The thing you learn when working with bureaucratic organizations is that bureaucracies operate on inertia. Once something is set rolling it moves like a Giant Ship. Even if the captains of the ship see an iceberg ahead, even if every crew-member sees that iceberg, if the charter says "full steam ahead" they'll keep steaming according to their orders. That is why the most effective bureaucracies have a dictator at the top, a bottom up legislature, and some means to tell the Captain he can change course and not hit the Iceberg dead center. Bureaucracy is a feature of human organization. Armies are the oldest example of it. The next oldest is the Imperial Government, but that is an extension of military bureaucracy. What you don't want is concentrated power. Bureaucratic law is often unjust by design unless it is subject to democratic controls like appellate rights, jury trials & representative structures..
When the military, or any other bureaucracy, administers justice, the result is even more rigid than the bureaucracy on the Titanic. And unfair. So it has been with Admiralty Courts and the Investor State Tribunals. Admiralty Law has been "Investor Law" since ancient times. When State agents (factors) steal it is loot, when it is you or I, we hang for our crimes.
Democratic Pirates get Hung, Privateers do the Hanging
The Origin of Investor State Arbitration is Admiralty Law. Admiralty law is the law of the Sea. It developed under the influence of predatory colonialism.
Plantations are a type of Factory
The word "factor" was a colonial term before it became a place for manufacturing:
Factor: "commercial agent, deputy, one who buys or sells for another,"... "late Middle English (meaning ‘doer, perpetrator,’ also in the Scots sense ‘agent’): from French facteur or Latin factor, from fact- ‘done,’ from the verb facere." [etymolonline]
Plantations started out as Factors of Colonial power. They were a place where the "doer", "factor", planted things. The Factor was an agent of the Government of a place. And the governance of places was very early on privatized into expeditionary companies. The first expeditionary companies were often established to govern ships. But very soon after companies like the "British East India Corporation" (or it's twin "The Dutch East India Company") were created to govern the far flung factors of a country. Early Factories were often colonial towns or outposts. And one of the purposes of colonial towns and outposts was to govern the factors of that country in the area.
Admiralty law governed colonies and factories, shipping and trade, piracy and colonial expansion.
Courts and Trani
A quick read on Admiralty law shows that the first concern of older laws was with the "loot" produced by disaster and conquest. For example the laws of the consuls of Trani provide that goods found from wrecks at sea be taken to the court:
"if any person find goods on the sea, which are floating, it shall be lawful for him to take them and deliver them up to the court and give a written list of them within three days, after he has found them and taken them. And of those goods so recovered he shall have the half if the owner of them is found. And those goods shall remain in the hands of the court thirty consecutive days. And if at the end of thirty days the owner shall not appear, nor any lawful person on his behalf the goods shall belong to him, who has found them." [trani]
And we see detailed codified and judge made laws, under the control of Admirals, "consuls" and administered by them in consultation with local guilds or other local powers -- throughout Europe and her colonies. These laws were of the powerful, by the powerful and for the powerful and influential.
Under the influence of Colonial expansion in the context of European Rivalry the English concentrated Admiralty power in one court with branches around the world:
"The maritime courts, or such as have power and jurisdiction to determine all maritime injuries, arising upon the seas, or in parts out of the reach of the common law, are only the court of admiralty, and it's courts of appeal. The court of admiralty is held before the lord high admiral of England, or his deputy, who is called the judge of the court. According to sir Henry Spelman, and Lambard, it was first of all erected by king Edward the third. It's proceedings are according to the method of the civil law" [blackstone]
These courts were often more interested in settling the legal status of ships stolen as prizes of war, especially when the issue was whether the theft was "privateering" and legal, or "piracy" and illegal. Which was often an international question (and sometimes an international incident!):
"But in case of prize vessels, taken in time of war, in any part of the world, and condemned in any courts of admiralty or vice-admiralty as lawful prize, the appeal lies to certain commissioners of appeals consisting chiefly of the privy council, and not to judges delegates. And this by virtue of divers treaties with foreign nations; by which particular courts are established in all the maritime countries of Europe for the decision of this question, whether lawful prize or not: for this being a question between subjects of different states, it belongs entirely to the law of nations, and not to the municipal laws of either country, to determine it." [blackstone]
And the Admiralty court system was a layer of law that claimed oversight jurisdiction over the "plantations" in America. From the Point of View of many aristocrats in Europe -- that is all the people living in America were; labor for those factories and plantations. To them "factory" was the greater set for "plantation". And that is still the attitude of elites to this day. The factory system and the plantation system are the same system. Call it setting up trade factors in friendly nations, or neo-colonialism as long as the factory makes slaves of human beings or replaces them with machines, humans will suffer. The Blackstone Article notes that the only appeal Colonials had was to the courts of Admiralty, and also links them to the royal privy Councils.
"Appeals from the vice-admiralty courts in America, and our other plantations and settlements, may be brought before the courts of admiralty in England, as being a branch of the admiral's jurisdiction, though they may also be brought before the king in council. " [blackstone]
And it was to these "vice admiralty courts" with their claim to usurp traditional civil rights to a jury trial and a fair and impartial judges, and the infringement of Colonialism on the rights of colonists, that the Declaration of Independence was referring.
- "He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers."
- "He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries."
- "For depriving us in many cases, of the benefits of Trial by Jury"
- "For transporting us beyond Seas to be tried for pretended offences"
- "For protecting them [troopers], by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States" [Declaration]
- Related Posts:
- Admiralty and Trani (1063 AD):
- Detailed examples of Maritime Laws:
- Hanse: http://www.admiraltylawguide.com/documents/hanse.html
- Blackstone Article:
- Declaration of Independence:
- References to 7th Amendment:
- TPP and ISDS Articles
- Examples: https://www.popularresistance.org/top-10-most-pernicious-investor-state-dispute-settlement-lawsuits/
- Why TPP won't be good for workers (anywhere except on plantations):
- What the US Trade Representatives say about ISDS:
The purpose of the 7th Amendment was to address worries of Founders about the Federal Government denying people jury trials in civil suits. It was meant to deny the ability of the Government to circumvent that right under Admiralty or other Military law.
"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." [7th Amendment]
The reference to "common law" was intended to extend the protections of common law traditions to Federal (and later through the 14th amendment to the States too). It was not intended to allow corrupt judges to look to abusive interpretations of English Law to deny those protections. Obviously the "In suits at common law" clause was inserted by those founders who didn't agree with the majority of folks seeking the Bill of Rights. It's been interpreted mostly, as intended by the anti-Federalists, until fairly recently and still is formally interpreted as applying to most civil suits. If I were to propose an amendment I would amend the "in suits at common law" and say in "All Civil Cases" instead. But that's just me.
ISDS and Admiralty Law
Of course the purpose of provisions like the Investor State Dispute Settlement Tribunals, can also be described as a device to deny people the right to Jury trials, and the power of juries to bind appellate judges based on their findings of fact. Both of which our Judges are currently in the process of trying to corrupt even without the help of the massive constitutional power of treaties being binding under the constitution. But ISDS is essentially a modern version of Admiralty law. Only instead of the Military Courts having all power. The Investor State Tribunals are under Multinational Control. Essentially we are setting up Investor State Governments and giving them power over us. All protestations to the contrary, unless they are in writing and binding, should be taken with a lot of salt. ISDS and it's appeal to the World Trade Organization's Tribunals has already over-ridden US laws, local courts and laws around the world (See this Popular Resistance Article).
The Privateers get the loot, while the commoners get the noose. That is the purpose of admiralty law and it looks like ISDS, if we don't fight the corrupt lawyers promoting it.
Footnotes and Further Readings:
Note what seems to have broken up the Hanseatic league was it being superseeded by leagues between protestant versus Catholic states.
Note, I promised myself I'd make my posts shorter -- so that's it for this one.