Text: On the History of the Common Law; Common Law versus Equity/Merchant Law. by Howard Fisher The Anglo-American system of jurisprudence is the only one which developed out of what is called the Common Law, that is, the general law of private property known in the British Isles. Common Law was designed through the years to secure the rights of individuals to property; to make it difficult for property to be taken away without due process of law. The Common Law was expounded over the years in case decisions as a result of trials in which the Common Law jury acted as the Judges, and in which they exercised the authority to hear and decide questions of both Law and fact, and Common Law deals with legal relationships, powers and liabilities, and types of actions rather than theoretical definitions of abstract legal concepts. It is from such controversies involving property that all of our Rights have come. Property is known as Substance at the Common Law, and includes hard money in the form of gold and silver coin. Controversies involving these matters carry with them a Law jurisdiction, a jurisdiction in which all of our Rights are found. The Judge in a Court of Law is an impartial referee of the dispute, and he is bound to protect the Rights of the parties to the dispute, or he will have lost whatever jurisdiction he may have had, or claimed to have had. Gold and silver Coin are the only Things recognized at Law to be money. Money is Substance in possession and not a Chose (thing) in action. When a debt is paid, at Law, the debt is extinguished; debt no longer exists; the debt is paid. Debt can only be paid with gold and silver Coin, or certificates redeemable on demand, at par, in gold and silver Coins. This is the legal meaning of the expression "tender in payment of debt", as found in Article I, Section 10 of the Constitution of the United States. (emphasis added) Thomas Jefferson placed great emphasis on the concept of Rights. He said we did not bring the English Common Law, as such, to this continent; we brought the Rights of Man. The Common Law of the States of the United States is the Common Law of England adopted by the original Constitution of the United States, so far as not modified by any alterations made by the Constitution of the State at the time of admission to the Union, and so far as not in direct conflict with the Constitution of the United States of America. And the Common Law of the States may not be modified, limited nor abrogated either by an act of the legislature (Congress or State Legislature) or by a ruling of some judge. Part of the problem that we are in is a result of unlawful attempts by legislatures or judges to modify or abrogate Common Law. While, in England, this Law was derived from feudal tenures in real property as held by a pyramid of proprietors holding their rights from the King (or Crown) on down the line, the American Revolution destroyed any and all allegiance to the British Crown, including the rights of property in land, and all feudal tenures and dues were overthrown. All Rights of property in land in the United States became ALLODIAL TITLES in Allodial Freehold, under no lord or overlord whatsoever, even the authority of the Colony or State. This is the reason why our founding fathers considered that they had made every man a "King" on his own property. In England, William Pitt summarized the concept of private property under Common Law, as follows: "The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter; but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement." As a result of all of this, the Common Law of the States is founded and grounded upon substantive titles in real property, and no mere legislative enactment by Congress or State Legislature nor judicial ruling by Federal or State Courts can operate to deprive the People of their Rights at Law, including their Rights inherent in their Allodial Land Titles and to be Merchants and/or Traders at Law on the cash basis, and their Rights to access to Courts of Law and to a jurisdiction where their Rights are protected. As contrasted with the Common Law of England, the system of law as practised on the Continent of Europe is called Civil Law, or Roman Civil Law, which is derived from the Law of the Ecclesiastical Chancellors. This is partly the ancient law of Rhodes, the law of merchant traders upon commercial documents. The Civil Law is prosecuted by the Chancellor; he is not an impartial referee of the dispute. This Civil Law of Roman origin has never been part of the Laws of England and has been declared not of the Laws of the Realm by the Parliament and by many experts of England in jurisprudence, such as Coke, Blackstone and Sir John Fortescue. "The Common Law is absolutely distinguished from the Roman or Civil Law systems." People v Ballard 155 NYS 2d 59 The Roman Civil Law has always been outside of Common Law, operating on SUMMARY PROCESS, in gross violation of our RIGHTS TO DUE PROCESS. As English society developed over the years, situations were met in the Common Law for which the Courts could provide no relief by any precedent. The controversies did not involve property, or substance. The parties thus had no other recourse than to go to the King. And when they did, he delegated his first minister to solve these problems. The minister was called a Chancellor (the same title as used on the Continent) and the relief granted was called Equity. This "Equity" meant what would be fair if the Common Law principle were extended and applied to the case at hand, as the Chancellor, in his discretionary judgment, chose to do. There thus developed in England and America two distinct systems of law and courts, each having a peculiar and particular application and jurisdiction. Equity is a jurisdiction in which the individual does not have any Rights , and one to which the individual can be subjected only if he volunteers or gives his informed consent. In Equity there are no jury trials. The powers of the Common Law jury to hear and decide questions of both Law and Fact are exercised by the Chancellor. However, there may be "advisory juries" to advise the Chancellor of certain facts, but they are not permitted to hear any arguments regarding the Law. (Does this sound familiar today?) The controversies are decided by the Chancellor, who, besides being the Chief Prosecutor, (or Inquisitor, if you will), can go to any source he chooses, even to his own "conscience", to prove or justify his decision. In Equity, the parties do not have any Rights; the Constitution is stated by the Chancellor to be "frivolous"; and any so-called "rights" in his Court are actually "privileges" granted by the Chancellor, which he can also take away. During the past century, the Congress of the United States and the Legislatures of the several States, as well as the Judges, have presumed to exercise the authority to "merge" the procedures of Law and Equity; this is authority they do not have, yet this, too, is part of the problem we face. When we realize that a Court of Common Law proceeds "according to the course of the Common Law", and that the parties have a Right to trial by a Common Law jury, where the jury exercised the authority to hear and decide questions of both Law and Fact, we can then know that if we are in a Court where the procedures have been "merged" with Equity, then we can know that we are not in a Court of Common Law ! ! The Constitution of the State of Iowa, Article V, Section 6, states, in part, as follows: "The District Court shall be a court of law and equity, which shall be distinct and separate jurisdictions, . . . ." Obviously, they have not been lawfully merged, and we do not have to accept the idea that they have been merged. We must realize that the principles of Common Law and of Equity are those as distinguished and defined in England, before the adoption of the Constitution of the United States of America. Any modifications in definition or practise of either Law or Equity in England since the adoption of the Constitution of the United States of America have no significance, bearing or authority in the United States, since we are no longer under the jurisdiction of either Parliament or the Judges of England ! ! Yet there are those in this country who claim that Equity jurisdiction (otherwise known as Chancery jurisdiction) in this country is the same in nature and extent as Equity jurisdiction in England ! ! Where the Constitution of the United States of America, or the Constitution of the State of Iowa, or of any State, mentions "law", it means "Common Law"; it does not mean any other "kind" of law ! ! In addition to the above mentioned jurisdictions of Law (meaning Common Law) and Equity, which are the only Judicial jurisdictions authorized either by the Constitution of the United States of America, or by the Constitution of the State of Iowa, or of any State, as drafted in conformance thereto, and being second thereto, there is also a private , political jurisdiction which is operative only on those who volunteer into it's private domain, outside of the Constitution. It is known as Law Merchant (lex mercatoria) the private rule of the bankers and merchants. Law Merchant is neither Law nor Equity, but is only raw , private, political power, alien and illegal to our Constitution whatsoever, and operates outside of the Constitution. The Law Merchant is an independent, parallel system of law, like Equity or Admiralty. The Law Merchant is not even a modification of the Common Law; it occupies a field over which the Common Law does not and never did extend. Common Law deals with the Money of Substance belonging to the People (Gold and Silver Coins); while the Law Merchant deals with the law of Bills, Notes and Checks, (in other words, with negotiable instruments and commercial paper). Our Declaration of Independence charges that America had been progressively subjected to "a jurisdiction foreign to our Constitution" (meaning the unwritten English Constitution). This foreign jurisdiction was a jurisdiction of lawless ad hoc Equity out of the Roman Civil Law under the stark cover of such obscenities as the Writs of Assistance (which our Courts of today also claim to have the authority to issue) which allowed summary plundering of the colonists' wealth and substance TO THE ADVANTAGE OF the East India Company which controlled the Parliament. (as today, it allows the summary plundering of the American citizens' wealth and substance TO THE ADVANTAGE OF the banks and other financial institutions which control the Congress and State legislatures). It has been recognized and stated for over one hundred years that "we have the best Congress that money can buy" ! ! These Writs, even as only one wrong perpetrated by the commercial interests in the Parliament, were given authority by an Equitable jurisdiction called a debt action in assumpsit . This action, which gave satisfaction pursuant to the customs of the Law Merchant, (having been voluntarily entered into), had been an old debt action triable in a Court of Common Law (merely as a courtesy of the Common Law Courts, and not inherently a part of Common Law) (and triable by a Common Law Jury, as a protection to the Defendant), until Lord Mansfield, Chief Justice of the Kings Bench, in 1760, arbitrarily and on his own authority, denied trial by jury in debt actions in assumpsit AND REMOVED THAT ACTION FROM THE Courts of Common Law into the Courts of Equity, where a trial by jury could not be had, and where there was merely a summary proceeding with no semblance of a "due process of Law". This case, known as Moses v MacFerian 2 Burroughs 1005 and is the case that sparked the American Revolution and caused Thomas Jefferson to say that English law since that date should not be used over here. It was this Equitable debt action in assumpsit which the Seventh Amendment of the Constitution of the United States was specifically meant to outlaw, by specifically providing that "In suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, . . . ." The significance of this is pointed up by the fact that any controversy involving Money (Gold and Silver Coins) in an amount greater than twenty dollars, or any property such as real estate can only be tried in a Court of Common Law with the right of trial by jury ! ! This means that any Mortgage Foreclosure action can be tried only in a Court of Common Law, and that the State Legislature has no Constitutional authority to provide, by statute, that mortgage foreclosure actions shall be Equity actions ! ! This means that Sheriff's Sales as a result of these Equitable Mortgage Foreclosure actions are null and void ! ! And that the Sheriffs have participated in criminal confiscation of real property in violation of the Constitution and of their oaths of office ! ! So, it can be seen that summary and arbitrary confiscation of income and property is nothing new in American tradition and history out of an illicit (meaning unlawful and unconstitutional) Equitable jurisdiction. It is precisely this Equitable jurisdiction wherein the Chancellor enforces the combination of unconstitutional Executive and Legislative Equity which is the jurisdiction foreign to our Constitution referred to in the Declaration of Independence. This is precisely what our American Revolution was all about and what our Bill of Rights prevents. It is also a measure of the extent that the Bankers, and their stooges, the lawyers and Judges, as well as the politicians of both major political parties, have betrayed the Public Trust and have attempted to place us in a Dictatorship of Unelected Rulers ! ! Thus it can be seen that there is a direct similarity of our political/legal situation today with what it was in the years immediately preceding the Revolution of 1776. Only today we have a written Constitution that spells our our Rights and our freedoms, whereas two hundred years ago they did not ! ! ! The Common Law Jury members (acting as judges of the Law) were sworn to "Do equal law, and execution of Right, to all the King's subjects, rich and poor, without having regard to any person" and that they will deny no man Common Right; but they were NOT sworn to obey or execute any statute of the King, or of the King and Parliament. Indeed, they are virtually sworn NOT to obey or execute any statutes that are against "Common Right", or contrary to the Common Law, or "Law of the Land"; but to certify the King thereof" . . . . that is, to notify the King that his statutes are against the Common Law; . . . . and then proceed to execute the Common Law, notwithstanding such legislation to the contrary. The words of the oath on this point are these: "That we deny no man Common Rights by (virtue of) the King's letters, nor none other mans', nor for none other cause: and in case any letters come to you contrary to the Law, (that is, the Common Law) that ye do nothing by such letters, but certify the King thereof, and proceed to execute the Law, (that is, the Common Law), notwithstanding the same letters." In Federalist Papers #48, Alexander Hamilton wrote in part, "No legislative act contrary to the Constitution can be valid." "The Constitution is, in fact, and must be regarded by judges as a fundamental law."

See Also: See stack COMMON LAW

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