SEVEN ELEMENTS OF JURISDICTION - LACK OF JURISDICTION
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SEVEN ELEMENTS OF JURISDICTION
In order for any government agency, subsidiary or law to be applied to an individual American Citizen, it must be first proved or assumed that the government has jurisdiction in this matter over that particular individual for that time. Specifically, before an individual can be charged and convicted with a crime, the government official or agency must prove jurisdiction. This is seldom accomplished, and many individuals lose a case and even go to jail when no one has proved this legally essential issue.
No where is this more common than in Internal Revenue Service cases against so-called tax protesters. The IRS almost never attempts to prove jurisdiction. In fact, jurisdiction is almost never even addressed. If the individual is correct in his/her claims that he/she is not a taxpayer as defined in the Internal Revenue Code, then the IRS HAS NO JURISDICTION! With no jurisdiction comes no case and no conviction! But to win, jurisdiction MUST be challenged by the individual, and if challenged successfully, the case is dismissed.
There are seven elements of jusrisdiction, all of which must be proved by the prosecution if challenged. If not challenged, it will ALWAYS be assumed by the court that competent jurisdiction is proved and accepted by all parties.
If any element of the seven is not proved, the case must be dismissed. The normal process in a case against a so-called tax protester is to ignore the jurisdiction issue altogether, or else to challenge jurisdiction while at the same time conforming to procedures and requirements that assume jurisdiction. In other words, one cannot allege the IRS has no jurisdiction over one while at the same time one continues to file a Form 1040 each year.
In the very few IRS cases where jurisdiction is challenged, almost always the judge will proclaim jurisdiction from the bench. ["It is the opinion of this court that the prosecution has jurisdiction in this case, and exercises it regularly, almost every day. I don't think we need to go through all that today."] This is a total violation of law and accepted court proceedures. But most federal judges won't let that stop them! But the one alleging jurisdiction must prove jurisdiction if jurisdiction is challenged. Usually the defendent charged with a crime is too intimidated or ignorant to successfully challenge a judge on this, but the judge MUST be challenged if he/she proclaims that the prosecution (IRS) has jurisdiction in this case. If he/she is not successfully challenged, almost always the individual will lose the case.
One of the easiest and most common means of alleging jurisdiction on the part of the prosecution (IRS) is to refer to the accused as a "taxpayer." If that word is ever used in reference to the so-called tax protester," it MUST be immediately challenged. ["I object, your Honor. The prosecution has just labeled me a taxpayer. Whether or not I am a taxpayer is the very root issue in this case, and has not been proven by the prosecution. I respectfully request that the word 'taxpayer' be stricken from the record and that the prosecution be instructed to not use that word again until it has proven that I am indeed a taxpayer."] If the defendent does not challenge that word, and similar techniques used by the IRS, the judge will have legal justification to assume jurisdiction. Of course, if the defense has done its job, the issue of taxpayer and jurisdiction would already be established. The time to challenge jurisdiction is at the beginning of the trial, not at the end when it looks like the individual is about to lose. If jurisdiction is to be successfully challenged, it must be at the very beginning of the trial. To allow the trial to continue at all is to admit to jurisdiction.
Below are the seven issues of jurisdiction in any and every court case. Remember, if any one of these seven are not proven beyond a reasonable doubt, the case cannot continue.
Without the limiting factor of a court of competent jurisdiction, all citizens would be in jeopardy of loss of liberty being imposed at any bureaucrat's whim. It is conceivable that the procedure could devolve to one in which the accuser, the trier of facts, and the executioner would all be one and the same.
The first six elements above deal primarily with the issue of personal jurisdiction. The seventh element (also element #2) addresses subject matter and territorial jurisdiction. Subject matter jurisdiction is conferred by acts controlled by law; territorial jurisdiction attaches by venue of the parties in relation to the court and to any trans-jurisdictional acts and/or activities of the parties (extended territorial jurisdiction is conferred by controversial long-arm statutes).
SUMMING UP the LAW and the POLITICS
Lacking any of the seven elements or portions thereof, (unless waived, intentionally or unintentionally) all designed to ensure against further prosecution (double jeopardy); to inform court of facts alleged for determination of sufficiency to support conviction, should one be obtained. Otherwise, there is no lawful notice, and charge must be dismissed for failure to state an offense. Without lawful notice, there is no personal jurisdiction and all proceedings prior to filing of a proper trial document in compliance with the seven elements is void. A lawful act is always legal but many legal acts by government are often unlawful. Most bureaucrats lack elementary knowledge and incentive to comply with the mandates of constitutional due process. They will make mistakes. Numbers beyond count have been convicted without benefit of governmental adherence to these seven elements. Today, informations are being filed and prosecuted by "accepted practice" rather than due process of law.
See Corpus Juris Secundum (CJS), Volume 7, Section 4, Attorney & client: The attorney's first duty is to the courts and the public, not to the client, and wherever the duties to his client conflict with those he owes as an officer of the court in the administration of justice, the former must yield to the latter. Clients are also called "wards" of the court in regard to their relationship with their attorneys. After you have read the foregoing, ask your attorney to see a copy of "regarding Lawyer Discipline & other rules" Also Canons 1 through 9.
Corpus Juris Secundum assumes courts will operate in a lawful manner. If the accused makes this assumption, he may learn, to his detriment, through experience, that certain questions of law, including the question of personal jurisdiction, may never be raised and addressed, especially when the accused is represented by the bar. (Sometimes licensed counsel appears to take on the characteristics of a fox guarding the hen house.)
Jurisdiction, once challenged, is to be proven, not by the court, but by the party attempting to assert jurisdiction. The burden of proof of jurisdiction lies with the asserter. The court is only to rule on the sufficiency of the proof tendered. Se McNutt v. GMAC, 298 US 178. The origins of this doctrine of law may be found in Maxfield's Lessee v Levy, 4 US 308.
NOTE: Today the courts are unconcerned with questions such as whether or not the 16th or 17th amendments were ever lawfully ratified. If the courts were to address this type of question honestly, the government, with its huge bureaucracy and patron special interests would be placed in jeopardy. This potential threat is not allowed nor will it ever be. It is much easier for the courts to label such potential threats as political questions, point to the lateness of the clock and refuse to hear or rule. Whatever the political jugernaut does, it uses the facade of law to justify or reconcile it. The only way such questions will have force and effect is if the general public becomes aware and concerned with justice being based upon law and not just policy based on a facade of law.
If you doubt such words, please be assured that they are not just words but are, in fact, and articulation of the unwritten, unspoken, present public policy, as enforced by the courts in dealing with challenges to governmental acts and authority. For documentation, see US v WAYNE WOJTAS, 85 CR 48 in the US District Court for the Northern District of Illinois, Eastern Division and Judge Shadur's opinion on the 16th Amendment. You will see the beginnings and threat of disbarment of a certain "aggressive" licensed attorney.
To be truly effective in the courts in any challenge to governmental power and authority, the challenger must possess a good understanding of politics. This is especially so since government and the courts are primarily concerned with a public perception of the balancing of the scales of justice rather than the attainment of true justice under the law.
Once it is realized that the court is primarily concerned with politics, it then becomes necessary for any challenger to become proficient in the political arena. By politics, we speak, not of the electoral process, but of the politics of association.
Keeping this in mind, and truly understanding the concept, a man accused of breaking a "rule" for which he may suffer penalties of imprisonment, fine and costs without benefit of trial or Constitutional safeguards, may very will consider bringing a criminal charge against himself directly in court and thereby blunt his adversaries' attack. To the uninitiated, this may sound like madness, but to the political scholar destined to appear before a "master" to answer to alleged rule violation of the unauthorized practice of law, the self-accusatory route to the courts may be the only hope of victory; both legal and political.
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