The Common Lawyer

Quotes

Common law is not a list of laws but a way of life and mind, paths 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 is Due Process, which our Constitution calls the law of the land.

Due Process = the Process That is Due 

Our Constitution is a brief of common-law government: the processes due from government, how government must go about limiting government 

Common-law government is constant Mexican standoff,

pitting the three powers of government—legislative, executive, judicial—in a perpetual tension, each against the other two.  Thus is separation of the three powers of government into three branches a chief characteristic of our common law. 

Some common-law first principles:

Our Constitution says Presidents are neither kings nor much less emperors over Americans, but are presiders of national government and commanders of U.S. armed forces.

Only God can make a straight lick with a crooked stick.

Bottom line: God has never had good men with which to work.

He used sinners to write and deliver His word written called the Bible and to begat a nation out of which one would bear and deliver His word living called Jesus Christ. 

Following this first principle respecting God's perfect word, God allows sinful men to recognize and apply His standards of due process called His law; this recognition we call our common law. Our Constitution is one of sinful man's recognitions of leading principles of God's word unwritten in nature and written in the Bible. It is a brief of common-law due process for government.

More common-law first principles: 

Rule 1: A contract is a promise; a promise is a commitment that the law will enforce.

Rule 2: The law will not enforce a contract that the law forbids.

Rule 3: A corporation (whether sole or aggregate) is a fictional creature of the state, a person by legal fiction, comprising an arrangement of promises respecting property, but only within confines the state allows. A corporation can hold title of property in its name.

Rule 4:  A trust is a creature of its settlor, is not a corporate entity,[1] and comprises an arrangement of promises respecting property. A trust cannot hold title to property but legal title (ownership) of trust property is held in the person (a real body) of the trustee; equitable title is held in the person (a real body) of the beneficiary.



[1] Note well: The IRS turns trust law of all 49 common-law States (Louisiana excluded) on its head, declaring, for purposes of federal taxation, that a trust is a corporate entity. Louisiana is here excluded because it is—owing to its French roots—a Roman civil (city) law jurisdiction of which our common law of trusts has no part. The fictional entity called a corporation, not being part of our common law, is wholly a creature of a State’s legislature, exists at the permission of that State’s legislature, and only if the secretary of state (of that State) signs its certification. The trust, by contrast, being a creature of law—long-standing before any State legislatures came into being—has none of the foregoing requirements.

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.

The will of the state is the driving force of the civil law. The controlling question in civil-law countries now covering almost the entire globe  is, what does the state  command by its code? 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, but what happened: did the defendant steal? Did he assault? Did he commit arson? Did he kill, and under what circumstances? —Brent Allan Winters

Common-law government is constant Mexican standoff, 

pitting the three powers of government—legislative, executive, judicial—in a perpetual tension, each against the other two.  Thus is separation of the three powers of government into three branches a chief characteristic of our common law. 


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