Once upon a time, there was a fair land called England.
All the English were free men and most of them were serfs. All the
English were self-governing in counties run by sheriffs appointed by
kings, the descendants of a foreign conqueror. England alone enjoyed the
Common Law, handed down by Moses, and dating from 1215 A.D. Secured by
the Common Law, all men's property was inviolable, and it all belonged to
the king. The Common Law, also known as Natural Law and God's Law, only
restricted conduct that harmed the person or property of another, such as
swearing, fornicating, possessing weapons in the royal forests,
converting to Judaism, and dreaming that the king had died. There was
complete religious freedom, i.e., Roman Catholicism was the state church,
attendance at services was compulsory, and heretics were executed. As
perfect, as unchangeable as the Common Law always was, it got even better
when free and prosperous Englishmen fleeing persecution and poverty
brought it to America. They repaired there, as Garrison Keillor quipped,
to enjoy less freedom than they had in England.
As fantasy, this Common Law England would never find a publisher: it's
not nearly as believable as Narnia or Never-Never Land. You don't even
have to know any real law or history to notice that it's nonsense. But as
myth, it appeals to increasingly frustrated conservatives, libertarians,
fundamentalists, and conspiracy theorists --
"Constitutionalists" -- with an urgent transrational need to
believe that the world was once the way they want it to be. The deeper
allure of Constitutionalism is that it purports to be not only history
which explains, but technique which controls. Resentful and suspicious,
Constitutionalists are sure that conniving judges, legislators, and
lawyers switched their own false law for the real law when the
people weren't looking. But the real law, the Common Law, lives still,
for it is deathless; it is God, Nature, and Reason all rolled up in one.
Although Constitutionalists loathe lawyers, they outdo them in their
reverence for Law, their solemn obeisance to what Oliver Wendell Holmes
mocked as a "brooding omnipresence in the sky."
Constitutionalists look upon law as the word-magic of lawyer-necromancers
who draw their wizardly powers from grimoires, from books of magic spells
they have selfishly withheld from the people. Constitutionalists have
extracted from these books -- from judicial opinions, from the
Constitution, from legal dictionaries, from the Bible, from what-have-you
-- white magic with which to confound the dark powers of legislation,
equity, and common sense. Never mind what words like "Sovereign
Citizen" or "Lawful Money" mean -- what does
"abracadabra" mean? -- it's what they do that counts.
Unfortunately, Constitutionalist words don't do anything but lose court
cases and invite sanctions. Constitutionalism is the white man's version
of the Ghost Dance. Believing you are invulnerable to bullets puts you in
more, not less, danger of being shot.
Jutting out of the wreckage called Constitutionalism are a few more
elevated piles, such as "Common Law" and "Magna
Carta." These are, if in no better repair than the rest of the
ruins, at least of respectable antiquity. Back when little was known of
English legal history -- when history as a discipline scarcely existed --
ingenious jurists like Selden, Coke, and Hale manipulated these hoary
myths to win some limited victories over royal absolutism and
arbitrariness. Even if Constitutionalists were juridical Jack Kennedys
and not, as they are, Dan Quayles, the conditions for getting away with
pious lying about these parts of the past no longer obtain. Good history
does not necessarily overthrow legal orthodoxy, but by now bad history
never does. So unprincipled are judges and lawyers that they will even
tell the truth if it serves their interests. Consider, for instance, the
unscrupulous way in which they might point out what the Magna Carta
actually says and what the Common Law actually is.
Constitutionalists revere the Magna Carta, but if they were to read it,
they'd be baffled. Expecting to find, as libertarian Constitutionalist
Ken Krawchuck says, "many of the rights we still enjoy today,"1
they'd find themselves adrift in an alien, feudal world of
"aids," "wardship," "scutage," "knight
service," "reliefs," "wainage," "castle
guard," "socage," "burgage," and other arcana
even medievalists toil to comprehend.
The Magna Carta -- extorted from King John by a few dozen rebellious
barons in 1215, a dead letter within three months, voided by England's
feudal overlord, the pope -- did almost nothing for almost all of
England's two million people. It confirmed or created privileges for
churchmen and barons, occasionally for knights, and in only two instances
for "free men." Most Englishmen were villeins, not freemen. And
as historian Sidney Painter has written, "Whenever provisions of the
Charter seem to benefit the ordinary man, a close examination will show
that it is his lord's pocketbook that is the real cause of concern."
It was only a question of who would do the fleecing.
The Great Charter has nothing to say about free speech, unreasonable
searches and seizures, self-incrimination, the right to bear arms, free
exercise of religion, obligation of contracts, ex post facto laws,
bills of attainder, petition and assembly, the obligation of contracts,
excessive bail, right to counsel, cruel and unusual punishment,
indictment by grand jury, etc., etc. Far from forbidding even involuntary
servitude, it presupposes it (chs. 17, 20, 23). Far from forbidding the
establishment of religion, it confirms it in its very first provision
(ch. 1).
The real Magna Carta was not even remotely libertarian in content. Modern
libertarian notions such as self-ownership, laissez faire ,
greatest equal liberty, the nightwatchman (minimal) state, even private
property itself would have bewildered the signatories of the Magna Carta.
They understood liberties, not liberty; privileges, not property. The
free market was a concept of the far future: "markets" were
times and places where the government authorized buying and selling.
Property rights were derivative and relative -- except for the king,
nobody owned anything "allodially" (absolutely). Rather, title
(ownership) was relative to other claims, and in theory always
subordinate to the king. Constitutionalists disparage legislation, but
that's all the Magna Carta ever was, amendable and repealable like any
other statute. By 1992, only three of its 63 provisions were still on the
books.
In the guise of declaring custom, Magna Carta changed the law, violating
what Constitutionalists consider the Common Law. They cherish the county,
for instance, to which the sheriff was answerable (they suppose), but the
Charter forbade sheriffs and other local officials from hearing the pleas
of the Crown (ch. 24). It is as if the U.S. president issued an executive
order that felonies should be tried only in federal courts!
As for this Common Law (cue the angelic chorus here), just what is
it anyway? The term has at least a half dozen meanings. It might refer to
English law as distinguished from the civil-law systems of Europe. It
might be "law" as distinguished from "equity," i.e.,
the law of the royal courts at Westminster distinguished from certain
distinct doctrines and remedies administered by another royal appointee,
the Chancellor. It might refer to judge-made rather than statutory law.
Perhaps most often it referred to the law "common" to all
Englishmen, the national law as opposed to the varied local law enforced
by manor and hundred courts, borough courts, and courts leet. Ironically,
if there was ever a trace of truth to the Constitutionalist dogma that
the people in juries "judged the facts and the law," it was in
the local courts outside the Common Law. And it was the law of these
courts with which ordinary Englishmen were most familiar and which, as
Julius Goebel has shown, most heavily influenced colonial American law.
As if "Common Law" were not a phrase already overburdened with
meanings, Constitutionalists load on even more. They equate Common Law
with Natural Law, with Natural Reason, with Christianity, and even with
(as Krawchuck says) "common sense." His example is common-law
marriage: "If a guy and girl live together for seven years, they're
married; it's the common law. It's plain common sense."2 It's
neither. Mere cohabitation never married a couple in England or America.
There was apparently no such thing as nonceremonial "common
law" marriage in England at all. In America, a "common
law" marriage required, not just shacking up, but an agreement to
marry and a public reputation as being married. As for "common
sense," why seven years? Why not six years and eleven months? Why
not five years? A lot of legally solemnized marriages don't last that
long these days. Since when was common sense so dogmatic?
Constitutionalists say that the Common Law is based on litigation over
property (more precisely, real property -- land -- although as their
generalities go this one is not too far wrong). Under Common Law, real
property descended to the oldest male -- except in Kent, where partible
inheritence among male issue obtained, with the proviso that the
youngest son inherited the household. Nowhere did it descend to a
female if there lived a male heir, however remote the relationship. Why
is primogeniture common sense everywhere in England except Kent? Or
consider the Common Law doctrine that in marriage, husband and wife
become legally one person -- and that person is the husband. If this is
common sense, so is the Holy Trinity, a kindred doctrine. It implies that
wives have no property rights, which was very close to their legal
situation in England and colonial America. But libertarian it is not.
Krawchuck has an illustrious predecessor: England's first Stuart king,
James I. In 1607, the king announced that he would join his judges on the
bench. Common Law, he had heard, was "Natural Reason" -- as
Krawchuck would say, common sense -- and he had as much Natural Reason as
anybody! Gently but firmly, Sir Edward Coke corrected His Majesty. It was
true that the Common Law was based on Natural Reason, but it was not
identical with it. To expound "the Artificial Reason of the
Law" required experts: judges.
There was never any such Manichean (or Tolkienesque) war of good with
evil -- of the Common Law against the equity and the conciliar courts --
as the Constitutionalists believe. Over the centuries there was
jurisdictional jostling, ideological antagonism between jurists trained
in different legal traditions, and political conflict over the scope of
the royal prerogative and thus of the power of the prerogative courts,
but these were not battles in a holy war. Some of it was little more than
competition for business. Some settled down into a rough division of
functions. Litigants did not take sides; they exploited the confusion.
Thus a plaintiff might bring an action in equity to take advantage of its
"English bill" procedure providing for pre-trial discovery of
evidence -- and then introduce that evidence in a common-law action where
the court could not have secured that evidence itself. The vast majority
of Englishmen had nothing to do with these elite machinations.
It's absurd to say, as Constitutionalists do, that equity was a summary
proceeding in which defendants had no rights. On the contrary, from at
least the Elizabethan period, equity was condemned for being too
cumbersome and slow. Instead of oral testimony, for instance, depositions
were taken, reduced to writing, and submitted to the court. Enormous
quantities of paperwork piled up. Anybody who thinks equity proceeded
summarily should reread Bleak House . If Constitutionalists are
correct that courts of equity are tyrannical, colonial Americans would
never have set them up, and the Constitution would never have
countenanced them. In fact, by the eighteenth century, there were
homegrown chancery courts in New York, South Carolina, and other
colonies; elsewhere, "Common Law" courts exercised equity
jurisdiction. And the Constitution the Constitutionalists would rather
revere than read expressly assigned equity jurisdiction to the federal
judiciary (Art. III, 02(1); Am. XI).
Which brings us up to the Constitutionalist contention that the
Constitution is part of the inherited and immemorial Common Law. This
poses obvious logical difficulties. If Equity is not Common Law, but the
Constitution includes Equity, how can the Constitution be Common Law? If
Americans (once rid of British tyranny) enjoyed the Common Law in its
plenitude, why did they take the trouble to adopt the Constitution? And
then the Bill of Rights? How is it possible to improve upon perfection --
over and over again? In the fairy tale, the king had twelve beautiful
daughters, each more lovely than all the rest. Constitutionalism has the
Common Law, the Magna Carta, and the Constitution, each replete with
every excellence of the others, and then some. The Constitution of 1787
does not even mention the Common Law (although it mentions Equity) --
perhaps out of modesty, a virtue the Common Law necessarily possesses,
since it possesses them all. And then some.
In Egyptian mythology, the god Osiris was slain by his brother Set, and
his dismembered pieces were scattered far and wide. But these parts could
no more die than could immortal Osiris, although, dispersed and hidden,
they were separately impotent. Once his limbs were retrieved and
reassembled, mighty Osiris rose from the dead and vanquished the forces
of evil. That's how Constitutionalists regard the Common Law. Now that
their treasure-hunt has turned up the missing pieces, all Americans have
to do, according to the Oklahoma Freedom Council, is get it all together
and "the country would be free overnight." And they all lived
happily ever after.
The tragedy of Constitutionalism is that it hopes to evoke by its magic
an idealized imagined earlier version of the very form of society -- our
own -- that was the first to banish magic from the world. With growing
commerce came calculation, quantification, and the distinction of
"is" from "ought." Myth is timeless, but when it
comes to the performance of contracts, "time is of the
essence." Money is merely a generally accepted medium of exchange,
not some sacred "substance"; whether it's gold, silver,
tobacco, or paper is a matter of convenience. Law is any application for
the official use of coercion that succeeds. The proprietor or trader is
indifferent to whether his invocation of the law against a thief, a
trespasser, a business rival, or a communist revolutionary owed its
effectiveness to immemorial custom, legislation, the Ten Commandments, or
a well-placed bribe. Myth and magic are merely tactics to try on those
who believe in them. Judges don't believe in Constitutionalism and
neither do very many other people.
Nor ever will. Constitutionalism combines the worst features of
superstition and reality without the attractions of either. Like real
law, it's dull as dirt; unlike real law, it doesn't work. Like
superstition, it's inconsistent, irrational, obscurantist, and
ineffectual, but it entirely lacks the poetry and pageantry that often
enliven myth and religion. Very few people espouse belief-systems this
complicated and crackbrained unless, as with Catholicism or Mormonism,
they grow up in them. We seem to be in prime time, sad to say, for cults
both old and new, but not this one. It isn't even tax-deductible.
http://www.libertysoft.com/liberty/features/54black.html
