Good Texas Common Sense
A series of articles concerning what the new government of the Republic of Texas should be and do, what the Constitution for the Republic of Texas should be and say, and the philosophical (common sense) reasons behind these statements.
Copyright at Common Law 1997, Donald Dale Henson, sui juris. This article may be reproduced and distributed using any media as long as the article, the author's name, and this copyright notice remain together and unchanged.
Article 8
Texas Common Law
by Donald Dale Henson, sui
juris
One of the things required by a peaceful and cooperative society is a way for individuals to peacefully resolve their differences. And, as discussed in an earlier article in this series, we also need a way to enforce the prohibition against the intentional or negligent initiation of force or fraud. Both of these requirements point to what is usually referred to as a judicial system.
There have been many forms of judicial systems throughout history, ranging from trial by combat and the dunking stool to common law courts and admiralty. But which of these forms are the best? First, I suppose, we should define our criteria for deciding which form is best. So what are the criteria?
First, we would like our judicial system to give us the best possible chance at achieving justice. That means that the system must be fair, impartial, reasonable, and trusted by most people in the society. Second, we would like our judicial system to be self-correcting in the event that mistakes are made. And third, we would like the judgments of our judicial system to be accepted by the vast majority of the people and enforceable against anyone who decides not to accept a particular judgment. Now that we have some criteria on which to judge the various judicial systems of history, let's look at a couple.
I think most would agree that trial by combat is not very fair as the winner in any court case would be the strongest or most skilled in the art of combat which is pretty much unrelated to guilt or innocence. Similarly, the dunking stool results are more dependent on the percentage of body fat than the guilt or innocence of the defendant. On the other hand, the more modern forms of judicial systems are not so easily dismissed. Let's discuss four of them: jural societies, admiralty, equity, and common law.
Jural societies are very similar to common law courts in that jural societies use courts of the people to determine guilt or to resolve differences between individuals. The main problem with jural societies is that they are contractual in nature and they only have jurisdiction over those who have signed the contract. So, for example, if a non-member were to murder a member of a jural society, the jural society courts would have no jurisdiction over the murderer. This situation could easily lead to a form of 'frontier justice' where vigilantes would administer the appropriate punishment without the restrictions of the judicial system to interfere. This does not seem, to me, to be conducive to a peaceful and cooperative society although I see no reason to prohibit the formation of jural societies for those who want to voluntarily participate.
Admiralty law (also referred to as maritime law) pertains to navigable waters such as the oceans, great lakes, or navigable rivers. The basis of admiralty law is that there is some higher authority that dictates the rules when you are in or on navigable waters. (Admiralty has also been perverted and brought on shore but that is not the subject of this article.) What is it about navigable waters that justifies a higher authority when there is no justification for a higher authority on land? The simple answer is that there is none. Some would say that the captain of a ship must have instant obedience to his commands so, therefore, there is no time for such 'niceties' as due process or a jury trial. The response to this is, of course, that the captain should require all crew members to sign a contract stating that they will obey all the commands of the captain while at sea and that they agree to be confined if they don't until they reach port at which time they will be tried under whatever jurisdiction prevails in that port. I see no reason to have a separate admiralty court in a free society, especially one that is so easily subverted by the 'higher authority'. It is the very concept that a 'higher authority' exists that leads to the perception that a judge can do anything he wants in 'his' court. (In this case, 'higher authority' is referring to an Earthly one, not a religious one.)
Some of you may be surprised to learn that equity courts were originally devised to give people an alternative to the sometimes harsh and uncompromising judgments of early English common law courts. They were designed to provide a more 'equitable' judgment. Thus, the name. So, theoretically, there would be no need for equity courts if the judicial system were perceived to be 'equitable'. Later in this article, I will describe a judicial system based on common law that I believe will give this perception.
Common law, in general, comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity. (Black's Law Dictionary, 6th Edition) As noted above, common law judgments can be harsh and uncompromising. It was mainly because of this that the concept of 'objective law' was developed, the idea being that professional lawmakers would create a body of law that could be applied fairly and equally to each similar case. Alas, this turned out to be more difficult than envisioned plus the legislative process itself has been subverted to pass more and more sometimes mutually-contradictory laws so that it is today virtually impossible to live your life without violating several statutes per day. So it appears that objective law went too far. But common law still has the problem of harsh and uncompromising judgments. How can we set up a modified common law, which we shall now refer to as Texas Common Law, to make common law more 'equitable' so that we no longer need objective law. (And, thus, no longer need a legislature.)
Here's how I envision Texas Common Law to work presuming, of course, that my ideas are incorporated into the new Texas constitution.
There will be no courts in Texas except Texas Common Law courts. There will be at least one Texas Common Law court in each county and that court, as well as any other courts formed later, must comply with all the provisions of the Texas Constitution. The first such court in a county will have original jurisdiction over criminal cases, those cases involving intentional or negligent initiation of force or fraud, provided that the damage occurred in that county, and only this court will have the authority to apply penalties to the defendant and only in criminal cases. In cases where damage occurred in more than one county, the first county in which a complaint is filed will have jurisdiction. In non-criminal cases, the demandant can file a complaint in any court in any county where damage occurred. If more than one court is formed in a given county, there will be a vote of the people residing in that county at an interval yet to be determined to select which of the courts will have jurisdiction over criminal cases.
Each county will have a Sheriff, a Constable, a County Prosecutor, and a Coroner. Each of the primary officials will be elected by the people residing in that county at an interval yet to be determined. Any of these officials can have deputies, if needed, but the deputies need not be elected. They will, however, be required to file an oath of office as will any elected officials.
The Sheriff will be the chief peace keeper of the county and will take any lawful actions ordered by the courts in that county such as arresting people who refuse to appear in court. The Sheriff will also be responsible for arresting individuals who refuse to appear in another county's court, provided that the other county's court is operating in a lawful manner. The Sheriff will NOT be allowed to arrest anyone, except in the case of a Texas Common Law crime in progress, unless the arresting officer is in possession of a valid arrest warrant at the time of the arrest. A valid arrest warrant is one issued by a lawful grand jury in accordance with some rules to be discussed later. The Sheriff will also be responsible for investigating alleged or probable crimes in the county and will cooperate with Sheriffs of other counties if investigating a crime where damage may have occurred in more than one county. (There's more but this should be sufficient for the purposes of this article.)
The Constable's main function is to arrest the Sheriff if that need arises. But the Constable can only do this in response to a lawful order from the county court and the court can only issue this order if a demandant has filed a complaint and a grand jury has indicted the Sheriff.
The County Prosecutor's main function will be to act as a demandant in the stead of a person or group of persons who cannot act as a demandant due to death or incapacity. A secondary function of the County Prosecutor will be to advise other officials of the county on the lawfulness of their actions or proposed actions.
The Coroner, who should be skilled in the art of medical forensics, will be responsible for investigating any sudden, suspicious, or violent death that occurs in the county. His goal will be to determine the actual cause of death and the person or persons most likely responsible or at least that the cause of death cannot be determined. The Coroner is also authorized to arrest the Sheriff if his or her investigations indicate that the Sheriff was criminally involved in the death of any individual.
In either criminal or non-criminal cases, before the court can take any action, a demandant must file a complaint with the court. The details of the complaint paperwork is still to be worked out but, basically, the complaint will describe the actions of the defendant which resulted in damage, what the damage was, and what the demandant wants the defendant to do to compensate for the damage. This last part will be in the form of a writ, an order of the court, ready to be signed should the jury find in favor of the demandant. Once the proper paperwork has been filed with the clerk of the court, the demandant is responsible for ensuring that a copy of the complaint is served on the defendant. Once the defendant has been served, the defendant will be given time to respond to the complaint or to prepare a defense. Traditionally, the amount of time allowed is 21 days. A court date must not be scheduled prior to this. This is referred to as 'notice and grace' or 'due process'.
In non-criminal cases, the jury can ONLY decide to sign the order presented by the demandant or not to sign it. They will NOT be able to adjust the compensation for damages. This will give the demandant an incentive to be reasonable in his or her demands since if the jury decides the demandant is not being reasonable, the demandant gets nothing. On the other side of the coin, since the jury will not be able to adjust the damages, we will not have juries awarding outlandish compensation for simple damages. (Such as $10,000,000 for spilling a cup of coffee in your own lap.) These two features together should reduce the harshness of common law judgments.
In criminal cases, an investigation of the circumstances of the alleged crime must be completed. This is the job of the Sheriff and the Coroner, working together. During an investigation, the Sheriff may request a search and seizure warrant from a justice of a court. The justice will issue the warrant only on the sworn affidavit of an official of the county that probable cause exists that evidence of a common law crime will be discovered if the search or seizure takes place. A search and seizure warrant will not be issued on the basis of an anonymous informant. The warrant will specify the places to be searched and the items to be searched for and seized. Only items specified in the search and seizure warrant will be searched or seized. If an investigation results in a grand jury indictment, all evidence collected and the results of all investigations will be made available to the defendant prior to trial.
In criminal cases, the defendant must be indicted by a grand jury. A grand jury is comprised of 24 jurors and a majority vote, the foreman not voting, is sufficient to indict. Indictments shall only occur if a majority of the jury determines that there is sufficient evidence that an intentional or negligent initiation of force or fraud has occurred and that there is a high probability that a jury of twelve will convict the defendant by a unanimous vote. Only on indictment by the grand jury will an arrest warrant be issued. In the trial, the same rules apply as far as awarding damages but juries can now apply penalties to the defendant. These penalties will be entirely up to the juries and will be decided on a majority vote, the foreman not voting, or a unanimous vote in the case of the death penalty. This preserves the common law concept of leaving justice in the hands of the people and makes plea bargains impossible. But how about the self-correction feature in case of mistakes?
In criminal cases, a losing defendant (a unanimous decision of guilt by a jury of twelve) will have the right to a retrial of his or her case in any other court in Texas provided that the defendant is willing to pay the costs of travel and lodging for all witnesses that participated in the original trial and provided that the new trial is requested within thirty days of the end of the original trial. The second jury decides only guilt or innocence. The sentence of the first jury will not be questioned. If the second jury also finds the defendant guilty, that's it. There are no further appeals and sentence should be carried out quickly, within 30 days in my opinion. If and only if the second jury finds the defendant innocent, then the original demandant has the option of retrying the case again in any of the remaining courts in Texas provided that the demandant is willing to pay the costs of travel and lodging for all witnesses that participated in the original trial and provided that the new trial is requested within thirty days of the end of the second trial. The decision of this third, and last, jury is final and, again, they decide only guilt or innocence. There are no further appeals from either side. This process will replace the appeals process that can take years and is basically nothing more than a procedural review. If I were on trial for my life or liberty, I would want a second chance but if two out of three independent juries agree, then I believe that the odds of a mistake have been reduced to an acceptable level.
Jury selection is critical to this whole system of law. If we allow juries to be packed, as they are today in the de facto courts, then the system will not work as it will be neither fair nor trusted. The two purported common law courts that I have experience with both use a system of selecting jurors by lot from the people in the observer's gallery, i.e., people in the court that are not otherwise involved in the case. Jurors are allowed to excuse themselves if they feel they cannot be objective and each side is allowed to question the jurors and excuse up to three that they feel would not be objective. In order to allow the laws of probability to operate so that we have a truly random jury, we would need at least fifty people in the gallery before jury selection. If there are fewer than this, a court session could be delayed for a period of time (a week?) to allow both sides to convince more people to attend the next court session. Another option would be to allow the trial to proceed with fewer people provided that it is a non-criminal trial and provided that both sides agree.
Once twelve jurors have been selected, the jurors themselves select a foreman from amongst themselves. The job of the foreman is to keep the jury orderly and to act as a spokesperson for the jury. The foreman will not vote when the decision will be made by majority vote, such as when deciding on damages in a non-criminal trial, but will vote if the decision requires a unanimous vote, such as in a criminal trial. The jury will hear both sides, will hear sworn witnesses called by both sides, may call their own sworn witnesses, and may ask questions of the Justice, the demandant, the defendant, or any of the sworn witnesses. The jury may also request reference material or expert witnesses. The Justice of the court, discussed later, will make his or her best attempt at obtaining the requested information or expert witnesses. All deliberations and votes of the jury will take place in open court. There will be no secret or private deliberations or votes.
Juries will be impaneled for one case only and will then be excused. If another case is to be tried, a new jury must be impaneled.
Notice that there is no mention of lawyers or attorneys in any of the above. In a Texas Common Law court, demandants or defendants may have anyone they desire to assist them with their case or even speak for them before the jury. However, there will be no requirement for these assistants, or counselors, to be a member of any particular organization nor will there be any requirement for any special type of education or training. Any such counselors will not be officers of the court but will instead work for and be paid by whomever they are counseling.
Officers of the court will be a Justice, a Clerk, and a Bailiff. These will be elected officials and may have deputies or assistants to help them. The deputies will not be elected but will be required to file an oath of office as will any elected officials.
The Justice in a Texas Common Law court will be primarily a moderator. That is, the Justice will ensure that procedures are followed and that order is maintained. The Justice will also respond to requests for information or expert witnesses from the jury. The Justice will not make rulings on admissibility of evidence or testimony. The Justice may answer questions from the jury concerning law but will otherwise not make any pronouncements concerning law. The only 'judge-like' things that a Justice will be able to do is to issue a writ of habeous corpus in the event that it is determined that someone is being held unlawfully or issue a search and seizure warrant on lawful request from the Sheriff.
The Clerk of a Texas Common Law court is primarily an administrator. The Clerk will ensure that all filed paperwork is completely and correctly filled out, will ensure that filed paperwork is processed via the court rules, and will ensure that all filing fees are paid. The Clerk will also be responsible for maintaining a public record of cases, actions taken by juries, and writs issued by the court.
The Bailiff is responsible to the Justice and will carry out any orders of the Justice. The Bailiff's primary responsibility is to maintain order in the court and to administer oaths but may also assist the Justice in obtaining information or expert witnesses.
Well, there you have it: Don Henson's ideas on how Texas Common Law should work. It appears that we can have a fair, impartial, reasonable, and self-correcting judicial system whose judgments will be trusted and accepted by most people in the society. And we have built in an enforcement function to account for those few who do not voluntarily comply with orders of the court. I like it.
Does this make sense? Good Texas Common Sense?
Copyright at Common Law, West El Paso Information Network, 1997