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8/6/2019 LETTER -- Massachusetts Lawyers Thru GATA
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February 21, 2011
5892 Shoreland Trail
Orlando, Florida 32807
Gold Anti-Trust Action Committee, Inc.c/o Chris Powell, Secretary/Treasurer
7 Villa Louisa Road
Manchester, CT 06043-7541
Re: I need to get the enclosed material, including this and three other cover
letters, to Reginald H. Howe indirectly, and believe I can trust GATA for that
purpose; never would I e-mail him even a hint of this at the start.
Dear Chris Powell:
This is a cover letter to explain why you should be interested in the enclosed
LETTER TO CLERK OF COURT and AFFIDAVIT OF DEFENSE. These related
documents are meant to serve two objectives—let me explain.
Litigation aimed at compelling a return to a constitutional monetary system
must begin with recognition of two facts as matters of law:
(1) The Congressional mandate of 4 U.S.C.A., § 72, which
provides that, “[a]ll offices attached to the seat of government
shall be exercised in the District of Columbia, and not elsewhere,except as otherwise expressly provided by law,” means that a
federal Judicial Power decision pursuant to Article III of the
Constitution for the United States of America can only be had in
D.C.—in nature, it’s a governmental action— and elsewhere is
obtained an administrative decision; it doesn’t matter that Article
III judges sit in the U.S. District Court for the Middle District of
Florida, for example, when they’re sitting in an Article I court—
they are functioning as officers of the court; and, this leads into
the two ways to view a complaint;
(2) As a Fourteenth Amendment or federal citizen—by
presumption of law (disregarding the verification under penalty
of perjury)—you come as a complaintant in the nature of 28
U.S.C.A., § 1746(2), which provides that, “[i]f executed
within the United States, its territories, possessions, or
commonwealths: ‘I declare (or certify, verify, or state) under
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correct…,’ ” and as a state citizen in contradistinction to a
federal citizen, no attachment to government can be presumed.
There isn’t much case law to explain 28 U.S.C.A., § 1746, and what does
exist is misleading. The laws of the United States of America is the common
law found in the several united States, and the laws of the United States is
the 50 titles of statutory law together with any Federal Code of Regulations
that implement them.
In regard to (2), above, the complaintant must come as a state citizen
pursuant to Article IV, § 2, cl. 1 in contradistinction to a presumed federal
citizen pursuant to the Fourteenth Amendment, § 1. Case law says both
citizenships exist. But, case law also indicates that state citizenship must be
claimed as it is regarded as a choice of law decision. This doesn’t change
the fact that federal citizenship is fraudulent and deceitful; it’s a second classcitizenship in more ways than one. I’m working on the proof of fraud and
deceit so none of that is in the enclosed documents, but I’ve tried to show
how it violates my right to Due Process of Law. Several of the original state
constitutions provided that government officers—constitutional or ministerial
in nature—are the Peoples’ trustees and accountable as such in their
Declaration of Rights; three states attempted to get that language inserted
in the federal constitution:
BEGIN LEGAL CITATION
Footnote 9 is indicative of the law review article’s source for the following
contention:
“E. Popular Sovereignty and the Tenth Amendment
“At the time that [Thomas Tudor] Tucker spoke, the House was considering
adding a statement of popular sovereignty to the Preamble to the
Constitution.130 Tucker objected to this placement on the ground that the
Preamble was not actually part of the Constitution and therefore not binding
upon the government.131
Instead, Tucker wished to make the declaration apart of the official (and binding) Bill of Rights.132 Tucker’s request echoed
similar requests by a number of state conventions that had asked for the
addition of an express statement of popular sovereignty. Virginia,133 North
Carolina,134 and Rhode Island135 had each proposed adding a declaration to
the effect that ‘all power is naturally invested in, and consequently derived
from, the people; the magistrates therefore are their trustees and agents,
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and at all times amenable to them.’ ” Kurt T. Lash, “THE ORIGINAL
MEANING OF AN OMISSION: THE TENTH AMENDMENT, POPULAR
SOVEREIGNTY, AND ‘EXPRESSLY DELEGATED POWER,’ ” 83 Notre
Dame L. Rev. 1889, 1922-1923 (2008)
9 “2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE
ADOPTION OF THE FEDERAL CONSTITUTION 362 (Jonathan Elliot ed., Phila.,
J.B. Lippincott Co. 2d ed. 1891) [hereinafter ELLIOT’S DEBATES]. . . .”
.
.
.
116 “See James Madison, Speech in Congress Proposing Constitutional
Amendments (June 8, 1789), in JAMES MADISON: WRITINGS 437,444 (Jack N. Rakove ed., 1999).”
.
.
.
130 “See Madison, supra note 116, at 441.”
131 “See Congressional Proceedings, DAILY ADVERTISER (New York, N.Y.),
Aug. 15, 1789, at 2, reprinted in CREATING THE BILL OF RIGHTS,
supra note 88, at 128, 128.” 132 “See id.”
133 “See 3 ELLIOT’S DEBATES, supra note 9, at 657.”
134 “See 4 id. at 243.”
135 “See 1 id. at 334.”
“We, the delegates of the people of the state of Rhode Island and ProvidencePlantations, duly elected and met in Convention, having maturely considered
the Constitution for the United States of America, agreed to on the
seventeenth day of September, in the year one thousand seven hundred and
eighty-seven, by the Convention then assembled at Philadelphia, in the
commonwealth of Pennsylvania, (a copy whereof precedes these presents,)
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and having also seriously and deliberately considered the present situation
of this state, do declare and make known, —
“I. That there are certain natural rights of which men, when they form
a social compact, cannot deprive or divest their posterity, — among which
are the enjoyment of life and liberty, with the means of acquiring,
possessing, and protecting property, and pursuing and obtaining happiness
and safety.
“II. That all power is naturally vested in, and consequently derived
from, the people; that magistrates, therefore, are their trustees and agents,
and at all times amenable to them.
“III. That the powers of government may be reassumed by the people
whensoever it shall become necessary to their happiness. That the rights of
the states respectively to nominate and appoint all state officers, and every
other power, jurisdiction, and right, which is not by the said Constitution
clearly delegated to the Congress of the United States, or to the
departments of government thereof, remain to the people of the several
states, or their respective state governments, to whom they may have
granted the same; and that those clauses in the Constitution which declare
that Congress shall not have or exercise certain powers, do not imply that
Congress is entitled to any powers not given by the said Constitution; but
such clauses are to be construed as exceptions to certain specified powers,
or as inserted merely for greater caution. . . . [335]
“And the Convention do, in the name and behalf of the people of the state of
Rhode Island and Providence Plantations, enjoin it upon their senators and
representative or representatives, which may be elected to represent this
state in Congress, to exert all their influence, and use all reasonable means,
to obtain a ratification of the following amendments to the said Constitution,
in the manner prescribed therein; and in all laws to be passed by the
Congress in the mean time, to conform to the spirit of the said amendments,
as far as the Constitution will admit.” Jonathan Elliot, THE DEBATES INTHE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE
FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL
CONVENTION AT PHILADELPHIA, IN 1787, in Five Volumes, Volume
I (Second Edition), William S. Hein & Co., Inc.: Buffalo, New York,
1996, pp. 334-335.
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“Mr. WYTHE reported, from the committee appointed, such amendments to
the proposed Constitution of government for the United States as were by
them deemed necessary to be recommended to the consideration of the
Congress which shall first assemble under the said Constitution, to be acted
upon according to the mode prescribed in the 5th article thereof; and heread the same in his place, and afterwards delivered them in at the clerk’s
table, where the same were again read, and are as follows: —
“ ‘That there be a declaration or bill of rights asserting, and securing from
encroachment, the essential and unalienable rights of the people, in some
such manner as the following: —
“ ‘1st. That there are certain natural rights, of which men, when they form a
social compact, cannot deprive or divest their posterity; among which are
the enjoyment of life and liberty, with the means of acquiring, possessing,and protecting property, and pursuing and obtaining happiness and safety.
“ ‘2d. That all power is naturally invested in, and consequently derived
from, the people; that magistrates therefore are their trustees and agents,
at all times amenable to them. . . .” Ibid., Volume III, p. 657.
“[A]nd the resolution of the committee of the whole house was then read,
and ordered to be entered on the Journal. The resolution was accordingly
read and entered, as follows, viz.: —
“ ‘Resolved, That a declaration of rights, asserting and securing from
encroachment the great principles of civil and religious liberty, and the
unalienable rights of the people, together with amendments to the most
ambiguous and exceptionable parts of the said Constitution of government,
ought to be laid before Congress, and the convention of the states that shall
or may be called for the purpose of amending the said Constitution, for their
consideration, previous to the ratification of the Constitution aforesaid on the
part of the state of North Carolina.
“ [243] ‘DECLARATION OF RIGHTS.
“ ‘1. That there are certain natural rights, of which men, when they form a
social compact, cannot deprive or divest their posterity, among which are
the enjoyment of life and liberty, with the means of acquiring, possessing,
and protecting property, and pursuing and obtaining happiness and safety.
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“ ‘2. That all power is naturally vested in, and consequently derived from,
the people; that magistrates, therefore, are their trustees and agents, and
at all times amenable to them.’ ” Ibid., Volume IV, p. 242-243.
END OF LEGAL CITATION
It’s hornbook law that a contract incorporates as reference existing law at
the time of its inception, and the original state constitutions as well as the
federal constitution are regarded as contracts; they are special contracts as
compacts.
BEGIN LEGAL CITATION
The federal and each of the original thirteen state constitutions were social
compacts as they were adopted; and, social compacts are third party
beneficiary contracts; the beneficiaries of these social compacts were state
citizens pursuant to Article IV, § 2 of the Constitution for the United States
of America. ABDI HOSH ASHKIR v. UNITED STATES, 46 Fed.Cl. 438,
441 (2000) ( “The holding in REID v. COVERT, 354 U.S. 1 (1957) was
based, in part, on viewing the Constitution as a social compact, embodying
the consent of the governed to be governed and viewing those governed as
the beneficiaries of that compact. 4 Id . at 5-7, 77 S.Ct. 1222. Under this ‘contractarian’ view, the benefits of the compact flow to citizens wherever
they are located. See UNITED STATES v. CURTISS-WRIGHT EXPORT CORP.,
299 U.S. 304, 318, 57 S.Ct. 216, 81 L.Ed. 255 (1936) (‘[n]either the
Constitution nor the laws passed in pursuance of it have any force in foreign
territory unless in respect of our own citizens’).5 Moreover, as illustrated by
cases such as MATTHEWS v. DIAZ, 426 U.S. 67, 77, 96 S.Ct. 1883, 48
L.Ed.2d 478 (1976) and KWONG HAI CHEW v. COLDING, 344 U.S. 590, 596-
97, 73 S.Ct. 472, 97 L.Ed. 576 (1953), the benefits of the compact also
redound to aliens residing within the territory of the United States, who aredeemed to owe temporary allegiance to the United States and thereby are
entitled to the reciprocal protections of the Constitution. See UNITED
STATES v. BARONA, 56 F.3d 1087, 1093-94 (9th Cir. 1995), cert. denied ,
516 U.S. 1092, 116 S.Ct. 813, 814, 133 L.Ed.2d 759 (1996).6 ” )
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(n. 4: “As Chief Justice Jay explained in 1793, ‘[e]very state constitution is
a compact made by and between the citizens of a state to govern
themselves in a certain manner; and the constitution of the United States is
likewise a compact made by the people of the United States to govern
themselves as to general objects in a certain manner.’ CHISHOLM v.GEORGIA, 2 U.S. (2 Dall.) 419, 471, 1 L.Ed. 440 (1793) (JAY, C.J., seriatim
opinion). See generally , Anita L. Allen, ‘Social Contract Theory in American
Case Law ,’ 51 Fla. L. Rev. 1 (1999).” )
(n. 5: “See also WONG WING v. UNITED STATES, 163 U.S. 228, 238, 16
S.Ct. 977, 41 L.Ed. 140 (1896); TRANSPORTES AEROS MERCANTILES
PANAMERICANOS, S.A. v. BOYATT, 562 F. Supp. 707, 709 (S.D.Fla. 1983).” )
(n. 6: “Highlighting the importance of residency as a substantial
connection, the Supreme Court has long drawn a distinction between theconstitutional footing of aliens who are beyond the territorial limits of the
United States and those residing either permanently or temporarily within
our borders. For instance, while the Supreme Court has held that the Fifth
Amendment protections, including that of due process, apply to a resident
alien, KWONG HAI CHEW, 344 U.S. at 596, 73 S.Ct. 472, it has denied the
same rights to an alien who has not entered the country’s borders,
NISHIMURA EKIU v. UNITED STATES, 142 U.S. 651, 660, 12 S.Ct. 336, 35
L.Ed. 1146 (1892). See UNITED STATES v. VERDUGO-URQUIDEZ, 856 F.2d
1214, 1234-35 (9th Cir. 1988) (Wallace, J., dissenting), rev’d , 494 U.S. 259,
110 S.Ct. 1056, 108 L.Ed.2d 222 (1990). Summarizing cases like these, the
Supreme Court, in JOHNSON v. EISENTRAGER, 339 U.S. 763, 771, 70 S.Ct.
936, 94 L.Ed. 1255 (1950), commented that ‘in extending constitutional
protections beyond citizenry, the Court has been at pains to point out that it
was the alien’s presence within its territorial jurisdiction that gave the
Judiciary the power to act.’ See also PLYLER v. DOE, 457 U.S. 202, 212,
102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); KWONG HAI CHEW, 344 U.S. at
596-97 n.5, 73 S.Ct. 472; CARLISLE v. UNITED STATES, 83 U.S. (16 Wall.)
147, 154-55, 21 L.Ed. 426 (1872). Similar sentiments date back at least to
1798, as a constant theme in the vigorous debates between the
Jeffersonians and the Federalists over the Alien Act of 1798. See 8 Annals of
Cong. 2012, 2019 (1798). See also Stephen J. DiGianfilippo, “The Reach of
the Constitution Beyond the Territory and ‘People’ of the United States,” 16
Suffolk Transnat’l L. Rev. 117, 123-32 (1992).” ).
END LEGAL CITATION
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This brings us to two more essential facts of law to recognize:
(3) Federal citizenship is the property of the federal government
since it’s a creature thereof; state citizenship is derived fromEnglish subjectship and was regarded by the original states as
trust property; with government officials regarded as trustees,
there had to be trust property to administer, and legal interest
lies in the state while beneficial interest lies in the individual that
qualifies and claims state citizenship; and, all fundamental rights
to be managed as trust property require state citizenship.
WADSWORTH v. STATE of MONTANA, 275 Mont. 287, 911
P.2d 1165, 1171-1172 (Mont., 1996) ( “[W]e have held a
right may be ‘fundamental’ under Montana’s constitution if theright is either found in the Declaration of Rights or is a right
‘without which other constitutionally guaranteed rights would
have little meaning.’ BUTTE COMMUNITY UNION v. LEWIS
(1986), 219 Mont. 426, 430, 712 P.2d 1309, 1311-13. . . .
(Emphasis mine)
“See GLOBE NEWSPAPER CO. v. SUPERIOR COURT for
NORFOLK COUNTY (1982), 457 U.S. 596, 604, 102 S.Ct. 2613,
2618-19, 73 L.Ed.2d 248, 255 (First Amendment encompasses
those rights that, while not specifically enumerated in the very
terms of the Amendment, are nonetheless necessary to
enjoyment of other First Amendment rights.).” ); thus, state
citizenship is itself a fundamental right with beneficial interest
therein unavailable. UNITED STATES v. UNITED MINE
WORKERS of AMERICA, 330 U.S. 258, 376, 67 S.Ct. 677,
91 L.Ed. 884 (1947) (Mr. Justice RUTLEDGE, dissenting.)
( “When the assertion and securing of all other rights depends
upon one, that one is the core of all. Here the right ‘to know
that it was a charge, and not a suit’ comprehended all otherprocedural rights in the trial and appellate courts. Without this,
none could be asserted or maintained. The denial of that right,
deferring it until the decision here is handed down, is in my
opinion not only a denial of all. It is a violation both of the
Constitution and of Rule 42(b).” ); natural born American citizens
are unaware of their vested right to claim state citizenship.
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(4) A federal citizen owes allegiance to government in his/her
personal and political capacities, but a state citizen owes
allegiance only in his/her personal capacity.
What kind of compact was a constitution of one of the original 13 states?
Every state of the several united States of America was brought into the
Union on the same footing as those of the original thirteen, ILLINOIS
CENTRAL RAILROAD v. ILLINOIS, 146 U.S. 387, 434, 13 S.Ct. 110, 36
L.Ed. 1018 (1892) ( “The State of Illinois was admitted into the union in
1818 on an equal footing with the original states in all respects. Such was
one of the conditions of the cession from Virginia of the territory northwest
of the Ohio River, out of which the state was formed. But the equality
prescribed would have existed if it had not been thus stipulated. There canbe no distinction between the several states of the union in the character of
the jurisdiction, sovereignty, and dominion which they may possess and
exercise over persons and subjects within their respective limits.” ); BAKER
v. CARR, 369 U.S. 186, 226 n. 53, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)
( “On the other hand, the implication of the Guaranty Clause in a case
concerning congressional action does not always preclude judicial action. It
has been held that the clause gives Congress no power to impose
restrictions upon a State’s admission which would undercut the
constitutional mandate that the States be on an equal footing. COYLE v.
SMITH, 221 U.S. 559, 31 S.Ct. 688, 55 L.Ed. 853 [(1911)]. And in TEXAS
v. WHITE, 7 Wall. 700, 19 L.Ed. 227, although Congress had determined
that the State’s government was not republican in form, the State’s standing
to bring an original action in this Court was sustained.” ), and so it would
seem that a description of the Massachusetts compact would do for any and
all: MUNN v. ILLINOIS, 94 U.S. 113, 124, 24 L.Ed. 77 (1876)
( “[T]hrough their State constitutions, or other forms of social compact, [the
original states] undertook to give practical effect to such as they deemed
necessary for the common good and the security of life and property. . . .
“ ‘A body politic,’ as aptly defined in the preamble of the Constitution of
Massachusetts, ‘is a social compact by which the whole people
covenants with each citizen, and each citizen with the whole people,
that all shall be governed by certain laws for the common good.’
(Emphasis mine)” ). This mutual promise sets up the state’s Sovereignty in
the citizenry in their collective capacity in their common law jurisdiction with
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their elected and appointed government officials exercising sovereignty in
their representative capacity from within their political jurisdiction governed
by their statutory jurisdiction and the common law as trustees of the people.
William Franklin Fratcher, ed., SCOTT ON TRUSTS, 4th Edition, Little,
Brown and Company, 1987, Volume I, § 17: METHODS OF CREATINGA TRUST: § 17.3: Promise in trust ( “A trust can be created not only
where the owner of property declares himself trustee of it or where he
transfers it to another in trust, but also where a promisee is made by one
person to another as trustee. In such a case the promise holds in trust his
rights as promise. . . . Where the promise is binding, however, because
consideration is given for the promise . . . the promisee becomes trustee of
his right to enforce the promise if the parties so intended. (Citations
omitted)” ); and, the promise of allegiance in the citizen’s personal capacity
is consideration for the promise of protection from the citizenry in their
collective capacity, and vice versa. A prospective state citizen must offer to
pledge his/her allegiance in covenant to demand that the State, in its
representative capacity, pledge the protection of the state citizens
collectively in covenant, in return. Catherine M. A. McCauliff, CORBIN
ON CONTRACTS, Volume 8: Conditions, § 30.12: Promise and
Condition Distinguished, p. 26 ( “The word ‘covenant’ has come to be
not much more than a synonym of ‘promise,’ although once its only proper
meaning may have been a formal promise under seal. Whether a covenant
is a formal promise, or an informal promise, or both, it is not itself a
‘condition’ of the duty of the covenantee to keep his return promise or
‘covenant.’ But the performance of a covenant, or other promise, may be
such a condition, either express or constructive.” ); Ibid., p. 27, n. 48
omitted ( “The first step, therefore, in interpreting an expression in a
contract, with respect to condition as opposed to promise, is to ask oneself
the question:
Was this expression intended to be an assurance by one party to the
other that some performance by the first would be rendered in the
future and that the other could rely upon it?
If the answer is yes, we have found the expression to be a promise that the
specified performance will take place. The alternative question to be asked
is:
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in the Constitution of the United States against the passage of *266* laws
impairing the obligation of contracts applies to the Constitution, as well as
the laws, of each State.’ NEW ORLEANS GAS-LIGHT CO. v. LOUISIANA
LIGHT CO., 115 U.S. 650, headnote 4, 6 S.Ct. 252, 29 L.Ed. 516. See also
12 C.J. 988. See FORCHEIMER v. HOLLY, 14 Fla. 239; CANOVA v. STATE ex rel. BRADFORD COUNTY COM’RS, 18 Fla. 512.” ); and the covenant set up
by the compact clause of the FLORIDA CONSTITUTION of 1838,
Declaration of Rights, § 1, where the state citizen pledges his/her
allegiance in their individual capacity as consideration for the citizens’
protection pledged in their collective capacity and vice versa which involves
the mutual promise of a covenant, is impaired within the meaning of
UNITED STATES TRUST COMPANY of NEW YORK v. NEW JERSEY, 431
U.S. 1, 15, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977), rehearing denied,
431 U.S. 975, 97 S.Ct. 2942 (1977) (“HOME BUILDING & LOAN ASSN. v.
BLAISDELL, 290 U.S. 398 (1934), is regarded as the leading case in the
modern era of Contract Clause interpretation.” ), and HOME BLDG. &
LOAN ASS'N v. BLAISDELL, 290 U.S. 398, 429-430, 54 S.Ct. 231, 78
L.Ed. 413 (1934) ( “The obligation of a contract is the law which binds the
parties to perform their agreement. STURGES v. CROWNINSHIELD, 4
Wheat. 122, 197; STORY, op. cit., 1378. This Court has said that ‘the laws
which subsist at the time and place of the making of a contract, and where it
[290 U.S. 398, 430] is to be performed, enter into and form a part of it,
as if they were expressly referred to or incorporated in its terms. This
principle embraces alike those which affect its validity, construction,
discharge, and enforcement. . . . Nothing can be more material to the
obligation than the means of enforcement. . . . The ideas of validity and
remedy are inseparable, and both are parts of the obligation, which is
guaranteed by the Constitution against invasion.’ Von HOFFMAN v. CITY of
QUINCY, 4 Wall. 535, 550, 552. See, also, WALKER v. WHITEHEAD, 16
Wall. 314, 317. But this broad language cannot be taken without
qualification. Chief Justice Marshall pointed out the distinction between
obligation and remedy. STURGES v. CROWNINSHIELD, supra, 4 Wheat.
200. Said he: ‘The distinction between the obligation of a contract, and the
remedy given by the legislature to enforce that obligation, has been taken at
the bar, and exists in the nature of things. Without impairing the obligation
of the contract, the remedy may certainly be modified as the wisdom of the
nation shall direct.’ And in Von HOFFMAN v. CITY of QUINCY, supra, 4 Wall.
553, 554, the general statement above quoted was limited by the further
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observation that ‘it is competent for the States to change the form of the
remedy, or to modify it otherwise, as they may see fit, provided no
substantial right secured by the contract is thereby impaired. . . .” ), and
“[t]he obligations of a contract are impaired by a law which renders them
invalid, or releases or extinguishes them
9
(STURGES v . CROWNINSHIELD,supra, 4 Wheat. 197, 198) and impairment, as above noted, has been
predicated of laws which without destroying contracts derogate from
substantial contractual rights. 10 (nn. 9 & 10 omitted)” Ibid., 290 U.S.
398, 431, in that without this compact as a covenant the sovereignty of
Florida citizens in their collective capacity is not setup and the subsequent
political jurisdiction of the State of Florida is not brought into existence to
exercise said sovereignty in its representative capacity with respect to
Florida citizens in their collective capacity; a contract is impaired, in the
context of Article I, § 10 of the Florida Constitution, when a contract is made
worse or is diminished in . . . excellence or strength. LAWNWOOD
MEDICAL CENTER, INC. v. SEEGER, 959 So.2d 1222, 1224 (Fla. 1st
DCA 2007) ( “The right to contract is one of the most sacrosanct rights
guaranteed by our fundamental law. CHILES v. UNITED FACULTY of
FLORIDA, 615 So.2d 671 (Fla. 1993). In Florida, this right is protected
through article I, section 10 of our state constitution: ‘No bill of attainder,
ex post facto law or law impairing the obligation of contracts shall be
passed.’ An impairment occurs, in the context of this provision, when a
contract is made worse or is diminished in quantity, value, excellence or
strength. POMPONIO v. CLARIDGE of POMPANO CONDOMINIUM, INC., 378
So.2d 774 (Fla. 1979).” ); the construction of § 19 of the FLORIDA
CONSTITUTION of 1838, Declaration of Rights should be substantially
the same.
As Judge D. Arthur Kelsey makes clear, STONEY v. FRANKLIN, 54 Va.Cir.
591, 2001 Va.Cir.LEXIS 84, 44 U.C.C.Rep.Serv.2d (Callaghan) 1211
(2001) ( “The debate draws us back to first principles. The economic loss
rule exists, in large part, to guard ‘one of the last hilltops on the boundary
between tort and contract.’ John L. Costello, Virginia Remedies § 21-5(f), at862 (2d ed. 1999). Tort law involves public policy concerns over safety,
both to persons and property, that carry with them the non-consensual
imposition of duties. A manufacturer may choose to build a product and sell
it. But whether the manufacturer agrees to or not, he must use reasonable
care or be held responsible if his product injures either persons or property.
Tort law imposes duties upon the otherwise unwilling. That is, no consent-
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of-the-governed concepts apply to tortfeasors. On the other hand, contract
law involves an entirely different set of principles. Contract law itself
imposes few, if any, duties in the first instance. As a general rule,
contractual duties stem only from the consensual dealings of the parties.
Based upon the expressed (or, in the case of implied warranties, thepresumed) intention of the parties, contract law merely recognizes—rather
than imposes—legal duties and permits the parties wide latitude to limit their
liability and to disclaim implied warranties when the protected interests are
purely economic.” ), when the State of Florida omits our compact clause
from the first provision of our Declaration of Rights, we are deprived of the
fundamental right to give our consent to be governed—“the consent of the
governed”—first found in the Declaration of Independence; this may explain
why STONEY v. FRANKLIN failed to be reported in S.E.2d (2001).
Nowhere in the first Florida Constitution—nor any state constitution in effectat the adoption of the Constitution for the United States of America—is it
stipulated that a citizen must proffer proof of anything to obtain the
opportunity to create constitutional government by compact as a covenant
which is the consent of the governed. HEPBURN and DUNDAS v. AULD, 1
Cranch (5 U.S.) 321, 331, 2 L.Ed. 122, 125 (1803) ( “The only question
in this case is, whether Hepburn and Dundas had a right to insist on this
previous condition; and it is admitted that this question depends entirely on
the agreement of the 27th of September, 1799.
“That an acquittance should be signed, sealed and delivered before the act
itself was performed, which entitled the party to such acquittance, is a mode
of proceeding very unusual, and which certainly could only be rendered
indispensable by express stipulation.
“There is in this case no such express stipulation. . . .
“If we inspect those covenants which relate to the deed of assignment of
Graham’s contract, we find no stipulation respecting a release of any sort.” ).
When an individual is subject to the political jurisdiction, FISHER v.
MASTERS, 83 P.2d 212, 217, 59 Idaho 366 (1938) ( “In KNIGHT v.
TRIGG, 16 Idaho 256, 100 P. 1060, this court said [page 1062]: ‘The
holding of elections is peculiarly and wholly a matter within the management
and control of the political department of government.’ The word ‘political’,
as used in this connection, has no reference to partisanship or political
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parties but rather to the control, management and operation of
government….” ); LOCKHEED AIRCRAFT CORP. v. SUPERIOR COURT of
L. A. COUNTY, 171 P.2d 21, 24, 28 Cal.2d 481, 166 A.L.R. 701 (1946)
( “[T]he interference proscribed by the statute is interference with ‘political
activities or affiliations,’ and the test is not membership in or activitiesconnected with any particular group or organization, but whether those
activities are related to or connected with the orderly conduct of government
and the peaceful organization, regulation and administration of the
government.” ); AKIO KUWAHARA v. ACHESON, 96 F.Supp. 38, 41
(S.D.Cal. 1951) ( “In Webster’s New International Dictionary
(Unabridged), second edition, 1949, . . . the word ‘political’ is defined as
follows: ‘Of or pertaining to polity, or politics, or the conduct of government,
referring in the widest application to the judicial, executive, and legislative
branches; of or pertaining to, or incidental to, the exercise of the functions
vested in those charged with the conduct of government; relating to the
management of affairs of state. . . .’ ” ); DE-ANNEXATION of CERTAIN
REAL PROPERTY, 102 P.3d 120, 127-128, 2004 OK 60 (Okla. 2004),
rehearing denied, ( “In sum, for governmental action *128* to be political
there must be (a) an issue of ‘governing’ coupled with (b) a
mandatory and final resolution by nonjudicial means. (Emphasis in
original )” ), the individual has waived his/her rights secured by the
Constitution for the United States of America in return for rights granted by
the Constitution of the United States; this individual is internal to
government which acts in the nature of a charitable corporation where the
administration of government is of primary concern. Where the Florida
Supreme Court has decided that “ ‘A charity, in the legal sense, may be
more fully defined as a gift, to be applied consistently with existing laws, for
the benefit of an indefinite number of persons, . . . lessening the burdens
of government. It is immaterial whether the purpose is called charitable in
the gift itself, if it is so described as to show that it is charitable in its
nature.’ JACKSON v. PHILLIPS, 14 Allen (Mass.) 539, 556. (Emphasis
mine)” JORDAN v. LANDIS, Attorney General on Behalf of State, 128
Fla. 604, 175 So. 241, 246 (1937), it would seem to me that the Court
could see the State of Florida as acting in the nature of a charitable
corporation for the purpose of administering the fundamental rights of
individuals.
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When the United States Supreme Court reviews the constitutional rights of a
member of our military, it demonstrates that matters of government
administration come first. PARKER v. LEVY, 417 U.S. 733, 750-752, 94
S.Ct. 2547, 41 L.Ed.2d 439 (1974) ( “[W]hile legal proceedings actually
brought before a court-martial are prosecuted in the name of theGovernment, and the accused has the right to demand that he be proceeded
against in this manner before any sanctions may be imposed upon him, a
range of minor sanctions for lesser infractions are often imposed
administratively. Forfeiture of pay, reduction in rank, and even dismissal
from the service bring to mind the law of labor-management relations as
much as the civilian criminal law.
“In short, the Uniform Code of Military Justice regulates a far broader range
of the conduct of military personnel than a typical state criminal code
regulates of the conduct of civilians; but at the same time the enforcementof that Code in the area of minor offenses [417 U.S. 733, 751] is often
by sanctions which are more akin to administrative or civil sanctions than tocivilian criminal ones.
“The availability of these lesser sanctions is not surprising in view of the
different relationship of the Government to members of the military. It isnot only that of lawgiver to citizen, but also that of employer to employee.
Indeed, unlike the civilian situation, the Government is often employer,landlord, provisioner, and lawgiver rolled into one. That relationship also
reflects the different purposes of the two communities. As we observed inIn re GRIMLEY, 137 U.S., at 153, the military ‘is the executive arm’ whose
‘law is that of obedience.’ While members of the military community enjoy
many of the same rights and bear many of the same burdens as domembers of the civilian community, within the military community there is
simply not the same autonomy as there is in the larger civilian community.The military establishment is subject to the control of the civilian
Commander in Chief and the civilian departmental heads under him, and its
function is to carry out the policies made by those civilian superiors.
“Perhaps because of the broader sweep of the Uniform Code, the military
makes an effort to advise its personnel of the contents of the Uniform Code,
rather than depending on the ancient doctrine that everyone is presumed to
know the law. Article 137 of the Uniform Code, 10 U.S.C. 937, requires that
the provisions of the Code be ‘carefully explained to each enlisted member
at the time of his entrance on active duty, or within six days thereafter’ and
that they be ‘explained again after he has completed six months of active
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duty. . . . ’ Thus the numerically largest component of the services, the
enlisted personnel, who might be expected to be a good deal less familiar
with the Uniform Code than commissioned officers, are required by its terms
[417 U.S. 733, 752] to receive instructions in its provisions. Article 137
further provides that a complete text of the Code and of the regulationsprescribed by the President ‘shall be made available to any person on active
duty, upon his request, for his personal examination.’
“With these very significant differences between military law and civilian law
and between the military community and the civilian community in mind, we
turn to appellee’s challenges to the constitutionality of Arts. 133 and 134.” ),
yet, in military court-martials you are “guilty until proven innocent,” with
the burden on you doing so, while a private citizen is “innocent until proven
guilty,” with the burden on the government to show guilt.
The parties to the compact as a covenant contract within the common law
jurisdiction, and the presumption must be that all their activity is within that
jurisdiction unless it can be proved that they have done something to attach
themselves to government. As long as the individual has no attachments,
the common law is supreme to legislative enactment—federal and state.
HeinONLINE, 1 James Kent COMMENTARIES ON AMERICAN LAW
419-420, (1826)HeinONLINE, 1 James Kent COMMENTARIES ON
AMERICAN LAW 419-420, (1826) ( “MUNICIPAL law is a rule of civil
conduct, prescribed by the supreme power in a state. It is composed of
written and unwritten, or statute and common law. Statute law is the
express written will of the legislature, rendered authentic by certain
prescribed forms and solemnities.
“It is a principle in the English law, that an act of parliament, delivered in
clear and intelligible terms, cannot be questioned, or its authority controlled
in any court of justice. ‘It is,’ says Sir William Blackstone, ‘the exercise of
the highest authority that the kingdom acknowledges upon earth.’ When it
is said in the books, that a statute contrary to natural equity and reason, or
repugnant, or impossible to be performed, is void, the cases are understoodto mean, that the courts are to give the statute a reasonable construction.
They will not readily presume, out of respect and duty to the lawgiver, that
any very unjust or absurd consequence was within the contemplation of the
law. But if it should happen to be too direct and palpable in its direction to
admit of but one construction, there is no doubt in the English law, as to the
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binding efficacy of the statute. The will of the legislature is the supreme law
of the land, and demands irresistible obedience.a
“But while we admit this conclusion of the English law, we cannot but,
admire the intrepidity and powerful sense of justice which led Lord Coke,
when chief justice of the K. B., to declare, as he did in Doctor Bonham’s
Case,b that the common law doth control acts of parliament, and adjudges
them void when against common right and reason. The same sense of
justice and freedom of opinion, led Lord Chief Justice Hobart, in Day v.
Savagec to insist that an act of parliament made against natural equity, as
to make a man judge in his own case, was void; and induced Lord Chief
Justice Holt to say, in the case of the City of London v. Wood ,d that the
observation of Lord Coke was not extravagant, but was a very reasonable
and true saying. Perhaps what Lord Coke said in his reports, on this point,
may have been one of the many things that King James alluded to, when hesaid, that in Coke’s Reports there were many dangerous conceits of his own
uttered for law, to the prejudice of the crown, parliament, and subjects.e
“The principle in the English government, that the parliament is omnipotent,
does not prevail in the United States.” )
(a: “1 Blacks. Com. 91, 160, 185. Christian’s note to 1 Blacks. Com, 41.” )
(b: “8 Co. 118.” ) (c: “Hob. 87.” ) (d: “12. Mod. 687.” )
(e: “Bacon’s Works, vol. 6. p. 128.” ).
When the private state citizen enters into conduct that attaches him/her to
government, statutes are supreme. CULLEN v. SEABOARD AIR LINE R.
CO., 63 Fla. 122, 58 So. 182, 183 (1912) ( “ ‘A statute will not be
construed as taking away a common-law right existing at the date of its
enactment, unless that result is imperatively required – that is to say, unless
it be found that the pre-existing right is so repugnant to the statute that the
survival of such right would in effect deprive the subsequent statute of its
efficacy; in other words, render its provisions nugatory.’ TEXAS & PAC. RY.v. ABILENE COTTON OIL CO., 204 U.S. 426, 27 Sup.Ct. 350, 51 L.Ed. 553, 9
Ann.Cas. 1075.” ), rehearing denied; In re LEVY’S ESTATE, 141 So.2d
803, 805 (Fla. 2nd DCA 1962) ( “A statute will not be held to have
changed well settled common law principles by implication, unless the
implication of change is clear or necessary to give full force to express
provisions of the statute and the public policy thus established. DUDLEY v.
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HARRISON, McCREADY & CO., 1937, 127 Fla. 687, 173 So. 820, reh. den.,
128 Fla. 338, 174 So. 729. A statute will not be construed as taking away
common law rights unless the pre-existing right is repugnant to the statute.
CULLEN v. SEABOARD AIRLINE RY. CO., 1912, 63 Fla. 122, 58 So. 182.” ),
rehearing denied; MUNN v. ILLINOIS, 94 U.S. 113, 134, 24 L.Ed. 77(1876) ( “A person has no property, no vested interest, in any rule of the
common law. That is only one of the forms of municipal law, and is no more
sacred than any other. Rights of property which have been created by the
common law cannot be taken away without due process; but the law itself,
as a rule of conduct, may be changed at the will, or even at the whim, of the
legislature, unless prevented by constitutional limitations. Indeed, the great
office of statutes is to remedy defects in the common law as they are
developed, and to adapt it to the changes of time and circumstances.” ).
In other words, a federal citizen which must be subject to the political jurisdiction of the United States, finds himself/herself restrained in the use of
fundamental rights, the Court says there must be a compelling state interest
to justify it. COASTAL FLORIDA POLICE BENEVOLENT ASSOCIATION,
INC. v. WILLIAMS, 838 So. 2d 543, 550-551 (Fla. 2003) ( “There is
also no assertion here that the State has a compelling interest in depriving
deputy sheriffs of the right to collective bargaining. Indeed, as noted above,
all police officers and many deputy sheriffs have been exercising such rights
throughout Florida for some time. The most recent case in which this Court
has reviewed a statutory restriction on a public employee’s right to collectivebargaining was in CHILES v. STATE EMPLOYEES ATTORNEYS GUILD, 734
So.2d 1030, 1033 (Fla. 1999), wherein we struck down a statutory attempt
to deny collective bargaining rights to lawyers employed by government.” );
NORTH FLORIDA WOMEN’S HEALTH AND COUNSELING SERVICES,
INC. v. STATE, 866 So.2d 612, 625 n. 16 (Fla. 2003) ( “Under ‘strict’
scrutiny, which applies inter alia to certain classifications and fundamental
rights, a court must review the legislation to ensure that it furthers a
compelling State interest through the least intrusive means. The legislation
is presumptively unconstitutional. The standard of proof is as follows: theState must prove that the legislation furthers a compelling State interest
through the least intrusive means. See generally In re T.W., 551 So.2d
1186, 1193 (Fla. 1989).” ); Ibid., 866 So.2d 612, 635 & n. 50 ( “[I]t is
settled in Florida that each of the personal liberties enumerated in the
Declaration of Rights is a fundamental right. See generally TRAYLOR v.
STATE, 596 So.2d 957 (Fla. 1992).” ), and for private state citizens with no
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consequently derived from the people; therefore, all officers of government,
whether legislative or executive, are their trustees and servants, and at all
times, in a legal way, accountable to them;” and, the Constitution of
Maryland, November 11, 1776, A Declaration of Rights, &C, § 4
provides, in part, “[t]hat all persons invested with the legislative orexecutive powers of government are the trustees of the public, and, as such,
accountable for their conduct;” and, the Constitution of the
Commonwealth of Massachusetts (1780), Part the First: A
Declaration of the Rights of the Inhabitants of the Commonwealth of
Massachusetts, Article V provides that, “[a]ll power residing originally in
the people, and being derived from them, the several magistrates and
officers of government, vested with authority, whether legislative, executive,
or judicial, are their substitutes and agents, and are at all times accountable
to them;” and the jurisdictional predicate for this request for relief, at a
minimum, is found within the meaning of UNITED STATES v. STANDARD
OIL CO., 332 U.S. 301, 307, 67 S.Ct. 1604, 1608 (1947) (arguing that
federal common law covered matters “vitally affecting interests, powers and
relations of the Federal Government [that] require uniform national
disposition rather than diversified state rulings” and that ERIE was not
intended to have the “purpose or effect for broadening state power over
matters essentially of federal character or for determining whether issues
are of that nature” ); BIVENS v. SIX UNKNOWN FED. NARC. AGENTS,
403 U.S. 388, 407, 91 S.Ct. 1999, 29 L.Ed. 2d 619 (1971) ( “[I]t must
also be recognized that the Bill of Rights is particularly intended to vindicate
the interests of the individual in the face of the popular will as expressed in
legislative majorities; at the very least, it strikes me as no more appropriate
to await express congressional authorization of traditional judicial relief with
regard to these legal interests than with respect to interests protected by
federal statutes.” ) (HARLAN, J., concurring); PRIEBE & SONS, INC. v.
UNITED STATES, 332 U.S. 407, 411, 68 S.Ct. 123, 92 L.Ed. 32 (1947)
(applying federal common law to the construction of a federal government
contract and stating that it “is customary, where Congress has not adopted
a different standard, to apply to the construction of government contracts
the principles of general contract law. UNITED STATES v. STANDARD RICE
CO., 323 U.S. 106, 111, 147, 147, and cases cited.” ).
When the covenants on either side form the entire consideration for each
other, neither party can sue without alleging that he has or is ready and
willing to perform it. Halsbury, THE LAWS OF ENGLAND (Third
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Edition), Volume 11, Deeds and Other Instruments, BUTTERWORTH
& CO. (PUBLISHERS) LTD., London, England, 1955, § 729: Rules
regarding nature of contract & footnote (e) ( “1. If the covenants on
either side form the entire consideration for each other, they are mutually
dependent; each is a condition precedent, and neither party can sue withoutalleging that he has performed his covenant, or that he is ready and willing
to perform it (e).” )
(footnote (e): “This is the fourth rule in the notes to PORDAGE v. COLE
(1669), 1 Wms. Saund. 319 l, at p. 320 e; ‘4. Where the mutual covenants
go to the whole consideration on both sides, they are mutual conditions and
performance must be averred’ (see OXFORD v. PROVAND (1868), L. R. 2 P.
C. 135, at p. 156). Accordingly, where a vendor had so changed the
property by cutting down timber that he could not properly perform his
covenant, he could not sue for the purchase-money (DUKE of St. ALBANS v.SHORE (1789), 1 Hy. Bl. 270). . . .” ); the first thing we need do to setup our
damage suit is file petitions for Florida state citizenship which simultaneously
repudiates the federal nature of citizenship and any attachment to political
jurisdiction with the Florida attorney general using the same general form
we used to file Michael L. Hodge’s NOTICE OF LIABILITY in the Orange
County Recorder—the details of which are alluded to in Louis Farrakhan’s
letter.
Declarations of Domicile and Allegiance must be incorporated as referencesin these petitions for state citizenship. SMITH and ARMISTEAD v.CROOM[2], 7 Fla. 180, 185-186 (1857) (“[T]he law of citizenship,
as it is known in America [ ] is found in American decisions. This
citizenship I understand as equivalent to domicil, when applied to an American born or a foreigner naturalized. To be a citizen of a State,
says Judge Story, a man must have his domicil in the State.
“If a man has his domicil in a State, to which he has removed from anotherState, he is a citizen of the former.
“In CASE v. CLARK, 5 Mason C. C. Rep. 70, Story, J., says: ‘It appears tome clear that there is no sufficient proof that the plaintiff is a citizen of Massachusetts. To effect that purpose, it should be established that there as
a bona fide change of domicil; there must be a bona fide intention of removal, and a real change of domicil.
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“In the same case he shows that a removal for business or pleasure, asojoun, does not make a citizen. This was a question of forensic character—
a question as to the right to sue in the Federal Court; and in this case, as inquestion of the right to sue as a citizen of a State has been put upon the
question of whether the person was or was not domiciled in the State for all
purposes, and the rules as to domicil laid down in the same way as insuccession cases, and the cases as to succession referred to.
“In Story’s COMMENTARIES ON THE CONSTITUTION, Vol. 3, pp. 564, 565, in
treating of that clause of the Constitution which gives jurisdiction to theFederal Court, between citizens of one State and citizens of another State,
he explains the meaning of the word ‘citizen’ as there used. He says: ‘Areall persons born within a State to be always deemed citizens of that State,
notwithstanding any change of domicil, or does their citizenship change withtheir change of domicil? The answer to this enquiry is equally plain and
satisfactory. The Constitution having declar- *186* ed that citizens
of each State shall be entitled to all privileges and immunities of citizens in the several States, every person who is a citizen of one
State and removes into another, with the intention of taking uphis residence and inhabitancy there, becomes ipso facto a citizen
of the State where he resides , and he then ceases to be a citizen of the
State from which he has removed his residence. In general it may be saidthat a removal from one State into another, animo manendi, or with a
design of becoming an inhabitant, constitutes a change of domicil, and of course a change of citizenship.’
“Here we have emphatically declared, that as to the right to sue inthe Federal Court, ‘domicil’ and ‘citizenship’ are synonymous.
(Emphasis mine)” ).
Long before the Fourteenth Amendment came into existence, a
preponderance of our courts considered American citizens to be attached to
the political jurisdiction of government as owing allegiance to it; the older of
only two U.S. Supreme Court cases that define the meaning of “subject to
the jurisdiction of the United States” cites an 1805 Massachusetts case for
the proposition that a citizen must be born in the common law jurisdiction of
the country wherein he/she is born to be a citizen thereof, and then, his/her
allegiance is due the political jurisdiction. UNITED STATES v. WONG KIM
ARK, 169 U.S. 649, 663-664, 18 S.Ct. 456, 42 L.Ed. 890 (1898) ( “The
Supreme Judicial Court of Massachusetts, speaking by Mr. Justice
(afterwards Chief Justice) Sewall, early held that the determination of the
question whether a man was a citizen or an alien was ‘to be governed
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altogether by the principles of the common law,’ and that it was
established, with few exceptions, ‘that a man, born within the jurisdiction of
the common law, is a citizen of the country wherein he is born. By this
circumstance of his birth, he is subjected to the duty of allegiance which is
claimed and enforced by the sovereign of his native land; and becomesreciprocally entitled to the protection of that sovereign, and to the other
rights and advantages which are included in the term ‘citizenship.’ ’
GARDNER v. WARD, (1805) 2 Mass. 244, note. And again: ‘The doctrine of
the common law is, that every man born within its jurisdiction is a subject of
the sovereign of the country where he is born; and allegiance is not
personal to the sovereign in the extent that has been contended for;
it is due to him in his political capacity of sovereign of the territory
where the person owing the allegiance was born.’ KILHAM v. WARD, (1806)
2 Mass. 236, 265. It may here be observed that in a recent English case
Lord Coleridge expressed the opinion of the Queen’s Bench Division that the
statutes of 4 Geo. II, (1731) c. 21, and 13 Geo. III, (1773) c. 21,
(hereinafter referred to,) ‘clearly recognize that to the King in his
politic, and not in his personal capacity, is the allegiance of his
subjects due.’ ISAACSON v. DURANT, 17 Q.B.D. 54, 65.
“The Supreme Court of North Carolina, speaking by Mr. Justice Gaston, said:
‘Before our Revolution, all free persons born within the dominions of the
King of Great Britain, whatever their color or complexion, were native-born
British subjects; those born out of his allegiance were aliens.’ ‘Upon the
Revolution, no other change took place in the law of North Carolina, than
was consequent upon the transition from a colony dependent on an
European King to a free and sovereign State;’ ‘British subjects in North
Carolina became North Carolina freemen;’ ‘and all free persons born within
the State are born citizens of the State.’ ‘The term ‘citizen,’ as understood
in our law, is precisely analogous to the term ‘subject’ in the common law,
and the change of phrase has entirely resulted from the change of
government. The sovereignty has been transferred from one man to
the collective body of the people; and he who before was a ‘subject
of the king’ is now ‘a citizen of the State.’ ’ STATE v. MANUEL,
(1838) 4 Dev. & Bat. 20, 24-26. (Emphasis mine)” ), yet it does
observe that the King’s prerogative—sovereignty—has been transferred to
the collective body of the people. BIGNELL v. CUMMINS, 69 Mont. 294,
222 P. 797, 799 (1923) ( “The word prerogative implies sovereign right.
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ATTORNEY GENERAL v. CITY of EAU CLAIRE, 37 Wis. 400, 443. The
expressions are synonymous. With respect to the governmental problems of
a free people either expression is apt only when it is used to mean the
inherent and paramount power of the people. Expressive of this is section 1
of article 3 of the Constitution: ‘All political power is vested in and derived from the people; all government of right
originates with the people; is founded upon their will only, and is instituted solely for
the good of the whole.’
“The sovereignty of the people is expressed by the Constitution, by statute,
or by law expressly recognized by statute. Of course it is carried out under
the Constitution by the three departments of the government. Article 4, §
1.” ). The fact that the courts have recognized that each state constitution
and the federal constitution is a compact, ABDI HOSH ASHKIR v.
UNITED STATES, 46 Fed.Cl. 438, 441 (2000), supra; PEAVY-WILSON
LUMBER CO. v. BREVARD COUNTY, 159 Fla. 311, 31 So.2d 483, 487
(1947) ( “[C]onstitutional law [ ] was promulgated as a compact, by all
in the first instance, to shield minorities from majorities.” ), and that a
constitution may be construed two ways: (1) in light of legislative
enactments, and (2) as a contract, OGDEN v. SAUNDERS, 25 U.S. (12
Wheat.) 213, 277, 6 L.Ed. 606, 628 (1827) ( “If ever contemporaneous
exposition, and the clear understanding of the contracting parties, or of the
legislating power (it is no matter in which light it be considered), could be
resorted to as the means of expounding an instrument, the continuing andunimpaired existence of this power in the states ought never to have been
controverted.” ), is incompatible with the idea that the people of the political
jurisdiction are one of the contracting parties. If the contracting parties
were as they presume—the citizens in their individual capacity and the
citizens in their collective capacity of the political jurisdiction—there would
not be two ways to construe because “in light of legislative enactment” is
from the point of view of the political jurisdiction. If everyone is attached to
the political jurisdiction, who are they representing? If government can be
seen as acting in the nature of a charitable corporation in the administrationof its business—particularly in the administration of fundamental rights (civil
liberties), it could never be a trustee to anyone internal to its
administration.
It would seem that the U.S. Supreme Court is waiting for an American
citizen to claim the right to state citizenship. WHEELER v. SMITH, 50 U.S.
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(9 How.) 55, 78, 13 L.Ed. 44 (1850) ( “When this country achieved its
independence, the prerogatives of the crown devolved upon the people of
the States. And this power still remains with them, except so far as they
have delegated a portion of it to the Federal government. The sovereign will
is made known to us by legislative enactment. And to this we must look inour judicial action, instead of the prerogatives of the crown. The State, as a
sovereign, is the parens patriae.” ).
It should be eye-opening with respect to the foregoing to contrast Florida’s
view that a state constitution is a limitation on governmental powers in
contradistinction to a grant a power, SAVAGE v. BOARD of PUBLIC
INSTRUCTION of HILLSBOROUGH COUNTY, 101 Fla. 1362, 133 So.
341, 344 (1931) ( “The Constitution of this state is not a grant of power to
the Legislature, but a limitation only upon legislative power, and unless
legislation be clearly contrary to some express or necessarily impliedprohibition found in the Constitution, the courts are without authority to
declare legislative acts invalid. The Legislature may exercise any lawmaking
power that is not forbidden by organic law. STATE v. BRYAN, 50 Fla. 293,
39 So. 929; JORDAN v. DUVAL COUNTY, 68 Fla. 48, 66 So. 298; STONE v.
STATE, 71 Fla. 514, 71 So. 634.” ), and that this is a generally accepted
doctrine, BOARD of PUBLIC INSTRUCTION for POLK COUNTY,
FLORIDA v. GILLESPIE, 81 F.2d 586, 589 (CA5, Fla. 1936) ( “It is the
generally accepted doctrine of constitutional law that the powers of state
Legislatures are not conferred by, or to be found in, their constitutions; theyare inherent. That Legislatures look to constitutions not as the source of,
but for limitations upon, their powers. It is the generally accepted doctrine
that exerted legislative powers may not be stricken down upon general ideas
of propriety or justice, or of the force and effect of natural law, but only by
pointing to a constitutional limitation upon the power. LYTLE v. HALFF, 75
Tex. 128, 132, 12 S.W. 610; HARRIS COUNTY v. STEWART, 91 Tex. 143, 41
S.W. 650; BROWN v. CITY of GALVESTON, 97 Tex. 1, 75 S.W. 488. The
Florida courts have announced the same doctrine in COTTON v. COUNTY
COMMISSIONERS, 6 Fla. 610 [(1856)]; SAVAGE v. BOARD of PUBLIC INSTRUCTION, 101 Fla. 1362, 133 So. 341; STATE ex rel. MOODIE v.
BRYAN, 50 Fla. 293, 39 So. 929; HARRY E. PRETTYMAN v. FLORIDA REAL
ESTATE COMM., 92 Fla. 515, 109 So. 442; JORDAN v. DUVAL COUNTY, 68
Fla. 48, 66 So. 298.” ); In re APPORTIONMENT LAW SENATE JOINT
RESOLUTION NO. 1305, 1972 REGULAR SESSION, 263 So.2d 797,
805 (1972) ( “It is well settled that the state Constitution is not a grant of
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power but a limitation upon power. Unless legislation duly passed be clearly
contrary to some express or implied prohibition contained in the
Constitution, the courts have no authority to pronounce it invalid HARRY E.
PRETTYMAN, INC. v. FLORIDA REAL ESTATE COMMISSION, 92 Fla. 515, 109
So. 442 (1926); STATE ex rel. JONES v. WISEHEART, 245 So.2d 849 (Fla.1971).” ), supplemented, 279 So.2d 14, supplemented, 281 So.2d 484.
Compare this to the most satisfying case I have found explaining the true
nature of state constitutional governmental purpose, WHITTINGTON v.
POLK, 1 H. & J. 236, 1802 WL 349 (Md.Gen.). “After the Revolutionary
War, the Maryland General Court succeeded the Provincial Court, and the
Court of Appeals succeeded the Colonial Court of Appeals and was given
authority to hear appeals from the General Court, the Court of Chancery and
the Court of Admiralty. See Md. Const. of 1776, § 56.6 ” (n. 6: “The
General Court was abolished by constitutional amendment in 1805.”)), soWHITTINGTON v. POLK was heard in a lower court.
“The bill of rights and form of government compose the constitution of
Maryland, and is a compact made by the people of Maryland among
themselves, through the agency of a convention selected and appointed for
that important purpose.
“This compact is founded on the principle that the people being the source of
power, all government of right originates from them.
“In this compact the people have distributed the powers of government in
such manner as they thought would best conduce to the promotion of the
general happiness; and for the attainment of that all important object have,
among other provisions, judiciously deposited the legislative, judicial and
executive, in separate and distinct hands, subjecting the functionaries of
these powers to such limitations and restrictions as they thought fit to
prescribe.
“The legislature, being the creature of the constitution, and acting
within a circumscribed sphere , is not omnipotent, and cannot rightfully
exercise any power, but that which is derived from that instrument.
“The constitution having set certain limits or land marks to the power of the
legislature, whenever they exceed them they act without authority, and such
acts are mere nullities, not being done in pursuance of power delegated
to them: Hence the necessity of *243* some power under the
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constitution to restrict the acts of the legislature within the limits defined by
the constitution.
“The power of determining finally on the validity of the acts of the legislature
cannot reside with the legislature, because such power would defeat and
render nugatory, all the limitations and restrictions on the authority of the
legislature, contained in the bill of rights and form of government, and they
would establish a despotism, and subvert that great principle of the
constitution, which declares that the powers of making, judging, and
executing the law, shall be separate and distinct from each other.
“This power cannot be exercised by the people at large, or in their
collective capacity, because they cannot interfere according to their
own compact, unless by elections, and in such manner as the
constitution has prescribed, and because there is no other modeascertained by which they can express their will. (Emphasis mine)”
WHITTINGTON v. POLK, 1 H. & J. 236, 242-243 (1802); the court
asserts that the state constitution is like the federal constitution in that the
powers of government are delegated and the compact clause of the state
constitution’s bill of rights involves the citizens individually and the citizens
collectively as parties setting up the citizens collectively as the sovereignty
and bringing into existence the political jurisdiction where sovereignty is
exercised in a representative capacity—unhindered.
“The interference of the people by elections cannot be considered as the
proper and only check and a suitable remedy, because in the interval of
time, between the elections of the members who compose the different
legislatures, the law may have had its full operation, and the evil arising
from it become irremediable; nor is it probable that the elections will be
made with the view to afford redress in such particular *244* case, and if
they were, and the law should be repealed, it would not be an adequate
remedy.” Ibid., 1 H. & J. 236, 243-244.
“It is the office and province of the court to decide all questions of law whichare judicially brought before them, according to the established mode of
proceeding, and to determine whether an act of the legislature, which
assumes the appearance of a law, and is clothed with the garb of authority,
is made pursuant to the power vested by the constitution in the legislature;
for if it is not the result or emanation of authority derived from the
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constitution, it is not law, and cannot influence the judgment of the court in
the decision of the question before them.
“The oath of a judge is ‘that he will do equal right and justice according to
the law of this state, in every case in which he shall act as judge.’
“To do right and justice according to the law, the judge must determine what
the law is, which necessarily involves in it the right of examining the
constitution, (which is the supreme or paramount law, and under which
the legislature derive the only authority they are invested with, of
making laws,) and considering whether the act passed is made pursuant
to the constitution, and that trust and authority which is delegated
thereby to the legislative body. . . .
“The legislature are the trustees of the people, and, as such, can
only move within those lines which the constitution has defined as
the boundaries of their authority , and if they should incautiously, or
unadvisedly transcend those limits, the constitution has placed the judiciary
as the barrier or safeguard to resist the oppression, and redress the injuries
which might accrue from such inadvertent, or unintentional infringements of
the constitution.” Ibid., 1 H. & J. 236, 244-245.
“It is also observable, that the courts cannot take judicial cognizance of any
act repugnant to the constitution, unless the question is judicially brought
before them, and then it is fully discussed by counsel learned in the law, andthe court decide on mature consideration.” Ibid., 1 H. & J. 236, 245.
Thus, within the meaning of WHITTINGTON v. POLK, 1 H. & J. 236
(1802), the constitutional purpose of Florida government has been
misconstrued.
Add to the above the fact that the English common law doctrine of a
subject’s perpetual allegiance did not conform to the States’ entitlement to
remodel their form of government according to the necessities or policy of
the people, so the American common law doctrine of contracting allegiancecame into being. INGLIS v. TRUSTEES of the SAILOR’S SNUG
HARBOUR in the CITY of NEW YORK, 28 U.S. 99, 157-161 & n. (a), 7
L. Ed. 617 (1830) ( “The case of the separation of the United States from
Great Britain, is perhaps not strictly brought within any of the descriptions
already referred to; and it has been treated on many occasions, both at the
bar and on the bench, as a case sui generis. Before the revolution, all the
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allegiance to the British crown. When, therefore, the declaration of
independence absolved all the states *159* from allegiance to the British
crown, it was an act of one party only. It did not bind the British
government, which was still at liberty to insist, and did insist upon the
absolute nullity of the act, and claimed the allegiance of all the colonists asperpetual and obligatory. From this perplexing state of affairs, the
necessary accompaniment of a civil war, it could not escape the notice of the
eminent men of that day, that most distressing questions must arise; who
were to be considered as constituting the American states, on one side, and
‘the state of Great Britain’ on the other? The common law furnished no
perfect guide, or rather admitted of different interpretations. If, on the one
side, it was said, that all persons born within a colony owed a perpetual
allegiance to that colony, whoever might be the sovereign, the answer was,
that the common law admitted no right in any part of the subjects to change
their allegiance without the consent of their sovereign, and that the
usurpation of such authority was itself rebellion; for ‘nemo potest exuere
patriam,’ was the language of the common law. In respect to persons who
were not natives, but inhabitants only, in a colony, at the time of the
assertion of its independence, there was still less reason to claim their
allegiance. If they were aliens, there was no pretence to say that they could
be bound to permanent allegiance against their will. If they were born in
England, or elsewhere in the British dominions, out of the colony, they were
as little bound to permanent allegiance; because they inhabited, not as
colonists, but as British subjects. In respect to both these cases, (i.e.
foreigners and British subjects,) no colony, upon assuming to be an
independent state, could, against their will, make them members of the
state. It would be an exercise of authority not flowing from its rights as an
independent state, and at war with the admitted rights of other nations, by
the law of nations, to hold the allegiance of their own subjects. In order,
therefore, to make such persons members of the state, there must be some
overt act or consent on their own part, to assume a character; and then, and
then only, could they be deemed, in respect to such colony, to determine
their right of election.
“Under the peculiar circumstances of the revolution, the *160* general, I
do not say the universal, principle adopted, was to consider all persons,
whether natives or inhabitants, upon the occurrence of the revolution,
entitled to make their choice, either to remain subjects of the British crown,
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or to become members of the United States. This choice was necessarily to
be made within a reasonable time. In some cases that time was pointed out
by express acts of the legislature; and the fact of abiding within the state
after it assumed independence, or after some other specific period, was
declared to be an election to become a citizen. That was the course inMassachusetts, New York, New Jersey, and Pennsylvania. In other states,
no special laws were passed; but each case was left to be decided upon its
own circumstances, according to the voluntary acts and conduct of the
party. That the general principle of such a right of electing to remain under
the old, or to contract a new allegiance, was recognised, is apparent from
the cases of the COMMONWEALTH vs. CHAPMAN, 1 Dall.Rep. 53; CAIGNET
vs. PETTIT, 2 Dall.Rep. 234; MARTIN vs. THE COMMONWEALTH, 1 Mass.Rep.
347, 397; PALMER vs. DOWNER, 2 Mass.Rep. 179, note. S. C. Dane’s
Abridg. Ch. 131, art. 7, sec. 4; KILHAM vs. WARD, 2 Mass.Rep. 236, and
GARDNER vs. WARD, 2 Mass.Rep. 244, note; as explained and adopted in
INHABITANTS of CUMMINGTON vs. INHABITANTS of SPRINFIELD, 2
Pick.Rep. 394, and note; INHABITANTS of MANCHESTER vs. INHABITANTS
of BOSTON, 16 Mass.Rep. 230, and M’ILVAINE vs. COXE’S LESSEE, 4
Cranch, 209, 211 (a). But what is more directly in point: it is expressly
declared and acted upon, by the supreme court of New York, in the case of
JACKSON vs. WHITE, 20 Johns.Rep. 313. It appears to me that there is
sound sense and public policy in this doctrine; and there is no pretence to
say, that it is incompatible with the known law or general usages of nations.
The case of AINSLIE vs. MARTIN, 9 Mass.Rep. 454, proceeds upon the
opposite doctrine; but that case stands alone, and is incompatible with prior
as well as subsequent decisions of the same court; and so it has been
*161* treated by chancellor Kent, in his learned commentaries. 2 Kent’s
Comm. 35, 52.” )
(n. (a): “See also CHASE, J., in WARE vs. HYLTON, 3 Dall. 225, 1 Peters’s
Condens. Rep. 199; HEBRON vs. COLCHESTER, 5 Day’s Rep. 169.” )
(STORY, J., dissenting).
I’m sure I have read somewhere that you and Landis are certified to practice
in the United States Supreme Court. Though, Congressional mandates
dictate that we file in the U.S. District Court for the District of Columbia
(after we’ve given Florida’s Attorney General a chance to remedy things), I
don’t believe it will remain there long; I expect the Supreme Court to be the
trial court operating under the Fed.R.Civ.Proc after the lower courts examine
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the issues and certify the case as having questions of great public
importance.
We can discuss the possible advantage of coming pro se with you as
advisors, but whether you sign on as the attorney of record or not, we would
enter into the agreement you use representing clients for purposes of
securing your remuneration and whatever other reasons you can think of.
Let’s talk about it. We look forward to hearing from you. And, thank you for
your time and efforts in our behalf.
Very Truly Yours,
J. Patrick Simpson
321-299-5773 (SU, MO, & TU are days off; otherwise my 12-hour
driving shift precludes me from talking on my cell phone)
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