Time: Tue Oct 29 17:46:22 1996
To: libertylaw@www.ultimate.org
From: Paul Andrew Mitchell [address in tool bar]
Subject: Re: LLAW: Keys to the Common Law
Cc:
Bcc:
At 06:33 PM 10/29/96 -0600, you wrote:
>=======================================================================
>LIBERTY LAW - CROSS THE BAR & MAKE YOUR PLEA - FIRST VIRTUAL COURT, USA
>Presiding JOP: Tom Clark, Constable: Robert Happy, Clerk: Kerry Rushing
>=======================================================================
>Tuesday, 29 Oct 96 @ 17:52 Hours CST
>
>TO: Counselors - All
> Marcia A.
> John Edward
>From: Dale Robertson
>Subject: Keys to the Common Law discussion
>
>John, Marcia A. et al:
>
>Responding to the opinions going to the supremecy of common law as
>prevailing over constitutional and statutory law in the United States, I
>respond as follows:
Stop right there. Look at what you wrote!
... supremacy of common law as prevailing
over constitutional and statutory law
in the United States ....
This flatly contradicts the Supremacy Clause.
The Constitution IS the supreme Law,
notwithstanding any "common law" you might
come along with. Now, read the rest of the
Supremacy Clause, and come back to this
discussion. Last but not least, put all
federal laws into three buckets: national
law, municipal law, and international law.
Treaties with foreign nations fall into the
third. 18 USC 1513 is a good example of
the first. And the IRC is a good example
of the second of the three.
>
>Article 1.27 of the Texas Code of Criminal Procedure states, in effect,
>that if any rule or procedure is not covered by this code then in that
>event the respective common law shall rule. (this is a paraphrase - but
>- gets to the point. Discussion below seems to imply the reverse. You
>said:
>
>"22.2. The common law of England, so far as it is not repugnant to
>> or inconsistent with the Constitution of the United States, or the
>> Constitution or laws of this State, is the rule of decision in all
>> the courts of this State."
>
>I may be reading the above incorrectly but in Texas the common law - by
>the express language of TCCP Article 1.27 states that the common law
>prevails only if the statute doesn't provide the law or the rule.
>
>The history of this remnant of history is too lengthy to elucidate fully
>here, however sufice to say, that on 16 March 1840 President Maribo
>Bonaparte Lamar of the Republic of Texas signed into law a very short
>statute making the "common law of England" the law of the NATION OF
>TEXAS. This act of the then President of The Republic of Texas is
>connected in an unbroken chain to the present Article 1.27. However, as
>I said, it is a mere remnant of its former glory - which has shrunk to
>utter insignificance to its former preeminence.
>
>The civil law of Spain, as inherited by the government of Mexico and
>thus imposed upon the province of Texas, was the then prevailing law.
>But Mexican Civil law was was "inconsistent", to say the least, with
>the gentlemen from Kentucky, Tennesee and Virginia who sought refuge
>(now from what would they be seeking refuge??) from the vicissitudes of
>parts east. On their arrival in Texas, they were forced to embrace the
>vageries of Mexican Civil Law when they were used to and educated in the
>English Common Law. A "legal expert" in them there days was a any dude
>who had a horse, a gun and at least one law book in his saddle bags. As
>a very human and practical matter, my search of history tells me that
>there were - again as a practical matter - a lot of bastard children
>which came to be resultant from the pragmatic intersectionand effect of
>the Mexican Civil Code and the paucity of any civil government on the
>Texas frontier. Hey, it was then, and it still is, a big state where
>even modern jets aircraft take two hours plus to get from Houston to El
>Paso. And on a horse? - well you don't want to think about it! Now
>those children had parents who sought from the "legal experts" from the
>east the benefits of "common law marriage" so as to legitimize the
>children of what was under Mexican Civil law an illicit product of an
>illicit union of man and woman on the Texas frontier. There was simply
>no civil authority in sufficient number to provide for government
>sanctioned marriage thus rendering the natural inclinations of men and
>women to union - and thus children - as illicit. It was the common law
>which provided the answer, inter alia, to this "penetrating perplexity"
>(ie: the common law marriage - hence instantly no bastard children).
>Don't we have a colorful history now!!!
>
>But over time, and a lot of complexity the commno law gave way to a host
>of statutory law which today prevails until there is simply no rule
>which is applicable in a given situation and in that omission the common
>law is statutorily permitted by TCCP 1.27 to rise from its improvident
>slumber and come to the rescue. Lastly, I will note that this embrace of
>common law in the Nation of Texas was independent of the United States
>Government. We did not become a part of the union untill 10 years after
>of war for Texas Independence and only after 1846 did Texas have any
>connection to the legal history of the english common law as it decends
>from and through US law.
>
>And we shall not forget that all of Federal law owes it existence to the
>sanction of common law since the US Constitution, from which the
>authority of all statutory law is derived, is predicated solely on the
>providence of the Declaration of independence which in turn is
>predicated exclusively, by its express language, on the existence of
>common, ie: natural law! The bedrock of the whole shebang is THE
>COMMON LAW.
>
>Constitutionally,
>
>Joseph Dale Robertson
>
>------------------------------------------------------------------------
>------------------
>=======================================================================
>LIBERTY LAW - CROSS THE BAR & MAKE YOUR PLEA - FIRST VIRTUAL COURT, USA
>Presiding JOP: Tom Clark, Constable: Robert Happy, Clerk: Kerry Rushing
>=======================================================================
>At 11:44 PM 10/25/96 -0400, you wrote:
>>=======================================================================
>>LIBERTY LAW - CROSS THE BAR & MAKE YOUR PLEA - FIRST VIRTUAL COURT, USA
>>Presiding JOP: Tom Clark, Constable: Robert Happy, Clerk: Kerry Rushing
>>=======================================================================
>>In a message dated 96-10-10 12:10:05 EDT, you write:
>>
>><< ==========
>(snipped) Read below and all Counsellors comment please.
>>
>> John Edward
>
>Some quick and dirties from a rushed Marcia A.
>
>>(snipped)
>>
>> entrance to Common Law
>> 22.2. The common law of England, so far as it is not repugnant to
>> or inconsistent with the Constitution of the United States, or the
>> Constitution or laws of this State, is the rule of decision in all
>> the courts of this State.
>
>COMMENT: This is not entirely true. In the case of California
>Water Law, the miners applied the appropriative doctrine of
>possession and continuous beneficial use. The English common
>law advanced the riparian doctrine. The former practice had
>become well-established local custom before it hit the courts in
>any strength. Even though riparian rights are not supposed to
>be lost by non-use, the court consciuosly deviated from the
>strict riparian doctrine by interpreting the appropriative right
>as an incursion on the riparian right (in effect, a right of
>adverse possession,) that became a legitimate right of property.
>(California water law is a wonderful, but complex, arena to get
>a good understanding of the interplay of customary "law," English
>common law and Roman statute code. The state did not claim
>Constitutional ownership of (surplus not previously appropriated)
>non-navigable waters until 1914. This provided a substantial body
>of law to examine on the customary/common law relationship.
>(Lux v. Hagan is the consumate case.)
>
>That the customary law appears to be strongly favored over the
>common law and statutory law is in evidence in California water
>cases prior to the 1930's. There are also water law cases
>substantiating customary law's primacy over statute in several
>cases, (regarding the primacy of local standards/practices creating
>water "waste" in comparison to expected "water duty.") The
>Herminghaus decision of 1928, however, imposed the statutory
>standard on water use efficiency as superior to English common
>law rights to unimpaired flow.
>
>Currently, one has the doctrine of Public Trust being used to
>circumvent long-standing pre-1914 appropriative rights for
>"environmental purposes." This is a Roman concept which was not
>applicable to the property rights of Roman citizens, but applied
>to conquered peoples whose property title was considered as owned
>by the Roman state, of which they held only through possession
>and occupancy.
>
>
>(snipped)
>
>> John edward
>> >>
>> LAW, COMMON. The common law is that
>>which derives its force and authority from the
>> universal consent and immemorial practice
>>of the people. It has never received the sanction
>>of the legislature, by an express act, wbich is
>> the criterion by which it is distinguished from
>> the statute law. It has never been reduced to
>> writing; by this expression, however, it is not
>> meant that all those laws are at present
>>merely oral, or communicated from former
>>ages to the present solely by word of mouth,
>>but that the evidence of our common law
>>is contained in our books of Reports,
>>and depends on the general practice and
>>judicial adjudications of our courts.
>
>This is not historically true and has caused a great deal
>of confusion. There is a difference between the customary
>law and the English common law (ECL). The Henry's ECL, in effect,
>amalgamated the various different customary laws into one
>law "common" to all, but administered as the monarchial
>right to remedy violations of the (sovereign) king's peace.
>The ECL, consequently, came with a bias toward the feudal
>monarchy (including reinforcement of the monarchial prerrogative
>as far as ownership is concerned.) Some of this does not translate
>into American common law under the Constitution, which removes
>those prerogative biases in favor of a monarchy and revests
>it in the individual sovereign. (The court has difficulty with
>this. For instance, unappropriated lands under the Constitutional
>locus of individual sovereignty should be left as public domain
>free to use and appropriation through occupancy and possession.
>Instead, under a continuation of English common law, the locus
>has become vested in the federal "sovereign" United States.
>The "Forest Laws" (or petit carta) were the king's own prerogative
>land laws outside of the common law. These form the precidential
>basis of the tendancy of the court to move from concepts of
>public domain and customary law toward sovereign and (now)
>prerogative law.
>
>> 2. The common law is derived from two sources,
>> the common law of England, and the practice and
>> decision of our own courts. In some states the
>> English common law has been adopted by statute.
>>There is no general rule to ascertain what part of
>>the English common law is valid and binding.
>>To run the line of distinction, is a subject of
>>embarrassment to courts, and the want of it a
>>great perplexity to the student. Kirb. Rep. Pref.
>>It may, however, be observed generally,
>>that it is binding where it has not been superseded
>> by the constitution of the United States, or
>> of the several states, (NOTE EMPHASIS HERE by MA) or by their
>legislative
>>enactments, or varied by custom, and where
>>it is founded in reason and consonant to the
>>genius and manners of the people.
>
>The reception statutes of the original 13 were supposed
>to decide what provisions of the English common law were
>to survive the revolution as Constitutional. (See R. Palmer's
>website in Texas on these statutes.) It was also a
>longstanding principle under colonial charters that only
>those portions of the English common law applicable to local
>circumstance were upheld.
>
>The early jury system in America was formed so that there
>were multiple judges, no binding judicial instruction and
>the juries could decide both law and fact. Structure in the
>law came from the strict form of pleadings. This allowed for
>a greater portion of the application of "local custom" in
>the administration of the common law. Judicial reform
>liberalized the structure of the pleadings, gave greater
>control and power to the judge and made the "law" a creature
>(standard) of written record.
>
>> 3. The phrase "common law" occurs in the seventh
>> article of the amendments of the constitution of the
>>United States. "In suits at common law, where the
>>value in controversy shall not exceed twenty dollar
>>says that article, "the right of trial by jury shall be
>>preserved. The "common law" here mentioned is
>>the common law of England, and not of any particular
>> state (read: not in the statutes). 1 Gallis. 20; 1 Bald.
>>558; 3 Wheat. 223; 3 Pet. R. 446; 1 Bald. R. 554.
>>The term is used in contradistinction to equity,
>>admiralty, and maritime law. 3 Pet. 446; 1 Bald. 554.
>>Bouviers 2nd edition
>>
>>Common Law:
>>As distinguished from law created by the enactment
>>of legislatures, the common law comprises the body
>> of those principles and rules of action, relating to the
>> goverment and security of persons and property,
>>which derive their authority solely from usages and
>>customs of immemorial antiquity, or from the judgements
>>and decrees of the courts recognizing, afferming, and
>>enforceing such usages and customs...
>>Black's Fourth ed.
>
>This reference would appear to be the conceptual "common law"
>based more on local custom and individual sovereignty, rather
>than the English common law - with a locus on the "sovereign"
>monarch and his prerogatives as the claimed inheritance of
>the federal "sovereign state" and the "federal majority."
>
>Our journey from a representative republic which protected
>the individual sovereign from a majority, to a "democracy"
>where the majority rules is in evidence. With the current tax
>system, the "federal majority" has been able to subvert the
>original emphasis on local custom as a primary rule of law.
>For instance, it was a concept held during the creation of
>the Constitution that all political representatives were to
>make only those laws that they would have to live under
>after they left public service. Now we have east coast reps.
>making decisions applicable only to Califonia in the CVPIA
>(Central Valley Water Project) because "federal taxes" funded
>the project. If the states had been left with the primary
>source of revenue, this wouldn't have happened. Also, early
>American reps. were "instructed" by letter from their
>constituents on how to vote. Now they are lobbied by
>non-constituents who hold forth the power of the PAC purse
>necessary to run a modern political campaign.
>
>Marcia A.
>
>
Return to Table of Contents for
Supreme Law School: E-mail