Sunday, February 3, 2013

What is Common Law?

What is Common Law?
by Jesse Enloe
October 9, 1997
   For many this is a difficult question, since our society has been taught during our entire lifetimes that the laws we must obey are the laws made by legislature. The first step in understanding Common Law is in understanding what it is not. It is not statutory law, which is the law made and written by men. Although statutes should be based on the Common Law, if they are to exist, many are not. Many people want to get a book where the Common Law is stated in the manner that men have written statutes.
What I mean is, they want to be specifically told what is and what is not against the law. There is only one book that I know of that can be used as the "source book" for Common Law that applies to every natural person born to life on earth. That book is the Bible. Now, before some of you get ruffled about that statement please consider the rest of this article.
Simply defined, the Common Law is that law that is Common to ALL individuals on this planet. How could there be such law? Where could a law come from that could apply to everyone? The basic premise that answers this question is in the belief that there is a Supreme Creator of life on this planet and that He is the lawgiver. If this premise is true, then surely, whether we recognize Him or not, the law that He established is immutable law.
For those who do not believe that there is a Supreme Creator, there is still very logical reasoning behind the concept of Common Law. That is that the basic principles of the law set forth in the Bible can be seen in every system of law on Earth. Let's take a look at the Ten Commandments as set forth in the Bible. As you will see, the law here is basically in two categories:
1. Verses 1 through 11 speak of one's relationship to God.
2. Verses 12 through 17 speak of one's relationship with other individuals and society in general.
Exodus - Chapter 20: Verses 1-17 1. And God spake all these words, saying, 2. I am the LORD thy God, which have brought thee out of the land of Egypt, out of the house of bondage.3. Thou shalt have no other gods before me. 4. Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth: 5. Thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me; 6. And shewing mercy unto thousands of them that love me, and keep my commandments. 7. Thou shalt not take the name of the LORD thy God in vain; for the LORD will not hold him guiltless that taketh his name in vain. 8. Remember the sabbath day, to keep it holy. 9. Six days shalt thou labour, and do all thy work: 10. But the seventh day is the sabbath of the LORD thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates: 11. For in six days the LORD made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the LORD blessed the sabbath day, and hallowed it. 12. Honour thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee. 13. Thou shalt not kill. 14. Thou shalt not commit adultery. 15. Thou shalt not steal. 16. Thou shalt not bear false witness against thy neighbour. 17. Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbour's.
When we speak of the Common Law in the Republic of Texas, we also must consider the freedom of the expression of one's particular faith or belief. In fact, we must allow freedom for anyone to believe whatever his/her conscience dictates whether we agree with it or not. Thus, the first four Commandments must be left to the understanding, interpretation and belief of each individual and their own relationship, or non-relationship, with God. The remaining six Commandments, however, directly affect each and every individual alive and affect society as a whole.
Who, in their right mind, would argue that murder, adultery, theft and lying are not wrong - in ANY society! The reason for the tenth commandment is that these things begin in one's heart. If one covets the possessions of another, it can lead to one of the crimes just mentioned. Who could argue that everyone following these Commandments would not produce a crime free society? Obviously that's a little too much to hope for, since we know the inherent fallibility of the human race. So we must have something to go by to have an ordered society where the rights of every individual are protected by a law that applies to everyone. This law must have direct correlation to the inalienable rights given to each individual at birth. Thus, the Law of the Bible, the Divine Law, is the very essence of the Common Law.
For those who do not choose to use the Bible as the source for the Common Law, another definition, man's definition is offered: "The Common Law is based on common usage and customs of the society." This is why the law, as described above, fits here too. It is, or should be, understood by everyone that murder, adultery, theft and lying are crimes against the rights of others.
For those who do choose the Bible as their source, of course there are the Ten Commandments. The Law is also re-stated in the New Testament. One such reference is found in Romans chapter 13 verses 8, 9 and 10 as follows: 8. Owe no man any thing, but to love one another: for he that loveth another hath fulfilled the law. 9. For this, Thou shalt not commit adultery, Thou shalt not kill, Thou shalt not steal, Thou shalt not bear false witness, Thou shalt not covet; and if there be any other commandment, it is briefly comprehended in this saying, namely, Thou shalt love thy neighbour as thyself. 10. Love worketh no ill to his neighbour: therefore love is the fulfilling of the law.
In the Republic of Texas we define the Common Law simply in this manner:
"Do no harm to another, Do no harm to another's property, and Your word is your bond [meaning honor all contracts, verbal or written, and don't lie]."
It would be difficult, if not impossible, to think of a crime against another that would not fit into one of these categories. What does not fit into the Common Law is when behavior that does no harm to anyone is defined by men as a crime.
For example, a person traveling on a roadway who does not make a complete stop at a "Stop Sign." If there are no other people traveling in the vicinity, and no one is harmed, in the Common Law no crime has been committed. If, however, you cause an accident with another traveler because you failed to observe the traveling rights of the one who was already in the intersection and harm them or their property, then a Common Law crime has occurred. This is why there are common sense procedures that should be followed in our society, but not to the extent of paying tribute to some governmental body when no one has been harmed!
One of the biggest reasons it is so hard to understand the Common Law as opposed to Statutory Law, is that men make laws in an attempt to REGULATE THE BEHAVIOR OF OTHERS TO PREVENT CRIME [Statutory Law]. The truth is, however, that NO LAW CAN PREVENT CRIME. Laws only DEFINE CRIME. The only thing that can prevent crime is the morality of the individual [a conscious decision not to commit crime] or the fear of JUSTICE and PUNISHMENT for crime. Thus, the defining of the Law is an entirely different matter from the enforcement of the Law.
The book "The Law" by the French writer Frederick Bastiat is one of the best there is at explaining why we need law and what the force of law is. Please consider this excerpt from his book:
"Life, liberty and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty and property existed beforehand that caused men to make laws in the first place. What then is Law? It is the collective organization of the individual right to lawful defense.
"Each of us has a natural right, from God, to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them depend upon the preservation of the other two.
"If every person has the right to defend, even by force, his person, his liberty and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right, its reason for existing, its lawfulness, is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty or property of another individual then the common force, for the same reason, cannot lawfully be used to destroy the person, liberty or property of individuals or groups."
Our society today depends upon the written statutes to define what is against the law and what the punishment is. The problem is that so many of the statutes written by men go far beyond the basic purpose of law and attempt to define every possible behavior or action. What's wrong with this is that there are as many variations on behavior as there are people. Another thing that's wrong with this is that many things are defined as crimes for no other purpose than extorting money, freedom or property from the People by unscrupulous men who have gained positions of "power" in the government. As stated in Bastiat's book, when the legal system exceeds their basic purpose, to protect individual rights, it becomes a system of legalized plunder. Look at what we have today.
So what is the proper enforcement of the Common Law? To answer this question we must realize who has the power to enforce the Law. Bastiat also tells us this when he uses the words "common force." The power to enforce the Law comes from the People. It is based on their individual right to protect themselves and their individual right to justice. The organization of this right is customarily in men selected by the people to "keep the peace" [enforce the law] and a council of men selected to make judgments as to violations of the law and the punishment [justice] to be imposed.
From the days of the Magna Carta, which is said to be the first attempt at writing the Common Law in English, this "council" has been called a "jury." We in the Republic of Texas believe that the Common Law, as it relates to individual actions, should only be administered by the lawfully elected Sheriff of the county, and by a lawfully selected jury of 12 in Courts of the People, set up by the People. Since the actions and actual crimes can be so varied and contain so many different factors, such as willful intent as opposed to accidental or negligent, each case must be looked at individually by the jury to judge the law, the facts and the rules of evidence.
If the system of justice and law is given into the hands of the elected "government" the door is open to all of the abuses of the rights of the People that seem so common today and always happen when the government goes unchecked. The jury is, in fact, the very thing that must be used to check the government, and not allow individual rights to be abused. It is a universal principle that no one should ever suffer the loss of life, liberty or property except by due process of the administration of the law of the land. This is where we must all understand that the Law of the Land in Texas and in the united States of America is the COMMON LAW.
Think about it. We call a constitution the "Law of the Land." But it is a COMMON LAW DOCUMENT. Was it created by statute? Was it created by a government? No. It was created by the will of the People exercising their collective right to self preservation of their individual rights.
So, how do we sum up the Common Law? Depending on your particular faith or belief it is either the Law set forth by the God of the Bible to apply to all who live and dwell upon the Earth, or simply the law that is common to all for the protection of the rights that are common to every individual against abuse by others. These two ways of saying it are totally compatible and, either way, it is the law that defines crimes against individuals and is administered by the collective force as organized by the People.
Once again, when someone is harmed in any manner, their body or their property, it is for a jury to decide the issue. A jury that are the judges of the entire case, not a jury whose hands and consciences are tied by one man, called a "Judge," that tells them how they must decide based on HIS interpretation of statutes. If we want to restore FREEDOM, LIBERTY AND JUSTICE in our land, we must return to the Common Law, Common Law Procedures, trial by a jury, and instill the FEAR OF PUNISHMENT in those who lack the individual morality to refrain from the abuse of the rights of another.
Respectfully Submitted,

        Jesse Enloe
        Vice President (Now President)
        Republic of Texas
        Provisional Government




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