Brent Allan Winters
Attorney & Counselor at Law
A Common Lawyer Comments
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The purpose of this site is to teach the first principles of freedom—found in the Scripture (written laws of Nature's God) and the common law (a slice of the unwritten laws of nature.) The observations and works on this site are those of Brent Allan Winters.
"Our Constitution," says Brent, "arranges the bones forming our government in the language of the common law. Without the common law, our Constitution sleeps—a bonedry and dispirited skeleton of lifeless words. Keep our common law and it will keep your freedoms."
Common law is not a list of laws but a way of life and mind, recognizing that man at his best is still only man—at best. Accordingly, it seeks not the scholastic's utopian fantasy through a code of legal precision but rather the doable-ness of fair play by following due process to uncover the driving reality of facts. —Brent Allan Winters
Common law protects relationships. Our common law is understood according to relationships—creditor-debtor, promisor-promisee, trustor-trustee, bailor-bailee, vendor-vendee, husband-wife & etc. Accordingly in common-law trials, the threshold question must be to identify the relationship between the parties: landowner-trespasser, landowner-invitee, leaseholder-landlord, dual agency (partnership) or single agency, bailor-bailee, trustee-beneficiary & etc. By contrast, civil law organizes its codes according to subject—contract law, tort law, property law, family law & etc.
Our common law (law of the land) seeks foremost to protect relationships through due process, also called fair play.
By contrast, the civil law (law of the city) seeks foremost to justify the will of the state, set forth in commands called legislation (statutes) and regulation. —Brent Allan Winters
That the quest for facts is the driving force of our common law distinguishing it from the rest of the world's city (civil) law cannot be over-stressed.
Once this question of fact (relationship) is discerned, the law to be applied is clear and all the Jury need to decide are the remaining facts of the case: What happened? How'd it happen? Why'd it happen? When'd it happen? Where'd it happen? Who done it? Who's at fault? —Brent Allan Winters.
By contrast, the will of the state is the driving force of the civil law. In civil-law countries covering almost the entire globe, the controlling question is, what does the state by its code command? In a common-law country such as ours, the troublesome problem confronting the court and jury, says Stryker, is not so much what the law is, as what happened. Did he steal? Did he assault? Did he commit arson? Did he kill, and under what circumstances? —Brent Allan Winters
Because our Constitution neither requires, nor commands, anything of the people of the United States but only of public employees, office-holders, and other dependents, it is neither legislation nor statutes but an excellent expression—in a long tradition of expressions—of the ancient principles of common-law government. —Brent Allan Winters
The will of the state is the driving force of the civil law. In civil-law countries covering almost the entire globe, the controlling question is, what does the state by its code command? In a common-law country such as ours, the troublesome problem confronting the court and jury, says Stryker, is not so much what the law is, as what happened. Did he steal? Did he assault? Did he commit arson? Did he kill, and under what circumstances? —Brent Allan Winters