The Common Lawyer

A Common Lawyer Comments

The [Common] Law doth never enforce a man to doe a vaine thing. —Sir Edward Coke, Institutes of the Laws of England: Part 1, Commentary Upon Littleton Sec. 79a

My story is curious, but this I know,

When it happens to you, here’s how’t ’ill go.

In your haste for bonanza, you’ll strain to stay true,

Hopin’ against hope, good ’ill happen to you.

But it’s BS, ’less it’s bullion! The old miner did say;

His wise words still echo, by night and by day.

And as you moil for gold, you can hear them resound,

While working some liar’s hole, way down in the ground.

—From Brent Allan Winters: The Law of the Miner, quoted in:

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A Common Lawyer Comments 

—Brent Allan Winters—

Our Constitution arranges the bones forming our government in the language of the common law. Without the common law, our Constitution sleeps—a bone-dry and dispirited skeleton of lifeless words. Keep our common law and it will keep your freedoms. —Brent Allan Winters

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—these countries now 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 go government, 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