'

The basics of the rule of law

The rule of law is simple. The rule of law has to do with property, tresspasses to property, and permission.

What is a tresspass?

A tresspass is interfering with somebody else's right, or property (a right is property), without permission.

A tresspass on the body

A man is not allowed to tresspass on another man's body and punch that man, except with permission of a person authorized to give it. Think about boxers.

Permission or Tresspass

A man who is in possession of his employer's property, may not use that property except in accordance with permission. So if the employer wanted the man to negotiate a contract, the man would have permission to do so and it would be lawful. However, if the man were to receive a kick-back, it would be a tresspass on his employer's property, and therefore a crime.

Ownership of property and violence

If a man walked into a bank and wanted to withdrawal his money, itis his property and therefore his right. However if the man with money in his account pointed a gun at the teller and said pay me or else I will shoot, it would be the crime of robbery. The man did not have the right to use violence to obtain his property that was lawfully in the custody of the bank because he previously gave them permission.

Tresspass on water rights

If a man were to take take water upstream that reduced water for another man downstream who has the righ to that water? If the man downstream has the right to the water the man upstream is trespassing. If the man upstream has the right to the water then there is no wrong. If the man downstream has the right to the water, could he not sell a permit or easement to the man upstream who would then have permission?

Tresspassing if obstructing Government Roads

When you drive on the roads do you not have to get permission from the Government. Is the permission for you to obstruct the roads, or to pass through them quickly. Would a person not be trespassing on the Government's rights to keep the roads flowing if the person parked their car in the middle of a busy intersection?

Cookies and Tresspassing

On web browsers developers can put cookies that contain data in the browser that stay in memory even when the computer is turned off. Is this not a tresspass on the users computer? This is why nearly all websites inform the user that they use cookies and get implied permission. The user can then easily delete these cookies within the browser. However, there may be way to take advantage of security holes in the browser and put data directly on the users harddrive creating essentially a permanent cookie. Would this not be a tresspass on the users computer and would this tresspass not be without permission?

Tresspassing on the right to punish

If a man were to accuse another person of crime and obtain property would it not be a tresspass on the law's right to punish? Would the law not say a person has the right to be presumed innocent, to have a fair and impartial trial, etc.... At common-law this was known as the crime of blackmail.

Permission to use other's rights for that other person

If a public official used official acts to obtain property solely for the Government's then the public official would have had permission from a person with authority (the Government) and therefore committed no wrong. Think about a person who wants to obtain a license to drive on the King's roads. Think about taxation.

Tresspassing with official acts

What if instead of using official acts to obtain property for public benefit, the public official used official acts to obtain property for non-government benefit? Think about a police officer that threatens a person that he is going to take or withhold an official act and arrest that person if they do not pay him. It would be a tresspass on the law's right to punish once again. Or in ancient times, a trespass on the King's coercion.

Definition of a threat

So what is a threat? It is "or else." It is accusations. It is violence. It is labor. It is official acts. It is menances. It is property. Think about walking into a convenience store and taking a soda. If you do not pay for it, but carry it away, the store owner has the right (property) to assault and batter you in the form of an arrest. If you resist, you would be trespassing on the store owner's property right to make a lawful citizen's arrest.

Justified Threats

A threat is justified if a person has ownership or permission from the rightful owner to make that threat. For example, if a bank employee says "pay the application fee or else the bank will not process your loan," that is a justified threat. It is justified because the bank is negotiating with its property and the client or customer is negotiating with his property. If the bank employee said pay my friend $500 or else I will not process your loan application, that would be an unjustified threat because the bank employee and her friend would be tresspassing on the Bank's property or coercion.

Accusations as coercion

When a criminal defendant is being accused of crime he or she is being coerced, as an accusation clearly alters behaviour which means it is coercive. Presummably violence has also been inflicted upon the criminal defendant in the form an arrest and certainly violence is being threatened against the criminal defendant in the form of imprisonment.

Blackmail laws

The blackmail laws forbid a person from making accusations of crime while obtaining property. It is the same as saying that a private person cannot punish another person for crime. Any punishment must come in accordance with the rule of law. Any other punishment while making an accusation of crime would be under the color of law.

Public Official Punishments

What about a public official inflicting a punishment? Well imagine a police officer saying to a person pay my wife $1,000 or else I will arrest you. That would be a punishment under the color of law, because clearly a police officer on the street is not law.

Punishment by Judge

What about a Judge. Can a judge alone convict a person of crime? Is the Judge not trespassing by using official acts to obtain rights (property) not solely for the benefit of Government, as the accuser benefits?

Punishmeny by Jury

What about a Jury? Can a jury convinct a person of crime. Is the jury making an accusation or a determination of fact?

A jury is certainly composed of people and people make accusations. But a jury is different. It is not just a jury, but also a Judge, who provides a charge to a jury and guides the trial. There are prosecutors and the defense. The accusation is levied by the public prosecutor and the defense defends. The jury then makes a determination of guilt or innocene after presentation of materials from both sides. That is all, no accusations. Guilty or not guilty. A convinction obtains property rights. But no official acts are used by the jury.

So what does the common-law say about public officials using offical acts to obtain property? The answer is in the extortion laws.
What do the Courts say?

Extortion as Defined by Statute

18 U.S.C. §1951(a)(2) defines extortion as the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

Canadian criminal code section 346(1) says "[e]very one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done."

What do the Courts say?

Elements of Extortion

There are essentially three elements to the offense of extortion. (1) Coercion was employed, (2) without reasonable justification or excuse, and (3) to obtain property in the United States or anything in Canada.

Coercion

The coercion element of the extortion statutes includes threats, menaces, violence, fear, accusations, or official right.

Threat

A threat is an exchange. You do this, or else I will do that.

Examples of bad threats:

  1. Pay me, or else I will shoot you.
  2. Pay me, or else I will call the police and report you for crime.
  3. Pay me, or else I will arrest you

Examples of allowable threats:

  1. Pay me, or else I will stop working for you, or put you on a "stop list."1
  2. Pay me, or else you cannot have my eggs.
A threat is only wrongful if it is unjustified.

Menaces

A menace is something that threatens to cause evil or harm.

Examples:

  • Pay me, or else I will block entrance to your business.

Violence

Violence is either an act or a threat of an unwanted contact.

Examples:

  1. Inflicting a physical injury and carrying away property.
  2. A threat of violence. Pay me, or else I will inflict a physical injury.

Fear

Fear is a state of mind that something is dangerous and likely to cause pain or injury.

Examples:

  1. Afraid of being punished for crime.
  2. Afraid of being physically injured.

Accusations

An accusation is coercive. An accusation puts a person in fear of a punishment, which is likely to cause pain or injury. An accusation is like blackmail.

Examples:

  1. Pay me, or else I will call the police and report you for crime.
  2. Pay me, or else I will prosecute you for crime.

Official Right

At common-law extortion was a "separate public official offense punishing the conduct of public officials who sought personal financial gain under colour of their office. It has since been statutorily expanded in some jurisdictions, such as Canada, to include more familiar forms of blackmail." R v. Davis, [1999] 3 SCR 759.

At common law, extortion was an offense committed by a public official who took 'by colour of his office' money that was not due to him for the performance of his official duties. A demand, or request, by the public official was not an element of the offense. Extortion by the public official was the rough equivalent of what we would now describe as 'taking a bribe.' Evans v. United States, 504 U.S. 255 (1992).

The Supreme Court of the United States said in Evans v. United States, 504 U.S. 255:

As we explained above, our construction of the statute is informed by the common-law tradition from which the term of art was drawn and understood. We hold today that the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.

Without Reasonable Justification or Excuse

In Canada there is a reasonable justification or excuse clause contained within the extortion statutes. In the United States, the threat needs to be one of force, or under color of official right. If a person is justified in their action, then they have done nothing wrongful. A person has reasonable justification or excuse if he is not demanding more than is due2 and he is using his or her own power or property to negotiate and not trespassing on other people's power.

Examples of Reasonable Justification or Excuse:

  1. Pay me, or else I will stop working for you and/or put you on a "stop list".
  2. Pay the Government, or else I will take or withhold an official act.
  3. Pay the bank, or else I will take or withhold a banking act and foreclose on your home.
  4. Pay me, or else I will sue you.

Under Color of Official Right

Color is crossing the line between public and private beneficiaries and therefore the public official is not entitled to the payment. In Wilkie v. Robbins, 551 U.S. 537 (2007) the Supreme Court of the United States said:

The importance of the line between public and private beneficiaries for common law and Hobbs Act extortion is confirmed by our own case law, which is completely barren of an example of extortion under color of official right undertaken for the sole benefit of the Government.

Conclusion on Elements of Extortion

Extortion mainly depends on what you are negotiating with. A person can negotiate with their own property and power. But a person cannot negotiate with violence or with the Government's property and power, unless the benefit is solely for the Government. The crime at common-law was a person cannot threaten to use or use official acts to obtain property not solely for the benefit of government. Essentially a trespass on the King's coercion.

The Right to a Jury

The right to a jury trial comes from the right not to be extorted. In Wilkie v. Robbins, 551 U.S. 537 (2007) the Supreme Court of the United States said:
Whaley was about a charge of extortion against a justice of the peace who wrongfully ordered a litigant to pay compensation to the other party as well as a small administrative fee to the court. Because the case involved illegally obtaining property for the benefit of a private third party, it does not stand for the proposition that an act for the benefit of the Government alone can be extortion.

Courts of Law vs. Courts of Equity

I argue the extortion laws is why at common-law there were courts of law and courts equity. A court of law obtained property and since a public official could not obtain property for third party benefit, courts of law required a jury. Whereas in a court of equity a Judge alone could issue rulings because property rights were enforced, but no property was obtained. I also believe the extortion laws are why at common-law an action for replevin was in a court of law, whereas an action for specific performance was in a court of equity. A court of equity could enforce property rights like the police. Think about how the police would react to a bank robber.

Conclusion

A person can never be legally deprived of any of their rights by public officials not solely for thebenefit of government. A jury is required to transfer rights from one private party to another.
1. [R. v. Natarelli, [1967] SCR 539]
2. [R. v. Natarelli, [1967] SCR 539]
3. [Evans v. United State, [1967] SCR 539]

Written by Joel Allan Sumner, x-esq, x-barrister & solicitor, x-gangster (see United States v. Goot, 894 F.2d 231). Mr. Sumner is also and extortionate victim of Johnathan Patrick Kochis (the former chief deputy district attorney of San Bernadino County, in California), a tyrant who the courts have allowed to inflict an extra-judicial punishment against Mr. Sumner and then use violence against Mr. Sumner's person and property to overcome his resistance to stealing by way of threats and intimidation.