Nitty Gritty Law Library
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AMERICAN LAW: a Thumbnail Sketch
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A legend says Rome was established by the demi-god brothers, Romulus and Remus, on April 21, 753BC. The brothers argued over control of the city, but it was quickly settled when Romulus killed Remus. Betwixt the 8th and 6th centuries BC, Rome developed into a major commercial power. In 509BC the last of seven kings was deposed and Rome became a republic. The Republic lasted until 27BC, at which time it became an empire headed by Augustus. Rome Controls England – Roman Civil Law (Senate) For almost 400 years Rome imposed the Civil Law on its English subjects, civilians who became civilized. Power was distributed from top to bottom. The system consisted of a legislature that created laws, a praetor that administered the laws [and often created his own laws], and the citizens. The praetor was somewhat like a county sheriff who administered the laws while standing between the powers-that-be and the subjects. Barbarians Control England – Divine Right of Kings During the waning days of Rome the Barbarians were allowed to immigrate & occupy government offices. Eventually the Barbarians in the Roman military overcame the Roman structure and imposed their own system. However, there were not enough Barbarians to fill the offices, so they had to utilize the existing personnel to administer the vast Roman Empire. Implementation of the law of the Barbarians was effectively filtered through administrators trained in the Roman law. The result was somewhat a mixture in effect. The Barbarians introduced the concept of Divine Right of Kings. The king was the first visible source of God's law. Power flowed from the king It was not possible for the king to break the law. If the king acted contrary to the law, it just meant for that moment that the king changed the law. Vikings (Norsemen) Control England – Common Law (the law of the people) The Vikings brought to England the concept that power flowed from the people to the king. The king was subject to a jury of Vikings. There were even fewer Vikings than there were Barbarians. The existing administrative structure became an imperfect mixture of the three systems of law: (1) Roman Civil Law, (2) Divine Right of Kings, and (3) Common Law. Emergence of British Culture Magna Carta The next 160 years saw a great refinement of the legal system. One of the most important developments was the Habeas Corpus, which originated in 1166 with the Assize of Clarendon. The Divine Right of Kings became the dominant philosophy. With the increase of royal power came the increase of royal abuse. The seventh British King, King John, pushed too hard and the nobility rebelled. The nobility had enough of King John's private wars, taxes, and conscription of their personnel. On June 15, 1215, some noblemen cornered King John by the Thames River at Runneymead, and promised him that they would not cut his head off if he signed the Magna Carta. He signed it. Later, the noblemen secured the blessing of Pope Innocent III. Neither the King nor the Pope intended to honor the document, but they were too politically weak to not honor it. As Providence would have it, by the end of 1216, both the King and the Pope died. The new King and Pope were not politically well established. The nobility immediately had the King and Pope recertify/bless the Magna Carta (and every British monarch has done so since). The Magna Carta radically change the power structure. The Viking philosophy was tentatively reinstated: the king became subject to the Grand Jury of 25. Still, the road to freedom was rocky.  Confirmatio Cartarum 81 years after the Magna Carta, it became apparent that an adjustment was necessary. On October 10, 1297, King Edward signed the Confirmatio Cartarum. It locked in the Magna Carta as the Common Law upon demand by a defendant. In those days, a plaintiff would go to the law court and sue (with our without a jury) only for money as compensation for his loss. There was no way in a law court to stop the city from bulldozing his house. If a non-monetary remedy was needed, he would make a motion for a writ [no longer required] to allow him to take his case to the King. The King, being very busy, would authorize his right-hand-man, the chancellor, to hear the case. The chancellor was busy, too. So he would delegate the case to the court of chancery. The chancellor and his minions had all the same Divine-Right-of-Kings authority as the King himself, except on appeal the King could override the chancellor's decision. Because the King or his delegee were making new law tailored to the situation, there was no right to a jury as with a law court. American Revolution It's a known fact: historically, governments continuously grow until they consume their own citizens. On average, they last about 200 years. Many notable persons such as Benjamin Franklin tried to stop that pattern for the Colonies. But King George would hear none of it. The inevitable happened. Americans rejected British rule first with the Continental Association, then with the Declaration of Independence. In retaliation, King George canceled all the charters. For the initial years America, with no "legal" structure, was run by common law grand juries. Following the Declaration of Independence were the Articles of Confederation, the Northwest Ordinance, and the Constitution for the United States of America. President Abraham Lincoln, an attorney, considered each of the last 4 documents as a concurrent constitution for the USA. In 1776, the USA continued with the common law of England. After that we made some significant changes, which seriously denigrated the system. First, the chancery (equity) court was procedurally combined with the law court. So far as the Constitution is concerned, they are still theoretically separate. But, by physically combining the two courts under one judge, it made it easier for judges to control the outcome of cases, which in turn leads to greater corruption. Litigants and their attorneys no longer have a clear perception of when they are at law and when they are in equity. Here's a hint: Statutes & Codes are not law. They are equity rules which the judge can enforce, modify, or suspend. The only real law is the common law, i.e. the unwritten custom and usage of the people, which the judge may not affect: e.g. see U.S. Constitution, Amendment 7. The 1789 Constitution introduced the ancient concept of a republic. One feature is that the people of the United States are sovereign. Sovereign means not accountable to any higher authority. As specified in the Constitution's Preamble, the people ordained and created the Constitution for the United States of America, a public corporation. The USA is a public trust located in the District of Columbia. By the way, it's easy to know when a country is actually a corporation: it has a president, secretary, and treasurer. Real countries, such as the American states, have governors. One could say that the USA is the world's 7th smallest country with only 68 square miles of land. A second significant change is that the states are actually countries that have clipped sovereignty, meaning some of their sovereignty was transferred to the Federal government. California Government Code specifically states, "Section 100 (a) The sovereignty of the state resides in the people thereof". Section 54950 states, "The people of this State do not yield their sovereignty to the agencies which serve them." The bottom line is this: Neither the States nor the Federal government have any sovereignty of their own. Their purpose is to serve the people. You recall that America inherited three systems of law: (1) Roman Civil Law, (2) Divine Right of Kings, and (3) Common Law. The people live by custom and usage (common law). Ask anyone, "Have you ever read any of the laws? Of course he hasn't, unless he's an attorney. People live by their basic sense of right and wrong, not because they read a rule somewhere. The Legislature and the Executive Branches operate by statutes and codes (Roman Civil Law). The courts operate in one of two modes: Law and Equity. The only law court is a "court of record" which proceeds in accordance with common law procedure. The judge has no authority to exercise any discretion. His job is to administer the common law and the laws of the sovereign. In a sense, one could say he is the highest clerk in the court. All other courts, regardless of name, are equity courts. In the absense of the sovereign power, the judge acts as if he were sovereign invoking the Divine Right of Kings, subject only to appeal to the sovereign. The judge has unlimited discretion to apply the statutes and codes, change them, suspend them, and make up his own rules. When a case is filed, unless your paper is written otherwise, the presumption is that you are proceeding according to equity rules, i.e. statutes, codes, regulations, and rules of court, but not common law. |