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April 2017 Policy Study, Number 17-6


A Commentary on the Bill of Rights


Part 19



Amendment VII:


In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.


Yet again, our Founders make provision for a trial by jury.  First mentioned in Article III, Section 2, and then again in the Sixth Amendment, this third explicit provision for a trial by jury should convince even the greatest skeptic that the imbedding of this hallowed principle of trial by jury in our founding documents was no mean fluke. 


Our Founders completely understood the importance of a trial by jury.  It was, and still is, the final safeguard of our liberties from an oppressive government short of the call to arms.  In this amendment, our Founders added two more important provisions for the protection of our liberties.  First, any suit brought in a court of common law shall consist of a trial by jury.  And second, any fact of any case that has already been tried by a jury shall never be retried, except in accordance with the rules of a court of common law.  In order to understand the importance of a trial of common law, it is necessary to understand that there is a difference between common law and other categories, and also that there are differences in the effects produced by them.  Some other forms of law have already been listed, such as military and maritime.  This discussion will try to provide some working knowledge of the common law to be used as a benchmark, but it will focus primarily on the dissimilarities between common law and contract law.


COMMON LAW:  in Great Britain and the United States, the unwritten law, the law that receives its binding force from immemorial usage and universal reception, in distinction from the written or statute law.  That body of rules, principles, and customs which have been received from our ancestors and by which courts have been governed in their judicial decisions.  The evidence of this law is to be found in the reports of those decisions, and the records of the courts.  Some of these rules may have originated in edicts or statutes which are now lost, or in the terms and conditions of particular grants or charters; but it is most probable that many of them originated in judicial decisions founded on natural justice [Law of Nature] and equity, or on local customs.


LAW OF NATURE:  is a rule of conduct arising out of the natural relations of human beings established by the Creator, and existing prior to any positive precept [written law].  Thus it is a law of nature, that one man should not injure another, and murder and fraud would be crimes, independent of any prohibition [specific proscription] from a supreme power.  (Webster’s Dictionary, 1828).


If we are indeed referring to the natural law, then it can in truth be said that, “Ignorance of the common law is no excuse.”  When we are referring to other forms of law (i.e. statute law, written law), this grand old axiom loses its veracity.  The common law is also known as“tort law.”  In its simplest form, a “tort” is a wrong or harm done by one individual to another.  It can be done to the person himself or his property.  If you punch him in the nose or kick down the door to his house, you may have committed a common law tort.  I say may because if the punch in the nose is in self-defense, or you kick down his door to save him from a raging fire, there is a very good chance that you would not be held liable.  The common law does not regard a set of actions only of themselves.  Instead, its main concern is the “result” of any given set of actions.  If they cause no perceived harm, then they are no big deal.  In the vernacular of basketball, it is stated as “no harm — no foul.”  If, on the other hand, they do cause harm, then you are subject to the penalties of common law.  The basic premise of common law justice is to make the injured party whole again.  You pay for whatever damage you do.


Contract law operates on a very different principle.  In it you promise to abide by the conditions specified in the contract.  If you do not keep the promise, you break the contract and are subject to certain specified penalties.  For instance, you contract with a bank for a loan to buy an automobile.  You promise to make a specified dollar payment on a specified day of the month.  If you fail to keep your promise and a certain period of time passes, among other things, you may be subject to loss of the vehicle and also any equity you may have accumulated in it.  This is the type of contract with which most of us are familiar, but there are others.


Are you aware that you probably have several contracts with your government?  If you have a driver’s license, you have such a contract, whether or not you realized you were signing a contract.  You signed a contract of adhesion, which means you agreed to the terms of the contract and all the rules and regulations that accompany it, even though not all of these rules and regulations appeared on the license.  Thus, when you signed that license, you promised to abide by all the statutes pertaining to operating a motor vehicle in the state that issued the license, as well as any and all statutes that would thereafter be enacted by that state.  And as that state has agreed to reciprocity with the other states in this matter, so have you.  If you fail to abide by any of the laws in any of the states, you are subject to the penalties specified in their laws.  Just as a point of interest, the IRS 1040 form is another such adhesion contract, and so is the form used to sign into the Social Security System.


We will examine two particulars that are in the motor vehicle laws of every state, speed limits and seat belts, and examine the effects produced by the two different types of law, contract law and common law.  If you are apprehended traveling over the speed limit or not wearing your seat belt, under contract law you have broken your promise (contract) with the state and are subject to the penalties provided for in the law.  You are subject to these penalties, not for the actions themselves, but because and only because you violated the contract.  These same actions under the common law would produce a very different result.  Under the common law, it is up to an injured party to bring suit.  If your actions resulted in no harm (tort) being done, there is no injured party and hence no one with the standing to bring a suit against you.  Thus you are not subject to any reprisal.


It should not take the proverbial rocket scientist to conclude that it becomes much easier for the government to manipulate and control "we the people" using the standard of contract law than it would be for them using the common law, which, for obvious reasons, was the form preferred by our Founders.  The government is able to avoid the shortcomings (from their perspective) of the common law by funneling more statutes into the area of contract law, such as the Uniform Commercial Code (UCC).  From my vantage point, it seems as if this is happening with an ever-increasing frequency.  There is a further difference in the rules of the court in which these different standards of law are tried.  Common law claims are tried in a court of common law.  The claims of contract law are tried in a court of equity.  In a court of common law, you have the full protection of whatever is left of the Constitution.  This is not necessarily true in a court of equity.


Ask anyone who has ever had occasion to be tried in a court of equity, or even traffic court, and tried to make a constitutional argument.  In all probability, he was told to desist in his argument.  If he did not, it is likely that he was threatened with contempt of court.  If he still did not, he was probably charged with contempt of court.  Apparently, equity court is not a proper venue for a constitutional challenge.  But why not?  What venue would be proper?  How does one procure the proper venue?  Why can’t a defendant receive a hearing at common law upon a simple request?  If the court is interested in justice, why doesn’t the court lend some assistance to the defendant in locating the proper venue?  Why, at any time, do we not have the full protection of the Constitution in this nation?  Why doesn’t the court tell us what is really going on?  Why does the legal profession remain silent and continue to keep these goings-on under a veil of secrecy?  Is it because it is so much easier to control people who are not fully informed of the rules of the game in which they are made to play?


This discussion is not to declare any system of law besides common law as illegitimate.  It is evident from our founding documents and from the writings of our Founders that they acknowledged several other types of law as legitimate.  If we have respect for them, we can do no less.  Still, it is possible to surmise from their writings that they considered each form of law to have a specific purpose.  It is doubtful to suppose that they envisioned taking advantage of “we the people” to be such a purpose.  Looking in from the outside, it certainly appears that the law is being used for just such a purpose today.  The question that remains is:  is the use that is being made of the several standards of law the appropriate use for each stated type?  If the answer is in the negative, some changes need to be made, and quickly.


 . . . and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.


If a defendant was fortunate enough to have a jury trial to begin with, there are grounds for an appeal, and the appeal is upheld, then he can find himself in a court of common law.  This search for justice is both time-consuming and expensive.  Too many people are unable to avail themselves of this route, for either or both reasons.  This would seem to me to leave the search for justice a little short, especially when it would be possible to settle the matter at the former level if we just had a mind to.  It is possible the author is a wee bit paranoid concerning these issues.  We can only hope his concerns have no merit.  If they do, it is well past time that “we the people” took notice and demanded a return to the original visions of our Founders in this matter.




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