INTRO: With "common law" grand juries currently gaining popular attention,and various attempts to "institute" and apply these occurring across the country, these issues are obviously increasing in frequency, and should be examined. Some current examples are the case in Dixie County Florida, where Terry Trussell is facing 14 felony charges for "Impersonating a Pubic Officer" and "Unlawful Use of Simulated Legal Process", among other charges, now facing the possibility of the remainder of his life behind bars, or the Nevada common law grand jury claiming to have proved the "missing" 13th Titles of Nobility amendment was actually ratified by Virginia and thereby an actual amendment to the Constitution, or National Liberty Alliance's own "Quo Warranto" (pdf) petition to various federal judges.
ARE SO-CALLED "COMMON LAW" GRAND JURIES VALID?
Some have claimed that Common Law Grand Juries are supported by the Constitution itself, and even cite Supreme Court decisions, particularly United States v Williams (1992), as supporting these ad hoc common law grand juries. However these claims do not appear to have any actual truth to them.
The only place the U.S. Constitution specifically references "common law" is the 7th Amendment, where it is an incidental reference in regard to legal suits, and then is only to affirm the right to trial by jury, not affirming the "common law" as any sort of guiding philosophy of this country, nor referencing "common law" grand juries in any way.
In 1992, Antonin Scalia made citations to the Grand Jury in United States v Williams, and referenced a few Supreme Court cases in doing so:
United States v. Chanen (1977, citing Nixon v. Sirica, 1973): "the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It is a constitutional fixture in its own right.”
Scalia also stated: “the grand jury is an institution separate from the courts, over whose functioning the courts do not preside…”
Scalia there also indicated:
“In fact, the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people. See Stirone v. United States, 361 U.S. 212, 218 (1960); Hale v. Henkel, 201 U.S. 43, 61 (1906); G. Edwards, The Grand Jury 28-32 (1906). Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. See United States v. Calandra, 414 U.S. 338, 343 (1974); Fed.Rule Crim.Proc. 6(a). [504 U.S. 36, 48] “
Of note, all of the above references are specifically to “Grand Jury” and nowhere particularly indicating “common law grand jury”, thereby not serving to validate those common law grand juries, contrary to claims. In fact the idea of an ad hoc common law grand jury being formed entirely independently of the the judicial system is undermined by Scalia’s above statement, “in the courthouse and under judicial auspices”. These Supreme Court references in no way serve to validate “common law grand juries”, as they are currently being envisioned and formed, but rather provide cause to question their validity.
The claim is made that these common law grand juries actually have precedent in American history, which is somewhat true, but overall inaccurate. During America's early history, when there were municipalities or districts without any established court of their own, circuit judges would indeed travel from district to district and rely on the presentment "charges" of such common law grand juries in order to hold trials. However these grand juries were not formed from hand-picked jurors, resulting in a stacked jury, nor did they involve claims of absolute authority above any existing courts, as is currently being done. There is no validation for what is currently being done in America's past, or Britain's common law either.
Attorney Leo Donofrio, who led two of the earliest court challenges to Obama's qualification to hold the Presidency in New Jersey and Connecticut, has also been an early proponent of using Grand Juries to pursue government wrong-doing. In fact Donofrio wrote an early article titled "The Federal Grand Jury is the 4th Branch of Government", in which citizens use these Grand Juries to counter and correct government wrong-doing and corruption. However Donofrio later removed that article from his blog when a Georgia Grand Jury, allegedly inspired by Donofrio himself, indicated it had authority to confiscate people's property, and even take their homes, which would be criminal acts.
That article is still available on the Internet "Wayback" archive site here:
The Federal Grand Jury is the 4th Branch of Government
Take note, in that article title Donofrio specifies that it is the "Federal" Grand Jury that is the 4th branch of government, not just any Grand Jury, and notably not "common law".
Donofrio then wrote an article titled, "The Georgia Citizens Grand Jury Must Be Condemned" in which Donofrio made the following clarification of his previous discussion of FEDERAL Grand Juries:
My grand jury 5th amendment “power of presentment” articles were meant to educate people as to their power ONCE SWORN IN AS A FEDERAL GRAND JUROR in a federal court.
The articles weren’t meant to encourage citizens to form their own grand juries and prosecute at will. There is no such guarantee in the Constitution. And I am a true believer in the Constitution. Are you?
Here Donofrio indicates that there is no such authority for people to independently form their own "common law" Grand Jury, under the belief they might prosecute "at will".
Unfortunately we have very extreme, ill-formed, and even dangerous beliefs held by these common law grand jury proponents, none of which are valid.
The National Liberty Alliance indicates (pdf) that the source of authority for these common law grand juries is the common law itself, stating, ""The Common Law is the jurisdiction that our founders set in motion when creating the United States of America" and "Common Law is Natural Law, America was founded on Common Law." None of these claims are even remotely true. This country's original foundation in British common law, did not involve any separate jurisdiction, and that common law was not actually relied on by the Constitution, which brought the United States of America into existence, but rather profoundly rejected by that Document. Furthermore, "common law" is not at all the same thing as Natural Law and, in fact, the two considerations are entirely separate from one another, even by definition! While the States originally utilized some terms, principles and practices inherited from British common law, that common law was never a founding principle of this country, and the Constitution in no way relied on common law.
George Mason, "Father of the Bill of Rights"
Debate in Virginia Ratifying Convention, 19 June 1788
"The common law is gone. The federal courts never applied the common law and even in the state courts it's codified now."
Justice Antonin Scalia, Federalist Society address, Nov 22, 2008
Perhaps the biggest irony of NLA's "Quo Warranto" asking "by what authority" those federal judges act, is questioning the very authority by which NLA itself demands those judges fill out their questionnaire, and demands they provide a "surety bond", or else provide their detailed financial statement, with the obvious presumption being that NLA itself will act entirely illegally to confiscate that bond, or those financial assets, when NLA deems they have not adhered to unspecified common law principles that do not exist, and are not a part of this country!
The Nevada "Superior Court Common Law Venue" indicates its own jurisdiction to to be "Original and Exclusive Jurisdiction", and prominently declares ahead of its findings that, "Its decision cannot be reviewed by any other court of the land." Oh really? It is impossible that a grand jury formed in 2014, without any authority under law, to have any "original" jurisdiction at all, much less "exclusive" jurisdiction. Furthermore, every single American should be disturbed by any group willing to declare itself entirely UN-contestable, above any law and court, and unable to even be questioned, much less challenged.
"COMMON LAW" VERSUS "NATURAL LAW"
There is a gross misunderstanding of what the "common law" is on the National Liberty Alliance site, and by "common law grand jury" proponents generally. The Common Law is not something sacrosanct in this country, and is NOT at all synonymous with our own understanding of Natural Law unalienable rights.
British common law is nothing more than the cumulative decisions, practices and general principles of the British courts that were never codified into law. That's it!
In fact that British common law is founded on Feudal philosophy of noblesse oblige wherein a person is born into a position in society with obligation to those above them. British common law actually also uses the term "Natural Law", in representing this "natural" feudal obligation to those above oneself in society, as discussed at length in Lord Coke's decision in Calvin's Case, 1608. It is "natural" for persons to be subservient to those above them. These feudal common law principles result in the doctrine of "Perpetual Allegiance," an indelible obligation to Crown, country and one's superiors that can never be broken, never severed by one's own choice, unless by death itself. As Americans, we specifically rejected that feudal common law doctrine of Perpetual Allegiance in the War of 1812.
These common law foundations are entirely antithetical to our own Natural Law understanding of rights being innate to the individual, unalienable, and coming from "Nature's God", certainly not allowed us by others in a caste society.
Under British common law, the law of the Creator is conflated with the law of England and being lain down via edict to the common man from that divine Crown through the judiciary. The King is viewed as both head of the Anglican church and state as well. By this, under common law, anyone in disagreement with the state is viewed as a hostile, with Jews being recognized as enemies with no real standing in Court, and having little assurance as to property rights.
Natural Law is recognized, by definition, as being entirely outside of man-made Positive Law. That man-made Positive Law consists of "statute", those laws that are codified and written down, and those things that are not codified as any singular law but still recognized as directing principle, "case law", with this generally including what is referenced as "common law." However "common law" is not necessarily recognized as being binding. Common Law is a part of that man-made Positive Law, and entirely outside of Natural Law.
Natural Law and Common Law really have nothing to do with one another.
Given these facts, the claim that "common law" grand juries have some overriding authority, and are founded in American principles protecting individual rights, is a stunning ignorance demonstrating a failed understanding of both this country, as well as the issues these groups claim authority regarding.
IMPLICATIONS OF "COMMON LAW" GRAND JURIES BEING VALID
If such a thing were ever recognized, it would eventually result in citizen's grand juries being formed at a whim, and "stacked" with people intending to reach a pre-ordained conclusion, resulting in presentments or indictments for things that really are not all that legitimate. Someone might even be criminally charged for eating a pastry into the shape of a gun.
Then there's always the old cliche, "a grand jury would indict a ham sandwich."
Imagine the pure Hell that would be unleashed if the angry mobs in Ferguson could legitimately form their own "common law Grand Jury", and then pronounce a true bill presentment charging Officer Wilson with First Degree Murder, overruling the previous Grand Jury, and the Missouri State Attorney would then be obligated to follow up on that charge, by arresting and trying Wilson for his very life. This could still happen despite a Grand Jury having already resolved that there was no evidence to charge Wilson.
Why wouldn't a grand jury formed by and from the angry mobs of Ferguson be valid? There is no special process involved in forming or validating those "common law" grand juries, and certainly everything inviting them to be "stacked" with people of whatever belief. That "angry Ferguson mob" could form their own "common law" grand jury, every bit as legitimate as any other common law grand jury.
Seriously, pause and consider if this were true, any group of people could go off and form their own legitimate "common law" grand jury, and suddenly you yourself might have to answer to that jury's charges in an official court of law.
Or WORSE! If they can do their own charges (presentments), why not their own convictions too? We might have to answer to some unknown body of people, formed under unknown terms, acting entirely outside of the legal system, perhaps not even convening inside a courthouse, perhaps with a serious grudge against us for whatever reason, and they would be able to actually put us on trial for something, anything, perhaps having us fight in their fabricated court for our very lives!
If such things were allowed, none of us, not-a-one, would ever be safe from wild charges coming out of nowhere, or trials for our very life, liberty, and property in "no holds barred" makeshift courts in the middle of nowhere. No one would ever be truly safe.
This is not how we fix things. It is how the justice system and society itself would become forever broken, subject to mob rule, and America lost in absolute Anarchy, never to be a Republic again.