Three Foundational Principles of Common Law

Three principles of law and government that arise from Scripture lie at the foundation of the common-law tradition.

First, the only lawful exercise of law and government is ministerial: every magistrate and officer holds his office, authority, and power at the pleasure of God to whom he is responsible and to whom he will answer for the doing of his office.

Second, God alone is LORD of the individual conscience: each individual, from the private person serving as juror to the public magistrate and officer, is responsible before God to inform his conscience aright and to exercise independent judgment in determining his convictions and acting upon them; his duty and independent discernment is non delegable.

Third, obedience to any command contrary to God's desire is always wrong, Moreover, when the individual answers to God for the doing of his office, God will never allow him to take refuge in his frank obedience to, or tacit conformity with, the judgment of any other mortal or combination thereof, regardless of threats, demonstrations of power, claims to authority or assertions of infallibility.

One's only true safe harbor is in one's obedience to the God of Scripture, as one informs one's conscience aright with Scripture and whets his discernment into evermore-sharp obedience. The common-law tradition rests on the foregoing three principles for its foundation and is consonant with them. Any doctrine. or act said to be a part of the common-law tradition that is inconsonant with any of these three is not a part of the common-law tradition. By contrast, the civil-law tradition is inconsonant with the foregoing three principles.

Copyright © 2010 by Brent Winters

Stare Decisis, an Explanation

Gathering authoritative appellate opinions analogous to the case at hand, the lawyer discerns the consistent legal principle threading through these opinions that is applicable to the case before him. Characteristically, a common-law court opinion traces the history of the applicable principle to show how the court’s present opinion figures into and continues that consistency.

This principle is called stare decisis, Latin, which literally translated means, “stand by things decided.” Stare decisis has come to us as a most sacred rule of law. A judge is to apply the law as it is presented to him through the previous decisions of the court; it is not the judge‘s function to make or remake the law . . . .
~WALTER BAGEOT, THE ENGLISH CONSTITUTION (n.p. 1867), quoted in Peter Landry, The Common Law: Tradition & Stare Decisis (visited 21 Nov. 2005) ~

The foregoing method of analysis is stare decisis: the pole star that the common law courts must keep in sight. By repeatedly isolating principles from real conflicts and into new litigation, the common law’s process continues to temper and sharpen each of its principles, enabling application with each new case. Each judgment, ideally, will be the law’s custom application to a particular case’s idiosyncrasies.

This idea [stare decisis] . . . is picked up in the [common] law, as it exists today. When a court decides a case it does so on the merits of the case before it. The court’s decision is meant to only effect the rights of the parties, the litigants, before it. The court, however, is obliged to apply settled principles of law. The decision of any respected court amounts to a recap of the law needed to resolve the case before it. The law as it is used in the particular case has a universal applicability to all future cases embracing similar facts, and involving the same or analogous principles. These decisions, many being years and years old, thus became statements of law, to be applied by all courts when measuring the private and public rights of citizens. It is this stream of cases, within the arc of the great pendulum of time, which changes the banks of the law: the common law, thus, as it turns out, is a living, creeping creature. Do not, however, be mistaken—there is a conscious effort by those involved (lawyers and judges) to keep the law pure: not to change it, but to apply it. ~WALTER BAGEOT, THE ENGLISH CONSTITUTION (n.p. 1867), quoted in Peter Landry, The Common Law: Tradition & Stare Decisis (visited 21 Nov. 2005).

Appellate court opinions are the authoritative product from which the common lawyer finds principles applicable to an issue in a new conflict. In summary, the process of the common law begins with an assay of one’s desired application of a first principle against the consistency of authoritative case precedent, followed by reasoning down from this first principle as a universal premise, to the facts of the case under consideration as a minor premise, thereby rendering a legal conclusion.

The calculus of common-law precedents is analogous to the making of a pearl. The common law has been, and continues to be, built up as is a pearl in an oyster: slowly and always in response to some personal aggravation. Court adjudication after court adjudication building up the common law gem “infinitesimal layer after infinitesimal layer,” resulting in a finely shaped pearl called a rule of law:

[The common law emerges] through long continued and arduous labors, grown venerable with years, and interwoven as it has become with the interests, the habits, and the opinions of the people. [Without the common law,] in each recurring case [a court would] have to enter upon its examination and decision as if all were new, without any aid from the experience of the past, or the benefit of any established principle or settled law. Each case with its decision being thus limited as law to itself alone, would in turn pass away and be forgotten, leaving behind it no record of principle established, or light to guide, or rule to govern the future.~Peter Landry, The Common Law: Tradition & Stare Decisis (visited 21 Nov. 2005) ~

For hundreds of years the common-law courts have tested, observed, adjusted, and re-observed; and thus, over time, the common-law tradition shakes out the truth.

Stare Decisis is a distinct characteristic of the common law tradition and thrives only in an open society. Thus, stare decisis does not exist in civil law jurisdictions.

Copyright © 2008 by Brent Winters

Due Process: The Law of the Land

Due Process defies definition, but those accustomed to its worth reapply its eternal principles in the never-ceasing stream of new circumstances.

The human mind, however, is consistently subtle in crafting modern devices to violate ancient rights of due process. The ideal, nevertheless, remains.

The Supreme Court defines due process by telling us how to recognize its violation: "Due process is violated if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

"It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feeling of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Proces is that which comports with the deepest notions of what is fair and right and just."

Solebee v. Balkcom, 339 U.S. 9, 16 (1950) (Justice Frandfurter dissenting.)

The written ideals of due process are "an historical product" that trace back to chapter 39 of Magna Carta and further back as unwritten custom. Chapter 39 of Magna Carta became chapter 29 and then was expanded in the Third Reissue of Henry III in 1225:

• No free man shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land.

The 1225 reissue also added to chapter 29 the original text of chapter 40: "To no one will we sell, to no one will we deny or delay right or justice."

The phrase due process of law first appeared in 1354 in a statutory rendition of chapter 29: "No man of whatever state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."

Though the essence of the Magna Carta emerged out of a struggle between King John and England's barons, over time its Due Process Clause overflowed the banks of the stream of Magna Carta; throughout the fourteenth century, parliamentary interpretation expanded the application of due process.

The Framers of the Fifth Amendment's Due Process Clause derived their understanding largely from Lord Coke. In his Second Institutes, Coke said that the term by law of the land equaled "due process of law," which he in turn defined "by due process of the common law," that is "by the indictment or presentment of good and lawful men . . . or by writ original of the Common Law."

To Coke the essence of both due process and law of the land was procedural. Though Coke's writings on chapter 29 included rudimentary concepts of substantive restrictions, these never develop in England because of parliamentary supremacy, but did take root in the United States.

The phrase "law of the land" was early the preferred expression in colonial charters and declarations of rights, which gave way to the phrase "due process of law"; although some state constitutions continued to use both terms. Regardless of which of the two phrases was used, the concept was the same: precise and strictly-adhered-to processes meant to safeguard the life, liberty, and property of defendants. Due process also suggests some limitations on substance because of its association with the guarantee of just compensation upon the taking of private property for public use. The 1776 Constitution of Maryland, for example, in its Declaration of Rights, used the language of Magna Carta, including the phrase "law of the land," in a separate article; whereas Virginia used the language of Magna Carta in a section of guarantees of procedural rights in criminal cases. New York, in its Constitution of 1821, became the first State to pick up the phrase "due process of law"" from the United State Constitution.

Standing alone, the phrase, "due process" seems to refer solely and simply to procedure, process in court, and a matter of precut form that must be followed in every case. If such were the case, "due process of law" could be reduced to positive law: whatever the legislative branch enacted it to be. Such, however, is not the interpretation that the common-law tradition has placed on the phrase:

• It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process "due process of law" by its mere will. Murray's Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 276 (1856).

The Supreme Court has limited the application of American constitutional due process by raw territoriality. For example, all persons within the territorial boundaries of the several United States are entitled to the protections of due process, including corporations, aliens, and presumptively, citizens seeking readmission to the United States, but States as such are not so entitled. Constitutional due process is effective in the District of Columbia and by its own force to unincorporated territories, such as Guam. The Supreme Court, however, has held that constitutional due process does not reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States.

However, constitutional restraints of law meant for government and courts is never enough to insure limitation of government, unless folks persist in demanding such limitations. "Paper rights" are only worth what the one suffering their violation, thinks they are worth.

Copyright © 2008 by Brent Winters

Who Governs Attorneys?

Some argue that attorneys are not to be trusted because they are officers of the court; therefore, an attorney's first loyalty is to the court and not to his client. Such complaints, however, bely misunderstanding.

An American attorney's ultimate oath and loyalty is to the first principles of the law as set forth in the Constitution, not to any court. It is the duty of every attorney - whether he sits on the bench or argues before the court - to insure that the court upholds the Constitution by insisting that the court observe due process and that any articulation of the law and its application remains within the law's first principles.

That the common-law tradition makes attorneys accountable to courts does not lessen their ultimate duty of loyalty to the law, where the courts hold contrary. Further, the courts are to be independent of the executive and legislative branches. The greater danger is not that attorneys are officers of the courts; but rather, that the judges, and therefore the courts, will become dependent upon the executive or legislative branches for their jobs and pay.

Such controlled courts will hold undue power over the attorneys practicing before them by destroying attorneys' independent judgment and bringing attorneys under uniform and central control of the state.

If the executive or legislative branch holds sway over the courts, these branches will also hold sway over the lawyers through the courts: in short, the courts will become the state's tool to silence the lawyers and limit lawyers' defense of those of whom the state merely disapproves.

A court obstructs justice when it hinders an attorney's freedom of argument and ability to present relevant evidence in defense of his client.

The larger government becomes, the more attorneys the government will employ in disproportion to the sum of attorneys in private practice and government. As a result, the total attorney pool will increasingly consist of government attorneys, increasing the probability that government attorneys will be chosen as judges, as opposed to drawing judges from private practice.

Experience has shown that former government attorneys sitting as judges are less likely to apperciate the problems of private-sector relationships and the rights of the accused: former government attorneys will likely be predisposed toward the will of the government and to the detriment of private relationships.

Copyright © 2008 by Brent Winters

Independent Courts:

The Scriptures', The Common Law's and the Constitution's Demand.

On 15 February 2007, Justice Stephens stated that since the beginning of his thirty years on the bench, he has never seen morale among federal judges as low as it now is. He attributes the low morale to low pay - annual salary for a federal district judge is $165,000 and for a Supreme Court justice $212,000.

He further states that low pay threatens the independence of the federal courts. When Congress set the foregoing salaries for federal judges, they were plenty high; though they appear to remain unchanged, these salaries have been diminished in violation of the U.S. Constitution. The Constitution, however, requires that federal "judges both of the supreme and inferior Courts . . . shall . . . receive for their Services, a Compensation, which shall not be diminished . . . ."

Nonetheless, in violation of this clear mandate, the manipulators of the dollar's value by the issuance of paper money - the Board of the Federal Reserve Bank - diminish the value of judicial salaries through inflation. The bankers would have us believe that the devaluation of money through inflation is not humanly controllable, but it is as long as the value of the dollar is fixed to an unchanging standard, such as gold.

Congress has abrogated its non-delegable duty under the Constitution to regulate the value of money to a private bank board: the chief share holders of the Federal Reserve Bank. Further, the Courts have failed to call Congress to account for this breach of constitutional duty.

The Constitution gives to Congress the power to establish just weights and measures and the related power to regulate the value of money. Just weights and measures, as understood in Scripture, concern the right relationship between two objects balanced on a set of scales: one of fixed weight (the standard) and the weight of the other to be adjusted to the fixed weight to achieve the balance. Thus, as a Hebrew legal term of art, "just" (Hebrew, tsedeq) weights and measures signifies an unchanging standard to which all else must adjust. He who would change such a standard, said Jeremiah, is an oppressor. (Jeremiah 22:3).

The few, through unlawful tampering with monetary standards, have made unjust gain at the expense of the many, diminishing the salaries of federal judges and, as Justice Stephens suggests, threatens the independence of our Courts. The Constitution categorically forbids any man or combination of men from diminishing the salaries of federal judges. Indeed, if any in government or in the private sector, directly or indirectly, gains the power to diminish the salary of federal judges and does so, then that person or persons has violated the express prohibition of the Constitution, the common-law and Scripture's separation of powers, and the principle of Scripture concerning just weights and measures.

In a common-law country such as the United States, the foundation of the common-law tradition of government and the most important element of common-law separation of powers is the independence of the courts from the other powers of government and from the private sector seeking to control government from without. Assuming, as Magna Carta requires, that judges have been appointed that both know the law and mean to observe it well, judges, as well as individual jurors, must remain free to follow the law. The power to diminish judicial salaries is the power to control judges.


copyright © 2008 by Brent Winters

Inheritance Rights of Daughters

When God gave the principles of the law at Sinai, he did not express every possible application according to every issue that would bob forth from the flux of human relationships. Rather, He has left the specific applications of his unchanging principles to us.

About 38 years after God gave the law at Sinai, the daughters of a fellow named Zelophehad came to Moses with a complaint. Their father had died in the wilderness with near all the of the rest of Israel, but without any sons. These ladies asked Moses why the name of their father should be done away with simply because he had only daughters. They then made their claim to Moses: we should share in the inheritance our father’s property.

Moses took their request before the Lord, who affirmed these ladies point of view, commanding that they share in the inheritance from their father. The Lord went on to give specific guidance of inheritance in cases where a man had no sons but only daughters.

The principles of the law never change, but the persons and circumstances subject to the principle do change and require fresh application. Thus, John the apostle says, “Brethren, I write no new commandment unto you, but an old commandment which you have had from the beginning. The old commandment is the word which you have heard from the beginning.” Speaking of the same commandment, he then refers to it in its fresh application: “Again, a new commandment I write unto you, which thing is true in him and in you; because the darkness is past and the true light now shines.”


copyright © 2008 by Brent Winters