Uniform Commercial Code

As many of you know, I have been doing some intense research lately about what exactly is going on around here.  I have recently learned some very important information that I think is worth sharing.  I captured the following text from the Cornell University Law Library.  They began posting law references way back in the early 90s.  This is the entire Uniform Commercial Code.  This is the law of the land in America since 1930.  The Constitution was mostly set aside because of bankruptcy proceedings and was replaced with this.

Please copy and paste this into a document and print a copy for reference.  This is the law of the land.  The better you understand this the safer you will be in the coming months.



PART 1. GENERAL PROVISIONS [Table of Contents]

§ 1-101. Short Titles.

(a) This [Act] may be cited as the Uniform Commercial Code.

(b) This article may be cited as Uniform Commercial Code-General Provisions.

§ 1-102. Scope of Article.

This article applies to a transaction to the extent that it is governed by another article of [the Uniform Commercial Code].

§ 1-103. Construction of [Uniform Commercial Code] to Promote its Purposes and Policies: Applicability of Supplemental Principles of Law.

(a) [The Uniform Commercial Code] must be liberally construed and applied to promote its underlying purposes and policies, which are: (1) to simplify, clarify, and modernize the law governing commercial transactions; (2) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and (3) to make uniform the law among the various jurisdictions.

(b) Unless displaced by the particular provisions of [the Uniform Commercial Code], the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.

§ 1-104. Construction Against Implied Repeal.

[The Uniform Commercial Code] being a general act intended as a unified coverage of its subject matter, no part of it shall be deemed to be impliedly repealed by subsequent legislation if such construction can reasonably be avoided.

§ 1-105. Severability.

If any provision or clause of [the Uniform Commercial Code] or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of [the Uniform Commercial Code] which can be given effect without the invalid provision or application, and to this end the provisions of [the Uniform Commercial Code] are severable.

§ 1-106. Use of Singular and Plural; Gender.

In [the Uniform Commercial Code], unless the statutory context otherwise requires: (1) words in the singular number include the plural, and those in the plural include the singular; and (2) words of any gender also refer to any other gender.

§ 1-107. Section Captions.

Section captions are part of [the Uniform Commercial Code].

§ 1-108. Relation to Electronic Signatures in Global and National Commerce Act.

This article modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., except that nothing in this article modifies, limits, or supersedes Section 7001(c) of that Act or authorizes electronic delivery of any of the notices described in Section 7003(b) of that Act.


§ 1-201. General Definitions.

(a) Unless the context otherwise requires, words or phrases defined in this section, or in the additional definitions contained in other articles of [the Uniform Commercial Code] that apply to particular articles or parts thereof, have the meanings stated.

(b) Subject to definitions contained in other articles of [the Uniform Commercial Code] that apply to particular articles or parts thereof:

(1) “Action“, in the sense of a judicial proceeding, includes recoupment, counterclaim, set-off, suit in equity, and any other proceeding in which rights are determined.

(2) “Aggrieved party” means a party entitled to pursue a remedy.

(3) “Agreement“, as distinguished from “contract“, means the bargain of the parties in fact, as found in their language or inferred from other circumstances, including course of performance, course of dealing, or usage of trade as provided in Section 1-303.

(4) “Bank” means a person engaged in the business of banking and includes a savings bank, savings and loan association, credit union, and trust company.

(5) “Bearer” means a person in possession of a negotiable instrument, document of title, or certificated security that is payable to bearer or indorsed in blank.

(6) “Bill of lading” means a document evidencing the receipt of goods for shipment issued by a person engaged in the business of transporting or forwarding goods.

(7) “Branch” includes a separately incorporated foreign branch of a bank.

(8) “Burden of establishing” a fact means the burden of persuading the trier of fact that the existence of the fact is more probable than its nonexistence.

(9) “Buyer in ordinary course of business” means a person that buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person, other than a pawnbroker, in the business of selling goods of that kind. A person buys goods in the ordinary course if the sale to the person comports with the usual or customary practices in the kind of business in which the seller is engaged or with the seller’s own usual or customary practices. A person that sells oil, gas, or other minerals at the wellhead or minehead is a person in the business of selling goods of that kind. A buyer in ordinary course of business may buy for cash, by exchange of other property, or on secured or unsecured credit, and may acquire goods or documents of title under a preexisting contract for sale. Only a buyer that takes possession of the goods or has a right to recover the goods from the seller under Article 2 may be a buyer in ordinary course of business. “Buyer in ordinary course of business” does not include a person that acquires goods in a transfer in bulk or as security for or in total or partial satisfaction of a money debt.

(10) “Conspicuous“, with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following: (A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and (B) language in the body of arecord or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

(11) “Consumer” means an individual who enters into a transaction primarily for personal, family, or household purposes.

(12) “Contract“, as distinguished from “agreement“, means the total legal obligation that results from the parties’ agreement as determined by [the Uniform Commercial Code] as supplemented by any other applicable laws.

(13) “Creditor” includes a general creditor, a secured creditor, a lien creditor, and any representative of creditors, including an assignee for the benefit of creditors, a trustee in bankruptcy, a receiver in equity, and an executor or administrator of an insolvent debtor’s or assignor’s estate.

(14) “Defendant” includes a person in the position of defendant in a counterclaim, cross-claim, or third-party claim.

(15) “Delivery“, with respect to an instrument, document of title, or chattel paper, means voluntary transfer of possession.

(16) “Document of title” includes bill of lading, dock warrant, dock receipt, warehouse receipt or order for the delivery of goods, and also any other document which in the regular course of business or financing is treated as adequately evidencing that the person in possession of it is entitled to receive, hold, and dispose of the document and the goods it covers. To be a document of title, a document must purport to be issued by or addressed to a bailee and purport to cover goods in the bailee’s possession which are either identified or are fungible portions of an identified mass.

(17) “Fault” means a default, breach, or wrongful act or omission.

(18) “Fungible goods” means: (A) goods of which any unit, by nature or usage of trade, is the equivalent of any other like unit; or (B) goods that by agreement are treated as equivalent.

(19) “Genuine” means free of forgery or counterfeiting.

(20) “Good faith,” except as otherwise provided in Article 5, means honesty in fact and the observance of reasonable commercial standards of fair dealing.

(21) “Holder” means: (A) the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession; or (B) the person in possession of a document of title if the goods are deliverable either to bearer or to the order of the person in possession.

(22) “Insolvency proceeding” includes an assignment for the benefit of creditors or other proceeding intended to liquidate or rehabilitate the estate of the person involved.

(23) “Insolvent” means: (A) having generally ceased to pay debts in the ordinary course of business other than as a result of bona fide dispute; (B) being unable to pay debts as they become due; or (C) being insolvent within the meaning of federal bankruptcy law.

(24) “Money” means a medium of exchange currently authorized or adopted by a domestic or foreign government. Theterm includes a monetary unit of account established by an intergovernmental organization or by agreement between two or more countries.

(25) “Organization” means a person other than an individual.

(26) “Party“, as distinguished from “third party”, means a person that has engaged in a transaction or made an agreementsubject to [the Uniform Commercial Code].

(27) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.

(28) “Present value” means the amount as of a date certain of one or more sums payable in the future, discounted to the date certain by use of either an interest rate specified by the parties if that rate is not manifestly unreasonable at the time the transaction is entered into or, if an interest rate is not so specified, a commercially reasonable rate that takes into account the facts and circumstances at the time the transaction is entered into.

(29) “Purchase” means taking by sale, lease, discount, negotiation, mortgage, pledge, lien, security interest, issue or reissue, gift, or any other voluntary transaction creating an interest in property.

(30) “Purchaser” means a person that takes by purchase.

(31) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(32) “Remedy” means any remedial right to which an aggrieved party is entitled with or without resort to a tribunal.

(33) “Representative” means a person empowered to act for another, including an agent, an officer of a corporation or association, and a trustee, executor, or administrator of an estate.

(34) “Right” includes remedy.

(35) “Security interest” means an interest in personal property or fixtures which secures payment or performance of an obligation. “Security interest” includes any interest of a consignor and a buyer of accounts, chattel paper, a payment intangible, or a promissory note in a transaction that is subject to Article 9. “Security interest” does not include the special property interest of a buyer of goods on identification of those goods to a contract for sale under Section 2-505, the rightof a seller or lessor of goods under Article 2 or 2A to retain or acquire possession of the goods is not a “security interest”, but a seller or lessor may also acquire a “security interest” by complying with Article 9. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer under Section 2-401 is limited in effect to a reservation of a “security interest.” Whether a transaction in the form of a lease creates a “security interest” is determined pursuant to Section 1-203.

(36) “Send” in connection with a writingrecord, or notice means: (A) to deposit in the mail or deliver for transmission by any other usual means of communication with postage or cost of transmission provided for and properly addressed and, in the case of an instrument, to an address specified thereon or otherwise agreed, or if there be none to any address reasonable under the circumstances; or (B) in any other way to cause to be received any record or notice within the time it would have arrived if properly sent.

(37) “Signed” includes using any symbol executed or adopted with present intention to adopt or accept a writing.

(38) “State” means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(39) “Surety” includes a guarantor or other secondary obligor.

(40) “Term” means a portion of an agreement that relates to a particular matter.

(41) “Unauthorized signature” means a signature made without actual, implied, or apparent authority. The term includes a forgery.

(42) “Warehouse receipt” means a receipt issued by a person engaged in the business of storing goods for hire.

(43) “Writing” includes printing, typewriting, or any other intentional reduction to tangible form. “Written” has a corresponding meaning.

§ 1-202. Notice; Knowledge.

(a) Subject to subsection (f), a person has “notice” of a fact if the person: (1) has actual knowledge of it; (2) has received a notice or notification of it; or (3) from all the facts and circumstances known to the person at the time in question, has reason to know that it exists.

(b) “Knowledge” means actual knowledge. “Knows” has a corresponding meaning.

(c) “Discover“, “learn“, or words of similar import refer to knowledge rather than to reason to know.

(d) A personnotifies” or “gives” a notice or notification to another person by taking such steps as may be reasonably required to inform the other person in ordinary course, whether or not the other person actually comes to know of it.

(e) Subject to subsection (f), a personreceives” a notice or notification when: (1) it comes to that person’s attention; or (2) it is duly delivered in a form reasonable under the circumstances at the place of business through which the contract was made or at another location held out by that person as the place for receipt of such communications.

(f) Notice, knowledge, or a notice or notification received by an organization is effective for a particular transaction from the time it is brought to the attention of the individual conducting that transaction and, in any event, from the time it would have been brought to the individual’s attention if the organization had exercised due diligence. An organization exercises due diligence if it maintains reasonable routines for communicating significant information to the person conducting the transaction and there is reasonable compliance with the routines. Due diligence does not require an individual acting for the organization to communicate information unless the communication is part of the individual’s regular duties or the individual has reason to know of the transaction and that the transaction would be materially affected by the information.

§ 1-203. Lease Distinguished from Security Interest.

(a) Whether a transaction in the form of a lease creates a lease or security interest is determined by the facts of each case.

(b) A transaction in the form of a lease creates a security interest if the consideration that the lessee is to pay the lessor for the right to possession and use of the goods is an obligation for the term of the lease and is not subject to termination by the lessee, and: (1) the original term of the lease is equal to or greater than the remaining economic life of the goods; (2) the lessee is bound to renew the lease for the remaining economic life of the goods or is bound to become the owner of the goods; (3) the lessee has an option to renew the lease for the remaining economic life of the goods for no additional consideration or for nominal additional consideration upon compliance with the lease agreement; or (4) the lessee has an option to become the owner of the goods for no additional consideration or for nominal additional consideration upon compliance with the lease agreement.

(c) A transaction in the form of a lease does not create a security interest merely because: (1) the present value of the consideration the lessee is obligated to pay the lessor for the right to possession and use of the goods is substantially equal to or is greater than the fair market value of the goods at the time the lease is entered into; (2) the lessee assumes risk of loss of the goods; (3) the lessee agrees to pay, with respect to the goods, taxes, insurance, filing, recording, or registration fees, or service or maintenance costs; (4) the lessee has an option to renew the lease or to become the owner of the goods; (5) the lessee has an option to renew the lease for a fixed rent that is equal to or greater than the reasonably predictable fair market rent for the use of the goods for the term of the renewal at the time the option is to be performed; or (6) the lessee has an option to become the owner of the goods for a fixed price that is equal to or greater than the reasonably predictable fair market value of the goods at the time the option is to be performed.

(d) Additional consideration is nominal if it is less than the lessee’s reasonably predictable cost of performing under the leaseagreement if the option is not exercised. Additional consideration is not nominal if: (1) when the option to renew the lease is granted to the lessee, the rent is stated to be the fair market rent for the use of the goods for the term of the renewal determined at the time the option is to be performed; or (2) when the option to become the owner of the goods is granted to the lessee, the price is stated to be the fair market value of the goods determined at the time the option is to be performed.

(e) The “remaining economic life of the goods” and “reasonably predictable” fair market rent, fair market value, or cost of performing under the lease agreement must be determined with reference to the facts and circumstances at the time the transaction is entered into.

§ 1-204. Value.

Except as otherwise provided in Articles 3, 4, [and] 5, [and 6], a person gives value for rights if the person acquires them: (1) in return for a binding commitment to extend credit or for the extension of immediately available credit, whether or not drawn upon and whether or not a charge-back is provided for in the event of difficulties in collection; (2) as security for, or in total or partial satisfaction of, a preexisting claim; (3) by accepting delivery under a preexisting contract for purchase; or (4) in return for any consideration sufficient to support a simple contract.

§ 1-205. Reasonable time; Seasonableness.

(a) Whether a time for taking an action required by [the Uniform Commercial Code] is reasonable depends on the nature, purpose, and circumstances of the action.

(b) An action is taken seasonably if it is taken at or within the time agreed or, if no time is agreed, at or within a reasonable time.

§ 1-206. Presumptions.

Whenever [the Uniform Commercial Code] creates a “presumption” with respect to a fact, or provides that a fact is “presumed,” the trier of fact must find the existence of the fact unless and until evidence is introduced that supports a finding of its nonexistence.


§ 1-301. Territorial Applicability; Parties’ Power to Choose Applicable Law.

(a) In this section:

(1) “Domestic transaction” means a transaction other than an international transaction.

(2) “International transaction” means a transaction that bears a reasonable relation to a country other than the United States.

(b) This section applies to a transaction to the extent that it is governed by another article of the [Uniform Commercial Code].

(c) Except as otherwise provided in this section:

(1) an agreement by parties to a domestic transaction that any or all of their rights and obligations are to be determined by the law of this State or of another State is effective, whether or not the transaction bears a relation to the State designated; and

(2) an agreement by parties to an international transaction that any or all of their rights and obligations are to be determined by the law of this State or of another State or country is effective, whether or not the transaction bears a relation to the State or country designated.

(d) In the absence of an agreement effective under subsection (c), and except as provided in subsections (e) and (g), the rights and obligations of the parties are determined by the law that would be selected by application of this State’s conflict of laws principles.

(e) If one of the parties to a transaction is a consumer, the following rules apply:

(1) An agreement referred to in subsection (c) is not effective unless the transaction bears a reasonable relation to the State or country designated.

(2) Application of the law of the State or country determined pursuant to subsection (c) or (d) may not deprive the consumer of the protection of any rule of law governing a matter within the scope of this section, which both is protective of consumers and may not be varied by agreement: (A) of the State or country in which the consumer principally resides, unless subparagraph (B) applies; or (B) if the transaction is a sale of goods, of the State or country in which the consumer both makes the contract and takes delivery of those goods, if such State or country is not the State or country in which the consumer principally resides.

(f) An agreement otherwise effective under subsection (c) is not effective to the extent that application of the law of theState or country designated would be contrary to a fundamental policy of the State or country whose law would govern in the absence of agreement under subsection (d).

(g) To the extent that [the Uniform Commercial Code] governs a transaction, if one of the following provisions of [the Uniform Commercial Code] specifies the applicable law, that provision governs and a contrary agreement is effective only to the extent permitted by the law so specified: (1) Section 2-402; (2) Sections 2A-105 and 2A-106; (3) Section 4-102; (4) Section 4A-507; (5) Section 5-116; [(6) Section 6-103;] (7) Section 8-110; (8) Sections 9-301 through 9-307.

§ 1-302. Variation by Agreement.

(a) Except as otherwise provided in subsection (b) or elsewhere in [the Uniform Commercial Code], the effect of provisions of [the Uniform Commercial Code] may be varied by agreement.

(b) The obligations of good faith, diligence, reasonableness, and care prescribed by [the Uniform Commercial Code] may not be disclaimed by agreement. The parties, by agreement, may determine the standards by which the performance of those obligations is to be measured if those standards are not manifestly unreasonable. Whenever [the Uniform Commercial Code] requires an action to be taken within a reasonable time, a time that is not manifestly unreasonable may be fixed by agreement.

(c) The presence in certain provisions of [the Uniform Commercial Code] of the phrase “unless otherwise agreed”, or words of similar import, does not imply that the effect of other provisions may not be varied by agreement under this section.

§ 1-303. Course of Performance, Course of Dealing, and Usage of Trade.

(a) A “course of performance” is a sequence of conduct between the parties to a particular transaction that exists if: (1) theagreement of the parties with respect to the transaction involves repeated occasions for performance by a party; and (2) the other party, with knowledge of the nature of the performance and opportunity for objection to it, accepts the performance or acquiesces in it without objection.

(b) A “course of dealing” is a sequence of conduct concerning previous transactions between the parties to a particular transaction that is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.

(c) A “usage of trade” is any practice or method of dealing having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage must be proved as facts. If it is established that such a usage is embodied in a trade code or similar record, the interpretation of the record is a question of law.

(d) A course of performance or course of dealing between the parties or usage of trade in the vocation or trade in which they are engaged or of which they are or should be aware is relevant in ascertaining the meaning of the parties’ agreement, may give particular meaning to specific terms of the agreement, and may supplement or qualify the terms of the agreement. A usage of trade applicable in the place in which part of the performance under the agreement is to occur may be so utilized as to that part of the performance.

(e) Except as otherwise provided in subsection (f), the express terms of an agreement and any applicable course of performance, course of dealing, or usage of trade must be construed whenever reasonable as consistent with each other. If such a construction is unreasonable: (1) express terms prevail over course of performance, course of dealing, and usage of trade; (2) course of performance prevails over course of dealing and usage of trade; and (3) course of dealing prevails over usage of trade.

(f) Subject to Section 2-209, a course of performance is relevant to show a waiver or modification of any term inconsistent with the course of performance.

(g) Evidence of a relevant usage of trade offered by one party is not admissible unless that party has given the other party notice that the court finds sufficient to prevent unfair surprise to the other party.

§ 1-304. Obligation of Good Faith.

Every contract or duty within [the Uniform Commercial Code] imposes an obligation of good faith in its performance and enforcement.

§ 1-305. Remedies to be Liberally Administered.

(a) The remedies provided by [the Uniform Commercial Code] must be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed but neither consequential or special damages nor penal damages may be had except as specifically provided in [the Uniform Commercial Code] or by other rule of law.

(b) Any right or obligation declared by [the Uniform Commercial Code] is enforceable by action unless the provision declaring it specifies a different and limited effect.

§ 1-306. Waiver or Renunciation of Claim or Right After Breach.

A claim or right arising out of an alleged breach may be discharged in whole or in part without consideration by agreement of the aggrieved party in an authenticated record.

§ 1-307. Prima Facie Evidence by Third-Party Documents.

A document in due form purporting to be a bill of lading, policy or certificate of insurance, official weigher’s or inspector’s certificate, consular invoice, or any other document authorized or required by the contract to be issued by a third party is prima facie evidence of its own authenticity and genuineness and of the facts stated in the document by the third party.

§ 1-308. Performance or Acceptance Under Reservation of Rights.

(a) A party that with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice,” “under protest,” or the like are sufficient.

(b) Subsection (a) does not apply to an accord and satisfaction.

§ 1-309. Option to Accelerate at Will.

term providing that one party or that party’s successor in interest may accelerate payment or performance or require collateral or additional collateral “at will” or when the party “deems itself insecure,” or words of similar import, means that the party has power to do so only if that party in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against which the power has been exercised.

§ 1-310. Subordinated Obligations.

An obligation may be issued as subordinated to performance of another obligation of the person obligated, or a creditor may subordinate its right to performance of an obligation by agreement with either the person obligated or another creditor of the person obligated. Subordination does not create a security interest as against either the common debtor or a subordinated creditor.

A legal challenge to the jusidiction of Equity courts over free men

In a recent hearing where jurisdiction was effectively challenged the judge apparently got rattled and made some drastic determinations on the record that now can be used as leverage over the court and the lawyers for the rest of the case.

Our person was saying The Supreme Court says, “There has been created a fictional federal “State (of)  [name of state]  within a state.” We have numerous references to this. But he went on the record saying there was no fictional  state of Tennessee which ofcourse we can prove is not true.

From our memorandum that was also part of the record:

In Cunard S. S. Co. v. Mellon, 262 U.S. 100, 43 S.Ct. 504 (1923),The court ruled that “The term United States is a metaphor [a figure of speech]”.

According to [Hooven & Allison Co. v. Evatt, 324 U.S. 652 (1945)] [65 S.Ct. 870, 880, 89  L.Ed. 1252] The term “United States” may be used in any one of several senses. [1] It may be as a sovereign nation or the collective name of the states which are united by and under the Constitution. Or [2] It may designate the territory over which the sovereignty of the United States extends, and includes  “citizens of the United States”  as created   by the 14th Amendment  domiciled  in the District of Columbia, or the federal Territories and possessions , or Federal enclaves (area within a Union State) or living in one of the States of the Union or a foreign country.

The  US Constitution, Article 4, Section 3, Clause 2, states as follows:

“The Congress shall have Power to dispose of and make all needed Rules and Regulations respecting the Territory or other Property belonging to the United States.”

Within these areas or  in jurisdiction over 14th Amendment “citizens of the United States”  Congress  is not subject to the same constitutional limitations which restrict its power in the areas of land over which the 50 States exercise their respective sovereign authorities:

“The United States may acquire territory by conquest or by treaty, and may govern it through the exercise of the power of Congress conferred by Section 3 of Article IV of the Constitution …. In exercising this power, Congress is not subject to the same constitutional limitations, as when it is legislating for the United States. … And in general the guaranties of the Constitution, save as they are limitations upon the exercise of executive and legislative power when exerted for or over our insular possessions, extend to them only as Congress, in the exercise of its legislative power over territory belonging to the United States2, has made those guaranties applicable.”

Hooven & Allison Co. vs Evatt, 324 U.S. 652 (1945)

The Supreme Court ruled that this case would be the last time it would address official definitions of the term “United States”. Therefore, the Hooven case must be judicially noticed by the entire American legal community

In Law the term “United States of America” refers to the several States which are “united by and under the Constitution”;  the term “United States” refers to federal possessions, property, territories, lands  areas defined in Article 1, Section 8, Clause 17 (1:8:17) and in Article 4, Section 3, Clause 2 (4:3:2) of the Federal Constitution, that for whatever causes are not subject to the sovereignty or jurisdiction of any of the several States of the union that is the “United States of America”.

In the Cumulative Bulletin of the 63rd Congressional Session, Chapter 16, Section 2, 1913, page 177, we  find  that the terms “State” and “United States” are identified  differently when used in the context of the federal United States, or federal zone as opposed to the union of several states that is the constitutional republic, the united States of America:

Congress is the state legislature for all Territories, Possessions, and Enclaves like military bases –- an area now collectively called the federal zone.  In the year 1995 A.D., Justice Kennedy used the term “federal zone” as a household word in his concurring opinion in U.S. v. Lopez, 115 S.Ct. 1624 (1995).

“These are the territories over which Congress has exclusive jurisdiction over the landmass and the citizens that are subject to the sovereign jurisdiction of the Congress of the United States”. .

United States is construed to mean “any territory, Alaska, DC, The Commonwealth of Puerto Rico, Philippine Islands, American Samoa, Guam, Virgin Islands, Midway Island, Commonwealth of the Northern Mariannas, Federated States of Micronesia, Republic of Palau, Marshall Islands, Johnson Island, Baker Howland and Jarvis Islands, Kingman Reef, Palmyra Island, and Navassa Island.”

Furthermore, even though the “United States” is not a member of the “Union of States united by and under the Constitution”, it is bound by that Constitution to restrict its activities in dealing with the several States and with the Common Law Citizens of those States.  Under 1:8:17 and 4:3:2 of the Constitution for the United States of America (1787).  Congress has exclusive power to legislate and regulate the inhabitants of its federal property, territories, lands  areas defined in Article 1, Section 8, Clause 17 (1:8:17) and in Article 4, Section 3, Clause 2 (4:3:2) of the Federal Constitution and its  “citizens”  wherever they are “resident”, even if they do inhabit one of the 50 States of the Union.

As can readily be seen from the quote above, with three separate and distinct definitions for the term “United States”, it becomes absolutely necessary to separate and define each use of this term in law.  It is equally as necessary to separate and define to whom the law applies when there are two classes of citizenship existing side-by-side, with separate and distinct rights, privileges and immunities for each.

The term “United States”, when used in its  meaning  as Congress’ exclusive jurisdiction over federal property, territories, lands  areas defined in Article 1, Section 8, Clause 17 (1:8:17) and in Article 4, Section 3, Clause 2 (4:3:2) of the Constitution, as opposed  to  the limited jurisdiction  of  the federal government  under the  constitution over the several states of the union that  is the constitutional republic, the united States of America, under Article 1, Section 8  et all , (excepting Clause 17}, when used  in this respect as its jurisdiction over federal property, territories, lands  areas defined in Article 1, Section 8, Clause 17 (1:8:17) and in Article 4, Section 3, Clause 2 (4:3:2,   the “United States” is foreign with respect to the several states of  the union  united by and under the Constitution. that  is the constitutional republic, the united States of America

“The idea prevails with some — indeed, it found expression in arguments at the bar — that we have in this country substantially or practically two national governments; one, to be maintained under the  Constitution, with all its restrictions; the other to be maintained by Congress outside and independently of that instrument, by exercising such powers as other nations of the earth are accustomed to exercise.” Downes v. Bidwell, 182 U.S. 244, supra.

as opposed to the several States which are “united by and under the Constitution”

“The United States may acquire territory by conquest or by treaty, and may govern it through the exercise of the power of Congress conferred by Section 3 of Article IV of the Constitution …. In exercising this power, Congress is not subject to the same constitutional limitations, as when it is legislating for the United States…… . … And in general the guaranties of the Constitution, save as they are limitations upon the exercise of executive and legislative power when exerted for or over our insular possessions, extend to them only as Congress, in the exercise of its legislative power over territory belonging to the United States2, has made those guaranties applicable.”

Hooven & Allison Co. vs Evatt, 324 U.S. 652 (1945)

Congress must be considered in two distinct characters. In one character as legislating for the states; in the other, as a local legislature for the district. Loughborough vs Blake, 15 U.S. (5 Wheat.) 317 – 5 L.Ed. 98 (1820)]

Title 28, United States Code, Section 297 defines the several States of the union as being “freely associated compact states” in subsection (a), and then refers to these freely associated compact states as being “countries” in subsection(b). The individual states were considered to be foreign countries to the United States and to each other

This is also true of  legal  relationship between states:

It is equally well settled that the several states of the Union are to be considered as in this respect foreign to each other,  [Hanley v. Donoghue, 116 U.S. 1, 29 L. Ed. 535] [6 S.Ct. 242, 244 (1885), emphasis added]

The United States government is a foreign corporation with respect to a state. [citing In re Merriam’s Estate, 36 N.E. 505, 141 N.Y. 479, affirmed U.S. v. Perkins, 16 S.Ct. 1073, 163 U.S. 625,

It may be  significant to note, [Instructions for Form 2555:  Foreign Earned Income]  [Department of the Treasury, Internal Revenue Service] defines Foreign Country. –

“A foreign country is any territory under the sovereignty of a government other than the United States. “[emphasis added]

But the definition  does not include U.S. possessions or territories.

…..a “foreign country” does NOT include U.S.** possessions or territories.   U.S. possessions and territories are not “foreign” with respect to the federal zone; they are “domesticwith respect to the federal zone because they are inside the federal zone.

The U. S. Supreme Court has ruled that this foreign nation has every right to legislate for its “citizens” and to hold subject matter and in personam jurisdiction, both within (inside) and without (outside) its territorial boundaries, when legislative acts call for such effects (Cook v. Tait supra).

As a foreign nation under International law, it is perfectly legal for this nation to consider its people as “subjects” rather than as individual Sovereigns.  The protections of the State and the Federal Constitutions do not apply to these “subjects” unless there is specific statutory legislation granting specific protections (e.g., The Civil Rights Act).  The guarantees of the Constitution extend to the “United States” (i.e., the federal zone) only as Congress has made those guarantees applicable (Hooven supra).

In 26 CFR 1.1-1 (c) you will find stated, “Who is a citizen? . Every person born or naturalized in the United States and subject to its jurisdiction is a citizen.”   [emphasis added]

singular, the federal United States, of  possessions, territories, zones  areas,   not plural as the  union of the 50 states that is the constitutional  republic, the United States of America.


Congress did not forget the proper use of English here.

NOTE: The 13th Amendment bans involuntary servitude and slavery “within the United States, or any place subject to their jurisdiction”. This is the manner in which amendments and legislation must be written if the law is to apply within the sovereign lands of the 50 states and to their Citizens.

But The 14th Amendment is not written thusly. The 14th Amendment embraces persons “born or naturalized in the United States, and subject to the jurisdiction thereof”. The phrase, “subject to the jurisdiction thereof” does not state the “plural nature” [i.e. “their“] that is required to refer to the states of the Union.

In the absence of the plural language  the courts have ruled that the law applies only to federal places or persons.

The 18th Amendment created Prohibition.

“After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.”

In Cunard S. S. Co. v. Mellon, 262 U.S. 100, 43 S.Ct. 504 (1923), the US Supreme Court held that the language Congress used in the Amendment limited its application to areas under the exclusive legislative jurisdiction of Congress – which of course is not the states of the Union.

3A Am Jur 1420, Aliens and Citizens, explains:  “A Person is born subject to the jurisdiction of the United States**, for purposes of acquiring citizenship at birth, if his birth occurs in territory over which the United States** is sovereign …”   singular, the federal United States, of  possessions, territories, zones  areas,   not plural as the  union of the 50 states that is the constitutional  republic, the United States of America.

Further, this “United States”, besides designating federal property, possessions, territories, lands  areas defined in Article 1, Section 8, Clause 17 (1:8:17) and in Article 4, Section 3, Clause 2 (4:3:2) of the Federal Constitution, that for whatever causes are not subject to the sovereignty or jurisdiction of any of the several States of the union that is the “United States of America”, . and its “citizens” under the 14th Amendment, wherever they are “resident”, even if they do inhabit one of the 50 States of the Union, , in commerce and finance, is a corporate entity. :

The Legislative Act of February 21, 1871, Forty-first Congress, Session III, Chapter 62, page 419, chartered a Federal company entitled “United States,” a/k/a “US Inc.,” a “Commercial Agency” originally designated as “Washington, D.C.,” in accordance with the 14th Amendment, which upholds the debt of the USA and US Inc. in Section 4.

As evidenced by Title 28 USC Section 3002(5) Chapter 176.  It is clear that the United States . . . is a corporation . . . 534 FEDERAL SUPPLEMENT 724.

`It is well settled that “United States” et al is a corporation, originally incorporated February 21, 1871 under the name “District of Columbia,” 16 Stat. 419 Chapter 62.  It was reorganized June 11, 1878 with all federal territories and possessions. This corporation also copyrighted the names UNITED STATES OF AMERICA, UNITED STATES, USA, US and AMERICA.

There is likewise equal ambiquity  in both constitutional and state statutory law, and in federal law regarding  the term used:   “State of Iowa”,

We find In federal law, Congress defines various places of exclusive federal jurisdiction as “States”. These places are not “states of the Union”. The other manner in which federal law sometimes  addresses this issue is with the phrase, “…in the United States, and subject to its jurisdiction” , as in 26 CFR 1.1-1 (c which therefore refers only to federal places.

In Article II(a) of the Uniform Detainers  Act“(a) ‘State’ shall mean a state of the United States;  the United States of America;  a territory or possession of the United States;  the District of Columbia;  the Commonwealth of Puerto Rico.”

In 1940, Congress passed the “Buck Act” now found in 4 U.S.C. Sections 105-113. In Section 110(e), this Act authorized any department of the federal government to create a “Federal Area”. for imposition of the “Public Salary Tax Act of 1939.” This tax is imposed at 4 U.S.C. Section 111. The rest of the taxing law is found in the Internal Revenue Code. The Social Security Board had already created a “Federal Area” overlay. U.S.C. Title 4 is as follows:

Sec. 110(d): The term “State” includes any territory or possession of the United States.

Sec. 110(e): The term “Federal Area” means any lands or premises held or acquired by or for the use of the United states or any department, establishment, or agency of the United states; and any federal area, or any part thereof, which is located within the exterior boundaries of any State, shall be deemed to be a federal area located within such State.

Under the “Buck Act,” 4 U.S.C Secs. 105-113, the federal government has created a “Federal area” within the boundaries of the several states. This area is similar to any territory that the federal government acquires through purchase, conquest or treaty, thereby imposing federal territorial law upon the people in this “Federal area.”

The Supreme Court has determined, “There has been created a fictional federal “State (of)  xxxxxx    within a state.” See Howard v. Sinking Fund of Louisville, 344 U.S. 624, 73 S.Ct. 465, 476, 97 L.Ed. 617 (1953); Schwarts v. O’Hara TP School District, 100 A 2d. 621, 625, 375, Pa. 440

Under the Provisions of 4 U.S.C cited above, Sections 105 , the federal “State” is defined “(also known as, “The State of xxxxxxx.”)

Under state law, in the State” means within the exterior limits of the State of Iowa and includes all territory within these limits owned or ceded to the United States of America.

26 USC § 3306 Definitions – For purposes of this chapter—

(j)(1) State – The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands.

26 USC § 5891 Structured settlement factoring transactions

(c) Definitions (6) State -The term “State” includes the Commonwealth of Puerto Rico and any possession of the United States.

The actual meanings of such terminology  herein discussed affecting this case  is ambiguous and unclear on its face at a minimum   which materially affect the Courts jurisdiction of the  law, In Personam, and in its own setting under proper oath and credentials to hear the case, which  must be resolved if  [[ this case is to continue.]]  [[ the Court ‘s ruling is to stand. ]]

This being the case, it will become a legal issue in this case, which Tennessee his court has jurisdiction in, Tennessee, the state of the republic or some other  federal area, region, zone,  district or jurisdiction of the federal United States, the federal UNITED STATES, INC., or its  federal area or jurisdiction, STATE OF  TENNESSEE, or  the   “federal district of the District of Columbia”, STATE OF  TENNESSEE.

Then as we said, she went to ADMINISTRATIVE OR JUDICIAL” questions  “So, is this an administrative proceeding under executive authority of a military, or maritime law jurisdiction, OR a judicial proceeding sitting as a court of law?” judge answered “Administrative” admitting his was not a judicial court as we have suspected all along.

Since the court admits it is an administrative court, As stated in our memorandum on this, Defendant  is entitled by law to an actual adjudicative hearing before such  Administrative Agency that oversees this part of the code applied in this case as may be provided for in the regulatory procedures, regulations and guidelines written by the executive  department agency to which the issues of this case are subject and/or as found  in its own regulations from the state’s administrative procedures code and that the   determinations  of such an adjudicative hearing must be made before this court administratively or procedurally has  subject matter of a case to consider.

And if in hearing of these proceedings or deliberations of the Court this is determined to be the case, Defendant respectfully gives notice to the Court request for such hearing is hereby made  for such administrative agency hearing to be held  and those determinations made before this case  proceeds further before this Court.

Defendant further questions whether the Plaintiff has exhausted its own necessary administrative remedies found in the regulatory procedures, regulations and guidelines written by the executive department agency to which the issues of this case are subject and/or as required by the state’s own   administrative procedures code before bringing the action to this Court in any capacity and if in hearing of these proceedings or deliberations of the Court it turns out  Plaintiff  has not exhausted such necessary administrative remedies, Defendant is entitled to such executive determinations before Plaintiff brings this case,   as it cannot consider the case  to grant relief until such administrative remedies have been exhausted under the state’s and the executive department’s own administrative requirements. And the Court must comply with such regulatory requirements or it is waiving its judicial immunity.


The doctrine of exhaustion of administrative remedies applies where a statute provides an administrative remedy, even though the terms of the statute do not make the exhaustion of the remedy a condition of the right to resort to the courts.  (First Nat. Bank v. Board of County Comrs., 264 U.S. 450 [44 S.Ct. 385, 68 L.Ed. 784, 788-789].)

Either of these points should finally kill the case and we will raise these as the case moves on. So much more that came out of this hearing. We will go on later. If there are questions , You may reach us at 662-489-6554. Dr Weatherly


IMPORTANT Advisement:  The information and materials included here are only from the personal experience, knowledge or observation of the provider who is not a licensed legal professional and are not given by the provider or to be construed by the recipient as competent legal advise or assistance and the reader is encouraged to seek and maintain access to competent legal counsel to assist in all decisions concerning his or her situation. And any monetary exchanges between the parties to this email are to be understood as the non-contractual, voluntary contribution or gift of either party.

Dr. Weatherly

I am disputing the installation of the WAVE device by the Kansas City Water Department

The following is the communication line (please read from the bottom message up) as I have been attempting to protect my 4th amendment right to privacy.
If you have the WAVE installed in you house now, you probably should investigate exactly what information about your habits is being broadcast and how often.
This is Dr. Drumright.  I am Mr. Ford’s chiropractor.  Please make sure he gets a copy of this message.
I need you to help me protect my privacy.
You see after experiencing ID theft, I have become extremely wary of the accumulation of private information in data bases that I don’t personally have control over.
The following (please read from the bottom up) is a series of emails between myself and Robert Thiemann at the Water Department.
There is no reason for the collection and storage of water use data more often than needed to calculate a bill.
The bills go out every two months, so they need to have a reading once every two months.
Any greater frequency of readings serves them no purpose while increasing the risk of this information being stolen and used for bad intent.
I look forward to your timely response to this problem.
They have told Christina they would turn off the water to my family if we don’t waive our right to privacy and quickly comply.
Dr. Darrel Drumright
—–Original Message—–
From: Robert Thiemann [mailto:Robert_Thiemann@kcmo.org]
Sent: Wednesday, September 30, 2009 8:11 AM
To: Darrel Drumright
Subject: RE: Wave installation

I understand your concerns Dr Drumright. However, the automatic meter reading device cannot be turned off.

Rob Thiemann
Kansas City Water Services Department
Fax – 513-0230
Cell – 225-0751
Inactive hide details for "Darrel Drumright" <drd@harmonyhealth.com>“Darrel Drumright” <drd@harmonyhealth.com>

        • “Darrel Drumright” <drd@harmonyhealth.com> 09/29/2009 04:33 PM


“Robert Thiemann” <Robert_Thiemann@kcmo.org>



RE: Wave installation

Mr. Thiemann,

That is what the Army said before they lost my ID along with 25 million other veterans.

That is what Blue Cross Blue Sheild said before they lost my ID along with thousands of other providers.

You have to understand why I am sceptical about trusting a city government with so much sensitive information.

Such as what time of day I ussually take a shower, or if anyone has been home for the past three days.

Can I turn the thing on and off?

Dr Drumright

            • —–Original Message—–
              Robert Thiemann [mailto:Robert_Thiemann@kcmo.org]
              Monday, September 28, 2009 3:21 PM
              Darrel Drumright
              Re: Wave installationMr Drumright –

              I’m checked and I’m sorry but we are not going to be able to make an exception on the installation of your WAVE automatic meter reading system.


              Rob Thiemann
              Kansas City Water Services Department
              Fax – 513-0230
              Cell – 225-0751

              Inactive hide details for "Darrel Drumright" <drd@harmonyhealth.com>“Darrel Drumright” <drd@harmonyhealth.com>

                                            • “Darrel Drumright” <drd@harmonyhealth.com> 09/24/2009 09:34 AM





              Wave installation

              Good morning Robert,

              This is Dr Drumright.

              We discussed installing a special WAVE unit in my home at 5820 N Bedford Ave, KCMO 64151 that only broadcasts once per month.

              Thank you very much for listening to my concerns about information concentrations.

              What is the next step?


              Darrel Drumright

    • —–Original Message—–
      Robert Thiemann [mailto:Robert_Thiemann@kcmo.org]
      Tuesday, September 29, 2009 8:02 AM
      Darrel Drumright
      RE: Wave installation
      Dr Drumright –

      The city’s database is well protected and AMR technology has been proved safe in utilities around the country. The AMR meter does not control the flow of water and will not disrupt your water supply.

      Rob Thiemann
      Kansas City Water Services Department
      Fax – 513-0230
      Cell – 225-0751
      Inactive hide details for "Darrel Drumright" <drd@harmonyhealth.com>“Darrel Drumright” <drd@harmonyhealth.com>

                    • “Darrel Drumright” <drd@harmonyhealth.com>09/28/2009 06:02 PM


      “Robert Thiemann” <Robert_Thiemann@kcmo.org>



      RE: Wave installation

      Mr. Thiemann,

      Thank you for contacting me on this important issue.

      I need to know what other options there are to address my security and privacy concerns.

      Will I be able to turn the unit on and off myself to prevent the accumulation of behavior data in an unprotected database?

      Does the unit block water flow if the power goes out?

      Turning off my children’s water supply if I do not compromise my privacy rights is unacceptable.

      I look forward to working with you to create a satisfactory solution to this problem.

      Dr Drumright

Friday 9 am – Congressional Hearing on HR1207 Audit the Fed bill

That will be 8 am in the Kansas City area.

I don’t know if CSPAN will be showing it live so I found this direct link to the hearing.


Join me and millions of concerned sovereign Americans as we expose the central bank for the lie that it is.

Now will come an age of transparency in all public affairs.

Corporations, courts and treason against natural born sovereignty.

Problem: Artificial entities called corporations have more authority in the current legal system than natural born people.

Result: slavery: someone else (government) gets the fruit of your labor before you even see it, and there is nothing you can do about it. Or is there?

Solution:  Form a new transparent Constitutional Court.  File charges of treason against all members of congress, the senate, the current commercial court system, and the entire executive branch both past and present.  Hold amnesty hearings, and begin prosecutions.

Anyone got any other ideas on how we go about restoring authority to the sovereign people of America?

The Official State Office Known as “Person”

This is the single most important lesson that you MUST learn. If you spend an hour to learn this material you will be rewarded for the rest of your life.

Please read the following carefully and comment as you feel fit.  This is VERY interesting if not a little complicated.  I would love to discuss this in detail with everyone interested.

original link

The word “person” in legal terminology is perceived as a general word which normally includes in its scope a variety of entities other than human beings. Seee.g. 1 U.S.C. sec 1. Church of Scientology v. U.S. Dept. of Justice (1979) 612F.2d 417, 425.

One of the very first of your state statutes will have a section listed entitled “Definitions. “Carefully study this section of the statutes and you will find a portion that reads similar to this excerpt:

In construing these statutes and each and every word, phrase, or part hereof, where the context will permit:

(1) The singular includes the plural and vice versa.

(2) Gender-specific language includes the other gender and neuter.

(3) The word “person” includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.


Under the rule of construction “expressio unius est exclusio alterius,” where a statute or Constitution enumerates the things on which it is to operate or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned. Generally words in a statute should be given their plain and ordinary meaning. When a statute does not specifically define words, such words should be construed in their common or ordinary sense to the effect that the rules used in construing statutes are also applicable in the construction of the Constitution. It is a fundamental rule of statutory construction that words of common usage when used in a statute should be construed in their plain and ordinary sense. If you carefully read the statute laws enacted by your state legislature you will also notice that they are all written with phrases similar to these five examples :

1. A person commits the offense of failure to carry a license if the person . . .

2. A person commits the offense of failure to register a vehicle if the person . . .

3. A person commits the offense of driving uninsured if the person . . .

4. A person commits the offense of fishing if the person . . .

5. A person commits the offense of breathing if the person . . .

Notice that only “persons” can commit these state legislature created crimes. A crime is by definition an offense committed against the “state.” If you commit an offense against a human, it is called a tort. Examples of torts would be any personal injury, slander, or defamation of character.

So how does someone become a “person” and subject to regulation by state statutes and laws ?

There is only one way. You must ask the state for permission to volunteer to become a state person. You must volunteer because the U.S. Constitution forbids the state from compelling you into slavery. This is found in the 13th and 14th Amendments.

13th Amendment Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.14th Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny any person within its jurisdiction the equal protection of the laws. You become a state created statutory “person” by taking up residency with the state and stepping into the office of “person.” You must hold an “office” within the state government in order for that state government to regulate and control you. First comes the legislativel created office, then comes their control. If you do not have an office in state government, thelegislature’s control over you would also be prohibited by the Declaration of Rights section, usually found to be either Section I or II, of the State Constitution.

The most common office held in a state is therefore the office known as “person.” Your state legislature created this office as a way to control people. It is an office most people occupy without even knowing that they are doing so. The legislature cannot lawfully control you because you are a flesh and blood human being.

God alone created you and by Right of creation, He alone can control you. It is the nature of law, that what one creates, one controls. This natural law is the force that binds a creature to its creator. God created us and we are, therefore, subject to His laws, whether or not we acknowledge Him as our Creator.

The way the state gets around God’s law and thereby controls the people is by creating only an office, and not a real human. This office is titled as “person” and then the legislature claims that you are filling that office. Legislators erroneously now think that they can make laws that also control men. They create entire bodies of laws – motor vehicle code, building code, compulsory education laws, and so on ad nauseum. They still cannot control men or women, but they can now control the office they created. And look who is sitting in that office — YOU.

Then they create government departments to administer regulations to these offices. With in these administrative departments of state government are hundreds of other state created offices. There is everything from the office of janitor to the office of governor. But these administrative departments cannot function properly unless they have subjects to regulate. The legislature obtains these subjects by creating an office that nobody even realizes to be an official state office.

They have created the office of “person.” The state creates many other offices such as police officer, prosecutor, judge etc. and everyone understands this concept. However, what most people fail to recognize and understand is the most common state office of all, the office of “person.” Anyone filling one of these state offices is subject to regulation by their creator, the state legislature. Through the state created office of “person,” the state gains its authority to regulate, control and judge you, the real human. What they have done is apply the natural law principle, “what one creates, one controls. “A look in Webster’s dictionary reveals the origin of the word “person.” It literally means “the mask an actor wears.”

The legislature creates the office of “person” which is a mask. They cannot create real people, only God can do that. But they can create the “office” of “person,” which is merely a mask, and then they persuade a flesh and blood human being to put on that mask by offering a fictitious privilege, such as a driver license. Now the legislature has gained complete control over both the mask and the actor behind the mask. A resident is another state office holder.

All state residents hold an office in the state government. But not everyone who is a resident also holds the office of “person.”

Some residents hold the office of judge and they are not persons.

Some residents hold the office of prosecutors and they are not persons.

Some residents hold the office of police office(rs) and they are not persons.

Some residents hold the office of legislators and they are not persons.

Some residents are administrators and bureaucrats and they also are not persons.

Some residents are attorneys and they also are not persons.

An attorney is a state officer of the court and is firmly part of the judicial branch. The attorneys will all tell you that they are “licensed” to practice law by the state Supreme Court. Therefore, it is unawful for any attorney to hold any position or office outside of the judicial branch. There can be no attorney legislators – no attorney mayors – no attorneys as police – no attorneys as governor. Yes, I know it happens all the time, however, this practice of multiple office holding by attorneys is prohibited by the constitution and is a felony in most states. If you read farther into your state constitution you will find a clause stating this, the Separation of Powers, which will essentially read as follows:

Branches of government — The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. Therefore, a police officer cannot arrest a prosecutor, a prosecutor cannot prosecute a sitting judge, a judge cannot order the legislature to perform and so on.

Because these “offices” are not persons, the state will not, and cannot prosecute them, therefore they enjoy almost complete protection by the state in the performance of their daily duties. This is why it is impossible to sue or file charges against most government employees. If their crimes should rise to the level where they “shock the community” and cause alarm in the people, then they will be terminated from state employment and lose their absolute protection. If you carefully pay attention to the news, you will notice that these government employees are always terminated from their office or state employment and then are they arrested, now as a common person, and charged for their crimes. Simply put, the state will not eat its own.

The reason all state residents hold an office is so the state can control everything. It wants to create every single office so that all areas of your life are under the complete control of the state. Each office has prescribed duties and responsibilities and all these offices are regulated and governed by the state. If you read the fine print when you apply for a state license or privilege you will see that you must sign a declaration that you are in fact a “resident” of that state.

“Person” is a subset of resident. Judge is a subset of resident. Legislator and police officer are subsets of resident. If you hold any office in the state, you are a resident and subject to all legislative decrees in the form of statutes.

They will always say that we are free men. But they will never tell you that the legislatively created offices that you are occupying are not free. They will say, “All men are free,” because that is a true statement.

What they do not say is, that holding any state office binds free men into slavery for the state. They are ever ready to trick you into accepting the state office of “person,” and once you are filling that office, you cease to be free men. You become regulated creatures, called persons, totally created by the legislature. You will hear “free men” mentioned all the time, but you will never hear about “free persons.”

If you build your life in an office created by the legislature, it will be built on shifting sands. The office can be changed and manipulated at any time to conform to the whims of the legislature. When you hold the office of “person” created by the legislature, your office isn’t fixed. Your duties and responsibilities are ever changing. Each legislative session binds a “person” to ever more burdens and requirements in the form of more rules, laws and statutes. Most state constitutions have a section that declares the fundamental power of the people:

Political power — All political power is inherent in the people. The enunciation herein of certain Rights shall not be construed to deny or impair others retained by the people.

Notice that this says “people” it does not say persons. This statement declares beyond any doubt that the people are Sovereign over their created government. This is natural law and the natural flow of delegated power.

A Sovereign is a private, non-resident, non-domestic, non-person, non-individual, NOT SUBJECT to any real or imaginary statutory regulations or quasi laws enacted by any state legislature which was created by the people.

When you are pulled over by the police, roll down your window and say, “You are speaking to a Sovereign political power holder. I do not consent to you detaining me. Why are you detaining me against my will ?”

Now the state office of policeman knows that “IT” is talking to a flesh and blood Sovereign. The police officer cannot cite a Sovereign because the state legislature can only regulate what they create. And the state does not create Sovereign political power holders. It is very important to lay the proper foundation, Right from the beginning. Let the police officer know that you are a Sovereign. Remain in your proper office of Sovereign political power holder. Do not leave it. Do not be persuaded by police pressure or tricks to put on the mask of a state “person.”

Why aren’t Sovereigns subject to the state’s charges? Because of the concept of office. The state is attempting to prosecute only a particular office known as “person.” If you are not in that state created office of “person,” the state statutes simply do not apply to you. This is common sense, for example, if you are not in the state of Texas, then Texas laws do not apply to you. For the state to control someone, they have to first create the office. Then they must coerce a warm-blooded creature to come fill that office. They want you to fill that office.

Here is the often expressed understanding from the United States Supreme Court, that “in common usage, the term “person” does not include the Sovereign, statutes employing the person are ordinarily construed to exclude the Sovereign.” Wilson v. Omaha Tribe, 442 U.S. 653, 667 (1979) (quoting United States v. Cooper Corp., 312 U.S. 600, 604 (1941)). See also United States v. Mine Workers, 330 U.S. 258, 275 (1947).

The idea that the word “person” ordinarily excludes the Sovereign can also be traced to the “familiar principle that the King is not bound by any act of Parliament unless he be named therein by special and particular words.” Dollar Savings Bank v. United States, 19 Wall. 227, 239 (1874). As this passage suggests, however, this interpretive principle applies only to “the enacting Sovereign.” United States v. California, 297 U.S. 175, 186 (1936). See also Jefferson County Pharmaceutical Assn., Inc. v. Abbott Laboratories, 460 U.S. 150, 161, n. 21 (1983). Furthermore, as explained in United States v. Herron, 20 Wall. 251, 255 (1874), even the principle as applied to the enacting Sovereign is not without limitations: “Where an act of Parliament is made for the public good, as for the advancement of religion and justice or to prevent injury and wrong, the king is bound by such act, though not particularly named therein; but where a statute is general, and thereby any prerogative, Right, title, or interest is divested or taken from the king, in such case the king is not bound, unless the statute is made to extend to him by express words.” U.S. Supreme Court Justice Holmes explained:

“A Sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal Right as against the authority that makes the law on which the Right depends.” Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S. Ct. 526, 527, 51 L. Ed. 834 (1907).

The majority of American states fully embrace the Sovereign immunity theory as well as the federal government. See Restatement (Second) of Torts 895B, comment at 400 (1979). The following U.S. Supreme Court case makes clear all these principals. I shall have occasion incidentally to evince, how true it is, that states and governments were made for man; and at the same time how true it is, that his creatures and servants have first deceived, next vilified, and at last oppressed their master and maker.

A state, useful and valuable as the contrivance is, is the inferior contrivance of man; and from his native dignity derives all its acquired importance. … Let a state be considered as subordinate to the people: But let everything else be subordinate to the state. The latter part of this position is equally necessary with the former. For in the practice, and even at length, in the science of politics there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. As the state has claimed precedence of the people; so, in the same inverted course of things, the government has often claimed precedence of the state; and to this perversion in the second degree, many of the volumes of confusion concerning Sovereignty owe their existence. The ministers, dignified very properly by the appellation of the magistrates, have wished, and have succeeded in their wish, to be considered as the Sovereigns of the state. This second degree of perversion is confined to the old world, and begins to diminish even there: but the first degree is still too prevalent even in the several states, of which our union is composed. By a state I mean, a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person. It has its affairs and its interests: It has its rules: It has its Rights: and it has its obligations. It may acquire property distinct from that of its members. It may incur debts to be discharged out of the public stock, not out of the private fortunes of individuals. It may be bound by contracts; and for damages arising from the breach of those contracts. In all our contemplations, however, concerning this feigned and artificial person, we should never forget, that, in truth and nature, those who think and speak and act, are men. Is the foregoing description of a state a true description? It will not be questioned, but it is. …

It will be sufficient to observe briefly, that the Sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the prince as the Sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject, either in a court of justice or elsewhere. That system contemplates him as being the fountain of honor and authority; and from his grace and grant derives all franchise, immunities and privileges; it is easy to perceive that such a Sovereign could not be amenable to a court of justice, or subjected to judicial control and actual constraint. It was of necessity, therefore, that suability, became incompatible with such Sovereignty. Besides, the prince having all the executive powers, the judgment of the courts would, in fact, be only monitory, not mandatory to him, and a capacity to be advised, is a distinct thing from a capacity to be sued. The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the prince and the subject. No such ideas obtain here(speaking of America): at the revolution, the Sovereignty devolved on the people; and they are truly the Sovereigns of the country, but they are Sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the Sovereignty.Chisholm v. Georgia (February Term, 1793) 2 U.S. 419, 2 Dall. 419, 1 L.Ed 440.

There are many ways you can give up your Sovereign power and accept the role of “person.” One is by receiving state benefits. Another is by asking permission in the form of a license or permit from the state.

One of the subtlest ways of accepting the role of “person,” is to answer the questions of bureaucrats. When a state bureaucrat knocks on your door and wants to know why your children aren’t registered in school, or a police officer pulls you over and starts asking questions, you immediately fill the office of “person” if you start answering their questions. It is for this reason that you should ignore or refuse to “answer” their questions and instead act like a true Sovereign, a King or Queen, and ask only your own questions of them. You are not a “person” subject to their laws.

If they persist and haul you into their court unlawfully, your response to the judge is simple and direct, you the Sovereign, must tell him :

I have no need to answer you in this matter.

It is none of your business whether I understand my Rights or whether I understand your fictitious charges.

It is none of your business whether I want counsel.

The reason it is none of your business is because I am not a person regulated by the state. I do not hold any position or office where I am subject to the legislature. The state legislature does not dictate what I do.

I am a free Sovereign “Man”(or woman) and I am a political power holder as lawfully decreed in the State Constitution at article I (or II) and that constitution is controlling over you..

You must NEVER retain or hire an attorney, a state officer of the court, to speak or file written documents for you. Use an attorney (if you must) only for counsel and advice about their “legal” system. If you retain an attorney to represent you and speak in your place, you become “NON COMPOS MENTIS”, not mentally competent, and you are then considered a ward of the court. You LOSE all your Rights, and you will not be permitted to do anything herein.

The judge knows that as long as he remains in his office, he is backed by the awesome power of the state, its lawyers, police and prisons. The judge will try to force you to abandon your Sovereign sanctuary by threatening you with jail. No matter what happens, if you remain faithful to your Sovereignty, The judge and the state may not lawfully move against you. The state did not create the office of Sovereign political power holder. Therefore, they do not regulate and control those in the office of Sovereign. They cannot ascribe penalties for breach of that particular office. The reason they have no authority over the office of the Sovereign is because they did not create it and the Sovereign people did not delegate to them any such power.

When challenged, simply remind them that they do not regulate any office of the Sovereign and that their statutes only apply to those state employees in legislative created offices. This Sovereign individual paradigm is explained by the following U.S. Supreme Court case:

“The individual may stand upon his constitutional Rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no such duty [to submit his books and papers for an examination] to the State, since he receives nothing therefrom, beyond the protection of his life and property. His Rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his Rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their Rights.” Hale v. Henkel, 201 U.S. 43 at 47 (1905).

Let us analyze this case. It says, “The individual may stand upon his constitutional Rights.” It does not say, “Sit on his Rights.” There is a principle here: “If you don’t use ’em you lose ’em.” You have to assert your Rights, demand them, “stand upon” them.

Next it says, “He is entitled to carry on his private business in his own way.” It says “private business” – you have a Right to operate a private business. Then it says “in his own way.” It doesn’t say “in the government’s way.”

Then it says, “His power to contract is unlimited.” As a Sovereign individual, your power to contract is unlimited. In common law there are certain criteria that determine the validity of contracts. They are not important here, except that any contract that would harm others or violate their Rights would be invalid. For example, a “contract” to kill someone is not a valid contract. Apart from this obvious qualification, your power to contract is unlimited.

Next it says, “He owes no such duty [to submit his books and papers for an examination] to the State, since he receives nothing therefrom, beyond the protection of his life and property.” The court case contrasted the duty of the corporation (an entity created by government permission – feudal paradigm) to the duty of the Sovereign individual. The Sovereign individual doesn’t need and didn’t receive permission from the government, hence has no duty to the government.

Then it says, “His Rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State.” This is very important. The Supreme Court recognized that humans have inherent Rights. The U.S. Constitution (including the Bill of Rights) does not grant us Rights. We have fundamental Rights, irrespective of what the Constitution says. The Constitution acknowledges some of our Rights. And Amendment IX states, “The enumeration in the Constitution, of certain Rights, shall not be construed to deny or disparage others retained by the people.” The important point is that our Rights antecede (come before, are senior to) the organization of the state.

Next the Supreme Court says, “And [his Rights] can only be taken from him by due process of law, and in accordance with the Constitution.” Does it say the government can take away your Rights? No! Your Rights can only be taken away “by due process of law, and in accordance with the Constitution.” “Due process of law” involves procedures and safeguards such as trial by jury. “Trial by jury” means, inter alia, the jury judges both law and fact.

Then the case says, “Among his Rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law.” These are some of the Rights of a Sovereign individual. Sovereign individuals need not report anything about themselves or their businesses to anyone.

Finally, the Supreme Court says, “He owes nothing to the public so long as he does not trespass upon their Rights.” The Sovereign individual does not have to pay taxes. If you should discuss Hale v. Henkel with a run-of-the-mill attorney, he or she will tell you that the case is “old” and that it has been “overturned.” If you ask that attorney for a citation of the case or cases that overturned Hale v. Henkel, there will not be a meaningful response. The OUTLAWS have researched Hale v. Henkel and here is what we found :

“We know that Hale v. Henkel was decided in 1905 in the U.S. Supreme Court. Since it was the Supreme Court, the case is binding on all courts of the land, until another Supreme Court case says it isn’t. Has another Supreme Court case overturned Hale v. Henkel? The answer is NO. As a matter of fact, since 1905, the Supreme Court has cited Hale v. Henkel a total of 144 times. A fact more astounding is that since 1905, Hale v. Henkel has been cited by all of the federal and state appellate court systems a total of over 1600 times. None of the various issues of this case has ever been overruled.

So if the state through the office of the judge continues to threaten or does imprison you, they are trying to force you into the state created office of “person.” As long as you continue to claim your Rightful office of Sovereign, the state lacks all jurisdiction over you. The state needs someone filling the office of “person” in order to continue prosecuting a case in their courts.

A few weeks in jail puts intense pressure upon most “persons.” Jail means the loss of job opportunities, separation from loved ones, and the piling up of debts. Judges will apply this pressure when they attempt to arraign you. When brought in chains before a crowded courtroom the issue of counsel will quickly come up and you can tell the court you are in propria persona or simply “PRO PER”, as your own counsel and you need no other. Do not sign their papers or cooperate with them because most things about your life are private and are not the state’s business to evaluate. Here is the Sovereign peoples command in the constitution that the state respect their privacy : Right of privacy — Every man or woman has the Right to be let alone and free from governmental intrusion into their private life except as otherwise provided herein. This section shall not be construed to limit the public’s Right of access to public records and meetings as provided by law.

If the judge is stupid enough to actually follow through with his threats and send you to jail, you will soon be released without even being arraigned and all charges will be dropped. You will then have documented prima facie grounds for false arrest and false imprisonment charges against him personally.

Now that you know the hidden evil in the word “person”, Try to stop using it in everyday conversation. Simply use the correct term, MAN or WOMAN. Train yourself, your family and your friends to never use the derogatory word “person” ever again.



original post here”



The doings of American grand juries are notoriously misunderstood and unknown by most sectors of the public.[1] Generally, the grand jury process escapes obscurity only when indictments are made public and when, for whatever reason, grand jury “leaks” are disclosed in the news media.[2] In theory, the grand jury is supposed to act as a check on the government — a people’s watchdog against arbitrary and malevolent prosecutions.[3] By and large, however, federal grand juries rarely challenge federal prosecutors.

Today, critics are nearly unanimous in describing the alleged oversight function of modern grand juries as essentially a tragic sham.[4] The Framers of the Bill of Rights would scarcely recognize a grand jury upon seeing the modern version conduct business in a federal courthouse.[5] In modern federal grand jury proceedings, the government attorney is clearly in charge and government agents may outnumber the witnesses by six-to-one.[6]

A “runaway” grand jury, loosely defined as a grand jury which resists the accusatory choices of a government prosecutor, has been virtually eliminated by modern criminal procedure. Today’s “runaway” grand jury is in fact the common law grand jury of the past. Prior to the emergence of governmental prosecution as the standard model of American criminal justice, all grand juries were in fact “runaways,” according to the definition of modern times; they operated as completely independent, self-directing bodies of inquisitors, with power to pursue unlawful conduct to its very source, including the government itself.[7]

Before the Federal Rules of Criminal Procedure — which made independently-acting grand juries illegal for all practical purposes — grand juries were understood to have broad powers to operate at direct odds with both judges and prosecutors.[8] One recent criminal procedure treatise sums up the inherent inconsistency of the modern grand jury regime:

In theory, the grand jury is a body of independent citizens that can investigate any crime or government misdeed that comes to its attention. In practice, however, the grand jury is dependent upon the prosecutor to bring cases and gather evidence. Except in rare instances of a “runaway” grand jury investigation of issues that a prosecutor does not want investigated, the powers of the grand jury enhance the powers of the prosecutor.[9]

Thus, while the grand jury still exists as an institution — in a sterile, watered-down, and impotent form — its decisions are the mere reflection of the United States Justice Department.[10] In practice, the grand jury’s every move is controlled by the prosecution, whom the grand jury simply does not know it is supposed to be pitted against.[11]

The term “runaway grand jury” did not appear in legal literature until the mid-twentieth century.[12] The reason for this is that the term would have been inapplicable in the context of previous generations: every American grand jury known by the Constitution’s Framers would be considered a runaway grand jury under modern criminal procedure. Constitutional framers knew criminal law to be driven by private prosecution and did not contemplate the omnipresence of government prosecutors.[13] Additionally, early American common law placed far more power and investigative judgment in the hands of grand juries than does the criminal procedure of the twentieth century.

Although in 1946 the drafters of the Federal Rules of Criminal Procedure looked with horror at the prospect of grand juries that “could act from their own knowledge or observation,”[14] long-standing common law precedent upholds the power of grand juries to act “independently of either the prosecuting attorney or judge.”[15] At common law, a grand jury could freely “investigate merely on [the] suspicion that the law [was] being violated, or even because it want[ed] assurance that it [was] not.”[16] In light of the historic independence of the grand jury, the perfidy of the Federal Rules Advisory Committee in limiting the institution through codification can only be seen as willful subversion of well-settled law.[17] A truly independent grand jury — which pursues a course different from the prosecutor — is today so rare that it is an oddity, and a virtual impossibility at the federal level since Rule 6 was codified in 1946.

The loss of the grand jury in its traditional, authentic, or runaway form, leaves the modern federal government with few natural enemies capable of delivering any sort of damaging blows against it.[18] The importance of this loss of a once powerful check on the “runaway” federal government is a focus that has remained largely untouched in the legal literature.

This article examines the historic decrease in the powers of the American grand jury during the twentieth century. It introduces the subject of the grand jury in the context of the constitutional language which invoked it, and then compares the modern application of the institution at the federal level with its common law model.[19] Tracing the historic evolution of the grand jury as an anti-government institution in the English common law until its “capture” by the government in the mid-twentieth century, this article will demonstrate how the role of the grand jury has changed considerably over time. Finally, this article will argue that the modern loss of “runaway” or independent grand juries is unconstitutional and recommend a restoration of the grand jury’s historic powers.


The Fifth Amendment to the United States Constitution requires that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”[20] Constitutional framers considered this protection “a bulwark against oppression” due to the grand jury’s historic powers to investigate the government and deny government indictments.[21] The grand jury of the eighteenth century usually consisted of twenty-three people acting in secret who were able to charge both on their own (an accusation known as a “presentment”) and upon the recommendations of a prosecutor.[22] In addition to its traditional role of screening criminal cases for prosecution, common law grand juries had the power to exclude prosecutors from their presence at any time and to investigate public officials without governmental influence.[23] These fundamental powers allowed grand juries to serve a vital function of oversight upon the government.[24] The function of a grand jury to ferret out government corruption was the primary purpose of the grand jury system in ages past.[25]


Today’s federal grand jury hardly fits the image of a noble and independent body.[26] As a practical matter, it is little more than an audience for summary government presentations.[27] Grand juries in federal courthouses do little more than listen to “a recitation of charges by a government witness.”[28] Federal prosecutors, unchecked by a grand jury in its modern misconstruction, can easily obtain whatever result they seek in the grand jury room.[29] They generally call only one witness, a federal agent who summarizes, in hearsay form, what other witnesses (if any) told her.[30] Eyewitnesses, even if available, rarely appear, and the entire presentation of the prosecutor’s case may take as few as three minutes.[31]

Even the federal grand jury handbook issued to newly sworn grand jurors reflects the watered down nature of modern grand jury activities.[32] The 1979 version of the handbook assured jurors that “you alone decide how many witnesses” are to appear.[33] Five years later, the updated version of the handbook told jurors “that the United States Attorney would ‘advise them on what witnesses’ should be called.”[34]

“Today, the grand jury is the total captive of the prosecutor,” wrote one Illinois district judge, “who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury.”[35] Supreme Court Justice William Douglas wrote in 1973 that it was “common knowledge that the grand jury, having been conceived as a bulwark between the citizen and the Government, is now a tool of the Executive.”[36] At least one scholar has suggested that the problem of grand jury subordination may be so institutionalized that its very structure violates due process.[37] The critics are unanimous in their condemnation of the modern grand jury process as little more than an elaborate ritual used only to justify by ceremony the decisions of the government. Commentators only disagree on whether to term the grand jury the prosecutors; “indictment mill,” “rubber stamp,” a “tool” or “playtoy.”[38]


According to David Burnham of the Transactional Records Access Clearinghouse (“TRAC”), the statistical evidence “overwhelmingly supports what practicing lawyers have known in an anecdotal way for many years: One of the basic safeguards promised by the Fifth Amendment is a fraud.”[39] Describing traditional expressions by federal judges concerning the grand jury as those of “almost mystical faith” — with little basis in reality, Burnham speaks of scores of decisions in which courts have found that Justice Department lawyers lied, cheated, or took other improper actions to win their indictments and convictions, but which courts found did not serve to overpower the grand jury’s alleged independence.[40] “The grand jury as an institution is worshipped for being something it is not,” according to Burn-ham, “a group of citizens capable of confronting an assistant U.S. Attorney over matters of the law or sufficiency of evidence.”[41] Another writer has described grand jury subpoenas and indictments as “essentially unilateral decisions by prosecutors.”[42]

According to TRAC, of 785 federal grand juries in 1991, grand jurors voted against the prosecutor in only sixteen of the 25,943 matters presented to them, a rate of 99.9% agreement.[43] Even the remaining one tenth of one percent, according to Burnham, might exaggerate a grand jury’s independence, due to prosecutors deliberately “throwing” a couple of prosecutions, such as the possibly disingenuous 1991 “investigation” of Virginia Senator Charles Robb on widespread allegations of illegal tape recording of a political rival.[44]

Even the Justice Department has tacitly conceded that there is almost no such thing as grand jury independence. A 1983 report by its Office of Development, Testing and Dissemination concluded that the imbalance of power between the courts and prosecutors on one hand and the grand jury on the other “makes grand jury effectiveness largely dependent on the good will and ethics of the courts and prosecutors.”[45] The Justice Department report shrugged off this criticism, however, asserting that prosecutors have little incentive for promoting unsound indictments since they have the burden of preparing for trial. “Indeed,” claimed the report, “the incidence of guilty pleas and verdicts following indictment may be seen as evidence of the ultimate effectiveness of the grand jury process.”[46]

Despite this self-serving confidence by the government, the vast majority of disinterested observers view grand jury effectiveness as completely subject to the direction of federal prosecutors. As one scholar put it, “[t]he notion that grand juries do not eliminate weak cases is now so well accepted that it is difficult to find any recent scholarly support to the contrary.”[47]

But while critics of the grand jury process are many, few point to any clearly articulable reasons to explain why the grand juries of the past were so much better at resisting the will of the prosecutor than those of today.[48] Some authorities place the blame on federal prosecutors and argue that Congress should expressly prohibit them from misleading grand juries by withholding exculpatory information or from using illegally seized information to gain grand jury indictments.[49] Others point to the modern grand jury’s lack of investigative tools and call upon Congress to provide grand juries with their own investigative staff and resources.[50] Other sources, such as the American Bar Association, have pointed to modern grand jury instructions as a major source of grand jury subordination, and argue that instructions should be altered to emphasize to grand jurors their independence and their co-equal status in relation to the government.[51 ]Other authorities have placed the blame squarely upon the Federal Rules of Criminal Procedure, which provide no clear avenue for the exercise of traditional grand jury powers.


The grand jury is first known to have existed in 1166, when the Norman kings of England required answers from local representatives concerning royal property rights.[52] In its early centuries, the grand jury evolved into a body of twelve men who presented indictments at the behest of private individuals or the prosecutor of the King.[53] The Magna Carta provided that individuals had the right to go before a grand jury to be charged of their crimes.[54] As trial by a jury of twelve replaced trial by ordeal, the grand jury became a body of twelve to twenty-three men, which is closer to the way it is set up today, acting as ombudsmen between the King’s officials and royal subjects.[55]


By 1681, the English grand jury adopted the rule of secrecy which allowed it to function out of the sight of the King’s prosecutors or other intemeddlers. It was secrecy that provided the grand jury with its greatest power as an independent populist body, equipped with an oversight power on the government. Thus was born the grand jury in its primal, plenary sense. It was a group of men who stood as a check on government, often in direct opposition to the desires of those in power. Eulogized by Coke and Blackstone, the grand jury crossed the Atlantic as one of the fundamental foundations of common law in the American colonies.[56]

The development of grand juries in America was similar to that of England, with a few exceptions. The English colonies in America were crucibles for popular anti-monarchical ideology. The grand jury was the initiator of prosecutions, acting “in several of the colonies as spokesmen for the people . . . and [as] vehicles for complaints against officialdom.”[57] Indeed, in America, the grand jury originally began as a defense against the monarchy, and was arguably even more independent than the English grand jury of the 1600s.[58] American grand juries initiated prosecutions against corrupt agents of the government, often in response to complaints from individuals.[59]

Crossing the Atlantic Ocean with the first English colonists, the notion of the grand jury as an indispensable arm of law enforcement became entrenched. Grand juries in their “runaway” sense were a bedrock foundation of the English common law that was inherited by the American justice system.[60] Grand jurors in New Plymouth colony were charged “to serve the King by inquiring into the abuses and breaches of such wholesome laws and ordinances as tend to the preservation of the peace and good of the subject.”[61] In early Connecticut, grand jurors were specifically mandated to report any breaches of the laws they knew of in their jurisdiction.[62] In Massachusetts, grand jurors had to appear at least once yearly before their county courts to disclose “all misdemeanors they shall know or hear to be committed by any person.”[63] These grand jurors had a duty to report offenses in their communities that came to their attention, to personally investigate suspected wrongdoing, and to question anyone whose behavior seemed suspicious.[64]

In the early American experience, the grand jury became more a part of local government than it had apparently ever been in England. A grand jury in Virginia in 1662 was part of the country system, which meant that they would meet two times a year “to levy taxes and oversee spending, supervise public works, appoint local officials, and consider criminal accusations.”[65] Connecticut grand juries were levying taxes and conducting local government work by the middle of the 1700s.[66] A similar active role in local government was assumed by grand juries in the Carolinas, Georgia, Maryland, New Jersey, and Pennsylvania, all of which had sufficient independence to publicly announce dissatisfaction with government.[67]

The grand jury that the drafters of the Bill of Rights knew was no doubt more powerful than any known in England. Indeed, the actions of grand juries figured prominently in the beginnings of the Revolution. In 1765, a Boston grand jury refused to indict Colonists who had led riots against the Stamp Act.[68] Four years later, as tensions intensified, a Boston grand jury indicted some British soldiers located within the city boundaries for alleged crimes against the colonists, but refused to treat certain colonists who had been charged by the British authorities for inciting desertion in a like manner.[69] A Philadelphia grand jury condemned the use of the tea tax to compensate the British officials, encouraged a rejection of all British goods, and called for organization with other colonies to demand redress of grievances.[70]

Contrary to the modern situation where secrecy is court imposed and aimed at aiding the prosecutor in gaining an indictment, these grand juries embraced secrecy as an inherent power of their own, independent of any other governmental institutions. Indeed, colonial grand juries became sounding boards for anti-British sentiment. They functioned as patriotic platforms and propaganda machines, constantly condemning the British government and encouraging individuals to support the effort of independence.[71] “In some instances,” according to commentators, “the calls to arms were sounded by the grand jurors themselves; in others, the sparks came from patriotic oratory by the presiding judges in their charges to the grand jury.”[72 ]The public proclamations of these grand juries were drastically different from anything we know today; they were often circulated in local and national newspapers in an effort to “fuel the revolutionary fire.”[73 ]The process for receiving private testimony, outside the presence of the court officials, remained a common practice for a century after the grand jury was enshrined in the Bill of Rights.[74] Throughout the 19th century, grand juries often acted on their own initiative in the face of opposition from a district attorney. It was just such a grand jury that probed and “toppled the notorious Boss Tweed and his cronies” in New York City in 1872. Without the prosecutor’s assistance, the Tweed grand jury independently carried out its own investigation in a district that had otherwise been very loyal to Tweed.[75]

In 1902, a Minneapolis grand jury on its own initiative hired private detectives and collected enough evidence to indict the mayor and force the police chief to resign.[76] This same grand jury virtually governed the city until a new administration could be hired. Similar events occurred in San Francisco five years later, when a grand jury indicted the mayor and replaced him.[77]

But beginning about 1910 or so, the grand jury ceased to operate so independently. As the government began to regulate the grand jury more and more, the grand jury became “captured.” The practice of allowing a prosecutor to investigate crime allegations and then present his evidence for indictment before the grand jury became routine and evolved into such standard practice that by the end of the nineteenth century it had become a part of “normal” grand jury operations. While previously the prosecutor often did not get a case until after indictment, now he was frequently allowed to present evidence before the grand jury personally. By the turn of the twentieth century, according to one commentator, “with the prosecutor inside the grand jury room, the purposes of grand jury secrecy were no longer apparent.”[78]

As the grand jury slowly lost its full historic purpose, grand juries became resigned to a minute corner of the American justice system. American grand juries ceased to initiate their own investigations. “Dramatic, sometimes violent confrontations between grand juries and prosecutors, politicians, legislatures, even within the grand juries themselves, became largely things of the past by about the 1930’s.”[79]

During this period of the grand jury’s slow decline in the states, federal grand juries became, ironically, more important. Although federal grand juries had been a rather obscure element of American criminal procedure before the twentieth century, they stood poised to explode in importance due to the increase of federal criminal jurisdiction by the turn of the century.[80] The growing importance of federal grand juries came at the precise historic moment when state models for grand juries were becoming more and more limited. In fact, because federal grand jury practice looked by necessity to state grand juries as models for federal procedure, the resulting model for federal grand jury proceedings was actually a mere shell of the model intended by the Framers.[81]

From the ratification of the Bill of Rights in 1789, up until and to some extent beyond its codification in the Federal Rules of Criminal Procedure, a Federal grand jury practice went for the most part unregulated by statute.[82] This was due to the limited constitutional jurisdiction of the federal government, and to the scarcity of federal statutes governing criminal justice, a domain traditionally reserved to the states.[83] In its traditional form, the citizen grand jury had come to be seen as an inefficient, unnecessary and possibly dangerous phenomenon.[84] Ultimately, a combination of judicial activism, executive contempt and legislative apathy left the federal grand jury weakened and contained before it had a chance to truly roam free.[85]


In 1946, the Federal Rules of Criminal Procedure were adopted, codifying what had previously been a vastly divergent set of common law procedural rules and regional customs.[86] In general, an effort was made to conform the rules to the contemporary state of federal criminal practice.[87] In the area of federal grand jury practice, however, a remarkable exception was allowed. The drafters of Rules 6 and 7, which loosely govern federal grand juries, denied future generations of what had been the well-recognized powers of common law grand juries: powers of unrestrained investigation and of independent declaration of findings. The committee that drafted the Federal Rules of Criminal Procedure provided no outlet for any document other than a prosecutor-signed indictment. In so doing, the drafters at least tacitly, if not affirmatively, opted to ignore explicit constitutional language.[88]


The Fifth Amendment to the United States Constitution requires that no person shall be held to answer for a capital or otherwise infamous crime except by a presentment or indictment of a grand jury.[89]

What all authorities recognize as a “presentment,” however, has been written out of the law and is no longer recognized by the federal judiciary.[90]

A presentment is a grand jury communication to the public concerning the grand jury’s investigation. It has traditionally been an avenue for expressing grievances of the people against government.[91 ] In early American common law, the presentment was a customary way for grand juries to accuse public employees or officials of misconduct.[92] While an “indictment” was normally thought to be invalid without the signature of a government prosecutor, a presentment required no formal assent of any entity outside the grand jury. In early America, a presentment was thought to be an indictment without a prosecutor’s signature and a mandate to a district attorney to initiate a prosecution.[93]

According to Professor Lester B. Orfield, who served as a member of the Advisory Committee on Rules of Criminal Procedure, the drafters of Rule 6 consciously decided that the term “presentment” should not be used in the Rules — even though the term appears in the Constitution.[94] “Retention,” wrote Orfield, “might encourage the use of the ‘run-away’ grand jury as the grand jury could act from their own knowledge or observation and not only from charges made by the United States attorney.”[95]

A presentment is generally drafted from the knowledge and findings of the jurors themselves, rather than a prosecutor, and signed individually by each juror who agrees with it. A presentment at common law stood public with or without approval of a prosecutor or court. In the early days of the Republic, the Attorney General hinted that a federal prosecutor was obliged to indict upon the presentment by the grand jury.[96] Thus, Rule 6 represented a monumental — and deliberate — change of grand jury practice.[97] Orfield’s peculiar use of the term “runaway” grand jury in the committee notes may mark both the advent of this term into the legal lexicon[98] and the loss to history of true grand jury independence.[99]

With the Federal Rules, the grand jury was drastically altered, in what can only be seen as an immense assault on the grand jury as an institution, if not an absolute coup d’etat upon it. The rule drafters deliberately pigeonholed the citizen grand jury into a minor role of either approving or disapproving of a prosecutor’s actions. With the enactment of Rule 6, the federal government’s undeclared war on the grand jury was almost won. What remained of the federal grand jury as a free institution was left to the federal courts to whittle away even further.

The federal courts were quick to uphold the federal rules when it came to deciding matters relating to the grand jury. In almost cyclical logic, the federal courts have claimed in near unison that presentments accusing unindicted persons of crime cannot be allowed, absent judge or prosecutor approval, “past unchallenged practice” notwithstanding.[100] Thus, hundreds of years of grand jury jurisprudence was overthrown by codification.[101]

Justification for hobbling grand juries in this manner was based on the argument that those who are accused in grand jury documents are denied due process rights that the courts have a duty to protect.[102 ] It was argued that allowing the continuance of common law grand jury powers would expose countless persons — many of them government agents — to unanswerable accusations in the public eye.[103] Protecting public officials from public scorn thus won out over upholding the traditional powers of federal grand juries. Numerous avenues for innocent persons to fight such accusations are available.[104] Nevertheless, courts during the latter twentieth century have appeared to uniformly adopt the “protect people from grand jury accusations” rationale for barring the federal grand juries from issuing presentments.[105]

Another aspect of the grand jury’s lost powers that has received little consideration in the legal literature is that of grand jury’s loss of power to turn on the government and publicly exonerate a suspect. With curtailment of the grand jury’s power to accuse without prosecutorial sanction also came curtailment of the grand jury’s power to formally and publicly exonerate. This loss of power also serves the interests of modern government by allowing a prosecutor to resubmit a matter to a new grand jury, a practice which almost always can produce a true bill eventually — even against a ham sandwich.[106]

One principle example in American history of a political persecution that was exposed by the presentments of grand juries is the almost unbelievable story of Aaron Burr.[107] After what can only be described as a bizarre political career,[108] Burr found himself disliked by both the Federalists and the Republicans.[109] The United States Attorney for Kentucky, a staunch Federalist aligned with his own party’s strongest rival President Jefferson, moved that a grand jury be summoned to consider charges against Burr for his alleged attempt to involve the United States in a war with Spain.[110] This grand jury from Republican-dominated Kentucky returned an “ignoramus bill,” declining to indict Burr on the evidence.[111] Going even further, the grand jury issued a written declaration directed to the court in which they declared that Burr failed to exhibit “any design inimical to the peace and well-being of the country.”[112]

A second grand jury was indubitably spurred by Jefferson himself.[113] The second proceeding convened in Mississippi Territory to consider similar treason charges against Burr relating to his expedition down the Mississippi River.[114] It was alleged that Burr intended to capture New Orleans, a city of nine thousand people protected by a thousand United States soldiers, using sixty unarmed men in ten boats.[115] The Mississippi grand jury not only declined to indict Burr in the affair, but returned presentments which clearly labeled the government’s attempted charges as a vindictive prosecution.[116] The presentment concluded that “Aaron Burr has not been guilty of any crime or misdemeanor against the laws of the United States or of this Territory.”[117] Furthermore, the grand jury declared that the arrests of Burr and his co-travelers had been made “without warrant, and . . . without other lawful authority,”[118] and represented a “grievance destructive of personal liberty.”[119] In resounding condemnation, the grand jury pronounced its regret that “the enemies of our glorious Constitution” had rejoiced at the attempted persecution of Aaron Burr and expressed the opinion that such prosecutorial misconduct “must sap the vitals of our political existence, and crumble this glorious fabric in the dust.”[120]

The grand jury’s presentment power was thus used not only to accuse wrongdoers when government prosecutors refuse to do so, but to publicly declare the innocence of a targeted suspect in the very face of opposition by the prosecution. Ironically, the Mississippi grand jury was a “runaway” by today’s standards. Nevertheless, a grand jury acting in such way offered preciously the type of protection envisioned by the Framers when they included the institution in the Bill of Rights as a check on the power of the government.[121]

Even more enlightening in comparison with the canons of modern criminal procedure, the Mississippi grand jury’s presentment included a bold attack on the prosecution itself — an occurrence scarcely imaginable today. It was thus the grand jury’s power over its presentments, rather than its indictments, that made it so fearsome. The effectiveness of early American grand juries in ferreting out the shortcomings of public officials “can be gauged from the long lists of grand jury presentments” of early America.[122] “Very little escaped the attention of the grand jurymen,”[123] which even took notice of the failures of town councils to provide stocks or a whipping post to punish offenders.[124]


The enactment in 1946 of the Federal Rules of Criminal Procedure has greatly decreased the power of federal grand juries. While widely thought of as a gift to defense attorneys at the time,[125] the codification of grand jury practice into Rule 6 of the Federal Rules of Criminal Procedure has largely confined the grand jury to its present state of impotence and has done little to protect defendants from the modern “runaway” federal government. Present federal grand jury practice, which forbids grand jurors from issuing presentments without consent of a federal prosecutor, is unconstitutional and violative of the historical principles on which the creation of the grand jury was premised.

† Roger Isaac Roots, J.D., graduated from Roger Williams University School of Law in 1999 and Montana State University-Billings (B.S., Sociology) in 1995. He is founder of the Prison Crisis Project, a not-for-profit prison and criminal justice law and policy think tank based in Providence, Rhode Island. He would like to thank David Cicilline, Margaret Curran, Jonathan Gutoff, and Duane Horton for their thoughtful advice and assistance regarding this article.

1. See, e.g., STEPHEN A. SALTZBURG & DANIEL J. CAPRA, AMERICAN CRIMINAL PROCEDURE 696 (5th ed. 1996) (reprinting New Jersey’s model grand jury instructions which contain the open acknowledgment of this: “Citizens in general have only a vague idea of what a grand jury is and what its functions are.”); see also Susan W. Brenner & Gregory G. Lockhart, FEDERAL GRAND JURY: A GUIDE TO LAW AND PRACTICE 2 (1996) (“Surprisingly, given the power it wields, the grand jury, is an often-overlooked and little understood phenomenon in American law.”).

2. Only occasionally does the public become privy to criticisms of the grand jury process. A recent source of popular unrest concerning the grand jury process surrounded the 1998 impeachment of President Bill Clinton for perjury and obstruction of justice offenses. Other noteworthy criticism of the process involved former Labor Secretary Raymond Donovan, who was acquitted on fraud charges, see Ray Jenkins, Editorial, He Could Indict the Easter Bunny, BALTIMORE SUN, January 29, 1996, at 7A, available in 1996 WL 6602238, and when 23 Colorado grand jurors went public in 1992 to complain that a United States Attorney’s indictment did not properly reflect their views, see Editorial: The Eternal Flats Grand Jury The Issue: Should Jurors Be Allowed to Release Their Report? Our View: Yes, At Least In Part If Not In Full, ROCKY MOUNTAIN NEWS, July 7, 1997, at 40A. Former Texas governor John Connally also bitterly criticized the system after his indictment — followed by swift acquittal — on charges that as Secretary of the Treasury he took bribes from lobbyists. See Jenkins, supra. Donovan was widely quoted after his acquittal as asking, “Where do I go to get my reputation back?” Id.

3. See, e.g., Wood v. Georgia, 370 U.S. 375, 390 (1962) (describing the operation and purpose of the grand jury).

4. See Fred A. Bernstein, Note, Behind the Gray Door: Williams, Secrecy, and the Federal Grand Jury, 69 N.Y.U. L. REV. 563, 578 (1994) (stating that commentators disagree only on what to call the grand jury: “indictment mill,” “rubber stamp,” “tool,” or “playtoy” have all been suggested).

5. Modern grand jury proceedings are normally conducted in the grand jury room, but at common law they could be conducted in private houses or other places for protection of the witnesses. See, e.g., United States v. Smyth, 104 F. Supp. 283, 300 (N.D. Cal. 1952); United States v. Gilboy, 160 P. Supp. 442, 458-59 (M.D. Pa. 1958). However, modern grand jury charges tend to limit this power, or even overtly conceal it from the grand jurors. See, e.g., Louis E. Goodman, Charge to the Grand Jury, 12 F.R.D. 495, 499-501 (N.D. Cal. 1952) (arguing against such freedom of movement and ordering the grand jury to “hold its meetings and conduct its investigations and deliberations in quarters provided by the Court and in no other places”).

6. See Tony Mauro & Kevin Johnson, Grand Jury ‘Very Lonely’ For Witnesses, USA TODAY, March 3, 1998, at 1A (stating that during Independent Prosecutor Kenneth Starr’s grand jury proceedings against President Clinton, there were up to a “half-dozen” government attorneys and staff people sitting opposite the witness).

7. See CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES & CONCEPTS 546 (3d ed. 1993) (stating that the grand jury has authority to act as a “watchdog” over government operations).

8. See FED. R. CRIM. P. 7(c)(l) (requiring that all indictments be “signed by the attorney for the government”). See also id. Advisory Committee Note 4 explaining Subdivision (a) of the same Rule (stating that grand jury “presentments,” or non-government-approved accusations, “are obsolete, at least as concerns the Federal courts”).


10. See Stuart Taylor, Jr., Taking Issue: Enough of the Grand Jury Charade, LEGAL TIMES, May 18, 1992, at 23 (describing grand jury subpoenas and indictments as “essentially unilateral decisions by prosecutors”).

11. If the Fifth Amendment grand jury right has any purpose at all, it is to place a check on the prosecutorial power of the federal government. See Hale v. Henkel, 201 U.S. 43, 61 (1906) (“[Grand juries] are not appointed for the prosecutor or for the court; they are appointed for the government and for the people . . . .”) overruled in part sub nom. Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964). Unfortunately, modern grand jury practice tends to assume the existence of some affinity between the attorneys for the government and the grand jurors they present their cases to.

12. This writer has sought in vain to trace the term to its origins. Nothing about “runaway” grand juries appears in legal dictionaries, Supreme Court opinions, or any major legal encyclopedia. The first widely disseminated mention of the term “runaway grand jury” appears to be Professor Orfield’s references to the term by the Advisory Committee’s Reporter in 1946. See infra note 14 and accompanying text. The case law is similarly sparse of references to “runaway” grand juries until recently. But see United States v. Worcester, 190 F. Supp. 548, 559 (D. Mass. 1960) (stating rather imaginatively that “[a] grand jury can roam almost at will. It often does. What else is meant by the phrase ‘a runaway grand jury’?”); Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990) (stating that “runaway” grand juries existed in the 1930s in New York); In re Martin-Tragona, 604 F. Supp. 453, 459-60 (D. Conn. 1985) (admonishing that “‘[r]unaway grand juries’. . . may have a certain romantic allure, but federal law leaves little or no room for that species of romance”); United States v. Procter & Gamble Co., 174 F. Supp. 233, 236 (D.N.J. 1959) (mentioning that a “runaway” grand jury is an unusual situation).

See also the discussion of “runaway” grand juries in the book, MARVIN E. FRANKEL & GARY NAFTALIS, THE GRAND JURY: AN INSTITUTION ON TRIAL 107-116 (1977) and the discussion in the widely-consulted hornbook WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 631 (2d ed. 1992) (stating that “it takes a most unusual case for a grand jury to act as a “runaway” and indict notwithstanding the prosecutor’s opposition).

13. See infra notes 71-84 and accompanying text.

14. See Lester B. Orfield, The Federal Grand Jury, 22 F.R.D. 343, 346 (1959).

15. See, e.g., United States v. Williams, 504 U.S. 36, 49 (1992) (citation omitted) (emphasis omitted); Note, Powers of Federal Grand Juries, 4 STAN. L. REV. 68, 69 (1951) (“The grand jury was appointed to protect community welfare, not merely to aid prosecutor or court.”).

16. See Williams, 504 U.S. at 48 (citing United States v. R. Enters, Inc., 498 U.S. 292, 297 (1991).

17. Prior to the 20th Century, the grand jury itself was often the initiator of investigations and conducted their activities in both shield and sword functions essentially the same way. See BRENNER & LOCKHART, supra note 1, at 26.

18. See generally DAVID BURNHAM, ABOVE THE LAW: SECRET DEALS, POLITICAL FIXES AND OTHER MISADVENTURES OF THE U.S. DEPARTMENT OF JUSTICE passim (1996) (stating that the U.S. Justice Department now operates with few structural limitations and has become increasingly unaccountable).

19. Properly speaking, the Fifth Amendment right to indictment applies only to the federal government. The right to indictment by grand jury is one of the only provisions of the Bill of Rights that has not been incorporated to the States by the Supreme Court. The Supreme Court first rejected incorporation of the right in Hurtado v. California, 110 U.S. 516, 538 (1884) and has reaffirmed its holding in subsequent decisions.

A few examples of practices and cases involving state grand juries are included in this paper for illustration. In general, however, this paper will concentrate on federal grand juries. Grand jury practice varies so widely among the states that it is difficult to provide a comprehensive treatment of that topic in this comment. See BRENNER & LOCKHART, supra note 1, at 2.

20. U.S. CONST, amend. V.

21. WHITEBREAD & SLOBOGIN, supra note 7, at 546. Historically, the grand jury was regarded as a primary security for the innocent against malicious and oppressive persecution. See Wood v. Georgia, 370 U.S. 375, 389-391 (1962).

22. See 1 ORFIELD’S CRIMINAL PROCEDURE UNDER THE FEDERAL RULES 392 (Mark S. Rhodes ed., 2d ed. 1985) [hereinafter ORFIELD’S];

Under the Constitution the grand jury may either present or indict. Presentment is the process whereby a grand jury initiates an independent investigation and asks that a charge be drawn to cover the facts if they constitute a crime. Since the grand jury may present, it may investigate independently of direction by the court or the United States Attorney. Proceeding by presentment is now obsolete in the federal courts. Id.

Orfield’s noted that “the common law powers of a grand jury include the power to make presentments, sometimes called reports, calling attention to actions of public officials, whether or not they amounted to a crime.” Id. at 392 n.16 (citing In re Grand Jury 315 F. Supp. 662 (D. Md. 1970).

23. See, e.g., Hale v. Henkel, 201 U.S. 43, 64 (1906) (recognizing that common law authority stood for the proposition that “none but witnesses have any business before the grand jury, and that the solicitor may not be present, even to examine them”). Although widespread practice in the federal system had been to allow a government attorney to present evidence to the grand jury, this was by no means a steadfast rule.

24. See WHITEBREAD & SLOBOGIN, supra note 7, at 546 (stating that the grand jury had the ability to both investigate the government and to deny a government indictment).

25. See ORFIELD’S, supra note 22, at 389; In re Special February 1975 Grand Jury, 565 F.2d 407 (7th Cir. 1977); United States v. Smyth, 104 F. Supp 283, 288 (N.D. Cal. 952). When functioning properly, the grand jury is supposed to be an ever-present danger to tyranny in government. See ARTHUR TRAIN, THE PRISONER AT THE BAR 128 (1926) (stating that the grand jury filled a need as a barrier between the powerful and the weak and as a tribunal before which the weak could accuse the powerful of their wrongs).

26. See Fred A. Bernstein, Note, Behind the Gray Door: Williams, Secrecy, and the Federal Grand Jury, 69 N.Y.U. L. REV. 563, 563-623 (1994).

27. Bernstein, 69 N.Y.U. L. REV. at 622.

28. Id. at 623.

29. For statistical evidence of grand jury capture, see infra notes 39-47 and accompanying text.

30. See Note, 69 N.Y.U. L. REV. at 577.

31. Id. at 577-78.

32. Id. at 578-89 (stating that the procedural decline of the grand jury has occurred as the federal system was straining to keep up with an increasing number of criminal prosecutions).

33. Id. at 578.

34. Id. at 578-79.

35. William J. Campbell, Eliminate the Grand Jury, 64 J. CRIM. L. & CRIMINOLOGY 174 (1973).

36. United States v. Dioniso, 410 U.S. 19, 23 (1973) (Douglas, J., dissenting).

37. See Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 1-78 (1996).

38. See Note, 69 N.Y.U. L. REV. at 578.

39. BURNHAM, supra note 18, at 359.

40. Id.

41. Id.

42. Taylor, supra note 10, at 23.

43. BURNHAM, supra note 18, at 360. Although statistics like this are impressive, it should be noted that statistics alone cannot adequately measure the effectiveness of grand juries in screening prosecutions effectively. One critic of statistical approaches has pointed out a number of problems with using numbers of true bills to describe grand jury ineffectiveness:

[E]ven a brief reflection shows how unhelpful these figures are. That grand juries nearly always return true bills may indeed demonstrate that jurors simply approve whatever charges the government submits, but it could also show that grand juries are a great success. A review of the prosecutor’s decisionmaking leading up to the request for an indictment shows why.

Federal prosecutors know that virtually all of their charging decisions must be approved by the grand jury. Thus, in deciding which charges to bring, the prosecutor must determine not only which accusations can be proven at trial, but also which accusations will result in an indictment. If we assume that prosecutors as a group will normally decline to present charges to a grand jury that they think will be rejected, we would expect that prosecutors would submit only those cases that are sufficiently strong to survive a grand jury’s review. Thus, regardless of whether the grand jury is serving as an effective screen, we would expect a high percentage of the cases presented to lead to indictments.

Indeed, contrary to the suggestion of critics, there would be cause for concern if grand juries refused to indict in a high percentage of cases.

44. Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 CORNELL L. REV. 275-76 (1995). BURNHAM, supra note 18, 360.


46. Id. at 22.

47. Leipold, 80 CORNELL L. REV. at 269.

48. Statistical figures showing a higher prevalence of grand jury reluctance to follow the government in ages past are almost nonexistent. However, a table of felony arrests in New York County between 1900 and 1907 found on page 111 of the 1926 book The Prisoner at the Bar by Arthur Train provides some rare illumination. In those seven years, some 5,214 out of 57,241 people were arrested by the police on felony charges whom New York state grand jurors decided not to indict. Interestingly, the rate of indictment rose significantly in those seven years. See TRAIN, supra note 25, at III.

49. The National Association of Criminal Defense Lawyers, for example, has promoted a grand jury “bill or rights” to be enacted by Congress, which would include these and other reforms. See Gerald B. Lefcourt, High Time For A Bill of Rights For the Grand Jury, 22 APR CHAMPION 5 (Apr., 1998). Lee Hamel, a former federal prosecutor in Houston, has gone even further by suggesting that Congress should specifically make it a crime for the prosecution to mislead a grand jury by such conduct as withholding exculpatory evidence. Lee Hamel, Prosecutorial Responsibility, TEXAS LAWYER, June 15, 1992, at 13.

While the U.S. Attorneys’ Manual specifically provides for an internal policy to present exculpatory evidence to the grand jury, See DEPARTMENT OF JUSTICE, U.S. ATTORNEYS’ MANUAL, 9-11.233, no binding statutory or case law now imposes a legal obligation. The enactment of such legislation enforceable upon government attorneys would not seem to infringe on the rights and powers of the grand jury. But see BRENNER & LOCKHART, supra note 1, at 18 (stating that such a limitation on the prosecutor may implicate the separation of powers if it is considered to interfere with the exercise of the executive function). See id. (“[I]t remains to be seen whether Congress can be persuaded to review allegations of prosecutorial misconduct, and, if so, whether such intervention would violate the separation of powers.”).

50. In some state jurisdictions, including California and South Carolina, grand juries can hire experts such as accountants to assist them in conducting special investigations, especially where the activities of public officials are being investigated. See U.S. DEPT. OF JUSTICE, NATIONAL INSTITUTE OF JUSTICE, MONOGRAPHS: GRAND JURY REFORM: A REVIEW OF KEY ISSUES 23 (1983).

51. See ABA GRAND JURY POLICY AND MODEL ACT 5, 11 (2d ed. 1982) (enunciating in Principle No. 22 the duty of court to give written charge to jurors completely explaining their duties and limitations).

52. BRENNER & LOCKHART, supra note 1, at 4.

53. Id.

54. Id.

55. Id.

56. Id. at 289-90 (citations omitted).

57. See FRANKEL & NAFTALIS, supra note 12, at 10.

58. See Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 9 (1996).

59. See id; Note, Powers of Federal Grand Juries, 4 STAN. L. REV. 77 (1951). [T]he grand jury developed at a time of small rural communities, when the government had not yet assumed responsibility for enforcing the criminal law. Private persons could initiate prosecutions. The grand jury ensured that privately instituted proceedings would not go forward until a representative body of men of the neighborhood had checked the facts and found a reasonable basis for prosecution.

60. Note, 4 STAN. L. REV. at 77.

In 1906 the United States Supreme Court dealt with the question of whether grand juries could be restricted from straying into investigations of issues not formally presented to them by prosecutors. See Hale v. Henkel, 201 U.S. 43 (1916). The Court held that it was “entirely clear . . . under the practice in this country,” that grand jurors may proceed upon either their own knowledge or upon the examination of witnesses brought before them, “to inquire for themselves whether a crime cognizable in the court has been committed.” Hale, 201 U.S. at 65. Thus, in some respects, the “runaway” grand jury, though not given such a name at the time, has been upheld by the nation’s highest court. It is therefore debatable whether the modern Federal Rules of Criminal Procedure, which have limited federal grand jury action since 1946, are constitutional. See infra notes 87-128 and accompanying text (discussing the constitutionality of Rules 6); See also FRANKEL & NAFTALIS, supra note 12, at 111 (mentioning that Rule 6’s language “sounds like an inescapable and unambiguous barrier to the grand jury’s proceeding without an attorney. . . . [b]ut people learned in the law have seen means of escaping and possibly overriding barriers that appear insurmountable at first. While the barriers here still stand, the debate may not be over.”).

61. See, Hale, 201 U.S. at 63 (citations omitted).

62. Id.

63. Id.

64. Id.

65. See Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 FLA. ST. U. L. REV. 10 (1996).

66. Kadish, 24 FLA. ST. U. L. REV. at 10.

67. Id. at 10-11.

68. See FRANKEL & NAFTALIS, supra note 12, at 11.

69. Id.

70. Id.

71. Id. at 12.

72. Id.

73. Id.

74. Richard Calkins, The Fading Myth of Grand Jury Secrecy, 1 J. MARSHALL J. PRAC. & PROC. 18, 19 (1967).

75. See FRANKEL & NAFTALIS, supra note 12, at 15.

76. Id.

77. Id.

78. See Fred A. Bernstein, Note, Behind the Gray Door: Williams, Secrecy, and the Federal Grand Jury, 69 N.Y.U. L. REV. 563, 596 (1994).

79. See FRANKEL & NAFTALIS, supra note 12, at 15.

80. In the federal system, the powers of the grand jury have never been as broad as those known by colonial pre-Revolutionary grand juries for a variety of reasons. First, the federal government itself was historically one of very limited criminal jurisdiction, so the call for federal grand juries was not as common or strong as at the state level.

Second, the fact that federal cases tend to involve crimes that are more complex than those of state prosecutions made independence of individual grand jurors over the area of expertise less likely. See BRENNER & LOCKHART, supra note 1, at 18. Also, federal grand juries were traditionally distanced from the sort of “public affairs” investigations into community life that drew the attention of state grand juries. Id. at 53.

81. While the Grand Jury Clause of the Fifth Amendment invokes the “Grand Jury,” nothing in the text provides any indication as to just what a grand jury is or what type of grand jury is required. This meaning must be garnered from the common law. See United States v. Warren, 26 F. Supp. 333, 334 (E.D.N.Y. 1939).

But which common law? Is the grand jury as required by the Fifth Amendment the common law grand jury known in the colonies in 1776? In England in 1776? In the United States when the Bill of Rights was ratified in 1789? When Englishmen landed in America in 1606? After all, the grand jury is a 900 year-old institution, whose operation has changed greatly over the centuries. See generally Helene E. Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 AM. CRIM. L. REV. 701 (1972). For that matter, grand jury operation differed greatly by region, both in England and her colonies, throughout the Seventeenth and Eighteenth Centuries, See Goodman v. United States, 108 F.2d 516, 518 (9th Cir. 1939) (stating that grand jury practice has developed in widely divergent ways partly due to local custom). Thus, any attempt to pin down “grand jury law” to a single era and venue would simultaneously defy the common law traditions of other eras and venues. Another problem is that the “common law” meant very little if anything in federal jurisdiction because common law crimes were not recognized in federal courts. See, e.g., United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 33 (1812).

The question of what common law to apply where the Constitution called for a common law interpretation was problematic to American jurists concerning a wide variety of topics for an entire generation after separation from the mother country. See generally LAWRENCE M. FRIEDMAN, A HISTORY OP AMERICAN LAW 110-15 (2d ed. 1985). While some early American courts routinely consulted English decisions, others went so far in the opposite direction as to prohibit the reading of English authority in their courtrooms. Id. at 111-12. Due to the paucity of published American case reports, more English than American cases were cited in American reports for a generation after Independence. Id. at 112. Nonetheless, by the middle of the 19th century there developed a truly distinctive common law system in the United States. Id. at 113 (stating that the first generation of American jurists created a “separate language of law within the family founded in England”).

For these reasons, federal grand jury practitioners must look in many respects to the practice in the states, because state grand juries provide a more unbroken chain of inheritance to the common law than do those administering federal law. Federal courts have differed as to the scope of the federal grand jury’s powers. It has been said that Congress has not defined those powers, or exact limitations on them. Application of Texas Co., 27 F. Supp. 847, 850-51 (E.D. Ill. 1939); See also ORFIELD’S, supra note 22, at 286 (noting that “[i]n 1809 Chief Justice Marshall, sitting as a circuit justice, stated that there was no act of Congress conferring on federal courts the power to summon grand juries, or describing their powers”).

The Chief Judge of the Second Circuit observed that the constitutional grand jury was one that was intended to operate substantially like its English progenitor. United States v. deary, 265 F.2d 459, 460 (2d Cir. 1959) (stating that the grand jury “has remained as free of court-made limitations and restrictions as it was in England at the time the Fifth Amendment was adopted”). Yet the practice in grand jury proceedings in the United States deviates in many ways from that known in England. See generally Hale v. Henkel, 201 U.S. 43 (1906). This is especially true in the finding of bills of indictment. Thus, by English colonial standards, the modern federal grand jury would seem to be unconstitutional. But see ORFIELD’S, supra note 22, at 390 (suggesting that “the grand jury has remained as free of court-made limitations and restrictions as it was in England at the time the Fifth Amendment was adopted”).

82. See In re Grand Jury, 315 F. Supp. 662, 673 (D. Md. 1970) (“Federal statutes are silent on the relationship which is to exist between a Federal Grand Jury, the District Court which summons it, and the United States Attorney’s office in the District. From 1789 to the present, Congress has made no definitive statement concerning Grand Jury powers.”).

83. While the Fifth Amendment right to indictment by grand jury extends only to federal criminal prosecutions, numerous states provide for similar rights in their state constitutions. Notably, however . . . the rules governing state grand juries vary tremendously. See BRENNER & LOCKHART, supra note 1, at 2 (noting that “[G]rand jury practice varies so widely among the states that it is neither possible nor practical to provide a comprehensive treatment of that topic in this volume.”). See also Susan W. Brenner, The Voice of the Commonity: A Comparison of Federal and State Grand Juries, 3 VA. J. SOC. POL’Y L. 67 (1995) (discussing state grand jury practices).

84. Critics of unbridled grand juries may cite a wealth of historical precedent to support their position. For example, overzealous and overreaching grand juries figured prominently in the era of the Sedition Acts. The Federalists, marshals and judges who totally controlled the judicial branch of government — blatantly packed panels with sympathizers and allowed offensive, political charges to be delivered to these grand juries. See Schwartz, 10 AM. CRIM. L. REV. at 723. The famous impeachment proceedings against United States Supreme Court Justice Samuel Chase were in part initiated because of Chase’s habit of turning grand jury charges into Federalist harangues. Id. at 727-28. Still, the failure of the grand jury to act as a check on government persecution during this period can be attributed more to misuse and abuse of the grand jury process than to the failure of the institution itself. Grand juries were impaneled improperly, for an improper purpose, and were charged improperly. Id. at 732 (stating that “such blatantly biased panels could hardly have afforded the safeguard which grand jurors were sworn to provide” and that “some of the nation’s founders indulged in chicanery designed to circumvent the protective barrier in order to crush their opponents”). Even after the end of the Sedition Act hysteria, the anti-Federalists aligned with President Thomas Jefferson abused the grand jury process in pursuit of their hated Federalist opponents. Id. (recounting that soon after his election as President, Thomas Jefferson “sullied his own reputation as the defender of the people’s liberties” by relying on the misuse of grand juries to conduct a “personal vendetta against his enemy, Aaron Burr”). Initially, Aaron Burr was completely exonerated by two separate grand juries in two separate states before finally being indicted by a Republican-packed grand jury in Jefferson’s home state of Virginia on charges that he “lev[ied] war upon the United States.” Id. at 738. A trial jury ultimately acquitted Burr, under the judicial supervision of none other than John Marshall. Id.

85. The Populist era of the early 20th Century saw some attempts to revitalize the grand jury. During that period, ex-jurors acted to protect the grand jury’s powers by forming associations. The Grand Juror’s Association of New York was founded in 1912, and began publishing The Panel, a pro-grand jury periodical, in 1924. Chicagoans founded the Grand Juror’s Federation of America in 1931, and associations apparently sprang up in other localities. See Renee B. Lettow, Reviving Federal Grand Jury Presentments, 103 YALE L.J. 1333, 1342 n.50 (1994).

86. Codification thrived as a trend in American law during the latter part of the 19th and the early part of the 20th Centuries. See FRIEDMAN, supra note 81, at 391-411. Criminal procedure, however, posed difficulties to would-be codifiers that other areas of American law did not, due primarily to constitutional considerations. Id. at 401 (noting the 5th Amendment grand jury requirement was a nuisance to those who sought to codify federal criminal procedure).


Each Advisory Committee shall carry on ‘a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use’ in its particular field, taking into consideration suggestions and recommendations received from any source, new statutes and court decisions affecting the rules, and legal commentary. Id.

88. See Lettow, 103 YALE L.J. at 1334 (suggesting that the power of presentment is a constitutional right of grand juries).

89. U.S. CONST. amend. V states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, or in the Militia, when in actual service in time of War or public danger. U.S. CONST. amend. V.

90. See ADVISORY COMMITTEE NOTE 4, FED. R. CRIM. PRO. 7(a) (“Presentment is not included as an additional type of formal accusation, since presentments as a method of instituting prosecutions are obsolete, at least as concerns the Federal courts.”). A few voices in the federal judiciary, however, have ignored this language and allowed for “presentments” or unapproved statements of federal grand juries to stand public regardless of the will of federal prosecutors. For a discussion of this issue, see Phillip E. Hassman, Annotation, Authority of Federal Grand Jury To Issue Indictment Or Report Charging Unindicted Person With Crime Or Misconduct, 28 A.L.R. FED. 851 (1976).

91. See ORFIELD’S, supra note 22, at 392 n.16 (noting that “[t]he common law powers of a grand jury include the power to make presentments . . . calling attention to actions of public officials, whether or not they amounted to a crime).

92. See Hassman, 28 A.L.R. FED. at 854-57.

93. However, on occasion, grand juries have used the term “presentment” to indicate what is commonly a grand jury report, or a statement to the court regarding some matter but which neither recommends indictment nor initiates any prosecution. Id. at 853 n.2.

94. Lester B. Orfield, The Federal Grand Jury, 22 F.R.D. 343, 346 (1958).

95. Orfield, 22 F.R.D. at 346.

96. See Renee B. Lettow, Reviving Federal Grand Jury Presentments, 103 YALE L.J. 1333, 1339 (1994).

97. In re Grand Jury, 315 F. Supp. 662, 673 (D. Md. 1970) (“The Advisory Committee note does not indicate that the quoted provision was intended to change existing practice, although of course the Rule has the effect of law.”).

98. See ORFIELD, supra note 12 at 346 (discussing the question of where the term “runaway grand jury” originated).

99. It must be noted that the capture of the grand jury’s presentment power has never faced direct Supreme Court review as to its constitutionality. The words of United States Supreme Court Justice Hugo Black, when dissenting from the decision to enact the Federal Rules of Criminal Procedure, are particularly relevant:

Whether by this transmittal the individual members of the Court who voted to transmit the rules intended to express approval of the varied policy decisions the rules embody I am not sure. I am reasonably certain, however, that the Court’s transmittal does not carry with it a decision that the amended rules are all constitutional.

FED. R. CRIM. P., ORDERS OF THE SUPREME COURT OF THE UNITED STATES ADOPTING AND AMENDING RULES, ORDER OF FEB. 28, 1966 (Black, J., dissenting). For a thoughtful law review note on the constitutionality of Rule 6, see Lettow, 103 YALE L.J. at 1333.

100. Phillip E. Hassman, Annotation, Authority of Federal Grand Jury To Issue Indictment Or Report Charging Unindicted Person With Crime Or Misconduct, 28 A.L.R. FED. 851, 857 (1976).

101. Ironically, a common argument during times when presentments were common was that presentments were too trivial. See, e.g., TRAIN, supra note 25, at 126 (stating that “[a]n examination of the long list of presentments on file in the office of the clerk of Court of General Sessions [of New York]” shows only the consumption of many working hours, with only the most fleeting of effect on the public).

[I]n general it may be said that the only effect of a grand jury’s meddling with these things is to detract from the dignity of its office and the importance of the work which it and it alone can lawfully do.

The lay reader will naturally be led to inquire why this archaic institution which it costs so much time and money to perpetuate, which causes so much unnecessary inconvenience to witnesses and offers so many technical opportunities for delay, which frequently is ineffective and officious, and for the most part concerns itself with the most trivial matters only, should not be abolished ….

102. Id. at 126-27.

A carefully considered overview of these issues can be found in the 1976 A.L.R. Annotation by Phillip E. Hassman. Hassman, 28 A.L.R. FED. 851.

103. Id. at 856 (noting that one argument for allowing accusatory presentments is that the public employee and official is “the most frequent target” and “must be prepared to accept investigation and exposure”).

104. Offended persons may, for example, challenge the statements of a presentment by filing a motion to expunge the grand jury report, by a libel action against the grand jurors or the United States Attorney, or possibly through the federal civil rights statutes. Id. at 857-58.

105. See, e.g., In re Grand Jury Proceedings, 813 F. Supp. 1451 (1992).

106. The effect of a public presentment exonerating a suspect on any future proceedings by the government against the same target is difficult to gauge. The effect of a public presentment expressing a finding that the government has improperly pursued a case against a person before the grand jury might well serve the interests of justice.

The ham sandwich reference is a tribute to Judge Sol Wachtler, a former high court judge of New York, who coined the legendary criticism of grand juries: “Any prosecutor who wanted to could indict a ham sandwich.” Tony Mauro & Kevin Johnson, Grand Jury ‘Very Lonely’ For Witnesses, USA TODAY, March 3, 1998, at 2A:3. This flippant semi-truism has been popularized by observers of grand jury law and is often repeated — only half jokingly — by commentators.

107. After fatally wounding Alexander Hamilton in a pistol duel in 1804, Aaron Burr traveled West to either restore his lost political clout or sabotage the new nation in spite (historians continue to differ over the question). See Helene E. Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 AM. CRIM. L. REV. 733-34 (1972) (briefly summarizing Burr’s efforts either to sever those states and territories west of the Allegheny Mountains from the Union or to put more land under American domination through an eventual attack on Mexico).

108. Indeed a political career that culminated in the murder of one of the United States’ principle Founding Fathers, Alexander Hamilton, while Burr was vice president. Schwartz, 10 AM. CRIM. L. REV. at 733.

109. Schwartz, 10 AM. CRIM. L. REV. at 734. (stating that “the destruction of any possibility of Burr’s returning to a place of power on the political scene was one issue on which the two parties agreed”).

110. Id.

111. Id. at 734-35 (stating that the people of Kentucky did not resent Burr because of his murder of Hamilton and in fact supported Burr in his contentions with the “hated Federalist [, United States Attorney] Daviess”).

112. Id. at 735 (quoting from J. COOMBS, THE TRIAL OF AARON BURR FOR TREASON, xix (1864)).

113. Jefferson is said to have been so determined to see Burr “hanged as a traitor [that] he was ready to abandon all constitutional” constraints in the process. See DAVID WALLECHINSKY & IRVING WALLACE, THE PEOPLE’S ALMANAC #2 171 ((1978):

[Jefferson] not only announced his opinion that Burr was guilty before the jury could consider the case, but he attempted to bribe witnesses with promises of presidential pardons if only they would testify against Burr. Concerning this case, Jefferson was the author of this incredible statement: “There are extreme cases when the laws become inadequate even to their own preservation, and where the universal resource is a dictator, or martial law.” Id.

114. Schwartz, 10 AM. CRIM. L. REV. at 735.

115. Id.

116. Id.

117. Id. (emphasis added).

118. Id.

119. Id.

120. Id. at 735-36. The presentment read, in pertinent part:

The grand jury of the Mississippi Territory, on a due investigation of the evidence brought before them, are of opinion that Aaron Burr has not been guilty of any crime or misdemeanor against the laws of the United States or of this Territory, or given any just cause of alarm or inquietude to the good people of same. The grand jurors present, as a grievance, the late military expedition, unnecessarily, as they conceive, fitted out against the person and property of the said Aaron Burr, when no resistance had been made to the civil authorities.

The grand jurors also present, as a grievance destructive of personal liberty, the late military arrests, made without warrant, and, as they conceive, without other lawful authority; and they do sincerely regret that so much cause has been given to the enemies of our glorious Constitution to rejoice at such measures being adopted, in our neighboring Territory, as, if sanctioned by the Executive of our country, must sap the vitals of our political existence and crumble this glorious fabric in the dust. Id.

121. Even in Aaron Burr’s case, the power and duplicity of the Executive finally won out over the independence of early American grand juries. After twice failing to garner a grand jury indictment against Aaron Burr, the Jefferson Administration moved venue to Virginia, “stronghold of Jefferson, Madison and Monroe.” Schwartz, 10 AM. CRIM. L. REV. at 736. Rutgers Law Professor Helene Schwartz wrote: “Perhaps at no other period in his public career did Jefferson so disgrace himself as he did in his continued but futile efforts to permanently dispose of Aaron Burr. ‘All of his professions as apostle of “individual rights” were sunk in the abyss of Burr.'” Id. (quoting W. McCALEB, NEW LIGHT ON AARON BURR 99 (1963)).

The Virginia grand jury, packed with Republicans, returned true bills of indictment against Burr and his alleged co-conspirators charging that they had levied war on the United States. Id. The matter then was sent to a trial jury, which acquitted Burr.


123. McMANUS, supra note 122, at 63.

124. Id.

125. See BRENNER & LOCKHART, supra note 1, at 188 (noting that one commentator described the rule as a “wide change” in prior law, which had made access to grand jury materials virtually impossible for defense attorneys).