Page 1

Part I.      OF JUDGES AND THE POWER TO JUDGE.

Item 1(a).      Comment -- In examining the special places set aside for formal legal action, the government officials in charge of managing litigations properly, the rules by which these special places are formed, and the rules for beginning (commencing) a legal action of any sort, we will find that "courts, judges and jurisdiction" are issues and in examining the issues of "courts, judges and jurisdiction," we will find that the terms "courts", "judges" and "jurisdiction", are issues within themselves, made of many parts.
(b)   In doing this we will also find that the meanings and understanding of these terms are mingled and intertwined. The purpose of this compilation and commentary is to lay a foundation for understanding these terms, the concepts involved in understanding these terms, and hopefully, while this short commentary cannot encompass all of the broad range of these issues, it will meet the most fundamental parts and create a point for the beginning of understanding and the developement of the understanding begun.
(c)   Here in Part I., this discussion will center around the idea of "judges" and, to beginwith, "judicial authority". In examining "judicial authority", as it exists in Ameica, the beginning must always be found in the "supreme law of the land".

Item 2.      Constitution of the United States, effective 1789, with all amendments to 1979. As found in: Constitution of the State of Ohio, Annotated, 1979, Reprinted from Page's Ohio Revised Code, Annotated, by Anderson Publishing Co., on the authority of Anthony J. Celebrezze, Jr., Secretary of State, Ohio.

      ARTICLE III Section 2.
     The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority;--- to all Cases affecting Ambassadors, other public Ministers and Consuls; --- to all Cases of admiralty and maritime Jurisdiction;

Item 3.      Comment -- As we see by the U.S. Constitution, Art. III, section 2, the "judicial power" extends to four general categories. Firstly, and, because of it's primacy, the most important of all these categories is the "Law", which is defined by the S.Ct. of the U.S. as the "common law".

Item 4.      Parsons v. Bedford, et al. (1830) 3 Pet. 433
as per Mr. Justice Story,
@ p. 447 ;
     "By common law, they (framers of the 7th amendment) meant what the constitution denominated in the third article 'law'; not merely suits which the common law recognized among it's old and settled proceedings, but suits ........etc."

Item 5(a).      Comment -- The second general category is "equity" (for more on "equity" see Part III., infra), and the third general category is the "laws of the United States". The fourth general category is "admiralty/maritime", which, with some special categories, are also mentioned in Art III, but not vitally important to this discussion.
(b)   The third general category mentioned in Art. III, the "laws of the United States", is very important, because it is the window of opportunity, found by our communist politicians/legislators, which allowed the creation (perhaps illegal and unlawful creation), of the only exercise of "judicial power", other than "common law", which is vital to this discussion. The exercise of "judicial power", here referred to, is the "statutory jurisdiction"
(c)   The so-called "statutory jurisdiction" is a newly created judicial jurisdiction, and, although of an "equitable nature", is based on "the "laws of the United States" authorized in Art. III.
(d) At the time of the writing of the U.S. Constitution, the "laws of the United States", in other words "statutes" or "pre-scribed law", were used in the "equity" jurisdiction and in the "admiralty/maritime" jurisdiction. The "laws of the United States", statutes, were substantive law, but had no adjective law to allow it to be claimed to be a complete "jurisdiction" by itself.
(e) About seventy or eighty years ago, or more, the legislators, both federal and state, began an effort to "merge" the rules of common law and equity. This was done by creating a set of "rules of procedure".
(f)   Federal and state "rules of" civil or criminal "procedure" are, of course, pre-scribed laws, thereby completing the creation of a new "statutory jurisdiction", with both substantive law and adjective law being either pre-scribed by Congress or authorized by Congress.
(g)   We are now led, by our Government officials (Judges, etc.), to believe that no other form of law (jurisdiction), than the statutory jurisdiction, ever existed, and that if it did exist, it is "obsolete" and been disposed of forever.
(h) The two elements most important to the creation of this new jurisdiction are (1) the authorization of the "laws of the United States", by the sovereign people in their Constitution of the United States, and (2) the advent of the Fourteenth Amendment, which created a brand new second class of citizenship, in the United States.
(i) The Art. III. authorization of the "laws of the United States" is the substantive foundation of the "statutory jurisdiction", while, the necessity of controlling the new second class of citizenship is the foundation for creating the federal and state "Rules of Procedure".
(j)   Although other Commentaries will deal with this very large and important topic of relating "statutory jurisdiction" with the new "second class citizen", enough has been said here on this topic already, so let's get back to "Judicial authority".

Item 6.      Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 760 ;
Judicial authority. The power and authority appertaining to the office of a judge. Jurisdiction; the official right to hear and determine questions in controversy.

Item 7.      Comment -- Black's Fifth says: "The power and authority appertaining to the office of a judge", while presuming that a "judge" is a person who fills an office in the third, or judicial branch of American government, i.e., a "government agent".

Item 8.      Bouvier's Law Dictionary [stud. ed.] (1948) Banks-Baldwin, Pub.
@ p. 603 ;
Judge. (in part) A public officer lawfully appointed to decide litigated questions according to law. An officer so named in his commission, who presides over some court. In it's most extensive sense the term includes all officers appointed to decide litigated questions while acting in that capacity, including justices of the peace, and even jurors, it is said, who are judges of the facts. 4 Dall. 229; 3 Yeates 300.
      In ordinary legal use, however, the term is limited to the sense of the second of the definitions here given; 15 Ill. 388; unless it may be that the case of a justice or commissioner acting judicially is to be considered an extension of this meaning. See 3 Cush. 584.

Item 9.      Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 754 ;
Judge. An officer so named in his commission, who presides in some court; a public officer, appointed to preside and administer the law in a court of justice; the chief member of a court, and charged with the control of the proceedings and the decision of questions of law or discretion. Todd v. U.S., 158 U.S. 278, 15 S.Ct. 889, 39 L.Ed. 982.
     A public officer who, by virtue of his office, is clothed with judicial authority. State ex rel. Mayer v. City of Cincinnati, 60 Ohio App. 119, 19 N.E.2d 902. Presiding officer of court, State v. Horn, 336 Mo. 524, 79 S.W.2d 1044, 1045. Any officer authorized to function as or for judge in doing specific acts. In re Robert's Estate, 49 Cal.App.2d 71, 120 P.2d 933, 937. "Judge", "justice", and "court" are often used synonymously or interchangeably. See also Magistrate.

Item 10.      Comment -- Black's Fifth and Bouvier's L.D. both say that a "judge" is "An officer so named in his commission, who presides over some court", and the confusion begins, and continues when Black's Fifth goes on to say "Judge", "justice", and "court" are often used synonymously or interchangeably". At Item 9, Black's Fifth says: "See also Magistrate".

Item 11.      Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 857;
Magistrate. The term in its generic sense refers to a person, clothed with power as a public civil officer, or a public civil officer invested with executive or judicial power. Ex parte Noel, Ky., 338 S.W.2d 903, 907. Minor officials or officers with limited judicial authority; e.g., justices of the peace, judges of police courts, mayor's courts, or magistrate's courts.
     In a general sense, a "magistrate" is a public officer, possessing such power, legislative, executive, or judicial, as government appointing him may ordain, although in a narrow sense he is regarded as an inferior judicial officer. Shadwick v. City of Tampa, Fla., 250 So.2d 4, 5.

Item 12.      Comment -- Finally, a definition that admits that a "judge" is a "person" "invested with" "judicial power", who is a "public civil officer" (government agent). Also the idea of "limited" and "inferior" judicial officers is mentioned and will arise again, later in this discussion.

Item 13.     Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 1350 ;
Tribunal. (in part) The seat of a judge; the place where he administers justice. The whole body of judges who compose a jurisdiction; a judicial court; the jurisdiction which the judges exercise.

Item 14(a).      Comment --From the abovegiven definitions, in Black's Fifth and Bouviers, we find that the terms "Tribunal", "Judge" and "Magistrate", even "justice of the peace" and "court", all seem to mean the same thing or are somewhat similar things.
(b)   These terms, seemly similar in meaning, all seem to consist of four elements, and these are (1) all are “public officers” (government agents), (2) all must be “lawfully appointed”, (3) all have a duty to “decide litigated questions”, and (4) all must do their duty “according to law.” Also, somewhat vaguely, the term "jurisdiction" is mentioned.

Item 15.     Bouvier's Law Dictionary [stud. ed.] (1948) Banks-Baldwin, Pub.
@ p. 622 ;
JURISDICTION (Lat. jus, law, dicere, to say). The authority by which judicial officers take cognizance of and decide causes. 60 Vt. 618. The power to hear and determine a cause. 3 Ohio 494; 6 Pet. 709; 2 How. 338. The right of a judge to pronounce a sentence of the law on a case or issue before him, acquired through due process of law. It includes power to enforce the execution of what is decreed. 9 Johns. 389 [or 889]; 3 Metc.Mass. 460; Thach. 202.

Item 16.     Comment -- In Bouvier's Law Dictionary, @ p. 622, (Item 15,) under the head of “JURISDICTION”, we see “jurisdiction” defined as “The right of a judge to pronounce a sentence of the law on a case or issue before him, acquired through due process of law.“

Item 17.     Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 449 ;
Due process of law. (in part)   A course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution --- that is, by the law of its creation -- to pass upon the subject-matter of the suit;

Item 18(a).     Comment --Black's Fifth says that "due process of law" is "established" "for the enforcement and protection of private rights".
(b)   Perhaps, instead of saying "for the enforcement and protection of private rights", we might say just a single word, and that word might be "justice". If we did that, then, we would be saying that "due process of law" is "established" "for justice".

Item 19.      Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 1350 ;
Tribunal. (in part) The seat of a judge; the place where he administers justice.

Item 20.      Comment -- From these definitions, we find that "due process of law" is "A course of legal proceedings" that is rendered in "the place where he (the judge) administers justice.

Item 21.     Kintz v. Harriger (1919) 99 Ohio St. 240
@ p. 248 ;
     "...a court, which is charged first, last, and all the time with administering justice, based upon the truth..".
@ p. 250 ;
     "The whole duty of courts is to ascertain the facts, the truth in any given controversy, and then apply the fundamental principles of justice to that truth."

Item 22.     Bouvier's Law Dictionary [stud. ed.] (1948) Banks-Baldwin, Pub.
@ p. 635 ;
JUSTICE. The constant and perpetual disposition to render every man his due. Justinian, Inst. b.1, tit.1 ; Co. 2nd Inst. 56.

Item 23.     Comment -- Hmmmmm. JUSTICE. Now where have I heard that word before? The Supreme Law of the Land, perhaps?

Item 24.      Constitution of the United States (1789)
     We the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Item 25.     Comment -- But now back to "due process of law".

Item 26.     Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 449 ;
Due process of law. (in part) (later in the definition) Fundamental requisite of "due process" is the opportunity to be heard, to be aware that a matter is pending, to make an informed choice whether to acquiesce or contest, and to assert before the appropriate decision-making body the reasons for such choice. Trinity Episcopal Corp. v. Romney, D.C.N.Y., 387 F.Supp. 1044, 1084.

Item 27.      Comment -- It seems that it is a judge’s duty to provide “justice” and that “justice” is to "render every man his due", and that rendering “every man his due” is called “due process of law” and to constitute “due process of law” "there must be" an "appropriate decision-making body" "competent by its constitution" "To give such proceedings any validity."

Item 28.      Luff v. State (1927) 117 Ohio St. 102
@ p. 113 ;
     "Due process of law involves only the essential rights of notice and hearing, or opportunity to be heard before a competent tribunal."

Item 29.      Comment -- It seems that the highest court in Ohio agrees that the establishment of a "competent" court is "essential."

Item 30.     Randall v. Brigham (1868) 74 U.S. (7 Wall.) 523
@ p. 529 ;
     " At common law, whether a proceeding be criminal or civil or of a mixed nature, if it has the character of a judicial proceeding, some form of legal process, adapted to the particular case, must universally be instituted or laid as the foundation of the proceeding,notice of the same given, and the opportunity presented to the party to make his defense; and to be legally and regularly tried or heard err any judgment, or order of forfeiture, or deprivation of any freehold office, or any other legal right, can lawfully be affected or inflicted, for any purpose, by any tribunal whatsoever; and if, in any essential particular, the proceeding is irregular or defective, the conviction will not be by "due process of law," and the judgment will be a nullity."

Item 31.     Comment -- It seems that these words “due process of law” stem from our U.S. Constitution, AMENDMENT V.

32.      Constitution of the United States (1789), AMENDMENT V.
     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, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Effective 1791)

Item 33(a).       Comment -- It appears that the authorities agree that the establishment of a "competent" court is "essential" as a part of “due process of law” and that without "due process of law" both convictions (criminal conclusions to litigations) and judgments (civil conclusions to litigations) are null and void and held to be nothing.
(b)   In Black's Law Dictionary, Luff v. State, and Randall v. Brigham, we find that "due process of law" involves three essentials. These essential features are (1) notice, (2) opportunity to make a defense or express a grievance, and (3) that notice, and opportunity to make a defense or express a grievance must be made in the presence of, or, before a competent judicial official, presiding in a "court" authorized by law, to proceed to judgment, but no mention yet of how this is to be done.
(c)   To initiate a formal legal action, a judge, in some court, should be given notice that a controversy exists between two identified parties, that the controversy has now become a formal matter to be brought before him for adjudication, and that the plaintiff has given the defendant due process of law by service (notifying him) of the same.
(d) In examining the term "jurisdiction," as a whole and as it relates to "due process of law", it is important to note that in legal matters, the term "jurisdiction" is used in two different ways or senses, but first a fundamental definition.

Item 34.     Bouvier's Law Dictionary [stud. ed.] (1948) Banks-Baldwin, Pub.
@ p. 622 ;
JURISDICTION (Lat. jus, law, dicere, to say). The authority by which judicial officers take cognizance of and decide causes. 60 Vt. 618. The power to hear and determine a cause. 3 Ohio 494; 6 Pet. 709; 2 How. 338. The right of a judge to pronounce a sentence of the law on a case or issue before him, acquired through due process of law. It includes power to enforce the execution of what is decreed. 9 Johns. 389 [or 889]; 3 Metc.Mass. 460; Thach. 202.
     The right to adjudicate concerning the subject-matter in the given case. To constitute this there are three essentials : First, the court must have cognizance of the class of cases to which the one to be adjudicated belongs; second, the proper parties must be present; and third, the point decided upon must be, in substance and effect, within the issue; 1 Black, Judg. sec. 242; 55 Ark. 200.

Item 35.      Comment -- From Bouvier's Law Dictionary, we see the relationship between "jurisdiction" and "due process of law," but there is more.

Item 36.      State of Minnesota v. Hitchcock (1902) 185 U.S. 373
@ p. 382 ;
     Mr. Justice Brewer delivered the opinion of the court: A preliminary question is one of jurisdiction. It is true counsel for defendants did not raise the question, and evidently both parties desire that the court should ignore it and dispose of the case on the merits. But the silence of counsel does not waive the question, nor would the express consent of the parties give to this court a jurisdiction which was not warranted by the Constitution and laws. It is the duty of every court of its own motion to inquire into the matter, irrespective of the wishes of the parties, and be careful that it exercises no powers save those conferred by law. Consent may waive an objection so far as respects the person, but it cannot invest a court with a jurisdiction which it does not by law possess over the subject-matter.

Item 37.      Comment -- It appears that the Supreme Court, in Minnesota v. Hitchcock, has made a very strong statement, to the effect that every judge has a duty to ascertain that jurisdiction of a case has been properly conferred upon him by the power that authorized the existence of his court and by the plaintiff in his complaint.

Item 38.     Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 766 ;
Jurisdictional facts. Those matters of fact which must exist before the court can properly take jurisdiction of the particular case, as, that the defendant has been properly served with process, that the amount in controversy exceeds a certain sum, that the parties are citizens of different states, etc. Noble v. Union River Logging Railroad Co., 147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123.

Item 39.     Comment -- Here, we reach the crux of the matter. In Black's definition of "Jurisdictional facts," we find that there are some facts which must be made certain, by the presiding judicial official, "before" the judicial official can allow the matter to proceed to a discussion of the merits, or subject matter, of the case.

Item 40.      American and English Encyc. of Law (1888) Edward Thompson Company, Publishers, Northport, Long Island, N.Y. Vol. VI.
@ p. 41 ;
     "The constitutional provision which declares that no person can "be deprived of his property but by due course of law," secures to every person the right to have notice of any judicial proceeding by which his rights of property may be affected, and an opportunity to be heard, and to contest every material fact involved in the proceeding; and any law authorizing a judicial proceeding by which his rights of property might be divested or affected, without giving him notice and opportunity, would by unconstitutional. Wilburn v. McCalley, 63 Ala. 436."
@ p. 44 ;
     "So in People ex rel. Witherbee v. Supervisors, 74 N.Y. 234, it is said: 'Due process of law requires that a party shall be properly brought into court, and that he shall have an opportunity when there to prove any fact which, according to the constitution and usages of the common law, would be a protection to him or his property.
     Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense, to be heard by testimony or otherwise, and to have the right of controverting by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law.'."

Item 41.     Comment -- Certainly, "Jurisdictional facts" are the first "material fact which bears on the question of right in the matter involved," therefore, are the first thing that a presiding judicial official has a "duty" to consider and ascertain, as we see below in:

Item 42.      Robertson v. State (----) 10 N.E. 582
@ p. 583 ;
     "Two things are absolutely essential to the power of a court to decide a legal controversy, - jurisdiction of the subject matter, and jurisdiction of the person. Both must exist otherwise it is the imperative duty of the court to decline to do more than ascertain and declare that it has no power to examine or decide the merits of the controversy. Authors and courts agree upon this rudimentary principle of law."
@ p. 584 ;
     "The only course which a court can rightfully pursue is to decline to speak in all cases where it cannot speak by the law. It is not a matter of choice; it is a matter of duty. The duty is as solemn and imperative as any one among all the grave duties that rest upon the courts of the country. "

Item 43.       Comment -- In legal language, the judge is often called "the court" though, in strict definition, the judge is not really "the court", except in "statutory" cases.

Item 44.     14 American Jurisprudence, Section 54,
@ p. 5900 ;
     "In all matters of discretion, however, the judge must exercise a judicial discretion. Such judicial discretion is not a mere legal discretion, but a discretion in discovering the course prescribed by law; and when it is discovered, it is the duty of the court to follow it."

Item 45.     Comment -- Here in one paragraph we find that the terms "judge" and "court" are intermingled without distinction. This happens frequently in legal decisions, opinions and other legal text (see below). However:

Item 46.      Black's Law Dictionary, First Edition, 1891, West Pub. Co.
@ p. 287 ;
COURT. (in part) The judge, or the body of judges, presiding over a court. The words "court" and "judge," or "judges," are frequently used in our statutes as synonymous. When used with reference to orders made by the court or judge, they are to be so understood. 3 Ind. 239. The term "court" may be construed to mean the judges of the court, or to include the judges and jury, according to the connection and the object of its use. 19 Vt. 478.

Item 47.     Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 318 ;
Court. (in part) The words "court" and "judge," or "judges," are frequently used in statutes as synonymous. When used with reference to orders made by the court or judges, they are to be so understood.

Item 48(a).      Comment -- Also from State of Minnesota v. Hitchcock and 14 Am.Jur., we find that judges have "duties", one of which relates to "jurisdiction" and also relates to what a judge must do BEFORE he may allow a case to proceed. These are not the only "duties" which judges are required to perform.
(b)   The duty of judges is prominently and strictly dealt with in Article VI, Clause 2, of the U.S. Constitution:

Item 49.      Constitution of the United States (1789), AMENDMENT VI.
     This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the JUDGES in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Item 50.      Comment -- But what about "judicial immunity"?

Item 51.     Rabon v. Rowen Memorial Hospital, Inc. (1967) 152 S.E.1d 485, 493
@ p. 493 ;
     "There can be little doubt that immunity fosters neglect and breeds irresponsibility while liability promotes care and caution, which caution and care is owed by the government to it's people."

Item 52.     Comment -- Of course "judicial immunity" is a vast subject, but "Rabon" mentions "which caution and care is owed by the government to it's people", not forgetting that a "judge" is a "government agent."

Item 53.     Bouvier's Law Dictionary [stud. ed.] (1948) Banks-Baldwin, Pub.
@ p. 681 ;
LEGAL DUTY. That which the law requires to be done or forborne to a determinate person, or to the public at large, and is correlative to a right vested in such determinate person. 111 N.C. 94. See Duty.

Item 54.      Comment --"That which the law requires to be done or forborne", must be "done or forborne" by a "judge", as well as anyone else.

Item 55.     Boyd v. U.S. (1886) 116 U.S. 616
@ p. 635 ;
     "Constitutional provisions for the security of person and property should be liberally construed. It is the duty of the courts to be watchful of constitutional rights against any stealthy encroachments thereon."

Item 56.      Comment -- Apparently, "judges" have a "duty" to obey the Supreme Law of the Land. Possibly because every judge has pledged allegiance to the people who created the "supreme law of the land", and because every judge has sworn(oath of office) to uphold the "supreme law of the land".

Item 57.      Mugler v. Kansas (1887) 123 U.S. 623,
@ p. 661 ;
     "The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty-----indeed, are under a solemn duty---to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution."

Item 58.     Comment -- It appears that the rule, established by the First Judiciary Act of 1789, of "substance over form" has continued in effect.

Item 59.      Kintz v. Harriger (1919) 99 Ohio St. 240
@ p. 248 ;
     "...a court, which is charged first, last, and all the time with administering justice, based upon the truth..".
@ p. 250 ;
     "The whole duty of courts is to ascertain the facts, the truth in any given controversy, and then apply the fundamental principles of justice to that truth."

60. Comment -- In "Kintz" we find that "justice" is based on the truth and a "court"(judge) is bound by the truth, in his decisions.

Item 61.      State v. Hensley, 75 Ohio St. 255
@ p. 265, 266;
     "Much should be, and we think is, necessarily and properly left to the trial judge, who is obliged to insist upon the orderly conduct of the public business, and whose highest duty is the securing to the parties, the defendant as well as the state, a fair and impartial trial; but the people have a right to know what is being done in their courts, and free observation and the utmost freedom of discussion of the proceedings of public tribunals that is consistent with truth and decency tends to the public welfare."

Item 62.     Comment -- In "Hensley" we find that the judge has an "obigation" to insist upon the "orderly conduct" of proceedings before him, such as the "order conduct" of a plaintiff indicating a proper choice of jurisdiction in his initiating documentation. A choice that is in accord with the jurisdiction which the law has provided the judge before whom such initiating documentation has been brought.

Item 63.      Chicago Junction Case (1923) 264 U.S. 258
@ p. 265 ;
     "The provision for a hearing implies both the privilege of introducing evidence and duty of deciding in accordance with it. To refuse to consider evidence introduced or to make an essential finding without supporting evidence is arbitrary action."

Item 64.      Comment -- In the "Chicago Junction Case" we finde that a judge has a "duty" to decide according to the evidence, but that's not all:

Item 65.     14 American Jurisprudence, Section 54,
@ p. 5900 ;
     "In all matters of discretion, however, the judge must exercise a judicial discretion. Such judicial discretion is not a mere legal discretion, but a discretion in discovering the course prescribed by law; and when it is discovered, it is the duty of the court to follow it."

Item 66.      Comment -- Am. Jur. says that a judge has the "duty" to follow "the course prescribed by law". If "the course prescribed by law" is "a judicial proceeding according to the "course" of the common law", as mentioned in the Northwest Ordinance, then it must be the duty of a judge to follow it.

Item 67.      Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 763 ;
Judicis est judicare secondum allegata et probata. It is the duty of a judge to decide according to facts alleged and proved.

Item 68.      Comment -- Evidently, all judges, of any kind or shape whatsoever, of any state or of the United States, have a duty to, and must comply with the U.S. Constitution, in every official act or presence, as well as all the other duties mentioned, or not mentioned, here.

Item 69.      Magna Charta. {1215}
     45. We will not make any justices, constables, sheriffs, or bailiffs, unless they are such as know the law of the realm and mean duly to observe it.

Item 70.      Comment -- Still, the question remains; What should be done about a judge who fails to do his duty?

Item 71.      Rabon v. Rowen Memorial Hospital, Inc. (1967) 152 S.E.1d 485, 493
@ p. 493 ;
     "There can be little doubt that immunity fosters neglect and breeds irresponsibility while liability promotes care and caution, which caution and care is owed by the government to it's people."

Item 72.      Comment -- Evidently "Rabon" is saying that a judge (government agent) owes caution and care to those who pay his salary, who are also those to whom he has pledged his allegiance and whose rights he has sworn to protect, when he swore his oath of office.

Item 73.      Schorle v. City of Greenhills, 524 F.Supp. 821
@ p. 821 & 828 ;
     "When a judge knows he lacks jurisdiction, or acts in the face of clearly balanced statutes or case law expressly depriving him of jurisdiction, judicial immunity is lost."

Item 74.      Comment -- When the record shows "clearly balanced statutes or case law expressly depriving him (a judge) of jurisdiction", and such judge allows the action to proceed, "judicial immunity is lost". Can it be said any clearer? Well, let's try again:

Item 75.      Cite as "Six Carpenter's Case”, 77 English Reports 695; 8 Co.Rep. 146A
@ p. 146a ;
     The Six Carpenter's Case, Mich. 8 Jacobi 1. Resolved, --1. When an entry, authority, or license, is given to any one by law, and he abuses it, he shall be a trespasser ab intio;

Item 76.      Comment -- Coke' Reports go back to the 1600's. Obviously, this idea, this principle of "abuse of authority" and it's outcome, is not a new one. But let's have at it one more time.

Item 77.     Bradley v. Fisher (1871) 13 Wall. 335
@ p. 350, 1, 2 ;
     "In considering the case of Randall v. Brigham, 7 Wall. 523, .... we had occasion to consider at some length the liability of judicial officers to answer to a civil action for their judicial acts..... the court derived that as a general principle ....that with reference to judges of limited and inferior authority, it had been held that they were protected only when they acted within their jurisdiction...where there is clearly no jurisdiction over the subject matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no exercise is permissible."

Item 78.      Comment -- While "Bradley" mentions only "subject matter jurisdiction", undoubtedly, want of "personal jurisdiction", which is just as weighty a matter as want of "subject matter jurisdiction", or even more, demands just as much consideration, and is just as much evidence of usurpation.

Item 79.      Robertson v. State (1887) 10 N.E. 582 as per Elliot,C.J.
@ p. 583 ;
     "Two things are absolutely essential to the power of a court to decide a legal controversy, - jurisdiction of the subject matter, and jurisdiction of the person. Both must exist, otherwise it is the imperative duty of the court to decline to do more than ascertain and declare that it has no power to examine or decide the merits of the controversy. Authors and courts agree upon this rudimentary principle of law."

Item 80(a).     Summation of Part I. -- In this section we may see that "jurisdiction" is the power to adjudicate and that "a" jurisdiction is a specific level of courts.
(b)   Also we may see that, in exercising the power to adjudicate, a judge must ascertain "personal jurisdiction", that is power over a certain person, and "subject matter jurisdiction", which is power to adjudicate if (1) authority has been delegated to the level of courts in which a judge sits, over a class of cases to which a case brought before him belongs, and if (2) authority has been delegated to such judge over the nature of the cause of action.
(c)   Simply said, a judge has a duty to decide, before a litigation commences, if he has been delegated the authority to proceed in the system of law (more, infra) demanded by the plaintiff in the initiating documentation and also if he has the been lawfully delegated the authority to proceed to judgment on the merits of the case.
(d)   In all cases, a judge has a duty to know the law and the limitations of his delegated authority, and exercise his authority when he has it, or withdraw when he has none.
(e)   It appears that the proper exercise of the authority delegated to a judge is due process of law. For a judge to exercise authority which has not been delegated to him is to render such a judge liable for suit.

Part II.      OF JURISDICTION.

Item 81(a).      Comment -- Here in Part II., the discussion of "Jurisdiction" will continue, but this discussion will be limited to "judicial" jurisdictions.
(b) Where in Item's 15 to 18, above, the discussion of jurisdiction centered around the relationship that exists between "jurisdiction" and "due process of law", here the discussion will be directed at revealing the different layers of meaning in "jurisdiction" itself.
(c)   However, before examining the elements of "jurisdiction", the distinction between how a judicial "jurisdiction" is formed and what "jurisdiction" is, should be made.
(d) The formation of a judicial "jurisdiction" is completed by bringing together two things; first,substantive law, and second, adjective law.

Item 82.      Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 1281 ;
Substantive law. That part of law which creates, defines, and regulates rights, as opposed to "adjective or remedial law," which prescribes method of enforcing the rights or obtaining redress for their invasion. That which creates duties, rights and obligations, while "procedural or remedial law" prescribes methods of enforcement of rights or obtaining redress. Kilbreath v. Rudy, 16 Ohio St.2d 70, 242 N.E.2d 658, 660, 45 O.O.2d 370. The basic law of rights and duties (contract law, criminal law, tort law, law of wills, etc.) as opposed to procedural law (law of pleading, law of evidence, law of jurisdiction, etc.).

Item 83.      Comment -- The confusing overkill of definition in Black's Fifth can be simplified by saying that "substantive law" is the priniciple which is compared to the issues set out in the case, and defines the right and wrong of these issues, by such comparison.

Item 84.      Bouvier's Law Dictionary [stu. ed.] (1948) Banks-Baldwin, pub.
@ p. 1145 ;
SUBSTANTIVE LAW. One of the two kinds of rules constituting law, namely, those rules which give recognition to rights and duties, which rules are the very foundation and substance of law. These are static, immobile and lifeless until set in motion by genetic remedial rules embodied in adjective law(q.v.) Hicks, Mater.& Meth.Leg.Res. 35.
In Statute Law; All statutes of a general nature, i.e., all except those regulating administrative and court procedure. Id. 52.
In Case Law; The greater part of case law is substantive law, i.e., all except those decisions interpreting administrative regulations, codes of procedure and court rules. Id. 77.

Item 85(a).     Comment -- Here in Bouvier's L.D., we get a little more to the heart of it, and two divisions are acknowledged.
(b) First, "statute law" is noticed and "substantive law" is defined as all statutes except those statutes which regulate procedure, and second, all "case law" (reported case decisions), except those cases which interpret procedures and rules.

Item 86.      Black's Law Dictionary, Fifth edition, 1979, West Publishing Co.
@ p. 38 ;
Adjective law. The aggregate of rules of procedure or practice. As opposed to that body of law which the courts are established to administer (called "substantive law"), it means the rules according to which the substantive law is administered; e.g. Rules of Civil Procedure. That part of the law which provides a method for enforcing or maintainingg rights, or obtain-
[end p. 38 ]
@ p. 39 ;
ing redress for their invasion. Maurizi v. Western Coal & Mining Co., 321 Mo. 378, 11 S.W.2d 268, 272. Pertains to and prescribes practice, method, procedure or legal machinery by which substantive law is enforced or made effective. Ambrose v. State Dept. of Public Health and Welfare, Mo. App. 319 S.W.2d 271, 274.

Item 87.      Comment -- In Item 86, we find "adjective law" well defined, but "substantive law" still vague.

Item 88.      Bouvier's Law Dictionary [stu. ed.] (1948) Banks-Baldwin, pub.
@ p. 45 ;
ADJECTIVE LAW. One of the two kinds of rules constituting law, namely, those rules which provide remedies for infringement of rights and failure to perform duties. Those rules of procedure by which substantive law (q.v.) is given concrete application to persons and events. They emanate from both legislatures and courts. There is no clear line of division between substantive and adjective law. Hicks, Mater, & Meth. Leg. Res. 35.
In Statute Law: All statutes regulating administrative and court procedure. Id. 52.
In Case Law: All decisions interpreting administrative regulations, codes of procedure and court rules. Id. 77.

Item 89(a).      Comment -- Again, in Item 88, a confusing mix ending with noticing the division between "statute law" and "case law".
(b) It is easy to define "adjective law", because "adjective law" is merely that law which controls the systemative procedure of a judicial proceeding.
(c) "Substantive law" is hard to define because of the two divisions already mentioned; "statutory law" and "case law". But if we deal with one at a time, it is easier to understand.
(d)   In "statute law", the "substantive law" of a case is the "statute" which the case is based upon and said to be violated. In other words "statute law" is merely the will of the legislature, stated as the controlling principle by which judges are bound, in deciding whether or not the party accused is in violation of the will of the legislature.
(e)   At common law(case law), the purpose of the case is to decide right or wrong, which a jury accomplishes by moral consideration. In other words, the jury, by moral consideration, decides what the "substance", or "substantive law", of the case is, and, according to the "substance" found, the jury favors one party or the other.
(f)   In these two ways, and by these two methods, cases are decided, and now we may return to examining the legal term "jurisdiction".

Item 90.     Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 760 ;
Judicial authority. The power and authority appertaining to the office of a judge. Jurisdiction; the official right to hear and determine questions in controversy.

Item 91.      Comment -- Again looking at Black's 5th definition of "judicial authority", we see that "judicial authority" is "jurisdiction".

Item 92.      Bouvier's Law Dictionary [stud. ed.] (1948) Banks-Baldwin, Pub.
@ p. 622 ;
JURISDICTION (Lat. jus, law, dicere, to say).................. The right to adjudicate concerning the subject-matter in the given case. To constitute this there are three essentials : First, the court must have cognizance of the class of cases to which the one to be adjudicated belongs; second, the proper parties must be present; and third, the point decided upon must be, in substance and effect, within the issue; 1 Black, Judg. sec. 242; 55 Ark. 200.

Item 93(a).     Comment -- Looking again at Bouvier's definition of "jurisdiction", Item 91, we find that "jurisdiction" contains three parts:
(b)   First, the court must have cognizance of the class of cases to which the one to be adjudicated belongs;
(c) second, the proper parties must be present; and
(d) third, the point decided upon must be, in substance and effect, within the issue.

Item 94.     Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 767 ;
Jurisdiction of the subject matter. (in part) Power of a particular court to hear the type of case that is then before it. …………… Term refers to jurisdiction of court over class of cases to which particular case belongs ---- ; jurisdiction over the nature of the cause of action and relief sought, Mid-City Bank & Trust Co. v. Myers, 343 Pa. 465, 23 A.2d 420, 423; or the amount for which a court of limited jurisdiction is authorized to enter judgment. A court is without authority to adjudicate a matter over which it has no jurisdiction even though the court possesses jurisdiction over the parties to the litigation; e.g. a court of limited criminal jurisdiction has no power to try a murder indictment and its judgment therein would be void and of no effect because it lacks subject matter jurisdiction.

Item 95(a).      Comment -- In Item 94 we see that "jurisdiction", itself, contains three elements.
(b) Next, in Item 96, we see that "jurisdiction of the subject matter" contains two of the same elements as "jurisdiction", which are "class of cases" and "cause of action".
(c)   "Class of cases" refers to the abovementioned "statute law" and "common law". "Statute law" being one "class of cases", and "common law" being the other.
(d)   In "statute law", "cause of action" would be "violation of the will of the legislature", while in "common law" "cause of action" would be the injury done to a "right" of one of the parties. Jurisdiction over the "person" will dealt with next.

Item 96.      Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 767 ;
Jurisdiction over person. The legal power of the court to render a personal judgment against a party to an action or proceeding. Imperial v. Hardy, La. 302 So.2d 5, 7. See Jurisdiction in personam.

Item 97.      Comment -- Here we must be careful of verbal trickery, and take care to notice that "jurisdiction over the person of the party" is a "common law" expression, while "jurisdiction in personam" is an expression of the "equity" and sometimes the "statutory", jurisdictions.

Item 98.      Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 766 ;
Jurisdiction in personam(in part). Power which a court has over the defendant's person and which is required before a court can enter a personal or in personam judgment. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.

Item 99.      Comment -- Whether we are speaking of "common law" or "statutory law", in either case, the court must have authority to try both parties of a case, and that authority is required to be present upon the face of the record, BEFORE, as mentioned in Item 100, any "personal" OR "in personam" judgment can take effect.

Item 100.      16 Ohio Jurisprudence 3d
@ p. 42, Conflict of Laws ;
     "In any such case, the Ohio court must decide which system of law the legal issues will be referred to, before it can determine the rights of the parties."

Item 101(a).      Comment -- In Item 100,Conflict of Laws, we come to two issues:
(b) [1] The phrase "which system of law" - not laws - admits that there are two systems or more.
(c) [2] An Ohio court must determine the rights of the parties -- in equity, and the "equitable" statutory jurisdiction, there is nothing to be determined because - in equity, and the "equitable" statutory jurisdiction, the rights of the parties must be equal, or may be assumed to be equal, or the court cannot proceed, but it may proceed upon the presumption, if no challenge is made to the jurisdiction.
(d) [3] an Ohio court must determine the "which system of law", by presumption or by declared jurisdictional facts, - BEFORE - "it can determine the rights of the parties."

Item 102.      Sheldon's Lessee v. Newton (1854) 3 Ohio St. 494
as per Ranney, Judge,
@ p. 494 ;
     "The power to hear and determine a cause is jurisdiction; and it is coram judice whenever a case is presented, which brings this power into action. But before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against such person or thing sought to be charged or affected; that such complaint has been properly brought before the tribunal to answer the charge therein contained."

Item 103.     Comment -- "The power to hear and determine a cause is jurisdiction and it is coram judice whenever a case is presented, which brings this power into action....... "But before" (prior to any other issues, factors, or evidence, whatsoever, can be considered by the trial court) "this power"(the power of legal authority for a trial court to hear and determine a cause(jurisdiction)) "can be affirmed to exist," (to allow the case to proceed) "it must be made to appear" (must be shown upon the face of the record) "that the law" (provided either by the people in legislating a constitution providing common law or by a legislature creating a statute) "has given that tribunal" (the trial court) "capacity to entertain the complaint" (the complaint being the instrument that indicates authority for the trial court to proceed, by common law or by statute, and, shows that authority upon the face of the record) "against such person or thing sought to be charged or affected; that such complaint"(the complaint being the instrument that indicates authority for the trial court to proceed, by common law or by statute, and, shows that authority upon the face of the record)"has been properly brought before the tribunal"(the trial court) "to" (compell the defendant to) "answer the charge therein contained."

Item 104.     American & English Encyc. of Law (1888) John Houston Merrill, ed.; Edward Thompson Company, Publishers, Northport, Long Island, N.Y.
@ [Vol. XII] p. 282 ;
     "Where the jurisdiction of a court exercising a special statutory power has once attached, its judgment cannot be attacked collaterally for errors which would have been corrected by appeal or writ of error. Gibbons v. Bressler, 61 Ill. 110; Chicago B.& O. R. v. Chamberlain, 84 Ill. 333; Sheldon v. Newton, 3 Ohio St. 494; McGavock v. Bell, 3 Coldw.(Tenn.) 512."

Item 105(a).     Comment -- If such jurisdiction(a special statutory power) has once attached, the correction of jurisdictional errors must be corrected by appeal or writ of error.
(b)   Why this case says that jurisdictional errors cannot be corrected by writ of prohibition, or any of the other writs, such as certiorari, or mandamus, or even by moving for arrest of judgment and a new trial, is hard to say.
(c) How jurisdictional errors, in a statutory jurisdiction, could be corrected by anything but appeal or a new trial, is difficult to understand.
(d) It seems that if the statutory trial court had never been challenged on the issue of personal jurisdiction, statutory jurisdiction would be established, and the first step for correction should be to move for a new trial.
(e) If the motion for new trial was denied, then certiorari, prohibition, or writ of error would all be appropriate.

Item 106.     Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 766 ;
Jurisdiction in personam. Power which a court has over the defendant's person and which is required before a court can enter a personal or in personam judgment. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. It may be acquired by an act of the defendant within the jurisdiction under a law by which the defendant impliedly consents to the personal jurisdiction of the court, e.g. operation of a motor vehicle on the highways of state confers jurisdiction of operator and owner on courts of state. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091. A judgment in personam brings about a merger of the original cause of action into the judgment and thereafter the action is upon the judgment and not the original cause of action. See also In personam.

Item 107(a).     Comment -- In Black's Law Dictionary, @ p. 766, under the head of Jurisdiction in personam, we find a somewhat vague or ambiguous statement, which is:
(b) "It may be acquired by an act of the defendant within the jurisdiction under a law by which the defendant impliedly consents to the personal jurisdiction of the court, e.g. operation of a motor vehicle on the highways of state confers jurisdiction of operator and owner on courts of state. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091."
(c) This definition states that "It" (jurisdiction in personam) "may be acquired" in certain circumstances. However, "It" also "may" not "be acquired" in certain other circumstances (more discussion, infra).

Item 108.      Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 1030 ;
Personal jurisdiction. The power of a court over the person of a defendant in contrast to the jurisdiction of a court over a defendants property or his interest therein; in personam as opposed to in rem jurisdiction.

Item 109(a).      Summation -- Here, under the head of Part II. Jurisdiction, we find that “jurisdiction” is simply the power to adjudicate, or judge, the right or wrong of a dispute between two or more persons.
(b)   Before a judge can exercise judicial authority (jurisdiction), that judge must, without fail, examine the record, determine that the record contains all the necessary "jurisdictional facts" that show, to a certainty, that this judge in this case, is fully and lawfully authorized to settle the controversy declared by the plaintiff and that the record shows, to a certainty, that both parties are also within the confines of this judge's judicial authority.
(c) This commentary will not list all the elements that a judge must discover in a plaintiff's initiating documentation, to a certainty, before lawfully exercising his judicial authority, but will point out two things:
(d) (1) In a case founded upon a statute, to fail to make a jurisdictional objection,... and challenge,... is to invite being compelled into a statutory jurisdiction, where you will be judged in an arbitrary fashion, for the benefit of someone, or thing, which is more financially or politically powerful than you are, and
(e)   (2) To fail to show your unalienable right to a common law jurisdiction, and demand it, will surely place you in a statutory jurisdiction, where you will face arbitration, rather than trial.

Part III.     OF THE JURISDICTION OF COURTS.

Item 110(a).     Comment -- Here, in Part III, the term “courts”, and it’s relation to the term “jurisdiction” will be examined. As we have gathered from the pages above, the term “jurisdiction” is broadly used in several senses. (b) In discussing the relationship between “jurisdiction” and “courts”, it might be best to first define the term “courts” just as “jurisdiction” has already been defined.

Item 111.      Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 318 ;
Court. (in part) The person and suit of the sovereign; the place where the sovereign sojourns with his regal retinue, wherever that may be. The English The words "court" and "judge," or "judges," are frequently used in statutes as synonymous. When used with reference to orders made by the court or judges, they are to be so understood. The words "court" and "judge," or "judges," are frequently used in statutes as synonymous. When used with reference to orders made by the court or judges, they are to be so understood.
             General Classification
     Courts may be classified and divided according to several methods, the following being the more usual:
   Court of general jurisdiction. A court having unlimited trial jurisdiction, both civil and criminal, though its judgments and decrees are subject to appellate review.
   A superior court; a court having full jurisdiction within its own jurisdictional area.
   Court of limited jurisdiction. Court with jurisdiction over only certain types of matters; e.g. probate or juvenile court. When a court of general jurisdiction proceeds under a special statute, it is a "court of limited jurisdiction" for the purpose of that proceeding, and its jurisdiction must affirmatively appear.
   Court of original jurisdiction. Courts where actions are initiated and heard in first instance.
   Superior and inferior courts. The former being courts of general original jurisdiction in the first instance, and which exercise a control or supervision over a system of lower courts, either by appeal, error, or certiorari; the latter being courts of small or restricted jurisdiction, and subject to the review or correction of higher courts.
   Court of competent jurisdiction. One having power and authority of law at the time of acting to do the particular act. One having jurisdiction under the Constitution and /or laws to determine the question in controversy.

Item 112.     Black's Law Dictionary (1891), West Publishing Co.
@ p. 287 ;
COURT. (in part) In practice. An organ of the government, belonging to the judicial department, whose function is the application of the laws to controversies brought before it and the public administration of justice. A court may be more particularly described as an organized body with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers, viz. attorneys and counsel to present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to executes its commands, and secure due order in its proceedings. Burrill. The place where justice is judicially administered. Co.Litt. 58a; 3 Bl.Comm. 23.
     The term "court" may be construed to mean the judges of the court, or to include the judges and jury, according to the connection and the object of its use. 19 Vt. 478. Classification. Courts may be classified and divided according to several methods, the following being the more usual: Equity courts and law courts: the former being such as possess the jurisdiction of a chancellor, apply the rules and principles of chancery law, and follow the procedure in equity; the latter, such as have no equitable powers, but administer justice according to the rules and practice of the common law. As to the division of courts according to their jurisdiction, see Jurisdiction.

Item 113.     Comment -- Black's Law Dictionary, First Edition (1891),
@ p. 287 ;
COURT. (in part) states that “A court may be more particularly described as an organized body with defined powers,”. This point is crucial to the central issue of this commentary.

Item 114.      State ex rel. Hawke v. LeBlond 108 O.S. 126, 140 N.E. 510
@ p. 133 ;
     "A court is an incorporeal, political being, composed of one or more judges, who sit at fixed times and places, attended by proper officers, pursuant to lawful authority, for the administration of justice."

Item 115.     Mendelson ex rel. Cleveland v. Miller 11 O.N.P.(n.s.) 586
@ p. 588 ;
     "stating that to constitute a court there must be a judge or judges, and he or they must have a defined and delegated jurisdiction."

Item 116.      Comment -- Evidently, a legally constituted “court” “must have a defined and delegated jurisdiction”, but there is even more.

Item 117.     Randall v. Brigham (1868) 74 U.S. (7 Wall.) 523
@ p. 529 ;
     "At common law, whether a proceeding be criminal or civil or of a mixed nature, if it has the character of a judicial proceeding, some form of legal process, adapted to the particular case, must universally be instituted or laid as the foundation of the proceeding, notice of the same given, and the opportunity presented to the party to make his defense; and to be legally and regularly tried or heard err any judgment, or order of forfeiture, or deprivation of any freehold office, or any other legal right, can lawfully be affected or inflicted, for any purpose, by any tribunal whatsoever; and if, in any essential particular, the proceeding is irregular or defective, the conviction will not be by "due process of law," and the judgment will be a nullity."

Item 118(a).     Comment -- Evidently, a legally constituted “court” “must have a defined and delegated jurisdiction”, and, from “Randall v. Brigham”, “notice of the same given.” Now, supposing that the “notice” here spoken of, is the same “notice” as the “notice” referred to in speaking of “due process of law”. It seems that if “notice” of the “defined and delegated jurisdiction” of a court is not “given” to the defendant, “due process of law” fails, and the right to it is violated.
(b) From Items 111 & 112, definitions of “Court” in Black’s First and Black’s Fifth Law Dictionaries, we see that there are “courts” of several kinds of “jurisdictions.”
(c) Only two are within the scope of this discussion, and they are “courts of general jurisdiction” and “courts of special, limited and inferior jurisdiction.”

Item 119.     Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 616 ;
General jurisdiction. Such as extends to all controversies that may be brought before a court within the legal bounds of rights and remedies; as opposed to special or limited jurisdiction, which covers only a particular class of cases, or cases where the amount in controversy is below a prescribed sum, or which is subject to specific exceptions. The term "general" and "special," applied to jurisdiction, indicate the difference between a legal authority extending to the whole of a particular subject and one limited to a part; and, when applied to the terms of the court, the occasion upon which these powers can be respectively exercised. See also Jurisdiction.

Item 120.      Comment -- From Black's Law Dictionary, Fifth Edition, 1979, the definition of “General jurisdiction” touches upon some explanation of the term “special or limited jurisdictions”, and does explain something of the meaning of the term “general jurisdiction”, but seems to be more concerned with the terms “general” and “special”, than about a wider meaning of the whole term “General jurisdiction”. Perhaps the U.S. Supreme Court can clear up the meaning of these terms.

Item 121.     Galpin v. Page (1873) 18 Wall. 350
as per Mr. Justice Field
@ p. 365-366 ;
     "It is undoubtedly true that a superior court of general jurisdiction, proceeding within the general scope of its powers, is presumed to act rightly. All intendments of law in such cases are in favor of its acts. It is presumed to have jurisdiction to give the judgments it renders until the contrary appears. And this presumption embraces jurisdiction not only of the cause or subject matter of the action in which the judgment is given, but of the parties also. The former will generally appear from the character of the judgment, and will be determined by the law creating the court or prescribing its general powers. The latter should regularly appear by evidence in the record of service of process upon the defendant or his appearance in the action. But when the former exists the latter will be presumed. This is familiar law, and is asserted by all the adjudicated cases. The rule is different with respect to courts of special and limited authority; as to them there is no presumption of law in favor of their jurisdiction that must affirmatively appear by sufficient evidence or proper averment in the record, or their judgments will be void on their face.."
@ p. 370-371;
     " 'However high the authority to whom a special statutory power is delegated,' says Mr. Justice Coleridge, of the Queen's Bench, 'we must take care that in the exercise of it the facts giving jurisdiction plainly appear, and that the terms of the statute are complied with. This rule applies equally to an order of the Lord Chancellor as to any order of Petty Sessions.' 'A court of general jurisdiction,' says the Supreme Court of New Hampshire, 'may have special and summary powers, wholly derived from statutes, not according to the course of the common law, and which do not belong to it as a court of general jurisdiction. In such cases, its decisions must be regarded and treated like those of courts of limited and special jurisdiction. The jurisdiction in such cases, both as to the subject matter of the judgment, and as to the persons to be affected by it, must appear by the record; and everything will be presumed to be without the jurisdiction which does not distinctly appear to be within it.' "

Item 122(a).      Comment --Galpin v. Page clears the issue to a certainty. Courts of general jurisdiction are presumed to have the authority to entertain any kind of legal matter, except when a statute is presented as the substantive law of the case, and because of this presumption, no evidence of jurisdictional facts is necessary unless the jurisdictional facts are challenged.
(b)   This is not so for courts of special, limited or inferior jurisdiction, which must have present, on the face of the record, before adjudication can begin, sufficient evidence of jurisdictional facts to prove the authority of the court, or judge, to take cognizance of the matter.

Item 123.      Ruling Case Law, Vol. 7, 1915, The Lawyers Co-Operative Pub. Co., Rochester, New York. Cite as 7 R.C.L. (Courts) 969,
@ p. 1032-1033 ;
     "The fact that a court is one of general jurisdiction does not necessarily mean that it cannot be made a court of special and limited jurisdiction in some cases, but on the contrary a court of general jurisdiction may have special powers conferred upon it by a special statute; and, as these powers are not exercised according to the course of the common law, they do not belong to it as a court of general jurisdiction. In the exercise of such special statutory powers, a court of general jurisdiction will be regarded and treated as a court of limited and special jurisdiction.3
     Courts created by statute and not by the constitution are tribunals of special and limited jurisdiction only. They can exercise only such powers as are directly conferred on them by legislative enactment, and such as may be incidentally necessary to the execution of those powers; therefore, unless authority for the exercise of jurisdiction in a given case can be in the statutes, given either expressly or by necessary implication, their proceedings are void;4 for the rule is that such a court can only take recognizance of such matters as are clearly within its jurisdiction.5 It is generally considered that orphans', probate, and surrogate courts are courts of special and limited jurisdiction;6 -although instances are not lacking to sustain the statement that such courts have general jurisdiction.7 " F.N. 3. Watts v. Dull, 184 Ill. 86, 56 N.E. 303, 75 A.S.R. 141. F.N. 4. Smith v. Howard, 86 Me. 203, 29 Atl. 1008, 41 A.S.R. 537 F.N. 5. Cooper v. Chambers, 15 N.C. 261, 25 Am.Dec. 710. F.N. 6. (no Ohio or U.S. cites given). F.N. 7. Note: 78 Am.Dec. 374.

Item 124.      Comment -- Again, Ruling Case Law points out that courts of “general jurisdiction” can be turned into courts of "special, limited, or inferior jurisdiction” if they are exercising powers created by statute, in which case they become “courts of special limited or inferior jurisdiction”, and are treated as such, and therefore must be able to show their authority to adjudicate, on the face of the record, or accept that their judgments are nullities.

Item 125.      Boswell's lessee v. Otis (1850) 9 How. 336
as per Mr. Justice McLean.
@ p. 348 ;
     "The principle is admitted, that, where jurisdiction is acquired against the person by service of process or by a voluntary appearance, a court of general jurisdiction will settle the matter in controversy between the parties. But this principle does not apply to a special jurisdiction authorized by statute, though exercised by a court of general jurisdiction. The present case will illustrate this view."

Item 126(a).     Comment -- The U.S. Supreme Court, here in Boswell's lessee v. Otis , shows the same principles as Ruling Case Law and Galpin v. Page , but with emphasis on appearance, emphasizing that in a court of special, limited and inferior jurisdiction, service of process or voluntary appearance does not automatically grant jurisdiction.
(b)   Basically, courts of general jurisdiction can take cognizance of common law cases and courts of special, limited and inferior jurisdiction can’t. Courts of general jurisdiction(common law courts) can proceed upon the presumption that the necessary jurisdictional facts are present.
(c)   Courts of special, limited or inferior jurisdiction must have evidence of jurisdictional facts present upon the face of the record in order to be legally authorized to proceed.

Item 127.      Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 1253 ;
Special jurisdiction. A court authorized to take cognizance of only some few kinds of causes or proceedings expressly designated by statute is called a court of special or limited jurisdiction. Power of a court over only a limited type of case (e.g. Probate court) or over only property and not the person or the defendant.

Item 128.     Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 836 ;
Limited court. Where special authority, in derogation of common law, is conferred by statute on a court of general jurisdiction, it becomes an "inferior or limited court". For example, a probate court is a court of limited jurisdiction. Partlow v. Partlow, 246 Ala. 259, 20 So.2d 517, 518. See Limited or special jurisdiction.

Item 129.     Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 836 ;
Limited or special jurisdiction. Jurisdiction which is confined to particular causes, or which can be exercised only under the limitations and circumstances prescribed by the statute. A court's power over an action is governed generally by statute and some courts have limited authority or power and the limitation is in terms of the nature of the case (e.g. probate courts), or the amount in controversy, or the type of crime with which the defendant is charged or the age of the accused (e.g. juvenile courts). See also Limited court.

Item 130.      Black's Law Dictionary, Fifth Edition, 1979, West Pub. Co.
@ p. 700 ;
Inferior court. This term may denote any court subordinate to the chief appellate tribunal in the particular judicial system (e.g. trial court); but it is also commonly used as the designation of a court of special or statutory jurisdiction, whose record must show the existence and attaching of jurisdiction in any given case, in order to give presumptive validity to its judgment.

Item 131.      Comment --But what of courts of special, limited and inferior jurisdiction that exercise authority to adjudicate which they do not lawfully or legally have?

Item 132.      THE TECHNOLOGY OF LAW (1893) by WM. T. HUGHES, LL.B. of the Colorado Bar, ADAMS & CO., PUBLISHERS, DENVER, COLO.:
@ p. 75 ;
     "But if exercising a special or statutory power, then every presumption is against them, and they are viewed as inferior courts, Crepps v. Durden; Piper v. Pearson, ; "The latter, like ministerial officials, are presumed to know the law, and to keep within their jurisdiction, and are liable like all other agents, for acts done without authority. Ministerial officers are trespassers ab initio, for acts done in excess of authority. 6 Carpenters Case; Murray's Lessee, 18 How. 272."

Item 133.      Comment -- Tech of Law states it clearly. A court of general jurisdiction exercising a statutory power has every presumption against their authority to proceed. Inferior courts "are presumed to know the law, and keep within their jurisdiction. If they do not, they are "liable like all other agents, for acts done without authority".

Item 134.      Cite as "the Six Carpenter's Case”, 77 English Reports 695"; 8 Co.Rep. 146A.
@ p. 146A ;
     The Six Carpenter's Case Mich. 8 Jacobi 1. Resolved, --1. When an entry, authority, or license, is given to any one by law, and he abuses it, he shall be a trespasser ab intio;

Item 135.      Comment -- "6 Carpenter's Case" pulls no punches. "When an" "authority" "is given to any one by law, and he abuses it, he shall be a trespasser ab intio". There are no "trespassers" in the statutory jurisdiction, only in the common law jurisdiction.

Item 136.      U.S.Alkali Export Ass'n. v. U.S. (1945) 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554
@ p. 202 ;
     "The traditional use at common law and in the federal courts of writs of certiorari, mandamus, and prohibition, is to confine inferior courts to the exercise of their prescribed jurisdiction or to compel them to exercise their authority when it is their duty to do so."

Item 137.      Comment -- "U.S. Alkale etc." seems to say that the extraordinary writs are primarily for the purpose of confining "inferior courts to the exercise of their prescribed jurisdiction or to compel them to exercise their authority when it is their duty to do so."

Item 138.      State v. Bushong (1945) 109 N.E.2d 692, 92 Ohio App. 101, per Curiam.
@ p. 694 ;
     "No presumption prevails in favor of the jurisdiction of a court or tribunal of inferior, limited, or special jurisdiction and it is necessary, in order to sustain the proceedings of such court, that the record show affirmatively that the court had jurisdiction. 21 C.J.S., Courts, 105, p. 159; 14 American Jurisprudence, 251, Courts, 8. "

Item 139.      Comment -- "Inferior, etc. courts" must show upon the face of the record "that the court had jurisdiction", or what will happen?

Item 140.     State ex rel. Tollis v. Cuyahoga Cty., C.A. (1988) 40 O.S.3d 145 quoting State ex rel. Adams v. Gusweiler (1972) 285 N.E.2d 22
@ p. 148 ;
     "If an inferior court is without jurisdiction whatsoever to act, the availability or adequacy of a remedy...... to prevent the resulting injustice is immaterial to the exercise of supervisory jurisdiction of a superior court to prevent usurpation of jurisdiction by the inferior court."

Item 141.      Comment -- It seems that if an "inferior court" acts without jurisdiction ...... an "injustice" is done, and a superior court has any power it needs to "prevent the resulting injustice".

Item 142.      Roseman v. Village of Reminderville (1984) 470 N.E.2d 224, 14 O.App.3d 124, 14 O.B.R. 139.
@ p. 224 ;
     "Once jurisdiction was questioned, trial court was required to examine record and such other evidence necessary to make proper determination as to whether action had been properly commenced."

Item 143(a).     Comment -- The trial court is "required" to seek evidence and make a "proper" "determination" that the "action has been properly commenced".
(b)   This says to me that not only must the "tial court" examine the record and find "evidence" of "jurisdictional facts", the "trial court" is also "required" to "make a proper determination".
(c)   If a "proper" determination is made, it must be shown upon the face of the record, allowing the opportunity for the propriety of such determination to be challenged, by writ of error or collateral attack.

Item 144.      Sturgill v. Sturgill (1989) 572 N.E.2d 178, 61 O.App.3d 94.
@ p. 178 ;
     "If record does not show jurisdiction, objection to jurisdiction may be made at any time."

Item 145.      Comment -- If a "judicial determination" is made, but the "record does not show jurisdiction", then "objection to jurisdiction can be made at any time". Objection can be made prior to a "judicial determination" or after a "judicial determination".

Item 146.      Giachette v. Holmes (1984) 471 N.E.2d 165, 14 O.App.3d 306,
@ p. 165 ;
     "Where a defendant asserts that the court lacks personal jurisdiction the plaintiff has the burden to establish jurisdiction. Evidentiary hearing on motion to dismiss for lack of personal jurisdiction can be held pretrial, at trial or at a separate trial on that defense, and at hearing or trial, plaintiff bears burden of proving jurisdiction by preponderance of the evidence."

Item 147.      Comment -- Here, "Giachette" raises a prominent point. "Where a defendant asserts that the court lacks personal jurisdiction the plaintiff has the burden to establish jurisdiction", not the judge. Going further, it seems that there is a right to an "evidentiary hearing", and, at that evidentiary hearing, a right to have the plaintiff bear the "burden of proving jurisdiction by preponderance of the evidence."

Item 148(a).         Summation -- The purpose of this commentary is to show authority on all pertinent elements, so that the reader will come to understand that there is an alternative to lawyers and statute law, and that the alternative is common law.
(b) The whole point of this commentary is that if there is any chance of success, in any personal litigation, such as criminal charges or civil accusations, without the interference of arbitrary judgment, it lies in the common law jurisdiction.
(c) Rights, in their technical and legally absolute sense, cannot be demanded in the statutory jurisdiction, because statutes cannot confer technically absolute rights, such as the right to liberty, the right to justice or the right to be seen as a person who has the capacity to demand rights.
(d)   Only in the common law jurisdiction can absolute and unalienable rights be demanded and secured.

completed 6-7-06, by Mr. R.J. Bunn

email me at hu_r_U@sbcglobal.net

that is hu (underline not dash), r (underline not dash) u@ etc.

last update = 9-2-06