Requirement for Consent

Municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme

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power in a state, commanding what is right and prohibiting what is wrong."

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It is also called a rule to distinguish it from a compact or agreement; for a compact is a promise proceeding from us, law is a command directed to us . The language of a compact is, "I will, or will not, do this"; that of a law is, "thou shalt, or shalt not, do it." It is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. In compacts we ourselves determine and promise what shall be done, before we are obliged to do it; in laws. we are obliged to act without ourselves determining or promising anything at all. Upon these accounts law is defined to be "a

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rule."

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[Readings on the History and System of the Common Law, Second Edition, Roscoe Pound, 1925, p. 4]

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"[l]aw . . . must be not a special rule for a particular person or a particular case, but. . .`the general law . . .' so `that every citizen shall hold his life, liberty, property and immunities under the protection of the general

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rules which govern society. '"

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[Hurtado v. California, 110 U.S. 516, 535-536 (1884)]

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2. Is making a “presumption” that cannot be supported with evidence. All “presumption” is a violation of due 17 process in the legal realm. An unchallenged presumption becomes fact in any legal proceeding. Watch out! 18

“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”

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[Coffin v. United States, 156 U.S. 432, 453 (1895)]

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“It is apparent,' this court said in the Bailey Case ( 219 U.S. 239 , 31 S.Ct. 145, 151) 'that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from

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constitutional restrictions. ”

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[Heiner v. Donnan, 285 U.S. 312 (1932)]

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Thus the Court held that presumptions, while often valid (and some of which, I think, like the presumption of death based on long unexplained absence, may perhaps be even salutary in effect), must not be allowed to stand where they abridge or deny a specific constitutional guarantee. It is one thing to rely on a presumption to justify conditional administration of the estate of a person absent without explanation for seven years, see Cunnius v. Reading School District, 198 U.S. 458 ; compare Scott v. McNeal, 154 U.S. 34 ; it would be quite another to use the presumption of death from seven years' absence to convict a man of murder. I do not think it can be denied that use of the statutory presumptions in the case before [380 U.S. 63, 81] us at the very least seriously impaired Gainey's constitutional right to have a jury weigh the facts of his case without any congressional interference through predetermination of what evidence would be sufficient to prove the facts For all the foregoing reasons, I think that these two statutory presumptions by which Congress has tried to relieve the Government of its burden of proving a man guilty and to take away from courts and juries the function and duty of deciding guilt or innocence according to the evidence before them, unconstitutionally encroach on the functions of courts and deny persons accused of crime rights which our Constitution guarantees them. The most important and most crucial action the courts take in trying people for crime is to resolve facts. This is a judicial, not a legislative, function. I think that in passing these two sections Congress stepped over its constitutionally limited bounds and encroached on the constitutional power of courts to try cases. I would therefore affirm the judgment of the court below and grant Gainey a new trial by judge and jury necessary to convict in a particular case. [. . .]

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with all the protections accorded by the law of the land.

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[United States v. Gainly, 380 U.S. 63 (1965)]

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Legislation declaring that proof of one fact of group of facts shall constitute prima facie evidence of an ultimate fact in issue is valid if there is a rational connection between what is proved and what is to be inferred. A prima facie presumption casts upon the person against whom it is applied the duty of going forward with his evidence on the particular point to which the presumption relates. A statute creating a presumption that is arbitrary, or that operates to deny a fair opportunity to repel it, violates the due process clause of the Fourteenth Amendment. Legislative fiat may not take the place of fact in the judicial determination of issues involving life, liberty, or property. Manley v. Georgia, 279 U.S. 1 , 49 S.Ct. 215, 73

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L.Ed. -, and cases cited.

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[Western and Atlantic Railroad v. Henderson, 279 U.S. 639 (1929)]

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Requirement for Consent

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Copyright Sovereignty Education and Defense Ministry, http://sedm.org Form 05.003, Rev. 7-23-2013

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