| T O P I C R E V I E W |
| Admin |
Posted - 27 Oct 2001 : 23:18:59
 Why Attorneys are not Lawyers
In the U.S., they're collectively called everything from "attorney" to "lawyer" to "counselor." Are these terms truly equivalent, or has the identity of one been mistaken for another?
What exactly is a "Licensed BAR Attorney"? This credential accompanies every legal paper produced by attorneys - along with a State Bar License number. As we are about to show you, an ‘attorney’ is not a ‘lawyer’, yet the average American improperly interchanges these words as if they represent the same occupation, and the average American attorney unduly accepts the honor to be called "lawyer" when he is not.
In order to discern the difference, and where we stand within the current court system, it’s necessary to examine the British origins of our U.S. courts and the terminology that has been established from the beginning. It's important to understand the proper lawful definitions for the various titles we now give these court related occupations.
The legal profession in the U.S. is directly derived from the British system. Even the word bar is of British origin:
BAR. A particular portion of a court room. Named from the space inclosed by two bars or rails: one of which separated the judge's bench from the rest of the room; the other shut off both the bench and the area for lawyers engaged in trials from the space allotted to suitors, witnesses, and others. Such persons as appeared as speakers (advocates, or counsel) before the court, were said to be "called to the bar", that is, privileged so to appear, speak and otherwise serve in the presence of the judges as "barristers". The corresponding phrase in the United States is "admitted to the bar". - A Dictionary of Law (1893).
[click the blue floppy disk icon at the top to view/print the entire article]
He is not the God of the dead, but the God of the living: ye therefore do greatly err. - Mark 12:27 |
| 20 L A T E S T R E P L I E S (Newest First) |
| Manuel |
Posted - 09 Oct 2005 : 22:20:47
The following article was taken from HERE
THE BAR CARD
AS PER THE UNITED STATES SUPREME COURT;
The practice of Law CAN NOT be licensed by any state/State. (Schware v. Board of Examiners, 353 U.S. 238, 239)
The practice of Law is AN OCCUPATION OF COMMON RIGHT! (Sims v. Aherns, 271 S.W. 720 (1925))
The "CERTIFICATE" from the State Supreme Court:
ONLY authorizes,
To practice Law "IN COURTS" As a member of the STATE JUDICIAL BRANCH OF GOVERNMENT.
Can ONLY represent WARDS OF THE COURT, INFANTS, PERSONS OF UNSOUND MIND (SEE CORPUS JURIS SECUNDUM, VOLUME 7, SECTION 4.)
"CERTIFICATE" IS NOT A LICENSE to practice Law AS AN OCCUPATION, nor to DO BUSINESS AS A LAW FIRM!!!
The "STATE BAR" CARD IS NOT A LICENSE!!! It is a "UNION DUES CARD".
The "BAR" is a "PROFESSIONAL ASSOCIATION."
1. Like the Actors Union, Painters Union, etc.
2. No other association, EVEN DOCTORS, issue their own license. ALL ARE ISSUED BY THE STATE.
It is a NON-GOVERNMENTAL PRIVATE ASSOCIATION.
The State Bar is;
An Unconstitutional Monopoly.
AN ILLEGAL & CRIMINAL ENTERPRISE;
Violates Article 2, Section 1, Separation of Powers clause of the U.S Constitution.
There is NO POWER OR AUTHORITY for joining of Legislative, Judicial, or Executive within a state as the BAR is attempting. "BAR" members have invaded all branches of government and are attempting to control de jure government as agents of a foreign entity!
It is quite simple to see that a great fraud and conspiracy has been perpetrated on the people of America. The American Bar is an offshoot from London Lawyers' Guild and was established by people with invasive monopolistic goals in mind. In 1909 they incorporated this TRAITOROUS group in the state of Illinois and had the State Legislature (which was under the control of lawyers) pass an unconstitutional law that only members of this powerful union of lawyers, called the "ABA," could practice law and hold all the key positions in law enforcement and the making of laws. At that time, Illinois became an outlaw state, and for all practical purposes, they seceded from the United States of America.
The "BAR ASSOCIATION" then sent organizers to all the other states and explained to the lawyers there how much more profitable and secure it would be for them, as lawyers, to join this union and be protected by its bylaws and cannons. They issued to the lawyers in each state a charter from the Illinois organization. California joined in 1927 and a few reluctant states and their lawyers waited until the 1930's to join when the treasonous act became DE FACTO and the Citizen's became captives.
Under this system, the lawyers could guarantee prejudged decisions for the privileged class against the lower class. This was all made possible by the AMERICAN BAR ASSOCIATION to favor the right and have unlawfully substituted them in place of Constitutional Laws. The Constitution was written in plain English and the Statutes passed by Congress were also in plain English, with the intent of Congress how each law should be used and not the opinions of various Judges as the codes list. Any normal person can read the Constitution and Statutes and understand them without any trouble.
The public in California was shocked to learn that the State Government has no control or jurisdiction over the Bar Association or its members. The state does not accredit the law schools or hold Bar examinations. They do not issue state licenses to LAWYERS. The Bar Association accredits all the law schools, holds their private examinations and selects the students they will accept in their organization and issues them so-called license but keeps the fees for themselves. The Bar is the only one that can punish or disbar a Lawyer.
They also select the lawyers that they consider qualified for Judgeships and various other offices in the State. Only the Bar Association, or their designated committees, can remove any of these lawyers from public office. The State Legislature will not change this system as they are also a designated committee of the Bar. On August 21, 1984, Rose Bird, Chief Justice of the California State Supreme Court, another of the Bar Associations Judicial Committee's, stated in essence, that the Bar should determine the legality of all initiatives before they were allowed to go on the ballot.
This is contrary to both State and Federal Constitutions, as well as the Laws of this Nation instituted By and For the People as a Sovereign UNITY of Independent States of We The People, not a fraudulent Corporate entity of Lawyers. This is a tremendous amount of power for a PRIVATE union that is incorporated and headquartered in Illinois to hold over the Citizens of California or any other state. The only recourse is through this initiative process and vote by the people.
After the Founding Fathers had formed the Constitution, outlining the laws as to the way our government was to be run, Thomas Jefferson said, in essence, "This proves that plain people, if given the chance, can enact laws and run a government as well as or better than royalty and the blue bloods of Europe." The American people must stop thinking that lawyers are better than they are and can do a better job than they can before the courts of America.
Under the Common Law and the Laws of America, no where is it expressly given for anyone to have the power or the right to form a Corporation. "Corporations" are given birth because of ignorance on the part of the American people and are operating under implied consent and power which they have usurped and otherwise stolen from the people. By RIGHT AND LAW THEY HAVE NO POWER, AUTHORITY, OR JURISDICTION, and must be put out of business by the good Citizens of America in their fight for FREEDOM.
The U.S. Constitution GUARANTEES to every state in this union a REPUBLICAN FORM of government. Any other form of government is FORBIDDEN. No public officer or branch of government can be limited to a RULING CLASS of any kind, or the states become ARISTOCRACIES and NOT Republics. Also, the lawyers have made themselves 1st Class Citizens, where many public offices and branches of government are open to lawyers only.
All other people are limited to only two branches of government and to only certain offices in those two branches of government, making all people who are non-lawyers into 2nd class subject citizens. When the courts belong to the people, as the United States Constitution REQUIRES, (Article IV, Section 4, we the people, will NEVER rule against themselves.) In these Unconstitutional foreign tribunals "courts" (hoodlum centers), "men" in black dresses, that are Unconstitutional ROBES OF NOBILITY. (Article 1, Section 9 and 10) dispense a perverted ideology, where the people are terrorized by members of the BLACK ROBE CULT (lawyers and lawyer judges in the courtrooms).
The legislative branch of government does NOT have the Constitutional Power to issue Court Orders or any other kind of Orders to the people, as a "fiction court" or a "court/corporation for profit and gain" cannot reach parity with a lawful man. ONLY Presidents and Governors have the Constitutional Power to grant PARDONS, but lawyers and lawyer-judges are unconstitutionally granting PARDONS with "immunity from prosecution."
Citizens are not permitted to act like people in the courts. The Citizen (2nd class) is told that he does not know how to fill out fancy lawyer forms; that he is not trained in the law; that he does not know court rules and procedures; etc. This is Unconstitutional "lawyer system," only HEARSAY SUBSTITUTES (lawyers) NOT under oath, have access to the fiction/for profit and gain courts, even though ONLY sworn testimony and evidence can be presented in court. Anything else is "Bill of Attainder," NOT permitted under the U.S. Constitution (Article 1, Sections 9 and 10).
The U.S. Constitution does NOT give anyone the right to a lawyer or the right to counsel, or the right to any other HEARSAY SUBSTITUTE. The 6th Amendment is very SPECIFIC, that the accused ONLY has the right to the ASSISTANCE of counsel and this ASSISTANCE of counsel CAN BE ANYONE THE ACCUSED CHOOSES WITHOUT LIMITATION.
LAWYERS and LAWYER-JUDGES: Created Unconstitutional "lawyer system" pre-trial "motions" and "Hearings" to have eternal EXTORTIONISTIC litigation's, which is BARRATRY and also is in violation of the U.S. Constitution, and Article 1, as this places defendants in DOUBLE JEOPARDY a hundred times over. Defendants only have a right to A TRIAL, NOT TRIALS. When a criminal is freed on a TECHNICALITY, HE IS FREED BECAUSE OF A FIX and a PAY-OFF, as a defendant can only be freed if found innocent BY A JURY NOT BY ANY "TECHNICALITY."
Whenever a lawyer is involved in a case directly or indirectly, as a litigant or assisting in counsel, ALL LAWYER-JUDGES HAVE TO DISQUALIFY THEMSELVES, AS THERE CANNOT BE A CONSTITUTIONAL TRIAL and also there would be a violation of the conflict of interest laws, along with the violation of separation of powers and checks and balances, because "OFFICERS" OF THE COURT ARE ON BOTH SIDES OF THE BENCH.
These same LAWYER-JUDGES are awarding or approving LAWYER FEES, directly and indirectly, amounting to BILLION OF DOLLARS annually, all in violation of conflict of interest laws. As long as there are lawyers, there will never be any law, Constitution or Justice. There will only be MOB RULE, RULE BY A MOB OF LAWYERS.
CASE "LAW" IS UNCONSTITUTIONAL: As CASE "LAW" IS ENACTED BY THE JUDICIAL BRANCH OF GOVERNMENT. When a lawyer-judge instructs, directs, or gives orders to a jury, the lawyer-judge is TAMPERING WITH THE JURY. He also tampers with testimony when he orders the answers to be either "Yes" or "No." The lawyer-judge also tampers, fixes, and rigs the trial when he orders anything stricken from the record, or when he "rules" certain evidence and the truth to be inadmissible.
This makes the trial and transcript FIXED and RIGGED, because the jury does not hear the REAL TRUTH and ALL THE FACTS. Juries are made into puppets by the lawyers and lawyer-judges. All lawyers are automatically in the judicial branch of government, as they have the Unconstitutional TITLE OF NOBILITY (Article 1, Section 9 and 10), "Officer of the Court." Citizens have to be elected or hired to be in any branch of government, but non-lawyer Citizens are limited to only two of the three branches of government. Lawyers, as 1st class citizens, can be hired or elected to any of the three branches of government.
Lawyers, "Officers of the Court," in the Judicial Branch, are Unconstitutionally in two branches of government AT THE SAME TIME whenever they are hired or elected to the executive or legislative branches. This is a violation of the separation of powers, checks and balances, and the conflict of interest laws. District attorneys and State's attorneys have taken over the Grand Juries FROM the people, where the people are DENIED ACCESS to the Grand Juries when they attempt to present evidence of crimes committed in the courtrooms by the lawyers and lawyer-judges.
The U.S. Constitution, being the Supreme Fundamental Law, is not and CANNOT be ambiguous as to be interpreted, or it would be a worthless piece of paper and we would have millions of interpretations (Unconstitutional amendments) instead of the few we have now. That is why all judges and public servants are SWORN TO SUPPORT the U.S. Constitution, NOT interpret it.
Under INTERNATIONAL ORDERS: ALL LAWYERS, whether they left law school yesterday or 50 years ago, are EXACTLY THE SAME. All lawyers have to file the same motions and follow the same procedures in using the same Unconstitutional "lawyer system". In probate, the lawyers place themselves in everyone's will and estate. When there are minor children as heirs, the lawyer-judges appoint a lawyer (a child molesting Fagin) for EACH CHILD and, at times, the lawyer fees EXCEED the total amount of the estate.
An OUTRAGEOUS amount of TAX "MONEY" is directly and indirectly STOLEN BY LAWYERS. Money that is budgeted to County/City/Borough Boards, School Boards and other local and federal agencies eventually finds its way into the pockets of lawyers, as ALL of these agencies are "TRICKED" and "FORCED" into ETERNAL EXTORTIONISTIC LITIGATION.
In the state of Alaska and Hawaii, the BAR ASSOCIATION has mandated that all judges are to be licensed to practice law (e.g. Alaska Constitution, Article IV, Section 4). This license requirement is not found in any other state of the Union. As all licenses to practice law in the state of Alaska and Hawaii are issued by a judge, what judge is qualified to issue a license to practice law to another judge? As only members of the Bar may be licensed to practice law (e.g. A.S. 08.08.020), Alaska and Hawaii judges are REQUIRED to be members of the BAR and as such, they are prejudiced to the business of the BAR. If a judge is required to be a member of the BAR, who disqualifies the office of a judge if that judge does not pay the dues of the BAR? Every state in the Union (with the exception of Alaska and Hawaii) "prohibits" judges from being members of the BAR.
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| Livefree |
Posted - 30 Sep 2005 : 14:10:25
quote:
Originally posted by Lewish
Greetings,
Well, I have survived another round. I was supposed to appear in "their" Court tomorrow (Sept. 30) to hear how long "they" were going to send me away for on the violations of supervised release. Got a call from "them" about 10:30 this morning informing me that the hearing is post-poned until Oct. 28th. Hmmmm, some weird excuse about the probation officer not being available.
Regards,
Lewis
As long as they are still attached to your hip, they are in charge, my friend. Be careful.
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| Lewish |
Posted - 29 Sep 2005 : 20:58:43
Greetings,
Well, I have survived another round. I was supposed to appear in "their" Court tomorrow (Sept. 30) to hear how long "they" were going to send me away for on the violations of supervised release. Got a call from "them" about 10:30 this morning informing me that the hearing is post-poned until Oct. 28th. Hmmmm, some weird excuse about the probation officer not being available.
Regards,
Lewis |
| Livefree |
Posted - 19 Sep 2005 : 21:55:20
I'm so glad to hear you're not back at the Grey Bar hotel, Lewis. :)
Blessing to you too!
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| Lewish |
Posted - 19 Sep 2005 : 11:49:24
Hello Livefree and others,
I survived another round in their "court". We danced for an hour and I came away with a smile on my face. See my post under, "if I wasn't in court, where was I" for an important revelation ON THE COURT RECORD!
Thanks for everyone's prayer and concerns. We will overcome!
Blessings to you all,
Lewis |
| Livefree |
Posted - 14 Sep 2005 : 22:59:08
Lewis said... quote:
Anyway, the real question is, what are they going to do when the economy collapses completely and their private corporations have nothing to plunder from?
Hi Lewis,
I hope everything went okay today. I've been watching your posts. I'm concerned. What happened today?
quote:
As the economy will surely falter after this major devastation, so will their courts.
Nah.. the feds can make as much money as they want, and then collect it back from the taxpayer. The situation will only get worse if the people let it. It's all up to US.
Tell me you are okay, Lewis.
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| Lewish |
Posted - 01 Sep 2005 : 18:06:40
Greetings Maneul and All,
Been busy fighting to stay out of going back into lockup. Fun!
Any way, the real question is, what are they going to do when the economy collapses completely and their private corporations have nothing to plunder from? As the economy will surely falter after this major devastation, so will their courts.
I caused the court to stumble in my Aug. 24 hearing by exposing the private commercial side of the Court to the public light. They are now not sure what to do with me. Issued a continuance until Sept. 14th. I will try to keep them on the ropes then and kill off their unlawful actions. Much prayer is requested.
Regards to all,
Lewis |
| Manuel |
Posted - 31 Aug 2005 : 18:45:29
Greetings,
I wonder what all the ATTORN-ERS and their BLACK-ROBED FIENDS, along with their COURT PROGRAMMED WEASELS are going to do now without their COURTS OF PLUNDER on the devestated areas where the storm hit its hardest? You think they'll be lifting their fingers to build anything of true value? I think NOT!
I am,
Manuel |
| Lewish |
Posted - 25 Jul 2005 : 19:34:16
Readers,
Relative to "Hiding behind BAR licenses", see my post, "If I wasn't in Court - where was I?" to get a little more perspective on the business. It is a "private boys club". They don't want us to know how to operate without them. But, we are learning.
Lewis |
| Manuel |
Posted - 22 May 2005 : 19:14:08
Greetings David Merrill,
The way I see it, it is that the Nobles with their Titles never left.
They where here during the Colonisation, The Revolutionary War, The War of 1812, The Civil War, and all the rest of these wars up till now.
There is a little pocket size booklet named, "Treason, by Ralph Boryszewski" which is an offshoot of a book he wrote called "The CONstitution that never was." Ralph's pocket-booklet (Treason) can be gotten by calling him at telephone # 989-344-9950, and the list prices are:
1-25 - $1.00 each, 26-500 - .75 cents each, 501 and more - .50 cents each. The book itself (The CONstitution That Never Was) has lots more pertinent info which I recommend.
Greetings to youas well Uncle Buck,
You see, public policy is not law, but a way to circumvent the original intents of true laws, by harboring certain sects of the masses,while at the same time disregarding others, being sex, gender, race and all other sorts of divisions they can maneuver and split apart through threat, duress and coercion.
I am,
Manuel
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| David Merrill |
Posted - 22 May 2005 : 08:07:08
quote:
There is a problem with this picture which may not be immediately apparent to the casual viewer. Our history books tell us that the British lost that war. History should also tell us that the winners in a war usually (but not always) take the guns away from the other side. So, why were these British soldiers boarding their warship, guns in hand? (emphasis added)
Manuel;
Please quote a history book that tells us we won the War of 1812. I think the truce was adaquate to postpone the original 13th Amendment ratification until 1819. But it was first proposed formally in 1811 so that should tell you something about the cause of the War of 1812. That we were able to resist titles of nobility in public office until after the War Between the States, 1860's.
Regards,
David Merrill.
P.S. So many of you have been ordering up the certification it is the only document taped up in the cubicle. Call (719) 520-6200:
http://friends-n-family-research.info/FFR/Merrill_13th_Amendment_hanging_in_clerk's_office.jpg |
| Uncle Buck |
Posted - 21 May 2005 : 23:57:04
‘Corruptions In the Administration of Justice’: Bentham’s Critique of
Civil Procedure, 1806-18111
Anthony J. Draper
School of Public Policy, University College London
Contents:
Introduction
A. 'Scotch Reform': The Published Work and Manuscript
B. The Removal of Rules and Procedure
i) The Direct and Collateral Ends of the System of Procedure
ii) Corruption of the Technical System: 'Judge and Co.'
iii) Benefits of the Natural System
C. Judicial Discretion and the Promotion of Aggregate Utility
i) Legislative control of the procedural process
ii) Opening of the system to public observation, recognition, certainty and understanding
D. Conclusion: The Promotion of Individual Responsibility in the Exercise of Procedural Authority
Endnote
To supply justice to all at least expense2 - this is the notion of legal procedure presented by Jeremy Bentham in his work Scotch Reform.3 The piece was drafted in response to a Parliamentary debate on the administrative changes proposed for the Scottish system of civil procedure; yet, from the outset Bentham designed his critique to spread beyond Scotland and embrace the whole of English civil procedure.4 The aim of this paper is to provide an overview of the themes presented in Scotch Reform and to assess the nature of Bentham's criticisms of English procedure and his suggestions for improvement.
Attention will be focused on the relationship between the procedural system proposed by Bentham and the underlying principle of utility on which it rested. It will be argued that Bentham's system is consistent with the application of a utilitarian body of substantive law (and Bentham assumes throughout that the legislative enactments of substantive law do actually accord with a utilitarian ideal),5 and the system of procedure taken on its own has a clear utilitarian principle operating as the foundation of its subordinate aim of reducing pains of delay, vexation and expense. The primary end of procedure, however, is given as the successful application of the standard of justice embodied in the overarching structure of substantive law. Any body of substantive law, utilitarian or otherwise, would be better served, suggests Bentham, by the rationalized system proposed in Scotch Reform.6
The examination of Scotch Reform and the related manuscripts is considered in relation to two broad issues raised in existing studies of Bentham's adjective law writings.7 The first concerns the nature and extent of Bentham's anti-nomian thesis for the civil courts, discussed mainly in terms of procedure but inevitably including the procuring of evidence.8 On what basis, it is asked, are Bentham's recommendations for the removal of all procedural rules grounded? The version of the question pursued here relates predominantly to Bentham's procedural theory as presented in Scotch Reform, and the work has been justifiably regarded as the first public statement of this theory.9
The second issue concerns the apparent paradox presented by Bentham when he calls for severe restraints to be imposed on the judicial management and control of civil procedure, whilst, at the same time, suggesting the removal of all adjectival rules of action, and arguing that judges be provided with substantially increased powers of discretion. How, on a utilitarian basis, could such a degree of judicial discretion be said to pursue a reduction in the evils of delay, vexation and expense, that inevitably confront prospective litigants?
Since importance will be placed on the relevance of unpublished manuscript material, especially in regard to the second of these questions, it will be useful, before starting an examination of these central questions, to provide a brief description of the arrangement of the published work and, to indicate how it relates, chronologically and structurally, to the archival material. It will also be useful to remember that the topic of procedure is only a part of Bentham's adjective law writings and that he also has much to say on evidence and adjudication. Whilst these linked topics are obviously of relevance to Scotch Reform, indeed it is impossible from Bentham’s perspective to separate the constitutive elements of adjective law, nevertheless, Scotch Reform can be viewed primarily as a work concerned with the system of judicial procedure under the civil law.10
A. 'Scotch Reform': The Published Work and Manuscript
return to contents
The published body of material for Scotch Reform is not large - a small book presented as a series of four letters, with six statistical tables attached,11 and addressed to Lord Grenville, the First Lord of the Treasury.12 Bentham published the work rapidly in response to proposals put forward in Grenville's reform plan of 1806,13 which sought to transplant many of the procedural practices found in English courts into the Scottish system.14 Later, on some accounts, Bentham added a short fifth letter which commented on Lord Eldon's revised proposals following the change o administration in 1806.15
Initially, an offer was made by Lord Grenville inviting suggestions for the improvement of the Bill from outside Parliament. Your invitation, says Bentham,
‘... found me employed in putting... the last hand to a work of a somewhat new complexion on the subject of EVIDENCE; ... the object was - to bring to view the reasons, by which I had been satisfied that whether the Roman, the English, or any other system were resorted to, the established rules of evidence, occupied principally in putting exclusions upon the light of evidence, were almost without exception adverse to the ends of justice’.16
Grenville's bill therefore appeared at a particularly opportune moment, when Bentham had made considerable progress, in fact had finished, in his own words, a 'second edition'17 of his work on evidence18 and was now able to apply his recently developed principles to the practical and topical issue of the reform of Scottish civil procedure.19 Yet Bentham moved far beyond an isolated treatment of the Scottish system and, in Scotch Reform, presented a penetrating critique of the English system as well. Bentham attempted to illustrate 'English non-reform' and to identify the many imperfections, abuses and corruptions of the English system.20
The published work bears few similarities to the surviving manuscript. Whilst the central issues remain essentially the same the extent of the analysis could not be more different. Where the published work contains little more than an hundred pages the manuscript body runs to over 2,900 folios. Not only is the published text brief, but it is also incomplete. The promised plan of the work set out in its early pages is never executed.21 In the first published letter, we are given a summarized comparison of the existing system with what Bentham would prefer to see in its place. The second letter addresses the proposed division of the Scottish Court of Session. Two other specific issues, the system of pleading, and the use of juries are given a brief treatment in letters three and four.
In contrast the archive material can immediately be seen to cover a considerably wider range of topics,22including: the use of bail, the utility of Scottish appeals, procedural costs, the distrust of and powers appropriate to the Edinburgh Court of Session, the desirability of competition, and the need for appropriate instructions. Bentham continues, however, to devote much time in the manuscripts to a reconsideration of those themes central to the four letters sent to Grenville.23 The manuscript treatment is generally much fuller and more detailed than in the published work, and certain themes are found discussed in two, and sometimes three, different versions. Yet, despite the volume of remaining material the text of the one hundred published pages is not amongst the surviving body of manuscripts, and we must, therefore, still begin with the printed work when considering Bentham's proposals for procedural reform of the civil courts and the comparison between English and Scottish practice.
B. The Removal of Rules of Procedure
return to contents
To turn then to the issue of Bentham's anti-nomian thesis, the question we must consider regards how he envisaged his ends of procedure being achieved without any rules of procedure.24
i) The direct and collateral ends of the system of procedure
return to contents
Bentham provides a clear description of the ends of procedure. The first he terms 'direct' and explains this as,
'giving execution and effect to the predictions delivered, to the engagements taken, by the other branch, the main or substantive branch of the law: viz. by decisions pronounced in conformity to it.'25
The second end he calls the 'collateral', and this is described as 'prevention of delay, vexation and expense, in so far as superfluous or preponderant'.26
To examine, first, the direct end of procedure, it is noticeable that in Scotch Reform, in comparison with his other adjective law writings, in addition to the end of procedure being presented as the 'giving execution and effect to the predictions delivered... by the other branch, the main or substantive branch of the law: viz. by decisions pronounced in conformity to it', Bentham also pointedly states that the 'Direct ends of justice' are to prevent 'misdecision'.27 This identifies the specifically procedural emphasis present in Scotch Reform, for whilst 'rectitude of decision' is equally applicable to evidentiary,28 adjudicative and procedural issues, in Scotch Reform the central concern is directed towards the particular avoidance of 'failure of justice'29, this is a further end in addition to prevention of 'misdecision'.
There are clearly two issues at stake here. Not only does Bentham want the procedural system to allow rectitude of decision, but he also wants to avoid failure of justice which occurs when no decision is made. The crucial point here is that 'failure of justice' can occur, and usually does occur in Bentham's view, without any evidence-based decision being given. The system fails even to provide the opportunity for the judicial consideration of the evidence. In other words, the suit is thrown out of court on procedural grounds alone, and this forms a clear step prior to any consideration of evidence. In many ways this problem is the central theme of Scotch Reform and can be seen repeated in the manuscripts where the idea of 'failure of justice' is given particularly careful treatment.30 The problem emphasises Bentham's recognition of the unique and important position adopted by procedural practice within adjective law theory. Quite separately from the topics of evidence and adjudication the procedural system is crucial to the achievement of justice, and Bentham identifies the power invested in the system of procedure in its role as the link between available evidence and correct decision. Truth (from evidence) cannot be established under misdecision enacted (suit thrown out) because of interest-based judgement (adjudication). Procedure is identified as the necessary and crucial link between disinterested decision makers and the widest available range of relevant, and trustworthy evidence. The successful accomplishment of one element is useless without the successful accomplishment of the other. Without appropriate freedom to include all such evidence, no judge, no matter how disinterested, could provide a correct decision in accordance with the substantive law. Conversely, no quantity of relevant evidence is of any value if the judge has no interest in fulfilling the demands of substantive law. Decision makers are, and only ever can be, interested individuals, and, as will be shown below, the system of procedure must be designed to make it their interest to gather all appropriate evidence and to apply it in the enactment of substantive law.
The second, collateral, aim of Bentham's system is to reduce the burdens incumbent upon both parties to a suit; that is, to reduce the delays, the vexations31 and expenses involved in pursing civil litigation.32 Ostensibly, Grenvilles's attempt to reform the Scottish system of civil procedure was aimed at dealing with the difficulties and delays incorporated in appeals sent from the Edinburgh Courts of Session to the House of Lords in London. This general concern to reduce the delays and inconveniences, financial and otherwise, was the prime objective of the proposed Bill. This was of immediate interest to Bentham and although, on examining Grenville's Bill, he was able to claim that, despite reservations, 'in point of utility, there is enough in it to afford an ample justification to the provisional acceptance your Lordship has been pleased to give it',33 Bentham was acerbically dismissive of the idea that the proposals would make any substantial difference to the existing burden on litigants. Indeed, whilst claiming that a small benefit may be derived, ultimately he found that the Bill omitted so much that ought to be done in the way of reform that 'it will be found to fall extremely short of the professions, and perhaps expectations, of the learned author'.34 And he went further, stating that the Bill pursued 'the interest of the community... in demonstration only, the opposite interest of the lawyer being carefully protected, and even advanced, in reality and effect.'35
The purpose of Bentham's offerings on the subject of Scotch Reform was therefore to expose the true, dual role of procedure in assuring the correct standard of evidence and adjudication, and of providing a real protection against unnecessary delays, frustrations and expense.
ii) Corruption of the technical system: 'Judge and Co.'
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Bentham opens his assault by stating in quite unequivocal terms that the abuses found in the system of procedure in England as well as Scotland were due to the sinister partnership of judges and lawyers, who had and were continuing to manipulate the system for their own financial benefit.36 Indeed, the assault on the legal profession is quite extraordinary, even for Bentham. He openly declared in a letter to his brother that in Scotch Reform he treated lawyers as 'the scum of the earth' throughout.37 Even in the published text itself he accuses lawyers and judges of fundamentally self-interested, and frequently self-conscious, abuse of the system, and his accusations are presented in a manner which could hardly have endeared his suggestions to Lord Grenville.38
The attack on the sinister interest of the legal profession is pervasive. In every section of Scotch Reform, both published and unpublished, Bentham never tires of stating his absolute disability to conceive of any selflessness in the actions of lawyers. There never was, in Bentham's view, a social group so completely incapable of acting beyond self-interested motives. The complexities and devices developed in the operation of civil justice in England had just one goal - to encourage the complexity of procedure and correspondingly to increase the fees of lawyers and judges.39 These 'fee-fed' professionals not only sought the gratuitous extension of causes, but also encouraged suitors of bad faith (malâ fides)40 who were themselves seeking self-interested advantage or malicious aggression rather than justice. And most importantly, lawyers made themselves the only masters of the technicalities of the system and hence made themselves indispensable. The corruption he accused the profession of, especially judges, is not corruption in the sense of openly taking bribes; Bentham says he never knew of such a case.41 But rather that the technical system had been developed over a considerable period with Judge and Co. building-in delay and complexity at every step.42 He described civil courts as delay shops where 'delay sold by the year as broadcloth is sold by the piece'.43
The 'fee-gathering' method of paying for legal services presented a fundamental problem for Bentham in terms of the disjunction of duty and interest.44
... the reason why the system was and is so bad... is, that the power found itself in company with the interest, and consequently the will, to produce as bad a system as the people... could in their... state of relative ignorance and helplessness, be brought, by the utmost stretch of artifice, to endure'.45
Looking at Grenville's bill from such a view Bentham could only conclude that '... the profit and ease of the man of law were as carefully provided for as ever, the interests of the people, in their character of suitors, as completely sacrificed as ever.'46
Without the separation of fees from the consequences of judicial processes and decisions there remained a powerful interest-based incentive on the part of the legal profession to extend legislation and to increase the complexity of procedure. A clear utilitarian principle could be established that a system of procedure must not provide the opportunity of benefit for the principal operators or managers of such a system. The solution was obvious, replace fee with salaries, and the interest of 'Judge and Co.' would be directed towards satisfying the demands of the state paymaster - ultimately the Crown in parliament.47 This does not necessarily mean that judges will pursue the correct end of seeking the appropriate application of substantive law, but it does remove any obvious judicial motive for manipulating procedures to produce financially beneficial delays and expense.
In addition to this, the replacement of fees with salaries would break the connection of interest between members of the legal profession and malâ fide suitors, that is, litigants who pursued suits aware of the injustice of their case or driven by the ulterior motives of malevolence or antipathy. Under Bentham's system the absence of fees would mean judges would have no interest in encouraging such suitors. Again, a clear reference to the junction between interest and duty. With the removal of long-winded procedures such malâ fide suits would be dispensed with, or discouraged, at the first hearing where the basic decision regarding the 'justness' of a cause could be quickly established. All technical apparatus available for manipulation by malâ fide suitors, such as extended exchanges of documents between judge and lawyers and the frequent transfer of suits between jurisdictions, therefore had to be abolished. The very existence of a technical system was productive of such litigation, and this was encouraged by judicial misdecision.48
For the immediate proposal at hand Bentham sought to break the power of the judges over the procedural system which they themselves had made, and which was set opposed to the required goal:49
... in Scotland, as in England, and elsewhere, the system of judicial procedure has been, in the main, the work, not of legislators, but of judges: manufactured, chiefly in the form - not of real statutory law - but of jurisprudential law;- imaginary law, consisting of general inferences deduced from particular decisions. By primaeval indigence and inexperience, on the part of the sovereign, judges left without salaries, but left with power to pay themselves by fees. Hence, as will be seen, a constant opposition between the ends of justice, and the ends... of judicature.50
Throughout the work this opposition is given great attention - the idea that judicature, the judicial end of procedure (i.e. fees, self-interest) was entirely distinct from justice. The question of redirecting interest, the interest of judges especially, is a fundamental utilitarian element in Bentham's system.
iii) Benefits of the Natural System
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The great benefits of Bentham's own system are that they are, in his own conception, generally negative.51 'Logically speaking, the quality of the natural system will be seen to be chiefly of the negative cast; constituted by the absence of those [devices]'52 which are such a fundamental part of the technical system. In common with other enlightenment thinkers Bentham sought to remove abuses on a rational and scientific basis.53 Bentham wanted the specific removal of the delays, the confused variety of jurisdictions and the exclusion of virtually everyone who held an interest in a case.54 But Bentham did not want to remove all existing practices. On a utilitarian basis oral testimony and cross-examination of witnesses before a judge were central elements for a 'natural' system of procedure.55 Nevertheless, Bentham's argument presents a fundamental rejection of some of the central tenets in the conventional English notion which regarded procedural technicalities as guarantors of liberty.56 In Bentham's view there was no utilitarian sense, no prospect of assisting aggregate happiness, in maintaining rules that allowed, for instance, the accused the privilege of not giving evidence, of generally excluding hearsay evidence, or of ignoring the benefits presented in the use of summary courts.57 The idea that any of these procedural conventions protected the innocent was rejected entirely by Bentham. And even if the innocent did happen to be protected by such devices this was an inappropriate goal for a system of procedure, since the innocence ought to be protected by substantive law correctly framed.
This does not, however, explain why the alternative to the technical system was considered by Bentham as 'natural'. He presented this system as having its model in the family, where a father settles disputes summarily with all available information being drawn from all available sources.58 That is, without the need for any artificial rules of procedure.
Such a presentation of 'natural procedure', however, is not immediately appropriate for comparison with the wider socio-legal environment. Even if the domestic situation does not utilize or recognize, rules of procedure (and this is by no means clear), the transference from the domestic environment to the legal requires the introduction of some systems at least that are not needed in the family setting.59 Necessary information upon which decisions are based is not available to adjudicators remote from parties to a suit in the same way as it may be to the father of a family; and the attachments of benevolence and sympathy of father to family members must raise fundamental questions as to why Bentham thought the adjudication present in the family environment was comparable with that of the legal.60 But the use of such a model certainly emphasises the extent of Bentham's anti-nomian thesis in requiring that all rules of procedure conventionally accepted, that is all pre-established rules of procedure, need to be removed.
Of course, this is aimed principally at exclusionary rules, and Bentham clearly allowed the requirements of utility to dictate that evidence can justifiably be excluded if the gain from its admittance is outweighed by disadvantages in terms of delay, vexation and expense subsequently brought with it.61 The allowance of exclusion in such cases does embody an 'instruction' to the judge, but can this instruction be described as a 'procedural rule' for exclusion. Presumably it cannot, since Bentham's suggestion is that the rule be established at the substantive rather than the adjectival level.62
The rationale presented in Scotch Reform for the removal of rules, is therefore connected with Bentham's underlying political philosophy on the secondary level. The prevention of exclusion seeks the fullest possible admittance of relevant evidence with the aim of arriving at a swift, delay-free, judgement. If utility is identified in terms of wider knowledge, if knowledge is the beneficial element, then utility must be satisfied within a system of free proof where the fullest knowledge of the available information is allowed. On the primary level, however, in terms of the substantive law being correctly implemented, this could be achieved without any reference to utility, indeed, as the next section will show, it is not suggested that any consideration of general aggregate utility ought to be devolved upon the judge in Bentham's scheme.
C. Judicial Discretion and the Promotion of Aggregate Utility
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We now turn to the apparent paradox presented by Bentham's call for the removal of judges' ability to control and construct the system of procedure, whilst, at the same time suggesting that judges be provided with substantially increased powers of discretion. The question to be answered is, how, on a utilitarian basis, will a system which provides the type of discretionary judicial freedom advocated in Scotch Reform really work to promote an increase in aggregate happiness? A subsequent, and by no means subordinate question, also presents itself: assuming that judges may act in the interest of general social welfare perceived in terms of aggregate utility, as instructed by substantive law, what prevents them from referring in a direct way to the principle of utility in the consideration of particular cases? In other words, why is this not a theory for the exercise of direct act utility on the part of the judge?63
These questions may be answered by dividing Bentham's response into negative and positive aspects to identify those procedures which Bentham sought to prevent, and those which he sought to preserve or introduce. The interpretation of the negative aspects, that is, what the Judge ought to be prevented from doing is relatively unproblematic so long as one keeps in mind Bentham's constant assumption of the existence of an ideal body of utilitarian substantive law.64 Only with such an assumption is it safe, from Bentham's view, to contemplate the release of the judge (and lawyers) from the restraints provided by technical rules of procedure.
Here, then, on the negative side, we can again emphasise Bentham's demands discussed above, to abolish fees, to prevent the promotion of malâ fide litigation and the manipulation of the system, and ultimately to break the connection between lawyers and judges.65 Such measures sought radically to control those judge-made systems weighted in favour of judges and lawyers at the expense of litigants, and these negative elements form a central component in Bentham's envisaged removal of procedural power from the judiciary. Yet of more substantial importance, especially in the identification of the exercise of legal procedure as an overtly political process, are those positive elements suggested by Bentham in his deliberations on the role of the judge. Bentham's proposals can be regarded as positive from two perspectives; from above - those concerning the place of the judiciary within the constitution, and those from below - which are directed towards individual users of the system, the litigants themselves.
i) Legislative control of the procedural process
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As mentioned above, the assumption throughout Scotch Reform is that the rule of action provided by substantive law has a correct utilitarian foundation.66 With judicial action opened up, by the removal of rules of procedure and the requirement that judges' procedural actions are directly referred to substantive law, a new degree of judicial responsibility becomes feasible. This by no means implies that controls from the judge are removed. The opposite is, in fact, the case. The judge is open to the full impact of substantive law and is thus controlled to a greater extent than if a technical system of procedure remained interposed between the demands of substantive law and the actions of judges. One ought not, then, to regard Bentham's proposal as the enlargement of discretion in terms of the aims of substantive law. Such discretion is only applicable to the specific sphere of adjective law. The judge must apply all relevant parts of substantive law and cannot avoid doing so by the use of technical, procedural devices; and he must publicize the grounds and reasons for such decisions.67 The judge has discretion to accept any evidence, and from any source, so long as it assists in the ascertainment of factual knowledge appropriate to fulfilling the tenor of substantive law.68
This however, does not suppose that the primary end of the natural system of procedure is, in itself, utilitarian. If the substantive law were non-utilitarian (or utilitarian law incorrectly drafted) then this would be equally well reflected through Bentham's natural system, despite any flaws it may possess. It is important to remember that the ends of the system of procedure was to prevent both misdecision and failure of justice and success in achieving these ends could only be gauged by reference to the nature of the substantive law; it appears that Bentham's natural system would work as well with a deontological as with a utilitarian body of substantive law.
There can be no question that Bentham was promoting the extension of legislative control over judicial action. In this sense his theory can be seen as a direct assault on those conventional English notions of the separation of constitutional powers, and protection for the citizen body provided by a thoroughly independent judiciary. The role of the judiciary was to implement legislation defined by legislators, there was no other. Implementation is the key word, not interpretation. Conformity with the rule of substantive law is sought throughout; anything else amounts to judicial misdecision or failure of justice, and again the primary objective of the procedural system will not have been fulfilled.
With this perspective in mind - with the desire to enforce conformity on the part of the judge with the overriding substantive law - we see the limits placed on judicial action. In this sense it cannot be appropriate for a judge to make any direct appeal to utility when confronted with a range of circumstances not envisaged by substantive law, and to which the correct application of substantive law would produce net disutility. The judge can only use discretion in judging the best action in terms of the successful application of the substantive law, and not in terms of the best utilitarian outcome. Thus, in the establishment of proof, evidence should be accepted from any source if, and only if, it has a relevant bearing on the application of the substantive law in question. If the judge discovers flaws in the construction or tenor of the substantive law, then suggestions can be made that the law be amended, or rescinded. But there is no implication, in Bentham's discussion of procedure in Scotch Reform, that any direct appeal to utility is justified on the part of the judge. Bentham is quite clear; the judge cannot make law under the guise of employing procedure.
The rule embodied in substantive law is therefore the judges' only guide to correct procedure. The important point to note is that under the natural system the responsibility now placed on the judge to ensure court procedure accords with the aims of substantive law is much clearer than under technical procedure. The focus of responsibility is directed towards the individual judge, not deflected by the overall system.69
To make this responsibility more pointedly effective another obvious solution presented itself to Bentham; this was 'single-seated judicature'.70 This is conceived as a procedural system allowing a single judge to take evidence, hear witnesses, and arrive at decisions on all the relevant evidence available. A judge, that is, who refers to the guiding principles embodied in the substantive law appropriate to the case in hand, and who publishes his decisions at the conclusion of the case without reference to any other court. With the removal of formal, technical rules, which encouraged the transfer of cases from court to court, and frequently entailed evidence being heard by one judge but decision being given by another, an important screen behind which judges took refuge would be abolished.71 Decisions taken had to be the responsibility of individual judges,72 and no formulaic barriers ought to be interposed to break the junction of duty and interest. Procedural formulas had allowed the illicit transfer of responsibility from Judge to the system of instituted procedure in general. A tradition had been established whereby authority had become invested in the system -this authority was undermined by Bentham in his overt appeal to the lego-political authority of parliament.
An effective system of procedure requires political control in Bentham's view. Power is removed from the conventional, archaic system of procedure, and detached from both the political and economic influence of 'Judge and Co.' Judicial authority is brought to rest, in a quite considerable way, upon legislative authority. Indeed, with the emphasis on judges enacting the requirements of substantive law, and being disqualified from engaging in direct appeals to utility, the constitutional power of judges appears to be fundamentally reduced under Bentham's natural system.
Throughout his procedural writings Bentham is clearly interested in raising the status of the legislative authority. An important section of the Scotch Reform manuscript deals with what are termed in the Scottish system 'interlocutory judgments',73 that is, intermediate judgments which lie before some final procedural stage of adjudication. One of the main requirements of Grenville's Bill was that such interlocutory judgments ought to be unappealable; in other words, dissatisfied suitors could not ask a higher court to re-examine the interlocutory judgement.74 Bentham saw in this a threat not only to the supremacy of Parliament, in that the House of Lords was, and ought to remain, the highest court of appeal within the three kingdoms of England, Scotland and Ireland, but also as a threat to the continued well-being of the Union of these three kingdoms itself. The correct, the natural, system of procedure not only represented the superiority of justice over judicature,75 but of political stability over political division. To protect the Union, and to provide security - the main political aim - the substantive law of the Union had to control the process of civil litigation.
ii) Opening of the system to public observation, recognition, certainty and understanding
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One of Bentham's fundamental objections to the existing system was that it produced great uncertainty. There was no effective way of assessing, from the position of a prospective litigant, whether the substantive law would be appropriately applied in their case were they to proceed with legal action. The technical system was indeed unpredictable and inconsistent, and there were many critics who attacked it on such grounds besides Bentham;76 but any unpredictability that really existed was compounded many times over for Bentham, specifically because members of the general public had no opportunity of gaining an understanding of the complex rules.77
Such uncertainty was of concern since it embodied a major collateral evil faced by those contemplating using the law and is frequently mentioned in the manuscripts, often as an evil placed ahead of delay, vexation and expense.78 Indeed, this is a good example of the instances in which the manuscripts are particularly valuable in not only providing an elucidation of the published work, but in presenting sustained considerations of important issues omitted from the material published.
The answer to general public uncertainty was publicity. Not only publicity in terms of publishing the judicial reasons for decisions,79 but also in the wider sense of opening up the operation of the entire system to general inspection and common understanding. As has long since been established Bentham's answer was unequivocal on the course legislator's should take at this point when considering reform: 'here... the rule of utility is the rule of simplicity', that is, simplicity of common sense.80
In line with this pursuit of simplicity Bentham believed there to be no need, in the majority of instances, for court cases to last any more than one day. On the first hearing the judge, in the presence of both parties, could consider the 'budget' of evidence,81 and arrive at a decision immediately.82 If either the judge or any one of the parties were not satisfied that all evidence was available then the suit could proceed to the next, more complex, and time and money consuming stage. But in the great majority of cases, Bentham suggests, sufficient evidence would be available for the judge to pronounce a final decision.83
A notable feature of the natural system is this absence of any automatic procedural progression to jury hearings. Bentham was not against jury trial per se, as has been suggested,84 but wanted, rather, to reduce its use only to those occasions when it is really necessary.85 Flexibility is sought at the outset. Individual choice is provided to the judge (to decide in favour of jury trial) and to the parties (who can force the transfer of the case to a second judicial hearing in the presence of a jury).86
Again, the utility of such flexibility is plain to Bentham. What would be the purpose, he asks, of procedurally progressing to presentation before a jury if all available evidence had already been laid before the judge at the first hearing. All that would be provided, he suggests, 'to parties, to witnesses, to Juries, to Judge, to everybody', is, 'double trouble: useless and factitious delay, vexation, and expense',87 to all except fee-fed lawyers. The 'real use'88, and here he means the real utilitarian value, of a jury is when it is postponed to use after an initial hearing, in the 'second instance', and entered upon when 'prudentially... practicable to more advantage, than in the 1st instance, whether in the way of saving of delay, vexation, and expense, or in the way of security against misdecision'.89 In this light, with the suggested importation of jury trial into the Scottish system Bentham concludes, in the published 'Letter Four', that Grenville's proposals were 'not likely to abridge Delay, Vexation and Expense'.90 It is the simple utilitarian conception of preventing unnecessary evils that underlies Bentham's apparent disdain for jury hearings in civil cases.
D. Conclusion: The Promotion of Individual Responsibility in the Exercise of Procedural Authority
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Bentham believed that the benefits of the natural system, its effectiveness in achieving the collateral ends of procedure, of minimizing the evils of uncertainty, delay, vexation and expense would be easily determined. The stress here is on a continual testing of the system. It is an obvious point perhaps, but Bentham's method consisted from top to bottom in the empirical gathering of information, primarily in tables,91 covering all relevant details from the number of cases embarked upon, to time taken in hearings and judgements, and the degree of movement of cases between courts in cases of appeal. Statistical comparisons between system and system, court and court and ultimately, between judge and judge, would provide the basis for a thoroughly empirical analysis and critique of the procedures developed.
Being provided with such information individual litigants could measure the progress of their own suits, or predict the course of prospective suits, and in a very practical way observe the effectiveness, or ineffectiveness, of the system of procedure in relation to their own circumstances. The aim of such knowledge clearly creates a very personal power which works directly from the fundamental principle of utility; that on the basis of self-interest tied to duty, individuals would be empowered to recognise stages in the procedural process and be qualified to assess the degree to which it achieves its prescribed goals.92 In a collective sense this becomes closely connected with the idea of public opinion playing a role in assuring the system's effectiveness.93
We see, therefore, that Bentham's appeal to abolish all rules of procedure aims to open the procedural system to common understanding. An understanding based on wider knowledge. Knowledge to the judge in the form of greater probative and investigative power, knowledge to the suitors in a greater understanding and certainty of the processes involved. An attempt is made to provide a new transparency for the system appropriate to 'natural common sense'.94
Bentham's edifice is imbued with the principle of utility, which not only allows for utilitarian influence from above - via legislative (assumed utilitarian) control of judges who are assigned a recognisable, individual responsibility to apply the dictates of substantive law - but is open to utilitarian control from below by providing for publicity, certainty and the influence of individuals, both in their own right as litigants in civil actions and as a part of public opinion. Utility provides the justification for the system, whether or not the system is used to apply utilitarian substantive law. The benefits provided by a responsible decision making process, which pursues the ends of justice, are balanced against a gathering of evidence that provokes the least quantity of suffering in the form of delay, vexation and expense.
End Notes
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1 First published in Spanish translation as ‘Jeremy Bentham, Legal Procedure and Utility’ in Anales de la Catedra Francisco Suarez, vol. 37 (University of Granada: 2003) 287-307.
2 Expense meant here in the widest utilitarian sense and incorporating all evils and pains experienced during the process of litigation.
3 Scotch Reform was initially printed in 1807: the first published edition appeared in 1808, and a second edition came out in 1811, with additional tables. The piece was included in volume V of The Works of Jeremy Bentham (henceforth, Works), 11 volumes, edited by John Bowring (Edinburgh, 1838-43) pp. 1-53, where a version of 'Letter V' was incorporated. All references henceforth are to the 1808 edition unless otherwise stated.
4 The full title of the 1808 edition being: Scotch Reform; considered, with reference to the plan, proposed in the late Parliament, for the Regulation of the Courts, and the Administration of Justice, in Scotland; with Illustrations from English Non-Reform: in the Course of which divers imperfections Abuses, and Corruptions, in the Administration of Justice, with their causes, are now, for the first time, Brought to light;
5 '... the ordinances of the substantive branch of the law (the utility of which must on this occasion be assumed)', Scotch Reform, p. 6.
6 He believed existing adjective law was flawed whether '... the Roman, the English, or any other system were resorted to.' Scotch Reform, p. 3.
7 For studies of Bentham's adjective law writings see, amongst others, W. Twining, Theories of Evidence: Bentham and Wigmore, (London and Stanford, 1985), 'Bentham's Writings on Evidence', The Bentham Newsletter, 10 (June, 1986), 34-43, and Rethinking Evidence, (Evanston, 1994); G. Postema, 'The Principle of Utility and the Theory of Procedure: Bentham's Theory of Adjudication', 11 Georgia Law Review (1977), 1393-1424, and Bentham and the Common Law Tradition, (Oxford, 1986); A.A.S. Zuckerman, review of W. Twining, Theories of Evidence, in The Bentham Newsletter, 10 (June, 1986), 46-50; A.D.E. Lewis, 'The Background to Bentham on Evidence', Utilitas, 2 (November, 1990), 195-219; M.I. Zagday, 'Bentham on Civil Procedure', in Jeremy Bentham and the Law, eds. G. Keeton and G. Schwarzenberger, (London, 1948), pp. 68-78; and the older but still very useful, E. Halévy, La formation du Radicalisme Philosophique, 3 vols. (Paris, 1901-4), trans. M. Morris as The Growth of Philosophic Radicalism, (London, 1928; rept. 1972), pp. 373-432.
8 The evidence question regarding the system of free proof is conveniently summarized in Zuckerman's review of W. Twining, Theories of Evidence, in The Bentham Newsletter, p. 46.
9 Halévy suggests Scotch Reform embodied Bentham's first definitive statement of his procedural theory. See Philosophic Radicalism, p. 276. Twining agrees that Bentham worked out the details between 1803-12, but also shows how the outlines of the theory had been established in the 1780s and 90s, with an important statement appearing in Draught of a New Plan for the Organization of the Judicial Establishment in France, (London, 1790). See Twining, Theories of Evidence, p. 23, and 'Bentham's Writings on Evidence', p. 39 n.4.
10 On the classification of Bentham's adjective law writings see W. Twining, 'Bentham's Writings on Evidence', pp. 34-43. Bentham's evidence works include Rationale of Judicial Evidence Specially Applied to English Practice, ed. John Stuart Mill, (London, 1827), Traité des Preuves Judiciaires, 2 vols., ed. E. Dumont, (Paris, 1823), An Introductory View of the Rationale of Evidence for the Use of Non-Lawyers as well as Lawyers, ed. James Mill 1809-11, first published in Works, vi, pp. 1-188. Scotch Reform and 'Principles of Judicial Procedure', Works, ii, pp. 1-188, ed. R. Doane from manuscripts, written mainly between 1820-27, are identified as the main works on procedure. On judicial organisation Bentham produced, 'Summary View of the Plan of a Judicatory, under the Name of the Court of Lords Delegates', Works, v, pp. 55-60, and Equity Dispatch Court Proposal, (London, 1830), and 'Equity Dispatch Court Bill', first published in Works, iii, pp. 319-431. On sections relating specifically to evidence in Scotch Reform, see 'Letter Four', pp. 61-100 and some points in the arrangements' table.
11 Bentham produced the first four letters between 1806-7. Two further sheets, giving ten tables in total, were presented in the 1811 second edition of the work. No other alterations were made except for a new title page, which removed reference to Lord Grenville, and the addition of four more tables of statistics.
12 William Wyndham, Baron Grenville, 1759-1834, appointed First Lord of the Treasury 11 Febrary 1806, and left office 25 March 1807.
13 The majority of the Scotch Reform manuscripts in the University College London archive were drawn up between 1806-7. See A. Taylor Milne, The Catalogue of the Manuscripts of Jeremy Bentham in the Library of University College, London, (London, 1962). See UC lxxxii. 7-350, xci. 1-322, xcii. 1-478, xciii. 1-535, xciv. 1-555, cvi. 85-229, cix. 27-42 and clxviii. 166-213 (Roman numerals refer to boxes in which the papers are placed, arabic numerals to individual folios).
14 The Scottish legal system had its origins in the sixteenth century with the founding, in 1532, of the College of Justice or Court of Session which was to become the cornerstone of law in Scotland, and to which judges were directly appointed by the king. James VI (reigned, 1567-1625) encouraged the formal reorganisation of the profession and the qualifications and training necessary for a Notary Public were regulated by statute in 1587, the Society of Writers to the Signet appeared in 1594, and the Faculty of Advocates emerged as a body in 1619. The Privy Council existed as a superior court concerned particularly with cases of riot. See T.C. Smout, A History of the Scottish People 1560-1830, (London, 1969), pp, 101 and 108.
15 Eldon's measures were finally passed on 4 July 1808 as 48. Geo. III. c.151. Eldon's revisions were much commented on by Bentham in MSSand he appears to have published a brief response to Eldon's proposals which can now only be found at Works, v, pp. 47-53.
16 Scotch Reform, p. 3. Bentham had been working on his general theory of evidence since 1803 and had such a large body of relevant material that he believed '... the only feasible course seemed to be to submit to your Lordship, instead of the picture itself, [i.e. his whole work on evidence] a sort of Table of the Contents of it', ibid., p. 5. This suggests that Bentham's recollection of 1823 given by Lewis in 'The Background to Bentham on Evidence', pp. 204-5 is correct, and indicates that Bentham was still working on Evidence in 1806.
17 On the nature of this second 'edition' see Lewis, 'The Background to Bentham on Evidence', p. 205.
18 Rationale of Judicial Evidence Specially Applied to English Practice, ed. John Stuart Mill, (London, 1827).
19 On the origins of Bentham's work on evidence in the early nineteenth century see Lewis, 'The Background to Bentham on Evidence'. p. 204.
20 Bentham gives Scotch Reform the subtitle, ... with illustrations from English Non-Reform: in the course of which divers imperfections, abuses, and corruptions, in the administration of justice, with their causes, are now, for the first time, brought to light, (1808), title page.
21 Bentham originally planned for the work to be composed of three distinct parts:
i) 'Proposita': providing a careful examination of the 17 proposals set before Parliament by Lord Grenville in the Scottish Judicature Reform bill, which was passed for a second reading in the House of Lords on 17 February 1807. This part is closely related to the first four 'Letters' published in 1808.
ii) 'Omissa': presenting items omitted in the proposals tabled for reform. Material headed 'Omissa' is linked in some references with the body of text titled 'Letter V'. This second part was never published although a great deal of text was produced; it appears that at least two, and possibly up to four, versions had been drafted by June 1807.
iii) 'Facienda': the reforms which Bentham thought should be introduced. Again, this part was never published.
See Scotch Reform, p. 30.
22 Forty-nine distinct topics have been identified in the UC archive, most of which were written between 1807-8, and which constitute a substantial extension of Bentham's discussion. For UC box numbers see n. 22 above.
23 Much of the UC archive material was produced after the printing of Scotch Reform in 1807.
24 A useful outline of the main concerns here can be found in Zuckerman, review of W. Twining, Theories of Evidence, pp. 46-50.
25Scotch Reform, p. 5.
26 Ibid., p. 6.
27 Ibid., p. 5-6. 'Misdescision' is defined as 'decision unconformable to the regulations and arrangements belonging to the substantive branch of the law', ibid., p. 6.
28 In The Rationale of Judicial Evidence the emphasis is on the nature of proof and the establishment of probabilities in the search for truth, as it should be of course when evidence is specifically under consideration. See Twining's discussion of the direct end as given in Rationale, in Theories of Evidence, p. 27ff.
29 Scotch Reform, p. 6.
30 See 'Reasons. Ends of Justice', UC lxxxii. 43-63, 65-147, UC xcii. 24v, UC xciv. 198, 220-437 [folios 428-437 are incorrectly numbered], 373, 423-5, 163v and 468v; 'Reasons. Jurisprudence', UC xcii. 413-24; 'Reasons. Principles', UC xciv. 200-219, UC xciv. 166v-168v; and 'Judicial Injustice', UC cvi, 85-198, 225-29, UC clxviii. 166-170.
31 In Bentham's terminology an amalgam of the frustrations, distresses and irritations involved in pursuing legal action.
32 Scotch Reform, p. 6.
33 Ibid., p. 3.
34 Ibid.
35 Ibid.
36 For examples of the 'corrupt' practices identified by Bentham see ibid., p. 8.
37 See The Correspondence of Jeremy Bentham, vol. vii (1802-8), ed. J.R. Dinwiddy (Oxford, 1988), (CW), p. 425, letter 1923, To Samuel Bentham, 9-10 April 1807. Bentham says here that both Romilly and Dumont had seen the work and 'both much pleased with it: Romilly more especially: though lawyers are treated throughout as the scum of the earth and the arch enemies of mankind'.
38 Grenville studied law at Lincoln's Inn.
39 Scotch Reform. pp. 6-9, especially p. 9.
40 Ibid., p. 9.
41 See UC xcii. 136 and 307.
42 Scotch Reform, pp. 6-7, and for Bentham's attack on the factitious nature of 'Motion Business' in particular see p. 22, where he states this to be 'all made-business: - business made by and for Judge and Co.'
43 See UC xcii. 146.
44 Thus 'sharp-sighted artifice' was the reason for the exclusion of the 'most instructive and indispensable sources of evidence'. Undoubtedly parties were excluded and the system was exceptionally complex, especially in the case of the system of special pleading in wide use under English procedure. This was part of the 'numerous and complicated system of devices, all tending to the same altogether natural (i.e. lawyers pursuing particular interest)'. See Scotch Reform, p. 4. For use of 'fee-gathering system' as a synonym for 'technical system' see p. 9.
45 Ibid., p. 4.
46 Ibid., pp. 4-5.
47 The question of remuneration for judges was, however, not a part of the system of procedure. Neither salaries nor fees are mentioned in the table comparing systems of natural and technical procedure. See Scotch Reform, pp. 12-26.
48 Promotion of litigation by judicial encouragement of malâ fide suitors is frequently mentioned in Scotch Reform, but see p. 7 especially. See also UC cxii. 115.
49 Dinwiddy suggests that this emphasis on interest and duty was later used to recommend the disconnection of the lawyer class from judicial in Bentham's Constitutional Code writings, by disallowing lawyers from entering the judiciary. See J. Dinwiddy, Bentham, (Oxford, 1989), pp. 67-8.
50 Scotch Reform, p. 5,
51 But not entirely so since important elements of the technical system, such as vivâ voce gathering of evidence and cross-examination are retained. Scotch Reform, p. 12, articles 2 & 3.
52 Scotch Reform, p. 11,
53 In the work of Cesare Beccaria from 1764, for example, obscurity and exclusion in legal procedure are condemned. See On Crimes and Punishments, trans. D. Young (Indianapolis, 1986), pp. 12-13 and 24-5.
54 For a discussion see Twining Theories of Evidence, pp. 21-2.
55 Apparently since they encouraged speed and accuracy in adjudication.
56 See Halévy, Philosophic Radicalism, p. 379.
57 On the use of summary courts Bentham provided a careful catalogue of the value of existing summary institutions, including in Scotland the small-debt courts, and in England 'in civili, the courts of requests called courts of conscience'. Scotch Reform, p. 10.
58 Bentham also terms this the 'Domestic' system. Scotch Reform, p. 9. Bentham also regards the 'domestic tribunal' as an important method of preventing crime. See 'Indirect Means of Preventing Crime', Works, i, p. 558. For a discussion see Halévy, Philosophic Radicalism, p. 381-2.
59 Bentham did not think the lawyer class could be dispensed with altogether, but he certainly demanded that their role be greatly reduced. See H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory, (Oxford, 1982), pp. 30-1.
60 Bentham recognised this to a degree in Works, i, p. 558.
61 Regarding the delivery of evidence, for example, all must be presented vivâ voce unless 'by reason of distance or otherwise, such confrontation and mutual explanation is, physically, or prudentially, impracticable; prudentially, i.e. without preponderant mischief in the shape of delay, vexation and expense'. Scotch Reform, p. 12, article 1.
62 An obvious confusion is presented by Bentham's early desire to establish a Code of Procedure. He first attached such a code to each of Constitutional, Civil, and Penal Codes, and eventually developed a single, independent Procedure Code which was applicable to the other three. This Code must be interpreted as substantive enactive legislation to avoid theoretical conflict with Bentham's rules free system of procedure.
63 The argument that direct act utility is implied by Bentham's procedural theory is presented in G. Postema, 'The Principle of Utility and the Theory of Procedure: Bentham's Theory of Adjudication', 11 Georgia Law Review (1977), 1393-1424. Postema concentrates his attention on the 'Principles of Judicial Procedure', written between 1820-7 and first published in Works, ii, pp. 1-188.
64 Postema rejects this requirement for control by substantive law and believes Bentham can be read, in 'Principles of Judicial Procedure', such that adjective law is intelligible without reference to substantive law. See 'The Principle of Utility and the Theory of Procedure', p. 1400. This is not the case in Scotch Reform where the dominance and required existence of substantive law is assumed throughout. This apparent distinction adds weight to Halévy's suggestion that Bentham's later complications of his procedural system damaged the coherence of his theory.
65 The appeals to utility provided by these practical suggestions were, of course, directed to Lord Grenville and the legislative body, who would invoke such utilitarian considerations in revising the regulations governing civil procedure. In 'The Principle of Utility and the Theory of Procedure', p. 1404, Postema makes the valid point that in 'The Rationale of Judicial Procedure' Bentham often talks as if he is addressing judges who have the authority to make procedural law. This marks a significant distinction between the two works - in Scotch Reform Bentham seeks Grenville's support against judicial corruption.
66 Such law may be jurisprudential (i.e. common law) but by preference would be statutory. Indeed, the manuscripts argue that only once the rule of action is transferred 'into statutory law' can the utility of substantive law be a possibility. See UC xcii. 110.
67 On the importance of the control gained by public explanation see UC xcii. 309.
68 'N.B. Reference thus made to the tenor of the law, supposes the rule of action to exist in the shape of real, not of sham, law.' See Scotch Reform, p. 21, article 11.
69 On the importance of individual responsibility and its weakening in proportion to the multitude of judges, see UC xcii 306 in particular.
70 Scotch Reform, p. 16, article 7.
71 'A Board, my Lord, is a screen... wrong is covered by it with a presumption of right'. Scotch Reform, p. 34.
72 'single-seated judicature, and with it... comes... a still more important benefit; viz. individual responsibility'. Ibid.
73 See UC xcii. 283-303, 398-405.
74 On the importance of Scottish judicature reform for the constitution, i.e. appeal from the Court of Session in Edinburgh to the House of Lords, see 'No appeals against interlocutors - bad, UC xcii. 289-405. On the role of the House of Lords see UC xcii. 292.
75 The aim of judicature was to provide profit for judges and lawyers.
76 On criticism from within the English legal profession see Twining, Theories of Evidence, p. 23. For another contemporary tract examining Grenville's proposals see James Ferguson's Observations upon the proposed reform in the Administration of Civil Justice in Scotland, (1807).
77 The system was unpredictable because the rules were unknown, too complex, or inconsistently applied. See UC xcii. 092-110.
78 This is worked up in manuscripts at xcii. 110-115, where substantial discussion is provided that is not to be found in the printed work.
79 Publicising judicial decision was a major part in process, however. See UC xcii. 110 and 308.
80 Halévy, Philosophic Radicalism, p. 379. This notion of 'common sense' requires further investigation. Bentham says that 'the light of common sense' is neither impracticable nor dangerous. See Scotch Reform, p. 11.
81 Ibid. p. 382. See Scotch Reform, p. 71.
82 Scotch Reform, p. 15, article 5.
83 There is no sense in Scotch Reform of Bentham's interest in reconciliation which can be found in other works on procedure. See Postema, Bentham and the Common Law Tradition, p. 355 n.31, and Twining, Theories of Evidence, p. 95.
84 e.g. Halévy p. 383, where Bentham's apparent anti-jury stance has been used to accuse him of illiberalism. And see Halévy goes so far as to say that 'in Bentham it [the jury] inspired nothing but...disdain. See ibid., p. 400.
85 That is, when required by the complexity of the case or when desired by one or more of the parties involved.
86 See Scotch Reform, 'Letter IV', pp. 61-100, for the details of jury trial. Although it is well recognised, of course, that Bentham had substantial problems with the way in which juries were constituted, and at just this period Bentham wrote Elements of the Art of Packing as Applied to Special Juries, (Published: London, 1821, though written in 1808). For a discussion of this work in the contemporary context see D. Hay, 'The Class Composition of the Palladium of Liberty: Trial Jurors in the Eighteenth Century, Twelve Good Men an True, eds. J.S. Cockburn and T.A. Green, (Princeton, 1988), p. 319.
87 Ibid., p. 71.
88 Ibid., p. 72.
89 Ibid., p. 65.
90 Ibid., pp. 90-5.
91 The only addition to the second, 1811, edition of Scotch Reform, other than title page changes, was four more tables identifying complications and delays.
92 Ultimately Bentham provided them with the constitutional power of appeal to the Justice Minister. See Constitutional Code, vol. i, ed. F. Rosen and J.H. Burns (Oxford, 1983), (CW), Ch.IX §20, Arts.20-21, p. 388-9.
93 Again, an indication is provided of elements later found in the Constitutional Code as the role of public opinion conceived as a form of tribunal is developed.
94 'Common sense' apparently indicating accessibility to the non-lawyer.
http://www.ucl.ac.uk/Bentham-Project/journal/adprocedure.htm
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If I have to be like him who is going to be like me?
James 1:25 The Perfect Law of Liberty |
| Uncle Buck |
Posted - 21 May 2005 : 03:05:40
The Office and Role of a Notary Public
Understanding Contract Law is probably the hardest part of gaining a proper understanding of the law.
Everything is practically governed by contract law. Her Majesty ELIZABETH THE SECOND entered a contract when she took the Coronation Oath. We entered a contract when we were born, to owe allegiance to Her, and all laws made by Her, under the Australian Constitution with the consent of parliament. She undertook to take judicial advice by Chapter III Australian Constitution Courts on whether the laws she had assented to were within Her competence to assent to.
However, notwithstanding decisions by various lawyers, that Her Majesty ELIZABETH THE SECOND is divisible, in truth She is not, and a default in respect of the Commonwealth of Australia Constitution Act 1900 and Australian Constitution, can still be charged back to Her in the United Kingdom. The role of Notary Public is to protest a Bill drawn by Her on authority granted by Her, by a Commonwealth public official against one of Her subjects in Australia and if none of her Courts here will enforce the contract, now the United Kingdom is in the European Union, there is a very good chance they will enforce it against the British Home Revenue.
There is a mountain of law in respect to Bills of Exchange, and they are all about contracts. As the comments of Blackstone below indicate, breach of Statute is breach of contract, and where a liquidated penalty is prescribed for breach of contract, it is recoverable without the need for further litigation, either against the principle who drew the bill, or the drawee. Since both Section 122 Fines Act 1994 ( New South Wales) and sections 42 and 43 Acts Interpretation Act 1954 continue the common law right of every citizen to sue for breaches of statute, and grant the prosecutor one moiety, once a Bill is drawn in the name of the Queen, it must either be paid, at the Business House of the Queen, the Supreme Court of whatever State is chosen, or Her Majesty ELIZABETH THE SECOND herself having authorised its issue will be liable. Of course there is plenty of law making severe penalties applicable to any Supreme Court Officer, who neglects to register a Bill for payment. The 22 & 23 CAR. 2 C 22 ( Fines and Forfeitures to the Crown) (1670-71) is the act that covers that eventuality.
By chicanery and deceit, certain legislatures have sought to destroy the integrity of the Courts, and make them the private playground of wealthy corporations. The Office of Notary Public, performs the Sovereign’s obligations not to create a monopoly, under the (1623-4) James 1 C3 (Statute of Monopolies) ss 1 and 6. The Court of Faculties is everyman’s Equity Court. Only a society constituted as this one is, with the blessing of Almighty God has fully functioning Notaries Public representing the Sovereign.
With the immense body of contract law made by the Parliament of the Commonwealth and the other eight competing jurisdictions, in Australia sorting out which law must be obeyed and which is superseded by a superior law, is a challenging and interesting study.
BLACKSTONES COMMENTARIES
Book III from Page 159
From these express contracts the transition is easy to those that are only implied by law. Which are such as reason and justice dictate, and which the law therefore presumes that every man has contracted to perform, and upon this presumption, makes him answerable to such persons as suffer by his non performance. And thus it that every person[160] is bound and hath virtually agreed to pay such particular sums of money , as are charged on him by the sentence, or assessed by the interpretation of the law. For it is part of the original contract, entered into by all mankind who partake the benefits of society, to submit in all points to the municipal constitutions and local ordinances of the state, of which each individual is a member. Whatever therefore the law orders any one to pay, that becomes instantly a debt, which he has beforehand contracted to discharge. And this implied contract it is, that gives the plaintiff a right to institute a second action, founded merely on the general contract, in order to recover such damages , or sum of money as are assessed by the jury and adjudged by the court to be due from the defendant to the plaintiff in any former action. So that if he hath once obtained judgment against another for a certain sum, and neglects to take out execution thereupon, he may afterwards bring an action of debt upon this judgment, and shall not be put on proof of the original cause of action; but upon shewing the judgment once obtained , still in force but unsatisfied, the law immediately implies that by the original contract of society the defendant has contracted a debt, and is bound to pay it. This method seems to have been invented when real actions were more in use that at present and damages were permitted to be recovered thereon; in order to have the benefit of a writ of capias to take the defendants body in execution for those damages, which process was allowable in an action of debt. ( in consequence of the statute 25 EDW iii C 17) but not in an action real. Wherefore since the disuse of those real actions, actions of debt in personal suits have been pretty much discountenanced by the courts, as being generally vexatious and oppressive by harassing the defendant with two actions instead of one.
On the same principle it is ( of an implied original contract to submit to the rules of the community whereof we are members) that a forfeiture imposed by the bye laws and [161] private ordinances of a corporation upon any that belong to the body, or an amerciament set in a court-leet or court- baron upon any of the suitors to the court( for otherwise it will not be binding) immediately create a debt in the eye of the law: and such forfeiture or amerciament , if unpaid, work an injury to a party or parties entitled to receive it; for which the remedy is by action of debt.
The same reason may with equal justice be applied to all penal statutes , that is , such acts of parliament whereby a forfeiture is inflicted for transgressing the provisions therein enacted. The party offending is here bound by the fundamental contract of society to obey the directions of the legislature, and pay the forfeiture incurred to such persons as the law requires. The usual application of this forfeiture is either to the party grieved or else to any of the kings subjects in general. Of the former sort is the is the forfeiture inflicted by the Statute of Westminster( explained and enforced by several subsequent statutes) upon the hundred wherein a man is robbed, which is meant to oblige the hundredors to make hue and cry after the felon; for if they take him, they stand excused. But otherwise, the party robbed is entitled to prosecute them , by a special action on the case , for damages equivalent to his loss. And of the same nature is the action given by the statute 9 Geo 1 C 22, commonly called the black act, against the inhabitants of any hundred, in order to make satisfaction by damages to all persons who have suffered by the offences enumerated and made felony by that act. But more usually these forfeitures created by statute are given at large to any common informer, or in other words to any such person or persons as will sue for the same. And hence such actions are called popular actions, because they are given to the people in general. Sometimes one part is given to the king, to the poor or to some public use, and the other part to the informer or prosecutor, and then the suit is called [162] a qui tam action, because it is brought by a person “ qui tam pro domine rege quam pro se ipso in hac parte sequitor.” If the king therefore commences this suit, he shall have the whole forfeiture. But if anyone hath begun a qui tam or popular action, no other person can pursue it; and the verdict passed upon the defendant in the first suit is a bar to all others, and conclusive even to the king himself. This has frequently occasioned offenders to procure their own friends to begin a suit, in order to forestall and prevent other actions; which in some measure is prevented by a statute made in the reign of a very sharp sighted prince in penal laws; 4 HEN VII c 20, ( now S 44 Crimes Act 1914) which enacts that no recovery , otherwise than by verdict, obtained by collusion in a popular action , shall be a bar to any other action prosecuted bona fide. A provision that seems borrowed from the rule of the Roman law, that if a person was acquitted of any accusation, merely by the prevarication of the accuser , a new prosecution might be commenced against him.
A second class of implied contracts are such as do not arise from the express determination of any court, or the positive direction of any statute, but from natural reason and the just construction of the law…………[163] …3. A third species of implied assumpsit is when one has had and received money belonging to another, without any valuable consideration given on the receivers part, for the law construes the this to be money had and received for the use of the owner only, and implies that the person receiving promised and undertook to account for it to the true proprietor. And if he unjustly detains it, an action on the case lies against him for the breach of such implied promise or undertaking. And he will be made to repair the owner in damages , equivalent to that which he has detained in violation of such his promise. …….It lies for money paid by mistake, or on a consideration which happens to fail, or through imposition, extortion, or oppression, or where any undue advantage is taken of the plaintiffs situation. …[164] but if no account has been made up, then the legal remedy is by bringing a writ of account , de computo, commanding the defendant to render a just account to the plaintiff or shew to the court good cause to the contrary. ….. But this defect after many fruitless attempts in parliament , was at last remedied by the Statute 4 Anne c 16 which gives an action of account against the executors and administrators…….
[165] 6. the last class of contracts , implied by reason and construction of law, arise upon the supposition , that everyone who undertakes any office, employment, trust or duty, contracts with those who employ or entrust him, to perform it with integrity, diligence and skill. And if by his want of any of those qualities, any injury accrues to individuals, they therefore have their remedy in damages by a special action on the case……
This aspect of contract law, is where the Notary Public performs his pivotal function in law enforcement. Once a person has identified the breach of contract, and assessed the damages in accordance with the prescribed formulas set by Parliament, he is entitled to issue a Bill of Exchange, where an invitation to treat is issued in the name of the Sovereign. All citizens are liable to pay, unless they can find a court to set the demand aside.
If the document complies with the terms of the contract that the citizens agreed to then once the default has been documented and brought to his notice, and he has defaulted to set it aside during the time limited to do so, he is found guilty and convicted by his or her own Act. The Notary Public evidences the default, but like any magistrate who hears a matter without giving notice, the accused is entitled to apply to set the default aside, but only where he has a defence on the merits.
It is cheap, effective and is accomplished with the minimum of fuss. If the fine is paid, there is no publicity, but if it is not, then the accused must commence the action to set the demand aside. Section 459E Corporations Act 2004, applies exactly the same principles , as does a bankruptcy notice, where the Registrar in Bankruptcy performs the same function as a Notary Public.
In the alternative when the judgment is registered as a Foreign Judgment, being an Internationally recognised instrument, then a summons is issued under the Foreign judgment rules. Notice under a Court seal on a summons is then issued, and the accused person is called upon to show cause why execution should not issue against that person.
The Queensland Foreign Judgment Rules provide as follows:
4.(1) An application for registration of a judgment--
(a) must be made by originating summons; and
(b) may be made ex parte or on written notice given to the judgment debtor.
(2) If the application is made ex parte, the Court may order that the judgment creditor give written notice of the application to the judgment debtor in the way the Court considers appropriate.
Evidence in support of application
5.(1) An application for registration of a judgment must be supported by an affidavit-- (a) exhibiting a certified copy of the original court's judgment under its seal; and
(b) specifying the regulation under the Act that extends Part-2 of the Act to the country of the original court or to the original court; and
(c) stating the following particulars--
(i) the full name and last known address of the judgment creditor and debtor;
(ii) the nature of the causes of action the subject of the judgment;
(iii) that a regulation has not been made under section-13 of the Act applying the section to the country of the original court;
(iv) that the judgment has not been wholly satisfied or, if the judgment has been partly satisfied, the amount in respect of which it remains unsatisfied;
(v) that there is no reason why the judgment could not be enforced in the country of the original court;
(vi) the costs of registration of the judgment incurred by the applicant;
(vii) if the judgment creditor wishes the judgment to be registered in a currency other than Australian currency--the rate of exchange prevailing on the day of the affidavit;
(viii) if it is more than 6-years since the day of the judgment--whether there has been a proceeding by way of appeal against the judgment and, if so, the day of the last judgment in the proceeding;
(ix) if interest is payable on the judgment under the law of the country of the original court and the interest is not expressed in the judgment--the rate of interest;
(x) if the judgment is a judgment of a court of Papua New Guinea--specify the amount (if any) payable under the judgment that is recoverable Papua New Guinea income tax or non-recoverable tax;
(xi) if the judgment is a judgment of a court of New Zealand--that it was not given in a proceeding, or part of a proceeding, in which a matter for determination arose under section-36A, 98H or 99A of the Commerce Act-1986 of New Zealand
In the above cases, where the Supreme Court as representative and franchised business owned by the State of Queensland, or New South Wales, or Victoria or Tasmania, or Western Australia of Her Majesty ELIZABETH THE SECOND is to receive one half of the proceeds of the offence, then it is highly unlikely that the said Court will refuse to recognise the undoubted jurisdiction of the Court of Faculties of the United Kingdom, to certify breaches of contract, where and when they occur, anywhere in the lands to which the Commission as a Notary Public runs.
In truth, the Office of Notary Public continues in almost every land, and even Republics have continued their services. However, they remain as one of the great unifying institutions. Despite efforts to fracture the Lord’s jurisdiction, throughout the former Empire, by certain judges, declaring that the Lord and the Queen are divisible into separate parts, the Office of Notary Public continues the Lords Jurisdiction, by making the Notary an Officer of the Church of England under the Court of Faculties, established by Henry VIII through the Archbishop of Canterbury, in 1533.
It matters not that the Chief Justice and Clerk of Notaries appoints the Officer. In that capacity the Chief Justice, here as in the United Kingdom is acting as representative of the Sovereign, the true Sovereign, Her Majesty ELIZABETH THE SECOND and not the fictitious sovereign fractured away from Christianity, created by deceit and chicanery, by various misguided Legislatures, throughout Australia.
The first step towards restoring honesty and integrity to public administration is to obtain a certificate from a Notary Public that you are entitled in the name of the Sovereign, by validly enacted Federal Legislation, to claim penalties for breaches of the fundamental contracts enacted into Statutes.
The second step is to identify breaches of contract, and issue, in the name of the Sovereign, an invitation to treat as a Bill of Exchange with a period for default, during which time the accused can set the demand aside if they are entitled to do so.
The third step is when the default period has expired, to have a Protest witnessed by a Notary Public, endorsed and sealed, together with the original Bill, and then, the Bill becomes a judgment and is a law.
The fourth step is to find any one of the franchised Supreme Courts owned and operated by the States and Territories to register and enforce the default judgment, entered upon the admission of liability, which becomes obvious when the default period has expired without any attempt to set the demand aside.
It is not really that complicated, but in reality is one of the provisions ensuring peace, order and good government.
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If I have to be like him who is going to be like me?
James 1:25 The Perfect Law of Liberty |
| Manuel |
Posted - 29 Apr 2005 : 17:13:44
Esquires
by
John E. Trumane
all rights reserved
As the story goes, there is a painting somewhere in the vast hallways of the Smithsonian museum which shows British soldiers boarding a sailing ship, muskets in hand. The ship is in an American port, and the soldiers are returning home after the War of 1812.
There is a problem with this picture which may not be immediately apparent to the casual viewer. Our history books tell us that the British lost that war. History should also tell us that the winners in a war usually (but not always) take the guns away from the other side. So, why were these British soldiers boarding their warship, guns in hand?
The answer to that question was provided to me by a common law judge in the California Republic. He had recently presided over a jury trial in which "titles of nobility" were the issue. The jury was presented with evidence and arguments that the "real" 13th Amendment did not ban slavery after the Civil War. That amendment was really the 14th Amendment.
The "real" 13th Amendment was ratified by three-fourths of the Union states before the War of 1812. It placed into the U.S. Constitution a specific ban against titles of nobility, and defined a penalty for those who accepted such titles. That penalty was a loss of citizenship and a loss of eligibility for public office.
In its entirety at:
http://www.supremelaw.org/authors/trumane/esquires.htm |
| Manuel |
Posted - 21 Apr 2005 : 12:58:49
I have recently heard of this book, hot off the press, I think, which is another one of those books written by attorneys, to "come clean." Now... I don't like green eggs and ham, but this certainly proves that the time has come to speak or forever hold your peace:
The Fraternity: Lawyers and Judges in Collusion
Molloy, John Fitzgerald
ISBN: 1557788413, Cloth, 280 pages, Index, Notes, 6x9"
From:
http://www.paragonhouse.com/catalog/product_info.php?authors_id=242&products_id=378&osCsid=0c03cd788ba09bc46a6384f4bd296aae
"...Molloy (a former Chief Justice of the Court of Appeals for the State of Arizona) frequently includes discussions of cases in which he was professionally involved in order to buttress his argument that the American lawyers and judges have colluded in a process of making the legal system progressively require the work of legal professionals and increasingly lucrative salaries. Molloy argues that this has become possible by literally sanctifying the Constitution in a way that allows them to paint opposition to their decisions as sacrilegious."
—Book News, February 2005
"Lawyers and laymen alike will greatly benefit from reading this illuminating book. After reading it, your view of the profession won' t be the same."
—Senator John McCain
"Judge Molloy is one of the most revered members of our legal profession, and is extremely well qualified to comment on the manner in which this profession has evolved.... The vignettes that make up this book will be delightful reading for all interested in our culture and our legal system."
—Stewart Udall, Former U.S. Secretary of the Interior and author of The Forgotten Founders
"I served on the Superior Court Bench while Judge Molloy was also a Superior Court Judge.... Molloy has established a reputation as a trial lawyer with outstanding knowledge of our judicial system.... The Fraternity does give us the latest analysis of the legal profession."
—Raul H. Castro, Former Governor of Arizona and former U.S. Ambassador to El Salvador, Bolivia, and Argentina.
"...it is very clear...that the Courts in our judicial system have, in fact, become the lawmakers, when it is very clear...that our Constitution delegated that responsibility to the Congress of the United States and the State Legislatures....treads on almost sacred ground when he gives his readers the real insight into how the legal profession has truly changed from being one of the premier professions in our society to a business where the number one objective or bottom line is financial profit... My endorsement is unequivocal. It is a fine scholarly piece with real integrity."
—Dennis DeConcini, U.S. Senator (Ret)
"The Fraternity is the inside story of a great professional collusion in the pursuit of greed and power... it should be required reading for anyone entering or associated with the legal profession."
—Nicholas N. Kittrie, Distinguished University Professor and former Dean, American University School of Law; author of The War Against Authority: From the Crisis of Legitimacy to a New Social Contract
As lawyer and judge for half a century, John Fitzgerald Molloy has both profited from our legal system and seen how it has been altered in favor of lawyers, to the detriment of society. The book starts with the evolution of the Fraternity, with the author using vivid descriptions of particular cases in which he was involved. He shows that the legal profession has continuously re-shaped the law, in subtle but significant ways, to make legal services ever more necessary—and more lucrative for the Fraternity.
The power the Fraternity now exercises, including the power to decide President Bush over Gore, has been accomplished by creating a new religion, that of worshiping the Constitution in ways the founders did not intend—with lawyers and judges the priests of that religion. Lawyers may not appreciate the revelations in this book, but they should be very interested, for this author knows the profession well, and his analysis will resonate with their own experience. For those who have been appalled by the large fees charged for lawyers’ services, this book will be an enlightenment.
For those who appreciate vignettes coming from some of the most interesting cases hitting our courts, this book will be captivating. Molloy documents terrible deficiencies in our legal system and presents practical solutions, such as separating the bench and the bar as is done in other countries in the world. Other publications that decry the ascendancy of lawyers offer no suggestion as to how their power can be curbed. This book does.
|
| Manuel |
Posted - 07 Jun 2004 : 10:07:53
http://www.lewisnews.com/article.asp?ID=81469
Wake up, America, this is your union of states
Posted on: 6/5/2004 9:39:00 AM - Columnist
By Ed Lewis
A few readers – presuming I have a few readers – are possibly wondering about my near silence for the past two to three months. Frustration and anger can do that, especially when the frustration and anger that comes from Americans believing the crap put out by government, especially its attorneys, judges who are attorneys, legislators who are attorneys, and, of course, mainstream media that will not print nor utter the truth about the true state of our union.
No, I do not call it a “country” because we are not “one nation”; we are many nations united in common cause, the common cause being the protection of human rights and the land that has been proclaimed as the harbinger of freedom.
If we are one nation, then there are no state lines, and no separation between the United States and the united States of America. We are nothing more than a federal enclave under the absolute rule of the federal government, specifically the presidency since Congress has unlawfully allowed something like close to 14,000 edicts by presidents to be treated as law. Absolutely illegal and unlawful, as this places the president as a monarch, a dictator.
This is how the feds want it, and so do State governments, including their damnable political subdivisions. You see, the local officials and State officials can then follow the lead of the feds imposing statutes upon the people that do not in fact – in the united States of America – apply to the people.
Get this and get it straight. And, for a change, do your duty as an American and refuse to obey. Statutes written by men are to control artificial persons, which is the “person” in statutes. It refers only to corporations, and other government created entities.
We are not created by corporate governments. We do not owe our lives to corporate government, although it may seem that way as hundreds of Americans have been shot and beaten to death by law enforcers.
Anyway, we are not “persons in law”. We are human beings that can be described as men, women, children, living souls, real men/women/children, people, human beings, Homo sapiens sapiens, and Citizens of the united States of America (not “citizens of the United States”).
We are the sovereignty of this country. When the colonists fought their heroic battles to separate us from England, and to establish our union of states with “The unanimous Declaration of Independence of the thirteen united States of America”, the power of the King of England transferred directly to be shared equally by the people of the newly found union.
Therefore, the people are the sovereign – hence, equal in law. Civil servants – those elected/appointed officials – are NOT EQUAL TO US – they are our servants that are given specific tasks.
The tasks do NOT included making rules for the sovereignty to follow, as no vote or organization can remove our God-given rights, or legislate in any manner concerning our rights.
To put it simply – even in terms the dumbest of dumb officials can understand – rules made by men are null and void as far as the people are concerned, as the created cannot be the master of the creator.
We People are superior to the laws of man, and are only under the control of our consciences – i.e., what is right or wrong in respect to our fellow people and their rights.
You may or may not believe in God – a Supreme Being – but what this writer knows is that we were not created out of thin air, or by government as we people preceded governments by millions of years.
Government – at least in the American society – was made by the people, for the people, and of the people. Government is NOT our creator and it has NO AUTHORITY OVER US.
The majority cannot give government any authority over us, as we each are equal to the other, and human rights are human rights regardless of what the majority may believe or be enticed to vote for by lies and misleading statements made by officials and other spokespeople.
Simply put, the majority can not vote away the rights of even one human being, as the one human being is sovereign in his own right. Any attempt to do so in infringing upon the rights of the one, that is prohibited by the supreme Law of the Land and the Laws of God this union of states was founded on.
You, the majority, and you, elected/appointed officials, cannot put asunder what God has created. You other people and officials are not my masters. I am my own master, and I behave according to the edicts of our Creator.
I refuse to harm another or his property.
I respect all people for being people, but condemn whole-heartedly any interference into other people’s lives.
I therefore condemn all public officials – civil servants – that interfere in people’s lives with “bills of pains and punishments” (Bills of Attainder) applied to the people in their private capacities and to their private property, whether land, buildings, or other appurtenances that are for private use.
Thus, what has blocked the writer’s output is the fact that daily he reads of atrocity after atrocity committed by officials against the people.
Law enforcers act as they are the Gestapo - and it is probable they are since so many other acts and terms have been taken from Nazi Germany - but we just call them “law enforcers” instead of dirty rotten Gestapo traitors to the united States of America.
These so-called servants of the people commit treason after treason, including killing innocent people, using many means of torture – including hand-cuffing people for traffic violations that don’t, by the way, apply to the people in their private capacities, use of electrical shock, beatings, treating people as even being lesser to dogs and cats that are rounded up, and so on.
The writer reads of judges who act as if they are monarchs, making law from the bench, when they have no authority to even interpret law, let alone “make” law. These traitors should to a man/woman be tried for treason and hung by their necks until dead. Or, face a firing squad.
In the united States of America, judges only have the authority to administer Oaths and to take acknowledgements. They have no authority to deny facts, nor to make rulings based on what they think while ignoring the supreme Law of the Land, AND the provisions in every constitution that controls them, along with ignoring their agreement (Oath of Office).
Then, we have the bane of civilized society – BAR attorneys. These people who have allegiance to the State and to the International Bar Association of London, England, do not have your interests at heart and could give a good healthy crap about the supreme Law of the Land, or the statutes of the many states and the federal government.
If they did, the only needed defense in every citation (ticket) case would be – “Judge, this case must be dismissed as there is in fact no crime. The “man” we are fraudulently calling a “defendant” and/or “person” was merely exercising his human rights secured to him by the Constitution for the united States of America and granted to him by the Supreme Being. There is, therefore, no claim against which redress may be granted.”
But, of course, a so-called “prosecuting attorney” – an unlawful third party to the action – do not care about the Constitution or their Oath to uphold it. In fact, many do not affirm or subscribe to the Oath as it is written, and believe it relieves them of any duty to the people.
Totally false, of course, as it means the office they are filling must be vacated immediately and that the elected attorn has been impersonating an officer/civil servant of the people.
More than half of legislators are now BAR attorneys. Man, does the writer ever wish that the Original 13th became public knowledge.
What we have are BAR attorneys writing statutes specifically to mislead people into believing such applies to them. Those legislators that are not BAR attorneys believe everything the BAR tells them to believe. Or, they are ousted by the powers that be.
Then, law enforcers who have been unleashed by BAR attorneys in government go out and write hundreds of thousands of tickets against the people, and arresting people for “crimes” that are not crimes as there is no victim.
Thousands – millions actually – are then imprisoned based on laws that in fact do not exist as far as the people are concerned. They are unconstitutionally applied and are therefore a means of terrorism against the people.
People are beaten into submission, shocked in submission, and brutalized in other ways by law enforcers, while the dumbasses haven’t any idea at all of what their duty really is to the people. Ignorance and the joy of “commanding/terrorizing” people seem to be their guide, not what is lawful.
Judges that are BAR attorns – and most who are not – commit treason with virtually every case and are the elite of the terrorists attacking the united States of America. Money and power, not authority, guide their traitorous acts against the people. Damn nearly the whole of them to hell. The writer would if he was God but he isn’t. But, then, neither are they.
At any rate, anything that furthers the false power of the STATE is what these traitors do. Gone is any integrity, morality, or honor by these snakes that would – and probably have – destroyed America and the American dream.
Put it all together and it is clear there are NOT three branches of government reining watch over the other two to assure the Constitution for the united States is followed exactly as written, not as interpreted by BAR attorneys and others who are out to control all property, including your life, your pursuits, and your liberty.
Sadly, the “one” ‘branch’ is now led by a man that with the below statement pretty much epitomizes the thoughts of officials, whether in a city of a few hundred, a county, a state, or in the federal jurisdiction.
Please excuse the language but Bush the Demented said it and it should be repeated exactly as he said it and not toned down in the slightest.
“Bush's Erratic Behavior Worries White House Aides --Dictator George W. Bush’s increasingly erratic behavior and wide mood swings has the halls of the West Wing buzzing lately as aides privately express growing concern over their 'leader’s' state of mind. In interviews with a number of White House staffers who were willing to talk off the record, a picture of an administration [regime] under siege has emerged, led by a man who declares his decisions to be "God's will" and then tells aides to "**** over" anyone they consider to be an opponent of the administration [dictatorship]. [*Note: The source of this article is capitolhillblue.com.]” (As taken from DISSIDENT VOICE
www.dissidentvoice.org , June 5-7, 2004)
And, so we have the lead established – screw over any man or woman that stands up to government. That is the America of today.
So, Folks, either wake up and pull your heads back into the light of day, or suffer for generations government out of control with human rights completely obliterated in the union of sovereign countries/republics/commonwealths formerly known as the united States of America.
And, remember for the sake of all mankind –
Law enforcers may only enforce rules on corporations and other fictional entities.
Judges may not make law.
BAR attorns should be barred – just as the Original 13th says – from holding any office and being in any court of law (Article III court).
No crime is possible for an American Citizen in which there is no victim.
Legislators cannot make rules applying to the people.
No county, city, or State created chancery is an Article III court of law. Nor are territorial courts known as United States District Courts. These all operate in equity and Admiralty/military jurisdictions, not the law referred to in the Constitution, or the common law jurisdiction we each stand in.
In short, People, we are the sovereignty. We are human beings guaranteed life, liberty, and the pursuit of happiness. We may do as we wish so long as we do not harm another man or woman or damage their property.
Keep believing the traitorous scum filling all public civil servant offices, the likes of BAR attorneys with allegiance to what is legal (statutory) and not what is lawful, and the united States of America with all its beliefs will be destroyed, if it hasn’t been already.
It might not be too late right now, but it soon will be as people such as the anti-liberty Bush continue to be place in offices of trust.
Take off your blinders, turn off the boob tube (main source of false and misleading information), and lay aside your complacency.
This is our union of countries – it does not belong to the few who hold offices of trust – it belongs to We, the People, the sovereignty, and no others.
Unless this is realized and acted upon, though, by millions of extremely irate people, the elite – those few scumbags controlling all – will get their way and turn us into a gigantic farm breeding and growing human resources for their use (slaves, in other words).
Does the writer advocate overthrowing government? Only if this means that government is forced into obeying the laws of God and the supreme Law of the Land. If civil servants are not willing to do this, then they should be replaced and – if not hung or shot for treason – forever prohibited from holding any office or being part of any corporation (supposed to be created solely for the people’s good).
Besides, Folks, we people are governing body, not the bodies politic we create and call “government”. How do we overthrow ourselves? We don’t’ – but civil servants are sure hell bent on overthrowing our governance and the government as established. Hmm, that makes each level a domestic invader and domestic terrorist.
To repeat ~
THIS IS OUR UNION OF STATES as we people are the states (look up the definition of “state”). All else are fictions make up by us to take care of duties we specify with only the authority we give them, not what law-makers, executive administrators, attorns, and judges have misled us to believe.
We People are therefore the united States of America, the home of the brave.
So, for the children and all children that follow, act like it. Get involved – stay involved – and never ever let any lowly official force you to act otherwise. |
| spyboy |
Posted - 17 Feb 2004 : 02:48:54
Greetings, and many blessings!
It seems I made a mistake of fact in a recent post (jan. 17, 04) I stated the American Bar Association was formed in 1878. it seems that the actual year of formal formation was 1898. Sorry. SpyBoy |
| Lewish |
Posted - 18 Jan 2004 : 12:05:15
Hi SpyBoy,
OK, by "reasonable courts" I mean any court that will accept the Maxims as written, without making you go find the statute that says the same thing. Every Maxim I have considered worth using, I have found, after due diligence, to be coded into a statute. The only problem is, the coders used several hundred words to say what the Maxim said in ten words.
Well, yes, the courts sometimes do strange things. More correctly, the judges sometimes do strange things. It is our job as Sovereigns to stay in honor, which forces them to do the same.
Peace to all,
Lewis |
| spyboy |
Posted - 17 Jan 2004 : 19:05:00
Greetings Lewis, and many blessings!
Yes, these Maxims may be regognized ia all "reasonable courts".
The question is, Is a Fiction Court, in a Fiction Commercial System, dealing with Fiction Entities, a "reasonable court"?
Note that the first three letters in "reasonable" are the first three letters in "real".
Is un-real also un-reasonable?
The strawman had no brain. Is a brain necessary to be reasonable?
The Supreme Court used the phrase "like a pink rock candy mountian" in an opinion once referring to the Equity jurisdiction courts, hum. SpyBoy |
| Lewish |
Posted - 17 Jan 2004 : 13:01:50
Hello SpyBoy,
Well said. Almost.
I would add that there are Maxims of Law, points of proper action, so used and ingrained into life that they have become a Law unto themselves, that are recognised by all reasonable courts, which take precedent over ALL other laws, Common Law included. Things like "Equality under the law is mandatory and required by law." The first part "Equality under the law is mandatory" is so obvious that this maxim is in the Common Law and encoded into Statute Law.
Ummm, too many red pills. Gotta try a blue one sometime.
Lewis |
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