Part VII
The Court-ordered compulsive Examination
of Mr. Clinton in the Paula Jones Suit
(a Deposition and written Interrogatories)
was unconstitutional, being founded on
Supreme Court-made Rules of Proceeding
which violate the Constitution of the United States.
Introduction 1
Federal Rules of Civil Procedure 1
Rule 26. General Provisions Governing Discovery. 1
Rule 30. Depositions Upon Oral Examination. 2
Rule 33. Interrogatories to Parties. 2
Rule 37. Failure to Make or Cooperate in Discovery: Sanctions. 3
Federal Rules of Civil Procedure 5
Rule 1. Scope of Rules 5
Rule 2. One Form of Action 5
Rule 3. Commencement of Action 5
Essential Differences between Suits in law and in Equity,
as expounded by Blackstone (III, Ch. 27) 7
The 1789 Statute to establish the Judicial Courts
of the United States 27
Final Remarks 33
The Court-ordered compulsive Examination
of Mr. Clinton in the Paula Jones Suit
(a Deposition and written Interrogatories)
was unconstitutional, being founded on
Supreme Court-made Rules of Proceeding
which violate the Constitution of the United States.
The discovery proceeding which the District Court in the Paula Jones suit ordered Mr. Clinton to submit to, including the so-called "deposition" of Mr. Clinton that was taken on January 17,1998 in which Mr. Clinton was "examined" or interrogated under oath about any sexual relationships he may have had with "other women," and on the basis of which deposition the "independent counsel" K. Starr has in effect charged that Mr. Clinton lied under oath, was an illegal, unconstitutional court proceeding, apart from the illegal federal rules of evidence upon which extraneous questions about "sexual relations with other women" were permitted by the Court judge, Susan Wright (as demonstrated earlier). The compulsive examination of Mr. Clinton in the Paula Jones proceeding was ordered or permitted by the Court judge on the basis of Rule 26, 30, 33, and 37 of the "Federal Rules of Civil Procedure, which are quoted below in their essential parts.
Rule 26. General Provisions Governing Discovery.
(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.
(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any manner, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, descrip-tion, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Rule 30. Depositions Upon Oral Examination.
(a) When Depositions May be Taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. ...
(c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses [which, by section (a) may include a party] may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence.* The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer's direction and in the officer's presence, record the testimony of the witness.
{ * Rule 603 of the Federal Rules of Evidence. Oath or Affirmation. Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administred in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.}
Rule 33. Interrogatories to Parties.
(a) Availability; Procedure for Use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. ...
Each interrogatory shall be answered separately and full in writing under oath, ...
(b) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence.
Rule 37. Failure to Make or Cooperate in Discovery: Sanctions.
(a) Motion for Order Compelling Discovery. A Party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposition, to the court in the district where the deposition is being taken. ...
(2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 30 or 32, ... or a party fails to answer an interrogatory submitted under Rule 33, ... the discovering party may move for an order compelling an answer, ...
(3) Evasive or Incomplete Answer. For purposes of this subdivision n evasive or incomplete answer is t be treated as a failure to answer.
(b) Failure to Comply with Order.
(1) Sanctions by court in District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that court.
(2) Sanctions by Court in Which Action is Pending. If a party ... fails to obey an order to provide or permit discovery, ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others, the following: ...
(A) ... (B), ... (C) ...
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders, except an order to submit to a physical or mental examination.
"(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect."
The before cited federal rules of procedure, prescribing compulsive discovery upon the oath of the parties in civil actions in the United States Courts, violate Article III, Section 2 of the Constitution of the United States, to wit:
"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; ..."
This section expressly provides for the distinction between suits at law and suits in equity, which distinction, by its very definition that was perfectly established in the common law of Britain and in America at the time of the making of the Constitution, is defined in part by a difference in the mode of proof. By that established definition, proceedings in the courts of equity permitted the compulsive examination of the "parties" under oath, namely, the defendant, and the plaintiff as well; whereas, the proceedings in the courts of law did NOT allow compulsive examination of the parties under oath. This distinction was perfectly set down in Blackstone's Commentaries on the Laws of England, Book III, Chapter 4, "Of the Public Courts of Common Law and Equity," in Chapter 23 on "Trial by Jury" in the Courts of Common Law, and in Chapter 27, "Of the Proceedings in the Courts of Equity."
The Supreme Court of the United States, by the Federal Rules of Civil Procedure which the Court has made, has abolished the distinction between cases in law and cases in equity, by its Rule 1, 2, and 3, to wit:
Rule 1. Scope of Rules
These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the exception stated in Rule 81. They shall be construed to secure the just, speeding, and inexpensive determination of every action.
Rule 2. One Form of Action
There shall be one form of action to be known as "civil action.
Rule 3. Commencement of Action
A civil action is commenced by filing a complaint with the court.
Plainly, however, the People who ordained and established the Constitution in the years 1787-1788 intended, by their directive of Article III, Section 2 of the Constitution, that cases in law be one thing, and cases in equity be another, so that the differences in the manner of carrying the judicial power into execution between these two kinds of cases, that is, the differences between the forms of the judicial proceedings in suits at law and suits in equity, shall be maintained; and neither the Supreme Court, nor the Congress shall have the power to change this fundamental distinction. They shall have no power to defeat the Constitution!
In order to determine just what is the intended distinction between the form of the proceedings in suits at law and suits in equity, hence the meaning and requirements of the Constitution, we are bound by the natural law of honesty to consult again, Blackstone's Commentaries on the Laws of England; for as said before, it is perfectly clear, when comparing Blackstone's treatise on the laws of England, and the Constitution of the United States, that the former was used to write the latter, the common law in the United States and the United States Constitution being derived from the laws of England, as expounded by Blackstone so masterfully. Again, the Constitution contains no section defining its terms and expressions; and, therefore, we are bound to consult Blackstone, in order to determine the distinction between suits at law and suits in equity which the People who ordained and established the Constitution certainly understood, and, therefore, certainly intended. Blackstone's makes that distinction perfectly clear in Book Three on "Private Wrongs," which treats thoroughly the procedure in the courts of justice for obtaining redress of civil injuries, or private wrongs.
As Blackstone laid down, the courts of common law, as distinguished from courts of equity, are instituted to enable a person to obtain an adequate redress of every possible injury or infringement of right done to him, by "action or suit at law." This is the ordinary action in the courts of justice. A suit in equity, a different kind of suit, explained Blackstone, is to be a "rare and extraordinary" civil action. The difference in the jurisdictions of a court sitting as a court of law and a court of equity are not, said he, that a court of equity abates the rigor of the common law; or determines complaints according to the "spirit" of the law, rather than the strict letter; or takes cognizance of cases of fraud, accident, and trust; or is not bound by rules and precedents (in England the Courts were bound by the common law (the unwritten law). Blackstone rejected such definitions of the nature of equity jurisdiction. Said he, the "essential difference" between courts of law and courts of equity "principally consists in the different modes of administring justice in each: in the mode of proof, the mode of trial, and the mode of relief." (Book III, Ch. 27, p. 436)
Extracts from Blackstone's Commentaries on the Laws of England, Chapter 27, "Of the Proceedings in the Courts of Equity," given on the next page, discusse the essential differences.
1. And, first, as to the mode of proof. When facts, or their leading circumstances, rest only in the knowledge of the party, a court of equity applies itself to his conscience, and purges him upon oath with regard to the truth of the transaction; and, that being once discovered, the judgment is the same in equity as it would have been at law. But, for want of this discovery at law, the courts of equity have acquired a concurrent jurisdiction with every other court in all matters of account. ...
From the same fruitful source, the compulsive discovery upon oath, the courts of equity have acquired a jurisdiction over almost all matters of fraud; all matters in the private knowledge of the party, which, though concealed, are binding in conscience; and all judgments at law, obtained through such fraud or concealment. ...
2. As to the mode of trial. This is by interrogatories administred to the witnesses [including parties, since essential difference No. 1 permits compulsive examination of the parties], upon which their depositions are taken in writing, wherever they happen to reside. [In other words, in equity, the trial is not by jury.]
3. With respect to the mode of relief. The want of a more specific remedy, then can be obtained in the courts of law, gives a concurrent jurisdiction to a court of equity in a great variety of cases. To instance in executory agreements. A court of equity will compel them to be carried into strict execution, unless where it is improper or impossible, instead of giving damages for their non-performance. ... So, of waste, and other similar injuries, a court of equity takes a concurrent cognizance, in order to prevent them by injunction. Over questions that may be tried at law, in a great multiplicity of actions, a court of equity assumes a jurisdiction, to prevent the expense and vexation of endless litigations and suits. In various kinds of frauds it assumes a concurrent jurisdiction, not only for the sake of a discovery, but of a more extensive and specific relief: as by setting aside fraudulent deeds, ...
That the proceedings for suits at law allowed no compulsive examination of the defendant (nor the plaintiff) is not only to be collected from Blackstone's chapter 27 on the "Proceedings in the Courts of Equity," but more directly from the chapters 18 through 26, which describe in detail the manner or form of proceedings in the courts of law. In treating the kinds of evidence, or in other words, proofs, that are admissible at trial, including parol evidence (testimony of witnesses), there is no mention in Blackstone's Commentaries of a compulsive examination of the parties to the suit (neither the defendant nor the plaintiff), no compulsory process to compel the defendant to undergo an examination. Indeed, at the end of his chapter on the "Trial by Jury" (III, Ch.23), Blackstone specifically addressed the fact that the compulsive examination of the parties in the court proceedings for suits at law, are not permitted. He presents a commentary on what he views as a few defects in the trial by jury, as is administered in courts of law. Said Blackstone, after praising the trial by jury as the "best investigators of truth,"
Yet, after all, it must be owned, that the best and most effectual method to preserve and extend the trial by jury in practice, would be by endeavouring to remove all the defects, as well as to improve the advantages, incident to this mode of enquiry. ... The principal defects seem to be,
1. The want of a complete discovery by the oath of the parties. This each of them is now entitled to have, by going through the expense and circuity of a court of equity, and therefore it is sometimes had by consent, even in the courts of law. How far such a mode of compulsive examination is agreeable to the rights of mankind, and ought to be introduced in any country, may be a matter of curious discussion, but is foreign to our present enquires. It has long been introduced and established in our courts of equity, not to mention the civil law courts;(1) and it seems the height of judicial absurdity, that in the same cause, between the same parties, in the examination of the same facts, a discovery by the oath of the parties should be permitted on one side of Westminster-hall, and denied on the other: or that the judges of one and the same court should be bound by law to reject such a species of evidence, if attempted on a trial at bar; but, when sitting the next day as a court of equity, should be obliged to hear such examination read, and to found their decrees upon it. In short, common reason will tell us, that in the same country, governed by the same laws, such a mode of enquiry should be universally admitted, or else universally rejected. (III, Ch. 23, p. 382.)
For completeness, the other defects which seemed to Blackstone are "the want of a compulsive power for the production of books and papers belonging to the parties;" the want of powers to examine witnesses aborad, and to receive their depositions in writing; and a concern about juries laboring under local prejudices.
Now, there must have been a reason why compulsive examination of the parties in a civil suit was not permitted in suits at law, which is the ordinary action in courts of justice. Blackstone hints that such a mode of proof, as the compulsive examination of a party upon his oath, may not be "agreeable to the rights of mankind." He does not advocate its adoption for suits at law, but only raises a question of permitting it in equity but not in the courts of law. However, his chapter 27, written perhaps later in time, supplies a reason (or one reason) why the exceptional mode of proof, the compulsive examination of parties upon their oaths, is resorted to, specifically, "when facts, or their leading circumstances, rest only in the knowledge of the party." (III, Ch. 27, p. 437). Could this be the reason why a suit in equity is permitted in only "rare and extraordinary" cases?
But the clearest reason for not permitting the compulsive examination of parties in civil suits at law is, naturally enough, to be found in Blackstone's discussion on what constitutes legal evidence, given in his chapter on the "Trial by Jury," and specifically, in the paragraphs about parol evidence, or witnesses. According to Blackstone, parties to the suit have the right "to bring in unwilling witnesses," by compulsory process, which is "of excellent use in the thorough investigation of the truth." (III, Ch. 23, p. 369). This right is expressed by the following rule:
"All witnesses, that have the use of their reason, are to be received and examined, except such as are infamous,(2) or such as are interested in the event of the cause." (III, Ch. 23, p. 370)
Naturally, the parties of the suit, the plaintiff and the defendant, have an interest in the event of the cause; and, therefore, by the logical deduction, the parties to the suit are not to be examined, according to this rule.
But Blackstone is more to the point, when he explains the sufficiency of evidence to a jury of any single fact, when only one, but credible, witness, is there to testify to the fact upon oath; although the "civil law," referring to the Roman Law, universally always requires the testimony of two witnesses. Blackstone calls this rule of the universal civil law an "absurdity," because, said he, "our law considers that there are many transactions to which only one person is privy." He mentions that, in order to extricate itself out of this absurdity, the modern practice of the "civil law courts" (again, not referring specifically to the courts of England, but the courts that follow the Roman law), "has plunged itself into another" absurdity, by contriving the "ingenious device" of supplying the needed second witness by admitting "the party himself (plaintiff or defendant) to be examined upon his own behalf," who is administered "what is called the suppletory oath." However, this contrivance, in Blackstone's satire, acknowledges, he points out, the "superior reasonableness of the law of England," which, he says,
"permits one witness to be sufficient where no more are to be had; and, to avoid all temptations of perjury, lays it down as an invariable rule, that nemo testis esse debet in propria causa. (III, Ch. 23, p. 371)
{The latin expression: "No one ought to be a witness in his own cause."}
This quotation is extremely important; and so the whole paragraph from Blackstone is quoted below, lest one think it possible that the above discussion does not accurately represent that which Blackstone stated. Blackstone's remark on the sufficiency of one witness:
"One witness (if credible) is sufficient evidence to a jury of any single fact; though undoubtedly the concurrence of two or more corroborates the proof. Yet our law considers that there are many transactions to which only one person is privy; and therefore does not always demand the testimony of two, as the civil law universally requires. "Unius responsio testis ommnino non audiatur." To extricate itself out of which absurdity, the modern practice of the civil law courts has plunged itself into another [absurdity]. For, as they do not allow a less number than two witnesses to be plena probatio, they call the testimony of one, though never so clear and positive, semi-plena probatio only, on which no sentence can be founded. To make up therefore the necessary complement of witnesses, when they have one only to any single fact, they admit the party himself (plaintiff or defendant) to be examined in his own behalf; and administer to him what is called the suppletory oath; and, if his evidence happens to be in his own favour, this immediately converts the half proof into a whole one. By this ingenious device satisfying at once the forms of the Roman law, and acknowledging the superior reasonableness of the law of England: which permits one witness to be sufficient where no more are to be had; and, to avoid all temptations of perjury, lays it down as an invariable rule, that nemo testis esse debet in propria causa. (III, Ch. 23, p. 370-371)
{The latin expression, again: "No one ought to be a witness in his own cause."}
The reason for denying the compulsive examination of the parties upon their oath in civil actions at law is, therefore, made perfect clear by Blackstone in this part of his Commentaries, namely, "to avoid ALL temptations of perjury" !!!
Consider the wisdom and reasonableness of this "invariable rule." If the parties (plaintiff and defendant) may be compelled, by each other, to undergo examination under oath, nothing would be gained in the trial of the fact, if the plaintiff swore the fact, and the defendant swore the denial of the fact, the whole added proceeding would be a kind of repeat of the pleadings and the joining of the issue. All that then arises in such event is a perjury having been committed by one of the parties, which then opens up further, and a much more serious, contention of a criminal investigation and prosecution, and then punishment a prison sentence, hence more animosity and strife. So, the "superior reasonableness" of the law of England denies the compulsive examination of the parties upon their oaths in a civil suit at law, and for good reason: To avoid all temptations of perjury, and therefore, requires other methods to get at the truth, in order to arrest the contentions and quiet the animosity between neighbors, while still rendering justice; not to stir up contention, and inflame it with commissions of crimes of perjury, by laying snares for perjury. An object of good government is to promote and maintain the peace of the community, not to stir up strife.
There is another principle involved as well that dictates against the compulsive examination of the parties upon their oaths, which Blackstone also mentioned. Said he,
"For, at the common law, nemo tenebatur prodere seipsum; and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men." (IV, Ch. 22, p. 293)
The preceding demonstrates that Article II, Section 2 of the Constitution, which mandates the distinction between cases in law and in equity, was certainly intended by the People who ordained and established the Constitution to exclude the compulsive examination of the parties in ordinary suits in courts, namely, actions at law, and for good reason: to prevent the very kind of stirring up controversy and strife that has actually occurred in the case of Mr. Clinton and the Paula Jones suit, and probably every other law suit that was prosecuted in the Courts of the United States since the Supreme Court's "making" of the unconstitutional Federal Rules of Civil Procedure. In short, Mr. Clinton as a defendant in the suit, had rights to the protection of the Constitution against being deposed against his will, by the Article III, Section 2 provision for the maintenance of the distinction between cases in law and cases in equity.
That the People who ordained and established the Constitution of the United States intended the distinction is confirmed by Essay No. 83 of The Federalist. The subject addressed in that essay is the omission in the original Constitution of an express guaranty of the trial by jury in civil cases. The Federalist argued that the omission did not preclude the Congress from prescribing by law the trial by jury in suits at law; and further, that the trial by jury ought not to be required for the extraordinary cases which are appropriate to be heard and determined by a court of equity, as the court of equity by its very nature does not employ a jury for the enquiry of the facts. (Recall that in suits in equity, there is no trial by jury, according to Blackstone's Chapter 27, on "Proceedings in the Courts of Equity.") Said The Federalist in regards to the point about equity:
"My convictions are equally strong that great advantages result from the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. [A trial by jury is administered in a court of law, not in a court of equity.] The great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions(3) to general rules. To unite the jurisdiction of such cases with the ordinary jurisdiction must have a tendency to unsettle the general rules, and to subject every case that arises to a special determination; while a separation of the one from the other has the contrary effect of rendering one sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate that they are incompatible with the genius of trials by jury. They require often such long, deliberate, and critical investigations as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery [that is, in courts of equity, since Blackstone explained that the high court of chancery has equity jurisdiction] frequently comprehend a long train of minute and independent particulars.
It is true that the separation of the equity from the legal jurisdiction is peculiar to the English system of jurisprudence, which is the model that has been followed in several of the States. But it is equally true that the trial by jury has been unknown in every case in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this State, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode." (No. 83)
Thus, The Federalist proves that the distinction between cases in law and cases in equity shall be maintained for the jurisdiction of the Courts of the United States under the Constitution, and that the essential differences between the proceedings in the courts of law and in the courts of equity are those which Blackstone's laid down. One of those "essential differences" is in the "mode of trial." Trial by jury is not a characteristic of the proceedings in equity, according to Blackstone, just as The Federalist asserted. Therefore, we may safely assume that authors of The Federalist understood also that mode of proof is another difference between suits in equity and suits in law: specifically, the compulsive examination of the parties is permitted in the former but not in the latter.
The Federalist essay also argued that the Congress would be permitted to require the trial by jury in suits at law; so that the public ought not to suppose that the trial by jury in civil cases in law is abolished by the proposed Constitution. Said The Federalist: "A power to constitute courts is a power to prescribe the mode of trial; ..." However, the People chose not to rely on the Congress to protect the right of trial by jury, and so they amended the Constitution by the 7th Amendment,
"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
Observe that the 7th Amendment protects the right of trial by jury in suits at common law, not suits in equity. This fact is consistent with Blackstone's definition of one of the characteristic differences between cases in law and cases in equity: The trial by jury is not the mode of trial in cases in equity, said he. Therefore, the 7th Amendment corroborates the proof that the Constitution disallows compulsive examination of the parties upon their oaths in a civil suit at law, and that this type of suit, the action at law, is the ordinary mode of civil actions in the courts of justice.
The Supreme Court-made Federal Rules of Civil Procedure, under which President Clinton was ordered by the District Court Judge in the Paula Jones proceedings to submit to a deposition and interrogations about extraneous matters of "other women," a compulsive examination under oath, are, therefore, unconstitutional, since these rules have unconstitutionally abolished the distinction that is expressly mandated in the Constitution between cases in law and cases in equity, by prescribing only one form of action, denominated a "civil action," and prescribing compulsory discovery for all civil actions in the Courts of the United States. Whereas, the characteristic differences between the two kinds of cases, suits at law and suits in equity, which were established as the common law at the time of the making of the Constitution, and, therefore, the characteristics certainly intended by the People who ordained and established the Constitution, for there must be characteristic differences, as nothing in the Constitution was carelessly or casually put in, include the prohibition of compulsive examination of parties under oath in the proceedings of suits at law (the ordinary form of judicial proceedings), and for reasons: "to avoid all temptations of perjury." Such is the demonstrated tenor of the Constitution.
Moreover, the Federal Rules of Civil Procedure are doubly unconstitutional, having been made by the Supreme Court, which is a violation of the Constitution by the Court's assumption and usurpation of the power to make laws. By Article I, Section 1 and Section 8 of the Constitution, only the Congress is vested with the power to make laws which shall be necessary and proper for carrying into execution the judicial power, such as laws prescribing the manner and methods of proceedings in the Courts of the United States.
Consequently, Mr. Clinton's right to the protection of the Constitution of the United States in suits against him was violated by the District Court order compelling him to submit to examination under oath in a deposition and by written interrogatories as part of discovery. These discovery proceedings were illegal unconstitutional and, worse, an oppressive perjury snare. For the very purpose of the characteristic of the court proceedings in suits at law of not permitting the compulsive examination of parties was "to avoid all temptations of perjury." Hence, the interrogatories and deposition to which Mr. Clinton was compelled to submit may properly be characterized as a "perjury trap," and an illegal device of the Supreme Court's unconstitutional ruling making. This violation of the true constitutional law, together with the unconstitutional Federal Rules of Evidence, under which the District Court ordered Mr. Clinton to answer interrogations on the extraneous matter of "other women," but which rules of evidence were also unconstitutionally made by the Supreme Court, and which are certainly contrary to the tenor of the Constitution as to the true meaning of the judicial power that is vested in the Courts of the United States, as before demonstrated, make the interrogations of Mr.Clinton in the Paula Jones proceeding of the District Court, in his January 12, 1998 deposition and the written interrogatories served on him in that proceeding, illegal. Therefore, a criminal investigation and prosecution by the House of Representatives for any perjuries that Mr. Clinton may have committed with his answers to those illegal interrogations would be wrong, and therefore, not in support of the Constitution; for there can be no crime of perjury committed in an illegal compelled compulsive examination of Mr. Clinton. Certainly there can be no offence of criminal perjury arising out of the compulsive discovery proceeding against Mr. Clinton in the Paula Jones suit, since that proceeding and the line of questioning were both illegal, founding on unconstitutional rules of procedure and evidence.
Moreover, the judges of the Supreme Court, the Appeals Court, and the District Court, who all together were responsible for compelling Mr. Clinton to undergo the compulsive examination in the Paula Jones proceedings, did Mr. Clinton wrong by causing him to be deposed into his private life, since the Courts of the United States have no authority to pry as they have, and they did so on the basis of violations of the Constitution and usurpations of power, by their unconstitutional rules of procedure and unconstitutional rules of evidence. Under the laws of England when the Constitution was made, such behavior of judges would be a criminal offence of oppression, the oppressive abuse of the judicial power.
Plainly, the so-called Federal Rules of Evidence and the Federal Rules of Civil Procedure are laws of the utmost gravity; as we have observed the consequence of such "rules" in the case of Mr. Clinton and the Paula Jones litigation proceedings: namely, the spreading of the contention into a full-scale criminal investigation and prosecution of the President of the United States by an "independent counsel," which in turn has grown into a full fledged impeachment inquiry as is presently being conducted by the House of Representatives, the effect of these illegal rules of proceeding and evidence being nothing less than the attempted forcible removal of an elected President from office. We ought, therefore, to be concerned about the consequences of these rules for the ordinary citizen in litigation, or the "chilling" effect to scare citizens away from applying to the "courts of justice" for redress of injuries done to them, from prosecuting their rights by suits in the courts. These Supreme Court-made Rules affect nothing less than our property, our welfare and happiness, our liberty, our reputations, and even our lives. These Rules are every much laws, or rules of civil conduct, as are the laws (statutes passed by the Congress) that prescribe the number of Supreme Court judges, or the laws that constitute the inferior Courts, or the laws that established the salaries of the clerks of the Courts; and, therefore, the Congress has done wrong by making laws that unconstitutionally vest in the Supreme Court the power to make the rules of proceeding and rules of evidence in the Courts of the United States, an unconstitutional investiture of legislative powers in the judicial department of the Government. Article I, Section 1 of the Constitution directs that the legislative powers granted in the Constitution shall be vested in the Congress; and, therefore, no legislative powers shall be assumed by the Supreme Court, by the plain mandate of the Constitution.
The Question arises: Could the present Federal Rules of Civil Procedure and Federal Rules of Evidence have been made by the Congress? Article I, Section 8 of the Constitution vests in the Congress a number of specific powers, such as the powers to lay and collect taxes, to raise and support armies, &c, and including the power, "To constitute Tribunals inferior to the supreme Court," together with the carefully written grant of legislative power,
"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
Thus, the Congress is empowered to make necessary and proper laws for carrying into execution the judicial power that is vested by the Constitution in the Supreme Court and the inferior Courts of the United States (Art. III, Sec. 1), as well as the power to constitute tribunals inferior to the Supreme Court of Article I, Section 8. As this grant of legislative power plainly expresses, the Congress cannot make any laws which they think proper for carrying into execution the judicial power of the Government, but only those laws which shall be necessary and proper for carrying the judicial power into execution. The word shall makes the necessary and proper condition a directive, mandated by the People who ordained and established the Constitution. It is plain, therefore, that the People delegated to the Congress and the Courts of the United States certain powers, and the duty to exercise those powers so as to attain the objects of the Constitution, among them, particularly, "to establish Justice" (preamble), and generally, to support the Constitution (Article VI). As the Congress only is vested with the legislative powers of the United States Government, which power is also qualified and restricted, the Congress is duty bound to legislate upon the most careful study and deliberations, and make certain, that the Courts of the United States, and the Judges thereof, are bound down by proper laws prescribing the rules of evidence and rules of proceeding which the People who ordained and established the Constitution certainly intended as to what constitutes the proper rules of evidence and the proper rules of proceeding in the courts of justice.
There is also the Ninth Amendment of the Constitution to consider:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The judicial power affects the rights of the individuals; and certainly, among the rights which are not enumerated in the Constitution, is the right to obtain justice by applying to the Courts of the United States in cases that fall under the jurisdiction of the United States as prescribed in Article III. Justice cannot be dispensed with except by means of proper rules of evidence and proper rules of proceedings in the courts of justice. Certainly, the people when ordaining and establishing the Constitution understood that the judges would be bound down by the rules of proceeding and evidence that were customary from time immemorial and well established; for they had in their mind their understanding of the object, "to establish Justice." When providing for the Courts of the United States and vesting these with the judicial power, the People must have intended that the judicial power be that defined by the established legal customs, and not leave it to the judges to adopted any rules they please for adjudicating causes.
Plainly, rules of proceedings in the courts, including the rules of evidence, are necessary, if the determinations of a cause is not to depend on the arbitrary caprice of the judges. The judges must be bound down by rules of proceeding with suits; just as the judges are bound to determine the law arising upon the fact of a cause, and regulate their decisions by the law. Laws which prescribe the methods and forms of proceeding in the courts, call them "rules of procedure," and "rules of evidence," are laws, rules of civil conduct, prescribing what is right and prohibiting what is wrong, as rules prescribing the duties of the magistrate, and, necessary laws for carrying the judicial power into execution. But by the necessary and proper clause of Article I, Section 8, only the Congress is vested with the power to make the necessary laws for carrying into execution the judicial power, which necessary laws must also be proper laws.
But it may be asked: Would it not be proper, or was it at the time of the making of the Constitution regarded as proper, that the Supreme Court should make the rules of proceeding and rules of evidence of the Courts in general? Was it traditional that the supreme court makes the rules of evidence and procedure? Is this rule making power inherent in the "judicial power," or in a "supreme court"? The Tenth Amendment of the Constitution precludes the assumption of any power which is not delegated to the Government of the United States by the Constitution. So, either this rule-making power is inherent in the Supreme Court, or in the judicial power; or the Supreme Court has not this rule making power and cannot assume this power without violating the Tenth Amendment of the Constitution.
To determine the meaning of the judicial power in this regard, we are naturally obliged to consult again Blackstone's Commentaries on the Laws of England. It is found that no where in Blackstone's Commentaries is it said that the courts of judicature, or the supreme court of judicature, being the house of lords, makes the rules of proceeding in the courts of justice, nor the rules of evidence. Chapters 18 through 26 of the Commentaries treat the whole matter of the "modern method of practice" in the courts of judicature in England, also called the "rules of proceeding" (III, Ch,. 18, p. 271); and no where in these special chapters is it said that the rules of proceeding are made, amended, repealed, or expounded by any court of judicature. Indeed, to the contrary, Blackstone explained that the courts of judicature, which, he said, are vested with "the whole judicial power,"
"are the grand depositary of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament." (Book I, Ch. 7, p. 257-258, on the king's prerogative "of erecting courts of judicature")
Thus, the courts of judicature, even the supreme court of judicature, have no power to make the rules that regulate their jurisdiction, their authority to hear and determine causes, hence, including rules that regulate the proceedings in the courts and the evidence that may be admitted at trial. The rules have already been "established" as parts of the "legal customs" of the land, that receive their binding power by "long and immemorial usage." (Book I, Introd., §3, p. 64)
That is, the rules of proceeding in the courts of England, including the rules of evidence, formed a part of the "common law," or the unwritten laws of general custom throughout the kingdom. Said Blackstone,
"But with us at present the monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. However, I therefore stile these parts of our law leges non scriptae, because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom. (I, Introd., §3, p.63-64)
"The unwritten, or common, law, is properly distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, and form the common law, in it's stricter and more usual signification. 2. Particular customs ... of particular districts. 3. Certain particular laws; ... adopted and used by some particular courts, ...
I. As to general customs, or the common law, properly so called; this is that law, by which proceedings and determinations in the king's ordinary courts of justice are guided and directed. ...
Thus, for example, that there shall be four superior courts of record, the chancery, the king's bench, the common pleas, and the exchequer; --- that the eldest son alone is heir to his ancestor; --- that property may be acquired and transferred by writing; --- that a deed is of no validity unless sealed; ... that breaking the public peace is an offence, ... --- all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support. ...
Some have divided the common law into two principal grounds or foundations: 1. established customs; ... and 2. established rules and maxims; as, "the king can do no wrong," that "no man shall be bound to accuse himself," and the like [as no compulsive examination of the parties upon their oaths in a civil suit at law]. But I take these to be one and the same thing. For the authority of these maxims rests entirely upon general reception and usage; and the only method of proving, that this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it.
But here a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositary of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land." (I, Introd., §3, p. 67-69).
Recall the Blackstone called the leading rule of legal evidence as a "leading maxim;" thus, again, the courts are not to make rules of evidence, or the rules of proceeding; as these are part of the already established law of the land, called "maxims." In his Introduction "of the Laws of England," again Section 3, he mentions a dome-book used by the courts that contained, he supposes, "the principal maxims of the common law, the penalties for misdemeanors, and the forms of judicial proceedings, and that those rules were binding on the courts.
To make this more clear, Blackstone explained the judge of a court is:
"sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law. But in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. ...
The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust: for though their reason be not obvious at first, view, yet we owe such a deference to former times as not to suppose they acted wholly without consideration. ... " (I, Introd., § 3, p. 69-70)
From the foregoing principles as laid down in Blackstone's Commentaries, we find that the courts of judicature, including even the supreme Court (House of Lords), had not the power to make or amend the rules of proceeding and rules of evidence, but were "guided" in their "proceedings" (as well as "directed" in their "determinations") by the legal customs and maxims, hence the common law on the method and forms of proceeding and the law of evidence.
There is a further indication in Blackstone's Commentaries that a supreme court has not an inherent power to make the rules of proceeding and the rules of evidence for itself and the inferior courts. Blackstone's Book III on "Private Wrongs" mentions in several places different kinds of rules followed by the courts. These are specifically, with chapter and page references, are given in the following table:
1. rules of proceeding (ch.18, p. 271)
2. rules of evidence (ch. 23, p. 365-375, and ch. 27, p. 434)
3. rules of jurisdiction (book I, ch. 7, p. 258)
4. rules of property (ch. 27, p. 434)
5. rules of interpretation (ch. 27, p. 434)
6. rules of decision (ch. 27, p. 436)
7. rules of the court (ch. 27, p. 443)
8. standing rules of the court (ch. 21, p. 316)
9. rule or order of the court
upon the motion of the party (ch. 20, p. 304)
The mentioning of rules of the court is specially significant. In the chapter on the Issue and Demurrer in the Courts of Law (Book III, ch. 21, p. 316), Blackstone mentions the matter of the time limits for a defendant putting in his answer to a bill of complaint in a court of equity, or putting in his declaration, plea, or the like in a court of law (ch. 21, p. 316), where the time limits are prescribed "by the rules of the court." The expression "rules of the court" plainly means certain rules prescribed, that is, rules made by the court, as the setting of time limits, and as distinguished from the rules prescribed by law, as the rules of proceeding. Said Blackstone, in regard to the method of settling an issue if fact,
"... here the truth of the matters alleged must be solemnly examined in the channel prescribed by law. To which examination, of facts, the name of trial is usually confined, ..." (III, ch. 21, p. 324)
Blackstone does not say that the manner in which remedies for civil injuries are pursued in the courts are regulated by rules of the court, but by rules of proceeding, and rules of evidence, and so forth. Surely, a court must make certain rules for managing its work load, or business, as the rules on business hours, the paper forms of the written pleadings, and the like, which are necessary for the orderly conduct of the court's business. But the rules of proceeding are a different sort of rules. They are the very rules that define the office performed by the court. The rules of proceeding prescribe the methods and form of proceeding with a suit, or the manner in which a remedy for an injury complained of is pursued and applied (III, ch. 18, p. 270). The substantive rules, as the leading maxims on legal evidence, or the rule prohibiting compulsory discovery by the oath of the parties, are laws binding on the judges of the courts.
Another proof of this is Blackstone's statement that "the law of England lays it down an invariable rule" that no man ought to be a witness in his own cause. The law lays this rule down; a supreme court makes not this law, and may not repeal this law the judicial power not being the legislative power.
A court of judicature is an office of the Government. It is to perform a function or service for members of the public or society in regard to civil causes; and that service is defined by the law that erects the office, the service intended by the authority who erects the office. The courts are to dispense justice, an office to which a person who suffers a wrong done to him can apply and obtain from it an adequate remedy: an office by means of which a person can have justice and right done to him fully without denial, and speedily. As laid down in Blackstone's Commentaries, regarding the rights of individuals:
A third subordinate right of every Englishman is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administred therein. ... and therefore every subject, ... for injury done to him in bonis, in terris, vel persona, by any other subject, be he ecclesiastical or temporal without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay. (Book I, Chapter 1, "Of the absolute Rights of Individuals," p. 137-138.(
(By "subordinate" right, Blackstone meant "auxiliary subordinate rights" under the "absolute rights of individuals," namely, the rights of personal security, liberty, and property.) Elsewhere, Blackstone stated, in regards to the king's "capacity" as the fountain of justice (I, Ch. 7, p. 257):
"... Justice is not derived from the king, as from his free gift; but he is the steward of the public, to dispense it to whom it is due."
Thus, the courts of justice are the dispensers of justice: an office to which a person who has received an injury applies to get what is due him. Naturally, therefore, the court judges are not to be making the rules on the method and forms of proceeding in the courts for the administration of justice; for such rule making power would be the power to define the office, and to define the power, of the judge. Naturally, the people who ordained and established the Constitution did not intend that the courts of the United States shall have the power to determine actions at the discretion (arbitrary caprice) of the "judges" (a tyrannical power to terminate suits arbitrarily); but to the contrary, they intended manifestly that a court is an office to which a person who has been done wrong may apply for his remedy and get that remedy that is due him. Naturally, therefore, the People, or their representatives, the legislature, shall prescribe the rules for the execution of the judicial office, so that the judges will be bound down by the necessary and proper rules to ensure the execution of that office which the people intended to erect for the dispensing of the justice when the occasion of wrong doing arises.
The judicial power is not a power to lord over, supervise, manage, or administrate the society or the Government.. The Supreme Court is not the supreme governing body. The judges not governors. The judges of the United States Courts are not vested with kingly discretion power, as discretion power is the definition of the king's prerogative power. Instead, the judges are to perform the vital office of dispensing justice to those persons who suffer a wrong done to them, and who apply to the courts for redress of their injuries. They are by the Constitution "judicial officers" (Article IV).
Therefore, the judicial power, and the Supreme Court, could not have been intended by the People who ordained and established the Constitution as including or possessing inherent power, by any established tradition, of making and revising the rules of proceeding in the courts, including the rules of evidence. The Constitution (Article I, Section 8 and the Tenth Amendment) denies to the Supreme Court the power to make the rules of proceeding and rules of evidence, by vesting in the Congress only the power to make the laws which shall be necessary for carrying into execution the judicial power. For these rules were common law, established by "long and immemorial usage."
These principles also may guide us in determining whether or not the rules of proceeding and rules of evidence which the Congress might propose to make would be proper, according to the directive of the necessary and proper clause of Article I, Section 8 of the Constitution. For certainly, the People, when ordaining and establishing the Constitution, and more specifically, Article I, Section 8 and Article III pertaining to the judicial power and the Courts of the United States, intended that the proper methods and forms of proceeding in the courts of justice be those established methods and forms of "general immemorial custom," being supposed to have good reasons and considerations behind them.
To be sure, the Congress ought to have made the necessary laws prescribing the rules of proceeding and the rules of evidence in the Courts of the United States; but they are by the necessary and proper clause of Article I, Section 8, bound to make only those rules which are proper as well as necessary; and proper rules according to those rules or maxims which the people who ordained and established the Constitution certainly or evidently intended as proper. Certainly, they expressed no intention to discard the first of the "leading maxims" on legal evidence, namely, that evidence to be admitted shall be only that which demonstrates, makes clear, or ascertains the truth of the very fact in issue, and replace that foremost maxim with the absolute discretion rule of Rule 401 of the present Federal Rules of Civil Evidence. And the People by their Constitution expressed no intention to introduce in the proceedings of suits at law the "ingenious device" of compulsory discovery by the oath of the parties (compulsive examination of a defendant under oath, for instance), when that rigorous, disquieting species of evidence was prohibited in the courts of law by immemorial custom and "invariable rule" founded on "superior reasonableness," namely, "to avoid all temptations of perjury;" so that the controversies can be settled, and the contentions quieted.
Surely, it would be proper for Congress to prescribe by law those legal maxims for the Courts of the United States to follow, inasmuch as the People who ordained and established the Constitution most certainly intended that the judicial power, and the courts of the United States to be established under the Constitution, would be conducted by the long established rules of proceeding in the courts of justice that were so valued by them, that they provided in the Constitution for the judicial power and the courts of justice. This does not mean that the United States Courts must forever be bound to the maxims laid down in Blackstone's Commentaries on the Laws of England; for the Congress could at any time propose an amendment to the Constitution to vest in the Congress a specific power to prescribe proper rules of proceeding in the Courts that might deviate substantially from the rules that were evidently established as legal customs at the time of the making of the Constitution. But without such an amendment to the Constitution, the Congress ought to have acted, and still ought to act, to make proper laws prescribing the rules of proceeding in the Courts of the United States, including the rules of evidence, that would carry out the evident intentions of the People who ordained and established the Constitution as to the proper rules.
Another part of the Constitution reinforces this result. We see from Amendments IV through VII of the Constitution that the Constitution prescribed certain rules of proceeding in criminal and civil suits; for instance, that in all criminal prosecutions the accused shall enjoy the right to compulsory process for obtaining witnesses in his favor, and in suits at common law the right of trial by jury shall be preserved (when the value in controversy exceeds twenty dollars). The Ninth Amendment declares: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Surely, since the People in 1789 considered that they each as individuals in a civil action at law have the right to a trial by jury, as that species of trial was "insisted on as the principal bulwark of our liberties," said Blackstone's Commentaries on the Laws of England, and which was "looked upon as the glory of the 'English law;" where Blackstone added, "It is therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity, and himself, to maintain to the utmost of his power this valuable constitution in all it's rights; [i.e., this valuable constitution being the right of trial by jury in civil as well as criminal suits] ; ... this best preservative of English liberty" (III, Ch. 23, "Of the Trial by Jury," p. 381), then certainly, the People intended to maintain the valuable right to enjoy the protection of the other established leading maxims or rules of proceeding by means of which the right of trial by jury takes on its high value, such as the right not to be compelled as a defendant (or plaintiff) to undergo an examination under oath, and to maintain the right that the adversary not be allowed to introduce as evidence to a jury extraneous matters of facts, evidence which does not demonstrate, make clear, or ascertain the truth of the very fact in issue (the leading maxim of legal evidence, according to Blackstone's Commentaries).
The Federalist, No. 83, regarding Rules of Proceeding. Further proof that the Constitution does not confer to the Supreme Court any inherent power to make the rules of proceeding in the Courts of the United States is found in The Federalist essay, No. 83 in particular. This essay discusses the omission in the original Constitution of any guaranty of the trial by jury in civil cases (a defect which, of course, was later quickly remedied by the 7th Amendment). The Federalist argued that the omission did not bar the Congress from making a law prescribing this species of trial for certain kinds of civil causes. Said The Federalist, "A power to constitute courts is a power to prescribe the mode of trial." (No. 83) Of course, the Congress is vested with the power to constitute the Courts of the United States by Article III, Section 1 and Article I, Section 8 of the Constitution.
The Federalist does not say that the Supreme Court could make a rule requiring trial by jury in civil cases. If such rule making power were by immemorial custom an incident of the power of the supreme court of judicature, or an inherent power in such court, surely The Federalist would have cited such an incidental or inherent power. Indeed, in that same essay, No. 83 of The Federalist, is found a more definite proof that the Supreme Court does not possess such incidental power, or inherent right, to make the rules of proceeding in the Courts of the United States. When arguing that the mode of trial by jury in civil causes in the State courts will not be altered by the federal Constitution, The Federalist said:
"From these observations it must appear unquestionably true that trial by jury is in no case abolished by the proposed Constitution, and it is equally true that in those controversies between individuals in which the great body of the people are likely to be interested [alluding to the controversies between citizens of the same State, and therefore determined in the State courts], that institution [trial by jury] will remain precisely in the same situation in which it is placed by the State constitutions, and will be in no degree altered or influenced by the adoption of the plan under consideration. The foundation of this assertion is that the national judiciary will have no cognizance of them, and of course, they [suits in State courts] will remain determinable as heretofore by the State courts only, and in the manner which the State constitutions and laws prescribe." (No. 83)
Thus, the method or "manner" of determining controversies in the State Courts, meaning, the method and form of proceeding in a State court in civil suits, were recognized as being prescribed by either the Constitution of the State, or its laws, and not by any rule making power vested in the supreme court of the State by any legal custom of inherent right of the supreme court or otherwise be legal tradition.
The 1789 Statute to establish the Judicial Courts
of the United States
It is appropriate to examine the original law made by the Congress of the United States for supposedly carrying into execution the judicial power which the Constitution vests in the Courts. That law, "An Act to establish the Judicial Courts of the United States," enacted in 1789, established, among other things, the number of judges for the Supreme Court; it divided the United States into thirteen districts and established a District Court for each district, and divided these districts into three divisions or circuits and establish a Circuit Court for each. The law also prescribed a number of jurisdictions for the several courts, and a few certain rules of proceeding and rules of evidence. These are as follows:
(a) various powers to issues various writs (§13 and§14);
(b) a rule that "the trial of issues in fact in the circuit courts [also the same rule for the district courts] shall, in all suits, except those of equity, and of admiralty, and maritime jurisdiction, be by jury." (§§ 9 and 12)
(c) a rule giving the courts power in actions at law on motion, "to require parties to produce books and writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery; ..." (§. 15);
(d) a rule "That suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law." (§. 16); and
(e) a rule, "That the mode of proof by oral testimony and examination of witnesses in open court shall be the same in all the courts of the United States, as well in the trial of causes in equity and of admiralty and maritime jurisdiction, as of actions at common law. And when the testimony of any person shall be necessary in any civil cause depending in any district in any court of the United States, who shall live at a greater distance from the place of trial than one hundred miles, ... the deposition of such person may be taken de bene esse before any justice or judge of any of the courts of the United States, or before any chancellor, justice or judge of a supreme or superior court, ... of any of the United States, ... And every person deposing as aforesaid shall be carefully examined and cautioned, and sworn or affirmed to testify the whole truth, ..." (§. 30).
Observe that Section 30 of the law, regarding the mode of proof, does not specify just what is the mode of proof in "actions at common law." Section 30 seems to be that whatever is that rule, it shall be followed also in the proceedings in the courts of equity. Also, since the law differentiates between "parties" (in §. 15) and "witnesses" (§. 30), it is not clear that Section 30 includes the parties of a suit among those persons are "witnesses." The word "witness" implies a third person observing a fact.
Now to comment on these provisions of the 1789 law just mentioned. Except for the few specific rules prescribed therein, the 1789 Act did not prescribe the rules of evidence and the rules of proceeding for the Courts of the United States. Nor, on the hand, did the 1789 law declare that the customary rules of proceeding in the courts of justice, and the customary rules of evidence, as laid down by Blackstone's Commentaries on the Laws of England, shall be adopted by the United States Courts except as otherwise specifically provided by statute passed by the Congress. However, Section 17 of the 1789 Judicial Courts Act provided, but very ambiguously, for the Courts to make "all necessary rules for the orderly conducting of business" in the Courts. In its entirety, Section 17
declared:
"Sec. 17. And be it further enacted, That all the said courts of the United States shall have power to grant new trials, in cases where there has been a trial by jury for reasons for which new trials have usually been granted in the courts of law; and shall have power to impose and administer all necessary oaths or affirmations, and to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same; and to make and establish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States."
The question arises: Was the power "to make and establish all necessary rules for the orderly conducting business" in the Courts of the United States, which the 1789 law vested in "the said courts," intended by the Congress to include the power to make the rules of proceeding and the rules of evidence, such as a rule to permit compulsory discovery by the oath of the parties in suits at law? In this regard, it is important to note that the 1789 statute did maintain the distinction between cases in law and cases in equity (for example, Section 16 quoted above. However, that statute did not define the distinction in terms of the mode of proof, as the compulsory discovery by oath of the parties in suits in equity but not in suits at law.
Therefore, was this power vested in "the said courts," "to make and establish all necessary rules for the orderly conducting business in the said courts," a power vested in one of the said courts, and implicitly the Supreme Court, to adopt a radically different set of rules of evidence than those "leading maxims" which were set forth in Blackstone's Commentaries, so as to give the judge of a United States Court the discretion to admit any evidence which he thinks "tends" to make "more probable" the "existence" of a fact which he thinks is "of consequence" in the determination (or his determining) the suit; instead of binding the judge to the first of the Blackstone's leading maxims, to wit: Only that evidence is to be admitted to the jury "which demonstrates, makes clear, or ascertains the truth of the very fact in issue"? The 1789 Judicial Courts Act is not clear on this question! Did the Congress intend that the expression "rules for the orderly conducting of business in the said courts" be confined to regulations of such matters as the court's business hours and the time limits for filing briefs, and the like, and not be a general expression that includes rules of evidence, and rules of proceeding in the sense used in Blackstone's Commentaries, namely, rules prescribing the manner in which remedies are pursued and applied in suits in courts, or the methods and forms of proceedings for pursuing and obtaining remedies in the courts for injuries received?
Blackstone uses the expression the "business of the court" in only three places (that this Author could find): Book III, chapter 4, page 44; chapter 7, page 110; and chapter 27, page 430. In none of these instances are these expressions used to make clear that "the business in the courts" means the proceedings, or the method and forms of proceeding, which a person complaining of an injury done to him pursues the remedy due him. Two of the instances mentioned by Blackstone pertain to certain ministerial powers of certain courts, not to the judicial power, as the court of exchequer, which managed the royal revenue, besides being a court of equity and a court of law, and so it has a business of calling king's debtors to account, as a court of equity. Such is a "business in a court."
If the Congress in making the 1789 act intended the Courts to adopt or make the rules of proceeding and rules of evidence as they think proper, surely they, the Congress, ought to have been perfectly clear on this. As it is, the statute is as ambiguous as it is deficient. The 1789 law does not even assign to any particular specie of the several Courts, District, Circuit, or Supreme Court, the jurisdiction of civil cases in law or equity arising under the Constitution of the United States, or cases even arising under the laws of the United States. And yet, these two classes of cases are the leading two classes of cases which Article III, Section 2 of the Constitution expressly directs shall be the object of the judicial power. Article III, Section 2 is as follows:
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; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another States [affected by the 11th Amendment]; between Citizens of different States;, between Citizens of the same State claiming Lands under Grants of different States, and between a State,d or the citizens thereof, and foreign States, Citizens or Subjects [also affected by the 11th Amendment].
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; ...""
This defect in the 1789 Judicial Courts statute to assign jurisdiction of cases arising under the Constitution, is a failure of Congress to comply with the Constitution, Article III, Section 2. For as the jurisdiction of the District Court and the Circuit Courts are specified in that statute (§. 9 through §. 13), and since that specification does not extend to include cases "arising under this Constitution," nor even cases arising under the Laws of the United States, but since Article III, Section 2 directs that the judicial power shall extend to all cases of these two class, and Article III, Section 1 directs that the judicial power shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish, then it follows, by these directives of the Constitution considered alone, that only the Supreme Court can and shall take cognizance of all cases that arise under the Constitution or the laws of the United States. Therefore, the Supreme Court must have the original jurisdiction in such cases, under the 1789 law.
However, Article III, Section 2, also defines several kinds of cases for which the Supreme Court shall have original jurisdiction; but these are restricted to cases affecting ambassadors, other public ministers and consuls, and to those in which a State shall be a party. In all other cases, declares this section, the Supreme Court shall have appellate jurisdiction, but "with such exceptions, and under such Regulations as the Congress shall make". Observe that the specification of original jurisdiction for the Supreme Court in Article III, Section 2 of the Constitution does not include cases "arising under this Constitution" and cases arising under "the laws of the United States;" and consequently, by the Constitution, the Supreme Court is to have appellate jurisdiction for this leading two classes of cases, unless Congress makes a regulation to the contrary.
So, if the Congress in 1789 wanted the Supreme Court to have the jurisdiction of cases arising under the Constitution, for instance, they would have had to make a specific "regulation" to that effect. A silence in 1787 statute as to the jurisdiction among the three species of courts of the leading two classes of cases to which the judicial power shall extend, namely, cases arising under this Constitution, and arising under the laws of the United States, is an omission of a regulation, plainly. Therefore, the statute was defective. Nor does the 1789 statute assign to any of the three kinds of Courts the jurisdiction of controversies to which the United States is a defendant party; and yet Article III, Section declares unambiguously that the judicial power shall also extend "to controversies to which the United States shall be a Party." Again, a plain proof of the deficiency of the statute. Should the Congress not make the jurisdictions of the several courts clear, instead of having to be deduced by logical operations?
These deficiencies and ambiguities before mentioned reveal that the 1789 law was really an inadequate or substandard law, a act of Congress not of the high standard of workmanship which characterizes the making of the Constitution. The Constitution declares the object "to establish Justice," vests in the Supreme Court the judicial power, and vests in the Congress the power to make all laws which shall be necessary and proper for carrying into execution the judicial power. The judicial offices of the Supreme Court and the inferior Courts must be provided all the rules of proceeding and rules of evidence which are necessary and proper for defining these offices. The Congress ought to have taken care in that 1789 law establishing the Courts of the United States to provide not only for several Courts and the judges, but to bind the judges down to the rules of proceeding and rules of evidence that are adequate and proper (no ambiguities) for the execution of that judicial office which the People who ordained and established the Constitution intended to be erected; at least the leading maxims on the methods and forms of proceeding, and legal evidence, and ought not have left it for the Courts to adopt whatever rules they please at their discretion, thereby leaving to the judges the power to define the office which they acquire; if that is what the Congress intended by Section 17 of the 1789 statute.
Surely, the people who ordained and established the Constitution intended that the judicial power vested in the Courts of the United States be that defined by the rules of proceeding and rules of evidence which are laid down in Blackstone's Commentaries on the Laws of England, and that the Congress would enact into law for the United States those rules as the laws both necessary and proper, or such modified rules which as upon the most careful deliberation would likewise comply with the tenor of the Constitution, the intentions of the People who ordained and established the Constitution. Plainly, therefore, to give over this rule making power to the Courts, or the Supreme Court, is senseless as it is unconstitutional, an abdication of legislative responsibility for executing the Constitution of the United States.
Final Remarks
The Ninth and Tenth Amendments of the Constitution constrain the Congress to make those rules of proceeding and rules of evidence which carry out that which the People plainly intended for these judicial rules, namely, to follow the common law of England as laid down by Blackstone, except where the Constitution directs a more specific rule or restriction; as the right of trial by jury shall be preserved in suits at common law, thus barring the other species of trial mentioned in Blackstone's Commentaries, should a party invoke the right of trial by jury; and as the declared rights pertaining to criminal prosecution (the Fourth, Fifth, Sixth, and Eighth Amendments). There is no sign in the Constitution that Congress may disregard the foremost leading maxim on legal evidence, namely:
Evidence signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue, either on the one side or the other; and no evidence to any other point.
and replace this rule with the wholly arbitrary and oppressive Rule 401 of the Federal Rules of Evidence, rules made by the Supreme Court.
The People who made the Constitution plainly expected that the members of the Congress would put work into making proper laws. And part of knowing what is proper is to know the rules of evidence and rules of proceeding in the courts of justice that were established as the common law of the land before the Constitution was made. Blackstone's Commentaries on the Laws of England is the natural oracle of this knowledge. Was it proper to make rules of evidence that affect the determination of an suit on the basis of admitting "evidence" of such facts that need not be the fact in issue in the suit but facts thought by the judge to be of some "consequence" in deciding the action (which true consequence the judge only knows privately), and which evidence of such a fact do not have to demonstrate, or make clear, or ascertain the truth of the fact, to be "relevant" for discovery, and admissible at trial, but need only to have in the mind of the judge a tendency to make the "existence" of the fact more probable? Would it be a proper law, and a law made in pursuance of the Constitution, to make rules of procedure that abolish the distinction between cases in law and cases in equity, when Article III of the Constitution plainly mandates the distinction? What is a proper law that prescribes the rules of proceeding of cases in law and rules of proceeding for cases in equity?
Was it a proper law in view of this Article III mandate, to give the Supreme Court the power to disregard the mandated distinction and make rules giving plaintiffs the right and power of compulsory discovery by the oath of the defendant, the right to compel the defendant to submit to examinations, and by Rule 402 of the Rule of Evidence, to extend the questioning in such compulsive examination of the defendant to cover virtually any matter that the judge at his or her discretion regards to be of consequence (like a secret consequence of laying a perjury trap on the President, or making the case more exciting for the judge, hence more notoriety, hence promotion, or the like); when the evident reason for denying compulsory examination of parties in a suit at law was to avoid all temptations of perjury, so as to settle the controversy and quiet the contention, not to stir it strife?
Of course, the practice in the Courts of the United States has long been in running under the rules of procedure and rules of evidence which the Supreme Court has made, but without constitutional authority, the Supreme Court not being vested by the Constitution with a legislative power. But this fact of custom does not made these rules constitutional. It only proves that justice has not been administered by the Courts of the United States following the adoption of such rules (since the 1930's or so, or perhaps earlier?), and that the mandate of the People who made the Constitution for themselves and their posterity (the Author included) regarding the manner of the exercise of the judicial power has been disregarded by the Judges of the Courts of the United States, thereby depriving the citizens of their right to have in being that Office that was erected specially for dispensing justice to which they could apply and obtain justice in their disputes. To be sure, parties have won in the litigations in the United States Courts under the existing rules, and parties have lost (and suffered by the unconstitutional rules).
And, also, plaintiffs had not had their complains heard and determined, as a consequence of other rules of the unconstitutional Federal Rules of Civil Procedure, rules on the basis of which the Courts have dismissed suits arising under the Constitution of the United States without hearing and determining the complaint; despite the directive of Article II, Section 2 of the Constitution that the judicial power shall extend to all cases arising under this Constitution.(4) These are the oppressive effects of the existing Rules. The Courts of the United States have done this Author wrong on three occasions, discussed elsewhere. The history of life in the United States under the unconstitutional Government of the United States has really been miserable: wars all the time (unconstitutional made), military conscription of the youth (also unconstitutional); destruction of a quality living environment, danger of catastrophic accidents at nuclear power plants (licensed and promoted unconstitutionally), dangers of nuclear war; rampant crime; deaths and injuries on the roadways; 1.7 million persons presently in prisons and 3.9 million more convicted criminals out on parole; children shooting and killing people, including other children, and so on ad infinitum. The unconstitutional and oppressive laws of the Congress and rules of proceeding and rules of evidence made unconstitutional by the Supreme Court are presently being executed and applied in a concerted effort to put another person in prison, namely, a President of the United States, and to prepare for more devastating bombing attacks in foreign lands, and "covert actions" as well.
1. The expression "the civil law" denotes the Roman Law, as distinguished from the common law of England.
2. Infamous persons are, of course, persons convicted of such crimes as inflict a mark of perpetual infamy, as persons convicted of perjury.
3. * It is true that the principles by which that relief is governed are now
reduced to a regular system; but it is not the less true that they are in the
main applicable to special circumstances, which form exceptions to
general rules.
4. As, for instance, the United States Courts dismissing this Author's 1972 suit against
the Atomic Energy Commission, Webb v. AEC, which charged that the Atomic Energy
Act is unconstitutional, by vesting the Atomic Energy Commission with powers to
promote and license nuclear power plants: that the planned nuclear power plants will
endanger me and my family by potentials for harmful exposure to nuclear radiation from
catastrophic nuclear accidents. He charged that the 1954 Atomic Energy Act is
unconstitutional on the ground that the Constitution does not vest in the Congress an
indefinite power "to provide for the general welfare", that the commerce clause confers no
authority to promote manufacturing, as the generation of electricity, or technology for
non-military uses, and that the necessary and proper clause confers no "incidental
powers" upon which to claim a power to promote and licensing nuclear power plants.