed,
these findings of "no effect" cannot be attributed
to either the research design or its
implementation. Although generalization of these
findings awaits replication, future discussions of
police use-of-force policies and practices (and
designs for additional research on police use of
force) should consider this study's evidence that
these 16 factors consistently failed to predict
police or suspect use of force.
Inconsistent predictors. Sixteen of the 41 factors
considered in the study predicted only one or two
of the three measures of force used by and against
police. These factors retain their candidacy as
predictors of force and warrant inclusion in
subsequent research. Each predicted some measure of
force but failed to meet this study's conservative
standard of predicting all three measures.
In the following list of inconsistent predictors,
the minus (-) signs indicate a negative
relationship. Thus, as a predictor (such as
visibility) increases in value, the use of force
decreases. The negative sign on the race variable
is based on the finding that Hispanic suspects on
average use less force against the police than non-
Hispanic suspects.
MOBILIZATION OF THE POLICE
Patrol division (-)
Early, middle, or late phase of shift
Number of police at initial contact
NATURE OF THE OFFENSE SITUATION
Traffic offense
Property offense
Vice offense
Domestic call
Bystander's demeanor
NATURE OF THE ARREST LOCATION
Visibility (-)
Inside a nonresidential building (-)
Location known to be hazardous
PERSONAL POLICE CHARACTERISTICS
Length of service
Past injury
PERSONAL SUSPECT CHARACTERISTICS
Drug impaired
ASSOCIATED SUSPECT AND OFFICER CHARACTERISTICS
Age
Race (-)
Because suspect use of force influences police use
of force, this list of inconsistent predictors
includes any factor that predicted one measure of
suspect use of force. For instance, prior injury to
an officer did not predict police use of force
directly, but it did predict one of the three
measures of suspect force. Similarly, the race of
officers and suspects played no role in predicting
police use of force, but because Hispanic suspects
used less force than other suspects on one measure,
race was listed as an inconsistent predictor of
force.
Age is one of the most consistent predictors of
participation in and frequency of criminal
behavior, and we were surprised that age was not a
substantial and consistent predictor of the use of
force. In fact, at least one of the various
components of "age"--officer age, suspect age, and
the interaction of the two--was found to be
associated with all three measures of force
employed in the study, but the direction of the
effects changed with different measures and
components.
Consistent predictors. The analyses identified nine
characteristics that consistently predicted police
use of force:
MOBILIZATION OF THE POLICE
Use of contact and cover tactics
Increased number of police
NATURE OF THE OFFENSE
Arrest for a violent offense
NATURE OF THE LOCATION
Presence of bystanders
PERSONAL POLICE CHARACTERISTICS
None
PERSONAL SUSPECT CHARACTERISTICS
Use of force
Gang involvement
Alcohol impairment
Known to be resistive, assaultive, or to carry a
weapon
ASSOCIATED SUSPECT AND OFFICER CHARACTERISTICS
Both male
Some predictors affected police use of force
directly; others affected it through their
influence on suspect use of force. Some
characteristics predicted both.
Among the predictors of police use of force,
suspect use of force had the largest impact on each
of the three measures of police use of force. This
remained true when controlling for the possibility
that some suspect use of force could be a reaction
to police use of force. This finding supports the
perspective that underlies use-of-force policies
and arrest tactics training in the Phoenix Police
Department and in many other departments around the
country: Police use force (and are authorized to do
so) in response to suspects' levels of resistance.
However, suspect use of force does not explain all
or even a large proportion of the variation in the
amount of force used by the police. This finding
supports the perspective that response to suspect
force, although significant, is not the only
situation in which the police use force (see
exhibit 1).
Implications of study findings
Policy implications. This research has specific
implications for police policy, training, and
practice in the use of force. First, it provides
systematic evidence that the use of force in
Phoenix is infrequent; when used, force was
typically at the lower end of the measures of
force. In addition, no evidence was found to show
that force was applied unevenly or in
discriminatory ways against racial minorities.
The findings did raise some issues for further
consideration. For instance, the single most
frequent weapon used when arrests were made in
Phoenix was the flashlight. At the time of this
study (June 1994), the Phoenix Police Department's
arrest tactics training program provided limited
guidance regarding the use of a flashlight as a
weapon. Officers are currently receiving enhanced
training in the use of the flashlight as a weapon.
The same rules that apply to the use of batons
apply to flashlights.
A second area of concern is that the widely
promoted "contact-and-cover" tactic was
consistently associated in this study with
increased use of force. Contact and cover is a
tactic whereby one of two officers makes contact
with the suspect(s) or complaining citizen(s),
while the second officer takes a position a short
distance away to maintain a view of the entire
situation and "cover" the contact officer. No
assertion can be made on the basis of available
evidence that the use of this tactic caused the
police in Phoenix to use more force. However, the
research design included controls for some of the
characteristics of the arrest situation that might
lead officers to use contact and cover--suspect use
of force, violent offense, number of suspects and
bystanders, low visibility--but these
characteristics cannot explain the consistent
association between use of contact and cover and
all three measures of force. In addition, the
contact-and-cover tactic is intended to provide
officers with a tactical advantage should a
physical confrontation occur. That advantage, some
might assume, should reduce the amount of force
used by police and suspects, but no evidence was
found to support this assumption. A thorough
examination of all aspects of the use of contact
and cover, beginning with a more indepth review of
the data collected in this study, is recommended.
The third implication for policy stems from the
finding that the gender of the suspect and the
police officer directly affected the amount of
force used by the police. More force was used by
police when both officer and suspect were male than
when both officer and suspect were female or their
gender was unreported. However, male suspects were
not found to use more force against the police than
female suspects when all of the predictors were
considered. For most officers and researchers, this
is counterintuitive. Statistical controls for the
height and weight of officers and suspects, as well
as for the suspect's use of force, were included,
and these controls (or other factors not included
in the research) may account for the absence of an
effect for suspect sex on suspect use of force.
Since most arrests (1,059, or 67 percent) involved
a male officer and a male suspect, we interpreted
these findings to mean that arrests of female
suspects by female officers involved less force
than the typical arrest.
A fourth area of concern is use of restraints and
the possibility that Phoenix police officers are
using too little force when they make custody
arrests. In more than 20 percent of arrests, the
police officers asserted that they had used no
handcuffs or other restraints; in another 3 percent
of the arrests, this item was not filled in on the
officer survey. The available data do not provide a
basis for determining the soundness of the current
policy, which authorizes and encourages officers to
restrain any custody arrestee but requires them to
do so only with felons and belligerent suspects.
The concern is based on the seemingly high
frequency with which the discretion to not use
restraints is exercised.
The last issue raised by this research is the
generic and imprecise quality of some of the 12
categories of suspect resistance and officer
response that are central to the department's use-
of-force policies. Behavioral indicators for each
of these categories were developed, with
difficulty, and it is suspected that officers may
have similar problems determining whether, for
instance, flight in a 2,000-pound automobile
belongs in category 4, "defensive resistance," or
category 5, "active aggression." Similarly, the
policy groups together all weapons except chemical
agents and firearms, which are placed in separate
categories. We do not suggest the use of more than
six categories or the kind of detailed ranking
distinguishing weapon possession, threat, and use
that was helpful for this research. However, the
policy could be more clearly stated and the
relative rankings based more explicitly on the
relative severity of officer and suspect behaviors.
Finally, as new weapons and tactics become
available, the review of the continuum-of-force
categories is inevitable.
Research implications
We used a representative sample of police behavior,
developed a variety of measures of police and
suspect use of force, and employed explicit models
and appropriate multivariate statistical procedures
to assess the strength of individual predictors of
force. Previous research has not used these
standards, but future research could benefit from
using and improving on them.
The sampling was representative but not systematic.
We used one 2-week period in June 1994 and were
unable to discern if seasonal variation played a
role in the amount or distribution of force used.
Other sampling schemes need to be developed and
implemented that will provide a more formal
statistical basis from which to make inferences
about all arrests in a particular jurisdiction.
Data collection was anonymous, and understanding
the behavior of individual officers or suspects
over time was thus precluded. Anonymity also
complicated the matching of officer surveys and
suspect interviews. Federal protections of
research-subject confidentiality are strong, even
for police officers. Future research could attempt
to better integrate survey, interview, and official
records of police and suspect behavior.
The measures of force are improvements over simple
dichotomies of the past, but, as ordinal or
interval measures, they are simply illustrative. At
best, they should be early prototypes of
measurement models that reflect true scales or the
full extent of harm caused by different forceful
actions.
The data collection instrument included many items
thought to be important in the study of police use
of force. The length of the form was a burden to
participating police officers and reflected the
fact that the researchers could not match officer
responses to official records about the arrest, the
suspect's prior record, or the officer's career.
Improved data on weapon possession and use are
essential, and the sequencing of officer and
suspect behaviors should be a high priority in
future research.
The use of multivariate statistical models improved
the rigor of this study, but the available methods
were only a small subset of approaches to assessing
causal influences. Most police professionals and
researchers believe that community context is an
important consideration in how much force is used.
This research does not incorporate contextual
models to account for such influences.
Because this is only one study in one jurisdiction
at one point in time, the results may not
generalize to other jurisdictions and their
relationships between citizens and police. There is
no substitute for replication.
Conclusion
All prior assessments of police use of force that
employed a systematic sample of police behavior as
a foundation report that use of force is infrequent
and that many of the factors commonly thought to
influence it do not. Limitations in prior research
left the validity and reliability of those findings
uncertain. This research implemented a design to
overcome some of these limitations, and the
researchers reached the same conclusion: Using
three alternative measures of force, the survey of
adult custody arrests in Phoenix revealed that no
force, or only low levels of force, was used in a
large proportion of cases.
In addition, the results did not support the notion
that the race of officers or suspects directly or
indirectly affects the amount of force used in
adult custody arrests. The popular focus on racial
factors in use of force seems to be unsupported by
this study and other research evidence. Subsequent
research must be attentive to the low base rate for
use of force by police and the even lower base rate
by suspects.
On the other hand, official policy and training on
the use of force do not indicate an awareness of
the common absence of force. Recognition that force
is rare and, when used, varies along a continuum
has implications for law enforcement policy,
training, and street behavior.
=============================================
Joel Garner, Research Director, the Joint Centers
for Justice Studies, was the principal investigator
for this study. John Buchanan, Commander, and
Richard Groeneveld, Lieutenant, Phoenix Police
Department, served as project director and deputy
project director, respectively. Co-principal
investigators included Thomas Schade and John
Hepburn of Arizona State University and Jeffrey
Fagan of Rutgers University.
=============================================
This Research in Brief is based on the study
supported by award 92-IJ-CX-K028 from the National
Institute of Justice, the contributions of the
participating officers of the Phoenix Police
Department, and the assistance of the Maricopa
County Sheriff's Department.
The complete report is available through the
National Criminal Justice Reference Service on
interlibrary loan or, for a fee, photocopy
reproduction. Call 1-800-851-3420. Ask for NCJ
158614.
Dr. Garner discussed his work with an audience of
researchers and criminal justice professionals and
practitioners. A 60-minute videotape, Understanding
Use of Force, is also available for $19 ($24 in
Canada and other foreign countries). Ask for NCJ
159739.
=============================================
Points of view expressed in this report are those
of the authors and do not necessarily represent the
official position or policies of the Phoenix Police
Department, the Maricopa County Sheriff's
Department, or the U.S. Department of Justice.
The National Institute of Justice is a component of
the Office of Justice Programs, which also includes
the Bureau of Justice Assistance, Bureau of Justice
Statistics, Office of Juvenile Justice and
Delinquency Prevention, and the Office for Victims
of Crime.
NCJ 158614
Laws as "Instruments of Oppression"
"Laws as Instruments of Oppression"
Abuses of "Antidrug Legislation", of "Money Laundering and Forfeiture
Laws. Human Rights Violations under "Color of Law", "Appearance of
Justice" and a facade of "Due Process".
As nightfall does not come at once, neither does oppression. In both
instances, there's a twilight where everything remains seemingly unchanged,
and it is in such twilight that we must be aware of change in the air, however
slight, lest we become unwitting victims of the darkness.
Supreme Court Justice William O. Douglas
Laws as Instruments of Oppression
The Misapplication of the Money Laundering Laws
An Example of Money Laundering Law Misapplication
"Antidrug Legislation" - The Money Laundering Laws.
The Bank Secrecy Act (BSA) of 1970
The Comprehensive Money Laundering Control Act of 1986
The Money Laundering Control Amendments of 1988
The Anti-Drug Abuse Act of 1988
The "Sting" Money Laundering Statute (18 U.S. Code, Section 1956 (a)(3)
Title 18, U.S.C. Section 1956 - 1957- An Overview of The Money Laundering
Statutes
The potential for abuse of the money laundering laws
The Unconstitutionality of the Money Laundering "Sting" Statute, Title 18,
U.S. Code, Section 1956 (a)(3)
Forfeiture Laws
An Essay You Must Read About the "New Laws" and the Rape of our Constitution.
Laws as "Instruments of Oppression"
Good laws should derive their authority from their adherence to natural laws,
and by common sense. A society needs good laws to fight crime and to protect
human rights. However, every government in history has manufactured certain
laws and punishments to coerce "obedience" from an "unwilling" population.
These laws, in their mature forms, always display one common characteristic,
unconscionably harsh penalties for alleged infractions committed. They possess
no intrinsic moral authority and the sole purpose of enforcement is the police
power of the government over peoples' private lives. Individual citizens, or
society in general, have no stake in and no commitment to such laws. Society
does not get any benefits from unreasonable prosecutions. In fact resources
and taxpayers' money are wasted.
To keep the people entrapped and the facade of "justice", a maze' of
(so-called) victim-less crime laws have been imposed on Americans in recent
years. These liberty destroying oppressive laws control the enslaved victims
with the instilled fear of heavy fines, and imprisonment for acts that harm no
other individual.
Through improper application of such "laws" and through abuse of the criminal
justice system, thousands of Americans have been deprived of their God-given
unaliable-right to freedom. Recently, improperly defined "laws" have been
enacted which are used to prosecute and convict targeted Americans and to
confiscate their property. Some of these new laws even permit prosecutors to
prearrange hypothetical thought crimes and evidence with guaranteed conviction
and level of sentencing. These new statutes have been turned into "instrument
of repression and oppression" that belong more appropriately in third world
countries that our Government accuses of human right violations. Human right
violations (well disguised certainly) occur with frequent regularity in our
own country. More and more frequently these new laws are improperly applied
against selectively targeted individuals. This signifies a trend which will
continue and will eventually encompass others. It is like an insidious virus
that has lied dormant and now is spreading and expanding in a geometric
progression. It is an early phase of fascism.
Legal fictions have been an accepted part of the common law tradition but
today, we have new and malignant fictions which are designed to evade the
evidence requirements of the Sixth Amendment in any legal proceeding.
Unfortunately a system such as this so violates the American spirit of fair
play that it brings the law and the process by which it is applied into
disrepute. The word "justice" no longer has a connotation of fairness. It has
a connotation of retribution and punishment.
Punishement is as unfair as the misapplication of such laws. Now we have
justice by recipe in our country with handed down simplistic issues that are
cut and dry. Judges and prosecutors just open the cookbook of "justice" and
search for a credible offense or issue that can justify the government's
improper actions. They extrapolate here and interpolate there. And, thus, with
the impartial guidance of such cookbooks they arrive at decisions. These
cookbooks are called "Mandatory Sentencing Guidelines". Who would ever have
imagined that adjudication of "legal" matters in our country could be so easy?
Who would have ever thought that severe punishments would take place in our
country and that millions of Americans would be either in prison or under the
supervision of the courts? Who, indeed?
Millions of people in our country are disenchanted with the way in which the
laws are being enforced. There is growing hostility, resentment and disrespect
for the injustices and the legal manipulation of the law by government agents
and prosecutors. So these draconian laws against citizens and minorities are
not simply unjust and unfair. They do more harm than good. They destroy
families, they destroy individuals, and they are doing a tremendous amount of
harm to our country. We have more people in prison in this country than any
other country in the world. Our government recently allocated billions of
taxpayers' money for more prisons, most of them to house "marginal offenders"
while , at the same time, trying to "balance" the federal budget.
Government policies to fight the epidemic of drugs are failing. So called
anti-drug legislation and "money laundering laws" are applied selectively by
government attorneys for purposes other than those intended by Congress. They
have been excuses to violate civil rights. In many ways, the drug wars has
become a war on people. The new drug laws have very little to do with drug
related offenses. They have become instruments of oppression against ordinary
citizens. Our society is decaying, and part of the decay is not the drug
problem that we have. It is the misapplication of the drug related statutes
and the unchecked misconduct of governent attorneys. Unable to deal
effectively with professional criminals, federal prosecutors often use the
drug-related laws against politically-targeted individuals, tax protestors,
First amendment advocates or any one perceived to be a "threat" to the
established order. Some of the actions of law enforcement agents or governemnt
attorneys are premptive.Prosecutions and seizures have become a major legal
industry. Enlightened political, judicial, social leadership is essential. It
is very unfortunate for our country, which once was the shining beacon to the
world, the nations of the world, as a place of freedom. We need to redefine
ourselves a little better around the term "justice" and "fairness". Given the
present trend, our society and our basic freedoms are in great jeopardy.
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The Misapplication of the Money Laundering Laws
Money Laundering is a ubiquitous term used to cover many kinds of possibly
illegal transactions. It is this ambiguity that is confusing to many legitimate
business persons. It becomes very easy for government agents to target high
profile affluent people (usually people with assets to forfeit ), catch them at
a vulnerable point and then maneuver them over a period of time so that they end
up breaking a law that they might not have known even existed. The vague
language of the money laundering laws has made it easy for government attorneys
to escalate any offense involving any type of monetary transaction, into a money
laundering offense with extremely high sentencing level and obtain
"convictions", usually through "plea bargaining". Essentially, in money
laundering cases, "plea-bargaining" become a threatening negotiation because
government attorneys have a "big stick" with which to beat a defendant to
submission: the money laundering laws. Because of the high sentencing levels and
the easiness to convict under these laws, government attorneys have an easy time
"persuading" defendants, particularly those involved in minor offenses, to plead
guilty rather than risk a guaranteed long prison sentence. For defendants who
cooperate or even agree to become government informers, the sentencing is
relative lenient in spite of the so-called "mandatory sentencing guidelines".
The "mandatory sentencing guidelines" and enhancements for "obstruction of
justice"are reserved for those stubborn enough to plead "not guilty" and to ask
for a trial. To "persuade" the stubborn to plead guilty, often government
attorneys will issue collateral indictments and/or superseding indictments
charging defendants with additional "crimes" for which there may be no valid
basis. Frequently, the" plea bargaining" process is repeated again and again
until a defendant is coerced to forego trial by pleading "guilty" to one or more
counts of an indictment. With such tactics and through the misapplication of the
money laundering laws, government attorneys can get easy "convictions".
In recent years the money laundering laws have been used as instruments of
oppression in our country against many targeted individuals. Charging and
"plea-bargain" practices of federal prosecutors for alleged "money laundering
offenses" have been excessive and abusive.
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"Antidrug Legislation" -The Money Laundering Laws
Before discussing the Money Laundering Laws the following background information
on previous banking laws is provided.
The Bank Secrecy Act (BSA) of 1970
Government efforts to regulate currency transactions go back many years.
Combatting drug trafficking and money laundering did not require the money
laundering laws which were passed in 1986. There were laws already in the books.
In 1970, the House Committee on Banking was instrumental in the enactment into
law of the Bank Records and Foreign Transaction Act (Public Law 91-508). That
law contained the Currency and Foreign Transaction Reporting Act, which together
with certain record keeping provisions is commonly referred to as the Bank
Secrecy Act (BSA). The primary purpose of the reporting requirements of the BSA
was to identify the sources, volumes and movements of U.S. currency which was
transported into or out of the country or being deposited in financial
institutions. Presumably, this information was used as a primary tool in
assisting law enforcement officials in the detection, investigation, and
prosecution of certain crimes. Allegedly this was an effort to combat "crime".
In reality it was nothing more than a government effort to regulate the
financial transactions of all Americans.
The Bank Secrecy Act 1970 required that certain records be made and retained by
financial institutions. Specifically, the Act authorized the Secretary of the
Treasury to require financial institutions to keep records of the identities of
persons having a bank account in the United States and others acting on their
behalf.The Act required all financial institutions to verify and record the
identity, identification and address of all persons wishing to transfer $10,000
or more, or those who were in receipt of $5000 or more in cash. This
questionable procedure is known as currency transaction reporting (CTR) and is
continuing to this day. However, the limits have been lowered. Banks are
expected to report any cash transactions of $3,000 or more. Millions of such CRT
reports are filed by the banks every year to the IRS's central computer.
The Comprehensive Money Laundering Control Act of 1986
The Department of Treasury and its Internal Revenue Service had lobbied
extensively for the BSA's passage. The IRS had been given primary jurisdiction.
They weren't satisfied. Although the BSA was an effective tool in detecting
"criminals" who used financial institutions to further their "illegal activity",
Treasury's pressure on the Congressional Banking committees continued.
Presumably amendments to the BSA and other legislative initiatives were needed
to combat the "astronomical rise in drug trafficking and money laundering
schemes". This claim was true to some extent. Indeed money laundering activities
from drug trafficking had increased. There was a need for a statute that would
prevent the money laundering activities of organized crime from drug
trafficking.
For the next sixteen years the Treasury Department kept on pressuring the House
and Senate Banking Committees to introduce and pass legislation to "upgrade"
BSA's enforcement requirements. From time to time, these Committees conducted
hearings on how enforcement by the IRS could be toughened.
In 1986, the House Committee responded to this pressure of government lobbyists
by holding four days of hearings. On July 22 of that year, by a vote of 47-0,
the House Banking Committee endorsed amendment H.R. 5176, the Comprehensive
Money Laundering Prevention Act. H.R. 5176 was incorporated into H.R. 5484, the
Omnibus Drug Bill, which was passed by the House in September of 1986, as
"Drug-Related" legislation. Drug-related legislation was as sacred as apple pie
and motherhood. The overwhelming Congressional support was no surprise. No
Congressman would have dared to vote against such a well-packaged, piece of
"drug" legislation. No one realized the potential for abuse of these laws.
Thus the Comprehensive Money Laundering Contol Act of 1986 resulted in the
enactment of Title 18, U.S.C. Sections 1956 and 1957. This legislation made
money laundering a major crime with an unusually high level of sentencing.
Specifically, the Money Laundering Control Act of 1986 identified two kinds of
offences; financial transaction money laundering and financial institution money
laundering.
The Money Laundering Control Amendments of 1988
Legislative History: On June 8, 1988, the House Committee on Banking, Finance,
and Urban Affairs (Banking Committee), under the chairmanship of Rep. Fernand J.
St. Germain, held a hearing on proposed amendments to the money laundering laws.
In his opening statement before the Committee, Chairman St. Germain set the
stage for the hearing as follows:
"It is news to no one that drugs generate massive sums of cash. This cash must
be laundered-slipped into the main stream of commerce if the drug traffickers
are to be successful. We intend to make these laundering operations as difficult
and costly as possible. We cannot allow financial institutions, insured by the
U.S. Government, to be used- whether by accident or design.
The subject of money laundering and the use of financial institutions to launder
funds derived from illegal sources such as drug trafficking is not new to the
Committee. In fact, over eighteen years ago, the Committee on Banking
concentrated its efforts on ways to combat drug trafficking, organized and white
collar crime, tax evasion and other crimes in which criminals use the nation's
financial institutions as a means to conceal or launder funds."
Following this introduction, Gerald L. Hilsher, Deputy Assistant Secertary (Law
Enforcement) Department of the Treasury, and Victoria Toensing, Deputy Assistant
Attorney General, Criminal Division, United States Department of Justice,
testified. These government witnesses from Treasury and Justice emphasized the
need to enact legislation "to prevent the laundering of money through financial
institutions for illegal purposes".
Based upon this testimony and without much floor discussion, the Banking
Committee then justified the need for the proposed legislation. The need for
amendments was additionally justified on the basis that most of the provisions
of H.R. 5176, the Comprehensive Money Laundering Prevention Act, had been
contained in Subtitle H of Title I of the "Anti-Drug Abuse Act of 1986" (Public
Law 99-57Q). However, it was argued that certain provisions of H.R. 5176 were
not included by the Senate in their version of the 1986 anti-drug proposals, and
consequently did not become part of the 1986 Act. Thus the House Banking
Committee was determined to include provisions of H.R. 5176 not enacted into law
become part of the proposed 1988 amendments.
Thus, the Houae Banking Committee took it upon itself to rectify the 1986
ommissions of the Senate, particularly those it believed would improve "law
enforcement efforts to get at the drug traffickers and money launderers without
unduly burdening the record keeping or reporting requirements of financial
institutions".
The Committee did not stop there. It also proposed amendments that curtailed the
financial privacy of Americans such as the 1978 Right to Financial Privacy Act
(RFPA). The RFPA (see Public Law 95-630, the Financial Institutions Regulatory
and Interest Rate Control Act of 1978 (FIRICA)), protects the customers of
financial institutions from unwarranted intrusion into their records while at
the same time permits law enforcement offficials to pursue "legitimate" law
enforcement investigations. The Committee wanted now the passage of an exemption
from the notification requirements under the RFPA to alleged insiders of
financial institutions. This had been ommitted also in the Senate version in
1986 when it had been proposed as part of the amendments to the Bank Secrecy
Act, mentioned earlier. The House Banking Committee wanted an "insider
exemption" provision to RFPA.
On June 9, 1988, the House Banking Committee adopted six amendments and ordered
bill H.R. 4853, the Money Laundering Control Amendments of 1988, to be favorably
reported for ratification by the House membership.
Anti-Drug Abuse Act of 1988
The amendments were well packaged in the Anti-Drug Abuse Act of 1988 which
introduced the Money Laundering Prosecution Improvements Act of 1988, which, in
turn, broadened the scope of predicate acts to include tax evasion and false or
fraudulent statements made in connection with income tax filings.
There were international aspects to this "Anti-drug abuse" legislation which
included a requirement upon the Secretary of State for the Treasury to negotiate
with other countries to ensure that they have adequate records on international
currency transactions, which would be equivalent to the mandatory reporting
requirements of U.S. financial institutions.
In essence, the net effect of the Antidrug Abuse Act of 1988 was by far more
reaching than "antidrug legislation". It required the financial institutions to
report any financial transaction as a suspected criminal violation committed
against a bank or involving a financial transaction carried out through the
facilities offered by the bank or its employees. The implementation of this
legislation placed the unusual and costly burden upon banks and financial
institutions and required them to participate in police functions of the
government while threatening them with draconian penalties for non-compliance.
Furthemore, the guidelines issued by the Office of the Comptroller of Currency
(OCC) defined "suspected violation" as "a transaction or series of transactions
for which there is reasonable cause to believe that a criminal violation has
occurred".
The OCC guidelines added to this burden of policing of the financial
institutions by stating the following:
" The OCC cannot quantify the precise amount of evidence needed to trigger the
reporting requirement any more than it can delineate all the relevant factors
that a bank must consider in deciding whether or not to report a suspicion or
otherwise irregular transactions. In many instances the suspicious nature of the
transaction is a function not only of the transaction itself but also of the
bank's experience with the individuals associated with the transactions, either
as employees or as customers of the bank. In many situations, the bank will be
able to discern the 'intent' of those involved in a suspicious transaction.
Invariably however, the pivotal question of criminal intent will be left for the
determination of law enforcement authorities. All that a bank can do in those
situations is to make a practical assessment of the the suspicious transaction
based upon a good faith examination of all the relevant factors. Clearly, the
more serious the irregularity, particularly if it involves a bank insider, the
greater the obligation upon the bank to fully investigate the matter".
The strict guidelines of OCC gave no alternative to the financial institutions.
Rather than making value judgents of what constituted "criminal activity" and
risking penalties for missing some "criminal activity" for which they could be
severely fined, the financial institutions opted to report every transaction as
a "possible criminal violation". This was definetely an overkill in policing the
financial affairs of all Americans. It had little to do with "antidrug
legislation". The draconian penalties coerced the financial institutions to
become watchdogs and spy and report on all larger financiancial transactions of
their clients.
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The "Sting" Money Laundering Statute (18 U.S. Code, Section 1956 (a)(3)
Included in the the Money Laundering Act Amendments of 1988 was a "sting"
statute, 18 U.S. Code, Section 1956 (a)(3). What members of the Banking
Committee did not realize was that subsection (a)(3), the "sting" provision, was
drafted by some Department of Justice officials to serve for purposes other than
those intended. The language of the statute was left intentionally vague and
generic. The definitions and due process requirements that hold for other
sections of the same law, do not hold for the "sting" statute. The "sting"
statute reads as follows:
Laundering of Monetary Instruments Section 1956 (a)(3)
Whoever, with the intent-
(A) to promote the carrying on of specified unlawful activity;
(B) to conceal or disguise the nature, location, source, ownership, or control
of property believed to be the proceeds of specified unlawful activity; or
(C) to avoid a transaction reporting requirement under State or Federal law,
conducts or attempts to conduct a financial transaction involving property
represented to be the proceeds of specified unlawful activity, or property used
to conduct or facilitate specified unlawful activity, shall be fined $500,000
under this title or imprisoned for not more than 20 years, or both. For purposes
of this paragraph and paragraph (2), the term "represented" means any
representation made by a law enforcement officer or by another person at the
direction of, or with the approval of, a Federal official authorized to
investigate or prosecute violations of this section.
The key words of this statute are "represented" and "any representation". The
use of these words is what made this statute a "sting", and it is the essence of
its subsequent abuse. How the representation is made, and whether it follows due
process of the law. Whether there is any adherence to the way and to the purpose
that Congress intended the law to be used. Whether a clear representation is
made that the proceeds are indeed from a "specified unlawful activity", and what
is the activity."Any representation", for a sting type of an offense, simply
does not meet the due process requirement of our Constitution, particularly for
an offense charging the major crime of "money laundering".
The sting provision in the Money Laundering Control Amendments of 1988, U.S.C
Title 18 Section 1956(a)(3) is one of the most amorphous, ill defined, and
controversial laws ever passed in this country. It is a statute which is being
grossly abused by self-serving prosecutors for a variety of cases unrelated to
Congressional intent.This is the only statute with vague wording and definitions
which apply to sections of U.S.C Title 18 Section 1956(a)(1) and (a)(2) but not
to (a)(3). It allows law enforcement agents and prosecutors to engage in a
variety of undercover "sting" operations for non-drug related,
government-induced, "money laundering thought crimes", without consideration of
due process or of the Fourth, Fifth, or Sixth amendments. In most cases the
government-induced underlying offenses may be minor. However, with the
prosecutor's use of the money laundering statute, even if the government-induced
or circumstantially-represented underlying offense is a petty misdeameanor, the
targeted individual gets hit with a minimum sentencing offense level 20 or 22,
if he even makes a simple deposit in a financial institution of proceeds from
such "ostensibly" represented, by the undercover agent, transaction. Punishment
may be as much as 51 months or more, same as for manslaughter, or major drug
trafficking. Obviously the statute is unconstitutional and in gross violation,
not only of the Fourth, Fifth, and Sixth and amendments, but of the Eighth
amendment as well which provides constitutional safeguards for cruel and
excessive punishments.
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Title 18, U.S.C. Sections 1956 -1957. An Overview of the Money Laundering
Statutes
In summary, the 1986 Act and subsequent amendments (including the 1988
amendments) made it a crime for someone, knowing that the property involved in
a financial transaction represents the proceeds of some form of unlawful
activity, to conduct or attempt to conduct such a financial transaction which
in fact involves the proceeds of a specified unlawful activity with the intent
to: (1) promote the carrying on of specified unlawful activity; (2) conceal or
disguise the nature, location, source, ownership or control of the proceeds of
the specified unlawful activity; or (3) avoid a transaction reporting
requirement under state or federal law. The "sting" provision of 1956 section
(a)(3) provided for the prosecution and punishment of hypothetical crimes
fabricated by government attorneys.
More specifically, Title 18, U.S.C. Section 1956 is stated presently as
follows in the U.S. Code:
Laundering of monetary instruments :
(a)(1) Whoever, knowing that the property involved in a financial transaction
represents the proceeds of some form of unlawful activity, conducts or
attempts to conduct such a financial transaction which in fact involves the
proceeds of specified unlawful activity -
(A)(i) with the intent to promote the carrying on of specified unlawful
activity; or
(ii) with intent to engage in conduct constituting a violation of section 7201
or 7206 of the Internal Revenue Code of 1986; or
(B) knowing that the transaction is designed in whole or inpart -
(i) to conceal or disguise the nature, the location, the source, the
ownership, or the control of the proceeds of specified unlawful activity; or
(ii) to avoid a transaction reporting requirement under State or Federal law,
shall be sentenced to a fine of not more than $500,000 or twice the value of
the property involved in the transaction, whichever is greater, or
imprisonment for not more than twenty years, or both.
(2) Whoever transports, transmits, or transfers, or attempts to transport,
transmit, or transfer a monetary instrument or funds from a place in the
United States to or through a place outside the United States or to a place in
the United States from or through a place outside the United States -
(A) with the intent to promote the carrying on of specified unlawful activity;
or
(B) knowing that the monetary instrument or funds involved in the
transportation, transmission, or transfer represent the proceeds of some form
of unlawful activity and knowing that such transportation, transmission, or
transfer is designed in whole or in part -
(i) to conceal or disguise the nature, the location, the source, the
ownership, or the control of the proceeds of specified unlawful activity; or
(ii) to avoid a transaction reporting requirement under State or Federal law,
shall be sentenced to a fine of $500,000 or twice the value of the monetary
instrument or funds involved in the transportation, transmission, or
transfer....whichever is greater, or imprisonment for not more than twenty
years, or both.
Laundering of Monetary Instruments under Section 1956 (a)(3)
Whoever, with the intent-
(A) to promote the carrying on of specified unlawful activity;
(B) to conceal or disguise the nature, location, source, ownership, or control
of property believed to be the proceeds of specified unlawful activity; or
(C) to avoid a transaction reporting requirement under State or Federal law,
conducts or attempts to conduct a financial transaction involving property
represented to be the proceeds of specified unlawful activity, or property
used to conduct or facilitate specified unlawful activity, shall be fined
$500,000 under this title or imprisoned for not more than 20 years, or both.
For purposes of this paragraph and paragraph (2), the term "represented" means
any representation made by a law enforcement officer or by another person at
the direction of, or with the approval of, a Federal official authorized to
investigate or prosecute violations of this section.
For the purpose of the offense described in subparagraph (B), the defendant's
knowledge may be established by proof that a law enforcement officer
represented the matter specified in subparagraph (B) as true, and the
defendant's subsequent statements or actions indicate that the defendant
believed such representations to be true.
Under the 1956 section the current U.S. Code gives the following definitions
for the above offenses:
(b) Whoever conducts or attempts to conduct a transaction described in
subsection (a)(1), or a transportation, transmission,or transfer described in
subsection (a)(2), is liable to the United States for a civil penalty of not
more than the greater of -
(1) the value of the property, funds, or monetary instruments involved in the
transaction; or
$10,000.
(2) the term ''conducts'' includes initiating, concluding, or participating in
initiating, or concluding a transaction;
(3) the term ''transaction'' includes a purchase, sale, loan, pledge, gift,
transfer, delivery, or other disposition, and with respect to a financial
institution includes a deposit, withdrawal, transfer between accounts,
exchange of currency, loan, extension of credit, purchase or sale of any
stock, bond, certificate of deposit, or other monetary instrument, use of a
safe deposit box, or any other payment, transfer, or delivery by, through, or
to a financial institution, by whatever means effected;
(4) the term ''financial transaction'' means
(A) a transaction which in any way or degree affects interstate or foreign
commerce
(i) involving the movement of funds by wire or other means or
(ii) involving one or more monetary instruments, or
(iii) involving the transfer of title to any real property, vehicle,vessel, or
aircraft, or
(B) a transaction involving the use of a financial institution which is
engaged in, or the activities which affect, interstate or foreign commerce in
any way or degree;
(5) the term ''monetary instruments'' means
(i) coin or currency of the United States or of any other country, travelers'
checks, personal checks, bank checks, and money orders, or
(ii) investment securities or negotiable instruments, in bearer form or
otherwise in such form that title thereto passes upon delivery;
(6) the term ''financial institution'' has the definition given that term in
section 5312(a)(2) of title 31, United States Code, or the regulations
promulgated thereunder;
Section (7) ,"specified unlawful activity" encompasses a myriad of violations
covered by many other laws interconnected through an unbelievable statutory
tracking that can bring under the umbrella of money laundering any imaginable
offense. Thus, any violation covered by any such other law which may include
some type of a financial transaction, can be structured by a prosecutor to
include a money laundering offense which in turn can escalate an offender's
sentence, even if the underlying offense is minor.
For example, under this section, ''specified unlawful activity'' means -
(A) any act or activity constituting an offense listed in section 1961(1) of
this title except an act which is indictable under subchapter II of chapter 53
of title 31;
(B) with respect to a financial transaction occurring in whole or in part in
the United States, an offense against a foreign nation involving -
(i) the manufacture, importation, sale, or distribution of a controlled
substance (as such term is defined for the purposes of the Controlled
Substances Act)
(ii) kidnaping, robbery, or extortion; or
(iii) fraud, or any scheme or attempt to defraud, by or against a foreign bank
(as defined in paragraph 7 of section 1(b) of the International Banking Act of
1978; (C) any act or acts constituting a continuing criminal enterprise, as
that term is defined in section 408 of the Controlled Substances Act (21
U.S.C. 848); (D) an offense under section 152 (relating to concealment of
assets; false oaths and claims; bribery), section 215 (relating to commissions
or gifts for procuring loans), any of sections 500 through 503 (relating to
certain counterfeiting offenses), section 513 (relating to securities of
States and private entities), section 542 (relating to entry of goods by means
of false statements), section 545 (relating to smuggling goods into the United
States), section 549 (relating to removing goods from Customs custody),
section 641 (relating to public money, property, or records), section 656
(relating to theft, embezzlement, or misapplication by bank officer or
employee), section 657 (relating to lending, credit, and insurance
institutions), section 658 (relating to property mortgaged or pledged to farm
credit agencies), section 666 (relating to theft or bribery concerning
programs receiving Federal funds), section 793, 794, or 798 (relating to
espionage), section 875 (relating to interstate communications), section 1005
(relating to fraudulent bank entries), 1006 (relating to fraudulent Federal
credit institution entries), 1007 (relating to Federal Deposit Insurance
transactions), 1014 (relating to fraudulentloan or credit applications), 1032
(relating to concealment ofassets from conservator, receiver, or liquidating
agent of financial institution), section 1201 (relating to kidnaping), section
1203 (relating to hostage taking), section 1708 (theft from the mail), section
2113 or 2114 (relating to bank and postal robbery and theft), or section 2319
(relating to copyright infringement) of this title, a felony violation o the
Chemical Diversion and Trafficking Act of 1988 (relating to precursor and
essential chemicals), section 590 of the Tariff Act of 1930 (19 U.S.C. 1590)
(relating to aviation smuggling), section 422 of the Controlled Substances Act
(relating to transportation of drug paraphernalia), section 38(c) (relating to
criminal violations) of the Arms Export Control Act, section11 (relating to
violations) of the Export Administration Act of1979, section 206 (relating to
penalties) of the International Emergency Economic Powers Act, section 16
(relating to offenses and punishment) of the Trading with the Enemy Act, any
felony violation of section 9(c) of the Food Stamp Act of 1977 (relating to
food stamp fraud) involving a quantity of coupons having a value of not less
than $5,000, or any felony violation of the Foreign Corrupt Practices
Act;................and so on
Title 18, U.S.C. Section 1957
Conduct prohibited by Section 1957 of the Money Laundering Control Act of 1986
applies to those circumstances where the offence takes place in the US or in
the special maritime and territorial jurisdiction of the US or where the
offence takes place outside the US but the defendant is a US citizen. It
applies to reporting requirements.
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The Pontential for Abuse of the Money Laundering Laws
In essence, the passage of the Money Laundering Control Act of 1986 created a
new class of money laundering "crimes" which encompassed just about every
imaginable offense that a prosecutor could charge. Given the vague language of
the statute and without specific guidelines to federal prosecutors, created
the potential for abuse. With increasing frequency these laws have been used
selectively by federal attorneys to "criminalize" and prosecute"politically
incorrect" Americans for a variety of "offenses". These laws have been used
systematically, not only against drug traffickers, but also to punish those
Americans who for some reason were targeted as being outside the established
economic, political and social order. Ironically, U.S. Government Agencies and
major establishment-connected banks who have been the greatest violators of
money laundering activities globally, were never prosecuted for their money
laundering activities. The only exceptions were BCCI and American Express.
Their prosecution under the money laundering laws amounted to nothing more
than a slap on the hand. The U.S. banks that were closely affiliated with BCCI
did not even receive a reprimand. In the case of American Express, the entire
blame was placed on a low level, "ethnic" manager of a small Florida branch.
No one else in American Express was prosecuted. The government "settled" the
case for approximately $50 million. Similarly many other similar criminal
cases of money laundering have been "settled" like civil cases through the
imposition of "fines" and without criminal sanctions. The criminal sanctions
are usually reserved for the small time offenders and the "politically
incorrect".
Top of the page
The Unconstitutionality of the Money Laundering "Sting" Statute, Title 18, U.S.
Code, Section 1956 (a)(3).
The Money Laundering "Sting" Statute, Title 18, U.S. Code, Section 1956 (a)(3)
violates the Fourth, Fifth, Sixth and Eighth Amendments of our Constitution by
permitting the improper prearrangement and orchestration of a "crime" and the
fabrication of the evidence with guaranteed conviction and level of
sentencing. Convictions are easily obtained through a prearranged, low
threshold of proof. Abuses of the "sting" statute have been attested and
documented by numerous sources, testimonies, newspaper and magazine articles,
government records of public hearings, improper prosecutions documented by
caselaw, and even by the U.S. Sentencing Commission's internal and independent
findings; the latter suggesting that due process was not followed in the
application of the "sting" statute and that as many as 68% of the persons that
have been convicted may be due to misrepresentations by law enforcement
officials using this "sting" statute. These 68% of convicted individuals never
believed that they were involved in a financial transaction which included
"proceeds of an unlaful activity", because no such representation was made by
law enforcement officers. Most of those convicted were coerced into plea
bargaining because of the high sentencing level of money laundering offenses.
In brief, the record proves unprecedented abuses. Continuing misapplication of
this law by federal prosecutors is subverting and undermining our Criminal
Justice System. Also, its continuous abuse raises greater issues and
philosophies that basic constitutional freedoms and guarantees are threatened
in our country.
Why is the "sting" Money Laundering Statute Unconstitutional?
Fourth Amendment Violations: The statute violates clearly the Fourth
Amendment's guarantee of the right of the people to be secure in their persons
against unreasonable searches. The "sting" itself, particularly when
outrageously applied and orchestrated, often without sufficient probable
cause, is a form of unreasonable search and invasion of privacy.
Fifth Amendment Violations: The "sting" statute violates the Fifth Amendment
and due process against self-incrimination in that no warning is given to the
targeted person and no Miranda rights are read that any statements made (even
the absence of statements or questions, interpreted as "willful neglect") will
be used against a defendant for money laundering or any other type of
prosecution. More often than not, the "sting" turns into a witch hunt and an
unethical fishing expedition, after the undercover agent wins the trust or
friendship of the targeted person. Furthermore, it violates the Fifth
Amendment when the government prosecutor's conduct and overzealousness for
conviction, by any means, become outrageous. Due process requirements of the
Fifth amendment are often violated because representation is not properly made
by law enforcement officers that the proceeds of a financial transaction are
indeed from an "unlawful activity". The key words in the statute are that the
proceeds are "from some form, though necessarily which form" of unlawful
activity". Thus the word "representation" is downgraded to "any
representation" in the statute and it is further downgraded in the definitions
to "some form, though necessarily which form" of unlawful activity. This vague
wording is the source of prosecutorial abuse. It allows a very vague
representation and misunderstanding which violates the due process requirement
of the Fifth Amendment.
Sixth Amendment Violations: The statute violates the Sixth Amendment because
its language is ambiguous and vague and in most "sting" money laundering cases
a targeted person is not informed clearly in the money laundering indictment
of the nature and cause of the underlying offense. Frequently, neither
defendants nor juries understand the statutory tracking of the money
laundering charge or the fact that underlying offenses are used only for
"definitional" purposes. Also, in many "sting" money laundering cases a
defendant does not get a speedy trial as the sixth Amendment requires. In most
"sting" cases prosecutors deprive defendants of speedy trial with the excuse
that there is an ongoing investigation of the defendant for "other crimes"
revealed during the "sting". Often, the prosecutor will reindict a defendant,
adding more counts on a piecemeal basis, to avoid the speedy trial and to
simply coerce a defendant to "plea bargain".
Eighth Amendment Violations: The "sting" statute clearly violates the Eighth
Amendment, because it imposes excessive bail, excessive fines, and imposes
cruel and unusual punishment totally out of proportion to the underlying
offense. It provides for $500,000 in fines and up to 20 years imprisonment,
same as a major drug trafficking violation, even if the alleged,
misrepresented, underlying offense of the "sting" is only a petty misdemeanor.
Often the alleged unlawful activity does not fall within the predicate
offenses of section (7) of the law to qualify as a money laundering offense. A
circuitrous statutory tracking is often used to bring the alleged offense
within the ambit of money laundering offenses with considerable, unusual and
cruel escalation of the offense level.
Top of the page
An Example of Money Laundering Law Misapplication.
The case of Dr.George Pararas-Carayannis presented in another section of this
page is an example of the frequent misapplications of the money laundering
laws. For unknown reasons, and in the absence of any ongoing criminal
activity, Dr. Pararas-Carayannis, an internationally recognized scientist, was
targeted for a money laundering "sting". The undercover government agent in
the "sting" was a young woman who was instructed by the prosecutor to befriend
Dr. Pararas-Carayannis and to ask him to process through his merchant account
a few credit card slips of her newly started "escort service" because she did
not, as yet, opened an account of her own. She claimed that she had the
necessary licences and that she was going to advertize in the Yellow Pages. No
other representation was ever made.
Dr. Pararas-Carayannis processed the slips through his account and gave the
young woman her money, deducting only for taxes and credit card company fees.
Subsequently he was charged by a federal prosecutor with "money laundering".
Although this had been a "sting" and there had been no real underlying
unlawful activity, the indictment charged him with the thought crime of
believing that in his own mind he was "disguising and concealing" proceeds of
"some form of unlawful activity" (even though there had been no such
representation). According to the indictment he was not charged with
committing or being a participant in any underlying unlawful activity (since
there was none). The prosecutor further claimed in court that the hypothetical
underlying offense needed not be represented nor proven for conviction. The
disclosure that the proceeds were from an escort service was enough, since
"everyone knows that escort services are fronts for prostitution".
Subsequent "plea-bargaining" efforts by the federal prosecutor to coerce Dr.
Pararas-Carayannis into a guilty plea before trial were clearly human rights'
violations. Because he refused to "plea bargain", the government attorney,
intentionally inflicted upon him unprecedented psychological torture through
unwarranted, continuous, retaliatory prosecutions, charging frivolous,
unsupported allegations - charges which could not be supported by facts or
evidence and which were subsequently dismissed. The single purpose of this
psychological/legal bulldozing was to break Dr. Pararas-Carayannis emotionally
and to coerce him to accept a guilty plea for the fabricated money laundering
charges of the"sting" scheme involving the proceeds (a few hundred dollars) of
the alleged unlawful activity - the non-existent, "escort" service. Allegedly
he netted $35 from this activity.
As a result of this unprecedented psychological torture and inhumane stress he
had been subjected, six weeks after the trial, Dr. Pararas-Carayannis suffered
a nearly fatal heart attack which resulted in his total disability and a
progressing heart failure. Yet, in spite of his dire health condition and
advanced age, he was subsequently sentenced to a total of 77 months for the
fabricated offense (41 months in prison and 36 months under court supervision.
This is in addition to seven years of supervised release he has already served
, making his total punishment for the fabricated "money laundering" offense
more than THIRTEEN (13) years. Clearly, this has been an outrageous
misapplication of the money laundering laws.
Top of the page
Forfeiture Laws
An AACLJ member from Colorado provided us the following letter from the
Colorado Herald. This letter summarizes the effect of prevailing unreasonable
attitudes on allegedly fighting "crime" with forfeiture laws aimed primarily
at raising revenues for law enforcement agencies.
LETTER TO THE EDITOR: DURANGO, COLORADO HERALD, 25 JAN. 1996
Support Reform of Forfeiture Laws
Did you know that your money, savings and property can be seized by zealous
officials based on an informant's comment or weak circumstantial evidence -
all without trial or due process? Did you know that if you are caught carrying
significant cash and this money elicits a reaction from a drug-sniffing dog
that all the money can be confiscated?
This is especially alarming as more than 96 per cent of U.S. currency tests
positive for cocaine. This has already occurred in a number of cases.
Then, when charges have been dropped or you have been found not guilty, you
have to sue the government to get your property back. Good luck paying for
this when all your assets are gone. And, where are you and your family going
to live while this often two year process takes place?
The drug war craze has blended with politicians' tough-on-crime posturing to
create a nightmare.
In 1990 a Department of Justice bulletin sent to all U.S. attorneys:
"Significantly increasing forfeiture production to reach our budgeted targets.
Failure to achieve the $470 million projection would expose the Department's
forfeiture program to criticism. Every effort must be made to increase
forfeiture income ...."
Assistant Attorney General Edward Dennis advising U.S. attorneys: "To divert
personnel from other activities, including criminal cases, to prepare all
forfeiture cases for action ...."
In 1992, the California Committee on Public Safety: "Asset forfeiture is a
multi-million dollar source of revenue for law enforcement. Thus, there is an
incentive to seize property as a revenue source."
In addition, in 1993, a Los Angeles County.deputy sheriff testified officers
stole $60 million in forfeited cash and property in 1988-89. A similar pattern
of activitv has been reported in New York and many other areas. And this was
six years ago.
If this is alarming to you, support the forfeiture Reform Bill (HR 1916) by
writing your representative. The bill is not ideal, but does begin to correct
the insanity.
Steve Self
Durango, Colorado
Top of the Page
AACLJ Home Page
WAR AND EMERGENCY POWERS
A SPECIAL REPORT ON THE NATIONAL EMERGENCY IN THE UNITED STATES OF
AMERICA This page contains the complete text of the book "War and
Emergency Powers" A SPECIAL REPORT ON THE NATIONAL EMERGENCY IN THE
UNITED STATES OF AMERICA.
Researched and written by: Gene Schroder, Alvin Jenkins,
Jerry Russell, Ed Petrowsky, Russell Grieder, Darrell Schroder,
Walter Marston, Lynn Bitner, Billy Schroder, Van Stafford, Fred
Peters, Tinker Spain, and Paul Bailey. This web site is sponsored by
American Freedom Coalition. Due to file size limitations we have
elected not to include scanned images of the exhibits that appear in
the book however, you may obtain a full printed report that includes
certified copies of all official documents as specified. For
information on how to order books, tapes, and how to become a
supporting member of the American Freedom Coalition click here
Letters to our servants. They must be educated!
Example Letter to the President
Example Letter to the House of Representatives
Example Letter to the United States Senate The Report...
NATIONAL EMERGENCY: (as defined in Black's Law Dictionary) A state
of national crisis; a situation demanding immediate and
extraordinary national or federal action. Congress has made little
or no distinction between a "state of national emergency" and a
"state of war". Brown v. Bernstein, D.C.Pa., 49 F.Supp. 728, 732.
This report begins with a series of documents which are
representative (Exhibits 1 through 7), of the documents contained in
this Report. We will be quoting from in many cases, reports, Senate
and Congressional reports, hearings before National Emergency
Committees, Presidential Papers, Statutes at Large, and the United
States Code. Exhibit 8 is taken from a book written by Swisher
called Constitutional Development. Let's read the first paragraph.
It says: "We may well wonder in view of the precedents now
established," said Charles E. Hughes, (Supreme Court Justice) in
1920, "whether constitutional government as heretofore maintained in
this Republic could survive another great war even victoriously
waged." How could that happen? Surely, if we go out and fight a war
and win it, we'd have to end up stronger than the day we started,
wouldn't we? Justice Hughes goes on to say: "The conflict known as
the World War had ended as far as military hostilities were
concerned, but was not yet officially terminated. Most of the war
statutes were still in effect, many of the emergency organizations
were still in operation." What is this man talking about when he
speaks of "war statutes in effect and emergency organizations still
in operation"? In 1933 (Exhibit 9), Congressman Beck, speaking from
the Congressional Record, states: "I think of all the damnable
heresies that have ever been suggested in connection with the
Constitution, the doctrine of emergency is the worst. it means that
when Congress declares an emergency, there is no Constitution. This
means its death. It is the very doctrine that the German chancellor
is invoking today in the dying hours of the parliamentary body of
the German republic, namely, that because of an emergency, it should
grant to the German chancellor absolute power to pass any law, even
though the law contradicts the Constitution of the German republic.
Chancellor Hitler is at least frank about it. We pay the
Constitution lipservice, but the result is the same." Congressman
Beck is saying that, of all the damnable heresies that ever existed,
this doctrine of emergency has got to be the worst, because once
Congress declares an emergency, there is no Constitution. He goes on
to say: "But the Constitution of the United States, as a restraining
influence in keeping the federal government within the carefully
prescribed channels of power, is moribund, if not dead. We are
witnessing its death-agonies, for when this bill becomes a law, if
unhappily it becomes a law, there is no longer any workable
Constitution to keep the Congress within the limits of its
Constitutional powers." What bill is Congressman Beck talking about?
In 1933, "the House passed the Farm Bill by a vote of more than
three to one." Again, we see the doctrine of emergency. Once an
emergency is declared, there is no Constitution. The cause and
effect of the doctrine of emergency is the subject of this Report.
In 1973, in Senate Report 93-549 (Exhibit 10), the first sentence
reads: "Since March the 9th, 1933, the United States has been in a
state of declared national emergency." Let's go back to Exhibit 9
just before this. What did that say? It says that if a national
emergency is declared, there is no Constitution. Now, let us return
to Exhibit 10. Since March the 9th of 1933, the United States has
been, in fact, in a state of declared national emergency. Referring
to the middle of this exhibit: "This vast range of powers, taken
together, confer enough authority to rule the country without
reference to normal constitutional processes. Under the powers
delegated by these statutes, the President may: seize property;
organize and control the means of production; seize commodities;
assign military forces abroad; institute martial law; seize and
control all transportation and communication; regulate the operation
of private enterprise; restrict travel; and, in a plethora of
particular ways, control the lives of all American citizens" and
this situation has continued uninterrupted since March the 9th of
1933. In the introduction to Senate Report 93-549 (Exhibit 11): "A
majority of the people of the United States have lived all their
lives under emergency rule." Remember, this report was produced in
1973. The introduction goes on to say: "For 40 years, freedoms and
governmental procedures guaranteed by the Constitution have, in
varying degrees, been abridged by laws brought into force by states
of national emergency." The introduction continues: "And, in the
United States, actions taken by the government in times of great
crisis have from, at least, the Civil War, in important ways shaped
the present phenomenon of a permanent state of national emergency."
How many people were taught that in school? How could it possibly be
that something which could suspend our Constitution would not be
taught in school? Amazing, isn't it? Where does this (Exhibit 12)
come from? Is it possible that, in our Constitution, there could be
some section which could contemplate what these previous documents
are referring to? In Article 1, Section 9 of the Constitution of the
United States of America, we find the following words: "The
privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion, the public Safety may
require it." Habeas Corpus - the Great Writ of Liberty. This is the
writ which guarantees that the government cannot charge us and hold
us with any crime, unless they follow the procedure of due process
of law. This writ also says, in effect, that the privilege of due
process of law cannot be suspended, and that the government cannot
not operate its arbitrary prerogative power against We the People.
But we see that the great Writ of Liberty can, in fact, under the
Constitution, be suspended when an invasion or a rebellion
necessitates it. In the 5th Amendment to the Constitution (Exhibit
13), it says: "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..." We reserved the charging power for ourselves, didn't we?
We didn't give that power to the government. And we also said that
the government would be powerless to charge one of the citizens or
one of the peoples of the United States with a crime unless We, the
People, through our grand jury, orders it to do so through an
indictment or a presentment. And if We, the People, don't order it,
the government cannot do it. If it tried to do it, we would simply
follow the Writ of Habeas Corpus, and they would have to release us,
wouldn't they? They could not hold us. But let us recall that, in
Exhibit 13, it says: "except in cases arising in the land or naval
forces, or in the Militia, when in actual service in times of War or
public danger." We can see here that the framers of the Constitution
were already contemplating times when there would be conditions
under which it might be necessary to suspend the guarantees of the
Constitution. Also from Senate Report 93-549 (Exhibit 14), and
remember that our congressmen wrote these reports and these
documents and they're talking about these emergency powers and they
say: "They are quite careful and restrictive on the power, but the
power to suspend is specifically contemplated by the Constitution in
the Writ of Habeas Corpus." Now, this is well known. This is not a
concept that was not known to rulers for many, many years. The
concepts of constitutional dictatorship went clear back to the Roman
Republic. And there, it was determined that, in times of dire
emergencies, yes, the constitution and the rights of the people
could be suspended, temporarily, until the crisis, whatever its
nature, could be resolved. But once it was done, the Constitution
was to be returned to its peacetime position of authority. In
France, the situation under which the constitution could be
suspended is called the State of Siege. In Great Britain, it's
called the Defense of the Realm Acts. In Germany, in which Hitler
became a dictator, it was simply called Article 48. In the United
States, it is called the War Powers. If that was, in fact, the case,
and we are under a war emergency in this country, then there should
be evidence of that war emergency in the current law that exists
today. That means we should be able to go to the federal code known
as the USC or United States Code, and find that statute, that law,
in existence. And if we went to the library today and picked up a
copy of 12 USC and went to Section 95 (b) (Exhibit 15), we will find
a law which states: "The actions, regulations, rules, licenses,
orders and proclamations heretofore or hereafter taken, promulgated,
made, or issued by the President of the United States or the
Secretary of the Treasury since March the 4th, 1933, pursuant to the
authority conferred by Subsection (b) of Section 5 of the Act of
October 6th, 1917, as amended [12 USCS Sec. 95a], are hereby
approved and confirmed. (Mar. 9, 1933, c. 1, Title I, Sec. 1, 48
Stat. 1.)". Now, what does this mean? It means that everything the
President or the Secretary of the Treasury has done since March the
4th of 1933, or anything that the President or the Secretary of the
Treasury is hereafter going to do, is automatically approved and
confirmed. Referring back to Exhibit 10, let us remember that,
according to the Congressional Record of 1973, the United States has
been in a state of national emergency since 1933. Then we realize
that 12 USC, Section 95 (b) is current law. This is the law that
exists over this United States this moment. If that be the case, let
us see if we can understand what is being said here. As every
action, rule or law put into effect by the President or the
Secretary of the Treasury since March the 4th of 1933 has or will be
confirmed and approved, let us determine the significance of that
date in history. What happened on March the 4th of 1933? On March
the 4th of 1933, Franklin Delano Roosevelt was inaugurated as
President of the United States. Referring to his inaugural address,
which was given at a time when the country was in the throes of the
Great Depression, we read (Exhibit 16): "I am prepared under my
constitutional duty to recommend the measures that a stricken nation
in the midst of a stricken world may require. These measures, or
such other measures as the Congress may build out of its experience
and wisdom, I shall seek, within my constitutional authority, to
bring to speedy adoption. But in the event that the Congress shall
fall to take one of these two courses, and in the event that the
national emergency is still critical, I shall not evade the clear
course of duty that will then confront me. I shall ask the Congress
for the one remaining instrument to meet the crisis broad Executive
power to wage a war against the emergency, as great as the power
that would be given to me if we were in fact invaded by a foreign
foe." On March the 4th, 1933, at his inaugural, President Roosevelt
was saying that he was going to ask Congress for the extraordinary
authority available to him under the War Powers Act. Let's see if he
got it. On March the 5th, President Roosevelt asked for a special
and extraordinary session of Congress in Proclamation 2038. He
called for the special session of Congress to meet on March the 9th
at noon. And at that Congress, he presented a bill, an Act, to
provide for relief in the existing national emergency in banking and
for other purposes. In the enabling portion of that Act (Exhibit
17), it states: "Be it enacted by the Senate and the House of
Representatives of the United States of America in Congress
assembled, That the Congress hereby declares that a serious
emergency exists and that it is imperatively necessary speedily to
put into effect remedies of uniform national application." What is
the concept of the rule of necessity, referred to in the enabling
portion of the act as "imperatively necessary speedily"? The rule of
necessity is a rule of law which states that necessity knows no law.
A good example of the rule of necessity would be the concept of
self-defense. The law says, "Thou shalt not kill". But also know
that, if you are in dire danger, in danger of losing your life, then
you have the absolute right of self-defense. You have the right to
kill to protect your own life. That is the ultimate rule of
necessity. Thus we see that the rule of necessity overrides all
other law, and, in fact, allows one to do that which would normally
be against the law. So it is reasonable to assume that the wording
of the enabling portion of the Act of March 9, 1933, is an
indication that what follows is something which will probably be
against the law. It will probably be against the Constitution of the
United States, or it would not require that the rule of necessity be
invoked to enact it. In the Act of March 9, 1933 (Exhibit 17), it
further states in Title 1, Section 1: "The actions, regulations,
rules, licenses, orders and proclamations heretofore or hereafter
taken, promulgated, made, or issued by the President of the United
States or the Secretary of the Treasury since March the 4th, 1933,
pursuant to the authority conferred by subdivision (b) of Section 5
of the Act of October 6, 1917, as amended, are hereby approved and
confirmed." Where have we read those words before? This is the exact
same wording as is found (Exhibit 15) today in Title 12, USC 95 (b).
The language in Title 12, USC 95 (b) is exactly the same as that
found in the Act of March 9, 1933, Chapter 1, Title 1, Section 48,
Statute 1. The Act of March 9, 1933, is still in full force and
effect today. We are still under the Rule of Necessity. We are still
in a declared state of national emergency, a state of emergency
which has existed, uninterrupted, since 1933, or for over sixty
years. As you may remember, the authority to do this is conferred by
Subsection (b) of Section 5 of the Act of October 6, 1917, as
amended. What was the authority which was used to declare and enact
the emergency in this Act? If we look at the Act of October 6, 1917
(Exhibit 18), we see that at the top right-hand part of the page, it
states that this was: "An Act To define, regulate, and punish
trading with the enemy, and for other purposes." By the year 1917,
the United States was involved in World War 1; at that point, it was
recognized that there were probably enemies of the United States, or
allies of enemies of the United States, living within the
continental borders of our nation in a time of war. Therefore,
Congress passed this act which identified who could be declared
enemies of the United States, and, in this act, we gave the
government total authority over those enemies to do with as it saw
fit. We also see, however, in Section 2, Subdivision (c) in the
middle, and again at the bottom of the page: "other than citizens of
the United States." The act specifically excluded citizens of the
United States, because we realized in 1917 that the citizens of the
United States were not enemies. Thus, we were excluded from the war
powers over enemies in this act. Section 5 (b) of the same act
(Exhibit 19), states: "That the President may investigate, regulate,
or prohibit, under such rules and regulations as he may prescribe,
by means of licenses or otherwise, any transactions in foreign
exchange, export or earmarkings of gold or silver coin or bullion or
currency, transfers of credit in any form (other than credits
relating solely to transactions to be executed wholly within the
United States)". Again, we see here that citizens, and the
transactions of citizens made wholly within the United States, were
specifically excluded from the war powers of this act. "We the
People", were not enemies of our country; therefore, the government
did not have total authority over us as they were given over our
enemies. It is important to draw attention again to the fact that
citizens of the United States in October, 1917, were not called
enemies. Consequently the government, under the war powers of this
act, did not have authority over us; we were still protected by the
Constitution. Granted, over enemies of this nation, the government
was empowered to do anything it deemed necessary, but not over us.
The distinction made between enemies of the United States and
citizens of the United States will become crucial later on. In
Section 2 of the Act of March 9, 1933 (Exhibit 17), "Subdivision (b)
of Section 5 of the Act of October 6, 1917 (40 Stat. L. 411), as
amended, is hereby amended to read as follows;" So we see that they
are now going to amend Section 5 (b). Now let's see how it reads
after it's amended. The amended version of Section 5 (b) reads
(emphasis added): "During time of war or during any other period of
national emergency declared by the President, the President may,
through any agency that be may designate, or otherwise, investigate,
regulate, or prohibit, under such rules and regulations as be may
prescribe, by means of licenses or otherwise, any transactions in
foreign exchange, transfers of credit between or payments by banking
institutions as defined by the President and export, hoarding,
melting, or earmarkings of gold or silver coin or bullion or
currency, by any person within the United States or anyplace subject
to the jurisdiction thereof". What just happened? At as far as
commercial, monetary or business transactions were concerned, the
people of the United States were no longer differentiated from any
other enemy of the United States. We had lost that crucial
distinction. Comparing Exhibit 17 with Exhibit 19, we can see that
the phrase which excluded transactions executed wholly within the
United States has been removed from the amended version of Section 5
(b) of the Act of March 9, 1933, Section 2, and replaced with "by
any person within the United States or anyplace subject to the
jurisdiction thereof'. All monetary transactions, whether domestic
or international in scope, were now placed at the whim of the
President of the United States through the authority given to him by
the Trading with the Enemy Act. To summarize this critical point: On
October the 6th of 1917, at the beginning of America's involvement
in World War 1, Congress passed a Trading with the Enemy Act
empowering the government to take control over any and all
commercial, monetary or business transactions conducted by enemies
or allies of enemies within our continental borders. That act also
defined the term "enemy" and excluded from that definition citizens
of the United States. In Section 5 (b) of this act, we see that the
President was given unlimited authority to control the commercial
transactions of defined enemies, but we see that credits relating
solely to transactions executed wholly within the United States were
excluded from that controlling authority. As transactions wholly
domestic in nature were excluded from authority, the government had
no extraordinary control over the daily business conducted by the
citizens of the United States, because we were certainly not
enemies. Citizens of the United States were not enemies of their
country in 1917, and the transactions conducted by citizens within
this country were not considered to be enemy transactions. But in
looking again at Section 2 of the Act of March 9, 1933, (Exhibit
17), we can see that the phrase excluding wholly domestic
transactions has been removed from the amended version and replaced
with "by any person within the United States or anyplace subject to
the jurisdiction thereof'. The people of the United States were now
subject to the power of the Trading with the Enemy Act of October
6,1917, as amended. For the purposes of all commercial, monetary,
and, in effect, all business transactions. "We the People", became
the same as the enemy, and were treated no differently. There was no
longer any distinction. It is important here to note that, in the
Acts of October 6, 1917 and March 9, 1933, it states: "during times
of war or during any other national emergency declared by the
President...". So we now see that the war powers not only included a
period of war, but also a period of "national emergency" as defined
by the President of the United States. When either of these two
situations occur, the President may, (Exhibit 17) "through any
agency that he may designate, or otherwise, investigate, regulate or
prohibit under such rules and regulations as he may prescribe by
means of licenses or otherwise, any transactions in foreign
exchange, transfers of credit between or payments by banking
institutions as defined by the President and export, boarding,
melting or earmarking of gold or silver coin or bullion or currency
by any person within the United States or anyplace subject to the
jurisdiction thereof." What can the President do now to the We, the
People, under this Section? He can do anything he wants to do. It's
purely at his discretion, and he can use any agency or any license
that he desires to control it. This is called a constitutional
dictatorship. In Senate Document 93-549 (Exhibit 20), Congress
declared that a serious emergency exists, at: "48 Stat. 1. The
exclusion of domestic transactions, formerly found in the Act, was
deleted from Sect. 5 (b) at this time." Our Congress wrote that in
the year 1973. Now let's find out about the Trading with the Enemy
Act of October 6, 1917. Quoting from a Supreme Court decision
(Exhibit 21), Stoehr v. Wallace, 1921: "The Trading With the Enemy
Act, originally and as amended, is strictly a war measure, and finds
its sanction in the provision empowering Congress "to declare war,
grant letters of marque and reprisal, and make rules concerning
captures on land and water" Const. Art. 1, Sect. 8, c1. 11. P.241".
Remember your Constitution? "Congress shall have the power to
declare war, grant letters of marque and reprisal and make all rules
concerning the captures on the land and the water of the enemies,"
all rules. If that be the case, let us look at the memorandum of law
that now covers trading with the enemy, the "Memorandum of American
Cases and Recent English Cases on The Law of Trading With the Enemy"
(Exhibit 22), remembering that we are now the same as the enemy. In
this memorandum, we read: "Every species of intercourse with the
enemy is illegal. This prohibition is not limited to mere commercial
intercourse." This is the case of The Rapid (1814). Additionally,
"No contract is considered as valid between enemies, at least so far
as to give them a remedy in the courts of either government, and
they have, in the language of the civil law, no ability to sustain a
persona standi in judicio". In other words, they have no personal
lights at law in court. This is the case of The Julia (1813). In the
next case, the case of The Sally (1814) (Exhibit 23), we read the
words: "By the general law of prize, property engaged in an illegal
intercourse with the enemy is deemed enemy property. It is of no
consequence whether it belong to an ally or to a citizen; the
illegal traffic stamps it with the hostile character, and attaches
to it all the penal consequences of enemy ownership". Reading
further in the memorandum, again from the case of The Rapid: "The
law of prize is part of the law of nations. In it, a hostile
character is attached to trade, independently of the character of
the trader who pursues or directs it. Condemnation to the use of the
captor is equally the fate of the property of the belligerent and of
the property found engaged in anti-neutral trade. But a citizen or
an ally may be engaged in a hostile trade, and thereby involve his
property in the fate of those in whose cause he embarks". Again from
the memorandum (Exhibit 24): "The produce of the soil of the hostile
territory, as well as other property engaged in the commerce of the
hostile power, as the source of its wealth and strength, are always
regarded as legitimate prize, without regard to the domicile of the
owner". From the case (Exhibit 25) of The William Bagaley (1866):
"In general, during war, contracts with, or powers of attorney or
agency from, the enemy executed after outbreak of war are illegal
and void; contracts entered into with the enemy prior to the war are
either suspended or are absolutely terminated; partnerships with an
enemy are dissolved; powers of attorney from the enemy, with certain
exceptions, lapse; payments to the enemy (except to agents in the
United States appointed prior to the war and confirmed since the
war) are illegal and void; all rights of an enemy to sue in the
courts are suspended." From Senate Report No. 113 (Exhibit 26), in
which we find An Act to Define, Regulate, and Punish Trading with
the Enemy, and For Other Purposes, we read: "The trade or commerce
regulated or prohibited is defined in Subsections (a), (b), (c), (d)
and (e), page 4. This trade covers almost every imaginable
transaction, and is forbidden and made unlawful except when allowed
under the form of licenses issued by the Secretary of Commerce (p.
4, sec. 3, line 18). This authorization of trading under licenses
constitutes the principal modification of the rule of international
law forbidding trade between the citizens of belligerents, for the
power to grant such licenses, and therefore exemption from the
operation of law, is given by the bill." It says no trade can be
conducted or no intercourse can be conducted without a license,
because, by mere definition of the enemy, and under the prize law,
all intercourse is illegal. That was the first case we looked at,
Exhibit 22, wasn't it? So once we were declared enemies, all
intercourse became illegal for us. The only way we could now do
business or any type of legal intercourse was to obtain permission
from our government by means of a license. We are certainly required
to have a Social Security Card, which is a license to work, and a
Drivers License, which gives the government the ability to restrict
travel; all business in which we engage ourselves requires us to
have a license, does it not? Returning once again to the Memorandum
of Law: (Exhibit 27) "But it is necessary always to bear in mind
that a war cannot be carried on without hurting somebody, even, at
times, our own citizens. The public good, however, must prevail over
private gain. As we said in Bishop v. Jones (28 Texas, 294), there
cannot be "a war for arms and a peace for commerce". One of the most
important features of the bill is that which provides for the
temporary taking over of the enemy property." This point of law is
important to keep in mind, for it authorizes the temporary takeover
of enemy property. The question is: Once the war terminates, the
property must be returned, mustn't it? The property that is
confiscated, and the belligerent night of the government during the
period of war, must be returned when the war terminates. Let us take
the case of a ship in harbor; war breaks out, and the Admiral says,
"I'm seizing your ship." Can you stop him? No. But when the war is
over, the Admiral must return your ship to you. This point is
important to bear in mind, for we will return to, and expand upon,
it later in the report. Reading from (Exhibit 28) Senate Document
No. 43, "Contracts Payable in Gold" written in 1933: "The ultimate
ownership of all property is in the State; individual so-called
"ownership" is only by virtue of government, i. e., law, amounting
to mere user; and use must be in accordance with law and subordinate
to the necessities of the State." Who owns all the property? Who
owns the property you call "yours"? Who has the authority to
mortgage property? Let us continue with a Supreme Court decision,
(Exhibit 29) United States v. Russell: "Private property, the
Constitution provides, shall not be taken for public use without
just compensation..." That is the peacetime clause, isn't it?
Further (emphasis added), "Extraordinary and unforeseen occasions
arise, however, beyond all doubt, in cases of extreme necessity in
time of war or of immediate and impending public danger, in which
private property may be impressed into the public service, or may be
seized or appropriated to public use, or may even be destroyed
without the consent of the owner..." This quote, and indeed this
case, provides a vivid frustration of the potential power of the
government. Now, let us return to the period of time after March 4,
1933, and take a close look at what really occurred. On March 4,
1933, in his inaugural address, President Franklin Delano Roosevelt
asked for the authority of the war powers, and called a special
session of Congress for the purpose of having those powers conferred
to him. On March the 2nd, 1933, however, we find that Herbert Hoover
had written a letter to the Federal Reserve Board of New York,
asking them for recommendations for action based on the over-all
situation at the time. The Federal Reserve Board responded with a
resolution (Exhibit 30) which they had adopted, an excerpt from
which follows: "Resolution Adopted By The Federal Reserve Board Of
New York. Whereas, in the opinion of the Board of Directors of the
Federal Reserve Bank of New York, the continued and increasing
withdrawal of currency and gold from the banks of the country has
now created a national emergency ..." In order to fully appreciate
the significance of this last quote, we must recall that, in 1913,
The Federal Reserve Act was passed, authorizing the creation of a
central bank, the thought of which had already been noted in the
Constitution. The basic idea of the central bank was, among other
things, for it to act as a secure repository for the gold of the
people. We, the People, would bring our gold to the huge, strong
vaults of the Federal Reserve, and we would be issued a note which
said, in effect, that, at any time we desired, we could bring that
note back to the bank and be given back our gold which we had
deposited. Until 1933, that agreement, that contract between the
Federal Reserve and its depositors, was honored. Federal Reserve
notes, prior to 1933, were indeed redeemable in gold. After 1933,
the situation changed drastically. In 1933, during the depths of the
Depression, at the time when We, the People, were struggling to stay
alive and keep our families fed, the bankers began to say: "People
are coming in now, wanting their gold, wanting us to honor this
contract we have made with them to give them their gold on demand,
and this contractual obligation is creating a national emergency."
How could that happen? Reading from the Public Papers of Herbert
Hoover (Exhibit 31): "Now, Therefore, Be It Resolved, that, in this
emergency, the Federal Reserve Board is hereby requested to urge the
President of the United States to declare a bank holiday, Saturday,
March 4, and Monday, March 6. In other words, President Roosevelt
was urged to close down the banking system and make it unavailable
make it unavailable for a short period of time. What was to happen
during that period of time? Reading again from the Federal Reserve
Board resolution (Exhibit 31), we find a proposal for an executive
order, to be worded as follows: "Whereas, it is provided in Section
5 (b) of the Act of October 6, 1917, as amended, that "the President
may investigate, regulate, or prohibit, under such rules and
regulations as he may prescribe, by means of licenses or otherwise,
any transactions in foreign exchange and the export, hoarding,
melting, or earmarkings of gold or silver coin or bullion or
currency, *** " Now, in any normal usage of the American language,
the standard accepted meaning of a series of three asterisks after a
quotation means that what follows also must be quoted exactly,
doesn't it? If it's not, that's a fraudulent use of the American
language. At that point where that, *** " began, what did the
original Act of October 6, 1917, say? Referring back to Exhibit 19,
we find that the remainder of Section 5 (b) of the Act of October 6,
1917 says: "(other than credits relating solely to transactions to
be executed wholly within the United States)." This portion of
Section 5 (b) specifically prohibited the government from taking
control of We, the People's money and transactions, didn't it?
However, let us now read the remainder of Section 5 (b) of the Act
of October 6, 1917, as amended on March 9, 1933 (Exhibit 17): "by
any person within the United States or any place subject to the
Jurisdiction thereof." Comparing the original with the amended
version of Section 5 (b), we can see the full significance of the
amended version, wherein the exclusion of domestic transactions from
the powers of the Act was deleted, and "any person" became subject
to the extraordinary powers conferred by the act. Further, we can
now see that the usage of *** " was, in all to likelihood, meant be
deliberately misleading, if not fraudulent in nature. Further, in
the next section of the Federal Reserve Board's proposal, we find
that anyone violating any provision of this act will be fined not
more than $10,000.00, or imprisoned for not more than ten years, or
both. A severe enough penalty at any time, but one made all the more
harsh by the economic conditions in which most Americans found
themselves at the time. And where were these alterations and
amendments to be found? Not from the government itself, initially;
no, they are first to be found in a proposal from the Federal
Reserve Board of New York, a banking institution. Let us recall the
chronology of events: Herbert Hoover, in his last days as President
of the United States, asked for a recommendation from the Federal
Reserve Board of New York, and they responded with their proposals.
We see that President Hoover did not act on the recommendation, and
believed the actions were "neither justified nor necessary"
(Appendix, Public Papers of Herbert Hoover, p. 1088) . Let us see
what happened; remember on March 4, 1933, Franklin Delano Roosevelt
was inaugurated as President of the United States. On March 5, 1933,
President Roosevelt called for an extraordinary session of Congress
to be held on March 9,1933, as can be seen in Exhibit 32: "Whereas,
public interests require that the Congress of the United States
should be convened in extra session at twelve o'clock, noon, on the
Ninth day of March, 1933, to receive such communication as may be
made by the Executive." On the next day, March 6, 1933, President
Roosevelt issued Proclamation 2039, which has been included in this
report, starting at the bottom of Exhibit 32. In Exhibit 32, we find
the following: "Whereas there have been heavy and unwarranted
withdrawals of gold and currency from our banking institutions for
the purpose of hoarding" Right at the beginning, we have a problem.
And the problem rests in the question of who should be the judge of
whether or not my gold, on deposit at the Federal Reserve, with
which I have a contract which says, in effect, that I may withdraw
my gold at my discretion, is being withdrawn by me in an
"unwarranted" manner. Remember, the people of the United States were
in dire economic straits at this point. If I had gold at the Federal
Reserve, I would consider withdrawing as much of my gold as I needed
for my family and myself a "warranted" action. But the decision was
not left up to We, the People. It is also important to note that it
is stated that the gold is being withdrawn for the purpose of
"hoarding". The significance of this phrase becomes clearer when we
reach Proclamation 2039, wherein the term "hoarding" is inserted
into the amended version of Section 5(b). The term, "hoarding", was
not to be found in the original version of Section 5(b) of the Act
of October 6, 1917. It was a term which was used by President
Roosevelt to help support his contention that the United States was
in the middle of a national emergency, and his assertion that the
extraordinary powers conferred to him by the War Powers Act were
needed to deal with that emergency. Let us now go on to the middle
of Proclamation 2039, at the top of the next page, Exhibit 33. In
reading from Exhibit 33, we find the following: "Whereas, it is
provided in Section 5 (b) of the Act of October 6, 1917, (40 Stat.
L. 411) as amended, " that the President may investigate, regulate,
or prohibit, under such rules and regulations as he may prescribe,
by means of licenses or otherwise, any transaction in foreign
exchange and the export, hoarding, melting, or earmarkings of gold
or silver coin or bullion or currency * * * " exactly as was first
proposed by the Federal Reserve Board of New York (Exhibit 31). If
we return to 48 Statute 1 (Exhibit 17), Title 1, Section 1, we find
that the amended Section 5 (b) with its added phrase: "by any person
within the United States or any place subject to the jurisdiction
thereof". Is this becoming clearer as to exactly what happened? On
March 5, 1933, President Roosevelt called for an extra session of
Congress, and on March 6, 1933, issued Proclamation 2039 (Exhibits
32-33). On March 9th, Roosevelt issued Proclamation 2040. We looked
at Proclamation 2039 on Exhibits 32 and 33, and now, on Exhibit 33
(a), let's see what Roosevelt is hiking about in Proclamation 2040:
"Whereas, on March 6, 1933, I, Franklin D. Roosevelt, President of
the United States of America, by Proclamation declared the existence
of a national emergency and proclaimed a bank holiday... " We see
that Roosevelt declared a national emergency and a bank holiday.
Let's read on: "Whereas, under the Act of March 9, 1933, all
Proclamations heretofore or hereafter issued by the President
pursuant to the authority conferred by section 5 (b) of the Act of
October 6, 1917, as amended, are approved and confirmed;" This
section of the Proclamation clearly states that all proclamations
heretofore or hereafter issued by the President are approved and
confirmed, citing the authority of Section 5 (b). The key words here
being "all" and "approved". Further: "Whereas, said national
emergency still continues, and it is necessary to take further
measures extending beyond March 9, 1933, in order to accomplish such
purposes" We again clearly see that there is more to come, evidenced
by the phrase, "further measures extending beyond March 9, 1933
...". Could this be the beginning of a new deal? Possibly a
one-sided deal. How long can this type of action continue? Let's
find out. "Now, therefore, I, Franklin D. Roosevelt, President of
the United States of America, in view of such continuing national
emergency and by virtue of the authority vested in me by Section 5
(b) of the Act of October 6, 1917 (40 Stat. L. 411) as amended by
the Act of March 9, 1933, do hereby proclaim, order, direct and
declare that all the terms and provisions of said Proclamation of
March 6, 1933, and the regulations and orders issued thereunder are
hereby continued in full force and effect until further proclamation
by the President." We now understand that the Proclamation 2039, of
March 6, 1933 and Proclamation 2040 of March 9, 1933, will continue
until such time as another proclamation is made by "the President".
Note that the term "the President" is not specific to President
Roosevelt; it is a generic term which can equally apply to any
President from Roosevelt to the present, and beyond. So here we have
President Roosevelt declaring a national emergency (we are now
beginning to realize the full significance of those words) and
closing the national banks for two days, by Executive Order.
Further, he states that the Proclamations bringing about these
actions will continue "in full force and effect" until such time as
the President, and only the President, changes the situation. It is
important to note the fact that these Proclamations were made on
March 6, 1933, three days before Congress was due to convene its
extra session. Yet references are made to such things as the amended
Section 5 (b), which had not yet even been confirmed by Congress.
President Roosevelt must have been supremely confident of Congress'
confirmation of his actions. And indeed, we find that confidence was
justified. For on March 9, 1933, without individual Congressmen even
having the opportunity to read for themselves the bill they were to
confirm, Congress did indeed approve the amendment of Section 5 (b)
of the Act of October 6, 1917. Referring to the Public Papers of
Herbert Hoover (Exhibit 34): "That those speculators and insiders
were right was plain enough later on. This first contract of the
'moneychangers' with the New Deal netted those who removed their
money from the country a profit of up to 60 percent when the dollar
was debased." Where had our gold gone? Our gold had already been
moved offshore. The gold was not in the banks, and when We, the
People lined up at the door attempting to have our contracts
honored, the deception was exposed. What happened then? The laws
were changed to prevent us from asking again, and the military was
brought in to protect the Federal Reserve. We, the People, were
declared to be, the same as public enemy and placed under military
authority. Going now to another section of 48 Statute 1 (Exhibit
35): "Whenever in the judgment of the Secretary of the Treasury,
such action is necessary to protect the currency system of the
United States, the Secretary of the Treasury, in his discretion, may
require any or all individuals, partnerships, associations and
corporations to pay and deliver to the Treasurer of the United
States any or all gold coin, gold bullion, and gold certificates
owned by such individuals, partnerships, associations and
corporations." By this Statute, everyone was required to turn in
their gold. Failure to do so would constitute a violation of this
provision, such violation to be punishable by a fine of not more
than $10,000.00 and imprisonment for not more than ten years. It was
a seizure. Whose property may be seized without due process of law
under the Trading With the Enemy Act? The enemy's. Whose gold was
seized? Ours - the gold of the people of the United States. From the
Roosevelt Papers (Exhibit 36): "During this banking holiday it was
at first believed that some form of scrip or emergency currency
would be necessary for the conduct of ordinary business. We knew
that it would be essential when the banks reopened to have an
adequate supply of currency to meet all possible demands of
depositors. Consideration was given by government officials and
various government officials and various local agencies to the
advisability of issuing clearinghouse certificates or some similar
form of local emergency currency. On March 7, 1933, the Secretary of
the Treasury issued a regulation authorizing clearing houses to
issue demand certificates against sound assets of the banking
institutions, but this authority was not to become effective until
March 10th. In many cities, the printing of these certificates was
actually begun, but after the passage of the Emergency Banking
Relief Act of March 9, 1933 (48 Stat. 1), it became evident that
they would not be needed, because the Act made possible the issue of
the necessary amount of emergency currency in the form of Federal
Reserve banknotes which could be based on any sound assets owned by
banks." Roosevelt could now issue emergency currency under the Act
of March 9, 1933 and this currency was to be called Federal Reserve
bank notes. From Title 4 of the Act of March 9, 1933 (Exhibit 37):
"Upon the deposit with the Treasurer of the United States, (a) of
any direct obligations of the United States or (b) of any notes,
drafts, bills of exchange, or bankers' acceptances acquired under
the provisions of this act, any Federal reserve bank making such
deposit in the manner prescribed by the Secretary of the Treasury
shall be entitled to receive from the Comptroller of the currency
circulating notes in blank, duly registered and countersigned." What
is this saying? It says (emphasis added): "Upon the deposit with the
Treasurer of the United States, (a) of any direct obligation of the
United States ..." What is a direct obligation of the United States?
It's a treasury note, which is an obligation upon whom? Upon "We the
People" to perform. It's a taxpayer obligation, isn't it? Title 4
goes on: "or (b) of my notes, drafts, bills of exchange or bankers'
acceptances..." What's a note? If you go to the bank and sign a note
on your home, that's a note, isn't it? A note is a private
obligation upon We, the People. And if the Federal Reserve Bank
deposits either (a) public and/or (b) private obligation of We, the
People, with the Treasury, the Comptroller of the currency will
issue this circulating note endorsed in blank, duly registered and
countersigned, an emergency currency based on the (a) public and/or
(b) private obligations of the people of the United States. In the
Congressional Record of March 9, 1933 (Exhibit 38), we find evidence
that our congressmen didn't even have individual copies of the bill
to read, on which they were about to vote. A copy of the bill was
passed around for approximately 40 minutes. Congressman McFadden
made the comment, "Mr. Speaker, I regret that the membership of the
House has had no opportunity to consider or even read this bill. The
first opportunity I had to know what this legislation is, was when
it was read from the clerk's desk. It is an important banking bill.
It is a dictatorship over finance in the United States. It is
complete control over the banking system in the United States ... It
is difficult under the circumstances to discuss this bill. The first
section of the bill, as I grasped it, is practically the war powers
that were given back in 1917." Congressman McFadden later says, "I
would like to ask the chairman of the committee if this is a plan to
change the holding of the security back of the Federal Reserve notes
to the Treasury of the United States rather than the Federal Reserve
agent." Keep in mind, here, that, prior to 1933, the Federal Reserve
bank held our gold as security, in return for Federal Reserve gold
notes which we could redeem at any time we wanted. Now, however,
Congressman McFadden is asking if this proposed bill is a plan to
change who's going to hold the security, from the Federal Reserve to
the Treasury. Chairman Steagall's response to Congressman McFadden's
question, again from the Congressional Record: "This provision is
for the issuance of Federal Reserve bank notes; and not for Federal
Reserve notes; and the security back of it is the obligations,
notes, drafts, bills of exchange, bank acceptances, outlined in the
section to which the gentleman has referred." We were backed by
gold, and our gold was seized, wasn't it? We were penniless, and now
our money would be secured, not by gold, but by notes and
obligations on which We, the People, were the collateral security.
Congressman McFadden then questioned, "Then the new circulation is
to be Federal Reserve bank notes and not Federal Reserve notes. Is
that true?" Mr. Steagall replied, "Insofar as the provisions of this
section are concerned, yes." Does that sound familiar? Next we hear
from Congressman Britten, as noted in the Congressional Record
(Exhibit 39): "From my observations of the bill as it was read to
the House, it would appear that the amount of bank notes that might
be issued by the Federal Reserve System is not limited. That will
depend entirely upon the amount of collateral that is presented from
time to time for exchange for bank notes. Is that not correct?" Who
is the collateral? We are chattel, aren't we? We have no rights. Our
rights were suspended along with the Constitution. We became chattel
property to the corporate government, our transactions and
obligations the collateral for the issuance of Federal Reserve bank
notes. Congressman Patman, speaking from the Congressional Record
(Exhibit 40): "The money will be worth l00 cents on the dollar
because it is backed by the credit of the Nation. It will represent
a mortgage on all the homes and other property of all the people in
the Nation." It now is no wonder that credit became so available
after the Depression. It was needed to back our monetary system. Our
debts, our obligations, our homes, our jobs... we were now slaves
for the system. From Statutes at Large, in the Congressional Record
(Exhibit 41): "When required to do so by the Secretary of the
Treasury, each Federal Reserve agent shall act as agent of the
Treasurer of the United States or of the Comptroller of the
currency, or both, for the performance of any functions which the
Treasurer or the Comptroller may be called upon to perform in
carrying out the provisions of this paragraph." The Federal Reserve
was taken over by the Treasury. The Treasury holds the assets. We
are the collateral... ourselves and our property. To summarize
briefly: On March 9, 1933 the American people in all their domestic,
daily, and commercial transactions became the same as the enemy. The
President of the United States, through licenses or any other form,
was given the power to regulate and control the actions of enemies.
He made We, the People, chattel property; he seized our gold, our
property and our rights; and he suspended the Constitution. And we
know that current law, to this day, says that all proclamations
issued heretofore or hereafter by the President or the Secretary of
the Treasury are approved and confirmed by Congress. Pretty broad,
sweeping approval to be automatic, wouldn't you agree? On March 11,
1933, President Roosevelt, in his first radio "Fireside Chat"
(Exhibit 42), makes the following statement: "The Secretary of the
Treasury will issue licenses to banks which are members of the
Federal Reserve system, whether national bank or state, located in
each of the 12 Federal Reserve bank cities, to open Monday morning."
It was by this action that the Treasury took over the banking
system. Black's Law Dictionary defines the Bank Holiday of 1933
(Exhibit 42a) in the following words: "Presidential Proclamations
No. 2039, issued March 6, 1933, and No. 2040, issued March 9, 1933,
temporarily suspended banking transactions by member banks of the
Federal Reserve System. Normal banking functions were resumed on
March 13, subject to certain restrictions. The first proclamation,
it was held, had no authority in law until the passage on March 9,
1933, of a ratifying act (12 U.S.C.A. Sect. 95b). Anthony v. Bank of
Wiggins, 183 Miss. 883, 184 So. 626. The present law forbids member
banks of the Federal Reserve System to transact banking business,
except under regulations of the Secretary of the Treasury, during an
emergency proclaimed by the President. 12 U. S. C. A. Sect. 95" Take
special note of the last sentence of this definition, especially the
phrase, "present law". The fact that banks are under regulation of
the Treasury today, is evidence that the state of emergency still
exists, by virtue of the definition. Not that, at this point, we
need any more evidence to prove we are still in a declared state of
national emergency. From the Agricultural Adjustment Act of May 12,
1933 (Exhibit 43): "To issue licenses permitting processors,
associations of producers and others to engage in the handling, in
the current of interstate or foreign commerce, of any agricultural
commodity or product thereof." This is the seizure of the
agricultural industry by means of licensing authority. In the first
hundred days of the reign of Franklin Delano Roosevelt, similar
seizures by licensing authority were successfully completed by the
government over a plethora of other industries, among them
transportation, communications, public utilities, securities, oil,
labor, and all natural resources. The first hundred days of FDR saw
the nationalization of the United States, its people and its assets.
What has Bill Clinton talked about during his campaign and early
presidency? His first hundred days. Now, we know that they took over
all contracts, for we have already read in Exhibit 22: "No contract
is considered as valid as between enemies, at least so far as to
give them a remedy in the courts of law of either government, and
they have, in the language of civil law, no ability to sustain a
persona standi in judicio." They have no personal nights at law.
Therefore, we should expect that we would see in the statutes a time
when the contract between the, Federal Reserve and We, the People,
in which the Federal Reserve had to give us our gold on demand, was
made null and void. Referring to House Joint Resolution 192 (June 5,
1933) (Exhibit 44): "That (a) every provision contained in or made
with respect to any obligation which purports to give the obligee a
right to require payment in gold or a particular- kind of coin or
currency, or in an amount of money of the United States measured
thereby is declared to be against public policy; and no such policy
shall be contained in or made with respect to any obligation
hereafter incurred." Indeed, our contract with the Federal Reserve
was invalidated at the end of Roosevelt's hundred days. We lost our
night to require our gold back from the bank in which we had
deposited it. Returning once again to the Roosevelt Papers (Exhibit
45): "This conference of fifty farm leaders met on March 10, 1933.
They agreed on recommendations for a bill, which were presented to
me at the White House on March 11th by a committee of the
conference, who requested me to call upon the Congress for the same
broad powers to meet the emergency in agriculture as I had requested
for solving the bank crisis." What was the "broad powers"? That was
the War Powers, wasn't it? And now we see the farm leaders asking
President Roosevelt to use the same War Powers to take control of
the agricultural industry. Well, needless to say, he did. We should
wonder about all that took place at this conference, for it to
result in the eventual acquiescence of farm leadership to the
governmental takeover of their livelihoods. Reading from the
Agricultural Adjustment Act, May the 12th, Declaration of Emergency
(Exhibit 46): "That the present acute economic emergency being in
part the consequence of a severe and increasing disparity between
the prices of agriculture and other commodities, which disparity bas
largely destroyed the purchasing power of farmers for industrial
products, has broken down the orderly exchange of commodities, and
has seriously impaired the agricultural assets supporting the
national credit structure, it is hereby declared that these
conditions in the basic industry of agriculture have affected
transactions in agricultural commodities with a national public
interest, have burdened and obstructed the normal currents of
commerce in such commodities and rendered imperative the immediate
enactment of Title 1 of this act." Now here we see that he is saying
that the agricultural assets support the national credit structure.
Did he take the titles of all the land? Remember "Contracts payable
in gold!" President Roosevelt needed the support, and agriculture
was critical, because of all the millions of acres of farmland at
that time, and the value of that farmland. The mortgage on that
farmland was what supported the emergency credit. So President
Roosevelt had to do something to stabilize the price of land and
Federal Reserve Bank notes to create money, didn't he? So he
impressed agriculture into the public interest. The farming industry
was nationalized. Continuing with the Agricultural Adjustment Act,
Declaration of Emergency (Exhibit 47): "It is hereby declared to the
public policy of Congress ..." Referring now back to Prize Cases
(1862) (2 Black, 674) (Exhibit 24): "But in defining the meaning of
the term 'enemies' property,' we will be led into error if we refer
to Fleta or Lord Coke for their definition of the word, 'enemy'. It
is a technical phrase peculiar to prize courts, and depends upon
principles of public policy as distinguished from the common law."
Once the emergency is declared, the common law is abolished, the
Constitution is abolished and we fall under the absolute will of
Government, public policy. All the government needs to continue is
to have public opinion on their side. If public opinion can be kept,
in sufficient degree, on the side of the government, statutes, laws
and bills can continue to be passed. The Constitution has no
meaning. The Constitution is suspended. It has been for 60 years.
We're not under law. Law has been abolished. We're under a system of
public policy, (War Powers). So when you go into that courtroom with
your Constitution and the common law in your hand, what does that
judge tell you? He tells you that you have no persona standi in
judicio. You have no personal standing at law. He tells you not to
bother bringing the Constitution into his court, because it is not a
Constitutional court, but an executive tribunal operating under a
totally different jurisdiction. From Section 93-549 (Exhibit 48)
(emphasis added): "Under this procedure we retain Government by law,
special, temporary law, perhaps, but law nonetheless. The public may
know the extent and the limitations of the powers that can be
asserted, and the persons affected may be informed by the statute of
their rights and their duties." If you have any rights, the only
reason you have them is because they have been statutorily declared,
and your duties well spelled out, and if you violate the orders of
those statutes, you will be charged, not with a crime, but with an
offense. Again from 93-549, from the words of Mr. Katzenbach
(Exhibit 49): "My recollection is that almost every executive order
ever issued straddles on several grounds, but it almost always
includes the Trading With the Enemy Act because the language of that
act Is so broad, it would 'justify almost anything." Speaking on the
subject of a challenge to the Act by the people, Justice Clark then
says, "Most difficult from a standpoint of standing to sue. The
Court, you might say, has enlarged the standing rule in favor of the
litigant. But I don't think it has reached the point, presently,
that would permit many such cases to be litigated to the merits."
Senator Church then made the comment: "What you're saying, then, is
that if Congress doesn't act to standardize, restrict, or eliminate
the emergency powers, that no one else is very likely to get a
standing in court to contest." No persona standi n judicio, - no
personal standing in the courts. Continuing with Senate Report
93-549 (Exhibit 50): "The interesting aspect of the legislation lies
in the fact that it created a permanent agency designed to eradicate
an emergency condition in the sphere of agriculture." These
agencies, of which there are now thousands, and which now control
every aspect of our lives, were ostensibly created as temporary
agencies meant to last only as long as the national emergency. They
have become, in fact, permanent agencies, as has the state of
national emergency itself. As Franklin Delano Roosevelt said: "We
will never go back to the old order." That quote takes on a
different meaning in light of what we have seen so far. In Exhibit
51, Senate Report 93-549, we find a quote from Senator Church: "If
the President can create crimes by fiat and without congressional
approval, our system is not much different from that of the
Communists, which allegedly threatens our existence." We see on this
same document, at the bottom right-hand side of the page, as a
Title, the words, "Enormous Scope of Powers... A Time Bomb".
Remember, this is Congress' own document, from the year 1973. Most
people might not look to agriculture to provide them with this type
of information. But let us look at Title III of the Agricultural
Adjustment Act, which is also called the Emergency Farm Mortgage Act
of 1933 (Exhibit 52): "Title III - Financing - And Exercising Power
Conferred by Section 8 of Article I of the Constitution: To Coin
Money And To Regulate the Value Thereof." From Section 43 of Exhibit
52: "Whenever the President finds upon investigation that the
foreign commerce of the United States is adversely affected ... and
an expansion of credit is necessary to secure by international
agreement a stabilization at proper levels of the currencies of
various governments, the President is authorized, in his discretion
... To direct the Secretary of the Treasury to enter into agreements
with the several Federal Reserve banks..." Remember that in the
Constitution it states that Congress has the authority to coin all
money and regulate the value thereof. How can it be then that the
Executive branch is issuing an emergency currency, and quoting the
Constitution as its authority to do so? Under Section 1 of the same
Act (Exhibit 53) we find the following: "To direct the Secretary of
the treasury to cause to be issued in such amount or amounts as he
may from time to time order, United States notes, as provided in the
Act entitled "An Act to authorize the issue of United States notes
and for the redemption of funding thereof and for funding the
floating debt of the United States, approved February 25, 1862, and
Acts supplementary thereto and amendatory thereof" What is the Act
of February 25, 1862? It is the Greenback Act of President Abraham
Lincoln. Let us remember that, when Abraham Lincoln was elected and
inaugurated, he didn't even have a Congress for the first six weeks.
He did not, however, call an extra session of Congress. He issued
money, he declared war, he suspended habeas corpus, it was an
absolute Constitutional dictatorship. There was not even a Congress
in session for six weeks. When Lincoln's Congress came into session
six weeks later, they entered the following statement into the
Congressional record: "The actions, rules, regulations, licenses,
heretofore or hereafter taken, are hereby approved and confirmed..."
This is the exact language of March 9, 1933 and Title 12, USC,
Section 95(b), today. We now come to the question of how to
terminate these extraordinary powers granted under a declaration of
national emergency. We have learned that, in order for the
extraordinary powers to be terminated, the national emergency itself
must be canceled. Reading from the Agricultural Act, Section 13
(Exhibit 54): "This title shall cease to be in effect whenever the
President finds and proclaims that the national economic emergency
in relation to agriculture has been ended." Whenever the President
finds by proclamation that the proclamation issued on March 6, 1933
has terminated, it has to terminate through presidential
proclamation just as it came into effect. Congress had already
delegated all of that authority, and therefore was in no position to
take it back. In Senate Report 93-549, we find the following
statement from Congress (Exhibit 55): "Furthermore, it would be
largely futile task unless we have the President's active
collaboration. Having delegated this authority to the President in
ways that permit him to determine how long it shall continue, simply
through the device of keeping emergency declarations alive - we now
find ourselves in a position where we cannot reclaim the power
without the President's acquiescence. We are unable to terminate
these declarations without the President's signature, so we need a
large measure of Presidential cooperation". It appears that no
president has been willing to give up this extraordinary power, and,
if they will not sign the termination proclamation, the access to,
and usage of, extraordinary powers does not terminate. At least, it
has not terminated for over 60 years. Now, that's no definite
indication that a President from Bill Clinton on might not
eventually sign the termination proclamation, but 60 years of
experience would lead one to doubt that day will ever come by itself
But the question now to ask is this: How many times have We, the
People, asked the President to terminate his access to extraordinary
powers, or the situation on which it is based, the declared national
emergency? Who has ever demanded that this be done? How many of us
even knew that it had been done? And, without the knowledge
contained in this report, how long do you think the blindness of the
American public to this situation would have continued, and with it
the abolishment of the Constitution? But we're not quite as in the
dark as we were, are we? In Senate Report 93-549 (Exhibit 56), we
find the following statement from Senator Church: "These powers, if
exercised, would confer upon the President total authority to do
anything he pleased." Elsewhere in Senate Report 93-549, Senator
Church makes the remarkable statement (Exhibit 57): "Like a loaded
gun laying around the house, the plethora of delegated authority and
institutions to meet almost every kind of conceivable crisis stand
ready for use for purposes other than their original intention ...
Machiavelli, in his "Discourses of Livy," acknowledged that great
power may have to be given to the Executive if the State is to
survive, but warned of great dangers in doing so. He cautioned: Nor
is it sufficient if this power be conferred upon good men; for men
are frail, and easily corrupted, and then in a short time, he that
is absolute may easily corrupt the people." Now, a quote from an
exclusive reply (Exhibit 58) written May 21, 1973, by the Attorney
General of the United States regarding studies undertaken by the
Justice Department on the question of the termination of the
standing national emergency: "As a consequence, a "national
emergency" is now a practical necessity in order to carry out what
has become the regular and normal method of governmental actions.
What were intended by Congress as delegations of power to be used
only in the most extreme situations, and for the most limited
duration's, have become everyday powers, and a state of "emergency"
has become a permanent condition." From United States v. Butler
(Supreme Court, 1935) (Exhibit 59): "A tax, in the general
understanding and in the strict Constitutional sense, is an exaction
for the support of government; the term does not connote the
expropriation of money from one group to be expended for another, as
a necessary means in a plan of regulation, such as the plan for
regulating agricultural production set up in the Agricultural
Adjustment Act." What is being said here is that a tax can only be
an exaction for the support of government, not for an expropriation
from one group for the use of another. That would be socialism,
wouldn't it? Quoting further from United States v. Butler (Exhibit
60): "The regulation of farmer's activities under the statute,
though in form subject to his own will, is in fact coercion through
economic pressure; his right of choice is illusory. Even if a
farmer's consent were purely voluntary, the Act would stand no
better. At best it is a scheme for purchasing with federal funds
submission to federal regulation of a subject reserved to the
states." Speaking of contracts, those contracts are coercion
contracts. They are adhesion contracts made by a superior over an
inferior. They are under the belligerent capacity of government over
enemies. They are not valid contracts. Again from United States v.
Butler (Exhibit 61): "If the novel view of the General Welfare
Clause now advanced in support of the tax were accepted, this clause
would not only enable Congress to supplant the states in the
regulation of agriculture and all other industries as well, but
would furnish the means whereby all of the other provisions of the
Constitution, sedulously framed to define and limit the powers of
the United States and preserve the powers of the states, could be
broken down, the independence of the individual states obliterated,
and the United States converted into a central government exercising
uncontrolled police power throughout the union superseding all local
control over local concerns." Please, read the above paragraph
again. The understanding of its meaning is vital. The United States
Supreme Court ruled the New Deal, the nationalization,
unconstitutional in the Agricultural Adjustment Act and they turned
it down flat. The Supreme Court declared it to be unconstitutional.
They said, in effect, "You're turning the federal government into an
uncontrolled police state, exercising uncontrolled police power."
What did Roosevelt do next? He stacked the Supreme Court, didn't he?
And in 1937, United States v. Butler was overturned. From the 65th
Congress, 1st Session Doc. 87, under the section entitled
Constitutional Sources of Laws of War, Page 7, Clause II, we find
(Exhibit 62): "The existence of war and the restoration of peace are
to be determined by the political department of the government, and
such determination is binding and conclusive upon the courts, and
deprives the courts of the power of hearing proof and determining as
a question of fact either that war exists or has ceased to exist."
The courts will tell you that is a political question, for they (the
courts) do not have jurisdiction over the common law. The courts
were deprived of the Constitution. They were deprived of the common
law. There are now courts of prize over the enemies, and we have no
persona standi in judicio. We have no personal standing under the
law. Also from the 65th Congress, under the section entitled
Constitutional Sources of Laws of War, we find (Exhibit 63): "When
the sovereign authority shall choose to bring it into operation, the
judicial department must give effect to its will. But until that
will shall be expressed, no power of condemnation can exist in the
court." From Senate Report 93-549 (Exhibit 64): "Just how effective
a limitation on crisis action this makes of the court is hard to
say. In light of the recent war, the court today would seem to be a
fairly harmless observer of the emergency activities of the
President and Congress. It is highly unlikely that the separation of
powers and the 10th Amendment will be called upon again to hamstring
the efforts of the government to deal resolutely with a serious
national emergency." So much for our Constitutional system of checks
and balances. And from that same Senate Report, in the section
entitled, "Emergency Administration", a continuation of Exhibit 64:
"Organizationally, in dealing with the depression, it was
Roosevelt's general policy to assign new, emergency functions to
newly created agencies, rather than to already existing
departments." Thus, thousands of "temporary" emergency agencies, are
now sitting out there with emergency functions to rule us in all
cases whatsoever. Finally, let us look briefly at the courts,
specifically with regard to the question of "booty". The following
definition of the term, "prize" is to be found in Bouvier's Law
Dictionary (Exhibit 65): "Goods taken on land from a public enemy
are called booty; and the distinction between a prize and booty
consists in this, that the former is taken at sea and the latter on
land." This significance of the distinction between these two terms
is critical, a fact which will become quite clear shortly. Let us
now remember that "Congress shall have the power to make rules on
all captures on the land and the water." To reiterate, captures on
the land are booty, and captures on the water are prize. Now, the
Constitution says that Congress shall have the power to provide and
maintain a navy, even during peacetime. It also says that Congress
shall have the power to raise and support an army, but no
appropriations of money for that purpose shall be for greater than
two years. Here we can see that an army is not a permanent standing
body, because, in times of peace, armies were held by the sovereign
states as militia. So the United States had a navy during peacetime,
but no standing army; we had instead the individual state militias.
Consequently, the federal government had a standing prize court, due
to the fact that it had a standing navy, whether in times of peace
or war. But in times of peace, there could be no federal police
power over the continental United States, because there was to be no
army. From the report The Law of Civil Government in Territory
Subject to Military Occupation by Military Forces of the United
States, published by order of the Secretary of War in 1902, under
the heading entitled The Confiscation of Private Property of Enemies
in War (Exhibit 66), comes the following quote: "4. Should the
President desire to utilize the services of the Federal courts of
the United States in promoting this purpose or military undertaking,
since these courts derive their jurisdiction from Congress and do
not constitute a part of the military establishment, they must
secure from Congress the necessary action to confer such
jurisdiction upon said courts." This means that, if the government
is going to confiscate property within the continental United States
on the land (booty), it must obtain statutory authority. In this
same section (Exhibit 66), we find the following words: "5. The laws
and usage's of war make a distinction between enemies' property
captured on the sea and property captured on land. The jurisdiction
of the courts of the United States over property captured at sea is
held not to attach to property captured on land in the absence of
Congressional action." There is no standing prize court over the
land. Once war is declared, Congress must give jurisdiction to
particular courts over captures on the land by positive
Congressional action. To continue with (Exhibit 66): "The right of
confiscation is a sovereign right. In times of peace,
John Jay Center for American LawThe Shackles of "Voluntary Compliance"
The Real Story Behind the Federal Tax System
by Greg Loren, Durand suijuris
This Country's Two Distinct Citizenships
The "people" and "citizens" referred to in the Bill of Rights are the same as
the "persons" and "citizens" referred to in the Fourteenth Amendment.
This statement is false. Black's Law Dictionary states:
"The Fourteenth Amendment of the Constitution of the United States, ratified
in 1868, creates or at least recognizes for the first time a citizenship of
the United States, as distinct from that of the states." (1)
This fact has been acknowledged by countless court cases throughout the history
of American jurisprudence, including United States v. Cruikshank (1875):
"We have in our political system a government of the United States and a
government of each of the several states. Each one of these governments is
distinct from the others and each has citizens of its own who owe it
allegiance, and whose rights,within its jurisdiction, it must protect." (2)
In reality, there are two distinct citizenships in this country: free-born
Citizens of the states, and secondary subjects of the federal government known
as "citizens of the United States." The former are classified by law as
"domiciles" of their respective states (their "legal home" (3)); the latter are
merely "residents" within each state, (4) for their "legal home" is in the
District of Columbia.
U.S. Citizens Are Not Protected by the Bill of Rights
"[C]itizens of the United States" (Fourteenth Amendment, Section 1) are
protected by the Bill of Rights.
This statement is false. Again, we turn to the rulings of the courts to
substantiate our answer. According to the Slaughter House Cases of 1873:
"[T]he distinction between citizenship of the United States and citizenship of
a state is clearly recognized andestablished.... The language [of the
Fourteenth Amendment] is, 'No state shall make or enforce any law which shall
abridge theprivileges or immunities of citizens of the United States.' It is a
little remarkable, if this clause were intended as a protection to the Citizen
of the state against the legislative power of his own state, that the word
Citizen of the state should be left out when it is so carefully used, and used
in contradistinction to citizens of the United States, in the very sentence
which precedes it. It is too clear for argument that the change in phraseology
was adopted understandingly and with a purpose.... [W]e wish to state here
that it is only the former which are placed by this clause under the
protection of [the Fourteenth Amendment to] the federal Constitution, and that
the latter, whatever they may be, are not intended to have any additional
protection by this paragraph of the amendment...." (5)
In other words, the Fourteenth Amendment granted what are known as "civil
rights" to the newly created citizenship of the United States government,
because they were not protected by the Bill of Rights, which apply only to
Citizens of the states. This fact has been recognized as recently as 1993 in
Jones v. Temmer:
"The privileges and immunities clause of the Fourteenth Amendment protects
very few rights because it neitherincorporates any of the Bill of Rights nor
protects all rights of individual [U.S.] citizens. Instead, this provision
protects only those rights peculiar to being a citizen of the federal
government; it does not protect those rights which relate to state
citizenship." (6)
The Question of Federal Jurisdiction
Citizens of the several states are under the jurisdiction of federal law (Acts
of Congress).
This statement is false. As noted above in the quote from United States v.
Cruikshank, each class of citizen is subject to the jurisdiction of his own
government. Jurisdiction has a very precise legal definition as an "area of
authority." (7) Generally, jurisdiction is a geographical term and limits the
exercise of authority to a specific location. This is known as "lex loci," or
"the law of the place." (8) According to the Federal Rules of Criminal
Procedure:
"'Act of Congress' includes any act of Congress locally applicable to and in
force in the District of Columbia, in Puerto Rico, in a territory or in an
insular possession." (9)
This means that federal law applies only to those who live (domicile) within
Washington, D.C. (incorporated in 1982 as "The State of New Columbia" (10)) or
in a federal zone or territory. Since the several states are not federal
territories, they do not exist within federal jurisdiction, but act as sovereign
legal entities. (11) However, the creation of what are known as "political
subdivisions" (12) within the boundaries of the states, enables Congress to
enforce its laws to a limited extentwithin what otherwise would be foreign
territories to the "ten miles square" (13) of the District of Columbia. This is
known as "lex loci contractus," which means that "the law of the place" may
apply to other places through legal contract. (14)
Those people who are Fourteenth Amendment federal citizens are considered to be
"territorial property" (15) and "corporate franchises" (16) of Washington, D.C.
and are under the jurisdiction of federal law, regardless of where they
"reside." State Citizens, on the other hand, are "non-resident aliens" (17) with
regards to the federal government and are subject only to the legislatures of
their respective states, which are "foreign countries" (18) to the District of
Columbia. State Citizens areno more bound to obey "Acts of Congress" than are
citizens of France.
How Americans Unknowingly Enter Federal Jurisdiction
The terms "Colorado" and "State of Colorado" and the abbreviations "Colo." and
"CO" are synonymous in the eyes of the federal government.
This statement is false. The truth is that these terms and abbreviations are
very different in meaning. According to the 43rd Congress:
"The word 'State' shall be construed to include [mean] the Territories and the
District of Columbia.... (19)
This definition has not changed to this day, for Title 26 of the United States
Code (the Internal Revenue Code) states very clearly that the term "'State'
shall be construed to include[mean] the District of Columbia...." (20) Rule
54(c) of the Federal Rules of Criminal Procedure, quoted above, also defines
"State" in this way. Therefore, in American law, the term "State of Colorado,"
or the abbreviation "CO," is to be distinguishedfrom "Colorado," or the
abbreviation "Colo." The former refers to a "political subdivision" of the
District of Columbia, while the latter refers to the sovereign state admitted to
the Union in 1876. This is not just a game of semantics, but is a matter of very
real legal consequence. When one signs a legal document of the "State of
Colorado" or completes his home address with CO (followed by a zip code), he is,
in a very real sense, creating a legal "nexus" (21) between himself and the
District of Columbia, thereby placing himself under the jurisdiction of federal
law. As far as the federal government is concerned, he is to be taken at his
word that he is not a free-born state Citizen, but a second-class Fourteenth
Amendment citizen "subject to the jurisdiction" (22) of the U.S. government.
The Internal Revenue Service and Tax Liability
The Internal Revenue Service (IRS) does not consider all attempts to avoid tax
liability to be criminal offenses.
This statement is true. According to the Internal Revenue Code:
"Every person liable for any tax imposed by this title, or for the collection
thereof, shall keep such records, render suchstatements, make such returns,
and comply with such rules and regulations as the Secretary may from time to
time prescribe." (23)
"When required by regulations prescribed by the Secretary any person made
liable for any tax imposed by this title, or withrespect to the collection
thereof, shall make a return or statement according to the forms and
regulations prescribed by the Secretary. Every person required to make a
return or statement shall include the information required by such forms or
regulations." (24)
What most Americans do not know is that the persons "made liable" to the
Internal Revenue Code are, for the most part, Fourteenth Amendment citizens.
(25) As noted above, U.S. citizens are considered by law to be "corporate
franchises" of the District of Columbia, and therefore are expected to pay a tax
in exchange for this "privilege." This is why the federal income tax is known as
"internal revenue"-- it is "internal," or "comprised within the boundary
lines... [and] domestic" (26) to the federal territories, and therefore
"foreign," or "subject to another jurisdiction" (27) with regards to the several
states. Therefore,U.S. citizens are subject to the taxation laws; state Citizens
are not.
So is avoidance of taxation a criminal offense? According to our own legal
system, it is not:
"The legal rights of the taxpayer to decrease the amount of what otherwise
would be his taxes, or altogether avoid them, by means the law permits cannot
be doubted." (28)
Even the IRS will openly admit that avoidance of taxation is not a criminal
offense, but a "right of the taxpayer":
"Avoidance of tax is not a criminal offense. All taxpayers have the right to
reduce, avoid, or minimize their taxes bylegitimate means. The distinction
between avoidance and evasion is fine, yet definite. One who avoids tax does
not conceal ormisrepresent, but shapes and preplans events to reduce or
eliminate tax liability, then reports the transactions. Evasion, on the other
hand, involves deceit, subterfuge, camouflage, concealment, some attempts to
color or obscure events, or making things seem other than they are." (29)
According to the 1992 Forms and 1040 Instructions booklet, published by the
IRS, each person who files an income tax return is "among the millions of
Americans who comply with the tax law voluntarily." (30) Even the statutes
dealing with Form W-4 (which most workers are presented by their employers when
they are hired) make it clear that "the furnishing of such Form W-4 shall
constitute a request for withholding." (31) This is what is known as "voluntary
compliance," or "to yield... to adapt oneself to; to act in accordance with...
unconstrained... acting of oneself." (32) The Supreme Court itself has declared
that "our tax system is based upon voluntary assessment and payment, not upon
distraint." (33)
How then have millions of free-born American Citizens been made to voluntarily
comply with the monstrous tax system? Simply because the IRS has written its
voluminous tax laws in such a way that the average American, who does not have a
knowledge of the distinct citizenships that exist in this country, will believe
that the terms "U.S. Individual," "U.S. Taxpayer," "Resident of the United
States," etc. actually refer to him and will act accordingly. According to the
ruling of Guardian T&D Co. v. Fisher (1906):
"An individual may be under no obligation to do a particular thing, and his
failure to act creates no liability, but if hevoluntarily attempts to act and
do the particular thing he comes under an implied obligation." (34)
In other words, signing your name to Form 1040 is to "create an obligation"
(35) to accept a tax debt which, in most cases, would not have existed
otherwise. In a 1969 ruling of the Supreme Court, it was stated:
"Only the rare taxpayer would be likely to know that he could refuse to
produce his records to IRS agents." (36)
There is simply no law that requires any American to file a tax return each
year on April 15th, as this would amount to a forfeiture of the Fourth
Amendment's guarantee of "the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures," and the Fifth
Amendment's protection against "self-incrimination." (37) An American Citizen
cannot be "compelled... to be a witness against himself," but he can certainly
volunteer to do so. This is why such stress is placed upon "voluntary
compliance" in IRS publications.
The Moral Implications of Tax Avoidance
It is a moral and American duty to pay income tax to the IRS.
This statement is false. Again, let us quote the Supreme Court:
"Because of what appears to be a lawful command on the surface, many citizens,
because of their respect for what onlyappears to be law, are cunningly coerced
into waiving their rights due to ignorance." (38)
As tax season approaches each year, the American public is literally barraged
by the media with exhortations to pay their "fair share" of taxes. Accompanying
these are usually stories that depict the IRS as a stern, but fair, enforcer of
the law against "tax evaders." The IRS itself never has to spend a dime on
public relations, for all it has to do is rely upon such free advertisement and
exploit the natural desire of most honest Americans to "obey the law" in order
to continue its charade.Even many well-meaning religious leaders contribute to
this illusion by telling their congregations that it is a sin not to "pay taxes
to whom taxes are due" (Romans 13:7). However, what each of us needs to realize
is that it is not illegal, much less immoral, to refuse to comply with a law
that does not apply to us. In the Bible we are told, "[W]here there is no law
there is no transgression" (Romans 4:15). This is an abiding legal principle
that even "secular" courts will readily accept:
"The general rule is that an unconstitutional statute, though having the form
and name of law, is in reality no law, but is wholly void and ineffective for
any purpose.... An unconstitutional law, in legal contemplation, is as
inoperative as if it had never been passed.
"Since an unconstitutional law is void... it imposes no duties... No one is
bound to obey an unconstitutional law, and nocourts are bound to enforce it."
(39)
Endnotes and Documentation
1. Black's Law Dictionary (West Publishing Company, 1990; SixthEdition), p. 657.
2. United States v. Cruikshank, 92 U.S. 588, 590.
3. Black's Law Dictionary, p. 484.
4. Ibid., pp. 1308-1309.
5. Slaughter House Cases, 83 U.S. (16 Wall) 36, 21 L.Ed. 394.
6. Jones v. Temmer, 829 F. Supp. 1226.
7. Black's Law Dictionary, p. 853.
8. Ibid., p. 911.
9. Federal Rules of Criminal Procedure, Rule 54(c).
10. Title 28 USC 3002(15)(a) clearly defines the District ofColumbia (United
States) as a "federal corporation."
11. Glass v. The Sloop Betsy, 3 Dall 6; 1794.
12. Black's Law Dictionary, p. 1159.
13. U.S. Constitution, Article I, Section 8.
14. Black's Law Dictionary, p. 911.
15. Ibid., p. 1473.
16. Ibid., p. 339.
17. Ibid., p. 1057.
18. 26 CFR 1.911-2h.
19. Title 25, Internal Revenue, Chapter 1, p. 601, Revised Statutes of the
United States, 1863-1864. I have placed the word "mean" in brackets, not to
change the meaning of the sentence, but to clarify it. In law, "include" most
often is used as a term of limitation. In other words, if something is not
included, it is excluded.
20. 26 USC 7701(a)(10).
21. Black's Law Dictionary, p. 1044.
22. U.S. Constitution, Fourteenth Amendment, Section 1.
23. 26 USC 6001.
24. 26 USC 6001(a).
25. There are a few exceptions to this rule, which cannot be enumerated here due
to space constraints.
26. Black's Law Dictionary, p. 815.
27. Ibid., p. 646.
28. Gregory v. Helvring, 293 U.S. 465, 469.
29. Internal Revenue Service Manual, p. 4231-161.
30. 1992 Forms and 1040 Instructions, p. 3.
31. 26 CFR 3402(p)1(b)(1)(i).
32. Black's Law Dictionary, pp. 286, 1575.
33. Flora v. United States, 362 U.S. 145.
34. Guardian T&D Co. v. Fisher, 26 SCt. 186 at 188.
35. Black's Law Dictionary, p. 322.
36. United States v. Dickerson, 413 F.2d 1111.
37. Actually, the term "self-incrimination" does not appear in the Fifth
Amendment and is somewhat misleading, for it implies that there has in fact been
a crime committed to which the person is not required to confess.
38. U.S. v. Minker, 350 U.S. 179, 187.
39. Sixteenth American Jurisprudence (Second Edition), Section177.
Common Law Copyright 1995
Greg Loren, Durand suijuris
Permission to copy and distribute the preceding article is hereby granted
provided that it is reproduced in its entirety and without alteration.
The information in the preceding article is not intended for purposes of
rendering legal or other professional advice. We in no way advocate evasion of
legitimate or constitutional taxes, or the nonpayment of any lawfully owed debt.
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CIVIL LAW---(ADMIRALTY/MARITIME/EQUITY)
1.4-15
There are three classes of cases for which the Constitution
grants power to the judiciary.
"1.Cases in law, or suits at common law, wherein legal right
are to be ascertained, and legal remedies administered according to
the old and established proceedings at common law.
"2. Cases r suits in equity where equitable rights only are
recognized, and equitable remedies administered.
"3.Cases or suits in the admiralty, where there is a mixture
of public or maritime law and of equity in the same suit."
(Jurisdiction) Bains v. The Scooner James and Catherine, Federal
Vases 576.
2.17-23
"The judicial power of the United States extends to all the
cases enumerated in the third article of the constitution, but to
none other; ... it is not cognizable by the courts of the United
States, unless it represents a case arising under the constitution,
laws, or treaties of the union, or is a subject of equity,
admiralty, or maritime jurisdiction. Bains supra p. 546
3.25-30
"It remains to inquire whether they have, by the same
instrument, (constitution) enlarged the civil jurisdiction of the
admiralty, so as to extend it to causes arising within the body of
a country, which were cognizable exclusively by the courts of
common law in England." Bains, supra, p. 554
4.38-43
"It is well known, that in civil causes, in the courts of
equity and admiralty, juries to not intervene, and that the courts
of equity use the trial by jury only in extraordinary cases to
inform the conscience of the court. Bains. supra. p. 555
5.38-43
"The civil law does not distinguish cases at law from cases in
equity.
6.45-48
"The common law is the standard by which to ascertain what are
proper cases for a prohibition to a court of admiralty, and not the
civil law: ... Bains, supra. p. 56
7.50-53
"And as every robbery on land includes a trespass, so does
every piracy at sea." (Admiralty) 1 Com. Dig. 268. Talbot v.
Janson, supra. p. 139
8.55-57
"And the forms and modes of proceedings in causes of equity,
and of admiralty, and maritime jurisdiction, shall be according to
the civil law. Wayman and another v. Sourthard and another, 10
Wall 1, p. 317.
9.59-63
"And the forms and modes of proceedings in causes of equity,
and of admiralty, and maritime jurisdiction, shall be according to
the civil law. Wayman and another v. Southard and another, 10 Wall
1, p. 317.
10.65-69
"The difference between departments undoubtedly is, that the
legislature makes, the executive executes, and the judiciary
construes the law;... (Congress) Wayman v. Sourthard, supra, p. 327
11.71-74
"I think it is high time to check this silent and stealing
progress of the admiralty in acquiring jurisdiction to which it has
no pretensions. Ramsey v. Allegrie, 12 Wall 611, p. 396
1276-82
"Admiralty before the time of richard II., had arrogated to
itself a scope of judicial, legislative, and ministerial power
which withdrew from the trial by jury, and placed under the
surveillance of the crown, of which the admiralty was only
representative, more than half the jurisprudence, of the kingdom.
Ramsey v. allegrie, supra, p. 398.
13.84-90
The constitution of the United States protects the citizens
from unconstitutional laws to limit admiralty so that it:
"could then no longer prescribe its own limits in
prejudice of the individual, and to the exclusion of the common-law
rights." Ramsey v. Allegrie, supra, p. 399
14.92-99
In England admiralty was constrained however:
"...when the increase of commerce and the weak reign of
the Stuarts presented a motive and an opportunity, that the
attention of the nation was attracted to the usurpations and
unconstitutional power exercised by that court." Ramsey v.
Allegrie, supra, p. 401.
15.101-106
"Brown, Vol. 2, 100, lays down the rule in these terms: 'The
general rule, however, at present, is, that the admiralty acts only
in rem, and that no person can be subject to that jurisdiction but
by his consent, expressed by his entering into a stipulation.'"
Ramsey v. Allegrie, spur, p. 409.
16.108-112
"In Kreble's Reports, p. 500, quoted by Brown, it is expressly
said, that without a stipulation, the admiralty has no jurisdiction
at all over the person." Ramsey v. Allegrie, supra, p. 410.
17.114-117
"If the common law can try the cause, and give full redress,
that alone takes away the admiralty jurisdiction." Ramsey v.
Allegrie, supra, p. 411.
18.119-128
"Let the cases be searched from the remotest period down to
the time of Menetone v. Gibbons, 3 T. R. 267, and the ground of
prohibition, and of recovery, under the 2d of Henry IV. will
uniformly be found to be competency of the common law to enforce
the contract. This is the principle by which even their
jurisdiction in rem is controlled, and it hence follows, that in no
cases in which they are prohibited from proceeding in rem, can they
have the action in personam." (Admiralty) ramsey v. Allegrie,
supra, p. 417.
19.130-127
"Every advance of the admiralty is a victory over the common
law; a conquest gained upon the trial by jury. The principles upon
which alone this suit could have been maintained, are equally
applicable to one half the commercial contracts between citizen and
citizen. Once establish the rights here claimed, and it may bring
back with it all the admiralty usurpations of the fifteenth
century. Ramsey v. Allegrie, supra, p. 418.
20.139-142
"I, therefore, hold that we are under a peculiar obligation to
restrain the admiralty jurisdiction within its proper limits."
Ramsey v. Allegrie, supra, p. 418.
21.144-147
"The phrase 'common law,' found in this clause, is used in
contradistinction to equity, and admiralty, and maritime
jurisdiction." Parsons v. Bedford, et al, 3 Pet 433, 478-9.
22.149-154
"It is well known that in civil cases, in courts of equity and
admiralty, juries do not intervene, and that courts of equity use
the trial by jury only in extraordinary cases to inform the
conscience of the court." Parsons v. Bedford, et al, 3 Pet 433,
479.
23.156-165
"By common law, they (framers of 7th Amendment) meant what the
constitution denominated in the third article 'law;' not merely
suits which the common law recognized among its old and settled
proceedings, but suits in which legal rights were to be ascertained
and determined, in contradistinction to those where equitable
rights alone were recognized, and equitable remedies were
administered; or where, as in the admiralty, mixture of public law
and of maritime law and equity was often found in the same suit.
Parsons v. Bedford, 3 Pet 433, 479 (1830)
24.167-175
"And if the admiralty jurisdiction, in matters of contract and
tort which the courts of the United States may lawfully exercise on
the high seas, can be extended to the lakes under the power to
regulate commerce, it can with the same propriety and upon the same
construction, be extended to contracts and torts on land when the
commerce is between different states. And it may embrace also the
vehicles and persons engaged in carrying it on. (Roads) The
Genesee Chief et al. v. Fitzhugh, 12 How 443, p. .
25.177-183
"But if the power of regulating commerce can be the foundation
of jurisdiction in its courts, and a new and extended admiralty
jurisdiction beyond its heretofore known and admitted limits, may
be created on water under that authority, the same reason would
justify the same exercise of power on land." (Roads) The Genesee
Chief et al. v. Fitzhugh, 12 How 443, p. .
26.185-196
"It is evident that a definition that would at this day limit
public rivers in this country to tide-water rivers is utterly
inadmissible. We have thousands of miles of public navigable
water, including lakes and rivers in which there is no tide. And
certainly there can be no reason for admiralty power over a public
tide-water, which does not apply with equal force to any
other public water used for commercial purposes and foreign trade.
The lakes and the waters connecting them are undoubtedly public
waters; and we think are within the grant of admiralty and maritime
jurisdiction in the Constitution of the United States. The Genesee
Chief et al. v. Fitzhugh, 12 How 443, p. .
27.198-202
"If the water was navigable it was deemed to be public; and if
public, was regarded as within the legitimate scope of the
admiralty jurisdiction conferred by the Constitution." Genesee
Chief, et al. v. Fitzhugh, 12 How 443, p. .
28.204-214
All civil cases of admiralty and maritime jurisdiction over
torts:
"extends over all contracts, (wheresoever they may be
made or executed, or wheresoever may be the form of the
stipulations) which relate to the navigation, business or commerce
of the sea.
Admiralty proceeds according to the course of the civil law,
and that an appeal, and not a writ of error, lies from its decrees.
De Lovio v. Boit et al., 2 Gall 398, Fed Cases 3, 776, p. 438.
(1815).
29.216-221
"The civil law requires two witnesses to prove a sealed
instrument, whereas the common law requires but one." Howe v.
Nappier, 4 Burrows, 1944; Menetone v. Gibbons, 3 Term R. 267; Smart
v. Wolff, Id. 323; and Buller, J., Id. 348." De Lovio v. Boit et
al., 2 Gall 398, Fed Cases 3, 776, p. 438. (1815)
30.223-231
"The civil law never requires two witnesses, for indeed any
witness, unless the execution of the deed is denied by the party on
oath, which rarely can happen. In this respect it holds the
chancery rule, that if any fact be denied in the defendant's answer
on oath, his denial shall prevail, unless disproved by two
witnesses, or one witness, and very strong corroborative
circumstances." De Lovio v. Boit et al., 2 Gall 398, Fed. Cases 3,
776, p. 438. (1815)
31.233-241
"... the delegation of cognizance of 'all civil cases of
admiralty and maritime jurisdiction' to the courts of the United
States comprehends all maritime contracts, torts and injuries. The
latter branch is necessarily bounded by the locality; the former
extends over all contracts (wheresoever they may be made or
executed, or whatsoever may be the form of the stipulations) which
relate to the navigation, business or commerce of the sea." De
Lovio v. Boit et al., 2 Gall 398, Fed Cases 3, 776, p. 444 (1815)
32.243-249
"There is no more reason why the admiralty should have
cognizance of bottomery instruments, as maritime contracts, than of
policies of insurance. Both are executed on land, and both
intrinsically respect maritime risks, injuries, and losses."
(Commerce) Be Lovio v. Boit et al., 2 Gall 398, Fed Cases 3, 776,
p. 444 (1815)
33.251-255
"...policies of insurance are within (though not exclusively
within) the admiralty and maritime jurisdiction of the United
States." (Commerce) De Lovio v. Boit el al., 2 Gall 398, Fed Cases
3, 776, (1815)
34.257-261
Insurance is interstate commerce within the commerce clause of
the United States Constitution, article I, Section 8, Clause 3.
(Civil law) United States v. Southeastern Underwriters Ass'n et
al., 322 U.S. 533 (1944)
35.263-267
Commerce includes trade, that is, business in which persons
bought and sold, bargained and contracted, including the business
of insurance. (Civil Law) United States v. Southeastern
Underwriters Ass'n et al., 322 U.S. 533 (1944)
36.269-272
The admiralty from the highest antiquity has exercised a very
extensive criminal jurisdiction. United States v. Flores, 289 U.S.
137, 139. (1933)
37.274-278
Admiralty courts have a jurisdiction over contracts and torts
and other special cases. (Commerce) Waring v. Clark, 5 How. 441,
454-464; Genesse Chief v. Fitzhugh, 12 How. 443 , 454. United
States v. Flores, 289 U.S. 137, 142. (1933)
38.280-283
The criminal jurisdiction of the United States is wholly
statutory, see United States v. Hudson, 7 Cranch 32,... United
States v. Flores, 289 U.S. 137, 154. (1933)
39.285-291
"It is true that the criminal jurisdiction of the United
States is in general based on the territorial principle,
(commerce) and criminal statutes of the United States are not by
implication given an extra-territorial effect. United States v.
Bowman, 260 U.S. 94, 98; compare Blackmd States, 284 U.S. 421."
United States v. Flores, 289 U.S. 137, 155 (1933).
40.293-297
It is natural to consider the vessels of a nation as parts of
its territory, though at sea, as the State retains its jurisdiction
over them. This is the doctrine of the law of nations.
(Admiralty) United States v. Flores, 289 U.S. 137, 156 n. 9. 9
(1933)
41.305-310
The common law, as it was received in the United States at the
time of the adoption of the Constitution, did not afford a remedy
in rem in suits between private persons. Hence the adoption of the
savings clause in the Judiciary Act of 1789. C.J. Hendry Co. et
al. v. Moors et al., 318 U.S. 133, 135 (1942)
43.312-323
There is an important exception to the general rule that a
judgement in rem was not a common law remedy. Forfeiture to the
Crown of the offending object, because it had been used in
violation of law, by a procedure in rem was a practice familiar not
only to the English admiralty courts but to the court of Exchequer.
The Exchequer gave such a remedy for the forfeiture of articles
seized on land for the violation of law. And, concurrently with
the admiralty, it entertained true proceedings in rem for the
forfeiture of vessels for violations on navigable waters. C.J.
Hendry Co. et al. v. Moors et al., 318 U.S. 133, 137 (1942)
44.325-334
Under the provisions of many statutes the suit might be
brought by an informer gui tam, who was permitted to share in the
proceeds of the forfeited article; the judgement was of forfeiture
and the forfeited article was ordered to be sold. (Commerce,
Admiralty) C.J. Hendry Co. et al. v. Moore et al., 318 U.S. 133,
137-8 (1942) (Is this how towing companies combine with the state
to confiscate vehicles on the roads; and using a forfeiture
statutes sell or otherwise dispose of them at a gain to the state
and the towing company)
Separate courts exercising the jurisdiction of the Court of
Exchequer were never established in the American Colonies.
Instead, that jurisdiction was absorbed by the common law courts
which entertained suits for the forfeiture of property under
English or local statutes authorizing its condemnation.
By 1700, the jurisdiction of the common law courts to condemn
ships and cargos for violation of the Navigation Acts had been
firmly established.
In general the suits were brought against the vessel or
article to be condemned, were tried by jury, closely followed the
procedure in Exchequer, and if successful resulted in judgements of
forfeiture of condemnation with a provision for sale. (Commerce,
Admiralty) C. J. Hendry Co. et al. v. Moore et al., 318 U.S. 133,
139-40 (1942)
46.352-368
It is noteworthy that Blackstone's commentaries, more read in
America before the Revolution than any other law book, referred to
the information in rem in the Court of exchequer as the procedure
by which forfeitures were inflicted for violation of Acts of
Parliament. Bk. III, p. 262. And Kent, in his commentaries,
pointed out that 'seizures, in England, for violation of the laws
of revenue, trade or navigation, were tried by a jury in the Court
of Exchequer, according to the course of the common law; and
through a proceeding be in rem, it is not necessarily a proceeding
or cause in the admiralty' (12th ed., Vol. 1, p. 374). He declared
that, within the meaning of Section 9 of the Judiciary Act, the
common law was competent to give such a remedy 'because, under the
vigorous system of the English law, such prosecutions in rem are in
the Exchequer, according to the course of the common law' (p. 376).
(commerce) C.J. Hendry Co. et al. v. Moore et al., 318 U.S. 133,
151-2 (1942)
47.370-374
"The trial of issues in fact, in the district courts, in all
causes except civil causes of admiralty and maritime jurisdiction
in a forfeiture case is exclusive, and it has repeatedly declared
that, in cases of forfeiture of articles seized on land for
violation of federal statutes, the district court proceeds as
courts of common law according to the course of Exchequer on
information in rem with trial by jury (Commerce) The Sarah, 8
Wheat. 391, 396, n. A; 443 Cans of Egg Product v.
United States, 226 U.S. 172, and cases cited." C. J. Hendry Co. et
al. v. Moore et al., 318 U.S. 133, 153 (1942)
49.387-396
"We conclude that the common law, as received in this country
at the time of the adoption of the constitution, gave a remedy in
rem in cases of forfeiture, and that it is a 'common law remedy'
and one which 'the common law is competent to give' within the
meaning of Section 9 of the Judiciary Act of 1789. By that Act the
states were left free to provide such a remedy in forfeiture cases
where the articles seized upon navigable waters of the state for
violation of state law." (Admiralty, Commerce) C. J. Hendry Co. et
al. v. Moore et al., 318 U.S. 133, 153 (1942)
50.498-402
There must be uniformity in maritime law; the principles of
maritime laws are applicable to commercial law, and therefore,
there must be uniformity in the commercial law. Swift v. Tyson, 16
Pet 1, (1842)
51.404-407
Erie R.R. v. Tompkins, 304 U.S. 64 (1938) has no application
outside of diversity cases. (Admiralty, Commerce) D'Onech, Duhme
& Co. v. FDIC, 315 U.S. 447, 467. (1942)
52.409-413
Erie R.R. v. Tompkins, 304 U.S. 64 (1938) rests solely upon
the principle that state courts should have the power to determine
the scope and effectiveness of rights created by the states in the
exercise of their Constitutional power.
53.415-417
The "distinction between rights and remedies is fundamental."
Chelentis v. Luckenbach, S.S. Co., 247 U.S. 372 (1918)
54.419-417
The rights enforceable under the "savings clause" include not
only those rights which arise from the general maritime law known
to the framers of the Constitution and the Judiciary Act, but also
any new rights created by the Federal Government which are amenable
to the remedies of the common law. Panama R.R. v. Vasquez, 271
U.S. 557, 561 (1926)
55.427-434
The instance court is the ordinary and appropriate court of
admiralty, and takes cognizance of the general subjects of
admiralty jurisdiction, and it proceeds according to the civil and
maritime law. The prize court has exclusive cognizance of
matters of prize and matters incidental thereto, and it proceeds to
hear and determine according to the course of admiralty and the law
of nations. Kent's Commentaries, Lecture XVII
56.436-442
This commentary explains that there are two separate
jurisdiction in admiralty: 1) instance court, and 2) prize court,
and this was confirmed by the U.S. Supreme court when they ruled
that the district courts of the United States possess all of the
powers of courts of admiralty, whether considered as instance or as
prize courts. The Sloop Betsy, 3 Dal 6.
56.444-449
It is certain, however, that the state courts take an
extensive and unquestioned cognizance of maritime contracts, and on
the ground that they are not cases, strictly and technically
Commentaries, Lecture XVII
57.451-455
Informations are filed in the court of exchequer for
forfeiture, upon seizure of property, for breach of laws of
revenue, impost, navigation, and trade. (Admiralty, Commerce)
Kent's Commentaries, Lecture XVII
58.457-465
The Constitution secures to the citizen trial by jury, in all
criminal prosecutions, and in all civil suits at common law, where
the value in controversy exceeds twenty dollars. These
prosecutions for forfeitures of large and valuable portions of
property under revenue and navigation laws are highly penal in
their consequences, and the government and its officers are always
parties, and deeply concerned in the conviction and forfeiture.
Kent's Commentaries, Lecture XVII (Admiralty)
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