While law is my chosen profession, American legal history is my avocation. So I was intrigued by Archuleta County Sheriff candidate Wayne Bryant’s chronicle of American history, which he claims to have to have learned from his grandfather.
Allow me to retort.
At the outset I should advise Mr. Bryant that in addition to prosecuting thousands of cases brought by our county sheriff’s office here in Florida, I was also an ex officio legal advisor for eight years to our then county sheriff. So I have working knowledge of a sheriff’s role, duties, and legal authority.
I’m sure Mr. Bryant knows a county sheriff operates in a legal environment where proving things in court is paramount. So if Bryant desires to be Sheriff, he needs to demonstrate his ability to prove things he alleges — and to disprove alternatives that cast doubt on his allegations.
I will suggest alternative historical facts. Mr. Bryant can then refute them. The voters can then judge if he proves his, and disproves mine.
I concede Mr. Bryant has an advantage here because I’m unable to cross-examine his grandfather, and thus test the basis of his knowledge. But I will accept the underdog role by being the devil’s advocate. Mr. Bryant attributed his grandfather as his source, so I will list my sources.
In addition to those I cite in the body of this retort, the following are just a few of the legal historical treatises on the shelf above where I sit typing this – all of which I’ve read:
Princeton Reading on Political Thought, Mitchell Coleman and Nicole Fermon, editors
History of Political Philosophy, Leo Strauss and Joseph Cropsey, editors
History of the English Speaking Peoples, Winston Churchill
Spirit of the Laws, Montesquieu
Two Treatises on Government, John Locke
The Idealogical Origins of the American Revolution, Bernard Bailyn
Debates on the Constitution, United States Supreme Court Library
The Law, Frederic Bastiat
History of American Law, Lawrence Friedman
The Common Law, Oliver Wendell Holmes
Law, Liberty and Legislation: Vol 1-3, F.A. Hayek
Additionally, online you can read Blackstone’s Commentaries on the Laws of England, and find an extensive collection of historical documents here.
There is also a plethora of case opinions from the United States Supreme Court that include extensive history of our law. For example, this one reviewing the origins of the Second Amendment, and this one about the Sixth Amendment.
So even though I lack Mr. Bryant’s grandfather’s wisdom, I feel comfortable that my knowledge base is sufficient to explore the validity of his historical claims.
I’ll begin with my field of professional expertise. Mr. Bryant wrote, “when our system of justice was established; it could have been as early as 1609 or earlier. The criminal courts on the lands were to be operated under Admiralty Law, the law of the sea.” Uhhh… no! The only criminal component of admiralty law relates to high seas piracy, not crimes on land. See Admiralty in a Nutshell, by Frank Maraist.
Colonial-American criminal law was not based on Admiralty law, but taken directly from English criminal law; see Friedman, History of American Law. English criminal law derives from two sources, Anglo-Saxon and Norman law, not admiralty.
If you peruse this chart, you won’t find any reference to Admiralty law. Or you can save yourself the eyestrain and take my word for it.
Next, let’s review Mr. Bryant’s rendition of the founding of the American colonies.
Mr. Bryant wrote,
Back when the Americas were being colonized, chartered companies sponsored them. The Virginia Company was one of them, around 1606. This particular (one of several) Charter was founded by King James I, along, with other investors of nobility. The idea was to reap profits exploited from the colonialists. Eventually the King backed out on paper because of staggering losses due to fraud and corruption.
The charter was later rewritten to allow for slaves and indentures servants to be owned and sold with the land. Eventually, slavery became a huge industry. It was the British, Dutch, Portuguese anyone who could profit. So the Virginia Company started profiting.
However, as the company continued to lose revenues (again) due to corruption (sound familiar?) they changed their charter again — this time, allowing investors from the lower classes.
Because of this, more and more average people were brought in. Now more and more voices were being heard. As more and more voices were speaking out as a General Assembly was organized.
Compare that with Supreme Court Justice Joseph Story’s history of the colonies.
The first charter regarding American colonies was not issued by a King to a company, but by Queen Elizabeth I to Sir Walter Raleigh in 1584.
But perhaps Mr. Bryant’s most bewildering claim regards a supposed “missing” 13th Amendment to the Constitution. That alleged disappearance has been debunked. It “disappeared” because it was never ratified.
Mr. Bryant goes on the say the United States was not originally named that. He writes, “In 1871, the Constitution which was still under Common Law was re-written (still under martial law.) Our nation then became the UNITED STATES.”
The words “United States” are in the original document adopted in 1787. It begins “We the People of the United States”, and bears the signatures of drafters – all of whom were dead by 1871, so they couldn’t have signed Mr. Bryant’s “re-written” version.
Nullius in verbo! (You can see it for yourself ) at the National Archives in Washington.
Nor am I sure what “the Constitution which was still under Common Law” even means. Common law is “judge made”, while the Constitution is written law enacted by the constitutional convention. So, by definition, it is not common law. The common law differs from statutory law because it is mainly based on precedent. Statutory law is a more formal body of the legal system that consists of written legislation.
Written law undermines the common law authority of judges. “As soon as the rule becomes statutory, the court is restricted to the interpretation of the particular form of words which the legislature has seen fit to employ.”
The Constitution was never meant to be interpreted under common law. Two of the Constitution’s preeminent authors rejected common law interpretation of it. Chief Justice John Marshall said so in Ogden v Saunders, written in 1827, and Alexander Hamilton, the Constitution’s most strident advocate, rejected common law interpretation of it in Federalist #78, written in 1788. So how could the Constitution “still” be under common law in 1871 as Mr. Bryant claims?
As for Mr. Bryant’s assertion that the Constitution was “re-written (still under martial law)” in 1871,
the United States was not under martial law in 1871. Two counties in North Carolina were, but that was declared by that state’s Governor whose authority was limited to his state.
I could go on refuting Mr. Bryant’s “history”, but will end with this. Referring to the deputies who arrested Gerald Manzanares (about which I wrote here), Mr. Bryant says that in addition to firing the deputies, he would take them “before a Common Law grand jury.”
In Colorado, a grand jury is convened by a Judge pursuant to the Colorado Rules of Criminal Procedure.
So under what authority does a ‘common law grand jury’ even exist in Colorado? What legal power would it have? And by what authority would Mr. Bryant, as sheriff, be able to convene one?
If, as Mr. Bryant declares, he intends to take that action as sheriff, he owes it to the voters to explain how, and by what legal authority.
So now I invite Mr. Bryant to demonstrate his ability to serve as sheriff by proving his claims, allegations, and assertions. It will be good practice for it he gets elected — and the voters can decide if he’s qualified for the job.