Fw: The Law is......?
- ----- Original Message -----From: paradoxmagnus@...Sent: Tuesday, March 29, 2005 12:45 PMSubject: Re: The Law is......?Ed,It appears to me that you are operating under a number of gross misconceptions. Since I live in California, some of the below example are California specific.Properly enacted Statutes are Law. Codes are NOT law, they are merely prima facie evidence of law and where the code conflicts with the statute, the statute prevails.Prima facie. "At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary." Black's Law Dictionary 5th EditionOfficial source for the United States laws is Statute at Large and United States Code is only prima facie evidence of such laws. Royer's Inc. v. United States (1959, CA3 Pa) 265 F.2d 615, 59-1 USTC 9371, 3 AFTR 2d 1137.Statutes at Large are "legal evidence" of laws contained therein and are accepted as proof of those laws in any court of United States. Bear v. United States (1985, DC Neb) 611 F Supp 589, affd (1987, CA8 Neb) 810 F.2d 153.Even codification into positive law will not give code precedence where there is conflict between codification and Statutes at Large. Warner v. Goltra (1934) 293 US 155, 79 L Ed 254, 55 S Ct 46; Stephan v. United States (1943) 319 US 423, 87 L Ed 1490, 63 S Ct 1135; United States v. Welden (1964) 377 US 95, 12 L 2d 152, 84 S Ct 1082.Where there is conflict between codification and Statutes at Large, Statutes at Large must prevail. American Export Lines, Inc. v. United States (1961) 153 Ct Cl 201, 290 F. 2d 925; Abell v. United States (1975) 207 Ct Cl 207, 518 F.2d 1369, cert den (1976) 429 US 817, 50 L Ed 2d 76, 97 S Ct 59."This distinction between the Statutes at Large and the U.S.C. can be better understood in the context of positive and non-positive law. A non-positive law title of the Code (such as Title 29 -- Labor, for example) consists of Statutes at Large which have not been enacted directly to such title, but which have been codified to such title by the Law Revision Council. On the other hand, in a positive law title (such as Title 10 -- Armed Forces), Statutes at Large have been enacted directly to such title. Because of this distinction, it is not uncommon to find such words as 'title' or 'Act' appearing in the text of a Statutes at Large which have been codified to a non-positive law title of the Code. While we preserve such language in U.S.C.S., the compilers of the U.S.C. substitute words such as 'chapter' or 'subchapter.' This substitutionary policy has, on several occasions, resulted in conflict between the U.S.C. and the Statutes at Large. For example, in one case it was held that use of the word 'Act' in the Statutes at Large prevailed over substitution of the word 'chapter' by the compilers of the Code (see United States v. Vivian (1955, CA7 Ill.) 224 F.2d 53, cert den 350 US 953, 100 L.Ed. 830, 76 S.Ct. 340 (1956)).The People created government and the People are the sovereigns. The Creation is never equal to the Creator.All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people; and they have the right to alter or reform the same, whenever the public good may require it.California Constitution (1849) Article I, Sec. 2."[I]n common usage, the term `person' does not include the sovereign, [and] statutes employing the phrase are ordinarily construed to exclude it." United States 312 (1941); accord, United States . . 600, 604 . Mine Workers, 330 (1947). Particularly is this true where the statute imposes a burden or limitation, as distinguished from conferring a benefit or advantage. United States . . 258, 275 . Knight, 14 Pet. 301, 315 (1840). There is nevertheless "no hard and fast rule of exclusion," United States . Cooper Corp., supra, at 604-605; and much depends on the context, the subject matter, legislative history, and executive interpretation.. Cooper Corp.,Wilson v. Omaha Tribe, 442 U.S. 653, 667 (1979)There is public Law (the common law and Constitutionally enacted statutes/regulations) and their is private (administrative-commercial)
"law".Upon the construction of the constitution and laws of a state, this court,
as a general rule, follows the decisions of her highest court, unless they
conflict with or impair the efficacy of some principle of the federal
constitution, or of a federal statute, or a rule of commercial or general
law. In these cases no principle of the federal constitution, or of any
federal law, is invaded, and no rule of general or commercial law is
disregarded. The determination made relates to the existence [118 U.S. 425,
440] of an inferior tribunal of the state, and that depending upon the
constitutional power of the legislature of the state to create it and
supersede a pre-existing institution. Upon a subject of this nature the
federal courts will recognize as authoritative the decision of the state
An unconstitutional act is not a law; it confers no rights; it imposes no
duties; it affords no protection; it creates no office; it is, in legal
contemplation, as inoperative as though it had never been passed.
NORTON v. SHELBY COUNTY, 118 U.S. 425 (1886)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=118&invol=425The Constitution is a limitation on government. It is meant to protect the People. The legislature cannot delegate authority it does not possess. Congress is only empowered by the Constitution to REGULATE things in COMMERCE."As the Supreme Court recently reaffirmed in United States v. Lopez, 115 S.
Ct. 1624 (1995), the Commerce Clause, U.S. Const., Art. I, § 8, cl. 3,
empowers Congress to: (1) regulate the use of the channels of interstate
commerce; (2) "regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce;" and (3) regulate or
prohibit "activities that substantially affect interstate commerce." 115 S.
Ct. at 1629-30. "Where economic activity substantially affects interstate
commerce, legislation regulating that activity will be sustained." Id. at
1630 (citations omitted). Taken from the UNITED STATES' MEMORANDUM OF LAW IN
SUPPORT OF THE CONSTITUTIONALITY OF THE AMERICANS WITH DISABILITIES ACT in
Lancaster V. City of Mobile, Alamabaunius est exclusio alterius, which means the inclusion of one is the exclusion of another. This doctrine decrees that where law expressly decribes particular situations to which it shall apply, an irrefutable inferance MUST be drawn that what is omitted or excluded was INTENDED to be omitted or excluded."The maxim inclusio unius est exclusio alterius ... informs the court to exclude from operation those items not included in a list of elements that are given effect expressly by the statutory language." Williams v. Wohlgemuth, 540 F.2d 163, 169 (3d Cir., 1976)A man or woman is NOT necessarily a PERSON. Pay close attention to definition number 3 from Bouvier's.PERSON. This word is applied to men, women and children, who are called
natural persons. In law, man and person are not exactly synonymous terms.
Any human being is a man, whether he be a member of society or not, whatever
may be the rank he holds, or whatever may be his age, sex, &c. A person is a
man considered according to the rank he holds in society, with all the
rights to which the place he holds entitles him, and the duties which it
imposes. 1 Bouv. Inst. n. 137.
2. It is also used to denote a corporation which is an artificial
person. 1 Bl. Com. 123; 4 Bing. 669; C. 33 Eng. C. L R. 488; Woodes. Lect.
116; Bac. Us. 57; 1 Mod. 164.
3. But when the word "Persons" is spoken of in legislative acts,
natural persons will be intended, unless something appear in the context to
show that it applies to artificial persons. 1 Scam. R. 178.
4. Natural persons are divided into males, or men; and females or
women. Men are capable of all kinds of engagements and functions, unless by
reasons applying to particular individuals. Women cannot be appointed to any
public office, nor perform any civil functions, except those which the law
specially declares them capable of exercising. Civ. Code of Louis. art. 25.
5. They are also sometimes divided into free persons and slaves.
Freemen are those who have preserved their natural liberty, that is to say,
who have the right of doing what is not forbidden by the law. A slave is one
who is in the power of a master to whom he belongs. Slaves are sometimes
ranked not with persons but things. But sometimes they are considered as
persons for example, a negro is in contemplation of law a person, so as to
be capable of committing a riot in conjunction with white men. 1 Bay, 358.
6. Persons are also divided into citizens, (q.v.) and aliens, (q.v.)
when viewed with regard to their political rights. When they are considered
in relation to their civil rights, they are living or civilly dead; vide
Civil Death; outlaws; and infamous persons.
7. Persons are divided into legitimates and bastards, when examined as
to their rights by birth.
8. When viewed in their domestic relations, they are divided into
parents and children; husbands and wives; guardians and wards; and masters
and servants son, as it is understood in law, see 1 Toull. n. 168; 1 Bouv.
Inst. n. 1890, note.The UNITED STATES is a Federal corporation. 28 U.S.C. 3002 (15) AState governments (the STATE OF MICHIGAN, the STATE OF...) are government
corporations created under the Buck Act.ED HEIMLICH is presumed to be a juristic PERSON.The People have been purposely deceived into thinking that certain"laws" apply to them:CA GOV CODE 12.5. The Legislature hereby declares its intent that the terms
"man" or "men" where appropriate shall be deemed "person" or "persons"
and any references to the terms "man" or "men" in sections of this
code be changed to "person" or "persons" when such code sections are
being amended for any purpose. This act is declaratory and not
amendatory of existing law.(c) Application of Terms. As used in these rules the following terms have the designated meanings. Act of Congress includes any act of Congress locally applicable to and in force in the District of Columbia, in Puerto Rico, in a territory or in an insular possession.The constitutionally protected right to travel is different from the legislatively granted privilege to operate a motor vehicle. The Motor Vehicle Code is commercial in nature and applys to those involved in commerce. The People need a driver's license when they use the public road for business or gain. This was clearly stated in the California statutes (and probably the statutes and of every other state) pgs 833-839 (1925), pgs. 1918-1931 (1937), pgs 590-605 (1941) and pgs. 116-117, 1514-1515 (1956-1957))"Operator does not include any of the following: (a) Any person transporting his own property in a motor vehicle owned or operated by him unless he makes a specific charge for the transportation" (Statutes of California 1941, Chapter 39, Section 9603 (b)) pg. 590)CA VEHICLE CODE 4. No action or proceeding commenced before this code takes effect,
and no right accrued, is affected by the provisions of this code,
but all procedure thereafter taken therein shall conform to the
provisions of this code so far as possible.CA VEHICLE CODE 12500. (a) A person may not drive a motor vehicle upon a highway, unless the person then holds a valid driver's license issued under this code, except those persons who are expressly exempted under this code.Under the common law there can be no crime unless there is an injured party.CA CIVIL CODE 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 or laws of this State, is the rule of decision in all
the courts of this State.There is a huge difference between a administrative tribunal created by the Legislature's power "to establish such municipal and other inferior courts as may be deemed necessary." (California Constitution (1849), Article VI, Sec. 1, also Article I, federal Constitution). and a court vested with the judicial power of the state.Most people do not know the difference and are screwed because "courts" in administrative issues are prohibited from listening to or hearing
arguments, presentation or rationale.Pat in California________________________________________________________________________
Date: Tue, 29 Mar 2005 07:24:54 -0800 (PST)
From: Ed Heimlich <ED44@...>
Subject: The Law is......?
A lot of people have a lot of ideas about what 'Law' is. Disscussions can go on endlendless without ever properly defining the word "Law".
Here's something for consideration:
The Law is a "Mandate". It says what one 'shall' or 'must' do. It is an 'obigation'.
The Law is a "Prohibition". It says what one may not, or "shall not", do.
The Law is a "Power". It says what one 'may' do. It grants "discretion". More importantly it PROTECTS "discretion". In other words "freedom" to do, or not do, without penalty, IOW "sanction", without fear of pecuniary costs (fine) or other form of punishment. It both Protects the Power (freedom) of the Individual, and may also grant Power (freedom) to an Individual.
In the case of Human Persons the Power it Protects must be protected to each equally. In the case of a 'grant' of additional power to a Artificial Person, it imposes addtional Duties, Obligations, and Responsibilities, in exchange for whatever additional power, discretion, granted. An "Artificial Person" is one created by Law. In other words a "Fiction of Law". It is a Human Person holding a position of Public Trust, in either a Public Entity or a Private Entity. The Human Person, acting in an Artificial Capacity, is responsible but so too is the "Entity", is for the acts, or failure to act, by the Artificial Person.
A Constitution is a "Law". It is "supreme". It tells ALL the people on this Land what they may do, and what they may not do. It is a "Social Compact" that ALL agree to as soon as they step on to "the Land" governed by a Constitution. In doing so it Secures the Rights of the Individual Human Being (a "person") on ALL that Land, whether the Land is "owned" by the Public and by a Private Individual Human Being.
The Constitution begins with Mandates and Prohibitions it imposed on the "agents" of "We the People". Those employed in Service to the People. AKA "Public Servants". But it does not stop there. It also imposes Mandates and Prohibitions on "We the people", each and all, until such time that it is Amended via lawful process providing for it's change by "consent of the governed". "We the People" have "consented" to this Constitution. If not, we are then Traitors to the Constitution, and all the people who have consented to it.
The governed are governed by the Constitution ,and governed by what power it delegates to those it empowers to make "Public Law".
The Constitutions, State and Federal, empower, grant discretion, to the Legislative Division of Government, to regulate the use of the Public Lands. That means they may regulate the "flow" of traffic, by foot or by mechanical means, to ehance and protect the Right, the Freedom, of each Individual to Travel without unnecessary impediment (obstruction).
That means they may require a license for those that "drive" on public (the people's) lands. They may impose pecuniary fines on that that "drive" on public Lands, whether Licensed to do so, or not licensed. They may impose additional pecuniary fines (sanctions) on those that violate the Mandate that they be licensed if they drive.
ALL "courts" administer the Law. It is their function. It is their purpose for being. It is the reason We the People created Courts.
Darlene and the Inhab must decide. Are they traitors to the Constitution, and the powers it delegates? Or are they going to Honor the Constitution, and those to whom it delegates power to regulate traffic, travel, equally, so that the Right to Travel will be protected to ALL, equally?
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