Magna Charta, The Egg Farmer, And Jade Helm

jadeee helm

by Mary W Maxwell, PhD, LLB, July 31, 2015.

So far I have not heard of anyone resisting Jade Helm. It is good to see, however, that there are Youtube videos of citizens resisting pull-overs by cops. Some have had 4 million hits.

You know, it takes a lot of work to find out how to resist. I discovered a good piece the other day written by an Australianized American, Terry Shulze. As a barrister he was defending an egg farmer from having to have his business dictated to by a monopoly. Give me ten minutes of your time to see how he ran the case. It’s  ’Tude City, believe me.

Here’s an idea that Shulze drew from the Case of Monopolies — of 1602!  “It was recognized at page 1263 of the Case of Monopolies “that every man’s trade maintains his life and the high value placed upon this aspect of personal liberty.”

That happily reminds me of Judaic law. See Meir Tamari’s coverage of rabbinic court rulings in The Challenge of Wealth: a monopoly goes against a man’s right to make a living.

Moving along to the very next page, Page 1264 of the Case of Monopolies, Shulze reports: “Further is the recognition of the deception of the sovereign in granting such a monopoly as for the public good, when it will actually be employed for private gain of the monopoly to the prejudice of the public.”

Who can say today whether a company that is so big, such as Microsoft, is not perforce a monopoly? Our Sherman anti-trust law is very “Judaic” and, amazingly, it has not been encumbered with the slightest amendment since it was enacted in 1890. Which wasn’t yesterday.

The Office of the Attorney General has a branch devoted to enforcing the Sherman anti-trust law, but its workers are just so many Maytag repairmen.  They twiddle their thumbs; they nap. Sure there are private cases in which one company sues another for breach of “Sherman,” but your basic well-paid US Attorneys just aren’t there for you.

Now here is where Shulze goes deeper than deep. He asks Why should there not be monopolies? Is it because the law so states? If you think the essence of law consists of “whatever Parliament or Congress has decided to impose,” you’re only on the surface. You’re a believer in Legal Positivism, he says.  Nah, dump that wimpy stuff. Go for the deeper, Magna Charta type stuff.

In defending his New South Wales client, an egg farmer, Shulze argued that “The appellant submits that the Egg Industry Act 1983 [is] unconstitutional. That is, it is ultra vires the constitution of NSW.” How so?  Shulze starts with observations as to the continued validity of “natural law” and fundamental rights of the people.

Whoa, hang on there. I – the undersigned, Mary Maxwell, have mucho skepticism that there’s such a thing as “natural law.” For me, a committed sociobiologist, the real law of nature includes killing, deception and all those fun things. Stalwartly I have also opposed, and still do oppose, the word “rights” if it means something that exists in the person.

To the extent that I, or any mammal, desires freedom – and I think every creature desires to move around freely – it is only that, a DESIRE. If one is successfully opposed by stronger others, the “RIGHT” does not exist.  I claim that in animals, “rights” can never exist but they exist in humans to the extent, and only to the extent, that humans band together to make it a reality.

Back to Terry Shulze, and natural law which – he says – is based on reason. The first thing you have to apprehend about him is his love for Coke. You know that I’m referring to Sir Edward Coke of “The Institutes of the Laws of England” (1628). What a guy!  Shulze believes that “The fundamental documents such as the Magna Charta (thirteenth century) and Bill of Rights of 1688 were considered paramount to statutes and judicial decision when they were produced.”

Cokian stuff:  Those documents were products of the people to dictate to the government of the day the conditions under which the government took power…. “They and the principles they expound have never been overruled.”    In other words those original declarations of the true relationship of king and people were already residing “in” the people of the colony of NSW. Yes, even BEFORE those English-rights-bearing folk got around to making a NSW constitution.

AN EARLY MASSACHUSETTS CASE

So can the same be said for that other famous British colony? In Bowman v Middleton (1787), the judge knew his Coke. The plaintiff had complained that an Act of the assembly had transferred his freehold property to another without trial or compensation. (Hmm, in Kelo v New London there was at least the appearance of a trial.) In Bowman, the Court ruled that the transfer of property was not kosher, as:

“It was against common right, as well as Magna Charta, to take away the freehold of one man and vest it in another…without even a trial by jury of the country, to determine the right in question. The Act was therefore, ipso facto, void.”

Wow. Ipso facto. That’s what I was trying to say about the Homeland Security Act in Prosecution for Treason but I lacked the phrase.

(At this point, Shulze recommends you read The Higher Background of American Constitutional Law by Corwin, 1984, and I recommend Nelson’s The Americanization of the Common Law, 1982. Gosh, I’d never noticed that the Eighties were so hot.)

Shulze says, about the Homeland Security Act, or, pardon me, the Egg Industry Act:

“It would be a design offensive to the rational mind if the NSW Parliament sought to take principles which had a pre-existence and declare them on a piece of paper only to destroy the paper later in the hope of destroying the principles.”

As said, Terry Schulze is a Yankee in King Arthur’s court, or, as we would say here in Oz, he is a Seppo in Steak and Kidney (i.e., Sydney). (US-trained but migrated here.) He tips his hat to Marbury v Madison but says the proof of his claim that his Australian client is entitled to Magna Charta, etc., is to be found in the Imperial Acts Application Act, 1969.

Note: The separation of Australian law from Mother England has occurred gradually. The Australia Act of 1986 more or less cut the apron stings — but that Act was itself an Act of UK Parliament!  Slightly embarrassing, but oh well, it’s done.

Shulze: “Taking a despotic NSW Parliament [John Ashcroft, anyone?] at its highest, if the Parliament should wish to abrogate the fundamental rights of the citizens of NSW, it would first need to abrogate the fundamental documents that were declared in the Imperial Applications Act.”

SPOILING FOR A FIGHT? GREAT.

I must point out here that we’re not living in a society that jumps to support principles. As Charlotte Iserbyt laments, the young are not taught the Constitution, so they don’t get upset about having it taken away from them. Oldies to the rescue!

The sociobiologist in me says that the new oppression by legislatures, and courts, is a normal manifestation of the power struggle in society. “Those who can, do.” Or as Thucydides put it pretty baldly in his funeral oration to Pericles, “The strong exact what they can and the poor grant what they must.”

Shulze is saying “Yep, the strong can do that, so let the people develop some ’tude that will make them strong enough to squelch the Bozos.” He reminds me of one of my beloved mentors, Philip Allott, who says “Once human rights has been thought, it can’t be un-thought.”  Well, OK, Allott, but it takes more than thinking. It takes an armed fight. Armed? Sure, the arms can be thoughts and words, but the fight has to be a fight.

None of this falling asleep for twenty years like Rip Van Winkle, hoping when you wake up all will be resolved. In fact there is a dark age coming, says the wise old Jane Jacobs (Dark Age Ahead) in which skills and manners will be lost and we’ll regress Oh you who think you have to have every luxury and comfort today, beware. There won’t even be toilet paper.

I believe all of the above paean to Englishmen should be taken with awareness that the Brits screwed the Chinese in the opium “wars,” and went so far as to smash the fingers of textile spinners in India, for the benefit of “Manchester.”

Maybe there is a brainiac out there today who could figure how to pin down the “rights of man” in all their glory while also figuring out how not to take delight in genocide. Chances are it could be done. And why? Because we are, by the grace of God selfish, and want to preserve our life.

 

 

 

 

 

 

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Comments

  1. I am not going to do the necessary research on all this.
    However there is some disquiet coming out of the blogasphere concerning the failures of the ‘justice’ system.
    For more enthralling and somewhat scandalous observations, have a peak at Shane Dowlings (? Sp’) ‘kangaroo court of Australia.’
    I do not in any way endorse his accusations but there are matters to examine, in his thoughts.
    His persistence will be interesting.

    • Terry Shulze says:

      Yeah, I’ve sent Shane a few things, nothing big, just a bit of a nudge to help him see something he may have missed.

      I’ve got one of his T-shirts – I love wearing it. Too bad I can’t stand entering a court room anymore, I’d rather wear it than a wig and gown at the Bar table.

      He is doing his research and website on his own tab, so if you purchase one of his T-shirts you’ll be helping him out. The T-shirts make great conversation starters.

      • Terry Shulze says:

        Here’s a link to his webpage if you want to take a look – check out the T-shirts while you’re there – http://kangaroocourtofaustralia.com/

        • Yes, that is an interesting tee shirt. I recall Judith Shklar saying in her book “Legalism,” that we all came to understand that the Moscow show trials had a purpose other than to be a trial.
          They were not trials in which a crime got punished; they were meant to “teach.” So there was no point in analyzing their “justice.”

          That could be said of the trial of Jahar Tsarnaev re the Boston Marathon bombing.
          Maybe we should call it “the Boston-Bologna Marathon bombing,” just to put a little perspective on the matter.

          Confucius say: It is the beginning of all wisdom to call things by their right names.

          I owe it to Ned for bludgeoning us with the Bologna perfidy here at Gumshoe.

  2. kevin woodman says:

    The law isn’t going to be much use if you serve tea and bikkies to Cheney on an important day.(or coffee I suppose) It’s about as safe as flying into U.K. to give evidence on 9/11. These things never go away.

  3. Dear Terry, in regard to the blue-eyed baby-kill law, it is a serious question today. Dee has raised the hue and cry against criminal legislation. (She has a nose for South-African style tyranny and can smell what George Brandis is getting up to, e.g. re SOG’s.)

    When she published that at Gumshoe (and it is also in our book, “Truth in Journalism”), I chimed in by saying You can’t make valid law if the law is itself criminal. (In the Brandis case, the law would honor the crime of cover-up).

    I did not take it the further step, but I’m glad we now have you on record as insisting that the law has to be not just “uncriminal” but must have substance. Are you familiar with Philip Allott’s work “Eunomia”? For him, law does have the definition of being reasonable.

    But the English language does not distinguish between law and law. So citizens can see our parliamentarians and cops acting as though whatever is CALLED law should be honored.

    Please press the distinction as much as you can.
    And thanks for the egg case. Lots of fun.

  4. Terry Shulze says:

    Mary, the main point that the case turned on was the ‘Rational Basis test’. That is, was there a supportable rational basis for the legislation.

    The rational basis test can be summed up as

    “The substance of law is reason,
    a law without a reason does not have the substance of law,
    it is a void.”

    Of course, a void being an empty space, a place without any substance to fill it.

    I often heard discussions about whether the Courts would uphold a ‘Blue-eyed baby law’ (all blue eyed babies would be put to death). The rational basis test moves the argument away from legal positivism and back to reason in Law.

    In that egg case, there were two reports, commissioned by the Parliament and paid for by the people of NSW that indicated the legislation did not do was it was alleged to be doing. The rationale for the legislation was one thing, the operation of the legislation essentially did the opposite. – The legislation failed to satisfy its own rationale for existence.

    The Court was going to declare the legislation void and here is where it gets ugly. There is an ALLEGED independence of the judiciary in Australia. Well, in this case there was communication to the Parliament of the Court’s intent, so politics got involved with the case. The Parliament repealed the legislation and then shortly thereafter the Court’s decision came down and they buried my submissions. They said I was running a different argument.

    My barrister friends thought that was a win, I had made the Parliament back down, but I wanted the legal precedent as I could use it to kick some more ass. The Court however just made the whole thing go away and lied in its judgement as to what the real arguments were.

    I lost a lot of faith in the Australian legal system after that case and over the following years it only got worse…

    • Aw. Don’t lose faith. Gumshoe’s here!

    • Very interesting Terry
      “The legislation failed to satisfy its own rationale for existence.”

      Is that not happening all the time…?

      Also can most laws be “looked at from both sides of the coin”. Or interpretation thereof..depending on what outcome the government wants…

      Mary wrote about the duality of law a few months back
      https://gumshoenews.com/2015/01/03/the-duality-of-law-not-all-law-deserves-your-love/
      about two sides of the law.

      As a law novice – law seems like a minefield – where the government and the ‘elite’ – map out and lay the mine field. The lay person must then cross the mine field (without the map).

      • Is The Editor still whining about Smart Meters? body scans?

      • Terry Shulze says:

        Dee, I won’t even try to relate 20 years, 11 months and 6 days at the Bar. I also had some interaction with various groups in Canberra. The corruption is so pervasive that until you have been to the coal-face, you just can’t get your head around it. You need to deal with it day after day after day to understand it. The best I can do is refer people to the Port Arthur Massacre – understanding that one case can be a ‘Red Pill’ for the dumbed-down masses of Australia.

        There is a book written in 1985 by Justice Moffitt called ‘A QUARTER TO MIDNIGHT, The Australian Crisis, Organised Crime and the Decline of the Institutions of State’. He saw various trends and where they were going. I came to the Bar a year later in 1986 – by the time I bailed on the ‘profession’ everything he warned about had become a reality.

        There is an excellent book called THE LAW by Frederic Bastait – http://bastiat.org/en/the_law.html
        It is an ‘oldie but a goodie’, it does a good job explaining the law and how it can be used for ‘plunder’. The two philosophies of Law are discussed quite well in that short book.

        And yes, the ‘minefield’ is set, the table is tilted and the dice are loaded. The ‘Gun Laws’ are a great example of oppressive laws. Imagine if you received a ‘good behaviour bond’ for a minor driving offence. You could still keep your driving license, you could still drive your car – but you can’t have a shooting license, you can’t have firearms in your possession. Try and explain the fairness and rationale of that law to someone outside of Court.

        • Whoopie! That Bastiat book is free online. Thanks!
          Here is a quote from it that I think is Vintage Shulze:

          “It is not true that the legislator has absolute power over our persons and property. The existence of persons and property preceded the existence of the legislator, and his function is only to guarantee their safety.

          It is not true that the function of law is to regulate our consciences, our ideas, our wills, our education, our opinions, our work, our trade, our talents, or our pleasures. The function of law is to protect the free exercise of these rights, and to prevent any person from interfering with the free exercise of these same rights by any other person.

          Since law necessarily requires the support of force, its lawful domain is only in the areas where the use of force is necessary. This is justice.”

  5. Reblogged this on Nevada State Personnel Watch.

  6. Those guys in the photo. Are they going for the Magna Charta or the egg farmer?

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