What Went Wrong? Identifying Root Causes
Negotiating With The Warden—From Master To Serf
Part 2 of 5
 

Common law is founded upon substance, meaning allodial land titles or property or rights to property, all of which presuppose natural rights. It consists of principles and rules of action applicable to the government and to the security of individuals and their property. This body of law accumulated throughout history, revealed in the decisions of the judges based on the elements of cases presented to them. For the United States, it amounts to the statutory and case law of England and the American colonies before the American revolution.[4] In modern times legislatures have adopted much of its substance into positive law.

To qualify as positive law the statute must specify at least three things: It either prohibits or compels an action, it identifies to whom the law applies, and it designates a penalty for conviction of breaking that law. Laws prohibiting theft are simple examples. They apply to everyone and the penalties are often specified based on the value of the property taken.

The common law holds individuals accountable for substantive crimes, that is crimes where there is a loss or damage to the life, liberty or property of another. The forms of its actions are case law,[5] replevin,[6] trespass[7] and trover.[8] Its purpose is to dispense justice, ultimately based upon the doctrine of “an eye for an eye.”
 

Unlike the common law, founded upon property or the rights to property, civil law springs from potentiality upon property. The former is called law, the latter equity. Admittedly, this is an oversimplification, but it neatly expresses the essence of the subject. Civil law contemplates acts, not necessarily malicious, that might cause damage through fault, negligence, or imprudence. The term ‘damage’ as used here extends far beyond physical and economic injury to recognize such things as personal pain, suffering and even embarrassment.

Equity represents an attempt to soften the sometimes harsh, brutal, plainly stated general principles of the common law with fairness. It “denotes the spirit and habit of fairness, justness, and right dealing which would regulate the intercourse of men with men.”[9] First practiced in the civil courts or courts of equity, also called courts of chancery, it afforded relief that courts of common law were powerless to grant. This relief amounted to a directive from the court to lawful authorities to enforce, redress, or protect private rights, meaning contractual rights.

The beginnings of both common and civil law are now lost somewhere back in antiquity. Examples have been identified in 6,000-year-old records and undoubtedly existed before the invention of writing. Roman civil law, particularly as set forth in the compilation of Justinian[10] and his successors, and the Napoleonic Code enjoyed extensive use in Europe and were not unknown in medieval England. Article 48 of the Magna Charta, reluctantly signed by King John of England at Runnymede in 1215 with the barons holding a sword at his throat, acknowledged the right of foreign merchants “to buy and sell according to their ancient customs,” meaning according to their private laws of commerce.

This early commercial law, a part of the International Law or Law of Nations which came to be known as Lex Mercatoria or the Law Merchant, was simply a collection of treaties made by European merchants in pursuit of systematic trade. In the 13th Century some cities of northern Germany established a trade-union among themselves. Known as the Hanseatic League or the Hansa, this association worked for mutual protection from the lawless attacks of marauders on land and pirates on the high seas. It became a great political success, primarily through its development of a better system of commercial law.

By necessity, the Law Merchant or mercantile law is similar, and in many respects identical, in all civilized nations. Its single object is to prevent losses when buying, selling and transporting goods.[11] In England it was prosecuted summarily under protection of the Crown in the Courts of the Staple. Member merchants, both foreign and domestic, usually dealing in a particular commodity for export, gathered here. An officer, elected annually by the members and called the Mayor of the Staple, served as chancellor. Disputes between members were placed before the Mayor and other selected mediators. Their private mercantile law provided that all parties to a dispute must bring their books and records for the court to examine. It further provided that disputes in which one party was a foreigner should be tried before a jury, one-half of whom were foreigners.
 

These jurors served as mercantile advisors. They did not determine the guilt or innocence of individuals as in criminal cases or settle disputed titles to property as in common law cases. Instead, they gave the Mayor their opinions on how to make a fair settlement in the commercial cases before the court. Decisions of the Mayor, acting on his own judgment and on his authority as chancellor, were final, the only appeal being to a higher chancellor or to the Crown. This procedure, which bypassed the common law courts, was known as the dispatch (meaning quick settlement) of merchants.

It was in these equitable Courts of the Staple sanctioned by the Crown that merchants brought suit against debtors.[12] The debtor might, in an appearance before the Mayor, acknowledge his debt and agree to pay. If he was unable to pay, his property, up to the amount of the debt, could be seized and sold by court order. These court orders were the infamous writs of assistance. When debtors were unable to pay and had no property, the Mayor would have the individual, provided he were a commoner, thrown into the town prison. If relatives or friends did not obtain release by paying the debt or furnish the prisoner with food, often not adequately supplied by prison authorities, the debtor likely died there.

In 1756 Lord Mansfield became Chief Justice of the King’s Bench in England. He incorporated large portions of the European civil law, including private mercantile law, into English common law. The action of assumpsit for debt then became an equitable action, denying the people trial by jury on writs of assistance. Among other things, attempting to force this yoke on colonial necks led to the American revolution.

The Founding Fathers understood the application and limitations of both law and equity. In the Constitution at Article III, § 1 they established the judicial power of the United States in the “supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” And in Article III, § 2, cl. 1 they declared that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; …”

Federal courts have power to decide cases in both law and equity that come before them under the laws of America, its treaties or its Constitution. But Congress retains considerable authority over the courts, not the least of which is through the laws that it makes and the treaties that it approves. Article I, § 8, cl. 3 gives Congress the power “To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes” and cl. 10 provides power “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”

Mercantile law is part of the “Law of Nations,” contrived to protect commerce. It was never the positive law of any particular country, even when incorporated into various uniform national or state commercial codes, but a private, consensual, voluntary practice of a merchant class. The Constitution itself shows that its framers had every intention of adopting and using the best parts of Lex Mercatoria for the regulation of commerce. And their revolt against English rule proves that they never intended it to dominate the relationships between government and the family or the church.

So what went wrong? In a futile attempt to promote public welfare and to obtain “right dealing” and security, people sold themselves into indentured servitude. The lawyer-politicians, using taxpayer funds, organized and administered the sale at which the nation’s financial and governmental institutions purchased American birthrights with the people’s own labor. Judges, sitting in the federal courts of equity, pronounced it legal, establishing their rulings on a cunning shift in the hierarchy of natural rights.
 

4 Black’s Law Dictionary, Fifth Edition — “Common law” 
5 “Case law” — the aggregate law of a particular subject distilled from the adjudged cases. 
6 “Replevin” — An action by which an owner may repossess his property from one who holds it wrongly; also, a means of examining the legality of an imprisonment, now superseded by the writ of habeas corpus. 
7 “Trespass” — An action to recover damages for any injury to one’s person, property or relationship with another. 
8 “Trover” — A remedy to recover the value of personal property wrongfully converted by another for his own use. 
9 Black’s Law Dictionary, Fifth Edition — “Equity” 
10 “The Code of Justinian was a collection of imperial constitutions, compiled, by order of that emperor, by a commission, and promulgated A.D. 529. It comprised twelve books, and was the first of four compilations of law which made up the Corpus Juris Civilis.” Black’s Law Dictionary, Fifth Edition — “Code Civil” 
11 Articles on Mercantile Law from American Universal Cyclopedia Volume IX, New York 1884, S. W. Green’s Son as quoted in The Dispatch of Merchants by Bill Avery, (1976, Bill Avery Memorial Library, 1633 174th St., Hammond, IN)
12 Digest of the Laws of England, Comuns, 1800, quoted by Avery, Ibid., p. 49