CHAPTER 1
INTRODUCTION
The framers of our Constitution relied greatly on the "COMMENTARIES ON THE LAWS OF ENGLAND" by William Blackstone. These "commentaries" were written between 1765 and 1769. They are the basis for our REPUBLICAN form of government and assisted in establishing the "common law."
On page 125 of Chapter 1 of Blackstone's Commentaries, the Rights of the people of England are established. It reads: "Thus much for the declaration of our rights and liberties. The rights themselves thus defined by these several statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that residuum of natural liberty, which is not required by laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. These therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of England. And these may be reduced to three principal or primary articles: the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement of diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense." Also, on page 130, paragraph 2, it reads: "Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty is in concert with the power of locomotion, of changing situation, or removing one's person to whatever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law..."
We now turn to the period of time, around the forming of our Republic, 1776. In an article written by General Gage as our nation was being shaped he stated, "As the time for revolution drew nigh the colonists fully comprehended the magnitude of the question at stake." Gage, writing from Boston to the British secretary in 1768, discourages measures of opposition towards a "country where every man studies law."
We will turn now to 1850, when California was admitted to the Union. Reading from Volume 9, Statutes at Large, concerning the "Act of Admission of California Into the Union", it states:
WHEREAS, The people of California have presented a constitution
and asked admission into the Union, which constitution, was submitted to
Congress, by the President of the United States by message, dated February
thirteenth, eighteen hundred and fifty, and which, on due examination, is
found to be republican in its form of government.
Be it enacted by the Senate and House of Representatives of the United
States in Congress assembled, That the State of California shall be one, and
is hereby declared to be one, of the
United States of America, and admitted into the Union on an equal
footing with the original States in all respects whatever...
However, in 1879, when the Constitution of the State of California
was adopted it laid the groundwork for a DEMOCRATIC form of
government. Previously, the Civil Code of 1872, set forth the basis
for law. We will examine sections of that Code:
DEFINITIONS AND SOURCES OF LAW
(From the Civil Code of Procedure)
(See also glossary at end of booklet.)
Section 22. Law defined
Law is a solemn expression of the will of the supreme power of the
State.
Section 22.1. Supreme power; expression of will
The will of the supreme power is expressed:
(a) By the Constitution.
(b) By Statutes.
Section 22.2. Common law of England; rule of decision
The common law of England, so far as it is not repugnant to or
inconsistent with the Constitution of the United States, or the
Constitution or laws of this State, is the rule of decision in all
courts of this State.
EFFECT OF THE 1872 CODES
(From the Civil Code of Procedure)
Section 23. Time of passage of 1872 Codes
With relation to the laws passed at the 1872 Session of the
Legislature, the Political Code, Civil Code, Code of Civil
Procedure, and Penal Code, shall be construed as though each had
been passed on the first day of the session.
(These sections point out the basic law for the public and is based
on the English Common Law)
One of the first States to codify the works of Blackstone was New
York, in the year 1848.
We must remember that the revised California CONSTITUTION was
adopted in 1879 to conform to the 14th amendment (passed in 1868) of
the Federal constitution. This DEMOCRATIC California Constitution
was not submitted to the Congress, as the United States CONSTITUTION
has no provision for a DEMOCRATIC Constitution; this would mean that
the 1879 Constitution has no lawful effect. This can be proven by a
study of the "NEW" California Constitution. The enabling act of
this Constitution has been repealed. (California's metes and bounds
are found only in the 1849 Constitution.)
Contrary to what we are taught, the primary form of government in
America is Monarchy. The Colonists fought England to rid themselves
of subject status under King George, the Monarch. They then
instituted Monarchy for Themselves. The King of England ruled by
Divine Right. Now ... the individual Colonists must each rule One's
self by Divine Right; over One's self only. Each Colonist (Citizen)
became a King, a King and a Kingdom with no Subject but One's self
and Family, but with a territory - his own private land.
They formed a government to prevent anyone from reinstating subject
status over the Kings of this land. The government is to help
protect the many Kingdoms, because some people will always attempt
to usurp what others have earned. There are always those who
covet. The government was to handle those who wouldn't govern
themselves. Some people want to govern others, and some refuse to
govern themselves, preferring others to look after them. These two
groups are made for each other. Our government is designed so that
these two groups can voluntarily join up and compliment each other.
This is the Democracy aspect of our system. The "joys" of Democracy
are compared with the Republican form of Government which the Kings
of America set up around, not over, themselves.
THE SOLDIER'S TRAINING MANUAL (TM2000-25, pp 118-121) was issued by
the War Department, November 30, 1928 - and was ordered destroyed by
the infamous F. D. Roosevelt, so that he could institute a democracy
utilizing social security as a means to make everyone a slave to the
Federal Government. This manual sets forth the definitions of a
democracy and of a republic:
DEMOCRACY: A government of masses.
Authority derived through mass meeting or any other form of direct
expression; Results in mobocracy.
Attitude toward property is communistic-negating property rights.
Attitude toward law is that the will of the majority shall regulate,
whether it be based upon deliberation or governed by passion,
prejudice, and impulse, without restraint or regard to consequences;
Results in demagogism, license, agitation, discontent, anarchy.
REPUBLIC: Authority is derived through the election, by the people,
of public officials best fitted to represent them.
Attitude toward property is respect for laws and individual rights,
and a sensible economic procedure.
Attitude toward law is the administration of justice in accord with
fixed principles and established evidence, with a strict regard to
consequences.
A greater number of Citizens and extent of territory may be brought
within its compass.
Avoids the dangerous extreme of either tyranny or mobocracy.
Results in statesmanship, liberty, reason, justice, contentment, and
progress.
Our problem in this age is that these two groups, Government and
those who won't govern themselves, covet those who are independent
rulers of themselves. They want us to believe that the third
independent group must submit to the other two. They are jealous of
the prosperity of those who rely on their own abilities without
bothering anyone else. They demand that the government force every
one to "share." We all know that forced "sharing" is nothing more
than theft, tyranny, Socialism and its branch cults, Communism and
Fascism.
The Kings of this land have relied on the government to teach their
Heirs about government. Government does not teach anything other
than "Obey Government." The Government has taken over infallibility
from God, the Pope, and the religious institutions of our people.
Yet the Constitutions, State and National-Federal, which delegate
limited power to Government, and the codes and statutes promulgated
by the Legislatures so empowered, in evermore devious language,
still admit that the People are Sovereign. [California Penal Code
Section 693, California Government Code Section 54950]
"The people of this State do not yield their sovereignty to the
agencies which serve them. The people, in delegating authority, do
not give their servants the right to decide what is good for the
people to know and what is not good for them to know. The people
insist on remaining informed so that they may retain control over
the instruments they have created." (California Government Code
Section 54950)
The Law does not compel performance. Prior restraint is forbidden.
Proactive law is nonsense. Arresting and trying Citizens for
victimless "crimes" is impossible since a Citizen can only be
brought to court by another Citizen, innocent until the complaining
Citizen convinces His peers that the Accused intended to harm Him
and refuses to make Him whole.
This matter is blurred by the so called "Public Offense."
The "Public Offense" is used by government to raise revenue. Our
courts are being used to raise revenue! This is taxation without
representation; it violates the principles of Justice. It violates
everything We stand for.
There is a bit of ambiguity in the semantics of a "crime" versus a
"public offense." There must be a difference! Why does the code
refer to both in some places, and to one of the other alone
elsewhere? Look through the Penal Code. Most of it concerns crime
against the Public committed by public officers and employees (who
have a contract: their oath of office), or private people in
collusion with people who work for government. This is where the
public offense originates [Penal Code Section 15]. The Penal Code
is supposed to insure that Government employees and officers obey
the Law. A public offense is committed when a public officer or
employee has usurped his authority, or a Private Citizen gains
unjust enrichment at the expense of the Government.
The Penal Code lists crimes against the person or property, [Part 1,
Title 8-14] in which case the offended person or property owner has
to show his damaged body (Tort), (person, property or contract
breached {technically, the law bifurcates [divides] at torts and
contracts}) at the probable cause hearing, or sign the affidavit or
complaint as the accuser before an arrest can be made. Murder is
the only offense where the corps speaks silently. Without a private
person calling upon government to come against you as a private
Citizen, government can not take action against you, unless you
collude with a public employee, or you convert or damage public
property.
Our private use of the Highway is not a conversion of public
property. The Government does not own the road. We own it as we are
the People of California as described in the "Act for Admission of
California into the Union" (1850). The rules of the road in the DMV
Code [Division 11] determine liability in the event of an accident.
Crimes require intent to do harm [Penal Code Section 20]. An
accident is truly an accident, if there was no intent. If the
person at fault cures the harm done to the damaged party, there is
no problem, no crime, no reason for the State to intervene. If the
person at fault refuses to make the damaged party while, then there
is intent. The person at fault has essentially stolen from the
damaged party. Now there is reason for the damaged party to
complain to the government to prosecute the recalcitrant party
[Penal Code Section 9]. The damaged party can sue civilly, or have
the State prosecute criminally under the Penal Code. Crimes and
penalties are all listed in the Penal Code. None of the rules of
the road are found in the Penal Code, except drunk driving and
exhibition of speed. Therefore, none of the
rules of the road are crimes.
Not having a driver license, license or registration on a car is not
a crime; it is an administrative matter. No one can have their
liberty or property taken away for an administrative matter until
all administrative due process is exhausted and the matter is
adjudicated with jury trial, unless waived.
This is the way the Law is supposed to work. If you are in an
accident, the person causing the accident will be forced to carry
out his responsibility to the other party because the other party
can bring him into court where he may face fine or imprisonment if
he doesn't cure the harm. If you were damaged and the liable party
didn't want to settle, you have two ways to go: sue him civilly or
threaten criminal prosecution if he won't cooperate.
Currently, our courts are being used to raise revenue. This does
not promote justice. It promotes contempt for the Law, and
disrespect for the court. A no-accident speeding ticket, seat belt
violation, no proof of insurance, and such are victimless "crimes."
To prosecute criminally without a damaged party is prior restraint.
There can be no criminal intent without a real party of interest.
Public offenses are made criminal by the contract of the oath of
office, or government employment since these offices provide easy
access to unjust enrichment and abuse of authority.
How do the judges rationalize this type of "justice?" The judges
are quietly taking judicial notice of contracts which they believe
we have entered, and have breached. When we argue an action as if
it is a "Tort," but have a contract in effect that the judge
can "notice," he rules on the breach of contract rather than our
tort arguments.
The list of these "contracts" which we have volunteered into is very
long and confusing. When you discover the deviousness and the
ridiculous amount of "consideration" (usually money) we have to
exchange for such pitifully infinitesimal benefits, we may want to
terminate these contracts. Your Social Security account, Driver
License, checking account, credit card, use of Federal Reserve
Notes, marriage license, residency, voter registry, children in
public school, Passport, (to name a few) are all contracts that you
enter either by application or "accepting the benefit." These
contracts have other contracts that are "merged" or exist as "holder
in due course" attachments to your freedom.
We have unalienable rights when we are born. When we enter a
contract we temporarily relinquish some of those rights until the
provisions of the contract are fulfilled. Due to our ignorance,
impropriety, and carelessness we do not even begin to know the
consequences of the contract provisions by which we are bound. Some
of the provisions allow other provisions of the contracts to be
changed without our knowledge. Read the small print on the credit
card or checking account application contract for confirmation of
this fact.
How does this relate to our use of the highways and the courts?
Turn to DMV Code, Division 6, Section 15000 et al. The
Constitutional provision for the licensing of "drivers"
and "vehicles" is not found in the "State" Constitution. It is
a "Compact" (contract) between the states and the Federal Government
under Article I section 8 clause 3 of the U.S. Constitution. This
is the "interstate commerce" clause. Notice that DMV Code Div. 6
mentions the "Class A, B or C Commercial License." Now look at
the "Noncommercial Driver License application." The classes
are "A," "C," and "M." Where is the authorization in the
DMV Code for a "noncommercial" Class A or C license or any
authorization at all for a "Class M" License? We have not found it.
The State believes you are in "Interstate Commerce" because the
contracts you entered (listed above) attach you to the federal
government in Washington D.C. The judge will treat you as if you do
not have any rights because he is "noticing" your "contracts." The
fewer of these "contracts" you have the more he has to abide by the
Constitution.
The statutes and codes instituted after the adoption of the 14th
Amendment (1868, under martial law), and the substitution of "People
of the State of" Constitution (1879) for the original "People of
California" Constitution (1849, still in effect), allowed the
government to promulgate "laws" for the government but apply them to
everyone in "interstate commerce."
Short of obtaining a doctorate degree in contract law, how can we
begin to reign in government? The Statutes and Codes still provide
us with ways to counteract this abuse of government power. For
instance:
DMV Code Section 40302 Mandatory appearance.
Whenever any person is arrested for any violation of this code,
not declared to be a felony, the arrested person shall be taken
without unnecessary delay before a magistrate within the county
on which the offense charged is alleged to have been committed
and who has jurisdiction of the offense and is nearest or most
accessible with reference to the place where the arrest is made
in any of the following cases:
(a) When the person arrested fails to present his driver's
license or other satisfactory evidence of his identity for
examination.
(b) When the person arrested refuses to give his written
promise to appear in court.
(c) When the person arrested demands an immediate appearance
before a magistrate.
(d) When the person arrested is charged with violating Section
23152. (Note: Section 23152 is a Misdemeanor driving under the
influence.)
When the arresting officer violates Vehicle Code Section 40302, by
taking you to jail and/or towing your car, he violates his oath of
office, and a host of government codes. Vehicle Code Section 40302
is backed up by Penal Code Section 853.5. When you demand: "Take me
to the Magistrate," there are four instances in which he must take
you to the Magistrate:
a. you do not identify yourself.
b. you won't sign a promise to appear.
c. you demand immediate appearance before the magistrate.
d. he thinks you are intoxicated or drugged and your vehicle is
blocking the right of way. Vehicle Code Section 40300.5.
In any of these instances if you are taken to jail, he is in deep
trouble for false imprisonment, kidnapping, impersonating a peace
officer, and violation of your unalienable rights.
The officer is guilty of intimidation of witnesses, Penal Code
Section
136.1: "...except as provided in subdivision c., every person who
knowingly and maliciously prevents and dissuades or attempts to so
prevent or dissuade any witness/es from attending or giving
testimony
at any trial, proceeding, or inquiry authorized by law is guilty of
a
misdemeanor."
A Peace Officer is defined in Penal Code Section 830; At Penal Code
Section 836 - Peace Officer duties through out the state - If he
sees you commit a crime in his presence, he can arrest you. So can
you as stated Penal Code Section 837. You have the same powers as
any Peace Officer. Only three circumstances can result in an
arrest. For a Peace Officer to make an arrest, without a warrant,
he must witness:
#1. You damaging or hurting someone, #2. You damaging or taking
someone's property, #3. You violating a contract you have entered
voluntarily. A warrant comes from a complaint. A complaint has to
come from someone who has been damaged in his 1. person or
2. property, 3. or you broke a mutual contract.
When he is not a Peace Officer, at Section 40300.5 Vehicle Code,
there are only two instances that he can arrest you: #1. If you
cause an accident, harming another person or property. #2. If you
are in or about a vehicle blocking the road and he has reasonable
cause to believe you are under the influence of alcohol or a drug.
You are under arrest when the red light comes on. You need to
establish this fact with the police officer. If you are docile and
no threat, but demand to see the magistrate, and the police officer
still wants to take you to jail, you can play "hard core" and let
him take you to jail. His action will damage you and you can sue
him for the damage. This can however, involve you in time and
money.
But by being firm in your demand to see the magistrate you cause the
knowledgeable officer to realize that you are not the normal bend-
over type person. He may just wish you a nice day and tell you to
be careful. He really does not want to sit around in court or wake
up the judge in the middle of the night as the Code provides for.
If the Officer is going to take you to jail, you can, at the last
minute, go ahead and "sign" the ticket. Offer to do so. Since your
signature is your sovereign seal, you only sign freely and
voluntarily. Being under threat of jail with no due process is
reason enough to print your name rather than sign it, and add the
letters:
U.D. (under duress), F.C. (force and coercion) or without prejudice
above or under your printed name, or if you are familiar with the
Uniform Commercial Code, Section 1-207. This will be used later to
disavow your promise to appear, if needed. If the officer catches
the
printed name and insists that you "sign" go ahead - his "ticket" is
so gargled now it is obvious that you protested. He must now let
you go on your own recognizance.
Why have Government and Laws? To secure and perpetuate freedom for
the individual Human Being. Please read the Preambles (the intent
of the Constitutions) to the U.S. and California Constitutions and
the Preamble to the Bill of Rights (the original 10 amendments to
the U.S. Constitution). This chapter has concerned itself with
explaining the Axiom Natural Rights Doctrine: The self-evident,
universally recognized truth that God given rights are eternal,
perpetual, inherent, and unalienable and cannot be transferred,
taken, or given away. These principles are embodied in Article I of
the California Constitution, 1849.
We speak of Sovereignty without giving it much thought. Where does
it come from? The Supreme Sovereign is God, the Creator of the
Universe. Each human is sovereign to the extent that the creator has
so endowed each of us. California has derivative Sovereignty in so
far as We the People delegate to it (the corporate State) limited
power, via its Constitution. The united States is sovereign only to
the extent that the States and the people empowered it. This means
that California and its police power are no more than the police
power of any of the California Citizens. California is not
sovereign over its Citizens, but is sovereign to Idaho, Nevada,
Washington, etc. and the united States as contracted in the
Constitutions and the same for the united States in relation to
Germany, Russia, China, etc. The Law in a free country is to keep
each Citizen from being involuntarily bothered.
In the next chapters we learn how the statutes and code are being
applied to us, and how we shall apply it to Government.
CHAPTER 2
MERGER OF LAW AND EQUITY
Steps Toward Merger
The movement for the procedural merger of law and equity had its
chronological beginning in the United States with the activities of
the "New York Commissioners on Practice and Pleading". Their report
of 1848 proposed that the distinction between law and equity be
abolished and this proposal was embodied in the Code of Procedure
adopted by the legislature of New York in that year and widely
copied in many other states within a relatively brief period.
[Within twenty-five years of its original enactment, the New York
Code of 1848 had been adapted in substance in twenty-four states and
territories.]
In 1905 California established lawmaking by administrative agencies.
This was done to circumvent "Public Law".
Here are some excerpts from "LAWMAKING BY ADMINISTRATIVE AGENCIES."
Justice Robert H. Jackson: "The rise of administrative bodies
probably has the most significant legal trend of the last century
and perhaps more values today are affected by their decisions than
by those of all the courts, review of administrative decisions
apart. They also have begun to have important consequences on
personal rights***They have become a veritable fourth branch of the
Government, which has deranged our three-branch legal theories as
much as the concept of a fourth dimension unsettles our three-
dimensional thinking."
This study guide does not present the total lawmaking picture.
ADMINISTRATIVE AGENCIES - the hundreds of boards and commissions
existing at all levels of government also "make law" by their
continual promulgation of rules and regulations.
The number of administrative agencies has grown so rapidly in the
last forty years that the practical impact of local, state, and
federal agencies on a the day-to-day activities of individuals and
businesses is today probably at least as great as that of
legislatures and courts. Every day, boards and commissions across
the country engage in such functions as assessing properties for tax
purposes, granting licenses and business permits, and regulating
rates charged in the transportation and utility industries - actions
that affect millions
of Americans.
At risk of oversimplification, we can say that two major factors are
responsible for the dramatic growth of the administrative agency in
recent years. First, until about 1880 the basic attitude of the
state and federal government towards business firms was that
of "hands-off" - a philosophy frequently characterized by
the "laissez-faire" label. The theory was that trade and commerce
could best thrive in an environment free of government regulation.
By the end of the nineteenth century, however, various monopolistic
practices had begun to surface; and, beginning in 1890 with the
passage of the Sherman Act, the idea grew that a certain amount of
government regulation of business was both necessary and desirable.
A second - and perhaps even more powerful - reason for the emergence
of the modern administrative agency is that as our nation grew and
became more industrialized, many complex problems sprang up that did
not easily lend themselves to traditional types of regulation. Some
were posed by technological advances such as the greatly increased
generation and distribution of electrical power and the rapid growth
of the airline industry. Others resulted from changes in social and
economic conditions, particularly the rise of the giant
manufacturers and the new methods by which they marketed their
products on a national basis. The solution of these problems
required expertise and enormous amounts of time for continuous
regulation, which the courts and the legislatures simply did not
possess. Faced with this situation, the legislative bodies sought
new ways to regulate business (and to implement nonbusiness
government programs, such as social security) that would be more
workable.
Let's examine ADMINISTRATIVE LAW for a definition.
Sometimes the term "administrative law" is defined as the rules and
regulations that are promulgated by administrative agencies. When
it is defined in this manner, it is being used to classify on the
basis of its source and should be distinguished from constitutional
law, statutory law, and common law. In this sense all regulations
are administrative law regardless of whether they deal with
environmental protection, anti-trust, or social security benefits.
One must understand that "Constitutional law" is restrictive on
government; "Statutory law" in contractual in nature; and "Common
law" does not compel performance.
Our governments have turned administrative matters into criminal
proceedings.
One should not become involved in administrative law if it is at all
possible to avoid it.
CHAPTER 3
Code of Civil Procedure, 1872.
PRELIMINARY PROVISIONS
Section 20. Judicial remedies defined
Judicial remedies are such as are administered by the Courts of
justice, or by judicial officers empowered for that purpose by the
Constitution and statutes of this State.
Section 21. Classes of judicial remedies
Division of judicial remedies. These remedies are divided into
two
classes:
1. Actions; and
2. Special proceedings.
Section 22. Action defined
An action is an ordinary proceeding in a
court of justice by which one party prosecutes another for the
declaration, enforcement, or protection of a right, the redress or
prevention of a wrong, or the punishment of a public offense.
Section 23. Special proceeding defined
Every other remedy is a special proceeding
Section 24. Kinds of actions
Division of action. Actions are of two kinds:
1. Civil; and
2. Criminal.
Section 25. Civil action: origin
Civil action arise out of obligations or injuries. A civil action
arises out of:
1. An obligation;
2. An injury.
Section 26. Obligation defined
An obligation is a legal duty, by which one person is bound to do
or
not to do a certain thing, and arises from:
1. Contract; or
2. Operation of law.
Section 27. Kinds of injuries (civil)
Divisions of injuries. An injury is of two kinds:
1. To the person; and,
2. To property.
Section 28. Injury to property defined
Injuries to property. An injury to property consists in depriving
its owner of the benefit of it, which is done by taking,
withholding,
deteriorating, or destroying it.
Section 29. Injury to person defined
Injuries to the person. Every other injury is an injury to the
person.
Section 30. Civil action defined
A civil action is prosecuted by one party against another for the
declaration, enforcement or protection of a right, or the redress or
prevention of a wrong.
Section 31. Criminal actions
Criminal actions. The Penal Code defines and provides for the
prosecution of a criminal action.
Section 32. Separation of civil and criminal remedies
Civil and criminal remedies are not merged. When the violation of
a
right admits of both a civil criminal remedy, the right to prosecute
the one is not merged in the other.
Let's now look to "VEHICLE TRAFFIC LAW" by Edward C. Fisher.
(Note: the words "traffic" and "vehicle", when used together, as
defined in Black's Law Dictionary are commercial). On page 72 we
read, "...Thus under the theory of privilege, together with the
development of an effective system of driver controls through driver
licensing channels, the states have established complete dominion
over
the use and operation of vehicles within their borders." It is upon
this theory that the validity of the various financial
responsibility
laws, the so-called implied consent laws, the operators' and
chauffeurs' license laws, laws relating to conduct of drivers
involved
in accidents, and those requiring accident reports, have been
founded. Also, the issue of constitutionality has been virtually
eliminated through application of the conditional privilege
concept. As the Supreme Court of Nebraska has said in Hadden v.
Aitken: "The operation of a motor vehicle on the public highways is
not a natural right, nor is license to do so a contract, or property
right, in a constitutional sense. It is merely a conditional
privilege which may be suspended or revoked under the police power,
even without a notice or an opportunity to be heard."
NOTE: This "conditional privilege" can only apply to commercial uses
of the public highways.
"The right of the citizen to travel upon the public highways
and
to transport his property thereon... is not a mere privilege
which a city may prohibit at will, but a common right which he
has under the right to life liberty and the pursuit of
happiness"
Thompson v. Smith, 154 SE 579
Let's check Black's Law Dictionary 4th edition, for the meanings of
these words and phrases.
CONSENT. A concurrence of wills. Voluntary yielding the will to
the proposition of another; acquiescence or compliance
therewith. ... Agreement; the act or result of coming into harmony
or accord.
...
Express Consent. That directly given, either viva voce or in
writing. It is positive, direct, unequivocal consent, requiring no
inference or implication to supply the meaning. ...
Express or Implied Consent. Under motor vehicle liability
insurance
law providing that policy should cover any person responsible for
operation of insured vehicle with insured's express or implied
consent, words "express or implied consent" primarily modify not the
word "operation", but the word "responsible", and imply possession
of vehicle with consent of owner and responsibility to him. ...
Implied Consent. That manifested by signs, action, or facts, or
by inaction or silence, which raise a presumption that the consent
has been given. ...
We also can read in Black's on page 1067:
LICENSE. ...
...
Constitutional Law and Law of Contracts
A permission, by a competent authority to do some act which
without such authorization would be illegal, or would be a trespass
or a tort... A permit or privilege to do what otherwise would be
unlawful... Also, written evidence of permission.
A permit, granted by the sovereign, generally for a consideration
..., to a person, firm, or corporation to pursue some occupation
under the police power....
A "license" is not a contract between the state and the licensee,
but is a mere personal permit. ... Neither is it property or a
property right. ...; nor does it create a vested right. ...
CHAPTER 4
CRIMES IN GENERAL, NATURE OF A CRIME.
Crime defined: A crime is a wrong done to the whole public, and so
flagrant in its nature that the state will take notice of it to
prosecute the offender in a proceeding in its own name and punish
him for his ACT...
Must be criminal act done: No mere secret intention, wholly
unexecuted, no matter how criminal, will constitute a crime. There
must me criminal act done...
Act may be mere criminal omission: From the statement that a crime
is wrong done, the reader must not suppose that a positive act is
essential to make a crime. The act may be either positive or
negative. A neglect of duty may be just as criminal as a positive
act. But to make a person liable criminally for neglect there must
be either a reckless doing of some positive act, perhaps innocent
enough in itself if carefully done, such as riding in an automobile
on a public street, or there must be a positive duty to act which is
criminally neglected...
EXAMPLE: Suppose you had hired a lifeguard to monitor your pool at a
party that you were having. Some one in the pool was having trouble
and the lifeguard saw what was happening but did nothing. That
would be an act of criminal negligence.
Must be duty neglected: But in order to convict of crime by neglect
there must be proof of an act negligently done, or of a positive
duty omitted. If every person, whether employed in that capacity or
not, were bound at his peril to guard against every danger to which
anyone might be exposed, to rush in and adjust every piece of
machinery which to him might look dangerous, though beyond his
understanding, the results would be worse than if every man were
bound to perform his own duty, and all others were excused. It may
be a matter of debate whether inaction in the face of manifest
danger to a stranger should not be made a crime; for example,
whether a passenger on a boat seeing another fall overboard and
making no attempt to rescue, should not be
punished criminally for his inaction...
Let's go now to the California Penal Code, Chapter 5D. These
sections will show us how to convert from equity (civil) to public
law (criminal).
FILING COMPLAINT AFTER CITATION
Section 853.9. [Notice constituting complaint]
(a) Whenever written notice to appear has been prepared,
delivered,
and filed by an officer or the prosecuting attorney with the court
pursuant to the provisions of Section 853.6 of this Code, an exact
and legible duplicate copy of the notice when filed with magistrate,
in lieu of a verified complaint, shall constitute a complaint to
which the defendant may plead "guilty" or "nolo contendere."
If, however, the defendant violates his or her promise to appear
in court, or does not deposit lawful bail, or pleads other
than "guilty" or "nolo contendere" to the offense charged, a
complaint shall be filed which shall conform to the provisions of
this code and which shall be deemed to be an original complaint; and
thereafter proceedings shall be had as provided by law, except that
a defendant may, by an agreement in writing, subscribed by him or
her and filed with the court, waive the filing of a verified
complaint and elect that the prosecution may proceed upon a written
notice to appear.
...
Section 740. [Inferior court offenses prosecuted by written
complaint]
Except as otherwise provided by law, all public offenses triable
in the inferior courts must be prosecuted by written complaint.
Such complaint may be verified on information and belief.
Notes of Decisions
Where defendant pleads other then guilty to traffic violations
charged and did not waive filing of complaint as provided in Vehicle
Code Section 739.1, a complaint or complaints must be filed in
accordance with Penal Code Section 988 before the court has any
jurisdiction in the matter.
EXAMPLE: When "verified" complaint charging theft of water was
presented to judge of justice court, judge was not required, before
filing complaint and issuing process thereon, to examine case, take
evidence and determine therefrom that there was reasonable and
probable cause to believe that the offense charged had been
committed and that defendant committed it...
Section 684. Parties to a criminal action.
A criminal action is prosecuted in the name of the state of
California, as a party, against the person charged with offense.
Section 683. Criminal action defined.
The proceeding by which a party charged with a public offense is
accused and brought to trial and punished, is known as a criminal
action.
Let's turn now to Section 17 of the Penal Code.
Section 17. ["Felony", "misdemeanor", and "infraction"
distinguished]
(a) A felony is a crime which is punishable with death or by
imprisonment in the state prison. Every other crime or public
offense is a misdemeanor except those offenses that are classified
as infractions.
...
Section 16. [Division of crimes and public offenses]
Crimes and public offenses include:
1. Felonies;
2. Misdemeanors; and
3. Infractions.
Section 15. "Crime" and "public offense" defined
A crime or public offense is an act committed or omitted in
violation of a law forbidding or commanding it, and to which is
annexed, upon conviction, either of the following punishments:
1. Death;
2. Imprisonment;
3. Fine;
4. Removal from office; or
5. Disqualification to hold and enjoy any office of honor, trust
or
profit in this state.
NOTE: In order for a law that was violated to be a "crime" it must
be
found in the "Penal" Code. The rules of the road from the Motor
Vehicle Code are not in the "Penal" Code. The rules of the road are
for determination of fault when there has been an accident. There
is
no such thing as an accident done on purpose. Also note
that "crime"
and "public offense" are separated.
Let's look at some of the elements of "crime".
Intent is the main element (mens ray) of a crime (Title 1 Section
26).
VIOLATION: Injury; infringement; breach of rights; duty of law (by
oath of office); ravishment; seduction.
INJURY: Any wrong or damage done to another, either in his person,
rights, reputation, or property. The invasion of any legally
protected interest of another.
INFRINGEMENT: A breaking into; a trespass or encroachment upon; a
violation of law, regulation, contract or right. Used especially of
invasions of the rights secured by patents, copyrights, and
trademarks.
BREACH: The breaking or violating of a law, right, or duty, either
by
commission or omission.
RIGHT: As a noun, and taken in an abstract sense, justice, ethical
correctness, or consonance with the rules of law or the principles
of morals.
DUTY: A human action which is exactly conformable to the laws which
require us to obey them.
LAW: That which is laid down, ordained, or established. A rule or
method according to which phenomena or actions co-exist or follow
each other. That which must be obeyed and followed by citizens,
subject to sanctions or legal consequences is a "law".
RAVISHMENT: In criminal law. An unlawful taking of a woman, or of
Rape...
SEDUCTION: The act of seducing. Act of man enticing woman to have
unlawful intercourse with him by means of persuasion, solicitation,
promise, bribes, or other means without employment of force.
CRIME: A positive or negative act in violation of penal law; an
offense against the state.
VALID: Having legal strength or force, executed with proper
formalities, incapable of being rightfully overthrown or set aside.
Of binding force; legally sufficient or efficacious; authorized by
law.
Continuation of Penal Code, Section 17:
Section 17(d)
...
1. The prosecutor files a complaint charging the offense as an
infraction unless the defendant, at the time he is arraigned, after
being informed of his rights, elects to have the case proceed as a
misdemeanor, or
2. The court, with the consent of the defendant, determines that
the offense is an infraction in which event the case shall proceed
as if the defendant had been arraigned on an infraction complaint.
Section 19.6 [Punishment for infractions]
An infraction is not punishable by imprisonment. A person charged
with an infraction shall not be entitled to a trial by jury. A
person charged with an infraction shall not be entitled to have the
public defender or other council appointed at public expense to
represent him unless he is arrested and not released on his written
promise to appear, his own recognizance, or a deposit of bail.
NOTE: This section is in violation of Art. VI of the Constitution,
which says that ALL crimes shall enjoy trial by jury.
Section 19.7 [Punishment for infractions]
Except as otherwise provided by law, all provisions of law
relating to misdemeanors shall apply to infractions, including but
not limited to powers of peace officers, jurisdiction of courts,
periods for commencing action and for bringing a case to trial and
burden of proof.
Section 19.8 [Offenses constituting infractions]
The following offenses are subject to the provisions of
subdivision
(d) of Section 17: Sections 193.8, 330, 415, 485, 555, and 853.7, of
this code; subdivision (m) of Section 602 of this code; subdivision
(b) of Section 25658 and Sections 21672, 25658.5, 25661, and 25662
of the Business and Professions Code; subdivision (c) of Section
23109 and Sections 12500, 14601.1, 27150.1, 40508, and 42005 of the
Vehicle Code, and any other offense which the Legislature makes
subject to the provisions of subdivision (d) of Section 17. Except
where a lesser maximum fine is expressly provided for violation of
any of those sections, any violation which is an infraction is
punishable by a fine not exceeding two hundred fifty dollars ($250).
Except for the violations enumerated in subdivision (d) of Section
13202.5 of the Vehicle Code, and Section 14601.1 of the Vehicle Code
based upon failure to appear, a conviction for any offense made an
infraction under subdivision (d) of Section 17 is not grounds for
the suspension, revocation, or denial of any license, or for the
revocation of probation or parole of the person convicted.
Section 20. To constitute a crime there must be unity of act and
intent.
In every crime or public offense there must exist a union, or
joint operation of act and intent, or criminal negligence.
We will now study P.C. Section 952. [Charging public offense;
Charging
theft]
In charging an offense, each count shall contain, and shall be
sufficient if it contains in substance, a statement that the accused
has committed some public offense therein specified. Such statement
may be made in ordinary and concise language without any technical
averments or any allegations of matter not essential to be proved.
It
may be in the words of the enactment describing the offense of
declaring the matter to be a public offense, or in any words
sufficient to give the accused notice of the offense of which he is
accused. In charging theft it shall be sufficient to allege that
the defendant unlawfully took the labor or property of another.
NOTE: Only "public officials" or other persons in collusion with
"public officials" can commit a "public offense".
Let's look at Section 1004 of the Penal Code.
Section 1004. Demurrer; grounds
The defendant may demur to the accusatory pleading at any time
prior to the entry of a plea, when it appears upon the face thereof
either:
1. If an indictment, that the grand jury by which it was found had
no legal authority to inquire into the offense charged, or, if an
information or complaint that the court has no jurisdiction of the
offense charged therein;
2. That it does not substantially conform to the provisions of
Sections 950 and 952, and also Section 951 in case of an indictment
or information;
3. That more than one offense is charged, except as provided in
Section 954;
4. That the facts stated do not constitute a public offense;
5. That it contains matter which, if true, would constitute a
legal justification or excuse of the offense charged, or other legal
bar to the prosecution.
Section 1005. Demurrer; form; filing; specification of grounds
The demurrer must be in writing, signed either by the defendant or
his counsel, and filed. It must distinctly specify the grounds of
objection to the accusatory pleading or it must be disregarded.
Section 1006. Demurrer; argument; continuance
Upon the demurrer being filed, the argument upon the objections
presented thereby must be heard immediately, unless for exceptional
cause shown, the court shall grant a continuance. Such continuance
shall be for no longer time than the end of justice require, and the
court shall enter in its minutes the facts requiring it.
Section 1007. Order on demurrer; plea upon overruling of demurrer;
amendment upon sustaining demurrer; resubmission of case; entry of
orders.
Upon considering the demurrer, the court must make an order either
overruling or sustaining it. If the demurrer is overruled, the
court must permit the defendant, at his election, to plead, which he
must do forthwith, unless the court extends the time. If the
demurrer is sustained, by the superior court, the court must, if the
defect can be remedied by amendment, permit the indictment or
information to be amended, either forthwith or within such time, not
exceeding 10 days, as it may fix, or, if the defect or insufficiency
therein cannot be remedied by amendment, the court may direct the
filing of a new information or the submission of the case to the
same or another grand jury. If the demurrer is sustained by an
inferior court, the court must, if the defect can be remedied,
permit the filing of an amended complaint within such time not
exceeding 10 days as it may fix. The orders made under this section
shall be entered in the docket or minutes of the court.
NOTE: It is only possible to demurrer to a complaint. If there is
no "verified" complaint then the only issue that can be raised is
that of jurisdiction, by "special appearance".
The proper procedure and chain of events, as per the "Penal Code" is
as follows;
1- the arrest or notice to appear,
2- appearance before a magistrate to establish probable cause,
3- arraignment where you plead to the "verified" complaint that came
from #2,
4- pretrial hearing,
5- trial,
6- appeal.
Let's go now to Section 1118 of the Penal Code.
Section 1118. [Judgment of acquittal: Non jury case]
In a case tried by the court without a jury, a jury having been
waived, the court on motion of the defendant or on its own motion
shall order the entry of judgment of acquittal of one or more of the
offenses charged in the accusatory pleading after the evidence of
the prosecution has been closed if the court, upon weighing the
evidence then before it, finds the defendant not guilty of such
offense or offenses. If such a motion for judgment of acquittal at
the close of the evidence offered by the prosecution is not granted,
the defendant may offer evidence without first having reserved that
right.
NOTE: NEVER EVER WAIVE TIME OR YOUR RIGHT TO A JURY TRIAL
Notes of Decisions
When there is no admissible evidence to connect a defendant with the
crime charged, the trial court is under legal compulsion to grant a
motion for acquittal, but there is no such compulsion when the
evidence presented by the People is sufficient to sustain a
conviction, in which case it is presumed that any permissible
inference pointing toward guilt was made by the court and that every
question of fact was resolved in favor of guilt. People v. Brown
(1969)
A GLOSSARY OF IMPORTANT LEGAL TERMS
Taken primarily from Black's Law Dictionary 5th
(Verify any definition you use in legal brief!)
AXIOM NATURAL RIGHTS DOCTRINE: The self-evident, universally
recognized truth that God given rights are eternal, perpetual,
inherent, and unalienable; cannot be transferred, taken, or given
away. "I was recruited by deception, and on discovery of fraud,
chose to rectify."
APPLICATION: A request or petition for something; A bringing
together, in order to establish some connection.
BENEFIT: Advantage; profit; fruit; privilege; gain; interest. The
receiving as the exchange for promise some performance or
forbearance which promiser was not previously entitled to receive.
BREACH: The breaking or violating of a law, right, or duty, either
by commission or omission.
CAPACITY: Legal qualification, competency, power or fitness. Mental
ability to understand the nature of and the effects of ones acts.
COMMON LAW: Rule of decision: California Civil Code Section 22.2:
The common law of England, so far as it is not repugnant to or
inconsistent with the Constitution of the United States, or the
Constitution of this State, is the rule of decision in all the
courts of this State.
COMPELLED PERFORMANCE: Performance is only required under contract,
other than the requirement of everyone to leave everyone else alone.
CONTRACT: To arrange or settle by agreement; enter upon with
reciprocal obligations.
CONSENT: A concurrence of wills. To give assent; agree or
acquiesce; to agree together; accord, a voluntary yielding to what
is proposed or desired by another.
CORPORATE: Belonging to a corporation.
CORPORATION: An artificial person or legal entity created by or
under the authority of the laws of a state.
CORPUS DELICTI: The damaged body; The object or material substance
of the commission of the crime; the act and the intention to do
harm.
COURT: An organ of the government, belonging to the judicial
department, whose function is the application of the laws to
controversies brought before it, and the public administration of
justice. [Government purposely confuses this function with the
other definition: the person and suit of the sovereign, since, in
our country, the people are the sovereigns.]
DURESS: A coercion to do or say something against one's will or
judgment; imprisonment without full legal sanction.
DUTY: A human action which is exactly conformable to the laws which
require us to obey them. [Under contract; you must perform. As a
freeman; leave everyone else alone.]
ENCROACHMENT: To intrude stealthily or gradually upon the
possessions or rights of another; a trespass.
EXPRESSED: Stated or declared in direct terms; set forth in words;
not left to inference or implication; not dubious or ambiguous.
FINE: A pecuniary punishment or penalty imposed by lawful tribunal
upon a person convicted of crime or misdemeanor.
FRAUD: Willful deceit; deception, trickery; an act or instance of
deception or trickery. "A license may be legal in nature yet not
lawfully required by the Constitutions."
IMPLIED: Understood, suggested or included without being
specifically expressed; an implied obligation.
INFRINGEMENT: A breaking into; a trespass or encroachment upon; a
violation of law, regulation, contract or right. Used especially of
invasions of the rights secured by patents, copyrights, and
trademarks.
INJURY: Any wrong or damage done to another, either in his person,
rights, reputation, or property. The invasion of any legally
protected interest of another.
JURISDICTION: Lawful power to exercise official authority, whether
executive, legislative, or judicial; the territory within or the
matter over which such authority may be lawfully exercised; (lawful
is under the Constitutions, legal is restricted to statute law
only.)
LAW: From the California Civil Code: Law is a solemn expression of
the will of the supreme power of the State. The will of the supreme
power is expressed: (a) By the Constitution. (b) By statutes.
[Notice how evasive the code is in admitting Who the supreme power
is; that the People are the rulers.]
LEGISLATIVE: Pertaining to the function of law-making or to the
process or enactment of laws.
LICENSE: A privilege to do an act on land without possessing any
estate or interest therein, revocable at the will of the licensor
and not assignable; permission to do an act that would otherwise be
illegal, a trespass, a tort, or otherwise not allowable.
MALICE: a willful design to do another injury.
MAGISTRATE: A Quasi judge; a public official with the limited power
to administer and enforce statutes. Matter in ley ne serra mise in
boutche del jurors: Matter of law shall not be put into the mouth of
the jurors. [The jury is the judge of the meaning of the Law as
well as the fact.]
MARTIAL LAW: Temporary jurisdiction or rule by military forces over
the people of an area where civil law and order no longer function
or exist.
OBLIGATION: A certain amount due or duty to be performed;
liabilities created by contract or law.
PASSENGER: In general, a person who gives compensation to another
for transportation; [a friend or relative who travels with you
without paying compensation is your guest.]
PERMIT: An official document or certificate authorizing performance
of a specified activity; a license.
PERSON: In general usage, a human being, though by statute may
include organizations, partnerships, associations, corporations,
legal representatives, trustees, or receivers, having legal rights
and duties.
PREJUDICE: To damage a Citizen's lawful rights or claims; a
judgement or opinion formed beforehand or without thoughtful
examination of the pertinent facts, issues, or arguments especially,
an unfavorable, irrational opinion.
PRIVATE: Affecting or belonging to private individuals, as distinct
from the public generally. Not official; not clothed with office.
PRIVILEGE: A benefit or advantage enjoyed by a person, company or
class, beyond the common advantages of other Citizens.
PUBLIC TRUST: A charitable trust: also, the public's confidence
reposed in their elected officials and expectation that these
elected officials will faithfully perform the duties of public
office.
PUBLIC TRUST DOCTRINE: a doctrine under which the state is said to
own lands lying under navigable waters and to hold such lands for
the benefit of the people of the state. According to this doctrine,
those submerged lands may not be sold or otherwise alienated by the
state except in a manner that promotes the public interest.
PUBLIC USE: The public's right to use or to benefit from the use of PROPERTY
condemned by the government, which under the U. S. and state constitutions is
prerequisite to the government's exercise of power of eminent domain. Some
jurisdictions define the term broadly to mean benefit or advantage, while
other jurisdictions define it to mean only actual use by the public. 147 S.E.
2nd 131. In its broader sense, "public use" could constitute anything that
contributes to the general welfare and prosperity of the whole community.
Most courts agree that exercising the power of eminent domain is permissible
only where a public use exists and not where a mere public interest is found.
130 S.E. 764.
PURVIEW: The body or scope or limit of a statute; how the body of the statute is framed and thus limited by its scope.
QUANTUM MERUIT: Lat: as much as he deserved. Historically, it was a common count in the action of assumpsit, allowing recovery "for services performed for another on the basis of a contract implied in law or an implied promise to pay the performer for what the services were reasonably worth." 121 N.W. 2d 744, 746. To recover under quantum meruit today, the plaintiff must have performed valuable services for or furnished materials to the person sought to be charged and that person must have accepted such services or goods under circumstances which gave notice that the plaintiff expected to be paid. See 459 S.W. 2d 691, 694. Quantum meruit establishes liability for a contract implied in law, which "arises not form the consent of the parties but from the law of natural justice and equity, and is based on the doctrine of unjust enrichment." For instance, when a physician renders emergency services to an unconscious accident victim, the consent of the injured party is implied in law, so that the physician may bring an action to recover the reasonable value of his services. 432 P. 2d 386, 390.
QUASI: Almost as it were; as if; analogous to. Negates the idea of identity; implies a want of reality.
RAVISHMENT: In criminal law, an unlawful taking of a woman, or of rape...
RIGHT: As a noun, and taken in an abstract sense: justice, ethical correctness, or consonance with the rules of law of the principles of morals.
SEDUCTION: The act of seducing. To entice another to have unlawful sexual intercourse by means of persuasion, solicitation, promise, bribes, or other means without force.
STATUTE OF QUIA EMPTORES: Lat: an act passed by Parliament in 1290 which abolished the restraint upon alienation or transfer of land that had been imposed under the feudal system. The process of subinfeudation [creation of new manors by the subject of a lord] was terminated, and after that date only the king was able to infeudate. The statute's practical effect on land transactions and ownership was that after the land was sold, the seller had no further connection with it. See Cheshire, The Modern Law of Real Property 15 (11th ed. 1972). Thus subinfeudation was replaced by strict alienation.
SUI JURIS: Of his own right; possessing full social and civil rights [unalienable rights] not under any legal disability, or the power of another, or guardianship.
TERRITORY: A region having a certain degree of self government but not having the status of a state.
TERRITORIAL: Limited to or within the jurisdiction of a particular territory or region.
TRAFFIC: Commerce; trade; sale or exchange or merchandise, bills, money and the like. The passing or exchange of goods or commodities from one person to another for an equivalent in goods or money. The subjects of transportation on a route, as persons or goods; the passing to and fro of vehicles or vessels along a route of transportation as along a street or highway, ...
TRANSPORTATION: The movement of goods or persons from one place to another by a carrier. Interstate Commerce Commission v. Brimson, 154 US 447, 14 S.Ct 1125, 38 L.Ed. 1047
VENUE: Where the cause of action arises. i.e. {Statute law==[Legislative branch==tribunal court==administering strict liability statutes]} vs {common law==Constitutional 3rd article court==separation of powers==regard for unalienable rights} VIOLATION: Injury; infringement; breach of rights; duty of law; ravishment; seduction.
"The Bill Of Rights -- Void Where Prohibited By Law"