essay on law (WORD PAD)

8/7/2019 essay on law (WORD PAD)

1/27


2/27

LAW. In its most general and comprehensive sense, lawsignifies a rule of action; and this term is appliedindiscriminately to all kinds of action; whether animate orinanimate, rational or irrational. 1 Bl. Com. 38. In its moreconfined sense, law denotes the rule, not of actions in

general, but of human action or conduct. In the civil codeof Louisiana, art. 1, it is defined to be "a solemn expressionof the legislative will." Vide Toull. Dr. Civ. Fr. tit. prel. s. 1,n. 4; 1 Bouv. Inst. n. 1-3.

2. Law is generally divided into four principle classes,namely; Natural law, the law of nations, public law, andprivate or civil law. When considered in relation to itsorigin, it is statute law or common law. When examined asto its different systems it is divided into civil law, common

law, canon law. When applied to objects, it is civil, criminal,or penal. It is also divided into natural law and positive law.Into written law, lex scripta; and unwritten law, lex nonscripta. Into law merchant, martial law, municipal law, andforeign law. When considered as to their duration, laws areimmutable and arbitrary or positive; when as their effect,they are prospective and retrospective. These will beseparately considered. BOUVIERS LAW DICTIONARY 1856EDITION

LAW OF NATURE. The law of nature is that which

God, the sovereign of the universe, has prescribedto all men, not by any formal promulgation, but bythe internal dictate of reason alone. It is discovered bya just consideration of the agreeableness ordisagreeableness of human actions to the nature of man;and it comprehends all the duties which we owe either tothe Supreme Being, to ourselves, or to our neighbors; asreverence to God, self-defence, temperance, honor to ourparents, benevolence to all, a strict adherence to ourengagements, gratitude, and the like. Erskines Pr. of L. ofScot. B. 1, t. 1, s. 1. See Ayl. Pand. tit. 2, p. 5; Cicer. de

Leg. lib. 1.

2. The primitive laws of nature may be reduced to six,namely: 1. Comparative sagacity, or reason. 2. Self-love. 3. The attraction of the sexes to each other. 4. Thetendemess of parents towards their children. 5. Thereligious sentiment. 6. Sociability.


3/27

3. - 1. When man is properly organized, he is able todiscover moral good from moral evil; and the studyof man proves that man is not only an intelligent,but a free being, and he is therefore responsible forhis actions. The judgment we form of our good actions,

produces happiness; on the contrary the judgment we formof our bad actions produces unhappiness.

4. - 2. Every animated being is impelled by nature tohis own preservation, to defend his life and bodyfrom injuries, to shun what may be hurtful, and toprovide all things requisite to his existence. Hencethe duty to watch over his own preservation. Suicide andduelling are therefore contrary to this law; and a mancannot mutilate himself, nor renounce his liberty.

5. - 3. The attraction of the sexes has been providedfor the preservation of the human race, and this lawcondemns celibacy. The end of marriage proves thatpolygamy, (q. v.) and polyendry, (q. v.) are contrary to thelaw of nature. Hence it follows that the husband and wifehave a mutual and exclusive right over each other.

6. - 4. Man from his birth is wholly unable to provide

for the least of his necessities; but the love of hisparents supplies for this weakness. This is one ofthe most powerful laws of nature. The principal dutiesit imposes on the parents, are to bestow on the child all thecare its weakness requires, to provide for its necessaryfood and clothing, to instruct it, to provide for its wants,and to use coercive means for its good, when requisite.

7. - 5. The religious sentiment which leads usnaturally towards the Supreme Being, is one of the

attributes which belong to humanity alone; and itsimportance gives it the rank of the moral law of nature.From this sentiment arise all the sects and different formsof worship among men.

8. - 6. The need which man feels to live in society, isone of the primitive laws of nature, whence flow our


4/27

duties and rights; and the existence of society dependsupon the condition that the rights of all shall be respected.On this law are based the assistance, succors and goodoffices which men owe to each other, they being unable toprovide each every thing for himself. BOUVIERS LAW

DICTIONARY 1856 EDITION

The power of the state is awesome. The power is so awesomethat it can greatly affect the course of many men. When a state actswithin the laws of justice, and god, the state itself can become blessed,however, when a state turns on its people, casts out god, and seeks itsown preservation, it becomes despotic and a home to tyrants.

Above is the general definitions for law at around the time thatthe state of California passed its first constitution (1849). In Californialaw exists as common law and statutory law.

Common law is the law we had adopted from England. Californiaused the common law as it existed in 1849 in England to fill the void oflaw created by forming a new state. The common law is not written inour law books of California, it was simply adopted in toto. Common lawis also the body of language that the Constitution itself was written in.Statutory law is law that is passed by the legislature which eithermodifies what was in the common law, or it treads on new groundaltogether.

LAW, COMMON. The common law is that which

derives its force and authority from the universal consentand immemorial practice of the people. It has neverreceived the sanction of the legislature, by an express act,wbich is the criterion by which it is distinguished from thestatute law. It has never been reduced to writing; by thisexpression, however, it is not meant that all those laws areat present merely oral, or communicated from former agesto the present solely by word of mouth, but that theevidence of our common law is contained in our books ofReports, and depends on the general practice and judicialadjudications of our courts. BOUVIERS LAW DICTIONARY

1856 EDITION

Statutory law is made when the legislature passes a statute.Statute simply means a written and published law. Statutes start outas bills, make it to two houses, get signed by the Governor, andbecome a statute.

CALIFORNIA CONSTITUTION


5/27

ARTICLE 4 LEGISLATIVE

SEC. 8. (a) At regular sessions no bill other than thebudget bill may be heard or acted on by committee oreither house until the 31st day after the bill is introduced

unless the house dispenses with this requirement byrollcall vote entered in the journal, three fourths of themembership concurring.

(b) The Legislature may make no law except bystatute and mayenact no statute except by bill. No bill may be passedunless it is read by title on 3 days in each house exceptthat the house may dispense with this requirement byrollcall vote entered in the journal, two thirds of themembership concurring. No bill may be passed until thebill with amendments has been printed and distributed to

the members. No bill may be passed unless, by rollcallvote entered in the journal, a majority of the membershipof each house concurs.

Now that we know what a statute is and what common law iswe can now move into the difference between criminal law and civillaw.

CHAPTER 1

There are two distinct bodies of law called criminal law andcivil law. Both of these fields are occupied by common law andstatutory law. Criminal law is defined in the following definitions:

LAW, PENAL. One which inflicts a penalty for aviolation of its enactment. BOUVIERS LAW DICTIONARY1856 EDITION

LAW, CRIMINAL. By criminal law is understood thatsystem of laws which provides for the mode of trial ofpersons charged with criminal offences, defines crimes,

and provides for their punishments. BOUVIERS LAWDICTIONARY 1856 EDITION

LAW, CIVIL. The term civil law is generally applied by wayof eminence to the civil or municipal law of the Roman empire,without distinction as to the time when the principles of such lawwere established or modified. In another sense, the civil law is


6/27

that collection of laws comprised in the institutes, the code, andthe digest of the emperor Justinian, and the novel constitutionsof himself and some of his successors. Ersk. Pr. L. Scotl. B. 1, t. l,s. 9; 6 L. R. 494.

6. Sometimes by the term civil law is meant thoselaws which relate to civil matters only; and in this senseit is opposed to criminal law, or to those laws whichconcern criminal matters. Vide Civil. BOUVIERS LAWDICTIONARY 1856 EDITION

California Code of Civil Procedure20. Judicial remedies are such as are administered by theCourts of justice, or by judicial officers empowered for thatpurpose by the Constitution and statutes of this State.

California Code of Civil Procedure

21. These remedies are divided into two classes:1. Actions; and,2. Special proceedings.

California Code of Civil Procedure22. An action is an ordinary proceeding in a court ofjustice by which one party prosecutes another forthe declaration, enforcement, or protection of aright, the redress or prevention of a wrong, or thepunishment of a public offense.

California Code of Civil Procedure23. Every other remedy is a special proceeding.

California Code of Civil Procedure24. Actions are of two kinds:

1. Civil; and,


7/27

2. Criminal.

California Code of Civil Procedure25. A civil action arises out of:

1. An obligation;2. An injury.

Now it has been established by section 24 of the Code of CivilProcedure that there are only two types of judicial court settings, civiland criminal. Also we have seen a little of what a civil law is. TheCalifornia Code of Civil Procedure states it pretty simply however:

California Code of Civil Procedure30. A civil action is prosecuted by one party against

another for the declaration, enforcement or protection of aright, or the redress or prevention of a wrong.

California Code of Civil Procedure31. THE PENAL CODE defines and provides for theprosecution of acriminal action.

Now let us explore the world words of criminal law. Its is adifferent body of law and as you will see Crime and punishmentare in fact paired in law and both are for addressing morally repugnant

activity.

CRIME. A crime is an offence against a public law. Thisword, in its most general signification, comprehends alloffences but, in its limited sense, it is confined to felony. 1Chitty, Gen. Pr. 14.

2. The term misdemeanor includes every offence inferior tofelony, but punishable by indictment or by-particularprescribed proceedings.

3. The term offence, also, may be considered as,having the same meaning, but is usually, by itself,understood to be a crime not indictable butpunishable, summarily, or by the forfeiture of, a penalty.Burn's Just. Misdemeanor.


8/27

4. Crimes are defined and punished by statutes andby the common law. Most common law offences are aswell known, and as precisely ascertained, as those whichare defined by statutes; yet, from the difficulty of exactlydefining and describing every act which ought to be

punished, the vital and preserving principle has beenadopted, that all immoral acts which tend to theprejudice of the community are punishable by courtsof justice. 2 Swift's Dig.

5. Crimes are mala in se, or bad in themselves; and theseinclude. all offences against the moral law; or they aremala prohibita, bad because prohibited, as being againstsound policy; which, unless prohibited, would be innocentor indifferent. BOUVIERS LAW DICTIONARY 1856 EDITION

In general civil law is for the private redress of a wrong and acriminal law is for the public redress of a morally wrong act. Civil lawcan also dictate things like how an office is to be perform in thedischarge of its duties. Sometimes acting in office and outside the lawis a crime. Criminal and civil law pervade every aspect of law. Everyviolation of a law, common or statutory, must either be redressed by acriminal action or a civil action when suing for a judicial remedy [someremedies are administrative and do not actually involve the judicialbranch of the government]. That means every time parties are in frontof a judge they are involved in an action.

A criminal action is further defined in the Penal Code (HereinafterP.C.) per section 31 of the Code of Civil Procedure (hereinafter C.C.P.).

Penal Code683. The proceeding by which a party charged with apublic offense is accused and brought to trial andpunishment, is known as a criminal action.

Penal Code15. A crime or public offense is an act committed or omitted inviolation of a law forbidding or commanding it, and to which isannexed, upon conviction, either of the following punishments:

1. Death;2. Imprisonment;3. Fine;4. Removal from office; or,


9/27

5. Disqualification to hold and enjoy any office of honor, trust,or profit in this State.

Penal Code16. Crimes and public offenses include:1. Felonies;2. Misdemeanors; and3. Infractions.

P.C. section 15 states that crimes are punished. Let us lookat Bouviers definition of punishment.

Punishment:2. The right of society to punish, isderived by Becoaria, Mably, and some others, from a

supposed agreement which the persons who composes theprimitive societies entered into, in order to keep order and,indeed, the very existence of the state. According toothers, it is the interest and duty of man to live in society;to defend this right, society may exert this principle inorder to support itself, and this it may do, whenever theacts punishable would en-danger the safety of the whole.And Bentham is of opinion that the foundation of this rightis laid in public utility or necessity. Delinquents are publicenemies, and they must be disarmed and prevented fromdoing evil, or society must be destroyed. But, if the social

compact has ever existed, says Livingston, its end musthave been the preservation of the natural rights of themembers and, therefore the effects of this fiction are thesame with those of the theory which takes abstract justiceas the foundation of the right to punish; for, this justice, ifwell considered, is that which assures to each member ofthe state, the free exercise of his rights. And if it should befound that utility, the last source from which the right topunish is derived, is so intimately united to justice that it isinseparable from it in the practice of law, it will follow thatevery system founded on one of these principles must be

supported by the others.

Crimes are morally evil and it is the duty of the state to preventcrime and to offer justice to crimes that have been committed. It isnever the duty of the state to license a crime. That cannot be statedstrongly enough. A state does not license murder, battery, or rape. Wecan see from Bouviers Law dictionary that crimes are to be preventedby the state and that the state has a duty punish criminals and thwart


10/27

crime. It is part of the states inherent duty to provide its people withthe safety of law and order. Thus a state cannot ever lawfully license atrue crime.

Statutory crimes are listed in the California Penal Code. Did you

ever wonder why driving without a license is not listed n the PenalCode? It is listed in the Vehicle Code. Practicing law without a license isfound in the Business and Professions Code. Why are these things thatwe have been told our whole lives are crimes, not listed in the PenalCode? Because driving and practicing law are not crimes and thus thestate has tried to fool us into thinking that we need a license to dothese things lawfully.

Here is a list of crimes straight from the penal code. Notice how alicense to do these things generally does not exist. The only licensingscheme listed in the Penal Code is the licensing scheme for firearms.

The lottery is allowed to be done by the state, and so could belicensed. A license is a grant from the holder of a right to another. Thatis it. If the state has the right to firearms then I can license that rightout. If we already have the right, we do not need a license. If the statehas the sole right to drive motor vehicles on the roads, then the statecan license out the right to drive. The state however dos not own theroads, the people of the state do and the state hold the roads in trust.That is also because of the thoughts in error that the right to own agun is not an individual right. Just recently has the U.S. Supreme courtruled that the second amendment right to bear arms under the U.S.Constitution was in fact an individual right. Here is that list of real

crimes that generally one cannot be licensed to do.

TITLE 7. OF CRIMES AGAINST PUBLIC JUSTICE

CHAPTER 1. BRIBERY AND CORRUPTION 92-100CHAPTER 2. RESCUES 102CHAPTER 3. ESCAPES AND AIDING THEREIN 107-110CHAPTER 4. FORGING, STEALING, MUTILATING, AND FALSIFYING

JUDICIAL AND PUBLIC RECORDS AND DOCUMENTS 112-117

CHAPTER 5. PERJURY AND SUBORNATION OF PERJURY 118-131CHAPTER 6. FALSIFYING EVIDENCE, AND BRIBING, INFLUENCING,

INTIMIDATING OR THREATENING WITNESSES 132-141CHAPTER 7. OTHER OFFENSES AGAINST PUBLIC JUSTICE 142-181CHAPTER 8. CONSPIRACY 182-185CHAPTER 9. CRIMINAL PROFITEERING 186-186.8CHAPTER 10. MONEY LAUNDERING 186.9-186.10CHAPTER 10.5. FRAUD AND EMBEZZLEMENT: VICTIM RESTITUTION

186.11CHAPTER 11. STREET TERRORISM ENFORCEMENT AND PREVENTION ACT

186.20-186.33


11/27

TITLE 8. OF CRIMES AGAINST THE PERSON

CHAPTER 1. HOMICIDE 187-199CHAPTER 2. MAYHEM 203-206.1CHAPTER 3. KIDNAPPING 207-210CHAPTER 3.5. HOSTAGES 210.5

CHAPTER 4. ROBBERY 211-215CHAPTER 5. ATTEMPTS TO KILL 217.1-219.3CHAPTER 6. ASSAULTS WITH INTENT TO COMMIT FELONY, OTHER

THAN

ASSAULTS WITH INTENT TO MURDER 220-222CHAPTER 8. FALSE IMPRISONMENT 236-237CHAPTER 9. ASSAULT AND BATTERY 240-248

TITLE 9. OF CRIMES AGAINST THE PERSON INVOLVING SEXUALASSAULT, AND CRIMES AGAINST PUBLIC DECENCY AND GOODMORALS

CHAPTER 1. RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN, AND

SEDUCTION 261-269

CHAPTER 2. ABANDONMENT AND NEGLECT OF CHILDREN 270-273.75CHAPTER 2.5. SPOUSAL ABUSERS 273.8-273.88CHAPTER 4. CHILD ABDUCTION 277-280CHAPTER 5. BIGAMY, INCEST, AND THE CRIME AGAINST NATURE

281-289.6CHAPTER 5.5. SEX OFFENDERS 290-294CHAPTER 6. DNA AND FORENSIC IDENTIFICATION DATA BASE AND

DATA BANK ACT OF 1998

Article 1. Purpose and Administration 295-295.1Article 2. Offenders Subject to Sample Collection 296-

296.2Article 3. Data Base Applications 297Article 4. Collection and Forwarding of Samples 298-298.3Article 5. Expungement of Information 299Article 6. Limitations on Disclosure 299.5-299.7Article 7. Construction and Severability 300-300.3CHAPTER 7. OF CRIMES AGAINST RELIGION AND CONSCIENCE, AND

OTHER OFFENSES AGAINST GOOD MORALS 302-310.5CHAPTER 7.5. OBSCENE MATTER 311-312.7CHAPTER 7.6. HARMFUL MATTER 313-313.5CHAPTER 8. INDECENT EXPOSURE, OBSCENE EXHIBITIONS, AND

BAWDY AND OTHER DISORDERLY HOUSES 314-318.6CHAPTER 9. LOTTERIES 319-329

CHAPTER 10. GAMING 330-337zCHAPTER 10.5. HORSE RACING 337.1-337.9CHAPTER 11. PAWNBROKERS 343CHAPTER 12. OTHER INJURIES TO PERSONS 346-368

TITLE 10. OF CRIMES AGAINST THE PUBLIC HEALTH AND SAFETY

369a-402cTITLE 11. OF CRIMES AGAINST THE PUBLIC PEACE 403-420.1TITLE 11.5. CRIMINAL THREATS 422-422.4


12/27

TITLE 11.6. CIVIL RIGHTS

CHAPTER 1. DEFINITIONS 422.55-422.57CHAPTER 2. CRIMES AND PENALTIES 422.6-422.865CHAPTER 3. GENERAL PROVISIONS 422.88-422.93

TITLE 11.7. CALIFORNIA FREEDOM OF ACCESS TO CLINIC AND

CHURCH ENTRANCES ACT 423-423.6TITLE 12. OF CRIMES AGAINST THE REVENUE AND PROPERTY OF THIS

STATE 424-440TITLE 13. OF CRIMES AGAINST PROPERTY

CHAPTER 1. ARSON 450-457.1CHAPTER 2. BURGLARY 458-464CHAPTER 3. BURGLARIOUS AND LARCENOUS INSTRUMENTS AND DEADLY

WEAPONS 466-469CHAPTER 4. FORGERY AND COUNTERFEITING 470-483.5CHAPTER 5. LARCENY 484-502.9CHAPTER 6. EMBEZZLEMENT 503-515CHAPTER 7. EXTORTION 518-527

CHAPTER 8. FALSE PERSONATION AND CHEATS 528-539CHAPTER 10. CRIMES AGAINST INSURED PROPERTY AND INSURERS

548-551CHAPTER 12. UNLAWFUL INTERFERENCE WITH PROPERTYArticle 1. Trespassing or Loitering Near Posted Industrial

Property 552-555.5Article 2. Unlawfully Placing Signs on Public and Private

Property 556-556.4Article 3. Trespass on Property Belonging to the

University of California 558-558.1CHAPTER 12.5. CRIMES INVOLVING BAILMENTS 560-560.6CHAPTER 12.6. CRIMES INVOLVING BRANDED CONTAINERS,

CABINETS, OR OTHER DAIRY EQUIPMENT 565-566CHAPTER 12.7. UNLAWFUL SUBLEASING OF MOTOR VEHICLES 570-

574CHAPTER 14. FRAUDULENT ISSUE OF DOCUMENTS OF TITLE TO

MERCHANDISE 577-583CHAPTER 15. MALICIOUS INJURIES TO RAILROAD BRIDGES,

HIGHWAYS,

BRIDGES, AND TELEGRAPHS 587-593gTITLE 14. MALICIOUS MISCHIEF 594-625cTITLE 15. MISCELLANEOUS CRIMES

CHAPTER 1. SCHOOLS 626-626.11CHAPTER 1.1. ACCESS TO SCHOOL PREMISES 627-627.10CHAPTER 1.4. INTERCEPTION OF WIRE, ELECTRONIC DIGITAL

PAGER,OR ELECTRONIC CELLULAR TELEPHONE

COMMUNICATIONS 629.50-629.98CHAPTER 1.5. INVASION OF PRIVACY 630-638CHAPTER 2. OF OTHER AND MISCELLANEOUS OFFENSES 639-653.2CHAPTER 2.5. LOITERING FOR THE PURPOSE OF ENGAGING IN A

PROSTITUTION OFFENSE 653.20-653.28CHAPTER 3. IMMIGRATION MATTERS 653.55-653.61


13/27

CHAPTER 4. CRIMES COMMITTED WHILE IN CUSTODY IN

CORRECTIONAL FACILITIES 653.75

Police officers will not openly rape, murder, and steal to aid intheir pursuit of justice. However a police officer will speed, run stop

signs, and drive on the wrong side of the road to facilitate his pursuit ofa criminal. That is because the murder, rape, and stealing are crimes,whereas speeding, and running stop signs are not crimes.

Let us keep looking at what a crime is, and how a state does notlicense crime. Let us examine more closely how engaging in alicensable activity without a license is not a crime. The case of SchickV. The United States is a hallmark case which denies the right of jurytrial to many criminal proceedings that do not prosecute actualcrimes. That is to say that criminal actions does not mean toprosecute a crime. The Supreme Court essentially twisted the law

with this decision so if it reads absurdly written, well, it pretty much is.Schick is a United States Supreme Court case. Remember that federallaw and state law are different spheres of law, different bodies of law,so we must either make a bridge to the state law or simply use it asguidance. In this essay we will build the bridge to state law.

So small a penalty for violating a revenue statuteindicates only a petty offense. It is not one necessarilyinvolving any moral delinquency. The violation mayhave been the result of ignorance or

thoughtlessness, and must be classed with suchillegal acts as acting as an auctioneer or peddlerwithout a license, or making a deed without affixing theproper stamp. That by other sections of this statutemore serious offenses are described, and moregrave punishments provided, does not lift this oneto the dignity of a crime. Not infrequently, a singlestatute in its several sections provides for offenses ofdifferent grades, subject to different punishments and toprosecution in different ways. In some states, in the sameact are gathered all the various offenses against the

person, ranging from simple assault to murder, andimposing punishments, from a mere fine to death. Thisvery statute furnishes an illustration. By one clause, theknowingly selling of adulterated butter in any other thanthe prescribed form subjects the party convicted thereof toa fine of not more than $1,000 and imprisonment for notmore than two years. An officer of customs violatingcertain provisions of the act is declared guilty of a


14/27

misdemeanor, and subject to a fine of not less than onethousand dollars nor more than five thousand dollars andimprisonment for not less than six months nor more thanthree years. Obviously, these violations of certainprovisions of the statute must be classed among serious

criminal offenses, and can be prosecuted only byindictment, while the violations of the statute in the casesbefore us were prosecuted by information. The truth is, thenature of the offense and the amount of punishmentprescribed, rather than its place in the statutes, determinewhether it is to be classed among serious or petty offenses-- whether among crimes or misdemeanors. Clearly bothindicate that this particular violation of the statute is only apetty offense.

In such a case, there is no constitutional requirement of a jury. In the third clause of Section 2, Article 3, of theConstitution it is provided that "the trial of all crimes,except in cases of impeachment, shall be by jury," and inArticle VI of the Amendments, that,

"in all criminal prosecutions, the accused shall enjoy theright to a speedy and public trial by an impartial jury of thestate and district wherein the crime shall have beencommitted."

"A crime or misdemeanor, is an act committed or omittedin violation of a public law either forbidding or commandingit. This general definition comprehends both crimes andmisdemeanors, which, properly speaking, are meresynonymous terms, though in common usage the word'crimes' is made to denote such offenses as are of a deeper

and more atrocious dye; while smaller faults and omissionsof less consequence are comprised under the gentler nameof 'misdemeanors' only."

In the light of this definition, we can appreciate the actionof the convention which framed the Constitution. In thedraft of that instrument as reported by the


15/27

committee of five, the language was "the trial of allcriminal offenses . . . shall be by jury," but, byunanimous vote, it was amended so as to read "thetrial of all crimes." The significance of this changecannot be misunderstood. If the language had

remained "criminal offenses," it might have beencontended that it meant all offenses of a criminalnature, petty as well as serious; but when the changewas made from "criminal offenses" to "crimes," and madein the light of the popular understanding of the meaning ofthe word "crimes" as stated by Blackstone, it is obviousthat the intent was to exclude from the constitutionalrequirement of a jury the trial of petty criminal offenses.Schick v. United States, 195 U.S. 65 (1904)

It appears from Schick that many things that are prosecutedcriminally are not actual crimes. Oh dear. What a sly move theUnited States Supreme Court did there and California gobbled it up andincorporated it into its case law. However in California we secured to allthe right to a jury trial for all in every action. And the method forwaiving a jury trial is criminal proceedings is for just that, criminalproceedings and not the trial of all crimes. If a jury trial can be waivedin some criminal proceedings then the right must exist to be waived.

CALIFORNIA CONSTITUTION

ARTICLE 1 DECLARATION OF RIGHTS

SEC. 16. Trial by jury is an inviolate right and shallbe secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in acriminal cause by the consent of both parties expressed inopen court by the defendant and the defendant's counsel.In a civil cause a jury may be waived by the consent of theparties expressed as prescribed by statute.

In civil causes the jury shall consist of 12 persons or a

lesser number agreed on by the parties in open court. Incivil causes other than causes within the appellate jurisdiction of the court of appeal the Legislature mayprovide that the jury shall consist of eight persons or alesser number agreed on by the parties in open court.

In criminal actions in which a felony is charged, the juryshall consist of 12 persons. In criminal actions in which amisdemeanor is charged, the jury shall consist of 12


16/27

persons or a lesser number agreed on by the parties inopen court.

Notice that is California we gave the right to a trial to ALL[persons]. In California we did not give the right to a jury trial to the

trial of crimes or to some other type of proceeding as the FederalConstitution did. In California the right to a jury trial is given to allpersons and the type of trial simply helps define what type of jury trialmust be had r the procedure to waive your right!

The U.S Supreme Court in Schick ruled that the framers excludedpetty offenses from the right to a jury trial by securing a jury trialonly to prosecution of crimes. The court also ruled that a pettyoffense was not a crime. Remember that, a petty offense is not acrime however it is proceeded against criminally.

CRIMES AND PUBLIC OFFENSES

People in the state of California can only be punished forthe commission of Crime or public offense.

California Penal Code (My comments in brackets [ ] )Section 27.(a) The following persons are liable to punishment underthe laws of this state:(1) All persons who commit, in whole

or in part, any crime within this state.(2) All whocommit any offense without this state which, if committedwithin this state, would be larceny, carjacking, robbery,or embezzlement under the laws of this state [I notice all"offenses listed are in fact crimes], and bring the propertystolen or embezzled, or any part of it, or are found with it,or any part of it, within this state.(3) All who, being withoutthis state, cause or aid, advise or encourage, anotherperson to commit a crime within this state, and areafterwards found therein.(b) Perjury [I notice Perjury is a crime], in violation of

Section 118, is punishable also when committed outside ofCalifornia to the extent provided in Section 118.

PENAL CODE777 Every person is liable to punishment by thelaws of this State, for a public offense committed byhim therein, except where it is by law cognizableexclusively in the courts of the United States; and except


17/27

as otherwise provided by law the jurisdiction of everypublic offense is in any competent court within thejurisdictional territory of which it is committed.

GOVERNMENT CODE200 The State has the rights prescribed in this article overpersons within its limits, to be exercised in the cases and inthe manner provided by law.

GOVERNMENT CODE201 The State may punish for crime.

One federal court has ruled that in California crime and publicoffense are synonymous terms.

"In California 'a public offense' is synonymouswith 'a crime.' Cal.Penal Code 15. A crime includesboth felonies and misdemeanors. Cal.Penal Code 16. Apoliceman of a city or town is a peace officer. Cal.PenalCode 7, 817. Two of the arresting officers, Gough andDuncan were 'police officers for the City of Los Angeles.'The third officer present, Katayama, was a Special Agent ofthe United States Treasury Department. California PenalCode 337a makes it a crime for any person (1) to engage

in bookmaking, or (2) occupy any room with papers ordevice for the purpose of recording or registering any betsor purported bets on the result or purported result of anylot, chance or contingent event, or (3) hold money for anysuch bet, or (4) record or register any bet, or (6) offer oraccept any bets. This section applies by its terms to anyperson performing in any single instance any suchprohibited act."

287 F.2d 117

INFRACTIONS ARE NOT CRIMES

In California there is in law a thing called an infraction. Aninfraction is charged in court and the procedure used in court iscriminal procedure. An infraction carries no possible punishment of jailtime, and the right to a jury trial is non-existent. Typical charges thatare infractions include speeding, running stop signs, etc...


18/27

The legislature has tried to include infractions as crimes.Infractions are listed in section 16 of the penal code as a type of crimeor public offense. Unfortunately the legislature is wrong. The right to ajury trial for a criminal prosecution in California is found in our

Constitution and the constitution trumps ANY statute passed bylegislature. So the legislature tried to make something a crime that isnot a crime through legislative fiat and then deny a jury trial. We willsoon see what the courts thought of that.

One might make the argument that speeding is prohibited andnot allowed by anyone. Yet of course speeding is allowed for inemergencies. Also there is an abstract concept of law which placesspeeding in a regulatory scheme, and prohibitions withing a largerregulatory scheme are considered part of the regulatory scheme whichis civil in nature.

But can all of this be proved? We have seen the laws that saythat people can be punished for crime and for public offenses.There are no such laws naming infractions as something for which aperson may be punished for. So can it be proved that an infraction isnot a crime nor a public offence and therefore no lawful punishmentcan be inflicted for the commission of such an infraction? Yes it can beproved.

We start with the case of People V. Sava which states the caseplainly. People Vs. Sava is a California Appellate Court and is valid case

law until overruled by the California Supreme Court.

Further, infractions are not crimes and the ruleforbidding successive prosecutions of a defendant is notapplicable when an infraction is one of the offensesinvolved. (People v. Battle (1975) 50 Cal.App.3d Supp. 1[123 Cal.Rptr. 636].) fn. 1 [1b] Proceedings on infractionsare not attended by the same constitutional safeguards asthose attending felony or misdemeanor prosecutions. Thelimitation on an accused's right to jury trial of infractionshas withstood constitutional attack upon the rationale the

Legislature did not intend to classify infractions ascrimes. (See People v. Oppenheimer (1974) 42 Cal.App.3dSupp. 4 [116 Cal.Rptr. 795] and People v. Battle, supra,50 Cal.App.3d Supp. 1.)

People v. Sava (1987) 190 Cal.App.3d 935 , 235Cal.Rptr. 694


19/27

People V. Sava seems to state things pretty straight forward.Infractions are not crimes. This is very strong evidence that infractionsare in fact not crimes. We should explore this concept further howeverbecause we want to know exactly why infractions are not crimes and

also to see how sound the logic in the Sava court was. The Sava casedirects us to see People V Battle, so lets do that.

If the Legislature intended to treat infractions aspublic offenses and if the charging of a public offenseinvokes the right to trial by jury, sections 19c and 1042.5,which deny a jury to one who commits an infraction,conflict with section 689. However, the same (1968)Legislature enacted section 19c, the pertinent amendmentof section 16 and section 1042.5. Construing these

sections in accordance with the precepts laid down in In reKay, supra, we must conclude that it was not theintent of the Legislature to enact inconsistentstatutes and, further, that when it added the term"public offense" to section 16 it was not socategorizing infractions because if it did so, it wouldhave caused inconsistency between sections 19c and 689of the Penal Code.

The court in People v. Oppenheimer (1974) 42Cal.App.3d Supp. 4 [116 Cal.Rptr. 795], declaresthat an infraction is a petty offense. A defendant wasnot historically accorded the right to a jury in trials of pettyoffenses. Whether an infraction is characterized as apetty offense or a noncriminal offense, an appellatecourt in the circumstances of the present case should notbar prosecution for manslaughter by reason of an earlierplea of nolo contendere to an infraction. To do otherwisewould fly in the face of the legislative adjuration toconstrue statutory provisions "according to the fair import

of their terms, with a view to effect its objects and topromote justice." (Pen. Code, 4.)

Above we see that the court of People V. Battle relies onthe logic of People V. Oppenheimer. We now examine People V.Oppenheimer.

[3] Confining our inquiry then to the "purely


20/27

historical question" posed by People v. One 1941Chevrolet Coupe, supra, 37 Cal.2d at page 287, andapplying the English common law as it existed in 1850, it isclear that offenses of the same class as those nowclassified as infractions by the Vehicle Code were triable by

courts sitting without juries. Under this approach sections19c and 1042.5 of the Penal Code fully measure up to theconstitutional mark.

We will address the case of People V. People v. One 1941Chevrolet Coupe directly after our analysis of Oppenheimer. For now itis enough to say that there are no provisions in the CaliforniaConstitution for the trial of Cars. The term for a thing being tried is atrial in rem. The object is rem. To decide how to proceed in rem theCourt had to look at the common law. The court found that there wasno common law right to jury trials at common law for in rem

proceedings. There is language in our constriction for the trial of alland therefore it is wrong to apply the purely historical question ruleto the trial of a man, for the trial of that man is governed by article 1section 16 of the California Constitution which provides a security to a jury trial to all. What was the purely historical question of OneChevrolet? The question was is there a right to a jury trial for in remproceedings. If this seems fantastic, that objects can be sued welljust wait for the complete analysis of People V. People v. One 1941Chevrolet Coupe. Now back to more Oppenheimer.

Federal constitutional provisions relating to jury

trials fn. 5 are applicable to the states through the 14thAmendment. Duncan v. Louisiana (1968) 391 U.S. 145 [20L.Ed.2d 491, 88 S.Ct. 1444]. Duncan and other decisions ofthe Supreme Court preceding and following it, e.g., Callanv. Wilson (1888) 127 U.S. 540, 557 [32 L.Ed. 223, 227,228, 8 S.Ct. 1301]; Natal v. Louisiana (1891) 139 U.S. 621[35 L.Ed. 288, 11 S.Ct. 636]; Schick v. United States (1904)195 U.S. 65 [49 L.Ed. 99, 24 S.Ct. 826]; District ofColumbia v. Colts (1930) 282 U.S. 63 [75 L.Ed. 177, 51S.Ct. 52]; District of Columbia v. Clawans (1937) 300 U.S.617, 624 [81 L.Ed. 843, 846, 57 S.Ct. 660]; and Baldwin v.

New York (1970) 399 U.S. 66 [26 L.Ed.2d 437, 90 S.Ct.1886] all recognize that "petty" offenses do not fallwithin the constitutional requirement of jury trial.

Above is part of Oppenheimer that is easy to misunderstand.Realize that the Federal Constitution uses different words anddifferentconstructions. In the Constitution of the United States there are twosections that deal with the same subject matter, i.e. the provisions for


21/27

jury trials. This creates some conflict in the law, which the courtsmust decide. This is how the Schick court was able to stick there nosein there and decide that the conflict means that there are jury trialsonly for crimes. No such conflict exists in the California Constitution.

Oppenheimer is calling the offense a petty offense and thecourt even site Schick in its list of all federal cases (That is what allthose red U.S.s are.) that deny a jury trial to petty offenses. Thecourt fails to mention that Schick denied the right based on the logicthat a petty offense is not a crime.

Concerning the right to jury trial in California, our SupremeCourt has said (adopting an opinion written for the then DistrictCourt of Appeal): "The right to trial by jury guaranteed by theConstitution is the right as it existed at common law at the timethe Constitution was adopted [citation omitted]. The common

law at the time the Constitution was adopted includes not onlythe lex non scripta, but also the written statutes enacted byParliament [citation omitted]. The common law respecting trialby jury as it existed in 1850 is the rule of decision in this state[citation omitted]. Any act of the Legislature attempting toabridge the constitutional right is void [citation omitted]. It is theright to trial by jury as it existed at common law which ispreserved; and what that right is, is a purely historical question,a fact which is to be ascertained like any other social, political orlegal fact. The right is the historical right enjoyed at the time itwas guaranteed by the Constitution. It is necessary, therefore, to

ascertain what was the rule of the English common law upon thissubject in 1850." People v. One 1941 Chevrolet Coupe(1951) 37 Cal.2d 283, 286-287 [231 P.2d 832]. See also Exparte Wong You Ting (1895) 106 Cal. 296, 298-299 [39 P. 627];People v. Kelly (1928) 203 Cal. 128, 133 [263 P. 226].

Notice the Oppenheimer court has quoted the case concerningthe right to a trial for in rem cases and has disguised the case. This iswhy a diligence is required in the persuit of knowing the law and doingresearch. The Oppenheimer court is a fraud but you need to know howto prove that. You prove that by analyzing the cases this court relies

on. Oppenheimer is a superior court sitting as an appellate court. Suchan appellate court is not an appellate court in the traditional sense.Superior Courts sitting as appellate courts get put in pages numberedwith supp. This means that Oppenheimer is lowly court with verylittle authority. Battle was also such a court. Sava however wasdecided in a bona fide appellate court.

The following is from the case People v. One 1941 Chevrolet


22/27

Coupe , 37 Cal.2d 283. That is right, the Oppenheimer court used anon-jury trial of a car to justify denying a jury trial to a person, one ofthe all contemplated by the California Constitution at article one,section sixteen.

"The State instituted this proceeding by filing a'Notice of Seizure and Intended Forfeiture Proceedings'People v. One 1941 Chevrolet Coupe , 37 Cal.2d 283

A Notice of Seizure and Intended Forfeiture Proceedings is nota criminal pleading. There are only three types of criminal pleadingswithout considering administrative pleadings, and they are theindictment, the information, and the complaint. And remember that inour California Constitution the right to a jury trial was given to all andall probably means persons, not cars. [admittedly there are not anycases that have decided the issueuh oh]

"The State instituted this proceeding by filing a'Notice of Seizure and Intended ForfeitureProceedings' as provided by sections 11612 and 11613 ofthe Health and Safety Code. The notice alleged that theautomobile had been seized pursuant to section 11611 ofthat code and that it 'was used to unlawfully conceal,convey, carry or transport marijuana, and marijuana wasunlawfully in the possession of an occupant'1] "There can be no forfeiture of property without noticeto the owner and a hearing at which he can be heard,

except in a few cases of necessity, i. e., property kept inviolation of law which is incapable of lawful use. Where theproperty is what is sometimes termed innocent property,threatening no danger to the public welfare, the ownermust be afforded a fair opportunity to be heard. This is truewhether it be a common-law or judicial forfeiture (onewhich does not take effect until by a judgment the rights ofthe State have been established in a suit instituted for thatpurpose), or a statutory or legislative forfeiture (one wherethe forfeiture is effective on the commission of theoffense). In either case the law requires proceedings to be

instituted for the purpose of ascertaining the facts of theforfeiture. (People v. Broad, 216 Cal. 1, 3-7 [12 P.2d 941].)[2] A statutory or legislative forfeiture is in rem against theproperty itself. A common-law or judicial forfeiture is inpersonam against a defendant (37 C.J.S. 5, sec. 2). Theforfeiture prescribed by the Health and Safety Codeis in rem. (People v. Broad, 216 Cal. 1 [12 P.2d 941]; 37C.J.S. 5, sec 2.) The effect of such a forfeiture is to transfer


23/27

the title to the vehicle from the owner to the StateAtcommon law the trial of actions for forfeiture to the Crownof property used in violation of law was in the Court ofExchequer. 'The term "Common Law" often refers to thoseprinciples of English Law which were evolved in the

Common Law Courts, as opposed to the principles whichwere applied in the Courts of Chancery and Admiralty andthe Ecclesiastical Courts"... [T]he conclusions of our Supreme Court in the Moorecase were followed by the Supreme Court of the UnitedStates in the decision of the case, C.J. Hendry Co. v. Moore,318 U.S. 133 [63 S.Ct. 499, 87 L.Ed. 663]. In what Dean****inson fn. 5 has described as 'at once a monumentalpiece of erudition and a notable contribution to themeaning of the much mooted phrase "common lawremedy," ' fn. 6 Mr. Chief Justice Stone, [37 Cal.2d 290]

writing for the court, said (87 L.Ed. 666): 'Forfeiture to theCrown of the offending object, because it had been used inviolation of law, by a procedure in rem was a practicefamiliar not only to the English admiralty courts but to theCourt of Exchequer. The Exchequer gave such aremedy for the forfeiture of articles seized on landfor the violation of law. And, concurrently with theadmiralty, it entertained true proceedings in rem for theforfeiture of vessels for violations on navigable waters.Such suits in the Exchequer were begun on informationand were against the vessel or article to be condemned.

Under the provisions of many statutes the suit might bebrought by an informer qui tam, who was permitted toshare in the proceeds of the forfeited article; the judgmentwas of forfeiture and the forfeited article was ordered to besold. This was the established procedure certainly as earlyas the latter part of the seventeenth century...People v. One 1941 Chevrolet Coupe , 37 Cal.2d 283

It is noteworthy that all trials in the court of exchequer were civilin nature, even though suing on behalf of the crown. Please read below

to learn more about the Court of Exchequers role in dealing withcivil causes.

The case of In re FIFEthe court declares that there is no right to a jurytrial in Californiafor the trial of petty offenses, even if they carry jailtime. Today the rule of law is that one gets a jury trial for anything thatcarries a possibility of jail time.


24/27

McFARLAND, 3.This Is a petition for a writ of habeascorpus. The petitioner shows that she was convicted in thepolice court of the city of Los Angeles of the offense ofvagrancy; that she appealed to the superior court of thecounty of Los Angeles, where the judgment of the police

court was affirmed; and that she did not waive a jury in thesaid police court, and expressly made a demand in thesuperior court for a jury, and said demand was refused. Hercontention Is that, having been tried and convicted underthese circumstances, without the Intervention of a jury, herimprisonment is illegal, and that she should be restored toher liberty upon habeas corpus. In the recent case of Exparte Wong You Ting, 106 Cal. 296, 39 Pac. 627, wetook occasion to inquire somewhat fully into the right of a jury trial in criminal cases; and our conclusion there wasthat the legislature might provide for summary

proceedings without a jury In cases of such petty offensesas were thus provided for in certain early English statutesand In cases which are intrinsically of a similar nature anddegree as those mentioned In said statutes. Vagrancy is,we think, one of those offenses, and the legislature mightprovide by a general law for the summary trial without ajury of persons charged with said offense;

In re FIFE (Or. 99.) (Stroreme Court of California. Nov. 7, 1895.)Habeas CorpusJuby TkialReview.

The King's Court divided into other courte.

In William the Conqueror's reign, all business relatingto the royal revenue was taken away from the King's Court,and transacted in a court called The Court of Exchequer,which was formed after the model of a similar court inNormandy. The Grand Justiciary, and the Chancellor,(about whom I shall tell you presently,) who had the chargeof the King's great seal, and such of the King's barons anddignitaries of the Church as the King chose for the purpose,

attended. The Grand Justiciary presided. The Chief Justiceof the Queen's Bench, who at the present day "in somerespects represents the Grand Justiciary of ancient times,is still, from his office, Chancellor of the Exchequer when avacancy occurs.' This court was called the Exchequer, fromthe chequered cloth, resembling a chess board, whichcovered the table there, and on which, when certain of theKing's accounts were made up, the sums were marked and


25/27

scored by counters.

In King John's reign, another branch of business Connof was removed from the King's Court. By one of thearticles of Magna Charta it was declared that those injuriescalled common pleas, that is, pleas or complaints relativeto land, or to injuries merely civil, such as a debt owed byone man to another, should no longer follow the King. Thatis, they should not be tried in the King's Court, which atthat time followed the King from place to place in hisprogresses through the kingdom. From thenceforward suchcauses were tried at Westminster in a court called theCourt of Common Pleas, and from that time the King'sCourt was called the Court of King's Bench, because theKing used to sit there in person. It continued to be, and stillis, the superior court of law of importance in all matters of

Common and Criminal Law, and in many other matters.The three courts I have described, viz., The Court of

Exchequer, the Court of Common Pleas, and the Court ofKing's Bench, were, and are, the principal Courts of Justicein the realm for the administration of the common law.

Formerly, each of these courts had a separate jurisdiction. The King's Bench heard principally criminalcauses, and certain others, such as trespass accompaniedby violence, and also such as related to the controlling ofinferior courts; the Common Pleas was for trials of disputes

between subject, and the Exchequer decided only suchcauses as related to the collection of the revenue.

Lectures on the history of England, Volume 1; Page 115,By William Longman

Here is another quote from People v. One 1941 ChevroletCoupe , 37 Cal.2d 283 that shows the common law nature of thepower to sue in the court of Exchequer:

" 'It is noteworthy that Blackstone's Commentaries, moreread in America before the Revolution than any other lawbook, referred to the information in rem in the Court of [37Cal.2d 291] Exchequer as the procedure by whichforfeitures were inflicted for violation of Acts of Parliament.Bk. 3, p. 262. And Kent, in his Commentaries, pointed outthat "seizures, in England, for violation of the laws of


26/27

revenue, trade or navigation, were tried by a jury in theCourt of Exchequer, according to the course of thecommon law;People v. One 1941 Chevrolet Coupe , 37 Cal.2d 283

THERE IS NO PERSONAL JURISDICTION FOR ANYTICKET (PROMISE TO APPEAR)

Personal Jurisdiction is established over a defendant by one ofthree ways.

1) The defendant is arrested and brought before the court.2) The defendant is served a summons and the prof of that service isfiled with the court.3) The defendant voluntarily makes a "general appearance".

The above is standard law. The three ways of obtaining personaljurisdiction are the same in virtually every state. To argue lack ofpersonal jurisdiction one must never appear generally before makingthis argument. A general appearance is one which advances a defenceof the charges on their merrits, or arguing the facts presented by theplaintiff. Do not do that. You should argue that the court lacks PersonalJurisdiction as the very first thing you do in your case. While arguingthat the court lacks Personal Jurisdiction do nothing else. Do not argueabout the actual charge, just argue that the the court never obtainedjurisdiction over the defendant.

A ticket, a notice to appearr, and a promise to appear all havesomething in common. none were issued by a court, and none of themare a "summons". Thus giving you a ticket did not establish the courtsjurisdiction over you, and it can't for many reasons. The first reason isthat a cop issued the ticket and not a judicial officer. This means theticket cannot be a judicial summons. Also the "ticket" does not turninto a complaint until it is filed in court, thus when you were given theticket there was no court "case" that is could be granting jurisdctictionto, because for a court to have subject matter jurisdiction it must havea valid complaint filed with it. When the cop hands you a ticket thatticket has not yet been filed in court, and so cannot be used as a courtinstrument yet.

What we do with all of this is to appear in court, but appear"specially" and not "genereally" to contest personal jurisdiction. Thecourt has none. If theey overrule you, make exception of the point andargue it in appeal.


27/27

WHY ARE CRIMINAL LICENSING SCHEMESREPUGNANT TO OUR CONSTITUTION?

Although a franchise is a special privilege conferredby government, not every such privilege is a franchise,particularly where the governmental body conferring theprivilege is acting in its proprietary, rather than itsgovernmental capacity. A right or privilege that is essentialto the performance of the general function or purpose ofthe grantee, and that can be granted by the sovereigntyalone, is a franchise, whereas a right or privilege that is notessential to the general function or purpose of the grantee,and is of a nature that a private party might grant a likeright or privilege on his or her property, namely, a

temporary or revocable permission to occupy or use aportion of some public ground, is a license and not afranchise. A license is not regarded as property in theordinary sense and is not a contract, whereas a franchise isboth. Moreover, a franchise is assignable, whereas alicense, being a personal privilege, ordinarily is not. That aprivilege is revocable without cause tends to show that it isa license or permit rather than a franchise, since theconcept of franchise, while not requiring continuance inperpetuity, involves some degree of permanence andstability.

(California jurisprudence license) [Regrettably Ihave temporarily misplaced this citation]

Generally, a franchise agreement is granted by agovernmental agency to enable an entity to provide publicservices with some degree of permanence and stability,such as franchises for utilities. According to California caselaw, a franchise is a negotiated contract between a privateenterprise and a governmental entity for the long-termpossession of land. Franchise fees are paid ascompensation for the grant of a right of way, and areusually not considered a license or tax.

In-lieu Franchise Fees: Illegal Under Proposition 218By Jonathan M. Coupal

essay on law (WORD PAD)

Documents

Transcript of essay on law (WORD PAD)