The Preamble as a Trust Instrument
I don't think many if any of us have looked upon the Preamble as a writing establishing a trust, and if we have, the full legal meaning has never really struck home. Blacks Law 5th Edition defines "trust" as:
"A right of property real or personal, held by one party for the benefit of another. A Confidence reposed in one person, who is termed trustee, for the benefit of another who is called Cestui Que Trust (Beneficiary) respecting property which is held by the trustee for the benefit of the Cestui Que trust. Any arrangement whereby property is transferred with intention that it be administered by trustee for another's benefit.
The written history of Trusts or Uses go back to Biblical times. Our particular laws regarding them were derived from English Law and the Restatement of Trusts. The "restatement" is simply a restatement of the English "Use" Statutes.
Restatement, Second Trusts Sec. 2 . . is a fiduciary relationship with respect to property, subject in the person by whom title to the property is held to equitable duties to deal with the property for the benefit of another person which arises as a result of a manifestation of an intention to create it.
Does not our Constitution hold certain rights in trust for us to be used exclusively by us? This is property. Rights are property, Rights are corporeal and incorporeal hereditaments. The Trustees are the Legislators, they were "granted" authority to maintain the Trust. The Trustees were also granted the authority to make money to maintain the Res in proper condition. They were not granted the Authority to Change the Intent of the Original Trust, except by written change. That is what the 14th Amendment did. It created a new trust and trust res. It created a new Estate.
How do I recognize the Preamble and Constitution as a Trust? Let us look first at the requisites of an Express Trust.
1. It must have a competent settlor and trustee.
2. It must have an ascertainable Trust Res.
3. It must show sufficiently certain beneficiaries.
4. A trust comes into being only upon execution of an intention to create it by the parties having legal and equitable control of the subject matter of the trust.
Does the Preamble and Constitution show a competent settlor and define the trustees? Yes it does. The settlor is established as "We the People". And the body of the constitution, (Articles) establishes the trustees and their duties.
Does the Preamble and Constitution ascertain the trust res being passed on?(10) Absolutely. "The Blessings of Liberty". Keep in mind the founding fathers had already defined the meaning of liberty prior to the establishment of the Constitution. If you require someone else to tell you what your liberties are and define them for you, then YOU ARE NOT FREE.(11)
Does the Preamble show sufficient, certain beneficiaries? Absolutely! To "ourselves and our Posterity".
Did the founding fathers have equitable control of the subject matter discussed in the Preamble and Constitution? Absolutely!
Does the Preamble state an intention (12) for which the document was created. It certainly does. "In Order to form a more perfect Union, establish Justice, Insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity".
Does it show an intention to manifest? Yes. "Do ordain and establish this constitution for the United States of America" In just a few words the Founding Fathers created a document of immense meaning.
An express trust or as they sometimes are called are "direct" trusts and are those trusts INTENTIONALLY created by the direct and positive act of the settlor by some WRITING, deed, OR WILL, or oral declaration.(13)
The Founding Fathers were not ignorant farmers, they were highly educated. They knew about Uses, Trusts, Hereditaments, Conveyances, Fraud, Uses, and Wills. In that day and age it was a requirement to know Latin and Greek to enter a College of higher learning.(14)And they knew these languages at an early age. Their legal knowledge was implemented in the making of the Constitution. Why? Fraud, the founders did not want to commit fraud any more than we would and their writings were legal under the Statute of Frauds.
Can you see the Statutes of Henry VII, Elizabeth I and Charles II in the following American Laws?
"A writing not intended specifically by the parties to be used as an actual memorandum of trust, may never the less, be sufficient to satisfy the Statute of Frauds" Restatement, Trusts 2d sec. 47.
"A typical provision of the Statute of Frauds is that a writing required to create or manifest a trust be signed by the parties creating or declaring the trust."
"A Memorandum is sufficient to satisfy the Statute of Frauds, it sets forth with reasonable degree of definiteness the trust property, the beneficiaries and the purposes of the Trust", Restatement 2d section 46.
Do you see that the Preamble qualifies under even the last quotation. Do you think George and the rest of the good ole boys wanted to be caught at FRAUD? Absolutely not! The Constitution was created in the form of a trust so as to stand under the Construction of documents and under the laws of the day. This document was not just thrown together without forethought and without complete knowledge of the then existing laws.
Just because the Preamble is called Preamble and not Trust does not mean it changes the character of the document. "The Test is not what the instrument is called but what the person executing it designed to have it accomplish".(15)
10. Trust res: The property of which the trust consists.
11. Freedom does not mean unrestraint, nor lawlessness. To the contrary, with true freedom comes heavy responsibilities, moral and ethical responsibilities. I do not condone blatant injury, disregard or disrespect for someone else or their property.
12. The cardinal rule of construction is, of course, to determine the intention of the parties, where such a creation is a bilateral matter. Colton v Colton 127 US 300, 32 L Ed 138, 8 S Ct 1164.
13. 76 American Jurisprudence 2d section 15
14. The AVERAGE reading ability of a normal person, at the time the constitution was created, was equivalent to 17 years of formal education. Today's average reading ability is 7 years of formal education. The founding fathers had a formal education equivalent to a masters degree. They did not sit around the "tube" all night, they read and stimulated their minds with knowledge.
15. 79 American Jurisprudence 2d Wills, Section 24
Points & Authorities :
- What's This All About
- Preamble Explained
- Inheritable Property
- Trusts in General
- Trusts by Operation of Law
- Preamble Religious Intent
- Constructive & Spendthrift Trusts
- Rules under a Spendthrift Trust
- Breach of Trust
of a Trust
- Doctrine of Election
- Common Law Social Security
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