June 04, 2006
Courts as Franchises - the origins of private law as peer-to-peer government
Over on Enumerated, Nick Szabo posts twice on the framework of the courts in anglo-norman history. He makes the surprising claim that up until the 19th century, the tradition was all of private courts. Franchises were established from the royal perogative, and once granted as charters, were generally inviolate. I.e., courts were property.
There were dozens of standard jurisdictional franchises. For example, "infangthief" enabled the franchise owner to hang any thief caught red-handed in the franchise territory, whereas "outfangthief" enabled the owner to chase the thief down outside the franchise territory, catch him red-handed, and then hang him. "Gallows" enabled the owner to try and punish any capital crime, and there were a variety of jurisdictions correponding to several classes of lesser offenses. "View of frankpledge" allowed the owner to control a local militia to enforce the law. "The sheriff's pleas" allowed the owner to hear any case that would normally be heard in a county court. There were also franchises that allowed the collection of various tolls and taxes.
A corporation was also a franchise, and corporations often held, as appurtenances, jurisdictional franchises. The City of London was and is a corporate franchise. In the Counties Palatine the entire government was privately held, and most of the American Colonies were corporate franchises that held practically all jurisdiction in their territory, sometimes subject to reservations (such as the common law rights of English subjects and the right of the king to collect customs reserved in the American charters). The colonies could in turn grant franchises to local lords (as with the Courts Baron and Courts Leet in early Maryland) and municipalities. American constitutions are largely descended from such charters.
Consider the contrast with the European hierarchical view. Not property but master-servant dominated, as it were. And, some time in the 19th century the European hierarchical view won:
The Anglo-Norman legal idea of jurisdiction as property and peer-to-peer government clashed with ideas derived from the Roman Empire, via the text of Justinian's legal code and its elaboration in European universities, of sovereignty and totalitarian rule via a master-servant or delegation hierarchy. By the 20th century the Roman idea of hierarchical jurisdiction had largely won, especially in political science where government is often defined on neo-Roman terms as "sovereign" and "a monopoly of force." Our experience with totalitarianism of the 19th and 20th centuries, inspired and enabled by the Roman-derived procedural law and accompanying political structure (and including Napoleon, the Csars, the Kaisers, Communist despots, the Fascists, and the National Socialists), as well as the rise of vast and often oppressive bureaucracies in the "democratic" countries, should cause us to reconsider our commitment to government via master-servant (in modern terms, employer-employee) hierarchy, which is much bettter suited to military organization than to legal organization.
Why is that? Nick doesn't answer, but the correlation with the various wars is curious. In my own research into Free Banking I came to the conclusion that it was stronger than any other form, yet it was not strong enough to survive all-out war - and specifically the desires of the government and populace to enact extraordinary war powers. Which led to the annoying game theory result that central banking was stronger, as it could always pay the nation into total war. If we follow the same line in causality, Nick suggests that the hierarchical government is stronger because it can control the nation into total war. And, if we assume that any nation with these two will dominate, this explains why Free Banking and Franchise Law both fell in the end; and fell later in Britain.
Posted by iang at June 4, 2006 09:52 AM
Well it is all a question of when you delineate time, or start counting that makes the difference. Prior to Roman law in the British Isles there was Celtic law structured on class. The United States body of law is derived from the period of time it was influenced by and thus the original intent of the framers of the Constitution is what is sought in all laws. This divination of original intent is an exercise that Roman based laws conducts with certain guiding moral compasses to provide insight. The US is suppose to be an Empirical based code of laws with the divination being guided by the election of representatives and an executive whereby the courts only enforce those laws passed. The expansion of the judiciary in modern times has been to deem laws proper or improper and unconstitutional and therefore invalidates the government and its franchise under the Articles of Confederation. The US Constitution as it is now operated by a Coupe that was perfected during the Civil War or the war of northern aggression. All US Military take an oath to defend the Constitution against the enemies both foreign and domestic. The corporate charters, such as Rhode Island and others that became states where in the process of being revoked by King George and was an attempt to coupe earlier political sub-divisions established in New England. The question of New York and the surrounding areas where of Dutch law and the New Englanders invaded and established colonies to avoid paying taxes also known as smugglers New York was a corporation formed by the Dutch not the English. Florida has its roots in the Spanish Conquest as do much of the southern states. The Spanish and French Regimes where displaced by English Crown privateers that where in essence pirates. So we now have the English, Dutch, French, and Spanish bodies of laws imposed over the US prior to its founding. There is also the general population to take into consideration and those that could and could not participate in the franchise afforded after the successful winning of the revolt against king. Legally but unasserted I have the rights of a Sovereign Citizen afforded by the English Crown to all those that live in the once governed colonies. I say this because while I cannot assert its value without going to jail as a seditious criminal and enemy of the Constitution I’m none the less entitled to it. States or previous chartered franchises of the English Crown are legally entitled to break away from the Republic formed under the Constitution. The last time that was asserted we suffered from a Civil War. The Civil War was the perfection of the Coupe and the violation of the Articles of Confederation which created an Empire rather than a democracy. Abraham Lincoln was the first US Caesar and the genesis of an empirical code and the expansion of the judicial branch of government to invalidate the deliberative and representative branches. The executive or the office of the Caesar uses the judicial branch as his high priest or pope. To suggest that the line of development where anything other than a power struggle is to ignore the formation of New Hampshire from the State of New York via the abuse of power by the newly formed federal government. The State of Tennessee and the formation of the District of Columbia also prove the early intention of the federal government as franchised by the Articles of Confederation. The chain of title was won by the citizens of the colonies and the Sovereign Rights as afforded by the Crown where stolen under the Articles of Confederation and later usurped by the Constitution. These coupes where enforced by military action and not only stole the rights of the citizens that fought and died in the revolt against the crown but took the sovereignty of native nations (aka American Indians) as well. So to view the process as developmental is to ignore the chain of title and not recognize the oligarchy of the ruling classes’ revolt against a king. In order to rule by force peer to peer is invalidated. The divination of original intent is only valid by use of force to impose its will against the Sovereign Citizens of the Crown. We are free born English men trying to sort out a coupe. It is important to note that 80% of the Caucasian population of the US has its roots in German ancestry not English and German almost became the official language. So Sig Heil Commrade watch out you do not suffer the fate of the Indians, but alas there is always hope no one knows what their asserted powers might be if on one sunny day they pay the right amount to the right judge.
This is a very interesting perspective.
A colleague of mine, Woody Wood of
(with whom I am working re Economic devolution)
points out that it was the Jacobins - in the shape of the French Revolution - who formalised with "the State", as opposed to the pre-existing "private" franchised model.
So we have EITHER "Public" = State OR "Private" = Corporations: Corporations have evolved from charter creations via Acts of Parliament to creation by registration pursuant to Act of Parliament.
As Tony Blair's would-be usurper David Cameron pointed out, Mrs Thatcher got it wrong when she said "there is no such thing as Society": there IS such a thing as "Society", and, as he says, it is not the State.
But sorry Mr Cameron, it's not the Private Sector either.
I believe we are seeing a new legal alternative coming into being based neither upon State and Statute nor upon judge-made "equity" but rather upon consensual protocols.
The key to all this is "Property".
Jeremy Bentham it was who pointed out:
“It is to be observed, that in common speech, in the phrase "the object of a man's property", the words "the object of" are commonly left out; and by an ellipsis, which, violent as it is, is now become more familiar than the phrase at length, they have made that part of it which consists of the words "a man's property" perform the office of the whole.”
ie Property is "the Object of a Man's Property" or something which is "Proper" to the Man.
In other words Property is not an Object but a relationship, consisting of the bundle of rights of "ownership" and "use". In UK law these rights are both statutory eg the Law of Property Act 1925 allows for EITHER Freehold (permanent) OR Leasehold ( for a defined term) ownership rights, and these inflexible Absolutes are then ameliorated by "Common Law" equitable rights of use, access etc etc based upon judge-made "Trust Law".
I believe that the concept of the "Open Corporate" (of which the UK LLP is the first example) allows these property rights to be bundled in a new way ie for the RELATIONSHIP to be captured semantically by a protocol and for the revenues from assets held in this "Property" wrapper to be shared as may be consensually agreed.
This argument, and also the parallel argument in respect of Money as a relationship (rather than the current Bank-created Object) also definable semantically, are set out in my paper to the University of Lancaster's Institute of Advanced Studies
Ian, thanks for the links and comments. Minor quibbles: not "all" jurisdiction was private unless you count the king's jurisdiction (which you might, as the realm is in theory at least a kind of inalienable property, passed through the same basic laws of inheritance as were land and franchises, but then we lose meaningful distinction between public and private). It also might be a stretch to call many Church and municipal corporations that held jurisdictional franchises "private": they were "private" mostly just in the sense of not being royal. All were "private" in the sense of being treated basically the same for the purposes of the legal authority defense to trespass, which intermediated most relationships between franchise and royal courts (and defendants wronged by either).
The "peer-to-peer plus night watchmen" model applies to the proper subset of (subject matter union people) over which franchises had exclusive jurisdiction: this was a meaningful and substantial subset for many centuries, but much besides was under the jurisdiction of the royal courts. Thus as I said the overall English model was partly peer-to-peer and partly hierarchical, but the legal structures were such that one can separate out the peer-to-peer-plus-neight-watchmen subset and study how it worked.
Also, we must keep in mind that medieval property was more political than modern property (because of appurtenant military service obligations as well as appurtenant jurisdictions). While land and goods became more "economic" and less political as law evolved from the medieval to the modern, franchises came to be more political and more controlled by royal courts and Parliament.
You might know better than I the current legal status of the City of London, the jurisdiction(s) of which are still AFAIK legally franchise(s), although I don't know what that might mean in modern England. Of course, calling a public municipal corporation "private" is tricky: there are many intermediate steps, mostly of increasing Parliamentary regulation and royal court oversight, between the ancient franchise and the modern municipal corporation. The City is probably also now de facto or de jure inalienable: I don't suppose that Parliament would allow the sale of the City of London to, say, Dubai Ports World. :-) Whereas, the County Palatine of Durham in medieval times, and the Massachusetts Bay Colony in the 17th century, were both sold at least once, and many colonial companies (such as the East India COmpany) were joint stock corporations with appurtenant governmental franchises.
Ian, your comments on the correlation of legal structures and wars resonate with what I've written about the defensibility of land:
Britain's island position combined with England's navy gave England an inherent geographical advantage when it came to the Western European wars over farmland.
Furthermore, England was able to segregate its armed forces from its main jurisdictions, thus avoiding the fate of the Roman Republic. Roman "imperium" was just military jurisdiction under the Republic, until the martial law of Julius Caesar when it became the general jurisdiction (thus soon turning into the Empire, from which we get the Justinian Codes with their hierarhical procedures, derivatives of which are now widely used on the Continent, Japan, China, etc. -- the so-called Civil Law countries as opposed to the English-derived Common Law countries).
Medieval and renaissance England was able to segregate the Royal Navy from other major jurisdictions with Admiralty jurisdiction and with yet another set of largely independent municipal franchises, the Cinque Ports. England also isolated its main jurisdictions from frontier wars by making hinterlands ("the marches") such as Wales and Durham Counties Palatine, which again operated without much interference from (or interference with) royal and other franchise courts. All this made for an often quite minimal standing army where royal courts and other franchise courts had jurisdiction, and there were serious political movements (especially the early Whigs) to eliminate standing armies in England and early America, a political stance that was probably unthinkable on the Continent (and, alas, unthinkable today). Legally it meant that the English military, almost uniquely in Europe, had very little influence on English legal evolution.
Not having to account for military needs, for example to shoot first and ask questions later, probably greatly enhanced the ability of England to develop standard and liberty-friendly procedures for its courts.
>> There were dozens of standard jurisdictional franchises. For example,
>> "infangthief" enabled the franchise owner to hang any thief caught
>> red-handed in the franchise territory, whereas "outfangthief" enabled
>> the owner to chase the thief down outside the franchise territory,
>> catch him red-handed, and then hang him. "Gallows" enabled the owner
>> to try and punish any capital crime, and there were a variety of
>> jurisdictions correponding to several classes of lesser offenses.
>> "View of frankpledge" allowed the owner to control a local militia to
>> enforce the law. "The sheriff's pleas" allowed the owner to hear any
>> case that would normally be heard in a county court. There were also
>> franchises that allowed the collection of various tolls and taxes.
Along these lines there is an interesting article in the book "Voluntary City" which reports that there was no government police force in Britain until late in the 19th century. It claims that all patroling, thief catching, etc. was handled by numerous, fairly local private organizations and that their services were often of the nature of fraternal insurance benefits.
The article further claims that government police (the Bobbies etc.) originated as a result of pressure from the aristocracy for means to enforce morals on the common folk (which the private police would not do). Being imposed, and "free", the government police displaced the private police after them operating side by side for several decades.
History is delightful in how it disproves so many things modern people believe are undeniable. And this is not even very old history.