Common Law

January 18, 2024 | Constitution, Founders, History, Judicial, Jury, Militia, Sovereignty

I have been asked as to what is the nature of ‘common law’? It is not an easy question to answer, given that most are unfamiliar with law in general, and today, few understand our unique form of government “instituted among Men, deriving their just powers from the consent of the governed.” This statement from our Declaration deserves some explanation before going further.

Prior to the Revolution, conducted by our Insurrectionist Founders, men were subjects of monarch’s who ruled by the Divine Right of Kings. They governed their people by the fallacious concept that an individual was placed on a throne by birth right. God had determined that the individual should be the person who ruled. And that person was given allegiance by his people, but if they failed to do so, they were brought into line by the power of the “Sword.” There has always been plenty who would wield the “Sword” against his fellow man for one reason or another.

Those Fifty-Six Insurrectionist’s, who signed their own death warrant, and had “Petitioned for Redress in the most humble terms” saw the monarch as “A Prince whose character [was] thus marked by every act which may define a Tyrant, [was] unfit to be the ruler of a free people.” So, the fight for a government “of, by, and for the people” became a reality for those who sought to abide by law that “We the People” would compose, defend, and prosecute.

There is a history of common law, and it is best that I allow historic figures to explain. I will attempt to give some light to the subject using their words, and case law.

Common Law seems simple enough to me, but to the average person who has been inundated with reams of papers by those claiming some sort of expertise, promoting some foolishness, and judicial legislating, the prescription is anathema to common sense.

Blackstone gives a simple explanation by writing, “THE policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man’s door, by constituting as many courts of judicature as there are manors and townships in the kingdom; wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbors and friends.”

Our system is that of common law. If you have been harmed in some way, you are entitled to relief. As Justice John Marshall explains in Marbury v Madison, 5 U.S. 137.                                             

“If he has a right, and that right has been violated, do the laws of his country afford him a remedy? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. *** Blackstone states two cases in which a remedy is afforded by mere operation of law.

‘In all other cases,’ he says, ‘it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.’

“And afterwards, [still quoting Blackstone] ‘I am next to consider such injuries as are cognizable by the courts of common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.’”

Over the years, there have been numerous hucksters, charlatans, and even those who are of goodwill, who paraded out schemes designed, somehow, to enforce the law, or that the law was some form of secret code designed for the elite to enslave us all. While we have been enslaved to a certain extent, the law does not allow for, and indeed it does provide an ultimate authority for the people to claim redress and enforce our sought remedy.

I sincerely hope that those who read this understand that this nation was formed in turmoil. A bloody revolution fought over years, wherein the end result was a Nation “constructed on the principle that the Supreme Power resides in the body of the people.” – Chisholm v Georgia 2 U.S. 419, 457

How do we attain, and even maintain such a lofty goal? Those who debated the Constitution were not ignorant of the fact that tyranny would always be a threat. The Bill of Rights arose out of that historical record. Patrick Henry, a student of human nature, understood the dangers of leaving questions, or even clearly defined words at risk to the will of the oppressor.

Henry insisted that a Bill of Rights be added over the objections of James Madison who thought it to be superfluous. This is important to demonstrate that both Henry and Madison were correct in their arguments. Madison noted that government is given certain powers to which they must comply, but Henry argued that there would be those, in the future, who would usurp the powers, and prohibitions clearly stated. Today, we argue and ignore the words of both men.

The Bill of Rights bolsters the principles of common law by citing numerous components of the  means to enforce common law; freedom of religion, speech, the press, the right to peaceably assemble, and to redress the government. Security against unreasonable search and seizure. Warrants to be issued upon probable cause. A grand jury and a petit jury. Thomas Jefferson noted,  “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

Blackstone wrote, “as all wrong may be considered as merely a privation of right, the one natural remedy for every species of wrong is the being put in possession of that right, whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner *** The instruments whereby this remedy is obtained *** are a diversity of suits and actions, which are defined by *** the right of prosecuting to judgment which everyone is due.”

Today, common law appears to be a novel idea, but the concept of “prosecuting to judgment” is far older than this nation. Blackstone, notes, “THE Romans introduced, pretty early, set forms for actions and suits in their law *** (quoting Cicero) “There are rights, there are forms appointed, for all things, lest any one should mistake either the kind of injury or the mode of redress. For public forms are composed by the praetor (Roman magistrate) from every species of loss, trouble, inconvenience, calamity, and injury, for the accommodation of private suits.”

The means by which remedy and relief may be obtained, are as old as the stories and fables of Aphrodite and Zeus. However, the forms upon which we may seek, or even bring a suit have been corrupted. The average person runs around blaming the unethical rather than engaging the law as it was promulgated in our unique form.

Common law, as was discussed earlier in this article, is the ability of the individual to be made whole against some transgression, be it a matter of private property, or as addressed in “Marbury,” a deprivation of a vested right.

We held that as a truth in law; “….The individual may stand upon his constitutional rights as a Citizen. *** He owes no duty to the State since he receives nothing therefrom beyond the protection of his life and   *** His rights are such as existed by the Law of the Land, long antecedent to the organization of the State, and can only be taken from him by due process of the law and in accordance with the Constitution. He owes nothing to the public so long as he does not trespass upon their rights.” – Hale vs. Henkle 201 U.S. 43 at 74

Underlying the common law is common sense. For all actions, there must be a means by which they are enforced. An aggrieved party may bring a suit but is dependent on some enforcement by an institution with recognized authority to carry out the verdict of the court.

When it is the government, those we elect to represent our interests in law, that cause the injury, today we are dependent on agents given unconstitutional powers to procure relief. How is this to be considered as a legitimate forum when our judiciary has promoted the idea of “compelling interest”? The government always has some interest enforced by agents whose goal is the prosecution of the people they were meant to serve.

“John Locke is one of the founders of “liberal” political philosophy, the philosophy of individual rights and limited govern­ment.” I believe, that in his “Treatise On Government,” too long to elaborate here, we find an underpinning for common law. Locke wrote in his Second Treatise, “And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man’s hands, whereby every one has a right to punish the transgressors of that law to such a degree as may hinder its violation: for the law of nature would, as all other laws that concern men in this world, be in vain, if there were nobody that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders. And if any one in the state of nature may punish another for any evil he has done, every one may do so: for in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do.”

How do we equate what Blackstone and Locke wrote to the application of common law? Both men address rights, and a forum in which an individual may bring a prosecution against a transgressor. Natural rights, which our Forefathers deemed unalienable, must have a forum to provide for the remedy and relief owed to one who has been harmed.

This is where the understanding of common law fails amongst those who use and abuse the term by a lack of willingness to enforce. Those delegates who debated the Constitution were aware of the dangers of any system, especially any system that had no means by which all men could seek a menu of remedy as noted by Cicero.

This is the nature of our laws, and of common law. An injury must have a method for relief, and a means to enforce. Without a prescription with the force of law, we have abdicated our duty, and our responsibility to our fellow citizens. You cannot ask a leopard to change its spots when the leopard has a vested interest in its own well-being.

We have allowed to be erected standing armies all about us in the form of agencies that act with no constitutional authority, and indeed in violation of the powers and disabilities constructed within our rule of law.

James Madison stated, “Always remember that an armed and trained militia is the firmest bulwark of republics—that without standing armies their liberty can never be in danger, nor with large ones safe.”

Do we subscribe to a system of common law as some of the great legal minds of history, and our Forefathers provided?

What is common law? As discussed here, it is a system comprised of a forum in which a person may seek remedy in accordance with an assertion of their natural rights, to go about their business unfettered, and obtain relief when their person has been violated. The Founders of this nation were astute enough to know that the application of any right, or those laws welcomed by the people must have an arm of enforcement. This is where we have fallen and discredited our system of equity in law. “Common Law” must have a venue by which to bring prosecution, it must also have an Institution that “We the People” maintain as our enforcement tool.