Natalie Nichols battles Miami Beach vacation rental law

 

NATALIE NICHOLS BATTLES MIAMI BEACH VACATION RENTAL LAW
Arizona Gila Monsters v. Florida Litigation Alligators
October 19, 2018
By David Arthur Walters
Winter is nigh and it is time to plan your family vacation in the Sun. Florida naturally comes to mind because you have been there before or have heard about it and it is easy to get to. A weekend or even a week would be nice in Miami Beach.
Of course you do not want to cram your family into hotel rooms in crowded areas.  No problem, because thousands of homeowners in Florida are willing to rent their homes to guests. So you do some research online, and happen to find an ad by Natalie Nichols.
Natalie says she is willing to share her 3,030 square foot, $1.3 million home with dock and pool on Stillwater Drive, and she has great reviews. It is a good thing you called her early and made arrangements. Yes, she can help arrange for sailing. She wanted $1,000 per night. You finagled a week for $5,000.
The airport was a bit of a hassle, and then there was the traffic, yet it was not so bad compared to the jams you have suffered up north. Besides, it’s a sunny eighty-five degrees. Florida is a pretty place, indeed, and the kids are really excited.
Natalie greets you in front of the house. A police car pulls up as you are taking your luggage inside. A man in black gets out with a notebook and starts to ask you questions, like “How long have you rented this place?” Natalie interrupts him, at which time the muscle-bound cop in blue who has gotten out of the squad car barks at her to get off her property so the man in black can interrogate you.
The black outfit reminds you of pictures taken by your dad of the fascists during the war. Local merchants here call them “the mafia.” Your wife is worried. Your kids look on wide-eyed. “Dad, will they take us to jail?”
“What is going on?” you think. “Maybe Natalie does not own this place? Is she scamming people? Am I going to lose my deposit? No, that cannot be. I checked her and the property out online. She is a licensed real estate agent with good references.”
You cooperate because you have done nothing wrong. You are a stranger in a seemingly strange land, where cops can order people off their own property so they can question your guests even though that is unconstitutional thus contrary to official police policy. Besides, you regularly see videos on television of officers shooting people unnecessarily.
If you had said to the code enforcement officer, or even to the police officer, “I am an invited guest here, and that is all you need to know,” and Natalie had said “I do not have to answer your questions, so call my attorney,” that would have been the end of it if the officer had paid much attention at the police academy.
But no, you are innocent, unaware of what is going on because Natalie did not forewarn you, so you think you don’t need counsel, so you answered the questions. You said yes, you had rented the home, from that woman over there, Natalie, and you even showed the code enforcement officer a copy of the advertisement and the rental agreement, which he duly photographed. He kindly informed you that vacation rentals of dwelling units are not allowed in the residential neighborhood.
The code officer does not mention that the state preempted municipalities from prohibiting vacation rentals of dwelling units and regulating their duration. But the legislation included a negative grandfathering clause, allowing local agencies to disallow the longstanding practice in areas where it was prohibited prior to June 2011 although not enforced there except selectively for years, hence to do so would be inequitable. That would be Natalie’s residential neighborhood, although it was expressly permitted on nearby North Beach. You look on as he cites Natalie for harmlessly exercising her private property rights. He may advise you to get off the premises. 
If the government mafia had its way, Natalie would be fined from $20,000 to $100,000, depending on the number of offenses, and her business shut down for even advertising the property, plus $1,000 for lack of the tax certificate denied to her because the use is not permitted in the first place, plus $500 or imprisonment if the offense is repeated.
 
Mayor Dan Gelber, a former prosecutor, whose famous father, Seymour Gelber, said city officials had been corrupted for decades by the hotel and tourist industry, would, to add insult to injury, have the fines for the lack of a resort tax certificate ramped up to $3,000 on repetition of the offense, and he would like to see the likes of Natalie jailed if they persist, in effect wringing the necks of the geese that lay golden eggs instead of protecting them, something the real mafia would not do.
What? Is this Totalitaria?   
Members of the jet set may own several homes throughout the world, rent them out for a few months when they are not around, hence say they are “sharing” their homes, while others prefer not to share except with a custodian. Natalie called her rental “home sharing” because she actually lived there when it wss not rented out. You see, she packed a bag and stayed elsewhere until her guests departed. She had another home across the street, was fined $4,500 for advertising vacation rentals there, and sold it for $50,000 less than she bought it for. And then came the crackdown and she had to stop renting.
She still has her home and an old four-plex apartment building down the street, now allowed although newer apartment buildings were zoned out by imposition of single-family residential zoning. Long-term rentals to Floridians on Miami Beach can be a real problem. Her apartment building has been more than problematic, what with tenants trashing it and playing the eviction game, taking her sometimes seven months to get the bad ones out, leaving her at loss greatly exceeding the first and last month security deposit. She maintains that short-term vacation rentals attracts better clientele and lifts values in contrast to the riffraff South Florida landlords are confronted with.     
Home owners have been sharing their homes for decades to vacationers whether they had licenses to do so or not. Look, this is Florida, a swampy state. Everybody does it, everybody knows it, and nobody cares. In theory people who provide the public with lodging are supposed to have a state license. No doubt hundreds if not thousands of small renters do not have one, most of whom are unaware that there is any such state license, and that not having one is a misdemeanor. The politicians are making new laws every day. One day Popeye may show up at the dock and be greeted by the Tax Man and taxed just for being a stranger among other things.
The City of Miami Beach requires renters to have a local business tax receipt. To get it one should in theory be certified to use the property for rentals according to the kind of occupancy permitted by the particular zoning classification. And a resort tax certificate is needed to pay resort taxes on any rentals less than six months.
The city was glad to deposit resort taxes. Did it even bother to check to see if the payers had a state public lodging license?  Did officials carefully check to see if the short-term use is even allowed? No. This is not only Florida; it is South Florida, and, even better, the City of Miami Beach in Miami-Dade County, a lazy subtropical city first made famous by Capone and Lansky for its traditional corruption. 
Top-to-bottom municipal corruption included the non-random discriminatory enforcement of laws. Few code enforcement and law enforcement officers are corrupt, but they all belong to command organizations with directors and chiefs under the thumbs of the political power, the mayor and commission, so do not blame them for their lack of independence when their jobs are at stake for disobedience to the will of the power elite. The same goes for the local magistrate or “special master” who hears appeals of code enforcement cases. S/he is not a real judge, and has often been little more than a stooge. The City of Miami Beach Special Master “court,” which the state allows municipalities to have under the pretense of their being “people’s courts,” is a dependent arm of the ruling clique. Do not believe the pleas in federal court that policies are set higher up by the county state, so the city is not the policymaker hence cannot be responsible as the policymaker. And every official sued seems to have the sovereign immunity of kings from top to bottom, never mind the state and federal waiver of sovereign immunity.
If you are Miami Beach magnate Russell Galbut or his relative, you can throw raucous parties and violate the noise ordinances with impunity in single-family residential areas as well as in South Beach. Just scoff at the code enforcement officer and appeal the fine because the family’s fixer will show up in front of the magistrate and get the case dismissed. What we have here is socialism for the power elite. The Good Old Boys are favored comrades. The rest are shaken down. There is hell to pay for those who did not cooperate or cannot afford to hire fixers. The city’s departments are customarily referred to as RICO operations in arrest warrants and indictments.
Anyway, what went wrong? Nobody cared about how long someone was staying on Miami Beach before. We had plenty of rooms for them, and pretty cheap rooms at that, maybe right on the beach. A day, a week, a winter, twenty years: so what? A Mason and Dixon March 2017 poll in February had 94 percent of 625 registered voters South Floridians in favor of such home-sharing applications. 
One theory for the crackdown on Miami Beach vacation rentals places the cause on the intolerance of former Mayor Phil Levine, a self-made tourism media mogul and real estate developer whose thin-skinned egotism pales only in contrast to The Donald’s. Levine, a “self-made” man whose fortune was made from a close friendship with the wealthy Robins family and from hawking tours on cruise ships, was theoretically personally disturbed where he lived on Sunset Island by parties of three hundred people in rented houses. That, along with his relationship with the hotel industry, presumably fomented his animosity against Airbnb type of operations and anyone else involved in home sharing, including small fry like Natalie. Levine sent out a Trumpian tweet to Airbnb, “MB doesn’t want your selling!!!!”
Thus rankled at home, Levine used his dominance on the dais hence over the administration to crackdown on home sharing citywide. The vestiges of his rule remain on the commission to his day with commissioners who are not about to admit they became his overawed tools.
“King” Levine’s dictatorial manner was duly appreciated by lesser authoritarian types. Carolina Jones, Natalie’s neighborhood association president, was observed posting propaganda favorable to the hotel industry, and urging residents of the neighborhood to complain about short-term rentals even if they had not been bothered by them. Mind you that no statistical analysis was conducted to show a demonstrable link between short-term rentals and noise in single-family residential neighborhoods.
Levine  touted his close friendship with the Clintons, and spent millions out of pocket to seat himself and enough commissioners to render himself a de facto strong mayor in a city with a weak mayor charter. He was scandalized for selling the city to developers. His “Get It Done” right or wrong projects included personally enriching himself and his partner Scott Robins in the Sunset Harbour district. The city paid them $13 million for the air rights for a city garage over their shopping center at taxpayer expense. Millions were expended on raising the roads around the shopping center. The newly raised streets may have to be torn up to replace the crumbling century-old sewer system as a result of the expected increase of demand on that system due to development in the area. Jay Fink, the assistant director of public works, who is unable to produce an engineers’ certification for the sewers says, well, some cameras looked into the pipe and all was well, and we are doing an excellent job. Residents, however, say that is contrary to what was seen from above with the naked eye. However that may be, the partners bailed out of Sunset for $69 million before Levine ran for governor.  
In sum, Levine left Miami Beach, hopefully his stepping stone to the governorship and the White House, in shambles. The electorate got wise and his campaign was resoundingly defeated, temporarily deflating his ego to such an extent that he must be having difficulty re-inflating it even although narcissism is theoretically overcompensation for feelings of inferiority.
Selective enforcement is obvious in Miami Beach. The Miami Herald, the daily newspaper that championed Levine all along, does not cover discriminatory enforcement and the like because it serves as the propaganda organ or booster sheet for the ruling elite, its “authoritative news source,” at least until someone is arrested, and, pending that, it claims it was unaware of what was going on despite the floods of letters to the editor and reporters.
Natalie Nichols was blindsided for advertising a house, but not Mayor Levine’s pal and partner Scott Robins when he was advertising and renting out his unpermitted hotel on Espanola Way with inadequate fire sprinklers to tourists.  City officials including code enforcement brass were presented with multiple advertisements offering the hotel, which had been cited by the state but continued to operate. Code enforcement declined to act immediately, saying it was difficult to collect evidence of short term activity although they also had photos of tourists arriving with bags. It was finally cited after continuous pressure was put on officials. Robins took the case to the magistrate. Everything was eventually forgiven including several years of resort taxes and unpaid permitting fees for extensive unpermitted renovations for which there should have been double-permit fee fines. County appraisers were interested in the renovations because it was a unique building and the increased value might affect its taxes, and at that time Robins was pleading for a downward adjustment. Photographs of the renovations appeared in the advertisements.
Poor Natalie! She does not qualify for special treatment.
Mayor Levine knew all about Espanola Suites. And the mayor and code enforcement officers and the city attorney knew all about Rod Eisenberg’s historic Sadigo Apartment Hotel in the Collins Park neighborhood a few blocks away.  He had been giving the city a bad time from time to time for its discriminatory policies and negligence since the 90s. The legal mafia finally came down like gang busters on his three-story historic building although transient apartment rentals are zoned into his neighborhood, and his engineer said the structure was the safest in the area although it did not have fire sprinklers. Indeed, vacated and unmaintained buildings nearby, held for investment by developers friendly with city officials, were not secured by the city for years despite complaints from neighbors including Eisenberg. A vagrant firebug gleefully set some of them afire. Poor Eisenberg, who has spent hundreds of thousands of hard-earned dollars on lawyers, religiously believes Justice is nigh, and, like a fool, he thinks Justice will come in a courtroom despite the advice of a chief inspector, who wound up in prison for taking bribes, that he could not solve his kind of problem with the Sadigo in courts of law.     
A notorious case of party noise in a residential neighborhood involved the racket made at a ‘Great Gatsby’ party thrown in a residential mansion by Keith Menin, a relative of Russell Galbut, a mogul whose licensed hotels in hotel districts are resented by neighbors for their noise, which is regulated. When cited, Galbut &Co has its fixer go to the magistrate and get the cases dismissed. At Menin’s residential party, the code officer was addressed contemptuously; sure enough, the magistrate dismissed the case. The Good Old Boys are above the law or have purchased laws that legalize their misconduct.
Levine’s vanity made him a great scapegoat. Robins wisely keeps a low profile. Galbut’s power over politicians and vast swaths of prime real estate gets him cast as a local devil if not Satan himself. They are too blame for some development issues, yet there are economic and demographic factors at play, not only in Miami Beach but nationwide, the exception for Miami Beach being that it has always had a large population of transients running from the cold and sometimes the law. The population has exploded and there are more rich people to go around. More and more middleclass people are travelling. Real estate values rise with the demand for vacation homes; regular folk including the elderly are pushed out of their neighborhoods into ghettos.
Moreover, residents, particularly elderly residents, do not like having so many strangers around, especially when they make noise. Indeed, humans have an innate fear of strangers when they come too close; for much of human history, a man would as soon kill a stranger than look at him, and for good reasons. It should be no mystery to anthropologists why Ötzi the prototypical Copper Age ice man from Tuscany, whose corpse was found preserved up in the Alpines, was killed by locals: He was a stranger encroaching on their fat.

I have lived in dense tourist areas. I like tourists because they are generally in a better mood than locals. Yet what settled folk suffer, it is said, is “Tourist Pollution.”

So how does it feel to be a pollutant? Well, residents actually love your tax contributions provided that you stay in a hotel in the hotel district. And the hotel industry loves you even the more, and politicians do love hotel lobbyists. Wherefore let us raise fines for unauthorized transient rentals so high that renters will be driven out of business.

John Alemán, a wealthy Miami Beach Commissioner, excused the fines running from $20,000 to $100,000 as necessary because, she reportedly said, a beachside mansion might be let out for thousands of dollars per night, so lower fines would be a cost of doing business for some operators. Wherefore the penalty is reasonable. After all, people come to Miami Beach to party, to get drunk and make a racket, in other words, to cause a nuisance, as far as some residents are concerned. The government has a legitimate interest in curbing public nuisances, or so she adamantly thinks.
“Some” is the key word here. Perhaps John Alemán or her friends could get several thousand dollars a night letting out their fabulous mansions in a few choice spots to rich and famous visitors. An allegedly morally corrupt city attorney for Miami Beach has secretly allowed such a place to operate like a hotel providing nobody complains while small business entrepreneurs like Natalie are persecuted. A luxury vacation rental company called Villazo LLC was cited twice for running a private hotel operation on Palm Island. They fought the charges until 2015; city attorneys forged a secret deal that allowed them to continue. Real estate agent Gregory Mirmelli filed a complaint against the city for withholding the records on the deal and for its selective enforcement.
Natalie charged $1,000 a night for her 3,080 sq. ft. home on the water, yielding her around $20,000 per month on the average. Take away $10,000 per month for mortgage, taxes, insurance, and the cost for staying elsewhere, and that left her $10,000 profit before maintenance and depreciation of the structure. She had another home across the street, so double that during good times.
The hype in the expensive seminars is true, that is, if you are lucky, work hard, and enjoy the hassle, there is plenty of money to be made in buying, fixing up, renting, and selling homes. Of course timing can be the key to rental income and capital gains. We were Ground Zero for the Great Recession, and real estate values plummeted. Natalie persevered and managed to bail out of one home for $50,000 less than what she paid for it after the official harassment began in her neighborhood. She apparently struggles to keep the one she lives in. Without the rental revenue, she must cough up around $9,000 a month to pay the mortgage, taxes, insurance and maintenance.  She had an opportunity to sell it for a gain at one time, but she kept it because she thought she would need it to house her aging father before he went to the Better Place.  
Again, do transient rentals to vacationers increase nuisances such as noise in neighborhoods? That depends on the class of renters and the neighborhood, which might actually be improved by vacation rentals that tend to raise values and “drive out the riffraff.” Public records do not reveal noise complaints from Natalie’s neighbors. Since the city’s “mafia” started patrolling Stillwater Drive to harass unwitting vacationers carrying suitcases, owners are selling out, long term rents have fallen, and the quality of life has deteriorated accordingly as the neighborhood is becoming virtually ghettoized. 
Natalie argues that, if law enforcement would do its job, the public nuisances would diminish, and it is unfair to ban short-term rentals. She has a good point. Law enforcement finally did its job in Flamingo Park and elsewhere as the last wave of corruption crested. Landlords proceeded to jack up the rents. Carpetbag developers are redeveloping whole blocks of deserted buildings. The worst nuisances in the “chic” South Beach area have been the apartment and condominium buildings inhabited by undocumented migrant workers, remnants of the Mariela Exodus, welfare recipients, and itinerant dope dealers, for who knows how long. The nuisances included noise, rapes, muggings, shootings, and stabbings.
I almost became a “conservative” after being outraged at all hours while trying to get up at 6 AM to make an honest living. Noise can be torture to humans. A man in one town asked neighbors twice to quiet down, and they did not. He called the police, and they did not show. So he shot three people at the party. An official said that act was “abominable, reprehensible.” Another called him “an animal,” which was true because humans are rational animals with a long history of transience as hunter gatherers before they settled down. Animals will flee or fight when disturbed. Most of us civilized folk prefer to stay put and call the police. We feel we have a right to quiet enjoyment of the premises, so all hell may break out if the police do not show up.
Cash in hand was often sufficient background for South Beach rentals. That is what David Muhlrad, a prominent landlord, the city’s first code enforcement chief, relative of Russell Galbut, wanted when I arrived in South Beach—he said he could tell by my looks that I was good. I moved when the apartment building was converted to the Regent Hotel.
Some advertisements even trumpeted that no background checks were required. The lease might say six months and a day at so much a month, but that was not the real term, and no resort tax was paid, nor income taxes in many cases. Besides, many of the nuisances were created by long term inhabitants who stayed as long as they could get away with their normal misbehavior.   
One studio in a four-building apartment complex I moved into was used by two enterprising prostitutes to run a gambling den that served hotel and restaurant workers from 2 AM until noon, as tricks were turned in a car, outfitted with blankets and pillows and bearing a temporary license plate in the alley. Crack was available on demand as well as cases of beer. The studio upstairs was used as a drop for stolen goods and as a party den by a gang of teenagers. Next door was a dope dealer who was a master of disguises, so crazed by crack that he tried to wash the buildings down with a hose in the middle of the night, then went over to the police station and threw a bag of cocaine into the air. Another tenant in that four-studio building was down from Tampa working for Gotti’s son, running an illegal nightclub and selling weed. The police actually apologized when they were called and actually showed up. The landlord from Cuba, whose son was a county attorney, said apples would cost $5 if illegal aliens were banned. I refused to move because the issue was endemic to much of South Beach. Only the superrich in the towers managed to “keep the riffraff out.”
City officials were not unaware of those activities, and some profited from them. Jorge Gonzalez, the city manager, said there was corruption on the commission; he took steps to curb corruption: he was immediately terminated by the commission, paving the way for Phil Levine. There is no way of knowing how much short-term rentals contributed to the nuisances other than rising rents and property values, which is not a nuisance to people who can afford it.
I lived in a city where landlords downtown were required to submit lease information to the police department, not to curb short term rentals but to apprehend wanted criminals. Cages were erected periodically in the parking lot to hold prisoners as the police went from door to door arresting wanted people. Perhaps the city should collect lease information to determine the duration of rents as well as to apprehend wanted people. But some Miami Beach landlords do not require identification and prefer cash, so who can prove what their lease terms are?
Short-term rentals were eventually prohibited in the Flamingo Neighborhood apartment buildings, except for very few where the practice was grandfathered in by friendly commissioners, but the practice continues illegally. Still today tourists with suitcases can be seen entering the apartment buildings, often behind a real estate agent as their guide. The rule of thumb in Miami Beach has always been selective enforcement. The higher the fine, the greater the incentive for corruption.  
One unlicensed rental agent in Natalie’s area bragged that he paid off the code enforcement officers. If true that would hardly be surprising. Again and again, Miami Beach officials seem to have a tradition of being corrupted in one way or another, with waves of corruption mounting between FBI busts.
The FBI wanted to wire Natalie to sting a public works official who allegedly solicited bribes to expedite sewer work, but her lawyer advised her not to do it, and to pay him a fee, instead, to resolve her issue with the sewer line.
Well, there are always a few bad apples in every government, or so it is said, and we know the adage about the scum at the top. In fact, studies show that the bulk of corruption public and private is perpetrated by trusted managers and executives who have been around their organizations for some time. Former City Manager Jorge Gonzalez was blamed by “reformers” for the corruption. He claimed some of it was on the commission in the form of commissioners who served as fixers. Even the city attorney office has been suspected of aiding and abetting the corruption of its client, the ruling elite, as a sort of criminal defense lawyer for the commission.
Natalie must be out a million dollars in revenue since she was blindsided by the ordinance prohibiting vacation rentals in her neighborhood. She did not see it coming in Stillwater Drive.
When a 2010 ordinance was passed to prohibit short-term rentals in the Flamingo Park and Espanola Way residential neighborhood, few people were aware of what was coming. Tammy R. Tibbs, the operator of four apartment buildings in Flamingo, however, was made aware of the change. A grandfathering clause was written into the original ordinance to give him six months to get those buildings grandfathered if certain conditions were met, and of course he complied. A building at 751 Meridian Avenue was not on the grandfathering list. The owner, Playa de Oro, had its lawyer, Simon Ferro, a prominent zoning and government relation lawyer, and President Clinton’s former ambassador to Panama, get ahold of the city attorney, claiming that an error by the state prevented his client’s building from making the short list. Ad hoc legislation was arranged for that building.  Another owner claimed he had improper notice, but his petition was denied. Someday a diligent attorney may want to make a public record request for the list and examine the process to see if the Flamingo Park and Espanola Way neighborhoods were favored over Natalie’s neighborhood and why.
Natalie scoured the code when she got into hot water, but she could not find a restriction limiting occupation to more than six months and a day. She had been renting short term for years. And then the restriction magically appeared when she looked again. That is probably because the code is updated quarterly. Until then people were supposed subscribe to and scour the Miami Herald for notices of hearings, and then check back to see if an ordinance that interests them was passed into law. And when there was a crackdown on sidewalk cafes, flyers were handed out, and that was supposed to constitute sufficient notice. Agenda notices are emailed out without specifications, so you must take time off from work and martinis to scour the agendas.  If you do not have your nose in the rear end of city hall, you will lose track, even if you take the continuing education real estate courses.  Before the advent of the Levine Regime, all one had to do was enter key search terms in the universal search engine called “the fishbowl” to pull up links to everything including ordinances, as we do with Google search. Not anymore, not since “transparency” was improved and the software upgraded.
Pleas to make ordinances effective only when they are published online in the code, except for emergency legislation, have fallen on deaf ears. The city attorney, the mayor, the commissioners do not care about the inconvenience and efficiency because they do not have to care; after all, the city clerk and city attorney say it’s all perfectly legal.
We would be better off living in ancient Rome if we wanted to know the basic law. We could walk over to the civic center and find it inscribed on the stone.
City Clerk Rafael Granado, Esq. insists that notices of hearings satisfy the statutory requirements for notice of hearing. That may well be, but those notices do not satisfy the maxim maximus that, “An enactment that regulates persons or property and imposes a fine for violations must be a printed law and citizens must have notice that it is in effect before they can be subjected to regulation and fines.” To wit, the public must have notice not only of the possibility that prospective legislation is to be considered, but must also have notice that legislation under consideration was passed into law.
Alas, overall bad management, bad politics, bad distribution of power. As Hotelier Trump, who might have Natalie over to Mar-A-Lago to discuss this free enterprise issue, would tweet: BAD!!!
Miami Beach real estate looks like it is going to implode again, and that is not good for Natalie’s real estate sales business. The fear of flooding and Zika mosquitoes, and the recent crackdown on money laundering that involves a big chunk of the local market, has been dampening sales and hurting prices. I noticed on the Web that she sold a home recently. Great, yet it is not easy to get rich off commissions and an ancient four-plex apartment building. Maybe she will return to the medical industry with her entrepreneurial dream in shambles.
Lo and Behold! A knight in shining armor, the Goldwater Institute (1), has appeared to represent our lovely lady in distress in a suit against the City of Miami Beach. Sadly, there is nothing in it for her, unless the law is repealed and she still has a home to rent, except the satisfaction of helping others in like circumstances before it is too late for them too.  She will not recover from this suit the damages she suffered because the lawyers are unwilling to sue for damages. And hardly anyone wants to be in a class fighting city hall at this point.
Natalie is the poster girl for this nonprofit organization, founded to perpetuate the principles of the late Barry Goldwater. (2) The Complaint identifies her two remaining properties, her home and the four-plex apartment, as “Prototypical Miami Beach Short-term Rentals.” Vacation home rentals and transient apartment building transient rentals are, by state definition, birds of a different feather. The state preempted prohibition of vacation rentals after June 1, 2011, except where they were already prohibited as in her zone. Perhaps she could convert the apartment building to a condominium if the suit is won, and rent out each home. One day she might own over a thousand units and block them with Airbnb or its competitor. There would be nothing wrong with that except from the perspective of nearby hotels.
Better yet, why not rewrite the public lodging law for all categories to recognize the right of property owners to rent their premises for less than six months and a day provided certain equitable conditions are met? And fiercely enforce quality of life ordinances.
The fundamental abstract principle of Goldwater should be individual liberty as demonstrated in the progress of civilization and the liberal foundations of the United States of America. Of course there is considerable disagreement among people as to what that they should be liberated from and what liberties should therefore be conserved. In any case, free individuals should have a right to privacy and the right to make a living. To be themselves, they must not be alienated from the essential product of their labor, their private property.
Natalie Nichols’ property, claims the Goldwater Institute, is “prototypical.” It represents private property everywhere in the allegedly free world. It has been infringed on by government. She has a sacred right to do with it as she pleases provided she does no harm to others. As a matter of fact, she had not a single nuisance complaint from her neighbors. So her right, although it may seem rather moot now as a lost cause in the past, is everybody’s right, and is presently asserted in the circuit court Complaint brought by the Goldwater Institute (3), with a hearing scheduled for the end of October 2018.
Goldwater is bringing in its top guns. The Arizona carpetbaggers will be up against experienced local alligators in South Florida’s litigation swampland: Mssrs. Raul Aguila, Alexsander Boksner, and Carlton Fields Jordan& Burt.
More lies are told in Florida courts than anywhere else, and then under oath. Florida lawyers have naturally been exposed for lying in court as well, even forging citations to suit their needs among other unethical deeds including criminal fraud and embezzlement of trust funds. It would not surprise anyone if the malpractice were widespread since some of the lawyers exposed were considered to be the most upright lawyers in the state. Of course money is sacred to the integrated Florida Bar, the disciplinary arm of the state Supreme Court, so theft of client funds is likely to get a lawyer disbarred. Otherwise nothing or little is done but a slap on the wrist. The mission of the Florida Bar is more to protect the trade than to discipline it. (3)
In any case, the fly-by-night Arizona Goldwater litigators representing Natalie are formidable right-winged foes for the left-handed Florida swampland cavilers.   
“Matt Miller” Goldwater advertises, “is a Senior Attorney at the Goldwater Institute, where he leads the Institute’s free-speech litigation efforts. Before joining Goldwater, he served 9 years as the Managing Attorney of the Institute for Justice’s Texas Office, which he opened in 2008. There, he won important victories for free speech and economic liberty. Prior to that, he worked as a land-use attorney at a large Dallas law firm. Matt’s cases have been featured in the Wall Street Journal, Washington Post, Associated Press, Reuters, Dallas Morning News, and other outlets nationwide. Matt has testified by invitation on numerous occasions before state legislatures on many topics. In 2009, he led the effort to reform the Texas Constitution to better strengthen protections for private property owners.”
“Christina Sandefur,” Goldwater states, “is Executive Vice President at the Goldwater Institute. She also develops policies and litigates cases advancing healthcare freedom, free enterprise, private property rights, free speech, and taxpayer rights. Christina has won important victories for property rights in Arizona and works nationally to promote the Institute’s Private Property Rights Protection Act, a state-level reform that requires government to pay owners when regulations destroy property rights and reduce property values. She is also a co-drafter of the 40-state Right to Try initiative, now federal law, which protects terminally ill patients’ right to try safe investigational treatments that have been prescribed by their physician but are not yet FDA approved for market. Christina is the co-author of the book Cornerstone of Liberty: Private Property Rights in 21st Century America (2016). She is a frequent guest on national television and radio programs, has provided expert legal testimony to various legislative committees, and is a frequent speaker at conferences. She is a graduate of Michigan State University College of Law and Hillsdale College.”
Fort Lauderdale lawyers Joseph S. Van de Bogart and Katherine Van de Bogart of Van de Bogart Law will keep the Arizona lawyer in line with Florida customs.
The Goldwater suit would like to do away with the “home sharing” prohibition altogether on constitutional grounds. Yet Goldwater counsel must not have absolute confidence in that happening since it emphasizes in another count that the fines of $20,000 to $100,000 are excessive in comparison to a supposedly more reasonable state limitation on all types of local code violations, in Chapter 162 of the Statutes of Florida, of from $1,000 a day for the first offense and $5,000 every day for each repeated offense.
Apparently the Goldwater lawyers have not read the provision of the statute that allows any other means for enforcing codes: “162.13 Provisions of act supplemental.—It is the legislative intent of ss. 162.01-162.12 to provide an additional or supplemental means of obtaining compliance with local codes. Nothing contained in ss. 162.01-162.12 shall prohibit a local governing body from enforcing its codes by any other means.”
The excessive-fine strategy either betrays the misunderstanding of the lawyers or reveals the income class Goldwater prefers, and that is apparently not homeowners who occasionally use realtors or rent their homes themselves to supplement their income. Vacationers can now rent a modest two-bedroom home in Miami Beach for $200 a night. Midrange would be $1,000 a night for a large home on the Bay with a pool like Natalie’s home, or one that could house quite a few people. Luxury mansions go for $10,000 or more a night.
Fines of $5,000 per day might not deter persons who own and/or advertise multiple homes and engage in huge operations that allow them write off the cost of the fines since enforcement cannot keep up with all the violations. But the fines will definitely deter others, especially the small fry who are really sharing their home instead of running vast rental operations. Furthermore, we leave it to the lawyers to discover how renters can avoid criminal misdemeanor charges for the violations that are cited.
People rich and poor should have a right to make a living of their own choosing in a free country if that does not unduly infringe on the right of others to do the same. Perhaps Goldwater Institute or someone else should take this major question up with the federal government in federal court, perhaps invest a million dollars to take it all the way to the top if need be to see how the conservative majority feels about it.
Since 94% Floridians approve of short-term vacation rentals, and two-thirds approve of transient rentals of all types, and that piece of the pie is so large, one would expect a great public clamor over the spread of the creeping bureaucracy that enhances the monopolies of the power elite. Yes, Airbnb is lobbying for vacation rentals for its own sake. Small rentiers would benefit. Where is the class action lawsuit? Why are not the rentiers coming out of the woodwork, like Natalie, to raise hell about the irrational infringement of their private property rights? Where are the interveners in the lawsuits?
Why? Because many of them are still doing it and do not want to expose themselves to retaliation. After all, retaliation, the most primitive practice of justice, is still the rule in Miami Beach. It does not pay to fight city hall when city hall is at the beck and call of the hotel industry and other major industrial segments of its economy. Believe it or not, people who have spoken in favor of vacation rentals on Facebook have been placed under surveillance and interrogated.
Finally, Florida, especially South Florida, is not a place where people come to cooperate or to join or intervene in other people’s lawsuits. They cannot see that there is a common element in their respective beefs, the violation of their civil rights.  As Christina Sandefur’s husband Timothy posted in his April 21, 2005, Freeespace under ‘The all consuming hatred of man’:
 “The evils of the modern age—as well as of the ancient times—have come about because of the assault on the individual; because of the notion that people do not matter, and that they owe their lives to the service of others. The principle of the gulag is the principle that the individual belongs to the state and that the state has the right to do with them what it pleases.”
He repeats what he had said many times before, that the notion that we should give up our notions as individuals and become cogs in the social machine “is the defining trait of conservatism” in the context of archaic patriarchal rights. Wherefore it appears in 2005 that he would conserve the principle of individual freedom and therefore its basis in private property.
Well, many South Floridians, familiar with repressive regimes, are staunch individualists who normally resent government encroachment on their persons and property. What we have here now is creeping alligator socialism. It can outrun you if you get too close to the water, and will drag you in before you know it.  Act accordingly. 
xYx
(1) The Goldwater Institute has championed, among other rights, the right to choose charter schools, education vouchers, and experimental drugs; the right to use heavy machinery in environmentally sensitive areas; the right to separate orphaned Native American children from their tribal culture; the right of corporations to contribute to political candidates; the right to make hateful speeches anywhere on college campuses; the right to pay tipped, young, and temporary workers less than the minimum wage; the right not to pay police officers for overtime; the right of minors to smoke electric cigarettes; the right not to give veterans employment preferences; the right not to teach CPR in schools; the right not to expand Medicaid expansion under Obamacare; the right to be free from greenhouse gas emission regulation;  the right of lawyers  to speak harmfully, in a way that manifests bias or prejudice towards others. And now, in Miami Beach, the right fought for is the sacred right to rent homes for less than six months, and, if that is not granted by the court, the right to be free from fines so high that a profit after paying the fines is rendered impossible.
 
(2) Old folks remember Goldwater well. He was trounced by Johnson 486 to 52 electoral votes in 1964 in the most dismal showing of a major party in history, yet his extremism inflamed the alarming hatred and passion of his Southern base and advanced the “popular” strains of conservatism of Presidents Reagan and Trump. He was not a bigot himself, as even Martin Luther King observed, at least not openly, but he favored segregation and he opposed the Civil Rights Act of 1964 because, for one thing, it would to lead to quotas. A tiny minority of blacks voted for him, so it was said they must have been ignorant or illiterate. He championed the Forgotten American, “that dragooned and ignored individual who is either outside the organized pressure groups or who finds himself represented by organizations with whose policies he disagrees either in whole or in part.”  He was a Jewish Episcopalian popular among all sorts of disgruntled factions, including but not limited to Christians and the Klan. He believed it right to be extreme if the cause was righteous, although people disagree on what is right and are even willing to die for it. He thought military field commanders had authority to nuke enemies without a presidential order. The United States government should not interfere with the liberties of its own citizens, he said, but has a perfect right to interfere in the affairs of nations whose interests are incompatible with its own.
Goldwater may likened to the latest version of Trump, which changes from day to day, although Goldwater was not such a loose cannon and was keen on protecting the environment. He like Trump was declared insane by armchair psychiatrists, but he sued and won damages for defamation of his character.  He hated communism and said socialism was a social disease. What he called conservatism was mandatory in the face of the totalitarian menace if the United States with its “true religion” Judeo-Christian heritage was to remain the leader of antislavery forces in the world.
Creeping socialism, you see, eats up private capital as the government encroaches on and takes over activities, destroying incentives. Social security and other welfare programs are best gotten rid of. Small business entrepreneurs like Natalie are being ruined by socialist creeps, and the nation will be consequently impoverished. Perhaps in the end everyone will be gray and wind up with the mere 100 square feet of living space Lenin dreamed of for the USSR.
The bone of contention or the bottom line is obviously property. Real estate is said to be the basis of all wealth. Private ownership of property, starting with one’s own body, is the very cornerstone of freedom. Yes, there is a spiritual underground, but that is chaos, as was famously discovered when the cornerstone of the temple was raised and a man descended into the abyss below it.
Freedom and justice require order, and the right order, which is a “just order under God,” is based on property rights. Let the government keep its hands off our property. Government, said Goldwater, should be concerned with the things that are its proper province, such as defense of the country and the administration of justice. Government should not try to do things which are better done by individuals or voluntary associations.
City Attorneys Raul Aguila & Alexsander Boksner, Developer Rod Eisenberg

(3) Rod Eisenberg, a small businessman who owned the historic Sadigo Apartment Hotel on South Beach, testified before the City Commission that a city attorney defending the city against his civil rights suit suborned the perjury of material witness in order to get his case dismissed and obtain $600,000 in sanctions for assertions his lawyers made. Eisenberg’s guests in for an art show were tossed onto the street with their bags and he was arrested and jailed at the behest of the chief deputy city attorney, Alexsander Boksner, because Eisenberg was accommodating them at the Sadigo. He submitted a deposition of the material witness, a code enforcement inspector, under penalty of felony backed by a polygraph test to the mayor and commissioners and city manager, most of whom are lawyers, showing probable cause that the deputy city attorney may have committed a federal felony. And it would be a federal felony for those who had that knowledge to conspire to obstruct justice by not reporting it to law enforcement and the Florida Bar. Neither Boksner nor other knowledgeable officials responded to my inquiries about Eisenberg’s allegations. The Florida Bar had the information, said no file would be opened, and the district attorney was not responsive at all.
Eisenberg has most recently filed an independent action in federal court for recovery of the sanctions, and has alleged in his brief that the city attorneys frequently lied about transient rental laws. He will probably have to go higher than that, far away from South Florida, to obtain justice. Local, state, and federal are one ball of wax here.

 

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Appeal for Reform of The Supreme Court of The United States of America

John_Marshall_Park_-_statue

John Marshall, John Marshall Park, Washington, D.C.

AN APPEAL FOR REFORM OF THE SUPREME COURT OF THE UNITED STATES OF AMERICA

By David Arthur Walters

July 31, 2018

“The question is in truth between the people and the Supreme Court. We contend that the great constructive principle of our system is in the people of the states, and our opponents that it is in the Supreme Court. This is the sum total of the whole difference; and I hold him a shallow statesman ,who, after proper examination does not see, which is most in conformity to the genius of our system and the most effective and safe in its operation.” (1)

The ideologically stacked United States Supreme Court has made an elephant’s ass of itself at the behest of the Senate and the President by deciding cases on the basis of political ideology conveniently disguised as “conservative” to conserve and advance the interests of the power elite rather than on the substantive merits.

Vacancies on the court have as a matter of fact been openly filled by judges with opinions coinciding with the prejudices of Senators fearful for their own fortunes hence more interested in conserving and augmenting the fortunes of their wealthy patrons than in conserving the liberties of the people at large.

Indeed, the Republican majority in the Senate is proud to declare this berobed embodiment of its temporal prejudice in the highest court the font of the supreme law of the land for decades to come.

Thus are people in common embarrassed by the Senate, the hallowed vestige of the king’s noble court, now subservient to a fortunately temporary king widely believed to be a self-indulgent, impulsive fool, the very laughing stock of the free press he would fain silence for being the best friend of the people.

The Court, on the other hand, has also been crudely disgraced, having taken on the appearance of a long-term donkey court because of its stubborn tendency to self-preservation no matter how asinine its opinions, and a kangaroo court as well because it jumps to ideological conclusions before cases are tried.

This preposterous situation is largely the historical outcome of Alexander Hamilton’s federalist rhetoric; clauses in the Constitution providing for the tenure of justices on good behavior, and the supremacy of the Court; the 25th Section of the 1789 Judiciary Act; and the evolved “judicial review” opinions of a Court that elevated itself over the executive and legislative branches of the national government as well as over the people of the several states, which were sovereign only in rebellion after the Articles of Confederation were replaced with a national Constitution, an inviolable contract in contrast to the former league.

Wherefore a judicial aristocracy, now numbering nine unelected justices, presides over the “living constitution” of the United States. Five justices, to the horror of the other four, are presently committed to politically and culturally regressive policies instead of traditional constructive progress, not to mention the common sense of justice that ancient sages thought every sane adult should have or else be banished from civilization.

No amendment of the Constitution is necessary to remedy the usurpation of power attributed to “judicial review,” for the good reason that judicial review is not one of the powers enumerated in the Constitution in the first place. The Constitution definitely provides for limitations or exclusions from the Supreme Court’s appellate jurisdiction:

“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.”

All that is required to remedy the unconstitutional construction is a judiciary act of Congress, the legitimate legislative body representing the sovereign people, amending or replacing the 1789 Judiciary Act.

The wheel does not need to be reinvented inasmuch as this one has taken us a long way and we have learned a great deal along the journey although we are now at an absurd impasse where we have good reason to ridicule the Supreme Court for making a complete ass of itself under the influence of cracked pots in Congress. Those pots need to be mended and the judiciary reformed. Congress is in fact the sovereign lawmaking institution, and it should form a Constitutional Committee to review the judiciary, compare it with the systems of other advanced nations, and recommend reforms.

For example, the Constitutional Committee might recommend the appointment of a permanent independent Constitutional Council of rotating scholars and laypersons to review all bills for their constitutionality before they are passed into law.

The concept of the judicial review of constitutionality of bills after they are passed into law is rather peculiar to the United States of America, an institution without which, given the milieu of those formative days, we might have no Union.

Lawyers naturally reverence the court of final resort, which should not be mocked as it is now for its usurpation of power. Nevertheless, definite restraints should be put on the appellate power of their hallowed Court. That does not mean it should be completely emasculated. There would remain some cases for the reformed Supreme Court to review, chosen according to the common sense principle laid down by Sir Edward Coke in Dr. Bonham’s case in England, a principle sometimes cited by scholars as a precedent for the development of judicial review in the United States.

“[I]t appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.”

Justice Coke did not have to be one of the most profound doctors of jurisprudence or have infinite wisdom to see how ridiculous was the Act of 14 H.S. requiring physicians practicing in London to be examined and obtain a license from the College of London even though Dr. Bonham happened to have gotten his doctorate degree from Justice Coke’s own alma mater, the University of Cambridge.

Since then other judges opined that judges existed to decide cases of law, and to do that they must interpret the law, thus adding common law to statutory law. That is to say that judges must say what the law is in order to apply it. Judges in the American colonies and in the fledging United States had the same opinion from time to time although they were reluctant at first to expound on it for fear of losing their jobs.

Still, it was not the practice for English courts to declare acts unconstitutional for that would constitute an absurdity. The constitution was unwritten, or rather was the whole body of law itself, with English civil rights preserved in various historical charters and bills.   The courts fought long and hard for independence from the sovereign. Parliament itself won the crown in fact although it was worn by the royal figure. The Law Lords of the House of Lords served as the highest appellate court of appeal until 2009. They now constitute the Supreme Court, and may not sit in the House of Lords at the same time, hence in theory making them independent of the legislative body. Only very important or complicated cases came before the Law Lords, and they did not have the express power to declare a law unconstitutional.

Our proposed Constitutional Committee may want to consider whether or not the best place for an appeal on significant constitutional questions is the legislative branch that forged the statute in question for one might think that institution would know best. In any case, pending the reform of the Court, it might suit the chief justice to send a memo to the clerks instructing them to not forward constitutional appeals to him unless the statute or opinion of the lower court challenged appears to be unreasonable, nonsensical, repugnant, impossible or disastrous to effect, or, in another word, absolutely ridiculous, all others to be returned with the advice to pursue the matter with the appropriate legislature.

The power of judicial review in the United States was advanced by John Marshall and successfully employed as a political instrument to regulate the various states, which were in fact called “sovereign” in the practically useless Articles of Confederation. Certain Amendments as to the civil rights were made to the Constitution in order to obtain its approval although some Founders figured everyone should know what their English rights were. It was the Tenth Amendment reserving powers to the states that became more than problematic when the Southern states felt the dominant Northern states were encroaching on their federal constitutional guarantees with tariff and slave bills.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Almost every fifth grader selected for a TV quiz show knows that Virginia and Kentucky and then South Carolina resolved to nullify what their state legislators felt were unconstitutional federal statutes violating the civil rights of their citizens and thus were destructive of their society or economy. The most offensive of the Alien and Sedition Acts would be repealed, and a compromise was had with South Carolina on the abominable tariff, yet the rebellious spirit persevered, especially over slavery, winding up in secession, the defeat of the Confederate States, and reunification.

The notions of all kinds of reserved states’ rights wound up being determined and winnowed down by the supreme federal institution, the unelected Supreme Court, until there is hardly anything left of a plurality.   Today we hear the President and his colleagues say that certain things they do not like such as health care, abortion, and gay marriage, and union contributions law “should be up to the states.” Naturally laws they like should not be up to the states. Wherefore they would stack the court accordingly.

So perhaps a woman could get a divorce and an abortion and marry a woman on the same day in a particular state, or none of the above in another. And one can image the constitutional objections that would naturally be brought to the disparities between the states, especially by the poor woman who could not afford to get to Nevada let alone pay for the services.

It is feared that the president’s selection of a candidate, seen smiling smugly beside his pious, better-than-thou vice president, would roll back liberal advances in judge-made law, to conserve, for example, the primitive principle that men should own women’s bodies. The debate itself may move the candidate, if he is confirmed, to let the precedent stand. If he does not, the voters may revolt against his benefactors in the Senate and White House.

Abortion is always a hot button issue. Unions have lost their allure. Their bargains with government do not seem to help the worker that much, and tend more or less to put labor under tyranny of two governments, which seem to have collaborated to his or her disadvantage in the case of public unions. Recently the organized teachers of several states rebelled against pathetic wages, and they received a pittance for their trouble.

Union dues are a financial burden. Some right-to-work states required non-union members to pay their fair share of the purported benefits of collective bargaining. That was perfectly constitutional for decades according to a Supreme Court precedent recently upheld by 4:4 split due to an unfilled vacancy on the court. Everyone expected the precedent to be overturned with the appointment of an ideologue to that seat, and it was indeed duly overturned as expected by virtue of an informal political quid pro quo furthering the corruption of the court.

Mark Janus had been found willing to buck the system in Illinois and to say he did not like to contribute the cost of his share of the benefits of collective bargaining, so the lawyers had a field day with the constitutional right of free speech. “Under Illinois law,” pronounced Justice Alito on June, 27, 2018, in Mark Janus v. American Federation of State, County and Municipal Employees et al, “public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of non-members by compelling them to subsidize private speech on matters of substantial public concern.”

“Matters of substantial public concern” are what the power elite including its press determines them to be, otherwise the cases will not see the light of day. For example, when I asked for an important Florida case to be put online so persons interested do not have to travel to the courthouse to review it, the chief justice of that circuit informed me that the mainstream press determines what is significant enough to publish online. The judiciary obviously does not want the public to be concerned with the everyday behavior of courts that potentially affects it because it might be shocked by what goes regularly transpires. Rights such as free speech are not absolute when free speech is against the public interest. Speech may be restrained when selling three-dimensional programs to print unregistered guns will result in chaos or the anarchy desired by the seller.

Mark Janus could have had recourse to the Illinois legislature, but no, he must have been so outraged at a few hundred dollars of deductions every year from his salary that his lawyers needed to make it a judicial issue and appeal it to the highest court, politically prepared to rehear hear it, an appellate process that might cost more than a million dollars in legal fees for reputedly excellent lawyers if the plaintiff cares enough to pay out of pocket.

Several proposals have been made to get around the loss of funds unions are expected to suffer because non-members like Janus do not want to pay for the benefits whatever they are. I propose that the states offer no benefits negotiated by the unions to non-members, leaving persons like Janus free to speak for himself or through an agent when applying for a job. That process would eventually create a free market price for the functions so fervently desired by economic libertarians.

The Governor, Attorney General, and Chief Justice of the Supreme Court of Hawaii, for example, are not going to proclaim the Janus decision null and void within the boundaries of the state. No, Nullification and Secession do not work well. The oppositional Nullification theory advanced the wheel of Sisyphus from horizon to horizon. The consensus medieval theories are inapplicable today. (3)

But our Constitutional Committee should examine nullification ideology along with the “concurrent majority” reasoning of such Nullifiers of John Calhoun, former Secretary of War, Vice President and Senator, and other Nullifiers such as Robert James Turnbull (‘Brutus’).

Calhoun was raised by a slaveholding dad, and he saw firsthand how decently slaves were treated. He, like the descendants of Hawaii’s plantation owners, claimed that life was much better for plantation slaves than for free workers. (2)

We are well aware of the pathetic condition of workers during the industrial revolution. Unions would be crucial in gaining relief from that virtual slavery. Conservatives blinded by their obsolete tradition and fear for their fortunes would like to roll back some of those gains, and the oligarchic Supreme Court would allow them to bypass the elected legislatures.

Notwithstanding a few employee-owned and democratically managed firms, the place where Americans spend the most of their time is not democratic by any means. We see no whips and chains. There is enough time off for leisure to buy sufficient consumable goods to keep the ball rolling and clog the world with mountains of trash, junk and garbage in the process. Yes, the material life is better, much to the disadvantage of the spiritual life distracted as it is by entertaining commercials, but untold millions of people are wage slaves. I was appalled by what a black union leader who hated Jack Welch with a passion said to me in New York. I identify him as black because blacks have a right to use the denigrating term: he claimed that technological workers are “technological niggers.”

Calhoun’s concurrent majority theory may remind one of the complex geocentric planetary theory replaced by the simple heliocentric theory. Nevertheless, our Constitutional Committee may find some useful ideas therein. Sectionalism will always be as great a problem as individualism. A certain degree of latitude or liberty is required for unity.

The best argument against the Nullifiers was given by President Andrew Jackson, so his famous 1832 Proclamation penned by Edward Livingston should be considered too. He was not altogether fond of the judiciary, and remarked once that, now that the Court had pronounced the law, let it try to enforce it. The foremost Federalist, Alexander Hamilton, advocated judicial review although it was not adopted in the Constitution. He discounted the danger of tyranny that might present, saying a Supreme Court, lacking a sword, would be the weakest institution.

Not so, not now that blind obedience is the custom, and any challenge to judicial review is rebutted with, “Stare Decisis! Res Judicata!”

Wake up! What was once a useful habit is converted into a bad habit and is a disgrace to the nation.

Perhaps the embarrassment that our still great nation presently suffers will expose the ideological religions as inherently idiotic so that the representatives of the people can see, in this instance, that judicial review as we know it is obsolete, and then proceed to draft and pass a judiciary act that will put it in its rightful place.

Until then, the usual means will be employed by the population to get around the opinions of a disgraceful Court. Nullification theory will not do, for it is patently absurd inasmuch as it uses constitutional arguments to destroy the constitution. Simple disobedience to law was more successful than open efforts at nullification.  It is impossible to enforce all the laws on the books. A law unenforced is no law.

xYx

(1) John Calhoun, unpublished letter dated Sept. 1, 1831:

(2)  “Slavery is, instead of an evil, a good—a positive good… I may say with truth that in few countries so much is left to the share of the laborer, and so little exacted from him, or where there is more kind attention paid to him in sickness or infirmities of age. Compare his condition with the tenants of the poor houses in the more civilized portions of Europe—look at the sick, and the old and infirm slave, on one hand, in the midst of his family and friends, under the kind superintending care of his master and mistress, and compare it with the forlorn and wretched condition of the pauper in the poorhouse… I hold then, that there never has yet existed a wealthy and civilized society in which one portion of the community did not, in point of fact, live on the labor of the other” (John C. Calhoun, Feb 6, 1837)

(3) Unions are most powerful in the State of Hawaii. One might expect street protests over the Janus decision given Hawaii’s history and the belief of Native Hawaiians that their islands were stolen and the Kingdom forcefully overthrown by agents of the United States imperialism. Many natives were not very keen on working the invasive sugar plantations that supplanted the strips of land allotted to them under the kingdom. The demand for sugar resulted in the importation of virtual slaves, indentured servants, most of them from the East. Many of them stayed and struggled for many years to obtain civil rights, succeeding in large part because of their organization into unions.

Japanese Americans withstood insults and assaults, deprivation of rights, and even deportation during World War II, and they with their Asian colleagues and like-minded Caucasian notables were instrumental in the creation of the democratic organization for the state, one that the arch-conservative Malcolm Forbes denounced as “socialist.” Republicans are therefore a small minority. There are a few Republican true to republicanism and the democratic aspirations of the Party. Native Hawaiians with at least a rather small quota of native blood left wanted to create a tribe so they could enjoy the benefits of tribes on the Mainland. The majority of natives, however, believed that General Welfare under the Constitution is better than that provided by the Kings and Queens of Hawaii. The legislature was sympathetic to the tribal ideal. The issue was appealed to the U.S. Supreme Court on constitutional grounds, and that was the end of that.

Hawaii’s government and the public unions and the Democratic Party are one ball of wax in Hawaii. Yet Hawaii suffers like the Mainland. Average wages are not rising. Labor is being bled as usual much to the profit of the big corporations and other heirs to the remnants of the halcyon plantation days. The state like the rest of the nation is becoming more and more top heavy as the days pass.

Conservatives have good reason fear for their fortunes. Conservatism may be defined in terms of a general defense of social and economic inequality, with lip service given to free trade and competition, rather than an effort to uphold traditional institutions. Conservatism is an attempt then to maintain and augment power of the ruling elite by all means available including the resort to war in which the conservative leaders would rather not risk their lives in personal combat.

The underlying thesis of the Federalist or nationalist conservatives is obsolete today. It upholds and expands the contradictory vestiges of medieval tradition. It was authoritarian, centralized, a constitutional monarchy, the executive being limited by court of princes and republican estate. It placed emphasis on human imperfection, on Hobbes more than on Locke. It celebrated the organic society hierarchically organized with one head, the Supreme Court, supported by the propertied class.

The future of Hawaii as a cultural and financial treasure depends on the maintenance of the Hawaiian culture. We see sporadic demonstrations and memorials to the old kingdom from time to time, but no demonstration. The truth of the matter is that the natives are thoroughly assimilated.  Not only they but the haoles (white invaders) may have to move to the Mainland to support themselves and their families.

And with Janus there is no vehement protest in Hawaii. A libertarian nativist relocated from the Heart of America says there may not be much of an impact because unions will be forced to become more productive to survive. That might as well be said of many small business entities facing mammoth competition from the big corporations.

A member of the old haole elite who is intimate with some of the evils of the public unions rejoices on his gentleman’s estate that the Constitutional right to free speech has been upheld by the Supreme Court. He thinks it is sad that good teachers leave the state because of the low pay, but he suggests no solution whatsoever. The Supreme Court legislated the supreme law of the land, and that is that.

(4) President Jackson’s Proclamation

http://avalon.law.yale.edu/19th_century/jack01.asp

 

 

Cliche: “You must have lots of time on your hands to defend the police.”

“YOU MUST HAVE A LOT OF TIME ON YOUR HANDS”

“GET OVER YOURSELF”

BY

DAVID ARTHUR WALTERS

I am obviously a prolific writer keenly interested in learning as much as I can about the subjects I am interested in and then expressing my views thereupon.

That is, researching subjects and expressing my opinion is my vocation. Yet I am occasionally presented with the cliché, “You must have a lot of time on your hands,” when I logically contest a proposition put forward. That is meant to imply that I am not engaged in a legitimate i.e. personally profitable pursuit.

For example, an international attorney who has taken up liberalism with a vengeance after the election of Donald Trump to the Presidency posted a video on Facebook of police officers removing a cursing young woman from a subway. Apparently she had put her feet up on another seat of the relatively crowded subway car. She appeared to be refusing their commands and resisting arrest.

The indignant attorney, who has in the past served some time as a municipal judge, claimed that putting feet up on subway car seats is not an arrestable offense, and that the First Amendment right to free speech had been violated. One of his followers chimed in with outrage at an alleged abuse of the police power, although it was exercised rather minimally, just enough to get her off the train.

The rest of his followers agreed with the forceful removal of the foulmouthed woman from the train, and one viewer hoped she had learned a lesson. Another pointed out that we did not see what happened before the video was taken by a person questioning the conduct of the police and demanding badge numbers.

I remarked that the police action was proper. Furthermore, I said that I rode the New York City subways for decades, remembered the Bernhard Goetz incident, and why he had been moved to take the law into his own hands, as vigilantes are wont to do when the police power is dysfunctional.

Putting feet on subway seats happens to be an arrestable misdemeanor albeit the law is controversial, so I posted a New York Times article to that effect. To that the attorney said other issues were involved, yet he refrained, when asked, from identifying them.

He did not respond when asked whether or not the woman was detained and released, or taken to the police station and booked.

I declared that a lawyer should inquire into all the facts before presenting a case, and should not be unduly prejudiced by ideological preferences. I observed that if he knew the history of law enforcement on the subway system, as I did from personal experience, he would understand the reason people might be removed from trains or arrested for misdemeanor conduct. He perceived that remark as a personal insult.

He deleted my comments, and came after me in the Messenger facility, apparently not wanting the verdict of his jury of followers.  He said I must have a lot of time on my hands, and that he did not have such time, and that I did not know when to stop.

I responded that I had ample time to seek the truth and state my opinions. As a matter of fact, I had invested no more than five minutes in making those few brief comments. He has time to posting political subjects on his “news” feed, and to hover over commentary, responding immediately to comments as if he were being rated by Facebook, as some accounts are.

He mentioned President Trump, whom I said was irrelevant, as was the reference to free speech, for the woman had spoken freely with fighting words, and had a right to suffer the consequences.

I said I thought it contradictory that he would delete my comments when he was arguing for a right to free speech, to which he said he had a perfect right to do on Facebook.

It was obviously his own free speech he was concerned with, that there would be no consequences or “arrests” of his argument. Of course he can delete at will, but I informed him I had learned from several lawyers to tolerate critical commentary, and sometimes I love it when it is ridiculous. He claimed I was “hard not to delete.”

He said I did not know whether he rode the subways as I had. I said I did know because I had collected a file on him and knew that his background did not include decades in New York City or time when transit law enforcement was pathetic.

He felt threatened that I said I had a “file” on him, and I explained that I had accumulated information about him before I came to his defense when he was sitting as a magistrate and city officials interfered with his independence. My coverage of that issue was influential.

The time I expended was about forty hours, pro bono, and well worthwhile since I believed justice was served in that matter. In this matter I believe he was mistaken.

Another cliché he resorted to was, “Get over yourself,” which I informed him was his own projection. “You must have a lot of time on your hands” I have heard several times, almost always when I disagree with someone who believes they have a license on truth.

He knows I am a journalist. I thanked him for the interview and the quotes, which I have not directly quoted here. He deleted the entirety of his post. Case voluntarily dismissed.

Perhaps this record will be useful. Normally reasonable people are losing their heads and jumping to conclusions. It is time to take more time thinking.

xYx

Miami Beach

January 28, 2018

When Truth is Defamatory

 

WHEN TRUTH IS DEFAMATORY

BY

DAVID ARTHUR WALTERS

 

“Defamation” generally means using words to hurt the fame of a person (de bona fama aliquid detrahere: “to hurt his good fame.”) A person’s fame is his common or widespread reputation.

Spoken words may be easily forgotten, whereas writings may be preserved and referred to indefinitely. Defamatory words when spoken are slanderous, and, when written, libelous, although that legal distinction has been rendered obsolete in jurisdictions such as Australia. Indeed, the legal definition of defamation varies from jurisdiction to jurisdiction.

Presently, in the United States, the scandalous words must be false, or, if true, must have false implications. So it is said that the perfect defense against a defamation suit is truth. Elsewhere, depending on time and place, hailing back even to ancient Rome, statements injurious to reputation may be either true or false. That is, true statements can be defamatory, sometimes with the exception that they are allowed if justified as necessary to protect the public.

Some persons are more famous than others. The public order may depend on the good reputation or majesty of its leaders, especially when the leader happens to be a virtual god, say, a Roman emperor, or a king, say, of England, who rules by divine right, notwithstanding that any singular god is apparently both good and evil despite theodical caviling that attempts to explain how a presumably absolutely good and omnipotent god can countenance evil.

To publish a detraction of a majestic sovereign who claims to be the supreme or divine representative of the people would be a seditious libel whether its propositions were true or false, providing that the sovereign powers deemed it threatening to the peace of the state.

Some sovereigns have thinner skins than others, especially when envious nobles i.e. “known” or famous persons including “equals” are vying against one another and their ruler for fortune and power. Today, where the people are sovereign, seditious libel involves the publication of words designed to incite the violent overthrow of government.

Tiberius Claudius Nero, the emperor who ruled the Roman Empire as a virtual dictator from 14 AD to 37 AD, allowed that almost any offense against the law was an offense against his majesty and therefore treasonous. That allowed common informers known as “delators” to aid and abet rivalries and thus obtain wealth and titles by accusing or informing on people against whom they or advocates would bring action in the Senate, ostensibly presided over by the emperor.  Tacitus relates (or delates) in his Annals that:

“If anyone impaired the majesty of the Roman people by betraying an army, by exciting sedition among the commons, in short, by any maladministration of the public affairs, the actions were matter of trial, but words were free. Augustus was the first who used to take cognizance of libels under pretence of this law, incensed by the insolence of Cassius Severus, which had prompted him to asperse distinguished persons of both sexes by coarse lampoons. Soon after, Tiberius, when Pompeius Macer, the praetor, consulted him ‘whether trials should be had under this law’ answered,’ said ‘that the laws must be executed.’ He also was exasperated by the publication of satirical verses written by unknown authors, exposing his cruelty, his pride, and dissensions with his mother.”

Of course experienced advocates or lawyers were more likely to be successful in taking a denunciation to trial, and senators disgraced themselves by acting as delators, exposing even one another and their own families to depredation, banishment, and death.

“This was the most pestilent calamity of those times, that the first men of the senate performed the office of the meanest informers: some openly, many in secrecy; nor could you observe any distinction between kinsmen and aliens, friends and strangers,—whether the acts imputed were recent, or fetched from the obscurity of past times : equally for words spoken in the forum,—at entertainments,—upon whatsoever subject,—the speakers were accused, according as everyone hastened to get the start and point out the culprit : some did it for their own protection, but the generality infected, as it were, with the malady and contagion  of the times. “(ibid)

A prominent, reputable person and his family might be defamed and ruined by a charge that would be considered trivial today, such as consulting with an astrologist or palm reader for advice as to what a judge will decide in a pending case. They were banished or executed and their estates confiscated. Suicide prior to judgement was for a time a way to save family and fortune. Tacitus tells us of a case brought under the imperium of Nero:

“A charge of recent date involved the daughter in her father’s (Soranus) peril: it was, ‘that she had distributed sums of money among the magi.” Such was the fact, it must be admitted; but it arose from the filial piety of Servilia, for that was her name, who out of affection for her parent, and with the simplicity natural to so young a creature, had merely consulted them “on the safety of the family: whether Nero would be disposed to mercy, and whether the investigation before the senate would issue in anything of a formidable nature”….  The accuser then questioned her, “whether she had not sold her bridal ornaments, and even the chain off her neck, to raise money for the performance of magic rites?” At first she fell prostrate upon the floor, and continued for a long time bathed in tears and speechless; afterwards, embracing the altar and its appendages, she said, ” I have prayed to no malignant deities: I have used no spells: nor did I seek aught by my unhappy prayers than that you, Caesar, and you, fathers, would preserve this best of fathers unharmed. With this view I gave up my jewels, my raiment, and the ornaments belonging to my station; as I would have given up my blood and life, had they required them. To those men, till then unknown to me, it belongs to declare whose ministers they are, and what mysteries they use; the prince’s name was never uttered by me except among the gods. Yet to all this proceeding of mine, whatever it were, my most unhappy father is a stranger; and if it is a crime, I alone am the delinquent.’ …. Thrasea, Soranus, and Servilia were indulged with the choice of their mode of death….” (ibid)

The reader should keep in mind when reading Tacitus that he tended to repeat what amounted to gossip, that his accounts of Tiberius were frequently contradictory and at variance with other historical narratives. The reader may consult The History of that Inimitable Monarch Tiberius (1811) by Reverend John Rendle for a scholarly exposé of Tacitus’ history and the elevation of Caesar Tiberius into virtual sainthood.  Of one thing we can be sure, the empire was pestered and plagued by common informers.

Anyone who reads the law at length today might notice that the law especially case law or casuistry is irrational, and he might therefore resort to an astrologer for advice on cases. Americans prefer their laws in writing, but then lawyers i.e. licensed delators plead cases for fees, judges interpret it for salaries. The adjudications add to the vagaries of the “unwritten” or common law, which they all are wont to say is perfectly reasonable, protecting a profession that virtually rules every walk of life.

The more sophisticated Roman delators developed some rather absurd but winning arguments at trial to prove their cases. One interesting plea, a charge of defamation, is related by Tacitus, who as a historian is a sort of common informer or denunciator since his every writing constitutes an indictment of the ruling elite of the age. He certainly was interested in defaming emperors, who were creatures of their time and culture, some of which seems to persist to this day as the Cosa Nostra or what is popularly called the Mafioso.

Here is the legal tactic: Good can be found without evil in every man and the gods he projects. When prosecuting someone for slander, testify that he pronounced all the known faults of a person, not mentioning the virtues. People who know the person will believe those things were said about him because they are true.

“Granius Marcellus, praetor of Bithynia, was prosecuted for high treason by his own quaestor, Cepio Crispinus; Romanus Hispo supporting the charge. This Cepio began a species of avocation, which through the miserable times and the daring wickedness of men afterwards became very common and notorious; for, at first needy and obscure but of a restless spirit, by creeping into the good graces of the prince, who was naturally cruel, by secret informations, and thus imperiling the life of all the most distinguished citizens, he acquired influence with one, but the hatred of all, and thus exhibited an example, by following which men from being poor became rich, from being contemptible became formidable. and, after bringing destruction on others, would perish by their own arts. He accused Marcellus of “holding defamatory discourses concerning Tiberius,” a charge which it was impossible to repel, when the accuser collected all the most detestable parts of the prince’s character, and framed his accusation with reference to them; for because they were true they were believed to have been spoken. To this Hispo added,” that the statue of Marcellus was by him placed higher than those of the Caesars, and that having cut off the head of an Augustus, he had in the room of it set the head of a Tiberius.” At this (Tiberius) flew into such a rage, that breaking silence he cried out, that “he would himself, in this cause, give his vote openly, and upon oath,” that the rest might be under the necessity of doing the same. There remained even then some faint traces of expiring liberty. Hence Cneius Piso asked him, “In what place, Caesar, will you give your opinion? If first, I shall have your example to follow; if last, I fear I may unwittingly dissent from you.” Deeply affected by these words, and by how much the more indiscreetly he had let his passion boil over, by so much the more submissive now from regret that he should have committed himself, he suffered the accused to be acquitted of high treason. “(ibid)

So Tiberius shamed himself, and the truth set Marcellus free. But that did not have to occur. If the sovereign had not acted so shamefully as a person at the trial, Marcellus might have been convicted of insulting the sovereignty itself, strangled and hurled down the infamous steps to rot; and likewise anyone who begged askance or who loved him enough to shed tears. By the way, the other charge, that of peculation, was referred to a court of justice with jurisdiction.

XYX

On Common Informers Good and Evil

COMMON INFORMER JPG

“I confess, it is my nature’s plague, To spy into abuses; and oft my jealousy Shapes faults that are not.” – Othello

COMMON INFORMERS GOOD AND EVIL

BY

DAVID ARTHUR WALTERS

A wise man may live well, and a government that knows all may govern for the common good. The good citizen not only obeys the laws, he bears witness against law breakers. He is a common informer. If everyone, although not personally aggrieved, had the duty and material incentives and standing in court to personally or by his private attorney denounce and prosecute, as a representative and common informer of the people, without resort to public prosecutors, anyone for any civil or penal violation of law that he has espied or become aware of, the proverbial war against incivilities and crimes including the malfeasances of government would be won. Or so it seems.

The good man has introjected the mores of his culture, concealing his resentment the best he can, hence he is self-governed even to the extent of punishing himself for real and imaginary infractions. Alas then that man by nature is inclined to break every law made by others and himself at one time or another, and sometimes almost all the time. So the individual is a natural born criminal. He is divided within, fundamentally set against the impositions of the forces that he must love and obey or else perish. There exists a struggle for survival where some live at the expense of others when individual life is god.

So the other side of the story is that man “is born in sin,” that is, with a will of his own, opposed as it is from time to time not only to the will of a few others around him, but to the common good. And the trouble with the common good on this planet is that Good wants definition by people who are inherently selfish and thus differ in their definitions; even majority rule falls short of the common good. If the will of a faction small or large is uniformly imposed on all, their version of the common good could constitute the worst state of affairs, either chaos at one extreme, or a totalitarian police state at the other.

Indeed, the notion that the ability of a “common informer” to prosecute others for violations of law in the stead of a public prosecutor guarantees the freedom of the people and ensures integrity in government has proven to be a very bad idea when there are few civil rights including due process of law, and the motive for complaining is revenge or greed for property and other forms of power. In any case, it is highly unlikely that the motivation of a common informer is altruistic, or that he acts for the sake of duty. We may concur with Kant that it is “absolutely impossible by experience to discern with complete certainty a single case” of anyone acting solely for the sake of duty, and that a “cool observer is bound to be doubtful sometimes whether true virtue can really be found anywhere in the world.”

Today we have whistleblowers in the United States who are rewarded for prosecuting persons for making false claims on the government or who otherwise cheat the treasury. The public prosecutor may or may not step in after the informer complains; if he does, the prize will more likely be won. The whistleblower may recover his costs if he must prosecute a case himself, and the reward may be substantial, running into millions of dollars in some cases. Whistleblowers are naturally despised by the persons exposed. Everyone has something to hide, so he tends to hate “rats,” but he also cannot help admiring one who brings down the rich and powerful, and he envies one whose reward is substantial.

The federal and local whistleblower acts are a vestige of English law derived from Roman law. There was no official public prosecutor such as an attorney-general available in ancient Rome. Citizens, foreigners, and even slaves could originate libels or suits against prominent persons, currying favor with emperors and nobles, taking advantage of their resentments, jealousies, and rivalries, and in the process slaves won their freedom and other persons of low birth sometimes won great fortunes and high office for themselves. The most successful of these “common informers” were advocates i.e. lawyers. The whole lot of them, the paid informers, accusers, denunciators, witnesses and calumniators as well as those who served their mandating clients as advocates in the court of justice and the senate, were impugned as “delators,” meaning tattlers.

The most infamous form of delation endured nearly a century during the Roman Empire, reaching its height during the imperium of Tiberius Caesar. The practice had begun with laying the name (nomen deferre) of someone who owed property or taxes to the treasury before a magistrate. These fiscal delators, who received a portion of the value collected, as do whistleblowers today, were part of the state machinery. The category of offenses was extended to include celibacy, adultery, defamation, collusion (prevarication), perjury, tergiversation (bribery or intimidation to drop cases instead of resorting to a formal abolition), perjury, and treason.

The delator received roughly a fourth of the penalty, which could included the entire estate of a wealthy person exiled or executed, and the treasury got the rest. The reward could include high office. The denounced person, to salvage whatever he could, might denounce himself for the delator’s portion of the reward. If his life was at risk, suicide would save his estate against the judgment; the delator would still get his reward but it would come from the treasury. Political cases were tried before the senate.

Eventually a charge of treason was added to every offense charged against prominent persons since every crime is in a sense against the state or the emperor, the incarnation of the people. Nowadays we distinguish political crimes from civil crimes. But all crimes are political inasmuch as they are crimes against the state to be prosecuted by someone on behalf of the state and not by particular victims. Happily, that advance in procedure, based on the notion that a realm belongs to its sovereign and all crimes committed therein are therefore offenses against him, supplanted feuding, where everyone was a law unto himself except when on royal grounds and highways. In any case, it served delators, the emperor, and the treasury well to make the emperor an offended party to every kind of complaint no matter how remote the offense was from political business.

Delators always found plenty of muck to rake given the corruption of their day. Of course some sort of documentation was required to support a charge, yet clever sophists could create muck out of thin air if none were found. If their case failed, however, the delator and his mandator or sponsor would have to suffer the penalty they wanted for the accused.

Commoners were not the only informers. Even senators stooped to betray their colleagues and best friends and family members for the rewards. So it is no wonder that delation fell into disrepute. The muckraking delator had a status lower than the garbage collector.

The infamous practice waned by the time of Tacitus, the historian credited with rendering Tiberius so infamous by emphasizing the evils in his contradictory anecdotal gossip in his Annals. Tacitus was himself a muckraker or sort of common informer, laying the evils of the times on Tiberius, who reportedly attempted to follow in the steps of Augustus, his august predecessor, who had made use of common informers. Tiberius lacked the charisma and passion of Augustus. He took occasional steps to curb delation, perhaps with ulterior motives, and instituted other reforms. At least one academic, the Reverend John Rendle, MA, has pointed out the contradictions in Tacitus’ account, painting Tiberius as a great emperor, with a few qualifications of course, at book length in The History of That Inimitable Monarch Tiberius (1811). In sum, the Reverend agreed with “seven contemporary and other writers” that:

Tiberius was very studious of every liberal and useful science; the friend of none but virtuous and learned men as long as he lived; most cordially beloved by all his officers and men when commander and chief; the sole supporter of the Roman super-eminence during the Pannonian and German wars; by the senate made equal in power to Augustus five years before he became a Monarch; a detester of flattery and all pompous titles long after he was a monarch; the abhorrent opposer of his own deification in the tenth year of his monarchy; most eminent, exemplary, great, just and humane long after the disaster at Fidenae (collapse of the amphitheatre that killed or injured 20,000); an eater of human flesh and drinker of human blood after he was so very exemplary; the universal dispenser of the blessings of peace during most of his reign; permitted the worst of all civil wars to rage at Rome from the fourteenth to the nineteenth of his reign; overcome by the pressure of family affections during the first years of the same period; negligent of the gods, but attentive to some one god in the decline of life; a friend of Jews and the maintainer of Jewish rights always; a hearer of the law and a partial doer of it from the time he went to Rhodes; remarkably inquisitive about futurity sometime before he died; a believer in the divinity of Jesus Christ in the fourteenth year of his reign; the abolisher of al sanctuary protections after the Jews and preferred Barabbas to Jesus; the first prohibitor of immediate executions before the death of Sejanus; the nursing father of the infant Catholic Church during the last eight years of his reign; the protection of Jewish Christians as not blasphemers in the sixteenth year of his reign; of all kings or autocrats the most venerable when old; as some affirmed, prefigured by that of a phoenix; solemnized with due pomp and at the public expense as his funeral; and, lastly, who, at his death, followed Augustus to the residence of the gods.

Tacitus’ descriptions of the pestilent effects of delation rings true, however, reminding us of East Berlin under surveillance by the Stasi, the U.S.S.R secured by the KGB, and other totalitarian states that have been established throughout the world.

This was the most pestilent calamity of those times, that the first men of the senate performed the office of the meanest informers: some openly, many in secrecy; nor could you observe any distinction between kinsmen and aliens, friends and strangers,—whether the acts imputed were recent, or fetched from the obscurity of past times: equally for words spoken in the forum,—at entertainments,—upon whatsoever subject,—the speakers were accused, according as everyone hastened to get the start and point out the culprit : some did it for their own protection, but the generality infected, as it were, with the malady and contagion of the times….. At no time was the city in a state of deeper anxiety and alarm, never was there greater need of caution against a man’s nearest relatives; men were afraid to meet, afraid to discourse: silence and distrust extended alike to strangers and acquaintance, and both were equally avoided: even things dumb and inanimate, roofs and walls, were regarded with apprehension. Annals

An example related by Tacitus was the case of four informers who had all been praetors (elected magistrates) set up a trap to gather evidence against a Roman knight by the name of Titus Sabinus. They endeavored to get rid of him because he stood in the way of their aspirations to consulship, which could be obtained through the auspices of Lucius Aelieus Sejanus, the praetor prefect who practically ruled Rome during the moody absences of his best friend Tiberius, who would eventually become wary of a coup and have him imprisoned, strangled and tossed down the Gemonian stairs to rot. Sabinus’ offense was his friendship for Tiberius’s nephew, “Germanicus,” the agnomen given him after to his victories in Germany. Germanicus died of a mysterious disease, rumored to have been poisoned at the behest of Tiberius. The praetors Latinius Latiaris was enlisted to curry favor with Sabinus, attracting him into his home, where senators were hidden in the attic with their ears glued to “nooks and crannies.” Latiaris induced Sabinus to denounce Sejanus for his cruelty, pride, and terrible plots, and, in the process of doing so, Tiberius was uttered against as well. This information was dispatched in the form of a written memorial to Tiberius, who sent a letter a letter to the senate on the matter, then indicted Sabinus before the senate for treason in terms that required vengeance. The historical accounts of his death are contradictory; Tacitus claims that Sabinus was dragged out and immediately put to death.

Naturally paranoid megalomaniacal emperors representing themselves as the divine incarnation of the people could take offense at almost any offense reported by a common informer as treason, striking fear into the hearts of the people they supposedly represented that the slightest hint of disagreement or even a tear shed over the death of a relative who happened to be the emperor’s enemy might result in their own prosecution and demise. A modern historian sums up the ancient annals as follows:

“The law decreed that the informer should receive a quarter of the goods belonging to the condemned, but this sum was often exceeded when the victim was a person of importance. After the condemnation of Thrasea and Soranus the chief informers each received five million terces (one million francs), and by these means scandalously large fortunes were quickly acquired. Epriuss Marcellus and Vibius Crispus earned at this trade three hundred million sesterces (sixty million francs). The Emperor was not satisfied with repaying their services by money, he also lavished upon them all the State dignities. After each important case there was a distribution of praetorships and edileships. These ancient republican dignities served as a price for shameful compliance. Nothing, according to Tacitus, was a greater offence to honest people than to see the informers “displaying the sacerdotal offices and the consulate, as though they were spoils taken from the enemy.” At the end of Tiberius’ reign men only became consul when they had ruined one of Caesar’s enemies. And under Domitian it was the shortest road by which public dignities could be attained. In this way, towards the time of Tiberius, informers issued from all ranks of this corrupt society. Seneca tells us, “That on every side there was a mania for informing which emptied Rome more quickly than a civil war.”Nothing is richer in contrasts than the group of informers that Tacitus describes to us; every social rank and position are represented in it. By the side of this crowd of smaller people-slaves, freedmen, soldiers, schoolmasters–we also find the names of a few of the old nobility, a Dulabella, a Scaurus, and even a Cato. There were bold cynical informers, who prided themselves on defying public opinion, who made honest men blush and were proud of doing so, who boasted of their great deeds and claimed glory for them. There were informers belonging to the lower classes, who commenced by the vilest functions, and who having reached wealth and power always retained something of their origin, like Vatinius, whom Tacitus calls one of the monstrosities of Nero’s court. He was formerly a cobbler, and owed his fortune to the buffoonery of his mind and the deformities of his body. And lastly, there were elegant informers, who piqued themselves on their distinction and fine manners, and who gracefully asked for a man’s death. One day an informer of this class appeared before the Senate, dressed in the latest fashion, a smile upon his lips, he came to accuse his father. [Gaston Boissier “Etudes des Moeurs Romaines sous I’Empire,” in The History of Ancient Civilization, A Handbook Based Upon m. Gustave Ducoudray’s Histoire Sommaire de la Civilization, Ed. Rev. J, Verschoyle, New York, Appleton & Company 1889]

Common informers albeit always despised continued to pester the Empire after Tiberius from time to time. His successor Caligula (37-41), who would eventually be assassinated, declared an amnesty and halted the treason trials, thus getting rid of the informers except himself. Much maligned Nero (54-68), who famously committed suicide following a false report that he was about to be executed as a public enemy number one, reduced the rewards to common informers. Titus (79-81), an anti-Semite whom the Talmud reports died pleading with YHWH for mercy because a gnat flew up his nose and turned into a bird, persecuted the informers. His younger brother, totalitarian-minded Domition (81-96), who would be assassinated, encouraged them.

Edward Gibbons’ Decline and Fall of the Roman Empire recounts that Commodus (177-192), the son of Marcus Aurelius, the last of the Five Good Emperors, became suspicious that senators were conspiring to assassinate him. The senators hated the megalomaniacal Commodus, who considered himself to be a demigod, and celebrated himself as the new Hercules and Romulus, but the conspiracy that had him strangled in his bath by his wrestling partner, Narcissus, was actually formed by a prefect named Laetus; the Senate thereafter declared Commodus to be a public enemy. Common informers enjoyed a resurgence of delation due to his delusions of grandeur and persecution (paranoia).

The Delators, a race of men discouraged, and almost extinguished, under the former reigns, again became formidable as soon as they discovered that the emperor was desirous of finding disaffection and treason in the senate. That assembly, whom Marcus had ever considered as the great council of the nation, was composed of the most distinguished of the Romans; and distinction of every kind soon became criminal. The possession of wealth stimulated the diligence of the informers; rigid virtue implied a tacit censure of the irregularities of Commodus; important services implied a dangerous superiority of merit, and the friendship of the father always insured the aversion of the son. Suspicion was equivalent to proof; trial to condemnation. The execution of a considerable senator was attended with the death of all who might lament or revenge his fate; and when Commodus had once tasted human blood, he became incapable of pity of remorse.

Eventually offenses other than treason were prosecuted in the courts of justice by the aggrieved parties or their attorneys. Constantine (306-337), reputedly the first Christian emperor, punished them. Edward Gibbon’s research of ancient writers who freely exposed the faults of Constantine confessed that his predecessor Maxentius (306-312), who drowned in a river fleeing Constantine’s victorious army, was far worse than Constantine, that he was cruel, rapacious, and profligate, and that his suppression of a slight rebellion in Africa “was followed by the abuse of law and justice. A formidable army of sycophants and delators invaded Africa; the rich and the noble were easily convicted of a connection with the rebels; and those among them who experienced the emperor’s clemency were only punished by the confiscation of their estates.”

Theodosius (379-395), whose will divided a reunified empire between East and West at his death, made a nice distinction between common informers and persons willing to denounce pagans and heretics such as the Manicheans:

“In the mind of Theodosius Christianity and citizenship were coterminous and anyone who denied Christ automatically made himself an outlaw of the Christian Roman society. An even more sternly worded edict against the Manicheans was issued by Theodosius (31 March 382) in which the recipient, Florus, the praetorian prefect, was told to establish special courts for the trial of Manicheans and receive (anonymous) informers (indices) and denouncers (denunctiatores) without the odium of delation. It was a well-held principle of Roman Law that frivolous or baseless accusations put forward by anonymous indices should be discouraged and all accusation should be conducted by formal delation in which an unsuccessful delator was liable to an action for calumnia. Constantine laid down in a law of 313 a certain regulations concerning informers and threatened those who broke them with the death penalty and this was reaffirmed by a later law of 319.” (Samuel N.C. Lieu, Manichaeism in the Later Roman Empire and Medieval China (1992)]

Given human nature, vestiges of delation were destined to survive and bloom full after the end of the Western Roman Empire in 476 when Romulus Augustulus was deposed by the Germanic King Odoacer (476 CE). Sidonius Apollinaris (430-489), prefect of Gaul, denounced them in a letter: “They are the wretches, as you yourself have heard me say upon the spot, whom Gaul endures with groans these many years, and who make the barbarians themselves seem merciful in comparison. They are the scoundrels whom even the formidable fear. They are the men whose peculiar province it seems to be to calumniate, to denounce, to intimidate and to plunder.”

Byzantine Emperor Justinian (527-565) had the ancient Roman laws compiled, using as primary source the Institutes of Roman Law (160 AD) composed by the celebrated Roman jurist Gaius. Delation was described therein as a popular action brought by an informer for a reward, where the informer enforces a public right, suing as a procurator for the people. Infamous or ignominious persons such as prostitutes, pimps, gladiators, dancers, alien homosexuals and others defamed by a censor or praetor were not allowed to serve in that capacity. Criminals, however, were naturally encouraged to inform on others.

Justinian’s Code, a unit within his Corpus Juris Civilis along with the Digest and Institutes, clearly prohibits delation unless the “detestable” or “execrable” delator is a fiscal informer who benefits the state treasury. Informers who protect the property interests of cities, however, shall not be considered odious. Slaves who inform on their masters shall be executed even if their accusations are true.

“Neither a servant nor freeman shall be permitted to be an informer and no one need fear death or loss of property from that source. And if anyone informs against another that he has found a treasure or for some other reason, he shall, if he be a slave, be at once delivered to a death by fire, especially if he should inform against his master; if he be free, his goods shall be confiscated, he shall lose his citizenship and shall be banished from the soil of the Roman Empire.”

If an informer is “proven to be a malicious accuser, or if he desists from the accusation and hides, he shall, if he disdains a pecuniary punishment on account of the smallness of his property, be subjected to lashes and to perpetual banishment; but if he belongs to the imperial service or has an honorable position of possesses ample property, he shall lose both his position and property, and will be forbidden to reside in the imperial city or in the province.”

The Turkish Ottomans brought the Eastern Roman (Byzantine) Empire in the East to an end with a 53-day siege culminating with the fall of its capital, Constantinople, to an army led by a 21-year old sultan in 1453, a grievous blow as well to Christendom in the East. By then common informers had by no means vanished from the face of the Earth. Delation persisted in Europe where Romans had established themselves, thriving, for example, for centuries in Britain. The English would put so-called common informers to use whether they could personally prosecute a case or not. For example, Catholicism was harassed by them by virtue or vice of the 1699 “Act for further preventing the growth of Popery (11 & 12 Gul. III, 4) offer a reward to common informers of a 100-pound reward for the apprehension of priests.

The libels or writs of common informers who could prosecute cases themselves in England were called as a qui tam (“who as well”) writs, from qui tam pro domino rege quam pro se ipso in hac parte sequitur, “he who sues in this matter for the king as well as himself.” More specifically, a qui tam was an action under a statute which imposes a penalty for the doing or not doing an act, and gives that penalty in part to whosoever will sue for the same, and the other part to the commonwealth, or some charitable, literary, or other institution, and makes it recoverable by action. The plaintiff describes himself as suing as well for the commonwealth for example, as for himself.

In the thirteenth century, prior to the inclusion of qui tam in statutes, qui tam was a means of bringing a suit rather than a peculiar form of action, so a non-statutory qui tam plaintiff filed his suit in an ordinary general writ as if he were suing to recover for an ordinary wrong. There were two types of non-statutory qui tam, then, that allowed private plaintiffs to file complaints in the emerging royal courts: one served the interests of parties who had actually suffered a wrong; the other included the interests of the common informer in their bounties. Eventually, in the fourteenth century, the jurisdiction of the royal courts was extended to the hearing of complaints from the aggrieved parties themselves without the qui tam means, leaving qui tam as the tool of common informers.

A qui tam action has rarely if ever been used in England since the Common Informers Act of 1951 abolished the provision of rewards to private citizens for bring suits on behalf of the state. Qui tam is, however, alive and well in the United States in so-called whistleblower acts; e.g. the federal False Claims Act where a “relator,” someone who relates information to obtain a specific reward, can step in and file a writ against someone defrauding or cheating the government.

Edward Coke (1552-1634), who served Britain variously as Chief Justice of the King’s Bench, Chief Justice of the Common Pleas, Attorney General and Solicitor General for England and Wales, took common informers to task in his Institutes of English Law: Third Part Concerning High Treason, And Other Pleas of the Crown, and Criminal Causes (1798) Capitulo 88, “Against Vexatious Relators, Informers, Promoters upon Penal Statutes.” The foregoing persons he labeled in Latin “turbidum hominem genus” i.e., men who stir up trouble i.e. muckrakers. He attributed a “multiplication of suits in law” in part to “the swarm of informers” and a “multitude of attorneys.”

“Informers and relators,” he wrote, “raised many suits, by informations, writs, &c. in the King’s Courts as Westminster upon penal statutes, many whereof were obsolete, inconvenient, and not fit for those days, and yet remain snares upon the subject…. Lastly, the multitude of attorneys, more than is limited by law, is a great cause of increase in suits.”

Informers, he claimed, are “viperous vermin, which endeavored to have eaten out the sides of the church and the commonwealth.” So laws were made in the 18th and 28th and 31st year of Queen Elizabeth’s reign including corporal punishment to rein in common informers, but another law to the same end is required because there people are still causing a great deal of grief to the Queen’s subjects. He explained that many obsolete penal laws remain on the books as snares which relators, informers and promoters used to vex and entangle subjects. For example: statutes regulating the price of poultry, the transportation of corn, the price of hats, caps, candles. broadcloth, concerning vagabonds, unlawful games, and alehouses, the sale of wine, decay of houses, buying of wool, keeping of great horses, manufacture of locks, rings and crosses, the sale of colored cloth, and so on. The king’s courts in Westminster are being clogged with suits brought by common informers from counties everywhere so that Westminster is likely to suffer from apoplexy. To make matters worse, an informer in one county can at his pleasure bring suit against an alleged infraction in other counties where parties and witnesses are unknown.

Therefore the “Act for the Ease of the Subject concerning the Informations upon Penal Statutes,” in short, “the Common Informers Act of 1623,” (21 Jac. 1, c. 4), specifies “That all offences hereafter to be committed against any penal statute, for which any common informer or promoter may lawfully ground any popular action, bill, plaint, suit or information, &c. shall be commenced, sued, prosecuted, &c. in the counties where the offenses were committed, and not elsewhere.”

The foregoing was apparently insufficient, as we can see from “The Common Informer,” an article by dramatist (“the little Shakespeare”) and journalist Douglas William Jerrold (1803-1857), published in London in 1840 by Vizetelly & Co. in the book entitled, Heads of the People, Portraits of the English.

We all know that many people love to complain about trivial breaches of conduct. They will complain all the more given a reward for complaining, no matter how small. “It is but a few days since,” indited Jerrold, “that a celebrated Informer laid an information against the servants of our maiden queen for having failed to emblazon her initials on the vehicle, and thereby having exposed their gracious mistress to the fatal visitation of a fine. But queens are seldom caught tripping; and, by some means, we are happy to state that Her Majesty escaped the stern sense of justice animating the bosom of the Informer, though we have felt it due to him to chronicle the circumstance, as displaying the virtuous boldness of his character.”

He observed that “The Common Informer so generally confines himself to the healthful castigation of the poor, that he is assuredly an Informer very far from the common who has the moral courage to make known the peccadillo of a queen.” That was certainly not the case in Rome of yore, where vast fortunes were made by delators.

What does a common informer look like? According to Jerrold:

“The Common Informer combines in his visage the offensive acuteness of a sharp-practicing attorney, with the restlessness of an illegal pickpocket: we have seen a Common Informer with a face that reminded us of a shaven ferret. We have read what we think may be adduced as good reason for this. Babies feeding at the breast, and gazing up at the face of the parent, are said to become endowed with a resemblance of the mother: the Common Informer, with his eyes constantly fixed on the flaws and crookednesses of the statutes, and feeding upon them, contracts in his features an habitual sharpness and wary meanness of expression, a sort of hungry half-sagacity, illustrative of his beloved studies. The Common Informer is, in fact, the child, the lawful offspring of the silly, the bungling, and the bigoted legislator: hence, the Most Noble the Marquis of —– may, and know it not, be the legislative father of a Johnson and a Byers. If Common Informers have a patron saint, sure we are it must be Saint Stephen.”

“But, it shall be opposed, the Common Informer may be an injured goodness, a real benevolence under a cloud of odium; inasmuch as his labors, suspected and despised as they always are, may, in many instances, enforce the working out of legislative wisdom, and thus ensure to society the blessings of parliamentary philanthropy. All praise to the Common Informer when such is his design! He is then, indeed, a moral presence,–a philosophic goodness toiling under a bad name. Great, indeed, is his character; noble his purpose, contemplated by this light: and yet, unhappily, we cannot call to our recollection the names of any illustrious Informers who, with valuable eccentricity, have worked for the public good in the abstract, where half the imposed fine did not revert to themselves in the concrete….. Bentham has declared the functions of the Common Informer to be most honorable: in truth, Cato, with his sour face and bare feet, might have plied the trade, gaining a civic wreath for the energy and utility of his practice….”

Indeed, the benevolent side of the story had been well elucidated by the inestimable jurist and reformer Jeremy Bentham (1748-1832) and is well worth quoting at length. He rationalized, under the title, “Rationale of Reward,” the provision of bounties to informers:

In this country where, properly speaking, there is no public prosecutor, many offences, which no individual has any peculiar interest in prosecuting, are liable to remain unpunished. In the way of remedy, the law offers from £10 to £20, to be levied upon the goods of the offender, to whoever will successfully undertake this function: sometimes it is added, that the expenses will be repaid in case of conviction: sometimes this is not promised. These expenses may amount to thirty, fifty, and even one hundred pounds; it is seldom as little as twenty pounds. After this, can we be surprised that the laws are imperfectly obeyed?

It may be added, that it is considered dishonorable to attend to this summons of the laws. An individual, who in this manner endeavors to serve his country, is called an informer; and lest public opinion should not be sufficient to brand him with infamy, the servants of the law, and even the laws themselves, have on some occasions endeavoured to fix the stain. The number of private prosecutors would be much more numerous, if, instead of the insidious offer of a reward, an indemnification were substituted. The dishonorable offer being suppressed, the dishonor itself would cease.

And who can say, when by such an arrangement the circumstance which offends it is removed, whether honor itself may not be pressed into the service of the laws? …. In vain did the Roman emperors bestow honors upon the most odious informers; they degraded the honors, but the informers were not the less infamous. But it is not enough that it does not oppose the prejudices: it is desirable that every reward should obtain the approbation of the public. The execution of a law cannot be enforced unless the violation of it be denounced; the assistance of the informer is therefore altogether as necessary and as meritorious as that of the judge.

It is odious (it is said) to profit by the evil we have caused to others. This objection is found on a feeling of improper commiseration for the offender; since pity towards the guilty is cruelty towards the innocent. The reward paid to the informer has for its object, the service he has performed; in this respect, he is upon a level with the judge who is paid passing sentence. The informer is a servant of the government, employed in opposing the internal enemies of the state, as the soldier is a servant employed in opposing its external foes. It introduces into society a system of espionage. To the word espionage, a stigma is attached let us substitute the word inspection, which is unconnected with the same prejudices. Pecuniary may induce false to conspire against the government. If we suppose a public and well-organized system of procedure in which the innocent are not deprived of any means of defense, the danger resulting from conspiracy will appear but small.

These objections are urged in justification of the prejudice which exists; but the prejudice itself has been produced by other causes; and those causes are specious. The first, with respect to the educated classes of society, is a prejudice drawn from history, especially from that of the Roman emperors. The word informer at once recalls to the mind those detestable miscreants, the horror of all ages, whom even the pencil of Tacitus has failed to cover with all the ignominy they deserve: but these informers were not the executors of the law; they were the executors of the personal and lawless vengeance of the sovereign.

These cases of tyranny excepted, the prejudice which condemns mercenary informers is an evil. It is a consequence of the inattention of the public to their true interests, and of the general ignorance in matters of legislation. Instead of acting in consonance with the dictates of the principle of utility, people in general have blindly abandoned themselves to the guidance of sympathy and antipathy — of sympathy in favour of those who injure — of antipathy to those who render them essential service. If an informer deserves to be hated, a judge deserves to be abhorred.

The prejudice also springs from a confusion of ideas. No distinction is made between the judicial and the private informer; between the man who denounces a crime in a court of justice, and he who secretly insinuates accusations against his enemies; between the man who affords to the accused an opportunity of defending himself, and he who imposes the condition of silence with respect to his perfidious reports. Clandestine accusations are justly considered as the bane of society: they destroy confidence, and produce irremediable evils; but they have nothing in common with judicial accusations.

Besides the prodigious difficulty of inventing a coherent tale capable of enduring a rigorous examination, there is no comparison between the reward offered by the law, and the risk to which false witnesses are exposed. Mercenary witnesses also are exactly those who excite the greatest distrust in the mind of a judge, and if they are the only witnesses, a suspicion of conspiracy instantly presents itself, and becomes a protection to the accused.

Three years prior to the publication of Jerrold’s article in the mother country, we find this report, entitled “Report On The Abolition of Capital Punishment” (Paper No. 4, 1837, issued by the Massachusetts House of Representatives Committee on Capital Punishment:

Whereas Revenge is an Unholy Passion and the Law must be Wholly Passionless: There may have been many cases where government found it expedient to employ revenge, as well as other bad passions, to execute its decrees: such a necessity is to be regretted, and the practice abandoned as soon as the necessity ceases. Encouraging common informers was an expedient of this sort, very common in our own laws, but it has been wisely stricken out in almost every instance from the Revised Statutes.” Fixing a price upon the head of a refugee was once thought just and useful, but is now condemned. Promising pardon to an accomplice, to induce him to testify against his fellow criminal, is a use now made of the treachery which is despised while it is used. In a state of nature, every man revenges to the utmost of his power the injury that he has received: retaliation is the only rule of punishment. In a rude state of society these practices are suffered to continue, because they cannot be prevented. The law only undertakes to restrict them within certain limits, and to forbid their most cruel excesses. The legislator, who should enact laws which presuppose a more elevated standard of morality, would find that public opinion did not sustain him, and that his statutes would remain inoperative and useless. It has been observed, that among a people hardly yet emerged from barbarity, punishments should be most severe, as strong impressions are required; but in proportion as the minds of men become softened by their intercourse in society, the severity should be diminished, if it be intended that the necessary relation between the infliction and its object should be maintained. For this reason, the indulgence of individual revenge is much less an evil, while society is obliged to tolerate it, than it would be in a later stage, when it might be, and ought to be suppressed.

Bentham’s suasions held for a century and a half in Britain, but in 1951 fell to an ‘Act to abolish the common informer procedure’ (14 & 15 Geo. 6, c. 39):

“No proceedings for a penalty or forfeiture under any Act in the Schedule to this Act or under any local and private Act shall be instituted in Great Britain against any person after the commencement of this Act. Provided that no part of the penalty or forfeiture is payable to a common informer….”

British lawmakers have since regretted the abolition of rewards to common informers. The practice is alive and well in the United States. On the federal level, the False Claims Act, called the Lincoln Law, was legislated in 1863, subsequently amended, to curb frauds on the government by punishing crooked contractors. To wit, 31 U.S.C. § 3729 et seq., provides for liability for triple damages and a penalty from $5,500 to $11,000 per claim for anyone who knowingly submits or causes the submission of a false or fraudulent claim to the United States. A qui tam provision allows common informers i.e. whistleblowers to sue on behalf of the government and collect from 10 to 30% of the amount recovered. The federal government recovered an estimated $60 billion under the Act since 1987, of which over two-thirds was derived from qui tam actions brought by relators. States and other jurisdictions have similar statutes on the books that allow informants to collect finders’ fees. The rewards may be large. Whistleblowers, who are likely to be fired if they work for the organizations that makes the false claim, may retain law firms to have them reinstated with double back pay and to pursue the case if the government declines to intervene. The chances of recovery are much higher if the government does intervene, accounting for over 95% of recoveries as of 2015.

False claim acts do not include tax fraud. The federal and state governments otherwise pay bounties on amounts recovered from tax fraud to informants who make formal claims with governments when submitting information. Those non-qui-tam informants may not bring the suit for recovery themselves.

As we have seen, the evils of delation are believed to due to pecuniary and other material rewards made available to greedy common informers. On the other hand, greed, if that is what we must call the passion, and protection from retaliation, has results superior to other base motives such as pride, envy, wrath, malice and such. So-called qui tam actions where delators, now called relators, have a right to prosecute as private persons on behalf of government may indeed provide a better incentive for insiders to out wrongdoers than a conscious will to do their ethical duty for the public. Most whistleblowers are insiders simply because they have access inside information. Employers who treat their employees very well are unlikely to be outed by them. And the very high rate of recovery obtained when government intervenes in qui tam filings indicates that the imagination or malicious motives of common informants lead them to file frivolous or false informations.

The good citizen is expected to altruistic or to be good from a sense of duty to the common good and not from selfish reasons. But we cannot be absolutely certain in any case that an actor is self-interested. Why should he be, when the egoistic or “Dear Self” (Kant) is essential to the survival and progress of the human race?

We all have some complaints in common and are all informers to the degree we voice them. The question is, what sort of informers are we, and to what extent? We may reflect on history as if in a mirror and beg askance of our motives for answers.

No doubt the common informer is as good and evil as any other man or single god for that matter. Therefore it behooves government to make the best of him.

XYX

When Truth is Defamatory

DEFAMATION

WHEN TRUTH IS DEFAMATORY

BY

DAVID ARTHUR WALTERS

 

“Defamation” generally means using words to hurt the fame of a person (de bona fama aliquid detrahere: “to hurt his good fame.”) A person’s fame is his common or widespread reputation.

Spoken words may be easily forgotten, whereas writings may be preserved and referred to indefinitely. Defamatory words when spoken are slanderous, and, when written, libelous, although that legal distinction has been rendered obsolete in jurisdictions such as Australia. Indeed, the legal definition of defamation varies from jurisdiction to jurisdiction.

Presently, in the United States, the scandalous words must be false, or, if true, must have false implications. So it is said that the perfect defense against a defamation suit is truth. Elsewhere, depending on time and place, hailing back even to ancient Rome, statements injurious to reputation may be either true or false. That is, true statements can be defamatory, sometimes with the exception that they are allowed if justified as necessary to protect the public.

Some persons are more famous than others. The public order may depend on the good reputation or majesty of its leaders, especially when the leader happens to be a virtual god, say, a Roman emperor, or a king, say, of England, who rules by divine right, notwithstanding that any singular god is apparently both good and evil despite theodical caviling that attempts to explain how a presumably absolutely good and omnipotent god can countenance evil.

To publish a detraction of a majestic sovereign who claims to be the supreme or divine representative of the people would be a seditious libel whether its propositions were true or false, providing that the sovereign powers deemed it threatening to the peace of the state.

Some sovereigns have thinner skins than others, especially when envious nobles i.e. “known” or famous persons including “equals” are vying against one another and their ruler for fortune and power. Today, where the people are sovereign, seditious libel involves the publication of words designed to incite the violent overthrow of government.

Tiberius Claudius Nero, the emperor who ruled the Roman Empire as a virtual dictator from 14 AD to 37 AD, allowed that almost any offense against the law was an offense against his majesty and therefore treasonous. That allowed common informers known as “delators” to aid and abet rivalries and thus obtain wealth and titles by accusing or informing on people against whom they or advocates would bring action in the Senate, ostensibly presided over by the emperor. Tacitus relates (or delates) in his Annals that:

If anyone impaired the majesty of the Roman people by betraying an army, by exciting sedition among the commons, in short, by any maladministration of the public affairs, the actions were matter of trial, but words were free. Augustus was the first who used to take cognizance of libels under pretence of this law, incensed by the insolence of Cassius Severus, which had prompted him to asperse distinguished persons of both sexes by coarse lampoons. Soon after, Tiberius, when Pompeius Macer, the praetor, consulted him ‘whether trials should be had under this law’ answered,’ said ‘that the laws must be executed.’ He also was exasperated by the publication of satirical verses written by unknown authors, exposing his cruelty, his pride, and dissensions with his mother.

Of course experienced advocates or lawyers were more likely to be successful in taking a denunciation to trial, and senators disgraced themselves by acting as delators, exposing even one another and their own families to depredation, banishment, and death.

This was the most pestilent calamity of those times, that the first men of the senate performed the office of the meanest informers: some openly, many in secrecy; nor could you observe any distinction between kinsmen and aliens, friends and strangers,—whether the acts imputed were recent, or fetched from the obscurity of past times : equally for words spoken in the forum,—at entertainments,—upon whatsoever subject,—the speakers were accused, according as everyone hastened to get the start and point out the culprit : some did it for their own protection, but the generality infected, as it were, with the malady and contagion of the times. (ibid)

A prominent, reputable person and his family might be defamed and ruined by a charge that would be considered trivial today, such as consulting with an astrologist or palm reader for advice as to what a judge will decide in a pending case. They were banished or executed and their estates confiscated. Suicide prior to judgment was for a time a way to save family and fortune. Tacitus tells us of a case brought under the imperium of Nero:

A charge of recent date involved the daughter in her father’s (Soranus) peril: it was, “that she had distributed sums of money among the magi.” Such was the fact, it must be admitted; but it arose from the filial piety of Servilia, for that was her name, who out of affection for her parent, and with the simplicity natural to so young a creature, had merely consulted them “on the safety of the family: whether Nero would be disposed to mercy, and whether the investigation before the senate would issue in anything of a formidable nature”…. The accuser then questioned her, “whether she had not sold her bridal ornaments, and even the chain off her neck, to raise money for the performance of magic rites?” At first she fell prostrate upon the floor, and continued for a long time bathed in tears and speechless; afterwards, embracing the altar and its appendages, she said, ” I have prayed to no malignant deities: I have used no spells: nor did I seek aught by my unhappy prayers than that you, Caesar, and you, fathers, would preserve this best of fathers unharmed. With this view I gave up my jewels, my raiment, and the ornaments belonging to my station; as I would have given up my blood and life, had they required them. To those men, till then unknown to me, it belongs to declare whose ministers they are, and what mysteries they use; the prince’s name was never uttered by me except among the gods. Yet to all this proceeding of mine, whatever it were, my most unhappy father is a stranger; and if it is a crime, I alone am the delinquent.” …. Thrasea, Soranus, and Servilia were indulged with the choice of their mode of death…. (ibid)

The reader should keep in mind when reading Tacitus that he tended to repeat what amounted to gossip, that his accounts of Tiberius were frequently contradictory and at variance with other historical narratives. The reader may consult The History of that Inimitable Monarch Tiberius (1811) by Reverend John Rendle for a scholarly exposé of Tacitus’ history and the elevation of Caesar Tiberius into virtual sainthood. Of one thing we can be sure, the empire was pestered and plagued by common informers.

Anyone who reads the law at length today might notice that the law especially case law or casuistry is irrational, and he might therefore resort to an astrologer for advice on cases. Americans prefer their laws in writing, but then lawyers i.e. licensed delators plead cases for fees, judges interpret it for salaries. The adjudications add to the vagaries of the “unwritten” or common law, which they all are wont to say is perfectly reasonable, protecting a profession that virtually rules every walk of life.

The more sophisticated Roman delators developed some rather absurd but winning arguments at trial to prove their cases. One interesting plea, a charge of defamation, is related by Tacitus, who as a historian is a sort of common informer or denunciator since his every writing constitutes an indictment of the ruling elite of the age. He certainly was interested in defaming emperors, who were creatures of their time and culture, some of which seems to persist to this day as the Cosa Nostra or what is popularly called the Mafioso.

Here is the legal tactic: Good can be found without evil in every man and the gods he projects. When prosecuting someone for slander, testify that he pronounced all the known faults of a person, not mentioning the virtues. People who know the person will believe those things were said about him because they are true.

Granius Marcellus, praetor of Bithynia, was prosecuted for high treason by his own quaestor, Cepio Crispinus; Romanus Hispo supporting the charge. This Cepio began a species of avocation, which through the miserable times and the daring wickedness of men afterwards became very common and notorious; for, at first needy and obscure but of a restless spirit, by creeping into the good graces of the prince, who was naturally cruel, by secret informations, and thus imperiling the life of all the most distinguished citizens, he acquired influence with one, but the hatred of all, and thus exhibited an example, by following which men from being poor became rich, from being contemptible became formidable. and, after bringing destruction on others, would perish by their own arts. He accused Marcellus of “holding defamatory discourses concerning Tiberius,” a charge which it was impossible to repel, when the accuser collected all the most detestable parts of the prince’s character, and framed his accusation with reference to them; for because they were true they were believed to have been spoken. To this Hispo added,” that the statue of Marcellus was by him placed higher than those of the Caesars, and that having cut off the head of an Augustus, he had in the room of it set the head of a Tiberius.” At this (Tiberius) flew into such a rage, that breaking silence he cried out, that “he would himself, in this cause, give his vote openly, and upon oath,” that the rest might be under the necessity of doing the same. There remained even then some faint traces of expiring liberty. Hence Cneius Piso asked him, “In what place, Caesar, will you give your opinion? If first, I shall have your example to follow; if last, I fear I may unwittingly dissent from you.” Deeply affected by these words, and by how much the more indiscreetly he had let his passion boil over, by so much the more submissive now from regret that he should have committed himself, he suffered the accused to be acquitted of high treason. (ibid)

So Tiberius shamed himself, and the truth set Marcellus free. But that did not have to occur. If the sovereign had not acted so shamefully as a person at the trial, Marcellus might have been convicted of insulting the sovereignty itself, strangled and hurled down the infamous steps to rot; and likewise anyone who begged askance or who loved him enough to shed tears. By the way, the other charge, that of peculation, was referred to a court of justice with jurisdiction.

XYX

Grand Councillor Li Ssu

 LI SSU

GRAND COUNCILLOR LI SSU

BY

DAVID ARTHUR WALTERS

Although Chao Cheng of Ch’in, who became Shih Huang Ti, the First Sovereign Emperor of China, is the majestic subject of our ancient success story, we must not ignore his Grand Councillor Li Ssu, for Li Ssu was the prime minister who rationalized the power of the throne. Indeed, some say the Legalist Grand Councillor is the primary means by which the Taoist-leaning Emperor got everything done by doing nothing.

Li Ssu was a native of Ch’u. He managed to associate himself with King Cheng of Ch’in around 247 B.C., a year or two after the thirteen-year old boy-king took the throne that he would hold for twenty-seven years prior to becoming the First Sovereign Emperor of all China for another eleven years.

Li Ssu was from humble circumstances, yet he had a mind to get ahead in life and he believed there was scant future in serving the King of Ch’u. According to the Shih Chi (Historical Records) of Ssu-ma (145-86 B.C), when Li Ssu was a petty district clerk in Ch’u, he observed that the rats eating filth in the toilet room were afraid of man and dog; but the rats living in the side-galleries ate wholesome grain from the granary and were not afraid of dog or man; whereupon Li remarked, “A man’s ability or non-ability is similar to these rats. It merely depends upon where he places himself.”

Therefore Li Ssu took up the study of high politics, particularly the study of authority (shih), law (fa) and administrative method (shu) favored by the school of legal scholars who became know as the Legalists. Their primary affection was for authoritarian government in the interest of ruler and state, in contradistinction to government in the people’s interest according to the principles of humanity espoused by various Confucians, Taoists and Mohists. As early as the seventh century B.C., impersonal law had gradually begun to take precedence over ritual morality as the feudal system crumbled and power became more concentrated in the hands of absolute monarchs. Confucius (551-479 B.C.) himself complained that laws were being written on tripods (three-legged ceremonial cauldrons) while the feudal rules of moral propriety, which specified that each person should keep his place according to his relations, were being abandoned: “When those rules are abandoned, and tripods with the penal laws on them are cast instead, the people will study the tripods. How will they then honor the men of rank, and what will the nobles do? When there is no distinction of noble and mean, how can a state continue to exist?”

One of Li Ssu’s fellow law students was Han Fei, a prince of Han whose Legalist essays were soon to be greatly admired by the rising King of Ch’in. Han Fei had abandoned his Confucian studies and taken up Legalism because it was simply more practical and germane to the times: the end of the ‘Warring States’ period. But his advice was not much appreciated by the Han ruler – perhaps Han Fei’s speech impediment detracted from his presentation. In any event, Han Fei resorted to writing his ideas down, and to this day they are an invaluable aid to the understanding of the Legalist doctrine expounded not only by him but by his schoolmate Li Ssu. They are an aid as well to those of our contemporaries who want to succeed in life and who know history is an indispensable lesson to that end.

The Legalist doctrine of Han Fei and Li Ssu is in marked contrast to that of their mutual Confucian teacher, Hsun Tzu, who has been mistakenly identified as the “father of Legalism”, an absurd identification in terms of overall doctrine: if anything, Hsun Tzu was the father of his stiffest opposition. Indeed, after Li Ssu became powerful, he respected him as if he were his father, offering the venerable teacher a nominal post in Ch’in; but Hsun Tzu, by then in his nineties, declined the offer. And no doubt the proceedings of the Ch’in would have been distasteful to him. Yes, Hsun Tzu did diverge from Confucius in a few respects, especially in his belief that men are originally evil, yet he was nevertheless a staunch Confucian in his view that men can be bent straight and true not by reward and punishment but by benevolence, rituals and moral education.

“Lead the people by magnifying the sound of virtue, guide them by making clear ritual principles, love them with the utmost loyalty and good faith, give them a place in the government by honoring the worthy and employing the able, and elevate them in rank by bestowing titles and rewards. Demand labor of them only at the proper season, lighten their burdens, unify them in harmony, nourish them and care for them as you would little children. Then, when the commands of government have been fixed and the customs of the people unified, if there should be those who depart from the customary ways and refuse to obey their superiors, the common people will as one man turn upon them with hatred, and regard them with loathing, like an evil force that must be exorcised. Then and only then should you think of applying penalties.” (translated by Burton Watson, Basic Writings of Hsun Tzu)

Moreover, Hsun Tzu believed power must be tempered by justice, and wars should only be fought to end violence, and not for profit. Good people base their conduct on morality, while depraved people are motivated by profit alone: Confucius considered those profits mere passing clouds while he rested in the pillow of the crook of his arm after eating his meager dinner of rice and water. Again, Hsun Tzu believed, contrary to Confucius’ opinion, men are originally evil; and we can hardly blame him given the warring circumstances of his time. But people can be trained to be good; to that end they should study a limited curriculum, namely, the Classics, including the ones Li Ssu eventually had burned. And there is Hsun Tzu’s link to Legalism; he too advocated an authoritarian response to the troubled times, but by means of education: the central government would have a state monopoly on education. When that monopoly was perfected, there would be no further dialectic or argument presently due to a lack of respect for the ruler’s ‘shih’ (power, authority); of course the ruler would be a model of Confucian virtue. Hence Hsun Tzu despised the military methods and the reward and punishment system of the Ch’in state, and advocated Confucian virtue. His school of thought was eventually represented by the “bookish” Confucian bureaucrats of the Han Dynasty which succeeded the Ch’in Dynasty: they took part in reconstructing the cultural tradition the Legalist approach of Li Ssu and Han Fei had worked so hard to destroy; during the reconstruction, more records were lost than were burned by their predecessors, and the beloved old literature was edited into the authoritative canon handed down to us – in other words, just how Classical the Chinese Classics are is a scholarly bone of contention.

The Legalism of Han Fei and Li Ssu is an altogether different approach to government than the traditional method taught by their teacher. Legalism is a totalitarian form of positive law. Although it is “positive” in the sense it is written down for all to see and obey, it not to be confused with the positive law of a mixed government, such as a constitutional monarchy or a democratic republic, for Legalism ultimately espouses the authoritarian methods of absolute dictatorship.

Legalism does not cater to past precedent but to the needs of the present, particularly the need of the sovereign to rule absolutely, without argument. It rejects the Confucian and Mohist worship and citation of the legendary sage-emperors Yao and Shun; what really happened two thousand years ago simply cannot be known. Han Fei wrote, “To be sure of anything without corroborating evidence is stupidity, and to base one’s argument on anything about which one cannot be sure is perjury. Therefore those who openly base their argument on the authority of ancient kings and who are dogmatically certain of Yao and Shun are men of either stupidity or perjury.”

Legalism denounces moral platitudes and vain talk and demands concrete results. Legalism demands precisely formulated, officially promulgated, and rigorously enforced laws. “A law is that which is enacted into the statute books, kept in government offices, and proclaimed to the people… Therefore for law there is nothing better than publicity.” On the other hand, “secrecy” is the prescription for “statecraft”, for the internal affairs of state, not only for its tactical value in breaking up intrigues, but also to enhance the cult of flawless Royal Power; ‘shih’ is the cornerstone of Legalism, prior to ‘fa’ (law) and ‘shu’ (statecraft).

Ample rewards and severe punishments are the means of enforcement to be directly addressed to the “two handles” of the humans to be handled: pleasure and pain. The prime objective: to prevent disobedience to the ruler’s will and interest; the ruler is an uncommanded commander whose law is beyond dialectical criticism. “To execute is called punishment and to offer congratulations or rewards is called kindness. Ministers are afraid of execution and punishment but look upon congratulations and rewards as advantages,” propounded Han Fei.

Indeed, morality is irrelevant: for instance, people do not steal food because they are evil but because they are hungry; a coffin carpenter does not build coffins to be good to people but because he wants to profit from his work. The ruler’s objective is not to make people good but to restrain them from taking action contrary to the positive law of sovereign authority. Institutions should not be judged by their morality but by their adaptation to change and to the needs of the time. Han Fei writes: “People are submissive to power and few of them can be influenced by doctrines of righteousness. Confucius was a sage known throughout the empire. He cultivated his own character and elucidated his doctrines and traveled extensively within the four seas (China). And yet only seventy people became his devoted pupils. The reason is that few people value humanity and it is difficult to practice righteousness.” And we note that the number of disciples known are half of the ever popular number (seventy) stated.

The ruler must realize that his interests are contrary to those of his subordinates and his own family; he should have no confidence in them: he must hold the supreme, absolute power in his hands alone. If he has confidence in someone, that person will oppose him or will be used by others to subvert his rule. But if he selects his ministers well, on merit alone; if he retains and rewards those who do well, while getting rid of hypocrites and severely punishing mistakes, his government will succeed, even if he is an average or immoral man: society cannot afford to wait around for a hundred or a thousand years for a sage-king or morally superior man to appear on the scene, hence positive law must be the sole guide.

Of primary importance is Equality under law, the equal application of law regardless of the status of the person judged. “If rewards are bestowed according to mere reputation, and punishments are inflicted according to mere defamation, the men who love rewards and hate punishments will discard public law and practice self-seeking tricks and associate for rebellious purposes…” wrote Han Fei.

Of course the ruler will craftily use statecraft to foil plots and intrigues. Rising above all differences to the Equality or “emptiness” of Perfection, he is the inscrutable Power behind the scenes, the Natural Law uniting Heaven and Earth. He is the Pole Star to whom all must turn. He is the Sun, the Central Inspector on tour. He allows everything to fall into place, the assumers to show their hands, the hypocrites to display the disjunction between word and deed, and then….

Mysticism may seem unfitting to the Legalist context of positive law and amoral social science, but we must not be fooled by logical appearances of propriety. Students of Taoism will certainly want to study Han Fei’s comments on the Tao in the context of the relation between the First Sovereign Emperor and his prime minister Li Ssu to see the practical, Legalist application of the occult teaching. Han Fei was fond of Taoism and incorporated it into his Legalist doctrine: “By virtue of resting empty and reposed, (the ruler) waits for the course of nature to enforce itself so that all names will be defined of themselves and all affairs will be settled of themselves. Himself empty, he knows the essence of fullness; himself reposed, he becomes the corrector of motion. Who utters a word creates himself a name; who has an affair creates himself a form. Compare forms and names and see if they are identical. The the ruler will find nothing to regret, since everything is reduced to its reality…” indited Han Fei.

Last, but certainly not least, the economy: the economic strength of the Legalist state depends on its military might. The ruler will encourage productive enterprises such as farming, and discourage unproductive occupations such as that plied by the hordes of scholars who sow the seeds of dissension disguised as benevolent humanism… Giving to the poor what has been earned by the rich is both unfair and unwise.

Now, then, after Li Ssu had completed his studies of the foregoing doctrine, he decided to go to the state of Ch’in to take advantage of the ongoing wars which he perceived as a golden opportunity for politically minded commoners to rise in their careers; while losers, of course, remain passive in mean circumstances. Before departing for Ch’in, he remarked that the King of Ch’in “desires to swallow up the world and to rule with the title of Emperor… One who, abiding in a mean position, decides to remain passive, is like a bird or deer that will merely look at meat… But one who possesses a human countenance can act vigorously. Hence there is no greater shame than meanness of position, nor deeper grief than poverty. To remain long in a mean position or in a condition of privation, criticizing the world, despising profit, and committing oneself to the principle of Non-activity (principle of Taoism) – such is not the nature of a gentleman. Therefore I intend to go westward to give counsel to the King of Ch’in.” (The Shih Chi, Historical Record, quoted here and hereafter)

And the proactive counselor did just that. Li Ssu obtained a position at Ch’in Councillor Lu Pu Wei’s office, and he soon had a chance to speak to the King about the golden opportunity to exercise power over the entire country: “The small man,” said Li Ssu to the King, “is one who throws away his opportunities, whereas great deeds are accomplished through utilizing the mistakes (of others), and inflexibly following them up… The feudal lords at the present time are paying allegiance to Ch’in, as if they were it commanderies and prefectures. With Ch’in’s might and the King’s great ability, (the conquest of the other states would be) like sweeping (the dust) from the top of a kitchen stove. (Ch’in’s power) is sufficient to obliterate the feudal lords, bring to reality the imperial heritage, and make of the world a single unity. This is the one time of ten thousand generations.”

King Cheng, pleased with this advice, made Li Ssu Senior Scribe and “listened to his plans, and had him secretly commission plotters, bearing gold and precious stones, to travel about and advise the feudal lords.” Those who took heed were rewarded; those who did not were “stabbed with sharp swords.”

Li Ssu became Alien Minister. Shortly thereafter, a plot by an alien in Ch’in was exposed: upon the urging of his ministers, the King order aliens including Li Ssu expelled from Ch’in. As the former Alien Minister approached the border to leave the state, he sent back a memorial to the King, setting forth an extended argument in favor of employing aliens. In short, since the state of Ch’in owed its prosperity to sound advice given by alien advisors to former Ch’in rulers, as well as to the importation of the good things in life such as treasure, music, dancing, and beautiful women, it would be extremely unwise to expel aliens from the country. “Now there are many articles not produced in Ch’in and yet valuable, and numerous gentlemen who have not been reared in Ch’in and are yet desirous of being loyal. If at present you expel aliens so as to give increment to opposing states, and decrease your people so as to make addition to the enemy, then you will find yourself depopulated at home and will have established (sowers of) enmity against you among the feudal lords abroad. Should you then wish to have the country without danger, you could not obtain it.”

The King rescinded the order to expel aliens and Li Ssu was recalled to office. Another alien, Li Ssu’s old schoolmate Han Fei, was forced to commit suicide by an apparently jealous Li Ssu – the very sort of thing Han Fei had expressly warned rulers about.

No doubt the ancient School of Five Elements powered by Yin and Yang would be amused by our maxim, “What goes around comes around.” Li Ssu had an occasion to write yet another, even more critical “memorial” in prison, just prior to his execution after more than thirty-five years of distinguished and mostly loyal service to the First Sovereign Emperor. Just two years after the Emperor’s death, Hu-hai, his youngest son and illegitimate successor, had Li Ssu convicted on trumped-up charges of sedition, and punished by being cut in half at the waist in the market-place of the capital.

Unfortunately for Li Ssu and the future of the empire, Li Ssu had reluctantly participated with Hu-hai and the evil eunuch Chao Kao in the conspiracy to prevent the eldest royal son Fu Su from taking the throne. Li Ssu knew too much; he had to be disposed of. He falsely confessed to sedition under torture of one-thousand floggings. Yet in an attempt to escape the death penalty, he submitted a “memorial” or confession of his “crimes”, which were really his accomplishments. The list includes many achievements I shall with all due respect, in yet another chapter of this ancient, success story, attribute to the majestic First Sovereign Emperor of China. After all, His Majesty has the Power to get everything done by doing nothing himself, and He may have his Grand Councillor executed at any time. But it would be unfair to conclude without citing Li Ssu’s memorial, rejected by Chao Kao on the grounds that it is inappropriate for prisoners to submit memorials.

“Your servant has become Grand Councillor, and has administered the people for more than thirty years. When he arrived within Ch’in’s narrow confines, during the time of the former King, Ch’in’s territory did not exceed one thousand li, and its soldiers did not number more than a hundred thousand. Your servant used his meager talents to the utmost, carefully establishing laws, secretly sending out plotters, giving them gold and precious stones, and causing them to travel about and advise the feudal lords, and secretly to prepare armor and weapons. He spread the teachings of (imperial) government, gave position to men of arms, honored meritorious officials, and enriched their ranks and revenues. In this was it was possible to seize Han, weaken Wei, destroy Yen and Chao, raze Ch’i and Ch’u, and so finally annex the Six States, make captives of their kings, and establishing (the King of) Ch’in to be Son of Heaven. This is his crime number one.

“(Although thus Ch’in’s) territory was certainly not lacking in extent, he also expelled the Hu and Ho (barbarians) along the north, and imposed rule upon the various Yueh in the south, thus manifesting Ch’in’s power. This is his crime number two.

“He honored the great ministers and enriched their ranks and position, so as to strengthen their attachment. This is his crime number three.

“He established the altars of the soil and grain, and repaired the ancestral temple, in order to make his ruler’s merit illustrious. This is his crime number four.

“He reformed harmful policies, equalized the tou (10.35 litres) and hu ( 5 tous) measures, the measures of weight and size, and the written characters, and made these universal throughout the empire, thus establishing Ch’in’s fame. This is his crime number five.

“He laid out imperial highways and inaugurated (imperial) tours of inspection, in order to show (to the people) that their ruler had attained to his every desire. This is crime number six.

“He relaxed the punishments and reduced the collection of taxes in order to further his ruler’s (efforts to) win the hearts of the masses, so that the people might honor their ruler and not forget him after death. This is his crime number seven.

“The crimes of one who, as a minister, behaved as (Li) Ssu had done, would certainly have merited death already long ago; yet the Emperor has been gracious enough to make use of his ability to the utmost even unto the present time. May it please your majesty to look into the matter.”

Li Ssu was executed along with his alleged co-conspirator, his second son, Yu. As they were being led from the prison, they reminisced about hunting hares with their old yellow dog, then wept. Their kin were exterminated to the third degree – parents, wives, brothers, children.

Quoted Sources:

All quotes of Ch’ien Ssu-ma’s (145-86 B.C.) Shih Chi (Historical Record) are taken from Derk Bodde’s translation set forth in his book, China’s First Unifier, published by Hong Kong University Press in 1967. Derk Bodde’s works are an indispensable standard Western reference for the student of ancient China.

All but the last two quotes of Han Fei are taken from Wing-Tsit Chan’s translation in his book, A Source Book in Chinese Philosophy, published by Princeton University Press in 1963.

The last two quotes of Han Fei are from E.R. Hughes’ translation of Han Fei in his book, Chinese Philosophy in Classical Times, published by E.P. Dutton, New York, in 1954.

Arthur Probsthain of London has published W.K. Liao’s translation, The Complete Works of Han Fei Tzu, to which the serious student is recommended.

 

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