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 Posted: Mon Aug 5th, 2019 09:28 pm
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Joe Kelley
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Moving now into specifics having to do with usurpation by criminal means under the color of law i.e. deception, threat of violence, and aggressive violence.

Trial by Jury, Spooner
http://lf-oll.s3.amazonaws.com/titles/2181/Spooner1474_Bk.pdf

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46

The foregoing interpretation of the words nisi per legem terrae - that is, by due process of law - including indictment, &c., has been adopted as the true one by modern writers and courts; as, for example, by Kent, (2 Comm. 13,) Story, (3 Comm. 661,) and Supreme Court of New York, (19 Wendell, 676; 4 Hill, 146.)
The fifth amendment to the constitution of the United States seems to have been framed on the same idea, inasmuch as it provides that “no person shall be deprived of life, liberty, or property, without due process of law.”*

Whether the word VEL should be rendered by OR, or by AND.

Having thus given the meanings, or rather the applications, which the words vel per legem terrae will reasonably, and perhaps must necessarily, bear, it is proper to suggest, that it has been supposed by some that the word vel, instead of being rendered by or, as it usually is, ought to be rendered by and, inasmuch as the word vel is often used for et, and the whole phrase nisi per judicium parium suorum, vel per legem terrae, (which would then read, unless by the sentence of his peers, and the law of the land,) would convey a more intelligible and harmonious meaning than it otherwise does.
Blackstone suggests that this may be the true reading. (Charters, p. 41.) Also Mr. Hallam, who says:
*Nisi per legale judicium parium suorum, vel per legem terrae. Several explanations have been offered of the alternative clause; which some have referred to judgment by default, or demurrer; others to the process of attachment for contempt. Certainly there are many legal procedures besides trial by jury, through which a party’s goods or person may be taken. But one may doubt whether these were in contemplation of the framers of Magna Carta. In an entry of the Charter of 1217 by a contemporary hand, preserved in the Town-clerk’s office in London, called Liber Custumarum et Regum antiquarum, a various reading, et per legem terrae, occurs. Blackstone’s Charters, p. 42 (41.) And the word vel is so frequently used for et, that I am not wholly free from a suspicion that it was so intended in this place. The meaning will be, that no person shall be disseized, &c., except upon a lawful cause of action, found by the verdict of a jury. This really seems as good as any of the disjunctive interpretations; but I do not offer it with much confidence.” - 2 Hallam’s Middle Ages, Ch. 8, Part 2, p. 449, note.*
*I cite the above extract from Mr. Hallam soley for the sake of his authority for rendering the word vel by and; and not by any means for the purpose of indorsing the opinion he suggests, that legem terrae authorized “judgments by default or demurrer,” without the intervention of a jury. He seems to imagine that lex terrae, the common law, at the time of Magna Carta, included everything, even to the practice of courts, that is, at this day, called by the name of Common Law; whereas much of what is now called Common Law has grown up, by usurpation, since the time of Magna Carta, in palpable violation of the authority of that charter. He says, “Certainly there are many legal procedures, besides trial by jury, through which a party’s goods or person may be taken.” Of course there are now many such ways, in which a party’s goods or person are taken, besides by the judgment of a jury; but the question is, wheter such takings are not in violation of Magna Carta.
He seems to think that, in cases of “judgment by default or demurrer,” there is no need of a jury, and thence to infer that legem terrae may not have required a jury in those cases. But this opinion is founded on the erroneous idea that juries are required only for determining contested facts, and not for judging of the law. In case of default, the plaintiff must present a prima facie case before he is entitled to a judgment; and Magna Carta, (supposing it to require a jury trial in civil cases, as Mr. Hallam assumes that it does,) as much requires that this prima facie case, both law and fact, be made out to the satisfaction of a jury, as it does that a contested case shall be.
As for demurrer, the jury must try a demurrer (having the advice and assistance of the court, of course) as much as any other matter of law arising in a case.
Mr. Hallam evidently thinks there is no use for a jury, except where there is a “trial” - meaning thereby a contest on matters of fact. His language is, that “there are many legal procedures, besides trial by jury, through which a party’s goods or person may be taken.” Now Magna Carta says nothing of trial by jury; but only of the judgment, or sentence, of a jury. It is only by inference that we come to the conclusion that there must be a trial by jury. Since the jury alone can give the judgment, or sentence, we infer that they must try the case; because otherwise they would be incompetent, and would have no moral right, to give judgment. They must, therefore, examine the grounds, (bot of law and fact,) or rather try the grounds, of every action whatsoever, whether it be decided on “default, demurrer,” or otherwise, and render their judgment, or sentence, thereon, before any judgment can be a legal one, on which “to take a party’s goods or person.” In short, the principle of Magna Carta is, that no judgment can be valid against a party’s goods or person, (not even a judgment for costs,) except a judgment rendered by a jury. Of course a jury must try every question, bot of law and fact, that is involved in the rendering of that judgment. They are to have the assistance and advice of the judges, so far as they desire them; but the judgment itself must be theirs, and not the judgment of the court.
As to “process of attachment for contempt,” it is of course lawful for a judge, in his character of a peace officer, to issue a warrant for the arrest of a man guilty of contempt, as he would for the arrest of any other offender, and hold him to bail, (or, in default of bail, commit him to prison,) to answer for his offense before a jury. Or he may order him into custody without a warrant when the offence is committed in the judge’s presence. But there is no reason why a judge should have the power of punishing for contempt, any more than for any other offence. And it is one of the most dangerous powers a judge can have, because it gives him absolute authority in a court of justice, and enables him to tyrannize as he pleases over parties, counsel, witnesses, and jurors. If a judge have power to punish for contempt, and to determine for himself what is a contempt, the whole administration of justice (or injustice, if he choose to make it so) is in his hands. And all the rights of jurors, witnesses, counsel, and arties, are held subject to his pleasure, and can be exercised only agreeably to his will. He can of course control the entire proceedings in, and consequently the decision of, every cause, by restraining and punishing every one, whether party, counsel, witness, or juror, who presumed to offer anything contrary to his pleasure.
This arbitrary power, which has been usurped and exercised by judges to punish for contempt, has undoubtedly had much to do in subduing counsel into these servile, obsequious, and cowardly habits, which so universally prevail among them, and which have not only cost so many clients their rights, but have also cost the people so many of their liberties.
If any summary punishment for contempt be ever necessary, (as it probably is not,) beyond exclusion for the time being from the court-room, (which should be done, not as a punishment, but for self-protection, and the preservation of order,) the judgment for it should be given by the jury, (where the trial is before a jury,) and not by the court, for the jury, and no the court, are really the judges. For the same reason, exclusion from the court-room should be ordered only by the jury, in cases when the trial is before a jury, because they, being the real judges and triers of the cause, are entitled, if anybody, to the control of the court-room. In appeal courts, where no juries sit, it may be necessary - not as punishment, but for self-protection, and the maintenance of order - that the court should exercise the power of excluding a person, for the time being, from the court-room; but there is no reason why they should proceed to sentence him as a criminal, without his being tried by a jury.
If the people wish to have their rights respected and protected in courts of justice, it is manifestly of the last importance that they jealously guard he liberty of parties, counsel, witnesses, and jurors, against all arbitrary power on the part of the court.
Certainly Mr. Hallam may ver well say that “one may doubt whether these (the several cases he has mentioned) were in contemplation of the framers of Magna Carta” - that is, as exceptions to the rule of requiring that all judgments, that are to be enforced “against a party’s goods or person,” be rendered by a jury.
Again, Mr. Hallam says, if the word vel be rendered by and, “the meaning will be, that no person shall be disseized, &c., except upon a lawful cause of action.” This is true; but it does not follow that any cause of action, founded on statute only, is therefore a “lawful cause of action,” within the meaning of legem terrae, or the Common law. Within the meaning of the legem terrae of Magna Carta, nothing but a common law cause of action is a “lawful” one.
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The idea that the word vel should be rendered by and, is corroborated, if not absolutely confirmed, by the following passage in Blackstone, which has before been cited. Speaking of the trial by jury, as established by Magna Carta, he calls it,
“A privilege which is couched in almost the same words with that of the Emperor Conrad two hundred years before: ‘nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum, et judicium parium suorum.’ “ (No one shall lose his estate unless according to the custom of our ancestors, and the judgment of his peers.) - 3 Blackstone, 350.
If the word vel be rendered by and, (as I think it must be, at least in some cases,) this chapter of Magna Carta will then read that no freeman shall be arrested or punished, “unless according to the sentence of his peers, and the law of the land.”
The difference between this reading and the other is important. In the one case, there would be, at first view, some color of ground for saying that a man might be punished in either of two ways, viz., according to the sentence of his peers, or according to the law of the land. In the other case, it requires both sentence of his peers and the law of the land (common law) to authorize his punishment.
If this latter reading be adopted, the provision would seem to exclude all trials except trial by jury, and all causes of action except those of the common law.
But I apprehend the word vel must be rendered both by and, and by or; that in cases of a judgment, it should be rendered by and, so as to require the concurrence both of “the judgment of the peers and the law of the land,” to authorize the king to make execution upon a party’s goods or person’ but that in cases of arrest and imprisonment, simply for the purpose of bringing a man to trial, vel should be rendred by or, because there can have been no judgment of a jury in such a case, and “the law of the land” must therefore necessarily be the only guide to, and restraint upon, the king. If this guide and restraint were taken away, the king would be invested with an arbitrary and most dangerous power in making arrests, and confining in prison, under pretence of any intention to bring to trial.
Having thus examined the language of this chapter of Magna Carta, so far as it relates to criminal cases, its legal import may be stated as follows, viz.:
No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner destroyed, (harmed,) nor will we (the king) proceed against him, nor send anyone against him, by force or arms, unless according to (that is, in execution of) the sentence of his peers, and (or or, as the case may require) the Common Law of England, (as it was at the time of Magna Carta, in 1215.)

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 Posted: Tue Aug 6th, 2019 09:51 pm
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Joe Kelley
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Moving to:

Colonial Courts and Secured Credit:
Early American Commercial Litigation and Shays’ Rebellion
Claire Priest
Yale Law School

“Justices of the peace, also appointed by the governor, individually decided debt suits worth less than forty shillings. Justices of the peace offered a less formal and less expensive forum for obtaining judgments.
They usually resided within the same town as the litigants, and heard cases year-round in their homes or in taverns." The fees of justices of the peace were also set by statute on a per-service basis, but were much lower than those of the county courts. Litigants could, however, appeal decisions of the justices of the peace to the common pleas courts, which would increase total litigation fees and delay the execution process.”

The above is potentially a lead on the competition between adaptive forms of common law (original) versus “Common Law” (summary justice) counterfeit in pre-Nationalism U.S.A.

Moving back to:
Chapter 14
COURTS TO BE OPEN; SUITS AGAINST THE COMMONWEALTH
Article I, Section 11
BY DONALD MARRITZ
https://www.pabar.org/public/committees/lspublic/atj/Chapter14-final.pdf

“That justice may be speedily as well as impartially done, and that to prevent tedious and expensive pilgrimages to obtain it, I do for me and mine hereby declare and establish . . . that monthly sessions shall be held in every country in which all sorts of causes belonging to that county shall be heard and finally determined, whether relating to civil or criminal acts. And . . . that every person may freely plead his own cause or bring his friend to do it for him. And the judges are hereby obliged to inform him or her what they can to his or her assistance in the matter before him, that none be prejudiced through ignorance in their own business . . .”

Moving back to:

Colonial Courts and Secured Credit:
Early American Commercial Litigation and Shays’ Rebellion
Claire Priest
Yale Law School

“Colonial courts had a fee structure entirely different from ours today. First, litigants compensated the various actors in the judicial system sheriffs, judges, clerks, and witnesses-for each service they performed. According to the 1742 Massachusetts fee schedule, for example, when initiating a suit in one of the inferior courts, plaintiffs paid the judge five shillings for entering the action and the constable six pence for serving the summons (and double all fees if the plaintiff was not a freeholder). Fee schedules required reimbursement for travel and a per-day attendance fee to all clerks, judges, constables, and witnesses. Litigants paid clerks for each page written, constables for each witness sworn, and the cryer for each jury called. Conclusion of the case led to additional charges, whether for the trial, for default or confession of judgment (six pence to the judges, six pence to the clerk for recording the outcome), or for imprisonment of the debtor (two shillings and six pence for "turning the key on each prisoner committed" ). The colonial fee structure was regressive; costs were the same, no matter how large the amount in question. Moreover, colonial law defined court costs as well as attorneys' fees as an element of damages. As a consequence, the losing party bore the burden of paying all fees.”

Moving to:

Notes On The State Of Virginia
by Thomas Jefferson

The state is divided into counties. In every county are appointed magistrates, called justices of
the peace, usually from eight to thirty or forty in number, in proportion to the size of the county,
of the most discreet and honest inhabitants. They are nominated by their fellows, but
commissioned by the governor, and act without reward. These magistrates have jurisdiction both
criminal and civil. If the question before them be a question of law only, they decide on it
themselves; but if it be a fact, or of fact and law combined, it must be referred to a jury. In the
latter case, of a combination of law and fact, it is usual for the jurors to decide the fact, and
to refer the law arising on it to the decision of the judges. But this division of the subject lies
with their discretion only. And if the question relate to any point of public liberty, or if it be one
of those in which the judges may be suspected of bias, the jury undertake to decide both law and
fact. If they be mistaken, a decision against right, which is casual only, is less dangerous to the
state, and less afflicting to the loser, than one which makes part of a regular and uniform system.
In truth, it is better to toss up cross and pile in a cause, than to refer it to a judge whose mind is
warped by any motive whatever, in that particular case. But the common sense of twelve honest
men gives still a better chance of just decision, than the hazard of cross and pile. These judges
execute their process by the sheriff or coroner of the county, or by constables of their own
appointment. If any free person commit an offence against the commonwealth, if it be below the
degree of felony, he is bound by a justice to appear before their court, to answer it on indictment
or information. If it amount to felony, he is committed to jail; a court of these justices is
called; if they on examination think him guilty, they send him to the jail of the general court,
before which court he is to be tried first by a grand jury of 24, of whom 13 must concur in
opinion; if they find him guilty, he is then tried by a jury of 12 men of the county where the
offence was committed, and by their verdict, which must be unanimous, he is acquitted or
condemned without appeal. If the criminal be a slave, the trial by the county court is final. In
every case, however, except that of high treason, there resides in the governor a power of pardon.
In high treason the pardon can only flow from the general assembly. In civil matters these
justices have jurisdiction in all cases of whatever value, not appertaining to the department of the
admiralty. This jurisdiction is twofold. If the matter in dispute be of less value than 4⅙ dollars, a
single member may try it at any time and place within his county, and may award execution on
the goods of the party cast. If it be of that or greater value, it is determinable before the county
court, which consists of four at the least of those justices and assembles at the court-house of the
county on a certain day in every month. From their determination, if the matter be of the
value of ten pounds sterling, or concern the title or bounds of lands, an appeal lies to one of the
superior courts.

There are three superior courts, to wit, the high court of chancery, the general court, and court of admiralty. The first and second of these receive appeals from the county courts, and also have original jurisdiction, where the subject of controversy is of the value of ten pounds sterling, or where it concerns the title or bounds of lands. The jurisdiction of the admiralty is original altogether. The high court of chancery is composed of three judges, the general court of five, and the court of admiralty of three. The two first hold their sessions at Richmond at stated times, the chancery twice in the year, and the general court twice for business civil and criminal, and twice more for criminal only. The court of admiralty sits at Williamsburg whenever a controversy arises.

There is one supreme court, called the court of appeals, composed of the judges of the three
superior courts, assembling twice a year at stated times at Richmond. This court receives
appeals in all civil cases from each of the superior courts, and determines them finally. But it has
no original jurisdiction.

If a controversy arise between two foreigners of a nation in alliance with the United States, it is
decided by the Consul for their State, or, if both parties chuse it, by the ordinary courts of justice.
If one of the parties only be such a foreigner, it is triable before the courts of justice of the
country. But if it shall have been instituted in a county court, the foreigner may remove it into the
general court, or court of chancery, who are to determine it at their first sessions, as they must
also do if it be originally commenced before them. In cases of life and death, such foreigners
have a right to be tried by a jury, the one-half foreigners, the other natives.

All public accounts are settled with a board of auditors, consisting of three members appointed
by the general assembly, any two of whom may act. But an individual, dissatisfied with the
determination of that board, may carry his case into the proper superior court.

A description of the laws.

The general assembly was constituted, as has been already shown, by letters-patent of March the 9th, 1607, in the 4th year of the reign of James the first. The laws of England seem to have been adopted by consent of the settlers, which might easily enough be done whilst they were few and living all together. Of such adoption, however, we have no other proof than their practice till the year 1661, when they were expressly adopted by an act of the assembly, except so far as ‘a difference of condition’ rendered them inapplicable. Under this adoption, the rule, in our courts of judicature was, that the common law of England, and the general statutes previous to the 4th of James, were in force here; but that no subsequent statutes were, unless we were named in them, said the judges and other partisans of the crown, but named or not named, said those who reflected freely. It will be unnecessary to attempt a description of the laws of England, as that may be found in English publications. To those which were established here, by the adoption of the legislature, have been since added a number of acts of assembly passed during the monarchy, and ordinances of convention and acts of assembly enacted since the establishment of the republic. The following variations from the British model are perhaps worthy of being specified:

Debtors unable to pay their debts, and making faithful delivery of their whole effects, are released from confinement, and their persons forever discharged from restraint for such previous debts: but any property they may afterwards acquire will be subject to their creditors.

The poor, unable to support themselves, are maintained by an assessment on the titheable persons in their parish. This assessment is levied and administered by twelve persons in each parish, called vestrymen, originally chosen by the housekeepers of the parish, but afterwards filling vacancies in their own body by their own choice. These are usually the most discreet farmers, so distributed through their parish, that every part of it may be under the immediate eye of some one of them. They are well acquainted with the details and œconomy of private life, and they find sufficient inducements to execute [242] their charge well, in their philanthropy, in the approbation of their neighbors, and the distinction which that gives them. The poor who have neither property, friends, nor strength to labour, are boarded in the houses of good farmers, to whom a stipulated sum is annually paid. To those who are able to help themselves a little, or have friends from whom they derive some succours, inadequate however to their full maintenance, supplementary aids are given which enable them to live comfortably in their own houses, or in the houses of their friends. Vagabonds without visible property or vocation, are placed in work houses, where they are well clothed, fed, lodged, and made to labour. Nearly the same methods of providing for the poor prevails through all our states; and from Savannah to Portsmouth you will seldom meet a beggar. In the larger towns, indeed, they sometimes present themselves. These are usually foreigners, who have never obtained a settlement in any parish. I never yet saw a native American begging in the streets or highways. A subsistence is easily gained here: and if, by misfortunes, they are thrown on the charities of the world, those provided by their own country are so comfortable and so certain, [243] that they never think of relinquishing them to become strolling beggars. Their situation too, when sick, in the family of a good farmer, where every member is emulous to do them kind offices, where they are visited by all the neighbors, who bring them the little rarities which their sickly appetites may crave, and who take by rotation the nightly watch over them, when their condition requires it, is without comparison better than in a general hospital, where the sick, the dying and the dead are crammed together in the same rooms, and often in the same beds. The disadvantages, inseparable from general hospitals, are such as can never be counterpoised by all the regularities of medicine and regimen. Nature and kind nursing save a much greater proportion in our plain way, at a smaller expense, and with less abuse. One branch only of hospital institution is wanting with us; that is a general establishment for those laboring under difficult cases of chirurgery. The aids of this art are not equivocal. But an able chirurgeon cannot be had in every parish. Such a receptacle should therefore be provided for those patients: but no others should be admitted.

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 Posted: Fri Aug 16th, 2019 07:53 pm
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Joe Kelley
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Changed to:
https://pdfs.semanticscholar.org/ec7f/25c9208eca556b84a673af69dfdf1086f8fa.pdf
Book Review. The Transformation of American Law, 1780-1860 by Morton J. Horwitz

"More and more, courts resorted to the idea of damnum absque injuria to deny a plaintiff's claim. -By accomplishing subsidization through the legal system rather than through taxation, Horwitz maintains, the ultimate political choices were hidden from view and insulated from debate.'0 The developmental urge had captured the courts, and it was by this allegedly apolitical agency of government that the subsidy was levied."

Exemplify double-speak:
damnum absque injuria
"loss or damage without injury"

Context:
The question of the changing role of precedent is even more troubling. The notion that law is discoverable by observation and deduction, the natural law theory of adjudication, tends rather away from the rigid stare decisis principle ascribed by Horwitz to eighteenth-century courts than toward it. The previous "discovery" may well have been erroneous, and a judge's (or jury's) job is to do justice according to right and not according to precedent. Reason should govern, not example. Moreover, even if by some peculiar twist of logic colonial judges did feel the need to conform to previous case law, it is not easy to know where they might turn. There were no American reports at all, and English reports, with a few distinguished exceptions, were intermittent and frequently untrustworthy. Indeed, it is not easy to locate the idea of stare decisis in English jurisprudence before the nineteenth century.6

For whatever reasons, however, and whether as a result of or despite post-revolutionary notions regarding the nature and source of law, nineteenth-century judges did set out to transform the common law in many of its most important aspects. Not every anti-developmental rule fell, of course, for as Horwitz says the judges sometimes "regarded the weight of the received legal tradition as just too overwhelming to allow for innovation." But the law of property was certainly harnessed to the task of economic development: the "natural flow" rule of riparian rights was relaxed to allow for competitive use of water; the doctrine of prescription was partially overthrown to allow land development that produced externalities; the law of waste was relaxed to allow life tenants and other temporary occupants of land to alter their estates to make them more productive; and, perhaps most important, the law of nuisance was allowed more and more to drift away from its organizing maxim sic utere tuo ut alienum non laedas toward a new balancing test that measured the relative utility of competing land uses. Horwitz marshals impressive evidence to document these changes and he is in this respect very convincing. Furthermore, he correctly points out that in these and other ways certain injuries became noncompensable; and so it often fell out that those "landowners whose property values were impaired without compensation in effect were compelled to underwrite a portion of economic development." More and more, courts resorted to the idea of damnum absque injuria to deny a plaintiff's claim. By accomplishing subsidization through the legal system rather than through taxation, Horwitz maintains, the ultimate political choices were hidden from view and insulated from debate. The developmental urge had captured the courts, and it was by this allegedly apolitical agency of government that the subsidy was levied.

All this, as I say, is convincingly argued. There may have been some rather extensive redistribution going on, and if so, the developmentally minded were, partly at least, the benefited parties. Not all developers would win, for some would be inefficient even with a subsidy; but still, in general, developers as a class, or, as Horwitz has it, the "dynamic and growing forces in American society," the "active and powerful elements" would have been the chief beneficiaries of the transformation. Yet the losers are more difficult to identify. Horwitz calls them "the weak and relatively powerless" 13 and "the weakest and least active elements in the population." 14 There is a tautological sense in which a person who is victimized this way is necessarily "weak" and "powerless": if he were otherwise he would have acted to prevent it. But there is another tautological sense in which victims are neither weak nor powerless: in order to be victimized, one needs to be propertied. A substantial landowner who finds himself powerless to enjoin an injurious activity because of a transformation in nuisance doctrine may be very considerably damaged, but it seems somewhat curious to describe him, before the fact, as "weak" or "powerless." Indeed, the "weakest" and most "powerless" of the society are the dispossessed; and they, by definition, having nothing, have nothing to lose. Still, it is true that the non-propertied classes might have lost something during this transforming period, for, as Horwitz shows, the general compensation principle of the eighteenth century gave way to a predominantly negligence-oriented tort law in the nineteenth. To the extent that the right to be free from even non-negligently caused injury is a property right, everyone, even the dispossessed, may have lost something to the active elements of American society. Whether liability rules might be property became much debated, of course, during the heyday of substantive due process.

Still there is a larger point to be made here, and that is that while the proproductive law of the nineteenth century may have robbed some of their property in the more usual sense, and everyone of their common-law liability rules, economic development may have so benefited society in general that the result to even the unpropertied was a net increase in utilitarian terms. We are not dealing here with a zero-sum game, and the subsidy may possibly have amounted merely to compensation to the entrepreneurial class for benefits conferred and otherwise uncollectable. In other words, the transformation in liability rules can be seen as a kind of hidden, general unjust enrichment remedy, and the resulting social structure, even with the "subsidy," may have been very nearly pareto superior. It was almost certainly Kaldor-Hicks efficient. The conclusion that nineteenth-century legal changes actively promoted a "legal redistribution of wealth" is probably correct to some degree; but it is a real question whether the redistribution was large and who the losers were. Take the concrete case of an ordinary nonpropertied working person, say, a railroad employee. He may be benefited by lower costs of goods because of lower transportation costs. Moreover, the loss to him represented by a changed liability rule may have been more particularly compensated for by higher wages than would otherwise be forthcoming.

6 J. DAwsoN, TrS Acrs OF =t LAW 83-90 (1968). This is a very complicated matter and deserves serious investigation, but a brief outline of the difficulty as I see it can be given here. As Horwitz shows, very little control over the jury was exerted by eighteenth-century judges. Now jury control devices are necessary for generating legal opinions by judges whether written or not; and opinions are necessary for a system of stare decisis in the usual sense. Of course a system of precedent could be based on custom. But if jury control techniques were rare before the revolution, juries, not judges, would be responsible for keeping the custom pure. A proper analysis of this difficulty will require separate treatment of procedural and substantive law, and, within the substantive division, distinct consideration of criminal and civil law. Moreover, separate consideration of the law of real property would seem to be necessary because special verdicts were common in that area of the law and uncommon elsewhere.”

III.
One of the most striking theses of the book is that eighteenth and nineteenth-century contract law were fundamentally different, the one being based on flexible regulatory notions of substantive justice and just price, the other on hard-line and literal enforcement of bargains precisely as made. Horwitz argues, for instance, that in the eighteenth century there was at law and equity a substantive theory of consideration, that is, that adequacy would be examined into, and necessary adjustments made by juries, if the agreed price seemed in some manner unfair.'8 That this was the rule in equity has been for some time recognized; but the existence of an identical rule at law, for which Horwitz produces much evidence, is very surprising indeed. But Horwitz's theory is not free from difficulty."

"Pareto Efficient. ... An outcome of a game is Pareto efficient if there is no other outcome that makes every player at least as well off and at least one player strictly better off. That is, a Pareto Optimal outcome cannot be improved upon without hurting at least one player."

"Kaldor-Hicks Efficiency. Pareto efficiency occurs where at least one party benefits and nobody is made worse off. Kaldor Hicks states that a decision can be more efficient – as long as there is a net gain to society – enabling any potential losers to be compensated from the net gain."

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 Posted: Thu Sep 12th, 2019 05:07 pm
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Joe Kelley
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The Cambridge History of Law in America
Volume 1 Early America (1580-1815)
Edited by Michael Grossberg, Christopher Tomlins

"In all previous cases, and in the protracted English attempts to seize parts of norther France, conquest had been justified on the grounds of dynastic inheritance: a claim, that is, based on civil law. In America, however, this claim obviously could not be used. There would seem, therefore, to be no prima facie justification for "conquering", the Indians since they had clearly not given the English grounds for waging war against them.
Like the other European powers, therefore, the English turned to rights in natural law, or - more troubling - to justifications based on theology. The Indians were infidels, "barbarians," and English Protestants no less than Spanish Catholics had a duty before God to bring them into the fold and, in the process, to "civilize" them. The first Charter of the Virginia Company (1606) proclaimed that its purpose was to serve in "propagating of Christian religion to such people, [who] as yet live in darkness and miserable ignorance of the true knowledge and worship of God, and may in time bring the infidels and savages living in these parts to humane civility and to a settle and quiet government." In performing this valuable and godly service, the English colonists were replicating what their Roman ancestors had once done for the ancient Britons. The American settlers, argued William Strachey in 1612, were like Roman generals in that they, too, had "reduced the conquered parts of or barbarous Island into provinces and established in them colonies of old soldiers building castles and towns in every corner, teaching us even to know the powerful discourse of divine reason."

"In exchange for these acts of civility, the conqueror acquired some measure of sovereignty over the conquered peoples and, by way of compensation for the trouble to which he had been put in conquering them, was also entitled to a substantial share of the infidels' goods. Empire was always conceived to be a matter of reciprocity at some level, and as Edward Winslow nicely phrased it in 1624, America was clearly a place where "religion and profit jump together." For the more extreme Calvinists, such as Sir Edward Coke who seems to have believed that all infidels, together presumably with all Catholics, lay so far from God's grace that no amount of civilizing would be sufficient to save them, such peoples might legitimately be conquered; in Coke's dramatic phrasing, because "A perpetual enemy (though there be no wars by fire and sword between them) cannot maintain any action or get any thing within this Realm, All infidels are in law perpetui inimici, perpetual enemies, (for the law presumes not that they will be converted, that being remota potential, a remote possibility) for between them, as with devils, whose subjects they be, and the Christians, there is perpetual hostility and can be no peace."

Like all Calvinists, Coke adhered to the view that as infidels the Native Americans could have no share in God's grace, and because authority and rights derived from grace, not nature, they could have no standing under the law. Their properties and even their persons were therefore forfeit to the first "godly" person with the capacity to subdue them. "if a Christian King," he wrote, "should conquer a kingdom of an infidel, and bring them [sic] under his subjection, there ipso facto the laws of the infidel are abrogated, for that they be not only against Christianity, but against the law of God and nature contained in the Decalogue." Grounded as this idea was not only in the writings of Calvin himself but also in those of the fourteenth-century English theologian John Wycliffe, it enjoyed considerable support among the early colonists. As the dissenting dean of Gloucester, Josiah Tucker, wrote indignantly to Edmund Burke in 1775, "Our Emigrants to North-America, were mostly Enthusiasts of a particular Stamp. They were that set of Republicans, who believed, or pretended to believe, that Dominion was founded in Grace. Hence they conceived, that they had the best Right in the World , both to tax and to persecute the Ungoldy. And they did both , a soon as they got power in their Hands, in the most open and atrocious Manner."
By the end of the seventeenth century, however, this essentially eschatological argument had generally been dropped. If anything it was now the "papists" (because the canon lawyers shared much the same views as the Calvinists on the binding nature of grace) who were thought to derive rights of conquest from the supposed ungodliness of non-Christians. The colonists themselves, particularly when they came in the second half of the eighteenth century to raid the older discussions over the legitimacy of the colonies in search of arguments for cessation, had no wish to be associated with an argument that depended upon their standing before God. For this reason, if for no other, it was as James Otis noted in 1764, a "madness" which , at least by his day, had been "pretty generally exploded and hissed off the stage."
Otis, however, had another more immediate reason for dismissing this account of the sources of sovereign authority. For in America had been conquered, it followed that the colonies, like all other lands of conquest, were a part not of the King's realm but of the royal demesne. This would have made them the personal territory of the monarch, to be governed at the King's "pleasure," instead of being subject to English law and to the English Parliament. It was this claim that sustained the fiction that "New England lies within England, " which would govern the Crowns' legal association with its colonies until the very end of the empire itself. As late as 1913, for instance, Justice Isaac Isaacs of the Australian High Court could be found declaring that, at the time Governor Arthur Phillip received his commission in 1786, Australia had, rightfully or wrongly, been conquered, and that "the whole of the lands of Australia were already in law the property of the King of England," a fact that made any dispute over its legality a matter of civil rather than international law.

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 Posted: Thu Dec 12th, 2019 05:26 pm
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Joe Kelley
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Taken from a Facebook Post 12-12-2019

Kenneth W Medenbach
December 6 at 10:07 PM
During our trial from the Malheur National Wildlife Refuge occupation, l kept thinking of ways to get information to the jurors, that they had the inherent ability to judge the law as well as the facts of our case. In my research l found that in the first 100 years of our country, the jury instructions included the inherent ability of the jurors to judge the law as well as the facts. Then in 1895, the decision in Sparf v United States the United States Supreme Court did not require judges to instruct jurors of this inherent ability.
I had already worn a shirt on the day our trial started inplicating the jurors inherent ability to judge the law and the facts, but l felt that the shirt wasn't enough. After a prayer by our group in the lobby of the court, l asked Shawna Cox if she would answer, yes, quickly to a question l was going to ask her during her testimony coming up that day. I was in a hybrid council with my attorney, Matt Schindler, so l was able to ask questions of anyone's testimony on the stand. Matt Schindler didn't know what l was going to ask. But l knew Judge Brown was going to flip out after l asked this question and l wanted Shawna to answer quickly, so the jurors could understand what we were trying to tell them.
This is how it went, by the grace of God.
Mr. Schindler: "Your Honer, Mr. Medenbach would like to ask Mrs. Cox a couple of questions."
Judge Brown: "You may take a seat sir, and ask the questions."
Medenbach: Q, "Mrs. Cox, are you aware the jury has the inherent power to judge both the law and the facts of this case?"
Mrs. Cox: A, "Yes."
Judge Brown: "STOP!, Jurors, disregard that answer. Do not ask that question again, and do not ask another question like it, Mr. Medenbach, Mr. Schindler, will you review the question, please, as an officer of the court? He can make his record outside the juries presence."
Medenbach: (continuing) Q, "But in Sparf v United States the Supreme Court held that federal judges were not required..."
Mr. Schindler: "Ken, you can't get into that."
Judge Brown: "Mr. Medenbach, STOP. Jurors, I'm not going to let the witness talk about issues of jury nullification, the questions we discussed at jury selection, you have to accept the legal rulings of the court.
Medenbach: "AND THE CORRUPTION CONTINUES!"(loud)
Judge Brown: Q, "Mr. Medenbach, is there any question about the substance of the witnesses testimony you wanted to ask?
Medenbach: A, "That's all the questions that I have."
Neither Shawna Cox or myself were found in contempt of court, but we were not going to leave anything to chance!

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