CHAPTER 6

BODIES OF LAW

Copyright 2005

There are different bodies of law. Each body of law has its own purpose, range of influence, rules and procedures. Natural Law governs all of creation. Man, being a part of Nature and not separate from it, is always subject to Natural Law. The Common Law is the law of the land. Admiralty is the law of the seas, of ships and shipping. Equity applies where the Common Law doesn’t speak. Administrative laws are rules and regulations by which the various departments of government conduct their affairs.

COMMON LAW

I have heard some people argue that they are common law freepersons, as if somehow the common law gives them special protections against government legislation. It would be good to get a clearer picture about what the common law is and is not.¹

The Common Law comes to us from our British heritage.² The colonists brought the English common law to America, and claimed it as their birthright. It continued in full force up to the American Revolution, and was adopted by the 13 states and the new American nation as a guarantee of freedom. Only those principles of the English common law as were applicable to our views of liberty and freedom were adopted as our own.

The common law is said to be an unwritten law. According to Stanley Katz, in his introduction to Commentaries on the Laws of England by William Blackstone [University of Chicago Press, 1765]:

These laws are not literally unwritten, since they are recorded ”in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession ....” They are categorized nevertheless as Lex non scripta [unwritten law] ”because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom.” [1 Bla. Com. vi]³

The common law may be considered as the law of default. It is in effect provided it does not conflict with the laws passed by the legislature. It has been said that the great body of statutes are there to remedy the defects in the common law, in order to accommodate changing conditions. The common law is just another form of municipal law, no more sacred than any other. Congress or the state can change the common law unless it is prohibited from doing so by its constitution.

Conceptions of personal and property rights are based on the common law, and whenever there is a right to be protected, the common law will do so in the absence of legislative enactment. Thus, it is not necessary for the legislature to pass a law to handle every possible situation. However, the common law will not apply to inappropriate conditions.

While the fundamental principles of the common law are said to be unchangeable, it is known for its ability to adapt and evolve with the needs of the times. The common law will not be paralyzed by a new case that has never come up before, and with each application care must be taken to ensure that a rule of law will not become an instrument of injustice. A rule of law can be set aside to harmonize with the needs of the times and the demands of justice.

The common law is in effect throughout the United States except where it is changed by particular state constitutions or statutes.

The phrase ”at law” means ”at the common law”, which distinguishes it from other bodies of law including equity, admiralty, and administrative law.⁴

EQUITY

Equity is a system of law distinct from the Common law. According to Mr. Justice Story, Equity ”may properly be said to be that portion of remedial justice, which is exclusively administered by a court of equity, as contradistinguished from that portion of remedial justice which is exclusively administered by a court of common law.”⁵

The underlying principle of this system is that ”equity regards as done that which ought to be done.” Sometimes referred to as a court of chancery, it is said to be a court of ”conscience.” But it is not the chancellor’s sense of right and wrong that is the basis of the courts conscience, but rather a judicial conscience based on the common standard of civil right and expediency.

The common law is bound by rules which make it inflexible, and circumstances might occur in which complete justice may not be done.⁶ To solve this problem, courts of Equity developed in order to supply the defects in the law. The King delegated to one of his chancellors the authority to provide relief to the problem as if the Common Law had spoken on the subject.

While the forms of pleading are ordinarily the same as those at law, they are more elastic in equity and give more latitude to a pleader. The relief which may be sought and given is also more elastic.

Common law and equity are separate and distinct forms of action, yet there are various forms of implementation. In some states there are separate courts of equity. In others, both forms of action are administered by existing courts; the courts have a law side and an equity side. The modern practice is to combine legal and equitable remedies, and the distinctions between actions at law and suits in equity have been abolished. By combining both forms of action into one, multiplicity of suits and cumbersome procedures are avoided, while securing to litigants full and complete relief in a single action where, under the old practice, several suits were necessary to accomplish the same result.

The Constitution for the State of Iowa states:

Jurisdiction of supreme court. Sec. 4. The Supreme Court shall have appellate jurisdiction only in cases in chancery, and shall constitute a Court for the correction of errors at law,⁷ under such restrictions as the General Assembly may, by law, prescribe;

Jurisdiction of district court. Sec. 6. The District Court shall be a court of law and equity, which shall be distinct and separate jurisdictions, and have jurisdiction in civil and criminal matters arising in their respective districts, in such manner as shall be prescribed by law.

Thus, in Iowa, the distinctions between law and equity are not to be combined or abolished.

The differences between common law and equity are fundamental; these differences must be adhered to in application as there is a substantial difference between legal and equitable rights. You have a right to trial by jury at law, but in equity the trial is without a jury. These differences cannot be legislated away. The legislature cannot extend a court of equity’s power and thus deprive a person of the right to trial by jury.

In order for an action to come under equity jurisdiction, the facts of the case conferring equity jurisdiction must be proved before a person will be deprived of his right to trial by jury, or subjected to the stringent methods used by courts of equity to enforce their judgments.

Jurisdiction is determined by the pleadings. If the relief sought can be administered by a court of law, then a court of equity does not have jurisdiction. But if a court of law cannot provide relief, and the matter in dispute and the relief requested is equitable in its character and available, then a court of equity can assume jurisdiction. Probate and divorce are examples of proceedings in equity; you can lose your property without the benefit of a jury.

Jurisdiction cannot be given by consent or submission. If the subject matter does not come within the range of a court of equity, then a court of law has exclusive jurisdiction.

Under Federal (and state) Rules of Civil Procedure, there is one form of action known as a ”civil action,” but these rules apply to procedure and do not abolish the distinction between the practice of common law and equity.

ADMIRALTY

Admiralty is that body of law that regulates navigation on the seas. In the United States it extends to all navigable waters including rivers, all waters fresh or salt, landlocked or open, regardless of tide, and depends on their ability to be used as highways of commerce.

What was originally the nature and extent of the jurisdiction of the admiralty cannot now with absolute certainty be known. It is involved in the same obscurity, which rests on the original jurisdiction of the courts of common law. It seems, however, that, at a very early period, the admiralty had cognizance of all questions of prize; of torts and offences, as well in ports within the ebb and flow of the tide, as upon the high seas; ... [and] of maritime contracts. ... The forms of its proceedings were borrowed from the civil law; and the rules by which it was governed, were, as is every where avowed, the ancient laws, customs and usages of the seas. [De Lovio v. Boit, 2 Gallison 398, 400 (1815)]

These courts [of admiralty] are described in the Consolato del Mare, as having jurisdiction of ”all controversies respecting freight; of damages to goods shipped; of the wages of mariners; ... of commissions or bailments to masters and mariners; of debts contracted by the master for the use and necessities of his ship; of agreements made by the master with merchants, or by merchants with the master; ... and generally of all other contracts declared in the customs of the sea. [De Lovio, supra, 400]

There are some who argue that Admiralty, the law of the seas, has replaced the Common Law as the law of the land.⁸ If this is true, then your celebrated right to a trial by jury will have been repealed; trial by jury is a common law right, not to be found in admiralty:

And the ground is made stronger by the consideration, that the right to trial by jury is preserved by the constitution in all suits at common law, where the value in controversy exceeds twenty dollars; and by the statute, this right is excluded in all cases of admiralty and maritime jurisdiction. [De Lovio v. Boit, 2 Gallison 398, 474 (1815); emphasis in original]⁹

These people argue that the jury that you see in court is there to relieve the judge’s conscience and is advisory in nature. The judge is not required to have a jury, and not required to follow its advice.

I believe that this is another white rabbit that the ”rights” movement has been chasing. The 6th Amendment to the Constitution states that:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law...

To state that the Admiralty jurisdiction has replaced the common law as the law of the land, is to state that the 6th Amendment does not apply. I have not been able to confirm this theory.

It has also been argued that if you have any form of insurance, you place yourself under admiralty jurisdiction because insurance comes under admiralty.¹⁰ I have looked randomly at some recent insurance cases, and they did not follow the rules of admiralty.

It is also argued that Congress has chosen to regulate commerce using admiralty as the body of law,¹¹ and that the use of bills notes, checks, and credit fall under admiralty jurisdiction.¹²

I don’t think Congress can do this because it would violate other rights guaranteed by the Constitution. Just because a power is given to Congress doesn’t mean that it can exercise this power in violation of other clauses of the Constitution. The Constitution does not conflict with itself.

The admiralty jurisdiction of the federal courts is generally limited to suits in which the subject matter is wholly maritime. Where causes of action involve maritime and nonmaritime matters, admiralty jurisdiction is generally precluded. [2 Am Jur 2d Admiralty, Sec. 10]

Admiralty is a limited jurisdiction, depending for its existence on whether or not the cause involved is an admiralty or maritime matter. [2 Am Jur 2d Admiralty, Sec. 15]

Admiralty jurisdiction is not dependent on whether or not the subject matter involves interstate or international commerce. [2 Am Jur 2d Admiralty, Sec. 47]¹³

The 5th Amendment guarantees that you will not ”... be deprived of life, liberty, or property without due process of law.” The 7th Amendment guarantees that, ”In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved... .” [Emphasis added]. These protections do not apply in admiralty, where summary process rather than due process is the rule:

And as to all causes, it is commanded that the admiralty shall do right and justice summarily and by plain process, according to the marine law and the ancient customs of the sea. [De Lovio, supra, 405]

Thus, to protect our 5th and 7th Amendment rights, non maritime actions cannot be entertained under admiralty jurisdiction.

CRIMINAL LAW

If you commit an act or omit an act in violation of a public law forbidding or commanding it, this is known as a ”crime” against the sovereign which is punished in the governments name.

There are only two types of crime: Felony, and misdemeanor.¹⁴ Depending on usage, the word ”crime” may include misdemeanors as well as felonies, or it may only pertain to felonies.¹⁵

Whether a crime is a felony or a misdemeanor is determined by the nature of the punishment, and it is not necessary for the legislature to designate whether a crime is one or the other.¹⁶

A distinction commonly applied is that all offenses punishable in the state penitentiary are felonies; all others are misdemeanors. A 10 year prison term in the county jail would be a misdemeanor; the place rather than the term is what makes the determination. But this distinction is not uniformly applied. Under federal statutes, the length of time rather than the place of confinement determines the type of crime.¹⁷

Under the common law, two classes of misdemeanor were recognized. Those of a heinous nature (which could be punished corporally), and those not heinous. Under statute, the term ”high” or ”gross” misdemeanor was invented to make a similar distinction between petty crimes and more serious crimes.¹⁸

Minor offenses¹⁹ triable summarily by a magistrate²⁰ without a jury trial come under a category distinct from and below misdemeanor.

The same act may be a crime against the public to be prosecuted by the government, and a tort against a private person to be pursued by the injured party.

An act is not a crime if there is no prescribed punishment, either by fine or jail. An act may be a crime under the common law if a state has adopted the common law in general, in part, or as relates to crimes. In other states there are no common law crimes.²¹ Some states declare by statute that no act is a crime unless so specified by statute.²²

Where the common law remains in effect, the legislature is free to modify the common law by legislation. A common law crime is not repealed unless specifically or impliedly provided for in a statute.²³ Where the common law is not in effect, there can be no crime unless clearly enacted by the legislature. Indefiniteness in federal criminal statutes deprives a person of the right to due process of law. You have the right to know what you are accused of, and lack of clarity in effect gives to judges and juries the legislative power of determining what acts are a crime.²⁴ You are entitled to know what the state commands and forbids without you risking your life, liberty, or property by wondering what the statutes mean.

Subject to state and federal constitutional limitations, the legislature has virtually unlimited power to determine what act is a crime, and specify the punishment. However, in order for a statute to be valid under the police powers to promote the general welfare, it must have some relation to the ends sought to be realized.

The 5th Amendment to the Constitution requires that ”No person shall be held to answer for a capital,²⁵ or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury... .”

Whether a crime is capital or infamous or not, is determined by what the statute authorizes for its punishment. If you are in jeopardy of an infamous punishment, you have the right to demand that you not be tried unless on accusation of a grand jury. Any crime punishable by imprisonment in the state prison or penitentiary;²⁶ or in federal courts any prison term exceeding one year,²⁷ is an infamous crime requiring indictment to prosecute.

Imprisonment in a county jail is not considered infamous, but imprisonment at hard labor, regardless of the term or place, is considered an infamous punishment. Loss of political or civil rights has been held to constitute an infamous punishment.

A statute that provides for prosecution of an infamous crime on information,²⁸ may be held invalid even though there is provision for a fine.²⁹

A felony as well as a misdemeanor may or may not be infamous.

The law divides crimes into the categories of acts which are wrong in themselves (mala in se), and acts which in their nature are not wrong, but are simply forbidden (mala in prohibita). Almost all common law offenses are mala in se, and some courts seem to regard any common law offense to necessarily be in this class.³⁰

CIVIL VS. CRIMINAL

A civil action is said to embrace every form of suit, whether at common law or equity, except those that are criminal in their nature in that they impose a fine or imprisonment. A civil action is any proceeding in a court of justice in which one party acts against another for the reparation or prevention of a wrong, or enforcement of a right.

A criminal action is one imposed by or on behalf of the government to enforce a penalty prescribed by law. A criminal action may be initiated by an individual, and a civil action may be initiated by the government.³¹

ADMINISTRATIVE LAW

There are those in the rights movement that complain that the common law (and due process) has been replaced by admiralty (and summary process). I think they may have confused admiralty with administrative law, both of which are hostile to the common law.

The term ”administrative law” includes all law whose purpose is to regulate the functioning and govern the procedures of the administrative agencies of all branches of government. The concept of administrative law is vast, shapeless, and unrestricted, and spans the entire field of American jurisprudence.³²

Administrative law is not a traditional form of law such as the common law, admiralty, equity, or criminal law. Its early and rapid period of growth occurred in the ten or fifteen years following 1933.³³ It resulted from the inability of legislatures and courts to perform the increasing functions of government, from the increased growth of administrative agencies, the requirement of constant supervision by experts in complex areas, and the necessity of efficiency and flexibility.³⁴

Administrative agencies have extensive investigative, rule making, and adjudicating powers. Administrative law combines in a single government agency legislative, executive, and judicial powers which have traditionally been kept separate in the American form of government. This creates legal problems regarding the maintenance of private rights, while at the same time providing for the efficiencies of the administrative process.

Administrative law embodies concepts that are considered hostile to the common law, and controversies are controlled by statutory law instead of the principles of common law or equity, but it is considered that administrative law is a new body of law under development which will become a part of our tradition, and legal scholars have compared the rise of administrative law to the rise of equity.³⁵

When Congress creates an agency, it often commits to the agency rather than to the courts the responsibility of safeguarding the interests of parties. The agency’s power of adjudication is equal in importance to the courts. The development of this power is no less significant than the evolution of the courts of equity.

Common law is not usurped by administrative law, but coexists alongside it, just as it has coexisted with equity since antiquity. And just as the common law has absorbed the principles of equity, it may eventually absorb the principles of administrative law.

Statutes governing one agency are frequently used as a model in governing others. The federal statutes and statutes of many states contain administrative procedure acts to unify the rules of administration.³⁶

The difference between the legal system and the administrative system can be explained as follows.

Under the legal system, the legislature passes statutes that define rights and duties, and the courts rule upon cases brought to them by litigants.

Under the administrative system, the legislature passes statutes defining general guidelines and objectives to be accomplished by an agency. The agency writes rules and regulations to implement the intent of the legislature. These rules may be altered or revoked as the agency deems necessary in order to perform its duties. On its own initiative, or by complaint, the agency will look for violations and investigate to see that the statute or rules are complied with. Suspected violators are subject to further investigation or trial, often before the administrative agency itself.³⁷

The agency acts like a legislature, grand jury, court, and executive or enforcing body, and its actions are subject to limited review by the courts, as determined by the legislature. However, the judicial power cannot be repealed by the legislature, as the Constitution vested the courts with their power.³⁸ The role of the courts is to protect the rights of parties while assisting the administrative system in functioning within the traditional judicial system.

An administrative agency cannot write a rule and impose a penalty for its violation; such sanctions must come from the legislature itself. However, the legislature can provide a sanction for a violation of any of the rules that the agency may write.³⁹

Your first contact with a government agency will often be at the administrative level, and your rights and duties will be governed by administrative law.

Before a court will review the ruling of an agency, you must first exhaust all administrative remedies.⁴⁰ The courts are reluctant to set aside an agency’s decision because the agency is an experienced expert in the area.⁴¹

NATURAL LAW

Natural Law is the law that governs and regulates all of creation.⁴² It includes all the laws underlying mathematics, physics, chemistry, biology, and all the arts and sciences. It is present everywhere and at all times. When you understand the natural laws that govern something, you understand the relationship between cause and effect. In the present context, it is the law underlying social conduct. Right, by definition, is Natural Law, and Wrong is its opposite.

You are free to choose an action, but the reaction if fixed. The universe is governed by one law and one law only, as it relates to human affairs: “As you sow, so shall you reap”; every action has an equal and opposite reaction, and effects consistently and always follow causes. Otherwise, it would not be possible to act.

Natural law is the law of justice; you always get what you deserve. It manifests itself in the hearts and minds of man as a sense of right and wrong, good and bad, justice and injustice.

All the Laws of Nature have one thing in common: They are all evolutionary. They all promote growth in the direction of more and more. Whatever can be said to be significant or valuable in life such as power, happiness, wealth, knowledge, etc., these qualities are promoted by Natural law.

We see this in the choices we make; whenever we have a choice, we choose for more.⁴³

Action in accord with Natural law (i.e., right action) produces happiness. Actions that violate Natural law produce suffering; suffering is thus a feedback mechanism to tell you how well you are doing in the process of learning life’s lessons. Thus, all wrong actions are automatically punished, and all right actions rewarded; it is not necessary for government to regulate all aspects of individual behavior.

Even though Natural Law ultimately punishes wrongdoers, there is usually a gap in time between the action and Natures reaction, and it is proper for government to punish the hard headed to give them immediate feedback for their actions. But there is danger when government punishes what is not wrong. It creates resentment, and confusion about the distinction between right and wrong. All wrong actions are mala in se (wrong as such), and since almost all laws under the common law were mala in se, they were Natural Laws.

Since the same action may be right in some circumstances but wrong in others, a minimalist approach is always the safest. The common law followed this approach; it did not attempt to control behavior, but only held one accountable for damages.

The purpose of government would be to protect the fundamental rights of individuals in order to allow them to learn their lessons in freedom.

Just as a city does not infringe upon a state’s jurisdiction and a state doesn’t infringe upon the federal government’s, government must not infringe upon the jurisdiction of Natural Law; such infringement creates conflict and tension in the law.

The common law, being time tested, is closer to Natural law than recent statutory or administrative law. Any repeal of the common law should be met with suspicion.