THE COMMON LAW: THE NEW PATRIOT "RELIGION 1

When studying the law and principles of property in law school, a student quickly learns that the Norman conquest of England at the Battle of Hastings in 1066 is the primary foundation for this field of law. With this conquest, the feudal system of land tenures was crudely established. Under this system, there was no real ownership of land and occupation of real property was at the sufferance of the king. English society of that day and age when a bastard sat on the throne was governed more by brute and raw power than anything else, and peasants were little more than expendable slaves. The legal principles of real property as well as some of the other fields of law which we have today arise from the gradual and evolutionary erosion of feudalism. That which happened over a period of several hundred years was the slow development of freedom and rights to property extracted begrudgingly from absolute monarchs, who incidentally considered themselves as possessing a degree of divinity.

In fact, the real history of the development of English common law reveals a pitched battle of a people, both commoners as well as nobility, seeking and eventually securing freedoms from an absolutist system. King John practiced tyranny so oppressively it engendered a rebellion among the nobility. To remedy that oppression, he was forced to sign Magna Charta at the point of swords on the fields of Runnymede in 1215. However, this magnificent document, a fundamental charter of certain liberties, was periodically assaulted by many English monarchs in the ensuing centuries and each assault required subsequent generations to repel tyranny in an effort to regain freedom. From this history flows the common law. The common law was never a set of fixed and defined legal principles but was instead a body of law, frequently unwritten, which was in constant development.

To gain an understanding of the development of the common law, it would be very beneficial to read such works as Winston Churchill's History of the English Speaking Peoples, to be followed by a study of Sir Edward Coke's Institutes of the Laws of England and finally a review of Sir William Blackstone's Commentaries on the Laws of England. One of the major features of the common law was the rights and privileges of the monarch. Under the common law, the "King could do no wrong," which is a tyrannical and anti-freedom concept that today manifests itself in the principle of governmental immunity. Further, one principle of the common law was that an individual could defame the king and his ministers merely by stating something bad about them; the truth was not a defense.

In truth, the common law is just another institution which we have inherited from history, and we have not adopted the entirety of the common law, only parts of it. This is not to say that the common law has no meaning and should not be respected. To the contrary, several fields of the common law demonstrate magnificent legal principles developed over hundreds of years and they embody the wisdom of great and influential men. The common law became over time such a powerful institution that its influence manifests itself today. The common law should be studied for its timeless and beneficial legal principles and profound wisdom, but it should not be "lionized."

In fact, there are large parts of the common law which should be utterly rejected. As mentioned above, one principle of the common law was that the "King could do no wrong." This common law principle prevented any form of redress when someone was injured by the actions of the king or his ministers. Notwithstanding and contrary to the First Amendment's petition and redress clause, this ugly common law principle, which certainly does not emanate from the Bible (unless you are a devotee of the divine rights of kings), has been adopted by American courts so that today if you are injured by government, you have no right to sue absent a waiver of the divine rights of government. Further, if we followed the common law today. Rush Limbaugh and most other "right-wing" radio show hosts, including myself, would be in jail because we have been less than kind to "King Billary."

In the freedom movement today, the "common law" has been greatly romanticized and elevated to a religion. There are lots of "common law" advocates traveling around the country promoting the belief that the common law is premised upon the Bible, which consequently causes the attendees at such meetings to perceive the common law almost as a religion. It is not denied that the Bible's influence had an effect upon the common law. However, God condemns kings and commands that there be no king but Him. Yet, the common law was inextricably bound to a monarch. Those who claim a Biblical origin for the common law are very ignorant of its history.

Circulating today through patriot circles is a belief regarding "common law" names. The advocates of this position claim that "Christian" names arise from the common law and the proper designation of a "Christian" is as follows: "John Robert, Jones." But again, history reveals this to be nothing more than another patriot myth.

Pursuant to this argument, one need only look at history to find countless examples of Englishmen who wrote their names with a comma just before their "Christian" name- If this were true, then why do we have in the history books the following names: Ivo Taillefer (the first Norman knight killed at the Battle of Hastings); Henry Plantagenet; Thomas Becket; Richard Coeur de Lion; Stephen Langton; John Balliol; Robert Bruce; William Wallace; Sir Walter Raleigh; Sir Thomas More; Henry Tudor; Guy Fawkes; Christopher Columbus; Martin Luther; Oliver Cromwell; Sir William Blackstone; Edward Coke; Thomas Locke; Francis Bacon; Captain John Smith; John Roife (husband of Pocahontas); John Winthrop; William Penn; Robert Walpole; John Law; William Pitt; Edmund Burke; General Thomas Gage; General William Howe; Benedict Arnold; Ben Franklin; Roger Sherman; George Washington; Thomas Payne; Patrick Henry; Ethan Alien; Sam Adams; John Adams; Thomas Jefferson; and Robert E. Lee. Of course. Henry VIII's reign was during this common law period, yet the names of his many wives, Anne Boleyn, Jane Seymour, Catherine Howard, and Catherine Parr, have never been punctuated in the manner described by these "common law" advocates. In fact, the closest "example" of this is "Mary Stuart, Queen of Scots," but please notice that even this example doesn't match what the proponents of this argument claim; under their theory, her name should have been "Mary, Stuart, Queen of Scots." In short, those who argue in this fashion simply cannot point to anything in history which supports their position; undoubtedly, this argument is nothing more than a recent invention.

If these advocates were correct, they could point to some authoritative work who proves their point. However, they did not even consult the typical encyclopedia such as Compton's Interactive Encyclopedia which is on disc. Here is what this work states regarding the origins of surnames:

Origin of Given Names

In English-speaking countries, and in other places as well, persons normally have two or three names: William Howard Taft, for instance. The first is called the given name, the name bestowed soon after birth. The second, or middle name, can come from any number of sources such as the mother's family name. The last, or family, name is called the surname.

In very early times each person had only one name. This was the given name, which might be received at the time of birth or later. In the Bible the prophetess Hannah gave birth to a son in answer to her prayer and named him Samuel, meaning "God hath heard." Among other Biblical names Isaac means "laughter"; Isaiah means "salvation of Jehovah"; and Solomon means "prince of peace."

When society was organized in small tribal groups, this single given name was enough. As civilized communities grew, however, there were many people with the same name, and so people began to add some qualification. At first this was usually the name of the father. In the New Testament, for example, is found James the son of Zebedee. Another qualification was the name of a person's birthplace, as Joseph of Arimathea. These qualifications enabled people to distinguish one James or Joseph from another.

Among the Romans this practice developed into the use of family names, or surnames. In the early Roman Republic citizens had a forename and a second name, which was not a surname as it is known today. There were fewer than 20 forenames, among them Gaius, Marcus, Quintus, Publius, and Titus. These were used by one's closest associates and family members. The name that followed was hereditary in each group of families, or clan. Examples include Claudius, Fabius, Julius, Lucius, Tullius, and a few others. Because both types of names were restricted, some of the wealthier old families started using a hereditary name, called a cognomen. Thus Roman names eventually consisted of three parts, as in Marcus Tullius Cicero and Gaius Julius Caesar. Sometimes a famous Roman would earn what is today called a nickname: Publius Cornelius Scipio was called Africanus because of his successful war in Africa against Carthage.

How Family Names Arose in Western Europe

With the fall of the Roman Empire, surnames virtually disappeared. They did not appear again to any large extent until the late Middle Ages and did not develop in England until after the Norman Conquest in 1066. They started to become general only during the period of the Renaissance. In 1563 the Council of Trent speeded the adoption of surnames by establishing baptismal registers, which required the surname as well as the given name also called baptismal or Christian name.

Family names originated in a variety of ways. In England it became common to give surnames based on occupation. There were so many Johns, Roberts, and Thomases, with nothing to tell them apart, for example, that people began to refer to them as John the smith, Robert the miller, or Thomas the baker. Gradually these distinguishing names became fixed as family names, or surnames.

Other surnames that come from occupations include Carpenter, Taylor, Wright, Turner, dark (clerk). Cook, Carter, and Gardiner. There are so many surnames of Smith today because during the Middle Ages the name was used for all metalworkers, or smiters, which means "to beat." These included blacksmiths, who worked in iron; whitesmiths, who worked in tin; locksmiths, silversmiths, and goldsmiths.

Another common way of forming surnames came from the given, or Christian, name of the father. Such names are called patronymics, meaning "father names." Johnson is "John's son." Jones and Jennings are modified forms of the same name. Williams, Williamson, and Wilson all mean "the son of William."

In Spain the men of many cultured families also use the matronymic, or "mother name." The man's surname begins with the patronymic, which is then joined by the Spanish word y, meaning "and," to the matronymic. An example is the Spanish philosopher Jose Ortega y Gasset.

Names from Animals, Places, Appearances

Many surnames come from animals, largely because people in the Middle Ages used signs with pictures of animals instead of numbers to distinguish shops and inns. A person might become known as Lyon (lion) either because of his courage or because his shop sign carried the figure of a lion. Other familiar examples are Bull, Hart, Peacock, Fox, Badger, Lamb, and Stagg.

Other names are derived from where one lived or originated. Regions furnished such names as Scott, English, Irish, Ireland, and French. Topographic terms contributed Hill, Ford, Forest, Field, Lake, and Rivers. Some came from buildings such as Hall, House, Church, and Temple. From the directions came the names North, South, West, and East; and from the seasons. Winter and Summer.

Still other names came from an individual's appearance for example. Long, Short, and Little. The name Brown was probably given to a man because of his complexion or the color of his clothes. Others that perhaps were nicknames at first are Drinkwater, Doolittle, Lovejoy, and Shakespeare which really means "shake a spear." Some names came from familiar objects such as Foot, Starr, and Pepper.

Biblical characters and saints have furnished many surnames. From Elijah came Ellis and Elliot; from Matthew, Matthews and Mayo; from Andrew, Andrews and Anderson. Names of saints are common: Martin, Gregory, Lawrence, and Vincent.

Surnames in Other Languages

In most languages surnames are formed in much the same way as in English. Corresponding to the English suffix -son to denote "son of," the Scottish language uses the prefix Mac-, as in Macdonald. In Irish names the prefixes are 0'-, as in O'Brien, and Me- or Mac-; the Norman-French is Fitz-, (derived from the French fils), as in Fitzgerald;

and the Welsh Ap-, as in Apowen, which is now simply Bowen.

The Russian suffix -ovich also means "son." The Russian name Ivanovich, or son of Ivan (John), corresponds to the English Johnson. The Swedish suffix is -son; Danish and Norwegian, -sen. In Polish the suffix is -owski; in modem Greek, -opoulos. In China the surname appears first. In Mao Zedong (Tse-tung), for instance, Mao is the family name.

Modern Jewish Surnames

Because the Jewish people in Europe usually lived in compact, segregated communities, they did not need the identification of surnames. As they grew in number, however, various nations made laws compelling the Jews to adopt surnames. Austria led the way in 1787.

France followed in 1808, and Prussia in 1812. Some Jewish families took their surnames from personal names such as Jacobs, Levy, and Moses. Others formed surnames from place-names such as Hamburg, Frankfurt, and Speyer. The noted Rothschild family took its name from the red shield (rothen Schilde) used as a sign over their shop in Frankfurt am Main (see Rothschild Family).

Many Jewish families took poetical or colorful names such as Rosenberg (rose mountain), Gluckstein (luck stone), Rubenstein (ruby), and Goldenkranz (golden wreath). Animal names were also popular for example, Adier (eagle) and Hirsch (deer).

Middle and Hyphenated Names

A middle name, or the initial used for it, helps further to identify a person. The custom is relatively recent. The first president of the United States to use a middle name was John Quincy Adams.

Hyphenated names, such as James Foster-Lynch, usually perpetuate the surname (Foster) of some earlier branch of the family. They are more common in Europe than in the United States.

In Great Britain members of the peerage, or nobility, use only surnames as signatures. Lord Curzon and Viscount Montgomery are examples. Members of royalty sign only their given names. The reigning monarch adds the accession number such as

Elizabeth II. On state papers the signature includes the Latin word for queen as the official title: Elizabeth II Regina.

In both Britain and the United States, a person may change to any desired surname. Usually the person applies to a court of law for the change and then publishes it officially. The change may be made, however, through the use of common law by simply making the change and using the new name.

After marriage many women use the surnames of their husbands, though most artists and professional women go by their own names. People in the theater and in the arts often assume a "stage name" that they think more attractive or attention-getting than their own. Thus Frances Gumm became Judy Garland. To hide their identity, some writers adopt a pseudonym, Greek for "false name." The real name of the short-story writer 0. Henry was William S. Porter.

Style and Meaning in Given Names

Styles change in given names just as they do in clothing. In the 17th century, for example, some of the more learned people gave their children names that were pure Latin, or closely related, such as Primus for the first born. Among the children born on the Mayflower was Peregrine White, born in Plymouth harbor from the Latin peregrina (alien).

Most given names in Europe and in the United States have come down through the Christian church for example, John and Mary. Even such ancient Greek names as George and Dorothy and such Roman names as Martin and Anthony were preserved as names of saints and church leaders.

Many families continue given names from one generation to another. When a son is given the exact name of his father, the son becomes a junior; for example, Edward Scott Ross, Jr. When he, in turn, so names his son, the son's name is Edward Scott Ross III.

The popularity of certain names tends to run in cycles. Renewed popularity often arises from the name of a prominent figure. Naming a child for such a person tends to date the child in later years.

Many of the most common names originally had specific meanings. As in surnames, some have come from occupations, places, and personal characteristics. Others, many of Greek origin, have meanings less easy to discern. George, for example, means "earth-worker" (farmer); Theodore and Dorothy, "gift of God"; Philip, "lover of horses"; Stephen, "crown"; Alexander, "defending men"; and Margaret, "pearl."

Place-names and Trade Names

In contrast to the relatively simple development of personal names, the origin of place-names is often a mystery. For every obvious place-name such as France, named after the Teutonic tribe of Franks there are hundreds that scholars are still trying to trace to their roots. The meaning of the name Chicago, for instance, is disputed "place of the skunk," "place of the wild onion," or just the Indian word for "great" or "powerful" are some of the possibilities.

The United States has some of the most poetic, simple, extravagant, and amusing place-names in the world. Many of them, such as New York, are merely adaptations of names in the Old World. Others for example, Pennsylvania (Penn's woods) were coined. Many, such as Denver, honor the surname of a pioneer. Some express longing and determination, such as New Hope. Others commemorate Biblical towns for instance, Berea and Nazareth.

Just as diverse are the trade names or trademarks invented by manufacturers to distinguish their products. Copyrights protect these names, but some trade names lose their individuality by common usage (see Trademark).

Thus this theory completely fails to manifest itself within a common encyclopedia.

Did these proponents even consult authoritative works written by those who have studied this point in great detail? The following article recounts the history of surnames and is just simply pulled off a web page at "www.infokey.com/hon/origin.htm" :

Generally, it is agreed and conceded that the organization of the surname, as we know it today, can be ascribed to the Norman race about 1120. The inspiration for this monumental event was not a whimsical cultural or spiritual happening, is was an economic necessity. And if you're going to consider "surnames" THIS IS WHERE IT ALL BEGAN throughout most of Europe. This is not an attempt to justify, excuse, criticize, praise or condemn the Norman race. It is a study of surname origins.

The Normans were primarily of Viking origin, descended from Duke Rollo and his Viking pirates, Rollo being a one time Jarl or Earl of Orkney who had been kicked out of northern Norway by the King. Rollo landed in northern France and claimed a chunk. From the mid 10th century, this new and ambitious race ravaged all Europe down to the tip of Sicily, quickly, thoroughly and effectively, despite (or because of) having been converted to Christianity. The powerful land hungry Normans spread themselves thinly but with great determination and ruthlessness. This was a feudal society. Family possessions, land acquisitions, required and acquired an urgently needed identity tag for posterity, a little more sophisticated than Tyson the Terrible, an actual Norman name of great renown, as we shall see. Heritable family ownership and dynasty continuity was paramount, and became the prime motivation for the surname, a tag which followed its own set of crude rules from its inception, and the protocols changed, became more refined, adapted on the fly. These emerging social, quasi legal rules were vital to domain ownership in this exploding feudal empire.

The Normans started seeding the British Isles about 1002, way before the Battle of Hastings, but the Anglo records are scanty. They're busy justifying a rather ordinary Saxon race with it's chronicles. A much more comfortable, albeit wimpy ancestry. Norman chronicles reveal much more. The islands to the north had already been devastated by the invading ripples of Danish and Norwegian Vikings who now held much of the land, particularly in the north of England. The Orkneys, Hebrides and the Isle of Man which had been well settled by the Vikings. Weak Saxon kings had found it more convenient to pay bounties and to demand hostages from the Viking marauders, buying short lived peace for the islands. But King Cnut was smart, in his own way. He also had Denmark and Norway to look after, and the Swedes were pounding on his back door. This King of Denmark and Norway left government in England to the Saxon Witan, the ruling body, suitably seeded with Danish Earls from the north. He milked the Saxons with kindness, and left them and the Witan, more or less, to their own devices, but very, very poor.

Now, the Normans of mainland France also cast their beady eyes on this island paradise so full of promise, an island base often envied and sullied by the Vikings. But, not wanting a direct confrontation with Cnut, a fellow Viking, they bided their time, and infiltrated with friendly implants. The surnaming system was already under way in Normandy. For instance, Robert Guiscard, the Norman who had conquered practically all of Italy, used the simple surname of Guiscard in 1045, this in addition to all his many other later titles, including Duke of Sicily. Other Norman houses followed suit in this simple identification of their patrimony, and though the prefix "de" frequently preceded the locative domain name, it would be eventually and attritionally be dropped as clumsy by most families. Some few even retained it until the 14th and 15th centuries but mostly for affectation and distinction. Some just blended the 'de' or 'd" into the surname, as in Defoe.

The table was set for the Norman invasion of England. The justifications, sometimes hotly argued, are not as important to surnames as the fact of it. One must wonder whether the Battle of Hastings was just a formality, a showcase of power. The Pope, recently having been saved from almost extinction by Norman Robert Guiscard in Rome, heartily favored a re-statement of the extension of the Holy Roman Empire northward and gave Duke William his blessing, and his papal ring. The Pope owed the Normans one.

The compact relationship between the Normans to the north and the Normans to the south in Italy has never really been fully explored. We do know that Duke William made several visits to Rome. Whether he met Guiscard, this dynamic Lord of all southern Italy, whose status was almost equal to that of Duke William, is not known but all signs point to a very close and friendly liaison. Guiscard actively recruited Barons from the north with very generous offers of land to help him control southern Italy and individual family relationships were strong. Amongst others, Roger Bigod's brother went south with the Riddels to Apulia and fought alongside Guiscard. Another Norman, Ansold de Maule of the Vexin, the seignor of Maul outside Paris and a rich Parisian magnate, also fought with Guiscard in Greece in 1081, possibly along with his two brothers, Theobald and William. The close relationship continued when Prince Tarentum ( Guiscard's son, known as Mark Bohemond in the 1st Crusade) left his nephew Tancred in charge of Jeruselam, in 1100, under King Baldwin. Trancred, in turn, delegated command of Jerusalem to Bigod d'lge, nephew of Roger Bigod, the great northern Earl who was at the Conquest and received grants of 123 lordships in Essex and whose descendants played such a prominent role in the later Magna Carta at Runnemede. Similarly, some of the knights at the Conquest undoubtedly moved up from Italy to seize the opportunity for the land grab in England during or after the Conquest at Hastings although it must be admitted that Guiscard was creating lots of opportunities to the south.

Anyway, the presence of Innocent's papal banner at Hastings must have given King Harold a partial seizure. There can be no other excuse for he and his brother's inept and apathetic generalship at Hastings. Claims that he was surprised are nonsense; he was simply out maneuvered, probably by Norman treachery. He'd been waiting on the south coast through the long hot summer.

The timing of the invasion was impeccable. The long summer defense of the south coast by the shire fyrd (militia), was such that they had to depart their defensive positions to return to reap their autumn harvest. Strangely, the Norman monks of Fecamp had been parked on the cliffs near Hastings for some time. Nobody seemed to notice them. And significantly, Harold was otherwise preoccupied in a major action to the north at Stamford Bridge. Whether there was any grand Viking scheme, was anybody's guess. Handshakes are not usually recorded in history.

In essence, the Normans took over from Cnut, and the later King Edward the Confessor, himself half Norman, was a 26 year product of the Norman court at Rouen, carefully schooled in the Norman culture (son of Emma daughter of Duke Richard 1st Duke of Normandy). In the overall scheme of things, in the post-Conquest period, this intrusion left the Normans with almost as big an empire as the Romans 1000 years before, not controlled by insular, non fraternizing legions of well trained and disciplined warriors and walled cities, but by a system of 'hands on' feudal domain ownership, and, since King Malcolm Canmore of Scotland finally declared himself to be Duke William the Conqueror's man in 1072 after the Duke had ravaged as far north as the Forth, the Norman empire would stretch from the Orkneys to the tip of Sicily, later to Greece and Jerusalem.

This explosive Norman race, little more than a century old, was very unlike Cnut, who had just milked the land, and whose head was administratively elsewhere. The Normans, on the other hand, jealously ensured clear title and occupation of all it's conquered feudal domains. It found no joy in sharing government with the reigning Saxon Witan as Cnut did. Hence, the urgency of surnames, and hereditary entitlement of domains. This particular phase of history found the Saxon influence considerably diminished, virtually landless, and many returned to the land as agricultural slaves, or camped around the walls of the great Norman castles for protection, small services and trade, and survival. The government and ownership of domains was, for all intents and purposes, Norman. The Witan was in abeyance, gone forever. In 1172, the same Norman conquest and ownership would also be so of Ireland when Strongbow, the Earl of Pemroke engineered the occupation of Leinster for Henry II. The seeding of lowland Scotland followed the same pre-Conquest Norman pattern. It would be 150 years after the Conquest before England would experience its first resident Norman King, the unfortunate King John, who lost his castle home and his rule over Normandy to the French and departed to England. So, during this crucial period which coincided with surname development, the Norman influence on surnames, ownership and title in Britain and throughout Europe (by 1072 they'd also beaten up the Fresians, the Germans (Emperor Otto of Germany was a nephew of the Norman King John in 1215) and even their friends and kin the Flemings) and surname became an organizational necessity in an emerging world of domain possessions, posterities and their hard fought physical and legal entitlements.

History then pursued its complex course. The Anglo/French rivalry still predominated. The Plantagenets took over from the Angevins and subsequent Kings of England gradually faded their Norman identity. After victories at Agincourt and Brecy the memory of Norman heritage gradually became misty, more proudly anglicized, an insular island outpost of independence. Edward III became King of France by marriage but ruled from his base in England. There was a growing compulsion in England to find a past less connected with their deadly adversaries across the Channel, the French, even though France frequently became a refuge for royalty in trouble. The legends of domestic history now came to the fore, as England sought its own historic heroes. King Arthur burst out of the closet of knightly chivalry in his shining armour, but strangely, a Briton not a Saxon. The Order of the Garter regained the dignity of knighthood and became the shining image of chivalry and honor. Henry VII even named his first born, Arthur, supporting his claimed relationship to this legendary ancestor. Mallory in Newgate prison, wove even more fantastic tales of Arthur's castles and his exploits in Mort d'Arthur, one of the first printed books that became a best seller. And Ireland dug up its own hero, Niall of the Nine Hostages with far more historic justification. Scotland adopted Kenneth MacAlpine. Then came the empire builders, incited by Elizabeth's Spanish Armada victory, and the outreach to the world and great riches. But England found its own inner turmoil. The monarchy lost it's grip, and Cromwell became Lord Protector and took over in the name of the people. Recovering, the Crown became Dutch, then German, and with Queen Victoria, reached its heyday. Meanwhile, the great adventure to the colonies, freedom from tyranny and search for opportunity, began to take shape.

For most surname research we are "indebted" to the many overly simplistic books written in the 19th century when the British class society reached its zenith. Even some of the Scottish chiefs abandoned their castles and built town residences in London, joining the galas and festivities of the worldly rich and famous. This was an era of great pomp and prestige. Britannia ruled the waves. The class society prevailed, and was pursued to almost absurd and ridiculous extremes. The search for surname identity followed class lines which perpetuated the establishment, the aristocracy, rank and position. Commoners were Saxons and Boozers, literally, which, of course, the latter surname had nothing to do with the Norman name Beuzie. Not wishing to follow the example of France, Britain almost idolized the Victorian monarchy, and wars were fought valiantly on her behalf, even, some say, WWI, long after she was dead. Meanwhile, the German aristocracy, the Russian, Hungarian, Spanish and Polish monarchies were a network of royal intermarriage. Even Italy, hitherto a conglomerate of city states, doges and nations, became unified under one King around 1870. France was an island republic enjoying a less stratified, but bloodied democratic administration after the revolution along with her very distant neighbor, the United States of America.

In this European environment, then, small wonder that authors and researchers of surname origins set out to be self serving and Saxon. It was difficult to explain that the Duke of Norfolk might have the surname Howard, along with his chauffeur in the same car and no discernible relationship at all. Not only difficult to explain, because probably both had a common Norman heritage from D'Acres, they didn't even look alike, mostly because observers preferred the differences rather than the similarities. So, except for the aristocracy and the titled, many of whom ironically claimed 800 year Norman pedigrees, surnames were more or less rationalized as a random gift to the commoner, a coincidence, an assumption, or a wild misinterpretation of some ancient ritualistic activity, many of which were explained with some very imaginative creations. The major anomaly of course, was the aristocracy's great delight in proving a Norman heritage.

It was more important during this Victorian period to keep the rank and file guessing, or to be misleading, than to examine historic reasons for surname development, whether they be racial, demographic, linguistic, economic or social. The upper class, and anyone who aspired thereto, needed to distance themselves from the cannon fodder. The playing fields of Eton and Harrow were not very level. They were tilted in favor of the ennobled, and the wannabees, whoever they were, and. Lord knows, there are a lot of us. Additional to the class thing, other factors entered into the algorithm of surname analysis and research. National psyche played a big role. Continuing this denial of early Norman influence, what right minded commoner Brit would be proud to have a surname in England that was anything but WASP, Scot or Irish in origin. After 800 years feuding with those dastardly Frenchman across the Channel, including a 'hundred year war', who wanted to have a surname which could be remotely considered as being of Norman origin. Yet the best assumption is that so many are.

For instance, the surname Cartwright. On the surface, this name seems to be as basic Anglo trade-type-person as you could get. Yet at least two, possibly up to seven of the invaders of Britain in 1066 and later, were Norman nobles of the house of Carteret, Lords of Carteret in Normandy. Read it quickly, and it's not very far away, even now. Despite the fact that, then, it was probably pronounced Carterai. On paper, on a deed or charter, however, it could be read as Cartwright, or very close thereto. Coming full circle, descendants of early Boston settlers of the name around the turn of this century still pronounced the name Carteret, and some still do. What goes around comes around. From the ridiculous to the sublime, we have the name Twopenny, and lots of other pennies, including Moneypenny. Twopenny was ascribed to a trade name for a money changer, rather than the Norman Tupigne, and so also Magnapeigne, Norman surnames which settled in England and Scotland. And who could associate Taylor as a big Norman name, a hero at Hastings, Taillefer, instead of the obvious Saxon tradesperson? While a Norman origin is arguable, up to this point in time the Norman side of the argument has not been fully presented because of the fixation on a need for a Saxon origin, somehow remotely connected by distant mind-set to "King Arthur?", a person who receives scant mention in the Saxon Chronicle, (not that this many versioned document can be commended for its impeccable accuracy) and who found fame with early historian Geoffrey of Monmouth, and the Welsh Triads, legends of the Welsh race.

Unthinkable that a commoner name such as Cartwright or Carter could be associated with Norman nobility. Perish the thought. It was obviously a trade name, and Saxon to boot. However, if it was a trade name there are a few arguments "au contrair". We are reasonably agreed that surnames took shape progressively between 1020 and 1300. In England, trade occupations such as carters and cartwrights, were largely associated with the delivery of stone and other materials for the erection of Norman castles during that period. These castles were being demolished almost as fast as they were erected. This was by far the biggest 'industry' of the time if we remove agriculture and ship building. Wales is known for the highest saturation of castles (and their ruins) per square mile in the world. And the re-construction exercise provided the Normans with advanced architectural skills, in a big hurry. These many minor Saxon entrepreneurs, carters, etc., were mostly one man, one ox or, (unusually) horse operators, and generally landless, usually penniless, little above a slave. The Saxons of this time had a long way to go before any real recovery of lands was affected. Taxation caused a need for surname identification, but land rights, fishing rights, and their produce were much more tangible as taxable assets to the King. Taxation on services was much more complex and entrepreneurial, and an administrative problem which crossed many boundaries. The tax collector had not yet learned to effectively deal with the complexities of profit and loss. The Doomsday Book of 1086, the prime basis for taxation, was solely domain oriented and very focused on which Norman (90%) noble held English lands and other rights other than the King himself, or the Church.

Other goods being hauled by carters (under escort) at the time were the luxuries demanded by the wealthy Norman settlers, thus creating a new society in London, the importer/businessman, many of them Jewish, people who would scour the world for anything from spices to swords, tapestries to fexcotic wines, furnishings for the fine new Norman domains and arms for their personnel. Some say this expanding trade was the real inspiration for the first Crusade, largely a Norman effort. It is most likely that most of these 'carting' operators in this distribution network throughout England were still on a 'font' (first) name basis, and also most likely for them to have been lost in history as a genealogical chain. The larger businesses of haulage contractors did not arrive until centuries later. Perhaps, the only exception might be that when a cartage operator was brought before the courts, he might be described by his trade, but this was not usually the custom, since a trade was a poor identification, easily forged. In the absence of a surname, far better to describe the person as being from a town or village, but this identification would most usually only be used for court purposes. It would not have any relationship to a domain name, a jealously guarded entitlement of the Norman settler and his blood line, and any unauthorized use of that name may diminish his entitlement, both to himself and his successors, and result in putting the offender to the gallows. And in 1170, according to the Justicair of England, 'every little knight in England had his seal" which protected those domain rights. See Heraldry Today, this web site, and back page.

In reality, it is difficult to accept the simplistic explanation that services or trades played a very important role in the creation of surnames, if surnames went hand in glove with domain ownership for the King's taxation purposes. Of course, we cannot discount the later copy-cat evolution of surnames as a social custom but the acid test at this time was ownership of land, largely Norman, including a sizable contingent of Breton, Flemish and French. The very few nominal Saxons who retained their lands, usually had a strong Viking or Danish heritage, and had become allied to the Norman way of life in one way or another.

However, it should be remembered the seeding of England by Normans since the year 1000 could give many records a distortion by describing Doomsday(1086) holdings as being held by the 'the pre-Conquest holder" and actually still be Norman, or even Danish, rather than Saxon. But some of this carefully planned, what is now believed to be extensive pre-Conquest Norman recruitment backfired. For instance, before the Conquest, Edward the Confessor recruited Gilbert Tesson(Tyson) (note the use of the pre-Conquest family surname) one of the most powerful Barons of Normandy, and offered him the great barony of Ainwick in northern England which he accepted and brought with him many knights. It may be suspected that this was King Edward's method of neutralizing the influence of the two northern Earls, Edwin and Morcar. Ironically, by the time Hastings rolled around, Gilbert had switched allegiances, and fought alongside King Harold and his Saxons. He, Gilbert, and many of his knights were killed by his fellow Normans. This, however, did not prevent Gilbert's son William from later becoming the Lord of Ainwick and Malton, such was the power of this family who were distant kin of Duke William. Meanwhile, in Normandy, the head of the family, Ralph Tesson, aging scion of the family, which is said to have at one time held l/3rd of the Duchy of Normandy, was represented at Hastings by his son Ralph Tesson n, with his large company of knights, and the latter may not have survived the battle either. Brother against brother. His, Ralph Tesson's, considerable English domains in York, Lincoln and Nottingham granted by Duke William, eventually went to Ralph Tesson's young grandson, Gilbert, through his son, Ralph Tesson II. His grandson became known as Ralph Tesson III despite whatever surname he had used in the meantime.

Here we find the beginning of a crude Norman surnaming protocol. This protocol, by a quantum space/time leap, would be adopted by upper class North Americans in the 19th century. The immediate descendent was never allowed to use the scion's surname during his life time. This might jeopardize the old man's rights to his crown jewels and estates. So, Ralph Tesson must have been alive at the Conquest and shortly thereafter, but he must have been a very old man. His son added the numeric II. The grandson, the III. All with the continuity of the same surname but distinguishable one from another. This was a far better procedure than the Fitz protocol which we will discuss later, and which was also used by some Norman families of the time. The Normans even introduced the Sr. and Jr. suffix to distinguish father and son but it was not popular.

Many have questioned the disproportionate distribution of surnames. So how, you might ask, and why, did there get to be so many Carters or Cartwrights in this present day world of ours? Why shouldn't the Plunks, and many other 'one-off surnames' be right up there with them? Why the disproportionate representation? And this is the 64K question everybody wants to avoid. We can call it inexplicable, accidental human evolution, and leave it at that. In the interests of the equality of the human race, and the complete anonymity of humanity, perhaps we should leave it right there. On the other hand, the differentials might be important to our genetic composition. Theoretically, one person living at the time of the Conquest, over thirty generations, could produce millions of descendants of the same surname and, although we are not suggesting this happened in any ordered fashion, the possibility exists. Robert the Bruce of Scotland (Norman heritage ) was a good example of the latter. He is said to have had 28 children on the right side of the blanket, as they say, and an equal number 'outside the blanket'. His descendants are said to number over two million but, obviously, not necessarily all of the surname Bruce.

On the other hand, it is equally preposterous to claim a single source origin for all surnames. Even O'God, (maybe Irish) George Bums, changed his Jewish name to Bums. But let's not throw out the baby with the bathwater with this and other glaring, well publicized examples. Two of the first identifiable relics of surname association was the family seal (the knight's legal bank card) and the Coat of Arms. The latter was recorded for posterity much more than the former. For the sake of simplicity, let's consider the surviving Coat of Arms for the family name Stapleton, for instance, a reasonably common surname which reveals over 30 Coat of Arms registered to different people of that surname, different branches of the family name throughout history. All but two carry the main theme device, a silver field charged with a black lion rampant. This 800 year historical time span of the surname records would have been a huge demographic phenomena of random coincidence if purely accidental. Foreign intruders into the surname over this 800 year period would surely have been expected to have a been strongly represented by "foreigners". Burns-like renegades who changed their name to Stapleton. So let's consider this surname Stapleton. Nowadays it seems like a very ordinary surname which thousands enjoy. It was big in the 14th and 15th centuries, Barons, Lords, knights, and the like, but all that's passed into history. Few remember, or care to. Nevertheless, maybe there is a much stronger argument for kinship within a family surname than we care to acknowledge.

As mentioned previously, modern research is proving we have more identifiable differentials in the genetic blueprint in general than we have similarities, or equalities. In fact, one of the prime objectives in genetic research and the DNA is to isolate these differences. The larger question is "Are these differentials governed more closely with "family name" relationships, history and origins than we care to admit?". Even in the 19th century, one author, perhaps more of a maverick than the rest, did become curious about the obvious population differences in surnames. He ran a check with the Public Records Office and found the top fifty most populous surnames. He found that from the earliest records, a century before, these surnames had a growth rate that far exceeded the average for the population growth for the whole country. This growth rate was carried consistently from year to year by family surnames. The narrow time frame, the number in the sample, mostly eliminated the possibility of the assumption of a surname for any particular or peculiar reason.

How do we explain the gross variations in the populations of different surnames? Leaving Smith and Schmidt out of the discussion for a moment, other surnames have growth rates far in excess of national averages. Incidentally, even the Smiths, who have been clocked with a 38% annual growth rate, doesn't make sense. In those olden days the Fanner outnumbered the Smiths about ten to one. With apologies, what happened to those Farmer guys? Here was a trade name which bit the dust. Many other surnames die on the vine, and have been doing so for centuries, ever since surnames came into being. And there are other people who, when on vacation, open the hotel phone book in a compulsive search to find another of the same name. Or, we could close our eyes, chalk it down to accidental marital relationships, and leave it at that. Possibly we could suggest that there may be more to this genetic blueprint than meets the eye. Maybe it carries an innate compulsion to procreate which is a variable within each surname. Once we admit this, however, we get beyond the mere physical composition of the genetic blueprint, genetic codes and the DNA as a one dimensional flat profile. We now have to admit that the surname carries with it many more intangibles than the straight physical blueprint of the human body, and we open a can of worms which would not be socially acceptable, not even for a sly peek at this point in time. Perhaps, some time in the not too distant future, there'll no such thing as a generic drug, and that each will be tailor-made to one's own genetic line and eliminate many of the sometimes dangerous side effects of the generic prescription drug.

The "family name" commonality suggestion becomes almost imponderable. It deals with genetic survival rates baked into the genetic blueprint, and the impact of the environment. The plagues, the pox, cholera, and bunch of other deadlies, including the soldier's deadly enemy, dysentery, have hammered away at the human race. Pandemics from the first known big plague in Athens in 400 B.C, to the English historian Bede's reported plague of England about 440 A.D when he states "There were not enough living to bury the dead", to the Justinian plagues of the 542 which started in Constaninople and took 5 years to reach England in 547, killing fields all the way, to the 9th century devastation in England and Europe, and to the Black Death of 1348, the sweating disease of the early 1500's, the 1665 plague which devastated London, and thousands of other lesser ripples barely recorded in history, plagues which caused 1000 villages in the midlands of England to be ploughed over, and which have pruned and refined the human race. Lesser waves of the pestilences eroded perhaps many more of the human race. Some of these pandemics killed as much as one third of the world's population at the time, particularly the Justinian event. The 1918 flu bug was no slouch either, it killed well over 20 million in the U.S. But these ancient pestilences hit the poor the hardest. They had no place to run, no place to hide. The wealthy, even moderately well heeled, moved ahead of the pestilences. They let the castle portcullis down, and nobody entered. They built barges on the rivers, and took the gang plank away. They moved to 'clean villages' and quarantined, a practice started in Italy in the 15th century. Some of the pestilences had different blends, grew stronger, endemics which returned with even more power, and survival almost became synonymous with the strength of their immunity and the degree of a person's wealth. Antonia Eraser's well-written and excellently researched "The Weaker Vessel" is recommended and gives a clearer, more detailed picture of 15th, 16th and 17th century hysteria. It describes the desperate drive to produce heirs at all costs, and, one suspects, even to the implied murder of an infertile wife, not just by Henry VIII, but by lesser lights. The fertile woman became a baby factory from the age of 15 through 38 or so 'enjoying' an annual pregnancy ritual. Very few landowners relished the idea of their estates reverting back to the King. Survival, then, was to slip through the mini-mesh screen of life pestilential hazards, and produce a line of winners. And there, we'll leave you with that thought. You piece it together. Those of you who are still amongst us can stand up and salute the innate strengths of your ancestors. We made it here at this time. Millions, billions, didn't, exponentially.

Anyway, back to the subject at hand. If these Normans handed us the surnaming protocols and played such a prominent role in our surviving Anglo and European races, we'd better understand a bit more about them, the Normans, that is, even at the risk of repetition. Unlike the previous Viking bounty hungry marauders who flitted around the oceans with fleets of up to one hundred ships, stinging here, ravaging there, wintering, gathering treasures which would help them gain power in their home domains, the Normans had achieved a new territory, converted Vikings who had firmly planted their roots in northern France. They became skilled military commanders who did not confine themselves to naval warfare and allied strategies, although these basic skills never left them. On land they were as dangerous as they were on the sea. They developed a hierarchical network of top down intermarriage, betrothals and cross pollination which always seemed to work to their advantage.

As we have said, the Norman seeding of Britain took place over 50 years or more from about 1000 A.D. Elaborating, perhaps one of the most significant early seeds was Emma. Emma was the daughter of Richard 1st, Duke of Normandy, bom 986. When fellow Viking and ex-pirate. King Of England, Denmark and Norway, Cnut (Canute) ascended the throne he was 'persuaded' to take Emma as his wife and Queen of England in 1017. He was only 21, she a 31 year old 'veteran', and already had three children by her first husband, Aethelred of England, a weak King, probably totally dominated by Emma, and who had died the previous year. One of those children was the future King of England, Edward the Confessor. Both he and Alfred went off to Normandy, an investment in futures.

Emma had commenced the seeding of England with Normans in 1002, by inviting Hugh, a Norman adventurer, and endowed him with the city and castle of Exeter. There followed many more examples which can be found in the Norman chronicles. At this time Emma must only have been a young girl of 16, but she was a Norman who knew where she was going. Although Cnut, her new husband was a tyrant (he extracted the huge sum of 80,000 pounds from the Saxon people in his first year of reign) his new wife was even more ruthless.

Emma continued her Norman ways. During the reign of Cnut, and her son Harthacnut, she had amassed many estates and domains and held a fair chunk of the English treasury. When Harthacnut was having difficulty establishing his claim to the throne, her youngest son Alfred suddenly appeared on a visit from Rouen, Normandy. This didn't work out so well. Earl Godwin the leading Saxon Earl, decided enough Normans were enough. He trapped Alfred and his 600 mercenaries at Guildford, and that was the end of Alfy. Alfred had tried once before with the help of Robert, Duke of Normandy when they had gathered a fleet to invade England but got caught in a storm which washed them up in the Channel Islands. When Harthacnut was eventually crowned, Edward (the Confessor), Emma's other son, arrived from 26 years exile in Normandy but probably not with Emma's approval. Not all Normans got along with each other, either. Edward must have been Emma's least favored son. Harthacnut died. Following year Edward was crowned. 10 days after he received his "hallowing" of the English throne in Easter 1043, after Harthacnut's sudden and unaccountable death in June the previous year, marched from Gloucester to Winchester with his earls and relieved Emma of her and England's accumulated treasury and her lands. Not a very gracious act from one who was to be sanctified as England's only Saint/King. But Emma was allowed to live on in peace. Later, Edward, in an act repentance, restored some of her estates and a small pension. One of the last recruitments Emma made before her death in 1052, was one Adam de Brus (Bruce) in 1050 of the Castle of Brix in Normandy. His successor would eventually become King of Scotland. Although he officially and ostensibly 'attended' the Queen, he went to Scotland almost immediately. Nevertheless, he managed to get back to the Conquest and join his Norman father and elder brother, William, at Hastings, 16 years later. But the Bruce had already acquired estates and a significant presence in Scotland before the Conquest. And Emma, a Norman, had played a dominant role in English and Scottish history almost continuously for 50 years from the turn of the millennia, but receives scant mention in that history except as the mother and wife of Kings. Concomitantly, Margaret, King Malcolm Canmore of Scotland's queen, was of the same ilk and also recruited her Norman friends to Scotland.

Similarly, Edward the Confessor himself felt more comfortable with the Norman side of his house. As previously mentioned he had recruited Gilbert Tesson amongst others, including the Earl of Hereford. He recruited fellow Norman William of Jumieges as Bishop of London, one of the most influential clerical positions in all England and it should be noted that Stigand, Emma's man, became Archbishop of Canterbury in 1052, the year of Emma's death, against the wishes of the pope. The extent of this pre-Conquest Norman infiltration has been contested by historians. Some claim it to be minimal, others claim that Edward was active in recruitment but was careful not to offend the Saxon Witan, the governing council. Obviously, some infiltration took place but nobody can be sure of the extent except from isolated and representative references in the Norman chronicles. From the growing body of evidence the implantation was more than enough.

So now the banquet was set, the menu set in print to receive in England this massive invasion of Norman magnates, knights, freemen, and men-at-arms from Normandy who would receive domains granted by Duke William for their participation at the invasion of England and join the Battle of Hastings. Many of these Norman families and their followers had provided ships, horses, and all the military accoutrements necessary for the success of the venture, and they carried their greed with them in huge expectations of their domain rewards. At this point in time there is very little evidence of the existence of any surnaming procedures in Saxon or Danish England.

The Battle of Hastings is dealt with elsewhere on this web site. Our interest in this event in this context is only one of numbers. Modem students of history, calculating the size of the promontory which Harold and the Saxons chose to defend, shoulder to shoulder, and the depth of the available support platoons, the Saxon horde maxes out at about 10-12,000. The Normans, probably at something less, 8-10,000, including only about 20-25 house banners. After the victory, and with Harold suitably consigned to his place in history. Duke William and his fellow Normans, after wasting the Pevensay and Hastings area, moved eastward along the coast to Romney and Dover within the week, dismantled the castles and began to consolidate their bridgehead. Here he hesitates, calls for re-enforcements from over the channel (the numbers of reinforcements are questionable, but may be very significant in estimating the influence of Norman domain surnames in English(and Scottish) history). Let's face it, if Duke William amassed an army of 40,000, a reasonable number, in his devastation of the north 3 years later it would mean that this force was 4 times larger than his Hastings army, unless, of course, the pre-seeding of pre-Conquest England had been larger than even the Norman chronicles claim. To mobilize reinforcements Duke William could repair his fleet to the west at Pevensay and return it to Rouen or St.Valery. This seems more likely, rather than start building a whole new fleet at Rouen which would have taken months, perhaps a year.

In the meantime, Duke William moved his army north to Canterbury, then settled into a holding pattern for a month before London, more than likely to await the reinforcements. Some say he was sick (may have been dysentery which caught up with him in 1087 in a horrible death which caused his mourners to depart the Abbey at Caen because of the stench) but that's less likely than merely waiting to size up the situation in London and his reinforcements to arrive. Two or three parties were jockeying for power in London, including the northern Earls Edwin and Morcar, even the mayor of London, and Edgar Atheling who'd already been nominated the new King by the London element.

Duke William made his move from Canterbury at the beginning of November. He wheeled his army to the west in a wide circling movement of London to Wallingford, north west of London then to the east, north of London, to Little Beckhamstead. Surrounded, the citizenry of London capitulated without resistance. Edwin and Morcar, however, had slipped away to the east and the coastal north. The Atheling also escaped north to York.

The bridgehead now included most of the home counties. William was crowned King of England and began the huge political task of measuring and negotiating rewards to the magnates of his invasion army, using Edward the Confessor's tax rolls as a base for the then current land values. His first cut at the division of spoils was a greedy one, which did not rest well with many Norman magnates who had made huge investments of ships and knights to the invasion fleet. He gave almost all of the land south of London to the coast, and as far west as Winchester, to Bishop Odo, his half brother, who became Earl of Kent, and his #2, head honcho of all England. His other half brother, the Count of Mortain, got most of the western counties of Cornwall, Somerset and Devon, after some loitering in front of Exeter castle with the pesky Welsh. The eastern counties held many of the Norman nobles who were champing at the bit for more lands to the north. Most of the treasures in the London archives went back to Normandy along with important hostages. To buy peace and loyalty amongst his followers. Duke William began to realize he had to make many compromises to his own greed, vis-a-vis that of his Norman magnates. But he still had the whole of the north to dole out to his waiting barons in Suffolk, Norfolk and Lincolnshire.

William's plan of containment for England was very unlike that which grew attritionally in the Duchy of Normandy where principalities had emerged geographically and attritionally, enclaves which would become very powerful, and a constant challenge to central government. His new distribution plan for the occupation of England gave certain trusted magnates large territories but not absolute control. Each territory was seeded with lordships, either by chief-tenancy or under-tenancy, which were cross weaved by Earls, Barons or knights from distant territories, thus achieving a complex network of dispersed and diversified interests. Much land was given to the Church in the same fashion. The King himself held many of the strategic and valuable domains which were operated by trusted stewards, freemen or even men-at-arms. He had introduced a spy network, which, in the event of disloyalty, the incumbent had to consider allegiances which might be very unfavorable to him if his treasonable activities became known. In this mad scramble for turf, it is inconceivable that William, burdened with jealous Norman magnates still under arms, would give much long term consideration to Saxons, who were about as low in the pecking order as they could be, unless of course, they had been adopted in marriage to the Norman element.

In the ensuing five years. Duke William set about implementing his plan. He gradually removed most of the remaining Saxon interests and by 1068 he had marched north from the home counties with his huge army as far as Wocestershire, Leicestershire, Staffordshire, Shropshire, Warwickshire, Derbyshire and Cheshire. In each county he installed his own Norman Earldoms, Sheriffs and Reeves. He was relatively kind to Chester, where, in a city of 400 houses, he reduced 200 to rubble and installed Hugh Lupus( Norman house of Avranches and his nephew) as Earl of Chester. Hugh Lupus brought with him from Lincolnshire many of his knights. They presumably brought with them some of their newly adopted domain names. Hence, we find villages renamed in Cheshire with villages in Lincolnshire such as Irby, Croxton, etc. He also installed Roger de Montgomery as Earl of Shropshire and established many other Earldoms. After his wastage he planted the border of Scotland with trusted Norman families who gave us many notable reiver surnames today such as Cummings, Bruce, Nixon, Armstrong, Elliot, Graham, etc.

Duke William wasted the north it is said with an army of 40,000, mostly Norman and some few converted Saxon and Breton mercenaries. These were the reinforcements which swarmed over the channel in the post-Conquest period. He then built his own castles. From 1069 to 1070 he burned, raped and pillaged Yorkshire, Lancashire, Durham, Northumberland and Cumbria, leaving little of value standing, with some strategic exceptions which were garrisoned by Normans, Bretons and mercenaries. To Count Alan of Brittany he gave much of Yorkshire. In 1072, he marched north into Scotland to the Forth and pillaged. He was given fealty by King Malcolm and took hostages. The whole campaign had not been without some small resistance and casualties had been high amongst the still land holding Saxons of the north, and some of his rebellious Norman Barons. Again, significant hostages were taken back to Normandy. William, in 1071, was now undisputed King of England. In 1075, a minor uprising of Roger, Earl of Hereford was quelled.

From 1071 to 1086 there was relative peace in the land administratively. Attempts by the Danes to regain their foothold on the island were thwarted. The Norman magnates jockeyed for power, even the King's own half brother. Bishop Odo, was imprisoned for life after making a play for the throne of England. He was released only when William Rufus, William's third son became King of England after his father's death in 1087.

William spent much of his time in Normandy dealing with his Norman affairs. In each country, England and Normandy, he had installed governing bodies. Regents, constantly changing personalities who eventually outlived their loyalties. The traffic between Normandy and England was reasonably heavy, Normans returned briefly to their own or family domains with their war chests, greeted their wives and families, usually leaving their eldest sons to run the family domains in England or sometimes reversing the procedure, depending on the size of the spoils acquired in England.

In 1086, the Doomsday Book came into being. William in one of his visits to England in the autumn of '85 took his travelling court to Gloucester. For a month he sat and listened to the claims and counter claims of rightful Norman ownership of English domains. Enough was too much. He instructed commissioners to organize teams to go forth and record every domain in England, its taxable value, and who was adjudged to be the holder of those domains. He gave them one year to complete the mammoth project. He declared that these records would confirm those rights 'in perpetuity', till the end of time, hence this huge survey was called The Doomsday Book, now in the U.S spelt Doomsday. Whichever way it's spelt, this final penultimate act of Duke William, a year and half before his death, caused major legal land claim headaches, power struggles, minor rebellions, even wars, for centuries to come. But the Doomsday Survey at least went on record for the greater part of England in establishing the incumbents at that time in the year 1086. England and much of lowland Scotland was jealously Norman owned and settled by domain entitlement and would be for centuries to come. See Doomsday Book on this web site.

In Normandy, well before the Conquest of England, the surnaming protocol had been born of the feudal system. In Saxon England, surnames had not entered the social scheme of ownership and title and first (font) names only were used, with some very rare exceptions. In Normandy, the scion of the family generally adopted his domain name as his own surname. The de (of) prefix was being dropped by attrition, although, by exception, some notable families would retain the prefix through until the 14th and 15th centuries.

There could only ever be one person identifying himself (sometimes, but rarely, herself) with entitlement to the Norman domain. Along with that entitlement of domain, he was also the custodian of the family seal, the banner which represented the family in battle, the Coat of Arms, and any other family heirlooms which were carried with his dynasty. None of his progeny were ever allowed to use or copy those family relics during his lifetime. However, this created a problem, perhaps more of a problem than it was worth. If the old man lived to a ripe old age, and many did, there might be sons, even grandsons, requiring to be identified with their posterity and probable hereditary rights of their own new domains at some time in the future. What name would they use? The first answer was Fitz, meaning the 'son of. This did not mean, as was commonly supposed in earlier times, an illegitimate son. The Viking society rarely made any distinction between descendants in or out of wedlock. And if this argument held, why didn't the Duke call himself FitzWilliam. Duke William himself was a bastard who had achieved the Duchy of Normandy. And already the Danish Vikings were adopting the tag 'son' on the end of font names for distinction such as Ericson, Estrithson and others to overcome the problem of the continuity of the posterity. Hence, 'son' names are to be found mostly in northern England. Similarly, at this time or later, the prefix Mac was adopted by the Scottish, the "0" by the Irish, and the Ap or Ab by the Welsh. But no such prefix or suffix was adopted in the Saxon naming protocol as far as can be determined.

Curiously, in the Norman culture, it meant that a man, Robert de Mortimer, for instance, might have two names during his own lifetime, a confusing headache no historian should need. If the eldest son, by primogeniture, the beneficiary of his father's estates, hung around for his inheritance he might assume the name, say, Robert FitzHugh, if his father's name was Hugh de Mortimer. On his father's death Robert would then revert to and inherit the old domain name Robert de Mortimer, and all its entitlements. In other words, Robert FitzHugh and Robert de Mortimer were one and the same person. This was very confusing to the record books. And most Fitz names were of a temporary nature until such time as they were changed to a new heritable domain name, or one was acquired from the main hereditary family estates. Younger sons might be given a place name, a domain within the father's domain, which in turn would become their own lifetime domain/surnames. This made the establishment of a genealogical link from the younger sons to their father very difficult, and each of the younger sons grew within their own orbit with a different surname from the father. If they moved, to say, Norman settlements in England, tracing back, linking the younger son relationship to the main stem became an assumption, or was almost impossible. However, it shouldn't be assumed that this was a rigid procedure by any means. It was the beginning of a naming custom, and subject to personal interpretation or family convenience. Sometimes the suffix I, II, or ni was used and the eldest son's name could be the same as that of the father, so long as the suffix followed. But it was still domain driven, particularly for the younger sons, of which there were usually many.

There were many loopholes in this early system, nor was the procedure followed assiduously. For instance, the son of Robert Guiscard, whom we mentioned previously in his Italian campaigns, was Mark Bohemond, Prince Tarentum, an inconsistency. Similarly, the Norman ranking of titles, was not as clearly defined as it was in the late middle ages, or is today. William generally assumed the heritable title of Duke, most likely in deference to the French King, to whom there was a vague suzerainty relationship. But there was no question of his absolute monarchical rule. Lesser nobles could be styled counts, countesses, bishops, seigniors, sires, lords, masters, constables, sheriffs, even princes, and the laws of precedence seemed to evolve more on the size of a noble's estates, and his influence in the royal court, rather than any precise ranking protocol. Duke William made an attempt to straighten this mess out in England when he elected just one controlling and administrative head, an Earl, to each county. Other lesser officers such as Sheriffs, tax men, the King' stewards and Reeves administered the King's (very ill-defined) Law. Lordships were granted for domains, large or small, and each carried variable rights and powers in his local court and justice system, powers which were often meted out in abstentia, since the magnate's domains were usually widely scattered through several distant counties, or he might even be back in Normandy. This was a first crude attempt at administrative organization, by no means perfect, but at least it changed the complexion of the land and was not a replication of the loose structures in Normandy. Nor was it inherited from the Saxon system in which there was an earldom consisting of many counties strung together, such as Wessex, thus making the Earls what amounted to petty kings. But the new system would inherit its own problems.

Meanwhile, younger sons were a problem in the emerging surnaming protocol and record keeping. Sometimes landless, these budding knights or even men at arms, had little to call their own, or if they had, the size of their holdings did not support their ambitions. Restless at being indented to knight's service to his distant lord, perhaps an elder brother or father, they honed their skills and many became mercenaries, finding the highest bidder for their services, as they had done in Normandy before the Conquest. The whole world out there was free for the taking. This in preference to sitting in a small manor house little better than a multi-roomed shack, twiddling his thumbs and becoming poorer as the days went by. Many pillaged the local countryside. Jousts, lists, fairs, melees were planned and they became footloose, moving from event to event, battle to battle. And between 1066 and the first crusade in 1096 the ravages, plunder and rapine of the far from gallant and chivalrous knight was continued ferociously. Since they fought for hostages, possessions, riches, rank, and their own form of honor, there developed a crude code. In combat or skirmishes the objective was to obtain hostages, not to kill. A dead opponent was worthless. In one melee in Normandy before the Conquest, 500 knights skirmished in planned combat. Only three died. Many were unhorsed. And under the rules of combat, to the victor went the spoils. The more important and richer the family relationship of the loser, the more bountiful the rewards. The victor could claim not only ransom in coin, but the knight's domain name, his Coat of Arms, his banner, his sword and armor, and his horse, even his wife and squire. Troubadours adhered as camp followers, and twanged their knights exploits with songs of their courage. To many they became the heroes of their time. To many others they were the major scourge of any land on which they visited their very doubtful charms.

On the continent in particular, there had been and was more alarm about an emerging way of life which was leading to absolute and unchecked pillage, or anarchy, so much so that the Church had pronounced the Truce of God at the Council of Nice in 1041. This, in effect, protected the public at large by prohibiting plunder, murder and rapine by Barons and their knights from Thursday to Sunday inclusive. However, even if those same laws had been effective, which they weren't, they tacitly allowed, maybe approved, said uncontrolled plunder on Mondays, Tuesdays and Wednesdays. It was from this source of restless, rapacious knights, squires and men at arms, mostly Norman, Flemish and Prankish, that many of the rank and file of the Norman invasion of England in 1066 and their subsequent reinforcements was drawn. Fathers recalled recalcitrant sons from all over Europe.

Later, it was also of this lawless source that many of the European knights of all nations were recruited by Pope Urban II at Clermont in France in his well advertised appeal for the first crusade in 1095. It is not clear why this was called the first Crusade, there'd been many before. Anyway, Urban, Duke Robert of Normandy and his kinsman Robert Count of Flanders had received a very urgent appeal in 1093 from the Byzantine Emperor Alexius Comenus for help in quelling the Seljuk Turks and "retrieving the holy relics from Jerusalem" the latter an obvious appeal to the Pope. However, Alexius' main enticement in his letter was the beautiful women of the East, a magnetic attraction to our lustful, footloose knights. Alexius made several more appeals. Finally, after much deliberation, perhaps even consultations with the Normans to the south. Prince Tarentum, Guiscard's son, the green light was given.

Pope Urban had promised his assembly in 1095 complete redemption for their previous sins. His opening address to the multitude at Clennont "You, girt about your badge of knighthood, are arrogant with great pride, you rage against your brothers and cut each other to pieces" was one version. Another "You oppressors of orphans, robbers of widows, you homicides, blasphemers and plunderers". The assembly of knights replete with their surnames and their house Coat of Arms from all over Europe were more impressed with the offer of pardons for their past sins, and the prospect of untold riches and the good life in the "Holy Land'.

Cash-rich Duke Robert of Normandy in August 1096, left his young brother King William Rufus of England in charge and collected Normans Stephen of Blois, Eustace III, Count of Bolgne, Godfrey (Geoffrey) Duke of Lorraine, and Count of Vermandois, and knights from England, including the Percy's of the north, from Normandy, Germany, France, and proceeded to southern Italy and jumped off from the Italian south eastern coastal cities of Brindisi and Bari. Here he met the main contingent, "25,000?" Vikings who miraculously arrived on the scene from Scandinavia and who stopped off at Sicily for a visit with Prince Tarentum. This event is not even reported in popular history, only in the Norwegian Sagas. And the Viking ties were upheld. Once a Viking, always a Viking.

However, this organized, and well equipped battle force had been pre-empted the previous April by an over-anxious monk who was anything but a general. Peter the Hermit preached to the poor, the faithful and fearful masses and started from the Rhine Valley overland, a rag and bob-tailed mass, estimates ranging from 100,000 to 300,000 men, women and children supported by a few knights. They needed money so they murdered local rich Jews in what has been called the first Holocaust. This huge band of footloose coversions and opportunists would play little part in the battles of the 1st Crusade and would suffer badly at the hands of the decadent tribesmen of Hungary, the Byzantines and eastern European tribes who strangely got the notion that this mob was invading their turf. Finally arriving on the southern side of the Bospherous with a remnant force of less than 15,000 they were annihilated at Civetot and never reached the Holy Land. Peter escaped however. So there were really two, separate, quite independent Crusades, one starting in April, the other in August of '96, both under the banner of the 1st Crusade.

After a successful "pilgrimage "to the Holy Land, the main Norman contingent of knights returned to Europe with their domains much richer than before. Baldwin of Boulogne was crowned King of Jerusalem in 1100. They set up a Norman system of counties and fiefs. As previously mentioned they left Norman Bigot d'Bger of the Bigod or Wigot dynasty and Tancred in support of Norman King Baldwin of Jerusalem with 200 knights. The crusader "Princes" returned home minus a few casualties, notably Stephen Henry Count de Blois, father of Stephen de Blois who would become King Stephen of England. The father was "son-in-law" of William the Conqueror by his daughter Adela but this relationship is not acknowledged in history. Stephen Henry de Blois' third son, Stephen de Blois, would become King of England renouncing all of the Blois fortunes, but for his surname.

In Europe, the knightly ravages continued unabated well into the late 12th century when Eleanor of Aquitane and Marie of Champagne took a hand in the defense of feminity, restoring some order to the chaos. This episode produced the Cretien romances in 1070 elevating knighthood to a King Aurthur and Lancelot status, and creating a new code of chivalry. But that's another story.

So, in post Conquest England, in Europe, the Anglo domain name created new surname identities for younger Norman sons in particular, taking all the trappings of this vicious art form into their pastoral settings. The Normans overran Europe like a plague unto themselves. The domain surname became more firmly established as a protocol. Undoubtedly, their ancient Coat of Arms also found new roots. But this did not prevent them from tripping off to the fairs and jousts, particularly at Bruges, in addition to plundering the English countryside. They continued the Norman practice of contributing to Abbeys, monastries and churches to atone for their sins.

It was in this environment that the surname was born, a symbol of ownership, possessions, pride and greed. It would carry the posterity of the family name down though the centuries from the Orkneys to the Holy Land. The Norman surnames would have more opportunity for growth since they represented wealth, ownership and title, and were more motivated to establish posterities which would continue well into the distant future, for their dynasties and their descendants. They would fare better through the pestilences simply because they would be better equipped to resist. And the Norman strain bred like rabbits. They were accustomed to breed sons for the battle, and a little on the side for their own posterity. Many of these warriors died young, but surprisingly, many lived to be very old. Nevertheless, the spirit of the ancient family names prevailed. To quote noted anthropologist Erik Trinkaus of the University of New Mexico "It takes only a very subtle difference in life style to make a big difference in terms of evolutionary success".

Clearly, those who contend that the common law history about surnames shows that Christians used a particular method for designating names of people finds no support in authoritative sources.

Several years ago, Hartford Van Dyke asserted an argument that one could file commercial liens against other parties via an ancient process which he only recently discovered. The advocates of this argument claimed that history showed the use of this process and that the "law" was full of cases where this process had been used with success. In an effort to confirm the validity of this argument, I tried to find any mention in history or the law of this process but came up empty handed. But this deficiency did not matter for these advocates and they filed liens all over the place against judges and all sorts of other public officials. I only comment in passing that many of the people who became involved with this endeavor had their lives ruined. What about the 17 innocent members of the Missouri common law court who filed liens against a local judge? Some of these unfortunate souls are presently incarcerated for 7 years. What about Leroy Schwitzer and the other Freemen now in jail in Montana? What about Grant McEwan?

The lesson which must be learned is this: do your homework and research. I attend many "patriot pep rallies" and am confronted with people who accept various legal arguments on blind faith. In conversations with these people it is clear that they have a belief about their pet argument, but belief is not important. What is important is whether their beliefs about the law are really correct. When asked by these people to prove their contentions, almost 100% of them cannot do it. Some approach me and proudly proclaim their knowledge of the law: "I am not going to file federal income tax returns because the IRS is that private Delaware corporation established in 1933." When asked to prove this contention, all of these people slink away and they undoubtedly utter under their breath, "what a stupid lawyer!" Likewise, when I walk away from them I am reminded of John Wayne's profound statement: "Life is hard. But it is harder if you are stupid."

Unless you can find support for some patriot argument other than through the statements of the proponent, my advice is walk away from that argument because it will only get you into DEEP trouble.

FEDERAL JURISDICTION2

In the United States, there are two separate and distinct jurisdictions, one being that of the States within their own territorial boundaries and the other being federal jurisdiction. Broadly speaking, state jurisdiction encompasses the legislative power to regulate, control and govern real and personal property, individuals and enterprises within the territorial limits of any given State. In contrast, federal jurisdiction is extremely limited, with the same being exercised only in areas external to state legislative power and territory. Notwithstanding the clarity of this simple principle, the line of demarcation between these two jurisdictions and the extent and reach of each has become somewhat blurred due to popular misconceptions and the efforts expended by the federal government to conceal one of its major weaknesses. Only by resorting to history and case law can this obfuscation be clarified and the two distinct jurisdictions be readily seen.

The original thirteen colonies of America were each separately established by charters from the English Crown. Outside of the common bond of each being a dependency and colony of the mother country, England, the colonies were not otherwise united. Each had its own governor, legislative assembly and courts, and each was governed separately and independently by the English Parliament.

The political connections of the separate colonies to the English Crown and Parliament descended to an rebellious state of affairs as the direct result of Parliamentary acts adopted in the late 1760's and early 1770's. Due to the real and perceived dangers caused by these various acts, the First Continental Congress was convened by representatives of the several colonies in October, 1774, and its purpose was to submit a petition of grievances to the British Parliament and Crown. By the Declaration and Resolves of the First Continental Congress, dated October 14, 1774, the colonial representatives labeled these Parliamentary acts of which they complained as "impolitic, unjust, and cruel, as well as unconstitutional, and most dangerous and destructive of American rights;" but further, they asserted that these acts manifested designs, schemes and plans "which demonstrate a system formed to enslave America."

Matters grew worse and between October 1775, and the middle of 1776, each of the colonies separately severed their ties and relations with England, and several adopted constitutions for the newly formed States. By July 1776, the exercise of British authority in all of the colonies was not recognized in any degree. The capstone of this actual separation of the colonies from England was the more formal Declaration of Independence.

The legal effect of the Declaration of Independence was to make each new State a separate and independent sovereign over which there was no other government of superior power or jurisdiction. This was clearly shown in M'llvaine v. Coxe's Lessee, 8 U.S. (4 Cranch) 209, 212 (1808), where it was held:

"This opinion is predicated upon a principle which is believed to be undeniable, that the several states which composed this Union, so far at least as regarded their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign states, and that they did not derive them from concessions made by the British king. The treaty of peace contains a recognition of their independence, not a grant of it. From hence it results, that the laws of the several state governments were the laws of sovereign states, and as such were obligatory upon the people of such state, from the time they were enacted."

The consequences of independence was again explained in Harcourt v. Gaillard, 25 U.S. (12 Wheat.) 523, 526, 527 (1827), where the Supreme Court stated:

"There was no territory within the United States that was claimed in any other right than that of some one of the confederated states; therefore, there could be no acquisition of territory made by the United States distinct from, or independent of some one of the states.

"Each declared itself sovereign and independent, according to the limits of its territory.

"[T]he soil and sovereignty within their acknowledged limits were as much theirs at the declaration of independence as at this hour."

Thus, unequivocally, in July 1776, the new States possessed all sovereignty, power, and jurisdiction over all the soil and persons in their respective territorial limits.

This condition of supreme sovereignty of each State over all property and persons within the borders thereof continued notwithstanding the adoption of the Articles of Confederation. Article n of that document declared:

"Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

As the history of the confederation government demonstrated, each State was indeed sovereign and independent to such a degree that it made the central government created by the confederation fairly ineffectual. These defects of the confederation government strained the relations between and among the States and the remedy became the calling of a constitutional convention.

The representatives which assembled in Philadelphia in May, 1787, to attend the Constitutional Convention met for the primary purpose of improving the commercial relations among the States, although the product of the Convention was more than this. But, no intention was demonstrated for the States to surrender in any degree the jurisdiction so possessed by them at that time, and indeed the Constitution as finally drafted continued the same territorial jurisdiction of the States as existed under the Articles of Confederation. The essence of this retention of state jurisdiction was embodied in Art. I, § 8, cl. 17 of the U.S. Constitution, which defined federal jurisdiction as follows:

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings."

The reason for the inclusion of this clause in the Constitution is obvious. Under the Articles of Confederation, the States retained full and complete jurisdiction over lands and persons within their borders. The Congress under the Articles of Confederation was merely a body which represented and acted as agents of the separate States for external affairs, and it had no jurisdiction within the States. This defect in the Articles made the Confederation Congress totally dependent upon any given State for protection, and this dependency did in fact cause embarrassment for that Congress. During the Revolutionary War while the Congress met in Philadelphia, a body of mutineers from the Continental Army surrounded the Congress and chastised and insulted its members. The governments of both Philadelphia and Pennsylvania proved themselves powerless to remedy this situation, so Congress was forced to flee first to Princeton, New Jersey, and finally to Annapolis, Maryland.[1] Thus, this clause was inserted into the Constitution to give jurisdiction to Congress over its capital, and such other places which Congress might purchase for forts, magazines, arsenals and other needful buildings wherein the State ceded jurisdiction of such lands to the federal government. Other than in these areas, this clause of the Constitution did not operate to cede further jurisdiction to the federal government, and jurisdiction over those areas which had not been so ceded remained within the States.

While there had been no real provisions in the Articles which permitted the Confederation Congress to acquire property and possess exclusive jurisdiction over that property, the above clause filled an essential need by permitting the federal government to acquire land for the seat of government and other purposes from certain of the States. These lands were deemed essential to enable the United States to perform the powers delegated by the Constitution, and a cession of lands by any particular State would grant exclusive jurisdiction of them to Congress. Perhaps the best explanations for this clause in the Constitution were set forth in Essay No. 43 of The Federalist:

"The indispensable necessity of complete authority at the seat of government carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government on the State comprehending the seat of the government for protection in the exercise of their duty might bring on the national councils an imputation of awe or influence equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. This consideration has the more weight as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession will be derived from the whole people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated.

"The necessity of a like authority over forts, magazines, etc., established by the general government, is not less evident. The public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated by requiring the concurrence of the States concerned in every such establishment."

Since the ratification of the present U.S. Constitution, the U.S. Supreme Court and all lower courts have had many opportunities to construe and apply this clause of the Constitution. The essence of all these decisions manifests a legal principle that the States of this nation have exclusive jurisdiction of property and persons located within their borders, excluding such lands and persons residing thereon which have been ceded to the United States.

Perhaps one of the earliest decisions on this point was United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818). which involved a federal prosecution for a murder committed on board the Warship, Independence, anchored in the harbor of Boston, Massachusetts. The defense complained that only the state had jurisdiction to prosecute this crime and argued that the federal circuit courts had no jurisdiction of this crime supposedly committed within the federal government's admiralty jurisdiction. In argument before the Supreme Court, counsel for the United States admitted as much:

"The exclusive jurisdiction which the United States have in forts and dockyards ceded to them, is derived from the express assent of the states by whom the cessions are made. It could be derived in no other manner; because without it, the authority of the state would be supreme and exclusive therein," Id., at 350-51.

In holding that the State of Massachusetts had jurisdiction over this crime, the Court held:

"What, then, is the extent of jurisdiction which a state possesses?

"We answer, without hesitation, the jurisdiction of a state is co-extensive with its territory; co-extensive with its legislative power," Id., at 386-87.

"The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction... Congress has power to exercise exclusive jurisdiction over this district, and over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.

"It is observable that the power of exclusive legislation (which is jurisdiction) is united with cession of territory, which is to be the free act of the states. It is difficult to compare the two sections together, without feeling a conviction, not to be strengthened by any commentary on them, that, in describing the judicial power, the framers of our constitution had not in view any cession of territory; or, which is essentially the same, of general jurisdiction," Id., at 388.

The Court in Bevans thus established a principle that federal jurisdiction extends only over the areas wherein it possesses the power of exclusive legislation, and this is a principle incorporated into all subsequent decisions regarding the extent of federal jurisdiction. To hold otherwise would destroy the purpose, intent and meaning of the entire U.S. Constitution.

The decision in Bevans was closely followed by decisions made in two state courts and one federal court within the next two years. In Commonwealth v. Young, Brightly, N.P. 302, 309 (Pa. 1818), the Supreme Court of Pennsylvania was presented with the issue of whether lands owned by the United States for which Pennsylvania had never ceded jurisdiction had to be sold pursuant to state law. In deciding that the law of Pennsylvania exclusively controlled this sale of federal land, the Court held:

"The legislation and authority of congress is confined to cessions by particular states for the seat of government, and purchases made by consent of the legislature of the state, for the purpose of erecting forts. The legislative power and exclusive jurisdiction remained in the several states, of all territory within their limits, not ceded to, or purchased by, congress, with the assent of the state legislature, to prevent the collision of legislation and authority between the United States and the several states."

A year later, the Supreme Court of New York was presented with the issue of whether the State of New York had jurisdiction over a murder committed at Fort Niagara, a federal fort. In People v. Godfrey, 17 Johns. 225, 233 (N.Y. 1819), that court held that the fort was subject to the jurisdiction of the State since the lands therefore had not been ceded to the United States:

"To oust this state of its jurisdiction to support and maintain its laws, and to punish crimes, it must be shown that an offense committed within the acknowledged limits of the state, is clearly and exclusively cognizable by the laws and courts of the United States. In the case already cited. Chief Justice Marshall observed, that to bring the offense within the jurisdiction of the courts of the union, it must have been committed out of the jurisdiction of any state; it is not (he says,) the offence committed, but the place in which it is committed, which must be out of the jurisdiction of the state."

The decisional authority upon which this court relied was United States v. Bevans, supra.

At about the same time that the New York Supreme Court rendered its opinion in Godfrey, a similar fact situation was before a federal court, the only difference being that the murder was committed on land which had been ceded to the United States. In United States v. Comell, 25 Fed. Cas. 646,648, No. 14,867 (C.C.D.R.I. 1819), the court held that the case fell within federal jurisdiction:

"But although the United States may well purchase and hold lands for public purposes, within the territorial limits of a state, this does not of itself oust the jurisdiction or sovereignty of such State over the lands so purchased. It remains until the State has relinquished its authority over the land either expressly or by necessary implication.

"When therefore a purchase of land for any of these purposes is made by the national government, and the State Legislature has given its consent to the purchase, the land so purchased by the very terms of the constitution ipso facto falls within the exclusive legislation of Congress, and the State jurisdiction is completely ousted."

Almost 18 years later, the U.S. Supreme Court was again presented with a case involving the distinction between state and federal jurisdiction. In New Orleans v. United States, 35 U.S. (10 Pet.) 662, 737 (1836), the United States claimed title to property in New Orleans likewise claimed by the city. After holding that title to the subject lands was owned by the city, the Court addressed the question of federal jurisdiction:

"Special provision is made in the Constitution for the cession of jurisdiction from the States over places where the federal government shall establish forts or other military works. And it is only in these places, or in the territories of the United States, where it can exercise a general jurisdiction."

In New York v. Miln, 36 U.S. (11 Pet.) 102 (1837), the question before the Court involved an attempt by the City of New York to assess penalties against the master of a ship for his failure to make a report regarding the persons his ship brought to New York. As against the master's contention that the act was unconstitutional and that New York had no jurisdiction in the matter, the Court held:

"If we look at the place of its operation, we find it to be within the territory, and, therefore, within the jurisdiction of New York. If we look at the person on whom it operates, he is found within the same territory and jurisdiction," Id., at 133.

"They are these: that a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified and exclusive," Id., at 139.

Some eight years later in Pollard v. Haean. 44 U.S. (3 How.) 212 (1845). the question of federal jurisdiction was once again before the Court. This case involved a real property title dispute with one of the parties claiming a right to the contested property via a U.S. patent; the lands in question were situated in Mobile, Alabama, adjacent to Mobile Bay. In discussing the subject of federal jurisdiction, the Court held:

"We think a proper examination of this subject will show that the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory, of which Alabama or any of the new States were formed," Id., at 221.

"[B]ecause, the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, except in the cases in which it is expressly granted," Id., at 223.

"Alabama is therefore entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law," Id., at 228-29.

The single most important case regarding the subject of federal jurisdiction appears to be Fort Leavenworth R. Co. v. Lowe. 114 U.S. 525. 531. 5 S. Ct. 995 (1885.), which sets forth the law on this point fully. Here, the railroad company property which passed through the Fort Leavenworth federal enclave was being subjected to taxation by Kansas, and the company claimed an exemption from state taxation because its property was within federal jurisdiction and outside that of the state. In holding that the railroad company's property could be taxed, the Court carefully explained federal jurisdiction within the States:

"The consent of the states to the purchase of lands within them for the special purposes named, is, however, essential, under the constitution, to the transfer to the general government, with the title, of political jurisdiction and dominion. Where lands are acquired without such consent, the possession of the United States, unless political jurisdiction be ceded to them in some other way, is simply that of an ordinary proprietor. The property in that case, unless used as a means to carry out the purposes of the government, is subject to the legislative authority and control of the states equally with the property of private individuals."

Thus the cases decided within the 19th century clearly disclosed the extent and scope of both State and federal jurisdiction. In essence, these cases, among many others, hold that the jurisdiction of any particular State is co-extensive with its borders or territory, and all persons and property located or found therein are subject to that jurisdiction; this jurisdiction is superior. Federal jurisdiction results from a conveyance of state jurisdiction to the federal government for lands owned or otherwise possessed by the federal government, and thus federal jurisdiction is extremely limited in nature. There is no federal jurisdiction if there be no grant or cession of jurisdiction by the State to the federal government. Therefore, federal territorial jurisdiction exists only in Washington, D.C., the federal enclaves within the States, and the territories and insular possessions of the United States.

The above principles of jurisdiction established in the last century continue their vitality today with only one minor exception. In the last century, the cessions of jurisdiction by States to the federal government were by legislative acts which typically ceded full jurisdiction to the federal government, thus placing in the hands of the federal government the troublesome problem of dealing with and governing scattered, localized federal enclaves which had been totally surrendered by the States. With the advent in this century of large federal works projects and national parks, the problems regarding management of these areas by the federal government were magnified. During the last century, it was thought that if a State ceded jurisdiction to the federal government, the cession granted full and complete jurisdiction. But with the ever increasing number of separate tracts of land falling within the jurisdiction of the federal government in this century, it was obviously determined by both federal and state public officials that the States should retain greater control over these ceded lands, and the courts have acknowledged the constitutionality of varying degrees of state jurisdiction and control over lands so ceded.

One of the first cases to acknowledge the proposition that a State could retain some jurisdiction over property ceded to the federal government was Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455 (1930). Here, a state attempt to assess an ad valorem tax on Army blankets located within a federal army camp was found invalid and beyond the state's jurisdiction. But in regards to the proposition that a State could make a qualified cession of jurisdiction to the federal government, the Court held:

"[T]he state undoubtedly may cede her jurisdiction to the United States and may make the cession either absolute or qualified as to her may appear desirable, provided the qualification is consistent with the purposes for which the reservation is maintained and is accepted by the United States. And, where such a cession is made and accepted, it will be determinative of the jurisdiction of both the United States and the state within the reservation," Id., at 651-52.

Two cases decided in 1937 by the U.S. Supreme Court further clarify the constitutionality of a reservation of partial state jurisdiction over lands ceded to the jurisdiction of the United States. In James v. Dravo Contracting Company, 302 U.S. 134, 58 S. Ct. 208 (1937), the State of West Virginia sought to impose a tax upon the gross receipts of the company arising from a contract which it had made with the United States to build some dams. One of the issues involved in this case was the validity of the state tax imposed on the receipts derived by the company from work performed on lands to which the State had ceded "concurrent" jurisdiction to the United States. The Court held that a State could reserve and qualify any cession of jurisdiction for lands owned by the United States; since the State had done so here, the Court upheld this part of the challenged tax notwithstanding a partial cession of jurisdiction to the U.S. A similar result occurred in Silas Mason Co. v. Tax Commission of State of Washington, 302 U.S. 186,58 S.Ct. 233 (1937). Here, the United States was undertaking the construction of several dams on the Columbia River in Washington, and had purchased the lands necessary for the project. Silas Mason obtained a contract to build a part of the Grand Coulee Dam, but filed suit challenging the Washington income tax when that State sought to impose that tax on the contract proceeds. Mason's argument that the federal government had exclusive jurisdiction over both the lands and its contract was not upheld by either the Supreme Court of Washington or the U.S. Supreme Court. The latter Court held that none of the lands owned by the U.S. were within its jurisdiction and thus Washington clearly had jurisdiction to impose the challenged tax; see also Wilson v. Cook, 327 U.S. 474,66 S. Ct. 663 (1946).

Some few years later in 1943, the Supreme Court was again presented with similar taxation and jurisdiction issues; the facts in these two cases were identical with the exception that one clearly involved lands ceded to the jurisdiction of the United States. This single difference caused directly opposite results in both cases. In Pacific Coast Dairy v. Department of Agriculture of California, 318 U.S. 285. 63 S.Ct. 628 (1943). the question involved the applicability of state law to a contract entered into and performed on a federal enclave to which jurisdiction had been ceded to the United States. During World War n, California passed a law setting a minimum price for the sale of milk, and this law imposed penalties for sales made below the regulated price. Here, Pacific Coast Dairy consummated a contract on Moffett Field, a federal enclave within the exclusive jurisdiction of the United States, to sell milk to such federal facility at below the regulated price. When this occurred, California sought to impose a penalty for what it perceived as a violation of state law. But, the U.S. Supreme Court refused to permit the enforcement of the California law, holding that the contract was made and performed in a territory outside the jurisdiction of California and within the jurisdiction of the United States, a place where this law didn't apply. Thus in this case, the existence of federal jurisdiction was the foundation for the decision. However, in Penn Dairies v. Milk Control Commission of Pennsylvania, 318 U.S. 261. 63 S. Ct. 617 (1943), an opposite result was reached on almost identical facts. Here, Pennsylvania likewise had a law which regulated the price of milk and penalized milk sales below the regulated price. During World War n, the United States leased some land from Pennsylvania for the construction of a military camp; since the land was leased, Pennsylvania did not cede jurisdiction to the United States. When Penn Dairies sold milk to the military facility for a price below the regulated price, the Commission sought to impose the penalty. In this case, since there was no federal jurisdiction, the Supreme Court found that the state law applied and permitted the imposition of the penalty. These two cases clearly show the different results which can occur with the presence or absence of federal jurisdiction.

A final point regarding federal jurisdiction concerns the question of when such jurisdiction ends or ceases. This issue was considered in S.R.A. v. Minnesota, 327 U.S. 558, 563-64, 66 S. Ct. 749 (1946), which involved the power of a State to tax the real property interest of a purchaser of land sold by the United States. Here, a federal post office building was sold to S.R.A. pursuant to a real estates sale contract which provided that title would pass only after the purchase price had been paid. In refuting the argument of S.R.A. that the ad valorem tax on its equitable interest in the property was really an unlawful tax on U.S. property, the Court held:

"In the absence of some such provisions, a transfer of property held by the United States under state cessions pursuant to Article I, Section 8, Clause 17, of the Constitution would leave numerous isolated islands of federal jurisdiction, unless the unrestricted transfer of the property to private hands is thought without more to revest sovereignty in the states. As the purpose of Clause 17 was to give control over the sites of governmental operations to the United States, when such control was deemed essential for federal activities, it would seem that the sovereignty of the United States would end with the reason for its existence and the disposition of the property. We shall treat this case as though the Government's unrestricted transfer of property to non-federal hands is a relinquishment of the exclusive legislative power."

Thus when any property within the exclusive jurisdiction of the United States is no longer utilized by that government for governmental purposes, and the title or any interest therein is conveyed to private interests, the jurisdiction of the federal government ceases and jurisdiction once again reverts to the State.

The above principles regarding the distinction between State and federal jurisdiction continue today; see Paul v. United States, 371 U.S. 245, 83 S. Ct. 426 (1963), and United States v. State Tax Commission of Mississippi, 412 U.S. 363, 93 S. Ct. 2183 (1973). What was definitely decided in the beginning days of this Republic regarding the extent, scope, and reach of each of these two distinct jurisdictions remains unchanged and forms the foundation and basis for the smooth workings of state governmental systems in conjunction with the federal government. Without such jurisdictional principles which form a clear boundary between the jurisdiction of the States and the United States, our federal governmental system would have surely met its demise long before now.

In summary, the jurisdiction of the States is essentially the same as they possessed when they were leagued together under the Articles of Confederation. The confederated States possessed absolute, complete and full jurisdiction over property and persons located within their borders. It is hypocritical to assume or argue that these States, which had banished the centralized power and jurisdiction of the English Parliament and Crown over them by the Declaration of Independence, would shortly thereafter cede comparable power and jurisdiction to the Confederation Congress. They did not and they closely and jealously guarded their own rights, powers and jurisdiction. When the Articles were replaced by the Constitution, the intent and purpose of the States was to retain their same powers and jurisdiction, with a small concession of jurisdiction to the United States of lands found essential for the operation of that government. However, even this provision did not operate to instantly change any aspect of state jurisdiction, it only permitted its future operation wherein any State, by its own volition, should choose to cede jurisdiction to the United States.

By the adoption of the Constitution, the States jointly surrendered some 17 specific and well defined powers to the federal Congress, which related almost entirely to external affairs of the States. Any single delegated power, or even several powers combined, do not operate in a fashion so as to invade or divest a State of its jurisdiction. As against a single State, the remainder of the States under the Constitution have no right to jurisdiction within the single State absent its consent.

The only provision in the Constitution which permits territorial jurisdiction to be vested in the United States is found in Art. I, § 8, cl. 17, which provides the mechanism for a voluntary cession of jurisdiction from any State to the United States. When the Constitution was adopted, the United States had jurisdiction over no lands within the States, and it possessed jurisdiction only in the lands encompassed in the Northwest Territories. Shortly after formation of the Union, Maryland and Virginia ceded jurisdiction to the United States for Washington, D.C. Over time, the States have ceded jurisdiction to federal enclaves within the States. Today, the territorial jurisdiction of the United States is found only in such ceded areas, which encompass Washington, D.C., the federal enclaves within the States, and such territories and possessions which may now be owned by the United States.

The above conclusion is buttressed by the opinion of the federal government itself. In June 1957, the United States government published a work entitled Jurisdiction Over Federal Areas Within The States: Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States, Part II, and this report is the definitive study on this issue. Therein, the Committee stated:

"The Constitution gives express recognition to but one means of Federal acquisition of legislative jurisdiction — by State consent under Article I, section 8, clause 17... Justice McLean suggested that the Constitution provided the sole mode for transfer of jurisdiction, and that if this mode is not pursued, no transfer of jurisdiction can take place," Id., at 41.

"It scarcely needs to be said that unless there has been a transfer of jurisdiction (1) pursuant to clause 17 by a Federal acquisition of land with State consent, or (2) by cession from the State to the Federal Government, or unless the Federal Government has reserved jurisdiction upon the admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, such jurisdiction being for exercise by the State, subject to non- interference by the State with Federal functions," Id., at 45.

"The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State," Id., at 46.

"On the other hand, while the Federal Government has power under various provisions of the Constitution to define, and prohibit as criminal, certain acts or omissions occurring anywhere in the United States, it has no power to punish for various other crimes, jurisdiction over which is retained by the States under our Federal-State system of government, unless such crime occurs on areas as to which legislative jurisdiction has been vested in the Federal Government," Id., at 107.

Thus from a wealth of case law, in addition to this lengthy and definitive government treatise, the "jurisdiction of the United States" is identified as a very precise and carefully defined portion of America. The United States is one of the 50 jurisdictions existing on this continent, excluding Canada and its provinces.

FEDERAL CRIMINAL JURISDICTION

It is a well established principle of law that all federal "legislation applies only within the territorial jurisdiction of the United States unless a contrary intent appears;" see Caha v. United States. 152 U.S. 211. 215. 14 S. Ct. 513 (1894);

American Banana Company v. United Fruit Company, 213 U.S. 347, 357, 29 S. Ct. 511 (1909); United States v. Bowman, 260 U.S. 94, 97, 98,43 S. Ct. 39 (1922); Blackmer v. United States, 284 U.S. 421,437, 52 S. Ct. 252 (1932); Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S. Ct. 575 (1949); United States v. Spelar, 338 U.S. 217, 222, 70 S. Ct. 10 (1949); and United States v. First National City Bank, 321 F.2d 14,23 (2nd Cir. 1963). This particular principle of law is expressed in a number of cases from the federal appellate courts; see McKeel v. Islamic Republic of Iran, 722 F.2d 582, 589 (9th Cir. 1983) (holding the Foreign Sovereign Immunities Act as territorial); Meredith v. United States, 330 F.2d 9, 11 (9th Cir. 1964) (holding the Federal Torts Claims Act as territorial); United States v. Cotroni, 527 F.2d 708, 711 (2nd Cir. 1975) (holding federal wiretap laws as territorial); Stowe v. Devoy, 588 F.2d 336, 341 (2nd Cir. 1978); Cleary v. United States Lines, Inc., 728 F.2d 607, 609 (3rd Cir. 1984) (holding federal age discrimination laws as territorial); Thomas v. Brown & Root, Inc., 745 F.2d 279, 281 (4th Cir. 1984) (holding same as Cleary, supra); United States v. Mitchell, 553 F.2d 996, 1002 (5th Cir. 1977) (holding marine mammals protection act as territorial); Pfeiffer v. William Wrigley, Jr., Co., 755 F.2d 554, 557 (7th Cir. 1985) (holding age discrimination laws as territorial); Airline Stewards & Stewardesses Assn. v. Northwest Airlines, Inc., 267 F.2d 170, 175 (8th Cir. 1959) (holding Railway Labor Act as territorial); Zahourek v. Arthur Young and Co., 750 F.2d 827, 829 (10th Cir. 1984) (holding age discrimination laws as territorial);

Commodities Futures Trading Comm. v. Nahas, 738 F.2d 487, 493 (D. C. Cir. 1984) (holding commission's subpoena power under federal law as territorial);

Reyes v. Secretary of H.E.W., 476 F.2d 910, 915 (D.C.Cir. 1973) (holding administration of Social Security Act as territorial); and Schoenbaum v. Firstbrook, 268 F.Supp. 385, 392 (S.D.N.Y. 1967) (holding securities act as territorial). This principle was perhaps best expressed in Caha v. United States, 152 U.S., at 215, where the Court declared:

"The laws of Congress in respect to those matters do not extend into the territorial limits of the states, but have force only in the District of Columbia, and other places that are within the exclusive jurisdiction of the national government."

But, because of treaties as well as express statutory language, the federal drug laws operate extra-territorially; see United States v. King, 552 F.2d 833, 851 (9th Cir. 1976). The United States has territorial jurisdiction only in Washington, D.C., the federal enclaves within the States, and in the territories and insular possessions of the United States. However, it has no territorial jurisdiction over non-federally owned areas inside the territorial jurisdiction of the States within the American Union, and this proposition of law is supported by literally hundreds of cases.

As a general rule, the power of the United States to criminally prosecute is, for the most part, confined to offenses committed within "its jurisdiction" in the absence of treaties. This is born out simply by examination of 18 U.S.C. § 5 which defines the term "United States" in clear jurisdictional terms. [2] Further, §7 of that federal criminal code contains the fullest statutory definition of the "jurisdiction of the United States." The U.S. district courts have jurisdiction of offenses occurring within the "United States" pursuant to 18 U.S.C. §3231.

Examples of this proposition are numerous. In Pothier v. Rodman, 291 F. 311 (1st Cir. 1923), the question involved whether a murder committed at Camp Lewis Military Reservation in the State of Washington was a federal crime. Here, the murder was committed more than a year before the U.S. acquired a deed for the property which was the scene of the crime. Pothier was arrested and incarcerated in Rhode Island and filed a habeas corpus petition seeking his release on the grounds that the federal courts had no jurisdiction over this offense not committed in U.S. jurisdiction. The First Circuit agreed that there was no federal jurisdiction and ordered his release. But, on appeal to the U.S. Supreme Court, in Rodman v. Pothier, 264 U.S. 399, 44 S. Ct. 360 (1924), that Court reversed; although agreeing with the jurisdictional principles enunciated by the First Circuit, it held that only the federal court in Washington State could decide that issue. In United States v. Unzeuta, 35 F.2d 750 (8th Cir. 1929), the Eighth Circuit held that the U.S. had no jurisdiction over a murder committed in a railroad car at Fort Robinson, the state cession statute being construed as not including railroad rights-of-way. This decision was reversed in United States v. Unzeuta, 281 U.S. 138. 50S.Ct.284 (1930). the Court holding that the U.S. did have jurisdiction over the railroad rights-of-way in Fort Robinson. In Bowen v. Johnson, 97 F.2d 860 (9th Cir. 1938), the question presented was whether the lack of jurisdiction over an offense prosecuted in federal court could be raised in a habeas corpus petition. The denial of Bowen's petition was reversed in Bowen v. Johnston. 306 U.S. 19. 59 S.Ct. 442 (1939). the Court concluding that such a jurisdictional challenge could be raised via such a petition. But, the Court then addressed the issue, found that the U.S. both owned the property in question and had a state legislative grant ceding jurisdiction to the United States, thus there was jurisdiction in the United States to prosecute Bowen. But, if jurisdiction is not vested in the United States pursuant to statute, there is no jurisdiction; see Adams v. United States. 319 U.S. 312. 63 S.Ct. 1122 (1943).

The lower federal courts also require the presence of federal jurisdiction in criminal prosecutions. In Kelly v. United States, 27 F. 616 (D. Me. 1885), federal jurisdiction of a manslaughter committed at Fort Popham was upheld when it was shown that the U.S. owned the property where the offense occurred and the state had ceded jurisdiction. In United States v. Andem, 158 F. 996 (D.N.J. 1908), federal jurisdiction for a forgery offense was upheld on a showing that the United States owned the property where the offense was committed and the state had ceded jurisdiction of the property to the U.S. In United States v. Penn, 48 F. 669 (E. D. Va. 1880), since the U.S. did not have jurisdiction over Arlington National Cemetery, a federal larceny prosecution was dismissed. In United States v. Lovely, 319 F.2d 673 (4th Cir. 1963), federal jurisdiction was found to exist by U.S. ownership of the property and a state cession of jurisdiction. In United States v. Watson, 80 F. Supp. 649, 651 (E. D. Va. 1948), federal criminal charges were dismissed, the court stating:

"Without proof of the requisite ownership or possession of the United States, the crime has not been made out."

In Brown v. United States, 257 F. 46 (5th Cir. 1919), federal jurisdiction was upheld on the basis that the U.S. owned the post office site where a murder was committed and the state had ceded jurisdiction; see also England v. United States, 174 F.2d 466 (5th Cir. 1949); Hudspeth v. United States, 223 F.2d 848 (5th Cir. 1955); Krull v. United States, 240 F.2d 122 (5th Cir. 1957); and Gainey v. United States, 324 F.2d 731 (5th Cir. 1963). In United States v. Townsend, 474 F.2d 209 (5th Cir. 1973), a conviction for receiving stolen property was reversed when the court reviewed the record and learned that there was absolutely no evidence disclosing that the defendant had committed this offense within the jurisdiction of the United States. In United States v. Benson, 495 F.2d 475,481 (5th Cir. 1974), in finding federal jurisdiction for a robbery committed at Fort Rucker, the court held:

"It is axiomatic that the prosecution must always prove territorial jurisdiction over a crime in order to sustain a conviction therefor."

In two Sixth Circuit cases. United States v. Tucker, 122 F. 518 (W. D. Ky. 1903), a case involving an assault committed at a federal dam, and United States v. Blunt, 558 F.2d 1245 (6th Cir. 1977), a case involving an assault within a federal penitentiary, jurisdiction was sustained by finding that the U.S. owned the property in question and the state involved had ceded jurisdiction. In In re Kelly, 71 F. 545 (E. D. Wis. 1895), a federal assault charge was dismissed when the court held that the state cession statute in question was not adequate to convey jurisdiction of the property in question to the United States. In United States v. Johnson, 426 F.2d 1112 (7th Cir. 1970), a case involving a federal burglary prosecution, federal jurisdiction was sustained upon the showing of U.S. ownership and a state cession. And cases from the Eighth and Tenth Circuits likewise require the same elements to be shown to demonstrate the presence of federal jurisdiction; see United States v. Heard, 270 F. Supp. 198 (W. D. Mo. 1967); United States v. Redstone, 488 F.2d 300 (8th Cir. 1973); United States v. Goings, 504 F.2d 809 (8th Cir. 1974) (demonstrating loss of jurisdiction); Hayes v. United States, 367 F.2d 216 (10th Cir. 1966); Hall v. United States, 404 F.2d 1367 (10th Cir. 1969); United States v. Carter, 430 F.2d 1278 (10th Cir. 1970); and United States v. Cassidy, 571 F.2d 534 (10th Cir. 1978).

Of all the circuits, the Ninth Circuit has addressed jurisdictional issues more than any of the rest. In United States v. Bateman, 34 F. 86 (N. D. Cal. 1888), it was determined that the United States did not have jurisdiction to prosecute for a murder committed at the Presidio because California had never ceded jurisdiction;

see also United States v. Tully, 140 F. 899 (D. Mon. 1905). But later, California ceded jurisdiction for the Presidio to the United States, and it was held in United States v. Watkins, 22 F.2d 437 (N. D. Cal. 1927), that this enabled the U.S. to maintain a murder prosecution. See also United States v. Holt, 168 F. 141 (W. D. Wash. 1909), United States v. Lewis, 253 F. 469 (S. D. Cal. 1918), and United States v. Wurtzbarger, 276 F. 753 (D. Or. 1921). Because the U.S. owned and had a state cession of jurisdiction for Fort Douglas in Utah, it was held that the U.S. had jurisdiction for a rape prosecution in Rogers v. Squier, 157 F.2d 948 (9th Cir. 1946). But, without a cession, the U.S. has no jurisdiction; see Arizona v. Manypenny, 445 F. Supp. 1123 (D. Ariz. 1977).

The above cases from the U.S. Supreme Court and federal appellate courts set forth the rule that in criminal prosecutions, the government, as the party seeking to establish the existence of federal jurisdiction, must prove U.S. ownership of the property in question and a state cession of jurisdiction. This same rule manifests itself in state cases. State courts are courts of general jurisdiction and in a state criminal prosecution, the state must only prove that the offense was committed within the state and a county thereof. If a defendant contends that only the federal government has jurisdiction over the offense, he, as proponent for the existence of federal jurisdiction, must likewise prove U.S. ownership of the property where the crime was committed and state cession of jurisdiction.

Examples of the operation of this principle are numerous. In Arizona, the State has jurisdiction over federal lands in the public domain, the state not having ceded jurisdiction of that property to the U.S.; see State v. Dykes, 114 Ariz. 592, 562 P.2d 1090 (1977). In California, if it is not proved by a defendant in a state prosecution that the state has ceded jurisdiction, it is presumed the state does have jurisdiction over a criminal offense; see People v. Brown, 69 Cal. App.2d 602, 159 P.2d 686 (1945). If the cession exists, the state has no jurisdiction; see People v. Mouse, 203 Cal. 782,265 P. 944 (1928). In Montana, the state has jurisdiction over property if it is not proved there is a state cession of jurisdiction to the U.S.;

see State ex rel Parker v. District Court, 147 Mon. 151,410 P.2d 459 (1966); the existence of a state cession of jurisdiction to the U.S. ousts the state of jurisdiction; see State v. Tully, 31 Mont. 365, 78 P. 760 (1904). The same applies in Nevada; see State v. Mack, 23 Nev. 359,47 P. 763 (1897), and Pendleton v. State, 734 P.2d 693 (Nev. 1987); it applies in Oregon (see State v. Chin Ping, 91 Or. 593, 176 P. 188 (1918), and State v. Aguilar, 85 Or. App. 410, 736 P.2d 620 (1987)); and in Washington (see State v. Williams, 23 Wash. App. 694, 598 P.2d 731 (1979)).

In People v. Hammond, 1111.2d 65, 115 N.E.2d 331 (1953), a burglary of an IRS office was held to be within state jurisdiction, the court holding that the defendant was required to prove existence of federal jurisdiction by U.S. ownership of the property and state cession of jurisdiction. In two cases from Michigan, larcenies committed at U.S. post offices which were rented were held to be within state jurisdiction; see People v. Burke, 161 Mich. 397, 126 N.W. 446 (1910), and People v. Van Dyke, 276 Mich. 32, 267 N.W. 778 (1936). See also In re Kelly, 311 Mich. 596, 19 N.W.2d 218 (1945). In Kansas City v. Gamer, 430 S.W.2d 630 (Mo. App. 1968), state jurisdiction over a theft offense occurring in a federal building was upheld, and the court stated that a defendant had to show federal jurisdiction by proving U.S. ownership of the building and a cession of jurisdiction from the state to the United States. A similar holding was made for a theft at a U.S. missile site in State v. Rindall, 146 Mon. 64, 404 P.2d 327 (1965). In Pendleton v. State, 734 P.2d 693 (Nev. 1987), the state court was held to have jurisdiction over a D.U.I, committed on federal lands, the defendant having failed to show U.S. ownership and state cession of jurisdiction.

In People v. Gerald, 40 Misc.2d 819, 243 N.Y.S.2d 1001 (1963), the state was held to have jurisdiction of an assault at a U.S. post office since the defendant did not meet his burden of showing presence of federal jurisdiction; and because a defendant failed to prove title and jurisdiction in the United States for an offense committed at a customs station, state jurisdiction was upheld in People v. Fisher, 97 A.D.2d 651, 469 N.Y.S.2d 187 (A.D. 3 Dept. 1983). The proper method of showing federal jurisdiction in state court is demonstrated by the decision in People v. Williams, 136 Misc.2d 294, 518 N.Y.S.2d 751 (1987). This rule was likewise enunciated in State v. Burger, 33 Ohio App.3d 231, 515 N.E.2d 640 (1986), a case involving a D.U.I, offense committed on a road near a federal arsenal.

In Kuerschner v. State, 493 P.2d 1402 (Okl. Cr. App. 1972), the state was held to have jurisdiction of a drug sales offense occurring at an Air Force Base, the defendant not having attempted to prove federal jurisdiction by showing title and jurisdiction of the property in question in the United States; see also Towry v. State, 540 P.2d 597 (Okl. Cr. App. 1975). Similar holdings for murders committed at U.S. post offices were made in State v. Chin Ping, 91 Or. 593, 176 P. 188 (1918), and in United States v. Pate, 393 F.2d 44 (7th Cir. 1968). Another Oregon case. State v. Aguilar, 85 Or. App. 410, 736 P.2d 620 (1987), demonstrates this rule. Finally, in Curry v. State, 111 Tex. Cr. 264, 12 S.W.2d 796 (1928), it was held that, in the absence of proof that the state had ceded jurisdiction of a place to the United States, the state courts had jurisdiction over an offense.

Therefore, in federal criminal prosecutions involving jurisdictional type crimes, the government must prove the existence of federal jurisdiction by showing U.S. ownership of the place where the crime was committed and state cession of jurisdiction. If the government contends for the power to criminally prosecute for an offense committed outside "its jurisdiction," it must prove an extra-territorial application of the statute in question as well as a constitutional foundation supporting the same. Absent this showing, no federal prosecution can be commenced for offenses committed outside "its jurisdiction."

END NOTES:

[1] See Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 529, 5 S. Ct. 995 (1885).

[2] The statutory definition of "United States" as expressed in this § 5 is identical to the constitutional definition of this term; see Cunard S. S. Co. v. Mellon, 262 U.S. 100,43 S. Ct. 504 (1923), which deals with the definition of "United States" as used in the 18th Amendment.

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[Note for the reader: The above memo discusses only about 140 cases. If you wish to find more cases addressing the issue of federal territorial jurisdiction, please see the other 3 separate files noted on the web page. The important U.S. Supreme Court cases are all cataloged in their own file; the same type of cases from each federal circuit and each state are found in the other two files. If you wish to learn more about how federal laws are applicable outside "its jurisdiction," please study the brief regarding treaties.]

TRY THE LAW

The scene is a somber federal courtroom. The lengthy trial on a charge of weapons possession has just ended.

"Ladies and Gentlemen of the jury, the testimony has now concluded. We will take the time to determine the innocence or guilt of Mr. John Watkins.

"You have heard all the testimony from the prosecution and defense attorneys. You will soon retire to the jury room for your deliberations. All the evidence presented at this trial will be there with you for your examination and use in reaching a verdict.

"During your deliberations, I charge you with determining the facts presented in this litigation and the facts only. I will now instruct you on the law concerning this case and under which Mr. Watkins has been tried."

"If you have any questions during your deliberations concerning what I am about to instruct you, please make a written request to the Court. Cite what you do not understand. The Bailiff will bring your question into the Court and I will answer it."

Now, in a usual monotonous voice, the judge will read his interpretation of the laws involved. If you can stay awake and understand a small part of what 'His Honor" is saying consider yourself fortunate.

This whole setup is called 'Judicial Supremacy'. They purposely constructed court rooms so the judge sits higher than everyone else. That forces you to look up to him. He lords it over everyone that he is only the person who has any say-so on the law.

This is a lie... a real legal fairy tale. The reason for a jury has been turned upside down. In past years it bears no similarity to the true purpose of your duty as a juror.

Your obligation is not only to determine the innocence or guilt of the accused; it is also to examine the law!

Let's get back to basics and define a law. The supremacy clause of our Constitution is explicit when it says it and only laws made following its power and restrictions are the supreme law of the land.

The key words are laws made following the power in the document. If they pass a law beyond the permission we granted, then what? It would NOT conform to the document and is no law. And how would you know?

The first requirement is that you know something about our Constitution. Without this knowledge, these legal eagles will continue to make monkeys of you. It would be ridiculous to memorize the document and no one expects that. Nevertheless, the purpose of the jury is to safeguard other citizens from an overzealous government. You should know where to look to see if they have the authority to pass the law under which they are accusing the person on trial.

There are only four crimes listed in our Constitution. These are:

1. Counterfeiting of securities and current coins, (Art I, Sec 8)

2. Piracies and felonies committed on the high seas, (Art I, Sec 8)

3. Treason against the United States (Art III, Sec 3)

4. Offenses against the law of nations (Art I, Sec 8)

That's it! We gave NO power to Congress beyond these four to define a crime. Sounds weird... but it's true. In 1821, Chief Justice John Marshall, of the United States Supreme Court stated in an opinion, "Congress has a right to punish murder in a fort, or other place within its exclusive jurisdiction; but no general right to punish murder committed within any of the States." Further, he added, "It is clear, that Congress cannot punish felonies generally;" (Cohen v Virginia, 4 Wheat (US) 264) (1821).

Unless you are a juror in a case (federal) charging someone with a violation of one of the four listed crimes, there is no criminal law. And you cannot judge the persons' innocence or guilt. You have no right to convict.

That's a heavy statement. Let's see if it's true ...

The determination of crimes and criminal acts were designated as state functions. They are still state functions today and of no concern to the federal government. This is verified by the instructions in Art IV, Sec 2, clause 2.

We have established repeatedly that our Constitution is the supreme law of the land. Nowhere have we given Congress the power to determine any act by a citizen to be a crime. The document is full of 'thou shalt nots' directed at the government. The consensus of some of our Founding Fathers was that the powers given, limited as they are, were much too dangerous.

The Tenth Amendment restates the 'thou shalt nots'.. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the People." It is an absolute bar to the federates assuming any power we did not grant to them.

For the sake of illustration, this trial was about the possession of weapons. The Second Amendment prohibits the Congress from passing ANY law which will infringe on the right to keep and bear arms. And here the 'justice' dept is after someone for possession of weapons? It's no good. The law is a myth.

Hamilton makes it clear in Paper No. 83 that the 'thou shalt nots' are there. Their powers are specific and limited. These specific powers preclude all assumption of a general legislative authority. Being specific, it would be absurd as well as useless if a general authority was intended. (As before, all references to 'paper no.' are from The Federalist Papers.) Where can Congress find the right to assume power to define crimes if the permission were not specifically granted by us?

For the past hundred or more years. Congress has been busy writing all sorts of laws for which we gave no permission. The worse period for illegal and bad laws was during the period of the 1930's. This was when the exercise of control over the American people went wild. This is one reason why the purpose of the jury is so important today.

The people who work for the government have a job as a result of our Constitution. If it were not that we agreed to government, their positions would not exist. There is no other way to look at it. It is our right and our duty to check on what they are doing. This of course includes the laws they are passing.

And what do we check them against? The supremacy clause holds the key. If they do not conform, they are no good — they are not laws. Can't make it any plainer.

Our Fifth Amendment guarantees you and I due process of law. This is an extremely important statement. They cannot take life, liberty or property unless this requirement for due process is followed. Our basic law holds the precedence. If the government does not obey a command of the document, anything that comes as a result does NOT follow due process.

It doesn't take a unanimous jury to say the law is no good. It takes only one knowledgeable person to refuse to convict and the law, for that instance at least, has been neutralized.

This is jury nullification of laws. This was the intent of our jury system from the beginnings of our system of government. The Supreme Court has agreed with that premise. (Georgia v Brailsford, 3 US 1) (1794) There are decisions in law books which show the jury is to try both law and fact. These were many years in our past. The drive by federal judges to establish the judicial branch as the most powerful branch of government has hidden this point. Today the people believe only judges can tell the jury what the law means. Surprised? This is legal fiction... Buffalo chips!

A phrase nearly everyone is familiar with is ignorance of the law is no excuse. What excuse does a judge have for not knowing the law? (Or do you think perhaps he might?)

How about all the lawyers we have in Congress making laws? What about the lawyers in that court room? If this statement has any validity, it applies to everyone.

Now what would you do in a situation like this? Send a note with the bailiff to the judge saying the law is no good so you cannot vote for conviction? This would probably end with you receiving a contempt citation from the judge and off to jail you go without passing go! After all, the man in the black robe has instructed you on the meaning of the law. The alternative is to refuse to convict. No matter what pressure you feel from the other jurors. Knowing the national government has no power to define a criminal act, how can you consider a persons guilt and perhaps ruin someone's life?

Now your duty as a juror becomes paramount. The people who are passing these laws and those who are enforcing them are guilty of breaking the law. We have ordered each person who works for government to swear to God they will support our Constitution. Another command of the document which Congress ignores in many instances. More hanky-panky.

The ease with which they do these unconstitutional practices reflects on us. Sadly, we don't know what the Constitution says. We have paid no attention to what the government has been doing to our rights and with their allotted powers.

The eternal vigilance recommended by Jefferson has gone to sleep. We have not been watching our elected representatives. I assure you these people who exceed their powers know exactly what they're doing. They know good people are reluctant to raise a fuss to make it stop. Those with a lust for greed and power continue on their merry way.

Back to your duty as a juror. By simply resisting the pressure of other members of the jury and refusing to convict, the government will be denied a conviction. No question this is an awkward position to be in. You may feel this person is guilty of something. However, you can't bow to pressure to find a person guilty when we denied the federal government the power to establish the crime.

You can rest assured if the person is a criminal, he will continue his criminal activity and be back in court again. The next time perhaps in a state court and not a federal court.

There has been an assumption in this country that a person is innocent until proven guilty. The attitude in courts today is frightening. Many people feel if the government has gone through all the work and investigation, the person must be guilty. Guilty until proven innocent? That puts the cart before the horse. This position is dangerous to the survival of our Republic and a task which is nearly impossible to overcome in court. Don't let them use you in this manner. That's exactly what they are doing.

Alexander Hamilton made this very point in Paper No. 65: "But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate on the verdict of a jury acting under the guidance of judges who had predetermined his guilt?"

What about grand juries? The only mention of them is in the Fifth Amendment. This is the first hurdle the government has to overcome to bring a person to trial. It is the obligation of the Grand Jury to investigate allegations on it's own. They should never simply accept what a government attorney charges.

Grand Juries are completely independent bodies. They do not belong to the Court system or the US Attorneys office. The Court calls Grand Juries into session from lists of names maintained by the US Attorneys office. Yet they are independent! They have no right to determine guilt. Their only duty is to see if US laws were violated and if they were, to issue an indictment against an individual.

Some Grand Juries have earned the name of "rubberstamp" juries. They have accepted what a US Attorney charges against an individual without conducting an investigation on their own. This is how badly the protection of our citizens has eroded in the past years. It's a sad comment on American justice and proves how we have been bamboozled by our public servants.

The first investigation conducted has the same requirement as for the petit jury. Does the law meet with the requirements of our Constitution? Simply because a US Attorney says the violation is of one of US laws doesn't mean it's true. In legal circles this is called jury manipulation. You are being used by the US Attorney to indict a person simply on his word. Charges must be investigated independently.

Do you know a US Attorney does not take an oath to support the Constitution as required? He has no authority to stand before the Grand Jury and make a charge against anyone.

The requirement that all officers take an oath or affirmation to support the Constitution includes the executive branch. There are no exceptions. The US Attorney works for the Justice Department, part of the executive branch. Nonetheless, the US Attorney takes an oath only to perform his duties faithfully. This is in section 544 of the Judicial Code, Title 28, United States Code.

Do you see why the federates don't want anyone to know that juries have the obligation to try the law also? If there is no power to define a crime, you as a member of a Grand Jury have no authority to issue an indictment.

How can anyone argue with this premise? The Constitution established that Congress can make no law which is beyond their specified and granted powers. The jury system, both petit and grand, is the basic protection for us as citizens against overzealous government and agents. Jury duties and functions have been very slowly curtailed by the government. That way they can exercise control over the people as they see fit.

One great man in history made the statement: "The more corrupt the state, the more numerous the laws." (Cornelius Tacitus, Roman senator and historian. A.D. c.56-c.l 15). Congress has been busy for years writing laws for which we gave no permission. We must get our ambitious public officials back within the confines of our basic law.

Are we being led down the road to slavery like sheep?

Has this great country become a nation of wimps ... people who are afraid to challenge the government when it breaks the law? Will we wake some fine morning to find we are now a minor member of the New World Order? It's closer than any of us dare to imagine. Wake up, people!

What will it be like in this country for us, for our children and grandchildren if we don't take control of the government? Perhaps you or one of your children will be in the same position as the man in this story. Your duty as a juror is of the utmost importance in the guarantee of our basic protections.

This same principle applies to state courts. All states must obey the Constitution, either by ratification of the document or on being granted statehood. The requirement for officials to take an oath to support the document also applies to state officials. Each reader should at least know the authority the state has received from your particular state constitution. Find a copy of it or write your state representative and request a copy. Then you will be able to familiarize yourself with its authority.

Our very survival depends on alert Americans. Ignorance is NO defense! Languishing in prison on an illegal conviction is a travesty.

You and I are the sovereigns. We must begin to act like a sovereign. Otherwise, our birthright of life, liberty and happiness will disappear like a puff of smoke.

THERE ARE TRAITORS WITHIN THE GATES!

mailto'.knobby @ connect!, commailto:knobby @ connecti. corn knobby @ connecti. Corn



4. Of Note...

Apparently members of the common law court movement have no problem with ignoring the concept of separation of powers—they have on a number of occasions filed documents intended to command that their state legislatures rethink longstanding statutes. Kidding aside, members of the movement attempt to take public participation to a fascinating new level, a sort of "if you can't join them, join them" philosophy in which the movement tries to bring about social change by literally commanding those in power to bring it about. Following are some examples of this odd trend.

Colorado Findings of Fact and Redress for Grievances

(To be heard April 29 by Colorado State Legislature, 1:30 p.m.. Old Supreme Court Chambers committee room on second floor, north end of Colorado State Capitol, Denver.)

Country of Colorado Our One Supreme Court

Common Law Venue; Original and Exclusive Jurisdiction Outside the

District of Columbia

In Fremont County, Colorado Republic

People, for Colorado Republic, )

ex rel, ) "IN LAW"

Demandant, Plaintiff, )

)

vs. ) “IN LAW”

)

STATE OF COLORADO, ) Redress Of Grievance

“its” political subdivisions and ) Grievance

officers thereof, et al )

Respondents, Defendants ) Case – Colorado 95-1

Specifically To: )

)

)

) Petition de Droit

) and

) Command To Show Cause

)

)

PRAECIPE

(Summons)

I, Alvin Jenkins, special appointed clerk, in and for Colorado Republic, hereby under the order and authority of the People for the several counties, command the above named defendants to show lawful cause and place into evidence by signed affidavit. Lawful documentation of the "Emergency Government" described in the attached pages ____through ____. This Colorado Common Law Assembly has concluded, "In Law", that no authority or necessity exists for an "Emergency Government" and that such a government is operating against the best interest and will of the Sovereign People, the "state" in fact. Affidavits of response must be sent to the above Clerk of Court address within 60 days of day served, exclusive of day received. If no Lawful evidence to the contrary is received, these facts stated as Truth and this Assembly of the Sovereign People shall continue "in Law" to remove this bondage from us. _____________________________ Special Appointed Clerk

Country of Colorado Republic )

) ss: Affidavit of Return

In and for the several counties )

I, _______________________, special appointed private courier, attest and acknowledge that I did serve upon above specifically named defendant by Contract via insured RRR Mail # _____________ this Praecipe and Attached Exhibits.

AFFIDAVIT

I, Alvin Jenkins, special appointed Clerk of the Court, for the term, hereby Attest and Acknowledge that the following is True, Correct, and Certain, in relation to the record of proceedings that are in my possession for safe-keeping, but open to the public for review.

1. War & Emergency Powers Special Report

2. Constitution: Fact or Fiction

3. Working Paper 9405

A. Colorado Legislative Acts

B. Kevin Tebedo Testimony

C. Colorado Legislative Acts

D. Jury List

E-l. Colorado Constitution

E-2. 10th Amendment Resolution

I, Alvin Jenkins, attest; 1) that the above is as recorded within the Case Jacket in my possession and open for review upon request, and 2) the attached _____ pages are True, Correct, and Certain copies of the Original Petition for Redress of Grievance by the Common Law Assembly.

Attest: __________________________

Alvin Jenkins

COUNTY OF BACA )

) ss:

STATE OF COLORADO )

Subscribed and sworn to before me this ____ day of October, 1995.

Witness my hand and official seal.

My Commission Expires: ________________

_____________________________________ Notary Public

._____________________________________ Address

Country of Colorado

Our One Supreme Court

Common Law Venue; Original and Exclusive Jurisdiction Outside the District of Columbia In Fremont County, Colorado Republic People, in and for the )

United States of America, ex rel, )

Plaintiff, )

Governor Roy Romer, )

Attorney General Gail Norton )

Colorado State Senators )

Colorado State Representatives ) Colorado 95-1

Colorado Supreme Court Judges )

Colorado Court of Appeals Judges )

Colorado District Court Judges )

All County Court Judges )

All County Commissioners )

All State Agencies )

All Elected or Appointed Officials )

et al, )

Defendant[s]. )

Petition de Droit and

Command To Show Cause

Why the Emergency Statutes of the state should not be terminated, along with the War and Emergency Powers of the United States.

[...]

[ The "Colorado Common Law Jury" issued 18 "findings of fact," quoting at length from such sources as the Constitution, the Congressional Record, Communications of the President of the United States, among others, in support of its argument that neither the Federal Government nor the Legislature of Colorado had any authority to pass restrictive laws consistent with "emergency conditions" essentially in the period following the great depression.] [...]

II. CONCLUSIONS

1) The Colorado Common Law Jury concludes that the original Trading with the Enemy Act of October 6, 1917, passed by Congress during World War I, was valid and constitutional. Congress was within it's constitutional authority. Article I, Section 8, Clause 11 states:

"The Congress shall have Power to declare War, grant Letters of Manqué and Reprisal, and make Rules concerning Captures on Land and Water."

2) The Colorado Common Law Jury further concludes that Executive Order 2039, of March 6. 1933 and Executive Order 2040 of May 9, 1933 are invalid and unconstitutional; and further all Executive Orders, Proclamations, statutes, judgments, etc. made thereunder, and made thereafter, are likewise invalid and unconstitutional, for the following reasons:

a. Pursuant to Stoehr v. Wallace decided Feb. 28, 1921, which stated: "The Trading With the Enemy Act, original and as amended, is strictly a war measure and finds its sanctions in the provision empowering Congress 'to declare War, grant Letters of Manqué and Reprisal, and make Rules concerning Captures on Land and Water . . .'."

3) The Colorado Common Law Jury concludes that in his inaugural address of March 4, 1933, President Roosevelt acknowledged that no invasion or rebellion had taken place. Roosevelt proceeded by asking for:

"... broad Executive power to wage a war against the emergency, as great as the power that would be given me if we were in fact invaded by a foreign foe."

4) The Executive Order 2039 of March 6, 1933 was amended and in its final form included the American people and their transactions the same as "enemy" and made them subject to all the War-time Executive Orders, Rules, Regulations, Licenses etc.

5) The Colorado Common Law Jury not only concludes that there was an Act of "Fraud" perpetrated against the American people, but also an Act of Treason, under Article III, Section 3 of the United States Constitution.

Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

6) The Colorado Common Law Jury conclusion is further supported by Senate Report 93-549, which states in part A majority of the people of the United States have lived all of their lives under emergency rule. For 40 years, freedoms and governmental procedures guaranteed by the Constitution have, in varying degrees, been abridged by laws brought into force by states of national emergency.

and further states: "there is no present need for the United States Government to continue to function under emergency conditions." and further states:

"In the view of the Special Committee, an emergency does not now exist. Congress, therefore, should act in the near future to terminate officially the states of national emergency now in effect."

7) The Colorado Common Law Jury's conclusions are further supported by Working Paper 9405 by Walker F. Todd, writing for the Federal Reserve Bank of Cleveland. Coming "straight from the horse's mouth" -- Todd describes it as a "large-scale peacetime intervention," See page 2, Working Paper 9405. and further:

Hoover later wrote: "I had consulted our legal advisors as to the use of a certain unrepealed war power over bank withdrawals and foreign exchange. Most of them were in doubt on the ground that the lack of repeal was probably an oversight by the Congress, and under another law, all the war powers were apparently terminated by the peace. Secretary [or the Treasury Ogden] Mills and Senator Glass held that no certain power existed.

8) The Colorado Common Law Jury makes the conclusion that the overwhelming evidence is: that the War and Emergency Power Act was enacted at a time when the country was at peace and was not under threat of invasion and not in a state of rebellion, which is the controlling factor in this case.

9) The Colorado Common Law Jury further concludes that pursuant to the Kentucky Resolution, which spelled out the criminal jurisdiction of the United States to four specifics, i.e.: "1.) to punish treason; 2.) counterfeiting the securities and current coin of the United states;

3.) felonies committed on the high sea, and; 4.) offences against the law of nations." and further; that Congress had no other criminal jurisdiction, other than what was delegated to them by the Constitution, and further; the Colorado Common Law Jury concludes that the War and Emergency Power is synonymous with the Alien and Sedition Acts described in the Kentucky Resolutions of 1798; and further it is a matter of Res judicata. Whereto fore, Executive Order 2039 of March 6, 1933, and Executive Order 2040, and all statutes, orders, judgments, etc., passed thereunder are all void and having no authority, whatsoever.

10) In Colorado HE 89-1181 has been unconstitutionally used to usurp the right of the people to redress government through initiative and referendum.

11) In Colorado the "safety clause" found on most legislation is a fraudulent usurpation of the people's right of referendum.

12) In Colorado the repeal of anti-trust laws establishes a corporate government that conflicts with its interest and obligation in protecting the rights of the people of Colorado.

13) The Colorado Common Law Jury concludes that since March 9, 1933 the United States of America has been impoverished; during the past 45 years we have slipped from the wealthiest, most powerful nation on earth, to the world's greatest debtor nation, in imminent danger of catastrophic economic collapse, and further concludes that the exercise of War and Emergency Powers has impoverished the American and deprived Americans of unalienable rights, and have worked contrary to the safety, health, liberty and general welfare of the American people. The Colorado Common Law Jury on behalf of the People, in and for Colorado Republic, hereby Command the defendants to Show Cause why the Emergency Statutes passed within this state should not be terminated, along with the War and Emergency Powers of the United States. If the defendants should fail in any way to Show Cause, then this Finding of Fact and Conclusions by Our Court of First and Last Resort shall become a Superseding Judgment, and upon failure of the public to properly protest said judgment, it shall become. Case Res judicata. The Court is instructed to issue all necessary documents. I/we the Jurats of the Colorado Common Law Jury hereby attest and acknowledge that the above Finding of Facts and Conclusions are true, correct, certain, reliant and necessary to the well-being of the people of our Colorado Republic.

Our Finding of Facts and Conclusions of Law by our Colorado Common Law Jury is not reviewable by any other Court of the United States than in accordance to the rules of Common Law, per the seventh amendment to our National Constitution, nor subject to trespass by the judicial power of the United States as per the eleventh amendment to our National Constitution.

So agreed to and done this 19th day of August, 1995.

______________________________________________________________________ Per

curiam Per curiam curiam Per curiam

______________________________________________________________________ Per

curiam Per curiam curiam Per curiam

______________________________________________________________________ Per

curiam Per curiam curiam Per curiam

______________________________________________________________________ Per

curiam Per curiam curiam Per curiam

______________________________________________________________________ Per

curiam Per curiam curiam Per curiam

______________________________________________________________________ Per

curiam Per curiam curiam Per curiam

______________________________________________________________________ Per

curiam Per curiam curiam Per curiam

______________________________________________________________________ Per

curiam Per curiam curiam Per curiam

______________________________________________________________________ Per

curiam Per curiam curiam Per curiam

______________________________________________________________________ Per

curiam Per curiam curiam Per curiam

United States of America )

) ss:

Country of Colorado State )

I, _________________________, duly appointed, commissioned, and privately bonded National officer, hereby attest and acknowledge that the signatures of the above jurats are the ones chosen by the People of the several states, and that the jury was presented with testimony and the facts, pertaining to the necessity of the termination of the non-constitutional War and Emergency Powers, being perpetrated upon the American People. On this _____ day of June, 1995. __________________________

Notarial Officer Fee: ____________







STATE OF INDIANA ) IN THE MARION COUNTY SUPERIOR COURTS

) CRIMINAL DIVISION ROOM NO. 15

COUNTY OF MARION ) CAUSE NO. 49F14 9505 CM06 3632

STATE OF INDIANA, )

Plaintiff, )

) Filed April 25, 1996 (cited in NY Times June 1997)

v. )

LINDA THOMPSON, )

J.D. )

Defendant. )

AMICUS CURAE BRIEF

RE: INDIANA CONSTITUTION.

ARTICLE I SECTION 19

Comes now, R. J. Tavel, J.D., Indiana state coordinator for the Fully Informed Jury Association, Inc., [a not-for-profit educational organization organized pursuant to IRC §501(c)(3) headquartered in Helmville, Montana with affiliate chapters in all 50 states of the United States] who, in support of the continued vitality of the concept of jury nullification found in the body of our state's constitution [Ind. Const. art. I, sec. 19], here submits, by way of his amicus curae brief, that then Chief Justice Randall T. Shepard was speaking to this Criminal Court when he observed: "Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." [22 In. L. R. 575 (1989) quoting Mapp v. Ohio, 367 U.S. 643 (1961)].

The provision of jury nullification in the body of our constitution is not anomalous or even singular in its prescription since Article I Section 3 provides that no law may "interfere with the rights of conscience." Indeed, just as section 9 thereof affirms the rights of _expression in language much more comprehensive than the first amendment to the U. S. Constitution, the very provision of all Hoosiers" right to "due process" is more explicitly stated as a "guarantee that all courts shall be open and that every person shall have a remedy." These are not accidents or mere happenstance. Quite to the contrary, they are the result of great deliberation and are meant to stand as the fundamental provisions underlying the consent of the people to be governed by the state [1 Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana 1850 394 (1850)].

The state's attempt to cast the issue in terms of "legislating" is disingenuous, without merit in the case at bar and, further, does not square with Indiana history. Our Indiana Supreme Court has held, in a long line of cases, e.g., from the case of MacDonald v. State, [63 Ind. 544 (1878)] through that of the Indiana Court of Appeals in State v. Tyson, (lad. App., 1993) 619 N.E.2d 276, that, far from "legislating," the jurors "are oath-bound to find the facts honestly and accept the law faithfully as both exist, and . .. return a verdict which you find just and proper..." (Tyson, supra., at 299).

It is this last quoted phrase that is the operative concept underlying all of the foregoing writings in all of the aforementioned documents. Article I section 19 of the Indiana constitution is riot a grant of right from the state, it is a recognition of right, a God-given, unalienable right drawn from the command of Deuteronomy 16:20: "Justice, justice shall you pursue."

It is in "good conscience" that jurors pass upon the circumstances of a defendant. Legislation, being the last pronouncement of the community standard by our General Assembly, is sometimes out of step or behind the times, since the community standard is forever evolving. Fully informed jurors, by their verdicts, send legislators non-political democratic feedback about the laws they have enacted, which is essential for the proper functioning of our constitutional Republic. Most importantly, fully informed jurors act as the fourth and final check on the unrestrained often oppressive crush of government prosecutions brought at the whim of state officials for no valid reason concerning public safety but rather for petty, personal, political reasons that have no place in a court of law [see, e.g.. In Bushell's case, Vaughn. 135,124 Eng. Rep. 1006 (C.P. 1670), wherein Justice Vaughn found that the jurors who acquitted William Penn of unlawful assembly "against full and manifest evidence" and "against the direction of the court in matter of law" could not be fined or imprisoned; and see, J. Alexander, A Brief Narration of the Case and Trial of John Peter Zenger (1963). For many years following the Zenger case, it was generally recognized in American jurisprudence that juries in criminal cases had the "right" to decide the law, as well as the facts, and juries were so instructed (see, e.g., Skidmore v. Baltimore O.R. Co., 167 F2d 54, 57 (2d Cir. 1948).]

Last year, California's "trial of the century," People v. Oranthal James Simpson, has rekindled the fire and controversy surrounding jury nullification, just as New York's People v. Goetz raised the debate in 1988. While journalists and jurists alike proclaimed these to be "public-policy" verdicts, they were examples of jury nullification, and the majority of states have made provision for this right and power:

I. CURRENT CONSTITUTIONAL AUTHORITY FOR JURY NULLIFICATION:

The Constitutions of Maryland (Art. XXin, entire), Indiana (Art. I, sec. 19), Oregon (Art. I, sec. 16), and Georgia (Art. I sec. 1, para. 11, subsec. A), currently have provisions guaranteeing the right of jurors to "judge the law"; that is, to nullify the law. For example, the Georgia Constitution says: "In criminal cases, the defendant shall have a public and speedy trial.-.and the jury shall be the judges of the law and the facts." Attorneys in Georgia and Indiana are able to request nullification instructions from the judge to the jury and generally receive them, and are sometimes able to argue the law. Twenty states currently include jury nullification provisions in their Constitutions under their sections on freedom of speech, specifically with respect to libel and sedition cases:

Alabama (Art. I, Sec. 12); Colorado (Art. II, sec. 10); Connecticut (Art. I, sec. 6);

Delaware (Art. I, sec. 5); Kentucky (Bill of Rights, sec. 9); Maine (Art. I, sec. 4);

Mississippi (Art. 3, sec. 13); Missouri (Art. 1, sec. 8); Montana (Art. II, sec. 7); New Jersey (Art. I, sec. 6); New York (Art. I, sec. 8); North Dakota (Art. I, sec. 4); Pennsylvania (Art. I, sec. 7); South Carolina (Art. I, sec. 16); South Dakota (Art. VI, sec. 5); Tennessee (Art. I, sec. 19); Texas (Art. I, sec. 8); Utah (Art. I, sec. 15); Wisconsin (Art. I, sec. 3); Wyoming (Art. I, sec. 20). Of these, Texas, Delaware, Kentucky, North Dakota and Tennessee say that the jury is the judge of the law in libel and sedition cases, "as in all other cases." [Source: Alan W. Scheflin, "Jury Nullification: the Right to Say No", Southern California Law Review, 45, p. 204 (1972). This list has been updated to 1996.]

When there is division amongst the states on an important issue, trial judges often look to federal authorities for guidance, and such is instructive in this case. Modem Federal Jury Instructions (Sands, Siffert, Loughlin & Reis, Instruction 4-2) suggests that juries should be told that it is their "duty to acquit the defendant" if they harbor a reasonable doubt, however, rather than instruct juries that they have a corresponding "duty to convict," i.e., "must" convict if they are satisfied of the defendant's guilt beyond a reasonable doubt, the treatise recommends that juries be advised that they "should vote to convict: if the government has carried its burden (leaving a jury to conclude that it has the authority to nullify even in the absence of a reasonable doubt) [and our own federal district courts agree on this prerogative of the jury, see also, e.g.. United States v. Will L. Dawson, and Derrick Termail Willis, Criminal Cause Numbers: IP 95-0064M-01-02, citing approvingly Beaver v. State, 236 Ind. 549, 141 N.E.2d 118 (1957) to the effect that "Article I, Section 19 of the Indiana Constitution provides that 'in all criminal cases whatever, the jury shall have the right to determine the law and the facts.' However, jurors should be bound by their conscience and their oaths, and not act arbitrarily, capriciously, upon a whim or prejudice.] While logic would seem to dictate that a corollary obligation be imposed on jurors, it is reversible error to charge that the jury must explain their doubts ever since the ordeal of Edward Bushell and the Penn jury hereinabove.

HUGO BLACK, a great believer in the Jury system, used to tell this story-Years ago, in the foot-hills of Alabama, a tenant-farmer was charged criminally with stealing a cow from his landlord, and was brought to trial. As was frequently the case in rural America, the Jurors selected for the trial were acquainted with everyone, including the accused and his victim. Each juror knew that the farm's landlord was a nasty bastard who tormented his neighbors, while frequently treating the town's orphans and widows with derision. By the same token, the tenant-farmer was the salt of the earth, beloved by everyone. But still, the evidence of his guilt was indisputable. After the evidence was in and the jury retired to deliberate, it quickly returned to the courtroom to announce its verdict: "If the accused returns the cow, we find him not guilty." The judge was infuriated. His anger heightening, he commanded the jury to return to the jury room to deliberate —shrilly chastising them for their flagrantly "arrogant" and "illegal" verdict. Not a moment passed when they re-appeared in the tense courtroom to trumpet their new verdict: "We find the accused not guilty - and he can keep the cow."

The American Jury, Justice Black reminds his listeners, is effectively omnipotent in rendering an acquittal. What hits home in Justice Black's story is the deeply held American notion that juries often perform an independent role in a system in which the people - not prosecutors, judges or lawyers - have the last word. In the end, if the jury wishes to let the defendant keep the cow, that is what will happen. Respectfully submitted:




1 Reprinted with permission of the author


2 Reprinted with permission of the author

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