The Common Lawyer

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One participant said,

Wow! I am looking forward to next Saturday! That was a wonderful way to begin the weekend! And I love history so the tidbits there were fascinating. Thank you again.

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Inn Church

—First Principles—

 

© 2016 Brent Allan Winters

Standard for Government

The following Standard for Government of Inn Church, with explanations, is taken from the The Good Book: A Common Lawyer Translates & Annotates, 1 Timothy Headnote[1]—available on this website at the Books Page.

Whatever form and processes of government a critical mass of a people or nation receives for governance of their religious groups will be that form and processes of government that people will accept for their country. Government is God’s business. Indeed, all government rests upon law and all law is given from a god—called from time out of memory a lawgiver. Law and government are products of man’s deepest convictions because these demand that one identify law’s fountain called one’s lawgiver. Thus, one’s beliefs respecting law and government go to the ultimate concerns of one’s life, which are no-less-than—as also holds the United States Supreme Court—religious convictions. But only the true God, not men, has the right, the might, and the light to order the form, the substance, and the way (processes) of government among men—not only among His people but also for others. Bottom line: it is the role of God’s people to show the rest of the world the form, substance, and processes of government they all should use. In fact, the form and processes of government from Scripture are the first principles men must use in order for the individual life to have the most enjoyment of freedom respecting his rights and property.

But further, it is mankind’s task to adjust his thinking and conform his behavior to the precepts of our common-law tradition—the unwritten common laws of Nature and the written Bible’s laws of Nature’s God—and then to teach others. God’s people are loyal first to Jesus Christ as Lord—to whose salvation and Lordship no one can compliment, add to, or improve upon—in order to practice in gratitude His principles.

God has blessed Americans with common-law government: the practical tie hitching God’s ways of government shown in His creation unwritten and in His word written. The Bible, held John Wyclif, is God’s tool that will plant the common law’s first principles in the mind of the individual. And once Scripture takes firm root in one’s mental sod, one will follow its truths and insist upon common law and government.

Thus, in the United States, as all other countries, government forms and laws are the outward evidence of inward religious beliefs. Accordingly, to the degree Americans are bewildered or otherwise mistaken in their religious point of view, to that degree America’s law and government will be bewildered. Any plan of Church government, writes W.F. Fratcher, is bound to influence the form of civil government in any area where it is generally accepted. For instance, by this principle, the Roman Church’s imperial form of government has influenced the government forms of those nations devoted to the Roman pope and his priesthood. So also, America’s fundamental government forms are in keeping with her forebearers’ biblical mindset of church government, most of which were of presbyterian form, that is, rule by an eldership.

But the Bible, some say, has left the subject of government at loose ends; Holy Writ, they continue, provides no definite form and processes for government. Hence, such men hold, it is left to reason and prudence to adopt such a form, as men deem expedient. But on the contrary: not only does the Bible and nature not leave for men to determine the right form and processes for government, both also provides lessons from creation, history, statutes, case law, poetic expression, and treatises pointing out in no uncertain words the right form, substance, and processes for government. In fact, only two kinds of government are possible: common law and civil law. But these two are incompatible, and all governments will tend toward the one or the other: common law, being called the law of the land or land law; or civil law, being called the law of the city or city law. Where men try to mix these two into one form of government, that form will tend toward the one or the other and will, where given time, become all of one or all of the other.

The common-law form, substance, and processes of government are consonant with the Bible and nature; the civil law form, substance, and processes are not. Political writers have listed and plead for different forms of civil-law government: martial, admiralty, administrative, and international law. All civil-law forms, however, are at bottom martial: rule by unlimited imperial command of a single will, whether of one man called a dictator; or a bevy of men called an aristocracy, that is, government by an elite group of which history reveals three types: simple aristocracy, which is rule by a traditional elite, said to be made up of “the best” people so-called and is usually hereditary; oligarchy, which is rule by a few; plutocracy, which is rule by the few richest; and democracy, which is rule by a majority will of the people at large.

Government is an inescapable reality. It will always show itself. That there is no government among a given group of mankind is impossible. Even where no external government of a people is visible, government reverts, by operation of the law’s of Nature’s God, to the people themselves.[2] To sum up, our only two options are right government and wrong government: government of the laws of Nature and of Nature’s God or governments of men. The first is government by the consent (authority) of the governed; the second is government by the force of men. The first is government by the authority of God (the good kingdom); the second is government by the command of men (the evil empire).

All governments fall into and tend toward either one or the other. But to recognize evil government one must ask one’s self, if there were no government could I rightfully—or I and others with me—do what government is doing? If not, then that government, at that point in question, is evil, that is, in tacit conspiracy with the empire of evil. Why? Because true government has no authority that you did not give to it, and you could not have given to government any authority you never had. Such acts of government are not from heaven but from men. By contrast, acts of government by the consent of the governed, that is, by their authority given, are from heaven and, consequently, good and binding on men.

In all events, it is absurd to suppose that after Jesus Christ had given His life for His people that He would abandon them without provision for their government. To the contrary, Jesus Christ, the great and only head of His people, has ordained certain forms and processes of government—on good authority and for right reason shown in four ways. First, from His relationship with His people as Lord and Lawgiver (see Acts 2:47; Isaiah 33:22; James 4:12); and as King, Governor, and Ruler (see Psalms 2:6, 24:7–9; Isaiah 9:6; Micah 5:2). Second, from the laws and offices the Bible appoints among His people (see Matthew 18:17–18, 28:18–20; 1 Corinthians 12:28). Indeed, as the laws and offices of God’s people show in the Older Testament that Jesus Christ established a particular form and processes of government, so likewise do the laws and offices of God’s people in the Newer Testament show appointments and institution of government form and processes. Third, from the frequent, earnestly recommended, and enjoined duty of submission to church officers, which Scripture places upon churchmen: Obey them that have the rule over you, and submit yourselves. Hebrews 13:17; see also Romans 13:1. Fourth, from the accounts of the apostolic churches. The Newer Testament teaches that the primitive churches managed and performed all their religious affairs with decency and dignity becoming the things of God, and with due regularity according to the prescribed order. Accordingly, the Apostles tell Christians to put on charity, which is the bond of perfectness (Colossians 3:14) and to have all things done decently and in order (1 Corinthians 14:40).

In that most professing Christian churches each try to support from the Bible their own peculiar form of church government, it appears that these believe God has appointed some particular form of it. Thus, professing Christians substantially agree that God has established the reality of government, even though through the centuries men have contended in error for different forms of civil law’s imperial government for churches: (1) papal, called patriarchal in the East, which is a dictatorship over all men and all the earth without exception, as claimed by the pope of Rome and the patriarch of Constantinople; (2) magisterial, which is rule by a magistrate, or magistrates, of the government holding direct power of the sword over a country or empire, as claimed by the Monarch of England; (3) dictatorial, which is rule by one man over a local church, as claimed by Pentecostal churches and some Baptist groups. All such civil-law forms of church government arise from Babylon, consequently are found neither in God’s word written or unwritten, and are thus the tool of one man dominating men and contrary to God’s purposes and covenants.

At present three different forms of church government prevail among professing Christians: episcopal, congregational, and presbyterial. First, the episcopal form is rule by officers—or even one officer—called bishops, arranged in an hierarchy extending above the local congregation. Second, the congregational form is rule by a majority and called democratic, the power of rule lodging in the membership by direct majority of the membership on any given question. Third, the presbyterial, or presbyterian form is government of the church by presbyteries, that is, by an association of teaching and ruling elders, each holding equal powers, without any superiority among them either in office or in order, and sometimes extending above the local congregation but not always. Professing Christians still contend for each of these three different forms of government. What form of government, then, has God authored? In order to clear the way for the answer to this question, both the law of Nature and of Scripture teaches what is not God’s government.

First, it is not papal: nowhere has God given to the pope of Rome supreme and sovereign authority to govern His people, much less the all people. In Scriptures’ enumeration of church officers, none is invested with such imperial or monarchial authority. See Ephesians 4:11; 1 Corinthians 12:28.

Second, it is not patriarchal: nowhere has God given to the patriarch or archbishop of Constantinople, who pretends to be the great head and governor of the Eastern or Greek Church, supreme and sovereign power over all churches and Christendom.

Third, it is not magisterial: Jesus Christ has never bestowed power over God’s congregation into the hands of civil magistrates. In fact, neither the Older nor Newer Testaments speaks of magistrates as being church officers. Rather, church officers are appointed, not by the state (the powers-that-be), but by the church—or as were the Apostles—by the churches’ divine head Jesus Christ. See Acts 20:28; 1 Corinthians 12:28. And by virtue of such divine appointment, these men do their office not only without consent of any civil ruler but often contrary to civil rulers’ command. See Acts 4:19, 5:29. Church government, therefore, is independent of civil government and always ought to be. Thus, it was during the first ages of Christianity: for over three hundred years and upwards, each church’s own officers ministered the whole authority and power of church government. Thus, it should have continued; thus it ought now to be reestablished. See Magna Carta (beginning and ending with declaration of the church’s freedom from all outside powers); U.S. Constitution amend. I (vouchsafing freedom of the church from the power of the government sitting in the District of Columbia).

Fourth, it is not episcopal: church government is not lodged in the hands of bishops arranged in an hierarchy, extending above the local church. In short, there can be no episcopal form of government because there is no such an order of officers, which God established in any church. And besides, Scripture is not only silent in regard to the claims of any episcopacy, but expressly forbids all such lordly dominion over God’s people, called the church. See Luke 22:25–26; 1 Peter 5:3.

Fifth, it is not congregational: Jesus Christ has never lodged church government in the membership as a whole, that is, in any majority of the congregation of the faithful. To be sure, there are certain rulers divinely appointed in the church. See Acts 20:28; 1 Corinthians 12:28. In fact, God has vested the direct executive power of the church in the officers of the church and not in the brotherhood or members collectively or by any majority. Scripture describes Church leaders as rulers, guides, overseers, and governors. Accordingly, God commands His people to honor, obey, and submit to those charged with teaching, overseeing, and ruling by example. See Acts 20:28; 1 Thessalonians 5:12; 1 Timothy 5:17; Hebrews 13:7–17.

If, then, God’s form and manner of church government is neither papal, nor patriarchal, nor magisterial, nor episcopal, nor congregational, what is it?

It is presbyterian. God lodges the right and power He has ordained for the government of His people in the hands of the presbytery (a plurality of elders or eldership) of each and every duly organized local church body. By a presbytery is not meant a church tribunal, judicatory, or court, consisting of teaching and ruling elders from different congregations but of a single congregation. Just as Scripture never warrants combining individual churches into a particular sect or denomination, so also there is no divine warrant to constitute church courts of ruling officers from different churches—such as classes, councils, synods, conferences, conventions. The argument in favor of such courts, which some have labored to draw from the—as they call it—Apostolic Synod of Acts 15, is forced and weak. Any person reading the history of that meeting as there recorded will see that it was no synod, or church court of commissioners or representatives from different churches but of the Apostles, elders, and brethren of the church at Jerusalem. Whatever, therefore, the church at Jerusalem, by and with the direction of the Apostles and other men, determined to be required for the other churches beyond Jerusalemand that only in a dubious case—, is woeful-thin authority for modern churches to spend their time and money in holding quarterly, half-yearly, and yearly church courts of such description.

What, then, is meant by the presbytery, or eldership, of a church? Presbytery simply signifies the elders—also called presbyters—of an individual church. See 1 Timothy 4:14. Further, such elders must be from among God’s people so that their government is of the people, that is, by and for the people. See this Common Lawyer’s Bible, Exodus 22:28, Deuteronomy 17:15 and accompanying notes; see also U.S. Constitution art. II, sec. 1, cl.5. Accordingly, the elders of each particular church constitute the leaders Jesus Christ has invested with authority to minister the government of His church. This is evident by three reasons:

First, the names Scripture gives to church elders—leaders, ministers, overseers, rulers, shepherds, stewards, teachers, governors—describe authority. Accordingly, such men had the right to use powers necessary and proper to fulfill the office such titles indicate, respecting the people they are appointed to lead. Indeed, leaders are to lead, not drive; overseers are to watch for approaching danger (physical danger, spiritual evil, and false teaching) and stop its attack; rulers are to set, by example, the right standard to follow and against which others can measure their behavior; shepherds are to feed; stewards are those men entrusted with ministering the word of God; teachers are to teach; governors are to govern, that is, regulate: keep the administering of God’s word regular (constant), thereby insuring the good order of God’s word is followed.

Second, the express grant, or actual commission, Scripture gives to church elders is of authority. It is indeed written, I will give unto thee the keys of the kingdom of heaven. Matthew 16:19. The keys of the kingdom of heaven is a metaphorical phrase, implying a grant of right to regularly (in season and out) teach Scripture. Accordingly, the Apostle gave to the elders of the church at Ephesus this solemn charge: Take heed therefore unto yourselves, and to all the flock, over the which the Holy Ghost hath made you overseers, to feed the church of God. Acts 20:28. Further, 1 Corinthians 12:28 says that God has set some, not all, governments or governors in the church. Likewise, Peter the Apostle charges the elders of the churches in Pontus, Galatia, Cappadocia, Asia, and Bithynia to [f]eed the flock of God which is among you, taking the oversight thereof. 1 Peter 5:2. Of note, poimainw, the Greek word the Newer Testament uses to mean to feed, also means to rule: to set the standard by example. See, e.g., Matthew 2:6.

Third, Scripture’s exhortations to church members to submit to their elders assume elders’ authority. See Romans 13:1; Hebrews 13:7, 17. The command to obey on the one part implies, necessarily, a power on the other to rule and govern. Thus one sees that the right to exercise this authority in the church belongs, by divine appointment, to the presbytery, transliterating the Newer-Testament Greek word presbatous,meaning elders of the local church. On this account, the government of the church is, or may be said to be, presbyterian: rule by a plurality of elders called an eldership. Such rule, however, does not reach to justice, that is, its scope of jurisdiction does not include the judging of specific disputes between church members, encroaching upon the prerogative of the Jury of the least esteemed. See Common Lawyer’s Study Bible, 1 Corinthians 6:1–6 and accompanying notes. The elders’ rule, however, does comprise teaching the laws of Nature and of Nature’s God: matters of faith in Jesus Christ and practice. To sum up: first, Scripture allows no congregational majority or super majority to override a decision of the eldership; second, neither the eldership nor any majority may judge between members of the brotherhood concerning questions of individual property or church property; third, Scripture gives to the Jury both authority and power to override the elders’ teaching in specific instances of real disputes involving measurable material damages between members of the brotherhood. The unbending due process Matthew 18 sets forth governs matters of dis-fellowship—sometimes called disassociation or excommunication—to be followed in cases of any refusing to obey the requirements Matthew 18 sets forth or the verdict of the Jury duly impanelled.

By the authority of the Bible as well as the common senses, every individual church has a right—and always ought to—choose her own elders, who, when so chosen and appointed to office are to act in their official capacity as the leaders of the local church. Our Constitution calls such form of government republican. In sum, Scripture lodges the right and power of governing each church in the hands of its eldership. But what is the nature of that authority with which God clothes elders?

First, the elders’ authority is not civil and political. Both the Latin word civil and the English word political (Greek root polis) mean city, signifying that having to do with city law and government of Babylon, in Scripture bespeaking the evil empire: all that is antagonistic to the Kingdom (Older Testament: melekah) and authority (Newer Testament: basileia) of God. Simply put, God’s Word bestows no such civil, political power upon church elders. To the contrary, God’s written word and all experience forbid such Babylonian law and governments of men: Ye know that the princes of the Gentiles exercise domination.... Matthew 20:25–26. God’s elders are not to so do: neither as being lords over God’s heritage. 1 Peter 5:3.

Second, the elders’ authority is spiritual and ministerial. The government of the church is spiritual because its source and author, who is Jesus Christ, delivers the quickening Spirit (see 1 Corinthians 15:40; see also Matthew 16:19; 18:15–20) to its members: men and women born of the Spirit and built up a spiritual house for God (see John 3:6; Ephesians 2:22). Further, the matters the elders are to teach are God’s ordinances of divine order and discipline. See Romans 1:16;1 Corinthians 11:23–29; Matthew 18:15–20; 2 Corinthians 2:6. In addition, the power Jesus Christ has bestowed in His people for the government of His church is ministerial, opposite to that which is magisterial and legislative: men lording it over men. Jesus Christ bestows authority on His elect individually; the Holy Spirit uses the power (dunamis) needed to act upon that authority, instance by instance.

To sum up: the Bible bestows no legislative power upon church elders and officers. In fact, it forbids that elders add any rules to any of its statutes or commands in attempt to further detail its meaning or otherwise create any buffer zone to insure no man inadvertently trespasses God’s express command. See Deuteronomy 4:2; Matthew 23:4. Such additions usurp the office of God, the only legislator, that is, the only one having jurisdiction to dictate the future behavior of men. Accordingly, elders have right to neither make general statutes nor particular regulations, but only to announce, teach, and expound the order of God’s word.[3] Thus it is said, only God can legislate: There is one lawgiver. James 4:12.

As neither the Jury nor judge has power to make any new law but only to explain and apply the laws made in particular instances, according to the best of their understanding; likewise, elders are neither lords nor vice-lords; sovereigns nor vice-sovereigns; priests nor pope over God’s people. Simply put, no elder—or combination thereof—mediates, standing between any man and his God. Indeed, God deals with each of His own direct. Accordingly, elders are to explain and expound the laws of Nature’s God, showing men how, in manner and way (process), to do all things ordered according to God’s word. In fact, God’s local eldership is to teach the standard of God written, called the Bible, in consonance with the standard of God unwritten in nature. The Jury is then to apply it in every arising matter between members of the brotherhood (see 1 Corinthians 6:1-6). Finally, the process Matthew 18:15–20 presents is to be followed with unbending circumspection in matters of dis-fellowshipping that one refusing to submit to it. In sum, elders are to teach and lead by confident example but never domination. Holy Writ elsewhere accords: the princes of the Gentiles exercise dominion over them... But it shall not be so among you... [W]hosoever will be chief among you, let him be your servant.[3] Bottom line: leadership never includes one man’s domination of another but always follows—above all else—the processes and standards of God’s word without respect of any one person over another in dealing with real cases and controversies between individuals. This is our law of God’s land as distinguished from the law of Babylon’s cities.

[1] The substance of this Headnote derives from John Winebrenner, Church Polity. Winebrenner's mother and early tutor was Scotch Presbyterian; his father was of the German-Dutch Reformed tradition, in which he was later trained and ordained Both of these traditions practiced Presbyterian government, much as here presented. Winebrenner ministered in the nearby the shadow of Phillip Schaff and John Williamson Nevin.

[2] See Common Lawyer’s Bible, appendix 2.5 (expounding shalom, the Older Testament’s Hebrew word for order).

[3] Matthew 20:25. Every man will tend toward either seeking to dominate other men or to take lordship over the earth and its resources for the glory of God and the good of others. In sum, God’s design for those of Adam’s race is that they exercise intelligent lordship and control over the earth, according to God’s directives and for His glory. This design demands protection of individual property rights. Satan’s lie, propagated through Babylon and her progeny, is that a man will find fulfillment by dominating his fellow man. God’s truth is that man will find fulfillment in taking God’s lordship over His earth and land. Even at this some complain, saying that men ought not dominate anything. This complaint fails to acknowledge, however, that the Creator has filled man with abundant energy and creative power that man is unable to contain. God, therefore, in His grace has instructed man where to focus his energy and power, and by what methods to expend it. Simply out, we are not to use it to subdue one another, but to serve one another and subdue the earth for God’s purposes and glory. Matthew 20:25. See generally Brent Allan Winters, Excellence of the Common Law §§ 2.1–2.1.3, 2.4 (discussing the establishment of the civil-law tradition at Babylon with its system of domination of people as opposed to taking dominion over the earth).

Babylonian systems of law and government carve out territorial boundaries only in order to designate those persons over which the state claimed power. God, however, has entrusted His jurisdiction over the earth and the fullness thereof to mankind, to exercise it according to God’s directives; whereas tyrants exercise their power over men, according to their own will. The word territory came from the aim of civil-law rulers to dominate, through terror, all those living within a bounded area of land, which came to be called a territory. In fact, the civil law ordains rule by terrorism. Ancient pagan kings ruled in the tradition of the civil law: dominate people not land. In the spirit of Nimrod, the mighty hunter of men, ancient and modern demagogues have sought to exercise power and domination over all of man. “The princes of the Gentiles,” said Christ, “dominate them without ceasing....” Matthew 20:25. Tyrants are willing to conquer territory only as it satisfies their lust to dominate people, using state power. Recall in sum, that God’s plan and covenant is never that one man dominate another. Adam’s race, rather, is to focus its energy on wielding deft lordship over the earth or land, according to God’s Word. 

Foregoing note from Brent Allan Winters, Good Book: An American Common Lawyer Translates & Annotates, 1 Timothy, Headnote.  © 2016 Brent Allan Winters

 

Incorporated Church = Corpse not Corpus  

—A Common Lawyer Comments—

Brent Allan Winters

The most fundamental of our God-given freedoms—called fundamental rights—is freedom of association. Freedom of speech from our pulpits and from or courts is at once both the beacon (sign) and the fact (reality) that freedom lives. Incorporation is an act of government. Accordingly incorporation of a church association not only puts that association within the jurisdiction and power of the government, but it also allows government, held James Madison, to violate our U.S. Constitution's First-Amendment Establishment Clause. Indeed, a corporation is a creature or creation of government, a government franchise granting a measure limited liability in exchange for government control. But further, because an incorporated church is a government franchise, purporting to help one sect of religion but not all sects, it therefore further establishes a religious sect. Thus does church incorporation violate the Establishment Clause of our Constitution's First Amendment. 

 

—Inn Church—Church Incorporation and

501(c)(3) Status

One lawyer, having listened to Brent's 10-part audio series Corporations and Church Incorporation (found on the "Media" page of this website), responded as follows:

So, a church need not go 501(c)(3); I agree. But you say do not incorporate your church.

He then asked,

How then does the church hierarchy have limited liability?

Brent's Answer: The liability problem is best solved using the trust: trustees hold legal title (called ownership) to church property; church members and those to whom these members minister, hold beneficial title. Trust law of 49 States (except Louisiana, which is not a common-law jurisdiction but a civil-law jurisdiction and thus has no trust law), settlement of a trust creates no corporate fiction or entity to hold property title because the trustee(s) hold title. Indeed, as a matter of law, only the sovereign (the State) can create a fictional corporate body and grant  limited liability to it. A trust, however, is not a corporate creature of the State but is an arrangement of relationships among persons and property. An individual trust creator, called a settlor (not settler), creates the trust relationship by two ways: either declaring himself trustee of property to which he already holds title or by transferring property title he holds to another individual or individual(s) to serve as trustee(s). Simply put, he either entrusts the designated property to himself or entrusts it to another; but in either case, he does so for the benefit of a named beneficiary or beneficiaries.

To be sure, although the IRS says that for tax purposes a trust is a corporate entity vis-a-vis the IRS; it remains, nevertheless, not an entity but an arrangement of relationships respecting persons and property vis-a-vis all others. In all events, since a true church is not taxable (whether incorporated or un-incorporated), the IRS's claim that a trust is an entity does not matter. Case in point: the little country church where your writer grew up was un-incorporated (as were most churches back then) and a couple of church members served as trustees, holding title to the church property for the benefit of the church members. A few States have passed legislation allowing un-incorporated churches to hold property as a mere "associations"—a new idea that might spread. Such an association method of holding property title, however, should be suspect because it requires acceptance of a legislative concession, which is tantamount to a privilege (license) from government.

In Sum

Legal title (ownership) to all church property (hard assets: buildings, real property, equipment, vehicles) should be entrusted—by trust indenture well drafted and duly executed—to chosen church members appointed as co-trustees to hold the church property for the benefit of church members and those to whom they minister.

Arguably, the common law of trusts limits trustees' liability at least as much as corporate law—if not more so—to this extent: Trustees have no liability as long as the paper trail pertaining to entrusted property always reflects—in such a way as to keep the dealings of all others with the church on notice—that trustees are acting only in their capacity as trustees and not in their personal capacities; further, that creditors may look only to the church property for satisfaction of debt. As long as all persons dealing with the Church are notified of these trust requirements, trust law limits trustee's liability. But even beyond that, our common law limits if not bars lawsuits against Churches and there officers.

The common law of trusts also limits beneficiaries' liability in that beneficiaries have no liability as long as beneficiaries (church members and those to whom they minster) have no say in the care and maintenance of church property. This follows the Bible's pattern in that church members are not to shoulder the burden of church property so that they remain unencumbered, enabling their ministering to others to remain unfettered and free. 

Thus, much as law limits corporation liability to its assets and as each shareholder's liability is limited to the amount of his investment, so also a church elder's or member's liability—since they hold no title to the church's property—is limited to the assets of the church.

 

And in Addition

  1. Illinois and California have the strongest trust law on these points.
  2. The next-best are Arkansas, Massachusetts, Missouri, New York, and Rhode Island.
  3. Thus far, suits for clergy malpractice have found no traction in our courts.
  4. The biggest case in modern times respecting clergy malpractice has been McNally -v- MacArthur (1985); the California Supreme Court deep-sixed it. See following New York Times article: http://www.nytimes.com/1985/05/17/us/judge-dismisses-clergy-malpractice-suit-on-coast.html

Church Incorporation:

Individual Rights -vs- Group Rights

Our common law, says Winters, is our shield and sword against the civil law's mere academic types now scuttling even the teaching of common-law fundamentals in American law Schools. Winters says that such schooled-only deans and professors are now replacing the fundamental first-year common-law courses with civil-law indoctrination [1] under hackneyed group labels such as Public International Law, International Economic Law, and human-rights law—as though our common law provides no remedy for the rights of the public and humans; and as though there is some other kind of rights besides the individual rights of a warm-blooded man or woman. On the contrary, says Winters, our common law insists that the public good is served only by vindication of every person's individual rights. [2] By contrast, the civil law, Winters teaches, stresses group rights, a fiction of the civil law; a notion having no existence. Never forget, says Winters, that which belongs to everybody belongs to nobody—and will soon enough be snatched up by that party insisting it belongs to all. Never forget, you have rights in your property and property in your rights. Just as so-called public property will come under the absolute control and de facto ownership of the party promoting that fiction; so also your individual rights will come under the absolute control and de facto ownership of the party promoting that fiction: the powers that be. Winters says that by using civil-law fictions [3] such as workers' rights, childrens' rights, womens' rights, and minority rights, promoters prostitute whole groups of mankind in order to obscure, and then dominate the individual rights of others, fleecing and then flaying the true owners.

[1] http://www.insidehighered.com/news/2006/10/09/harvard: The ... common law ... [is] no longer thought to be as relevant .... Elena Kagan, then the school's dean, called the move the most significant revisions to [its curriculum] since that time.

[2] Brent Allan Winters, United States Constitution & Declaration of '76: A Common Lawyer Comments—Clause By Clause, American Bill of Rights, Introduction, citing William Blackstone (2010).

[3] Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law, § 4.1.3.3 (2010), citing L.L. Fuller, Legal Fictions (pts. 1–3), 25 Ill. L. Rev. 542 (1930–1931), quoting Lecoco, De La Fiction Comme Procede Juridique 251 (1924): The [civil law] courts do not utilize the device of the fiction to fill in a gap in the statute. When such a necessity is imposed on them they have recourse to a means which serves them in every situation: the argument from the text ... The judges stop at no subtlety which will give the text the desired sense.

 

Inn Church and Teaching the Arts of Liberty

Brent on the Liberal Arts—A Common Lawyer Comments


Winters says that which the ancients called the liberal arts are the four

arts of language the tools of freemanship: listening, reading, writing, and speaking. Listening sharpens the ear, reading whets the understanding, writing orders the mind, and speaking sharpens the words: all this to slake one's thirst to know right so one can satisfy one's hunger to do right. [1]

 

The learned man, says Winters, can understand what he hears and reads, say and write what he thinks, so he can do what he ought and teach others to do likewise. Reading, writing, and arithmetic are a good start on the arts of freemanship: all three require seeing relationships and drawing conclusions.[2]

 

To prepare for the responsibilities self-government called freemanship, says Winters, one must get these four tools of language. In order to teach freemanship, Winters continues, the teacher must, above all, teach its arts. In order to teach these, however, the teacher must first possess that which he would teach.[3] Indeed, says Winters, one cannot impart that which one does not possess.
 
Winters further says that a school is any place where learning occurs: where one fellow tells another something he did not know or moves him to ruminate something he already knows.[4] Winters believes that true intelligence is to think the Creator's thoughts after Him. So-called intelligence quotient tests, being arbitrary, are unreliable.[5] 

 

The only fulfilling purpose for any one of Adam's race, says Winters, is to gain the mind of God respecting any matter that God has charged him to know, understand, and act upon. Further, the complete thoughts of God are the sentences of God, found in His Word written, which the common law calls special revelation; and also in His Word unwritten, called general revelation, the Laws of Nature and of Nature's God, and the common law.  Winters says that learning the arts freemanship is necessary for the sound individual discernment necessary for self-government. Anything less amounts to indoctrination into slavehood: a conditioning to substitute the will of another—a member of some priestly cast, self-proclaimed elitist, expert, or scientist so-called—for one's own developed discernment.  

 

Love for self-government grows from an education for freemanship, which shows itself in two books: one unwritten and the other written. The unwritten volume, the laws of Nature, Blackstone calls general revelation because it shows us the Creator’s ordering of power in nature: signs and seasons, the laws of nature needful for living this life on earth. The written volume, the Bible, Blackstone calls special revelation because it is more personal, revealing Nature’s God with His stirring words of life. ... These two grand volumes—the one unwritten and general for all; the other written and special to that person wanting to know more—reveal the laws of Nature and of Nature’s God, also called the common law: a trustworthy standard, stirring one to duties to self governance.

 

[1] Brent Allan Winters, Teach for Freemanship not Slavehood §§ 1, 2.1 (1993)

[2] See Brent Allan Winters, Teach for Freemanship not Slavehood § 2 (1993).

[3] See Brent Allan Winters, Teach for Freemanship not Slavehood (1993), citing Milton Gregory, The Seven Laws of Teaching (1884).

[4] Brent Allan Winters, Teach for Freemanship not Slavehood (1993), citing People v. Levisen, 404 Ill. 574, 90 N.E.2d 213 (1950): A school is a place where instruction is imparted to the young ... the number of persons being taught does not determine whether a place is a school. 404 Ill. at 576, 90 N.E.2d at 215. In Levisen the Illinois Supreme Court further stressed the right and obligation of parents to control their children’s education. Levisen, 404 Ill. at 577, 90 N.E.2d at 215 (The object is that all shall be educated not that they shall be educated in any particular manner or place). See also Meyer v. Nebraska, 262 U.S. 390, 400 (Compulsory education laws are enacted to enforce the natural obligations of parents to provide an education for their young, an obligation which corresponds to the parents’ right of control over the child).

[5] See Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law, apps. 2.1 (2010).

 

Church Membership and Polling

 

Winters Inn of Court Comments

Brent founded Winters Inn of Court in 2011 in response to loss of individual freedom resulting from ignorance of common-law first principles, not only among non-lawyers, but also among lawyers. Our common law, says Winters, is not a list of laws, but a principled way of life; our common law is never known by schooled learning, but only in its doing.[1] Because attorneys, including judges, are increasingly the product only of schooled professors, many know about our common law but do not know our common law.[2]  And though attorneys are, by definition, professional agents, courts nowadays hold them immune from liability for fulfilling their fiduciary role as agents, saying others cannot expect them to have been exposed to the fundamentals of fiduciary relationships: agency and trust law—the highest duty of our common-law tradition.[3] As a consequence, lawyers become evermore de facto agents of the powers-that-be and ever-less servants of the law.

[1] See Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law'' §§ 4.1.2.5, 5.2.1.4 (2010).

[2] See Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law § 6.3.2 (2010).

[3] See Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law § 6.3, citing Charles E. Rounds Jr. & Charles E. Rounds III, Loring A Trustee's Handbook 9 (2010) § 8.2.5. (2010).

Common Law -vs- Civil Law

Of note, says Winters, both our Constitution and Magna Carta call our common-law's processes the law of the land (Magna Carta legem terre: land law), [1]  but civil lawyers call Justinian's Code the law of the city (νομος πολις: Greek for civil or city law). But further, Winters says our common law is defined only when contrasted with its antagonist, the civil-law: administrative law (bureaucrats' regulations) and international law, sometimes called human rights and environmental law. To be sure, says Winters, all such civil-law devices work against freedom, but administrative law is the most direct and present danger to our freedoms for three rrasons : first, administrative law is a recent interloper in our common-law country; second, administrative law is a detour from the trail through which parties must struggle in their quest for justice; and third, this detour from justice’s trail leads into the wilds of government, and politics, and queer events in both. [2]

At bottom, says Winters, our common law is the law of the doer; civil law is the law of the philosopher-speculator. Common law is about past facts done; civil law is about future speculation of what could happen. Winters says our common law is fact intensive; whereas the civil law is code intensive. Civil-law judges ask: What does the Code command?; by contrast, the common-law Jury ask: Who done it: when, where, how, and for what reason? Accordingly, says Winters, in our common-law country, a law suit is better called a fact suit. [3] Bottom line, says Winters, Civil law rests on sands of speculation; common law rests on foundations of fact. [4]

[1] Magna Carta, chap. 39.

[2] Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law, § 6.3 (2010), quoting Karl N. Llewellyn, 4 Harv. L. Rev. 1222 (1931).

[3] Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law, § 1.3 (2010).

 [4] Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law, § 1.5 (2010).

Judges:

Practicing Bar -vs- Government Lawyers

According to Winters, over the past fifty years fewer-and-fewer American lawyers, including judges, have ever tried a case before the Jury and many of those that have, did so only as a mere government prosecutor. Further, most federal judges come to the bench having spent their lives as government employees, kept men, biased in favor of their keeper, blind to the majesty of the first principles of common law and government. [1] According to Winters, these are not the sort of judges we have traditionally looked to protect the rule of law and our rights. [2]

An important change is taking place in where judges come from... In the Eisenhower Administration, roughly 65 percent came from the practicing bar, with 35 percent from the public sector. Today the numbers are about reversed—roughly 60 percent from the public sector, less than 40 percent from private practice. ... [J]udges are no longer drawn primarily from among the best lawyers in the practicing bar ... not ... the sort ... on which we have historically depended to protect the rule of law in this country. [3]

Winters also says our judges, as in civil-law countries, are more-and-more academized into mere trained clerks: machined cogs, tooled to receive the state's will in place of judicial discretion. Consequently, independence of the judiciary—the foremost feature of our common-law's separation of powers—is receding. [4]

[1] Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law, § 6.3.2 (2010).

[2] Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law, § 6.3.2 (2010), quoting Chief Justice Roberts, United States Supreme Court: 2006 Year-End Report on the Federal Judiciary before Congress, quoted in Third Branch: Newsletter of the Federal Courts, v. 39, no. 1, Jan. 2007.

[3] Id.

[4]Brent Allan Winters, Lecture, Belle Rive, Illinois, 31 June 2010, quoting Supreme Court Justice Scalia: Federal judges nowadays are increasingly bureaucratic.

Every Man's Law of Facts

-vs-

Elite Man's Law of Speculation

History, says Winters, is incontrovertible: civil law and its government has always been the ever-present antagonist of our common law and its government, always out to displace our common law and enable taking of freedom and domination.[1]  However, according to Winters, that can happen only as the civil law's self-proclaimed elite enlist the ivory-tower's lackeys of intellectualism: the civil law's proven device for befogging and then belittling those whom bureaucrats target for seduction, shearing, and then skinning. To accomplish this, government agents depend on popular media to displace the independent minds of the Jury pool with the popular political will. Accordingly, Winters says veneration for the intellectual's so-called assured results of science so called too often reduces the Jury to trusting the prosecutor's experts in deciding whether to give government permission to take a defendant's life, liberty, or property. The power potential in government, says Winters, draws opportunists called parasites; and a parasite, unless dealt with quick, will always destroy its host. Of all the lessons I learned in those years tending livestock, that lesson has proven among the most useful to the survival of not only our cattle and hogs, and also my own. [2]

[1] Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law, § 3.8 (2010).

[2] Brent Allan Winters, Lecture, Belle Rive, Illinois, 31 June 2010.

 

Protecting Relationships -vs- Justifying State Power

According to Winters, our common law comprises five fundamental private relationships, which are its distinct facets, forming a complete and balanced volume of law: property, contract, agency, trust, and tort. To divide any of these five relationship faces of the common law’s volume, says Winters, is to disfigure that face and thereby deform the volume's symmetry and disturb its balance. In addition, says Winters, division of any one of these five facets in attempt to make additional faces will only make a subspecies of that divided facet which has more likenesses to that facet from which it was divided than differences to that facet from which it is divided. Therefore, further division of these five facets, for purposes of learning or litigation, is unnecessary and confusing, and will defeat justice and not enhance justice. Each of these five fundamental relationships does, however, have sub-categories. Moreover, to merge any of the common law’s five facets will disfigure the body and shape of the gem, making it appear incomplete and thwarting its purpose. As are the faces of Ezekiel’s vision, each facet of the common law is indispensable to its integrity and its balance. [1]

The civil law, though operating under labels such as administrative law, regulatory law, international law, and human-rights law, remains, at its core, says Winters, martial: it commands obedience to the powerful party—called the powers that be—or suffer punishment. [2] By contrast, says Winters, our common law is the law of relationships: it foremost protects private associations freely chosen, such as business arrangements and contracts, was well as religious associations with one's God and other like-kindred men. [3] Accordingly, Winters says it is no surprise that the atrocities of the modern communist states, fascist regimes, and third-world demigods—such as North Korea, communist Russia, Hitler's Germany, Imperial Japan, and Napoleon's France—were done by a self-declared elite backed by silly scholars, fawning dependents, willing armies and, above all, claiming power under some modern version of Justinian's Code: Rome's ancient imperial law. [4] In the civil-law countries, which now cover the globe, Winters says offenses are, above all other relationships, against the faceless state or status, the static powers that be, sometimes called the public or even humanity. Accordingly, as wrongs are said to be against some unidentifiable, faceless bureaucracy, private injuries and wrongs against one's neighbor recede from consideration. In such a civil-law world of bureaucrats and regulatory codes, says Winters, payments for injuries done to one's neighbor are not paid to him, but are paid into the coffers of the powers that be.

Simply put, says Winters, our common law protects private relationships and civil law protects the will of the powerful party. A quick comparison of common-law and civil-law legal digest headings, he continues, tells the story: common-law organizes its digests according to relationships: creditor-debtor, lendor-lendee, promisor-promissee, trustor-trustee, husband-wife, bailor-bailee, lessor-lessee. By contrast, civil-law digests are organized according to subject: property, contracts, family law. Where civil law is used outside of its necessary military and maritime uses, it remains, says Winters, the scholar's scheme of servitude and the demagogue's device of domination. Our common law, by contrast, fosters freedom of association along with the richness of life and wealth it generates by protecting private relationships freely entered. [5]

[1] Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law, § 5.4.3 (2010).

[2] Brent Allan Winters, United States Constitution & Declaration of '76: A Common Lawyer Comments—Clause By Clause, Declar. ¶ 12, cmt. (2010).

[3] Brent Allan Winters, United States Constitution & Declaration of '76: A Common Lawyer Comments—Clause By Clause, U.S. Const. amend. I, cmt. (2010).

[4] Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law, ch. 2 (2010).

[5] Brent Allan Winters, Excellence of the Common Law: Compared and Contrasted With Civil Law, § 5.2.1.9.3 (2010).

 

Our Constitution:

Best Brief of Common-Law Government

Winters says that our common law is the lifeblood and backbone of our Constitution: [1] the best brief of common-law government yet hammered out. [2] Thus, to ignore our common law is to despise our Constitution and forfeit our freedoms. [3] In fact, says Winters, constitutional law without the common-law tradition is the Constitution drained of its lifeblood, with a wishbone for its backbone. [4] Our Constitution, says Winters, arranges the bones of our general government in the language of the common law. [5] Winters further says that mere study of the Constitution will never enable it to do its job, which is to bind the general government within its seventeen listed powers and jurisdiction over only four crimes—all other powers of government being reserved to the States and to the people. [6] Only real cases of genuine dispute sharpened by real injury to rights can breath the spirit of our common law into the bones of our Constitution, moistening its marrow, awakening its frame. [7] Our common law is not the law of the scholar's speculation, using theory; but of the Jury's search for facts, using evidence. Accordingly, says Winters, without the common law's quickening in the eyes and ears of the Jury, our Constitution remains a dry and dispirited skeleton of words. [8]

 

[1] http://newyorkcommitteemen.org/CommonLaw/default.html.

[2] http://commonlawyer.wordpress.com/2012/02/19/ron-paul/.

[3] Brent Allan Winters, United States Constitution & Declaration of '76: A Common Lawyer Comments—Clause By Clause, Declar. ¶¶ 1, 13 cmts. (2010).

[4] Brent Allan Winters, United States Constitution & Declaration of '76: A Common Lawyer Comments—Clause By Clause, Declar. 50 (2010).

[5] Brent Allan Winters, United States Constitution & Declaration of '76: A Common Lawyer Comments—Clause By Clause, U.S. Const. art. IV, sec. 4, cl.1, cmt., citing Chief Justice Taft, The language of the Constitution cannot be interpreted safely except by reference to the common law ... .

[6] Brent Allan Winters, United States Constitution & Declaration of '76: A Common Lawyer Comments—Clause By Clause, U.S. Const. sec. 8; amend. X, cmts. (2010).

[7] Brent Allan Winters, Don't Talk to the Police-It's the American Way, appx. 2 (2011).

[8] Brent Allan Winters, United States Constitution & Declaration of '76: A Common Lawyer Comments—Clause By Clause 4 (2010).


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