080520
On 080520, I was watching “Celebrity Jury Duty” on TV. The jurors are “celebrities”. The judge is a real, former judge. A plaintiff trying to collect some alleged debt stated that a particular loan agreement was “actually signed by the defendant”. The judge said, “Strike ‘actually’.” The plaintiff replied “The loan agreement was signed by the defendant.” The judge said, “Your statement is accepted” and the case proceeded.
It appears that the word “actually” has some peculiar significance that the judge finds intolerable. Is it possible that nothing can “actually” occur in the legal fiction of “this state”? Conversely, could it be that all things that “actually” happen can only happen on or within “The State”?
Black’s 8th defines:
“actual, adj. Existing in fact; real <actual malice>. Cf. CONSTRUCTIVE.”
“Existing in fact” would seem to be the alternative to “existing in fiction”. “real” clearly places “actual” in the “real” (as opposed to fictional) world.
There are an additional 36 terms such as “actual agency,” “actual assent,” and “actual authority” that are listed—most (like “actual innocence” or “actual notice”) sound like powerful and important concepts. However, only 6 of those 36 terms are defined on page 38. The other 30 instances of “actual” point to other definitions on other pages. That means that terms like “actual innocence” will be defined under “innocence,” but probably without enough clarity to show what “actual” really implies.
“constructive, adj. Legally imputed; having an effect in law though not necessarily in fact. * Courts usu. give something a constructive effect for equitable reasons <the court held that the shift supervisor had constructive knowledge of the machine’s failure even though he did not actually know until two days later.> See LEGAL FICTION. Cf. ACTUAL.”
There are 49 additional terms listed in Black’s 8th that start with “constructive”. Many of them (“constructive assent”, for example) parallel other terms defined with “actual” (“actual assent”). Only two of the terms listed under “constructive” at page 333 are defined on that page. The other 47 are defined as part of other terms (such as “assent”).
Defining “constructive” with the words, “imputed,” “effect,” “in law,” “equitable” and “LEGAL FICTION” all imply that “constructive” almost always implicates a legal fiction.
In conjunction, the terms “actual” and “constructive” may be used to distinguish between “The State” (“actual”) and “this state” (“constructive”). It appears that “constructive” certainly takes place in the legal fiction of “this state”. I suspect that “constructive” might also take place on “The State”. Maybe yes, maybe no. But I’ll bet that “actual” cannot take place in a legal fiction. I’ll bet that “actual” can only take place on “The State”.
DICTIONARY HISTORY
Black’s 4th revised (A.D. 1968): No definition of legal fiction.
Black’s 5th (A.D. 1979) and Black’s 6th (A.D. 1990):
“Legal fiction. Assumption of fact made by court as basis for deciding a legal [not “lawful” or “constitutional”?] question. A situation contrived by the law to permit [license? Entitle?] a court to dispose [take legal title to?] of a matter, though it need not [though it could be] be created improperly; e.g. fiction of lost grant as basis for title by adverse possession.”
Black’s 7th (A.D. 1999) and 8th (A.D. 2004):
legal fiction. An assumption that something is true even though it may be untrue, made esp. in judicial reasoning to alter how a legal rule operates; specif., a device by which a legal rule or institution is diverted from its original purpose to accomplish indirectly some other object. ● The constructive trust is an example of a legal fiction.—Also termed fiction of law; fictio juris. [Cases: Trusts “key” 91. C.J.S. Trover and Conversion §§ 10,12, 174, 195.]
“I . . . employ the expression ‘Legal Fiction’ to signify any assumption which conceals, or affects to conceal, the fact that a rule of law had undergone alteration, its letter remaining unchanged, its operation being modified . . . . It is not difficult to understand why fictions in all their forms are particularly congenial to the infancy of society. They satisfy the desire for improvement, which is not quite wanting, at the same time they do not offend the superstitious disrelish for change which is always present.” Henry S. Main, Ancient Law 21-22 (17 Edition 1901).
“‘Legal fiction is the mask that progress must wear to pass the faithful but bleer-eyed watchers of our ancient legal treasures. But though legal fictions are useful in thus mitigating or absorbing the shock of innovation, they work havoc in the form of intellectual confusion.’ Morris. R. Cohen, Law and the Social Order 126 (1933).’
Let’s analyze that definition one paragraph at a time.
Paragraph #1:
legal fiction. An assumption that something is true even though it may be untrue, made esp. in judicial reasoning to alter how a legal rule operates; specif., a device by which a legal rule or institution is diverted from its original purpose to accomplish indirectly some other object. ● The constructive trust is an example of a legal fiction.—Also termed fiction of law; fictio juris. [Cases: Trusts “key” 91. C.J.S. Trover and Conversion §§ 10,12, 174, 195.]
To say that a legal fiction is “an assumption that something is true even though it may be false” is not the same as “an assumption that something is true even though it IS false.” In other words, the legal fiction can only exist so long as the premise or result MAY be true. Once a litigant expressly denies the existence and/or truth of a particular fiction and/or proves that the legal fiction/assumption cannot be true, that legal fiction/assumption must rejected as false and non-existent. Thus, the antidote to legal fictions/assumptions is an affidavit of facts that defeat the premise for the assumption.
I am amazed by the “purpose” of legal fictions (lies): They are intended to “alter how a rule operates”. Thus, they are an example of judge-made law where the “rules of the game” are changed in operation (not in fact) in order to achieve a particular result that the JUDGE wants to achieve that is actually contrary to the objective of the RULE in question.
Legal fictions are arguably subversive; they are intended to change the effect of various rules without changing the rules themselves. The classic example may be this country’s beginning with 1) the self-evident truths that all men are created equal and endowed by their Creator with certain unalienable Rights; and 2) the purpose of government is to secure those God-given, unalienable Rights. These principles of God-given rights and securing such rights are arguably the fundamental “rules” on which our society was based. The government and courts then devise “assumptions” and “legal fictions” (that we are persons or animals or debtors, etc.) to defeat those fundamental rules and thereby evade the fundamental purpose of the original “rules”: to secure these rights.
Thus, “a legal rule or institution” (like the Constitution, perhaps?) can be privately “diverted from its original purpose” by means of legal fictions and without express amendment by and under the authority of the People who drafted the Constitution in the first place. More, this “diversion” by means of fiction takes place to achieve an “object” distinctly different from that of the original “rule”. Legal fictions ARE subversive.
The constructive trust is subversive of the laws (“rules”?) of nature and nature’s God.
Paragraph #2:
“I . . . employ the expression ‘Legal Fiction’ to signify any assumption which conceals, or affects to conceal, the fact that a rule of law had undergone alteration, its letter remaining unchanged, its operation being modified . . . . It is not difficult to understand why fictions in all their forms are particularly congenial to the infancy of society. They satisfy the desire for improvement, which is not quite wanting, at the same time they do not offend the superstitious this relish for change which is always present.” Henry S. Main, Ancient Law 21-22 (17 addition 1901).
The author writes that “I” use “legal fiction” to signify this, that or the other. He does not write that the courts, or the law, or some institution uses legal fictions. He implies that use of legal fictions is a very private, personal and discretionary process which he sometimes employs and sometimes does not. He implies that the use of legal fictions is without authority, but rather some private act.
The author explains that legal fictions are “any assumption which conceals, or affects to conceal, the fact that a rule of law had undergone alteration . . . .” This element of concealment indicates that the essence of every legal fiction is deceit. They’ve “altered” (changed, amended) the rules of law by means of fictions and thus changed the law without giving the people notice.
Procedural due process consists of two elements: 1) Notice; 2) Opportunity to be heard. Therefore, by definition, if legal fictions are intended to “conceal” a change in the effect and purpose of rules, a legal fiction would violate the first element/right of procedural due process: Notice. That’s a powerful insight and defense against legal fictions: No notice of the use of a legal fiction in a court case means a violation of procedural due process.
I’m not sure if challenges to procedural due process can be challenged (like jurisdiction) even after the fact. But if a jurisdiction in a fictional state were based on the presumption that by using FRNs, you did business in some fiction—then the jurisdiction based on the legal fiction would probably be subject to challenge.
In any case, a proper, verified notice before the fact that 1) due process includes Notice; 2) a fair trial includes access to knowledge of all governing rules; 3) unstated legal fictions are intended to conceal changes in the rules; 4) legal fictions violate the right to a fair trial; 5) legal fictions violate the due process right to Notice; 6) I refuse to consent to the use of any legal fiction in this matter as a violation of my rights to procedural due process and to a fair trial; 7) use of legal fictions by the judge or plaintiff constitutes dolos malice.
Or something like that. I’m not sure that I want to claim “my right” to procedural due process because I suspect that “right” may attach to 14th Amendment citizens, or fictions in administration or some such. Perhaps, the deceit inherent in legal fictions might be better attacked as a violation of “actual” substantive due process.
The subversive element in legal fiction is further seen in the author’s statement that by means of legal fictions “a rule of law had undergone alteration, its letter remaining unchanged, its operation being modified.” That’s freakin’ FRAUD. The “rule of law” has been unchanged in its letter—that is, the text of the law remains as it has been—but the operation of the law, it’s effect and application, have been changed by judges and these changes are completely different from the existing text and the original intent of the rule of law. But the intent, the purpose of the law, is the essence of “law”. When any judge or litigant changes the intent/purpose of the law, he necessarily violates the law and thereby commits a crime.
Legal fiction are arguably evidence of CRIMES committed by judges.
How do judges and/or legislatures avoid liability for employing legal fictions?
They would almost certainly rely on some other presumption/assumption that the litigants (especially the defendant) have consented to the use of legal fictions. This “implied/presumed/assumed” consent could be based on two devices that I can (so far) imagine:
1) Constructive trusts—which, by definition, are based on the judge “finding” the existence of an “implied trust” relationship between the parties—which, by definition, all parties (including the defendant) are presumed to recognize. Thus, if the defendant does not expressly deny the existence of an implied or express trust relationship between himself and the plaintiff, it will be presumed that the defendant has silently assented to the existence of the implied trust and therefore the resulting “constructive trust” (legal fiction). If the defendant has assented/consented to the use of the legal fiction, how can the judge be held accountable for “subjecting” the defendant to a legal fiction (LIE)?
2) “Operation of law”—I’ve seen court orders and I think I’ve seen code sections that expressly refer to “operation of law”. This “operation of law” typically justifies a finding of a “constructive trust” and I suspect that “operation” may ultimately justify any legal fiction. Again, so long as the judge is justified by the “operation of law” (based on the implied trust relationship), it will be presumed that the defendant has consented/assented to the use of the legal fiction (private perversion of the “rule” of law).
These two observations regarding constructive trusts and “operation of law” suggest additions to my 7-point “disclaimer”/notice (supra):
8) I do not consent to any “operation of law”.
9) The use of legal fictions constitutes FRAUD.
10) the use of a legal fiction to subvert the rule of law constitutes TREASON.
11) the use of legal fictions to subvert the rule of law constitutes a CRIME.
12) the use of legal fictions constitutes an act of “legislation” by the court and thus violates the separation of powers.
13) the only way the judge can impose legal fictions to violate the purpose of existing laws is under the guise of “private law” (I demand public law? Constitutional law?)
14) legal fictions are lies; my Bible tells me that Satan is the father of all lies; thus, to subject me to legal fictions is to subject me to lies, to an alternative faith, to restrict my freedom of religion, to violate constitutional prohibitions against “establishment of religion” (especially a Satanic religion).
Third paragraph:
“‘Legal fiction is the mask that progress must wear to pass the faithful but bleer-eyed watchers of our ancient legal treasures. But though legal fictions are useful in thus mitigating or absorbing the shock of innovation, they work havoc in the form of intellectual confusion.’ Morris. R. Cohen, Law and the Social Order 126 (1933).’
They admit that the “legal fiction” is a “mask”—a means of concealment and deception.
They claim this “mask”/deception is justified by “progress”. But their notion of “progress” is not defined and is clearly intended to overthrow the fundamental principles on which this nation, it’s Declaration of Independence and constitutions were based. What these “authorities” call “progress” is, in fact, REVOLUTION intended to strip the individual men and women of their God-given, unalienable Rights and replace the guaranteed “republican form of government” with a collectivist system/economy “vere verk ist vreedom!”.
The “shock of innovation” refers to the shock of “revolution”. The de jure, constitutional government devised and authorized by the People is being silently and secretly overthrown by the de facto (fictional) government of elitists. A “silent war” is being waged against the American people with “quiet weapons”. These “quiet weapons” include “legal fictions” which are, by definition, employed by the courts as a kind of secret, implied, unstated (and thus “silent”) law.
The bastards in gov-co are overthrowing our nation and our state and federal constitutions. The bastards are at least engaged in sedition (“An insurrectionary movement tending towards treason, but wanting an overt act; attempts made by meetings or speeches, or by publications, to disturb the tranquility of the state.” Black’s 4th, A.D. 1951). The bastards are almost certainly engaged in treason (giving aid and comfort to the enemies of the several United States by covertly working to destroy those United States). And it appears increasingly clear that one of, perhaps the, fundamental device by means of which this treason is achieved is “legal fiction”—not “fictions,” mind you, but “legal fictions”.
Again, note that “fictions” have been around for centuries and defined in Black’s Law Dictionary since its first edition in the late 1900s. But “legal fictions” only appeared for the first time in Black’s 5th (A.D. 1979). These relatively recent definitions of “legal fiction” imply that the fiction of “this state” and perhaps even upper case names like “ALFRED ADASK” may have only been fully implemented sometime between Black’s 4th Revised (A.D. 1968) wherein “legal fictions” are not defined and Black’s 5th (A.D. 1979) wherein “legal fictions” are first defined.
This timeline makes pretty good sense to me since gold coin was removed from domestic circulation in A.D. 1933, and silver coin was removed from domestic circulation circa A.D. 1968, and the “gold window” whereby foreign countries could redeem their paper dollars for gold at was closed on August 15th, A.D. 1971. That means that as of August 15th, A.D. 1971 it was finally no longer possible to redeem the paper dollar for specie anywhere in the world.
The dollar, at that time, became a pure fiat currency with no intrinsic value. Insofar as we attempted to transact using such fiat currency (legal tender), we might “purchase” products or services, but we could never really “buy” them. By using legal tender we could take possession of products, but only in return for our “promise to pay” (legal tender)—not an actual “payment” (specie; gold or silver coin or a currency redeemable in gold/silver). Without lawful money (gold/silver coin) we can’t pay our debts; we merely “discharge” them. So long as our debts aren’t actually paid, out debts are not “extinguished” and we theoretically remain as permanent “debtors” who have virtually paid/extinguished no debt since, at least, A.D. 1971.
If this conjecture were roughly correct, anyone known to be using Federal Reserve Notes (legal tender) could be presumed (by operation of law/ legal fiction?) to be a “debtor”. Debtors have virtually no rights.
How might the court know that you are a virtually right-less debtor? Two ways come to mind: 1) the plaintiff paid a filing fee in legal tender/FRNs; 2) the defendant is being sued without objection for some amount denominated in legal tender.
The plaintiff’s use of legal tender to pay the filing fee is a fairly obvious signal that the plaintiff (at least) is a debtor.
But the possibility that defendant who accepts suit for legal tender without objection is also an apparent debtor is a more slippery speculation. That notion could easily be false. In fact, it’s probably false.
Still, it’s intriguing.
Start with a question: Why would anyone sue me for legal tender if they thought I could actually pay my debts with lawful money? Why not sue for lawful money (gold/silver coin)? The fact that some plaintiff sues me for legal tender is at least implicit evidence that the plaintiff doesn’t think I can pay my debts (with gold/silver) and is therefore willing to accept a mere discharge of my debt (with legal tender).
Insofar as I can’t pay/extinguish my debts with lawful money, I may be recognized as at least insolvent and arguably bankrupt. This, in turn, suggests that anyone who uses legal tender may be presumed to be an insolvent or bankrupt and as such, a “debtor” with virtually no meaningful rights.
So, suppose some plaintiff sues me for a sum denominated in legal tender (a dollar sign with a single vertical line running through it) and I don’t object. Doesn’t the plaintiff imply that I’m either an insolvent or bankrupt? Doesn’t my failure to object indicate my agreement that I’m insolvent or bankrupt?
If this conjecture were roughly correct, it suggests that a defendant might object to being characterized as an insolvent/bankrupt/debtor and declare himself to be solvent and/or a creditor. The defendant might even demand that he be sued for lawful money in a true court of law (where, so far as I know, no fictions—legal or otherwise—are allowed). All of this suggests the seemingly bizarre possibility that the kind of “money” (lawful money or legal tender) that’s being sued for “sets the court” and creates (by operation of law/fiction) the presumption that at least the defendant, and perhaps parties are “debtors”.
If both parties are debtors, what kind of court is appropriate? I’ll bet it’s an administrative tribunal. I can’t prove it. I have no evidence. But, for now, my “gut” tells me that “administrative procedure” (administrative due process) is for debtors and bankrupts. Conversely, “substantive due process” is for creditors and/or men who are neither insolvent nor bankrupt and thus able to truly “pay” their debts.
“Legal tender” may be the ultimate “legal fiction”.
The more I think about that, the more sense it makes.
By using the “legal fiction” of “legal tender” we may be giving evidence by our mere conduct that we have consented to enter into the fictional world of the “implied charitable trust” of “this state”. Alternatively, by using the “legal fiction” of “legal tender” we may be giving evidence by our mere conduct sufficient for a judge to find “by operation of law” that we’ve entered into some fictional relationship (like fiduciary or debtor). ]
