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: http://commonlawyer.wordpress.com/2012/05/14/bs-vs-bullion-part-1-4-2/
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
—A Common Lawyer Comments—
22 August 2018
© Brent Allan Winters 2018
He that keeps his mouth keeps his life. But he that opens wide his lips shall have destruction. —Proverbs 13:3
If a man vows a vow unto the Lord OR swears an oath to bind his soul with a bond, he shall not break his word, but he shall do all that comes out of his mouth.
You shall not be slack in doing it, for the Lord your God most certainly will require it from you.
I will support and defend our Constitution of the United States against all enemies, foreign, and domestic, so help me God.
I should have known better. I had muttered the same words of bewilderment as his. Were my words sincere? You bet. How about senseless? Sure. And it took me a spell to get past it because I didn’t want to think bad about all of them. It’s more pleasant to think good of others.
When I hear another say, “They can’t do that!” I savvy and say to myself, “I know, you’d rather not accept it either.” I mean accept the truth that someone you trusted is not only untrustworthy, but worse, is also downright dangerous. But absorbing the walloping blow of raw force from some policeman’s or government agent’s calloused disregard for law can jolt a fellow’s soul hard enough to knock his common-sense rolling stock off his rails of reason. Soul shockI call it. “They can’t do that!”bewails some soul-shocked American and then follows with an awkward, “Can they?” And to pour fuel, these myrmidons, in doing such dastardly deeds, are convinced that using the ends to justify the means in order to fill the wishes of the criminal-law industry’s lackeys makes them patriots. Such are presumptive but useful sillies for freedom’s enemies.
Bottom line: soul shock can be a hard jolt; not only strong enough to unhinge a fellow from his reason, but also strong enough to unhinge his tongue to talk fully sincere non-sense: a dangerous thing to do.
To be sure, such a law-abiding soul sees the law’s limits for government employees; but the unexpected stun of a law officer’s disrespect of those limits can knock loose his trust, rendering him slow to acknowledge the foul human inclination to abuse power to another’s hurt—the only way such an abuser can get respect. In any event, once one sees that a government employee has violated the law, it is senseless to ask whether such a hirelingcan(i.e., is able to) do such a thing. Indeed, not only can he, but by having done so he has proventhat he can.
But I should back up. To get a fair shot at the right answer, one must at least ask the right question. And once abused, the only sensible question remaining is how should one respond to such callous abuse of government power? One action always within the American’s power is to use his right not to talk, that is, his right to remain silent.
Nowadays, policeman and other government agents are part of a monopoly of force, ready and willing to visit violence upon the non-compliant American and against enjoyment of his constitutionally protected rights.
Even so, where one is outnumbered and outgunned it is unwise—no matter how right one thinks one is—to meet force with force. Simply put, by the time a bevy of armed officers has you surrounded, with drawn guns and billy clubs, they have the drop on you; most any plan to overpower them will fail. The only way to beat them is by truth’s wisdom.Bottom line: time has come to be wise as a serpent and harmless as a dove. Not force but finesse is needed. Do not talk.
To fill this need calls for awareness of a power that cannot be taken (inalienable) no matter how unfair the fight, that can never be turned against its holder (no fundamental right is be used against a defendant to raise an inference of criminal guilt), that will never wear out, and that is indestructible, i.e., resilient to all blows of force and threats of force. Such a weapon is your right to remain silent.
Jesus Christ himself warns to never square off with statist power.By the way, such evil is never a mere concept floating in someone’s mind or the atmosphere, nor is it a mere abstract idea or even a system,condition, or tangible thing.
No, evil is only seen or felt by the actions of some person. Some evildoers are mere presumptive sillies, convinced they are doing right; other evildoers know they are doing evil and delight in doing it. In all events, evil is known by a person’s wrong acts.
Bottom line: no non-living thing is evil. To be sure, it may be dangerous if one is careless in its use or disrespectful of its ways; or when evil men abuse it to hurt others; but because no mere mindless thing can be held to account, it is not evil.
This oath of American judges, lawyers, military men, and public office holders is not only peculiar but also sobering. Only the world’s few common-law countries have such an oath: the oath taker swears no loyalty to any man or combination of men. Indeed, the oath is sworn to a set of first principles of common law and government, put in a compact draft, and called our Constitution. Simply put, it does not bind the oath taker to any new, additional duty; but rather, additionally binds him to an old duty he already has. In this sense, even one taking this oath upon becoming a citizen of the United States burdens himself with no new duty. As God’s creature, he already has the duty of undivided loyalty to the laws of Nature and of Nature’s God, which embrace the first principles of our common law, which is the stuff of our Constitution. See further generally appx. 7 of this booklet (distinguishing oaths from vows).
Matthew5:39. Sometimes translated, “Do not resist evil,” is better rendered, “Do not square off with the evil man,” i.e., do not face off with such a one, including any of his minions and lackeys; do not go toe to toe with any of them, giving physical bow for physical blow: ’rapizw (harapidzo), from an Old Scandinavian root meaning to exchange drubbings, as in a contest where men give blow for blow. The root-form suffix "izw" makes the verb intensive; we get our verb "rap" from this root, in the sense of a blow that smacks or knocks. A rap is harder than a tap or even a slap, and a tad harder than a smack.
To resist is one thing; to square off in a Viking-like contest of matching blows is quite another. To be sure, Scripture commands to resist the evil man, where such a one troubles you, not by squaring off with him, but by doing good. See James4:7. Even if you do defeat an evil one at first encounter in a blow-for-blow contest, he will return in overwhelming numbers and force. See, e.g., Matthew12:45. Therefore, good must push evil out, occupying its dwelling place, leaving the evil one no room to take up lodging.
To illustrate, the so-called wars on poverty, drugs, and terror are devices designed to deceive in two respects: first, to give the false impression that tax money spent these will not hurt any person but only stop some unfeeling evil thing; second, to hide the identity of those persons targeted for the violence of war, namely, those making profits in business and the drug trade, and those the powers-that-be wish to label as terrorist in order to justify jailing or killing them.
That being said, even to war against any mere thing is as bad as or worse than warring against innocent people because to wage war against a created, impersonal, mindless thing is to war against the law’s of Nature and the natural forces of Nature’s God. To sum up, it is impossible to war against things because things have no mind, will, or emotion to do evil and therefore can neither be punished nor stopped. But persons can be. Hence, war is justified only against evil men, when their evil usurps God’s rights over life, liberty, or property and no other option is available to stop their evil doings.
Native Born Not Enough:
Our Constitution Requires Presidents Be Natural Born
Our Constitution of the United States requires that the President of United States be a “natural-born Citizen”: a citizen not by oath or exception but by nature. Bottom line, to be a natural-born citizen means that the one in question must fill both of two requirements: first, both of his parents must have been citizens of the United States at the time of his birth; second, he must have been born within the territorial boundaries of one of the 50 States of the United States, or its property.
Anyone who is not a natural-born Citizen, but nonetheless takes the President's oath of office, in so doing violates not only our Constitution but also his oath. Can such a person—whose first official act violates our Constitution and his oath of office—be trusted to “preserve, protect and defend the Constitution of the United States”? Lack of good faith in what some consider such a small matter brings in its train injustice in great matters: “He that is faithful in the least,” says Jesus Christ, “he is also faithful in much: and he that is unjust in the least, is unjust also in much.” (Luke 16:10 GNV)
The office of President is unique in that its requirements are beyond any other office of government our Constitution allows or otherwise sets forth. To be sure, a man’s citizenship of one of the several States of the Union may qualify him for every other office our Constitution mentions or to which it otherwise alludes—U.S. Congressman and Senator, State legislator, State governor, judge of a federal or State court. But being a citizen of one of the several States of the Union or of a territory of the United States, standing alone, fails to fulfill the two-fold natural-born citizenship requirement of our Constitution for a person to serve as President. This two-fold requirement for the office of President—also called citizenship by nature—is apparent in the nature of the matter.
This first-principle of sound government requiring that our Presidents be natural born (citizens by nature in every respect) not only arises in the crucible of experience through the gathered sense of centuries, called the laws of nature; but is also rooted deep in the laws of nature’s God, called the Bible. Common-law history provides the recorded observations of this principle arising naturally from the nature of the matter; the Bible provides the written record of this principle among God’s people.
The Bible puts this first principal of good government clear, requiring that those holding positions of power among us must be from us, by us, and for our benefit. Of note, John Wycliffe, about the year 1375, is said to have written on the flyleaf of his translation of the Bible—the first entire translation of the Bible into English—that he did his translation so that the boy behind the plough may read and that the government of the people, by the people, and for the people shall not perish from the land. Thus also is the reason behind Deuteronomy 17:14–16, requiring that leaders among God’s people be both from and by the people, thereby insuring that they will also be for the people. To tolerate anything less is to risk split loyalty in our land’s most-powerful office.
Verse 14 requires that only, “from among thy brethren shalt thou make a King over thee: thou shalt not set a stranger over thee which is not thy brother.” These words are clear and strong. Simply put, that a man for President was born within the jurisdictional boundaries of one of the 50 states of the Union, or within one of the territories of the United States, or on property of the United States does not, standing alone, qualify him to be President; likewise, that one or even both of his parents were citizens at the time of his birth, does not, standing alone, qualify him to be President. Rather, both must be true: (1) he must have been born in our country or its possessions (2) to parents (plural) having U.S. citizenship. Thus is his undivided, full affection for our country best insured.
Our Constitution of the United States, says the Supreme Court, is a brief of common-law government, setting forth common-law standards:
The Framers of our Constitution were born and brought up in the atmosphere of the common law, and thought and spoke its vocabulary… . [W]hen they came to put their conclusions in the form of fundamental law in a compact draft, they expressed themselves in terms of the common law, confident that they could be shortly and easily understood. Ex Parte Grossman, 267 U.S. 87, 108–09 (1925).
In light of our common law, the U.S. Supreme Court has had occasion to examine the meaning of our Constitution's standard “natural-born citizen” and found its definition comprises two-parts: (1) birth in a country (2) of parents who were citizens of that country:
The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. Minor v. Happerstett, 88 U.S. 162, 167 (1874).
But what is this “common-law nomenclature” to which the Supreme Court referred? One such source is Emerich de Vattel’s The Law of Nations or the Principles of Natural Law (1758). In this work, well known by the framers of our Constitution, de Vattel sets forth the common-law definition of natural-born Citizen: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” This wording is nearly identical to the Supreme Court holding quoted above and accords with John Locke’s Second Treatise of Civil Government (1690), also well studied by the framers of our Constitution. When a father, says Locke, is under the law of a civil government and bears children within its territories, the child is also under the law of said civil government. Indeed, the New Englander and Yale Review, Vol. 13, of July 1845, also reviewed the common-law definition of “natural-born citizen” as used in the Constitution of the United States. Conclusion? The term natural-born citizen “excludes all persons owing allegiance by birth to foreign states,” whether or not such persons were later “naturalized under our laws.” In this way, these authors, citing our common-law history stemming from before Magna Carta, and citing Vattel, differentiate between a “natural-born citizen” (a citizen by nature) and a “naturalized citizen” (a citizen by ceremony of oath).
It is well settled, then, that our U.S. Constitution requires that a President must be natural born, which means two things: he must be (A) born to parents who, at the time of his birth, were citizens and (B) born within the territorial boundaries of one of the 50 States of the United States, or its property.
Brent Allan Winters, Nathan MacPherson, Attorneys at Law
© Winters & MacPherson 2015
—A Common Lawyer Comments—
22 August 2008
© Brent Allan Winters 2008
Thou Shalt Not Infringe
The Second Amendment is a clear, concise statement of the common law tradition’s personal right to keep and bear arms, our foundation of national security. As the First, Second, Fourth, Fifth, and Sixth Amendments, the Second Amendment is brief because when drafted, no explanation was needed.
“The Framers of our Constitution,” says the Supreme Court, “were born and brought up in the atmosphere of the common law, and thought and spoke its vocabulary… [W]hen they came to put their conclusions in the form of fundamental law in a compact draft, they expressed themselves in terms of the common law, confident that they could be shortly and easily understood.” Therefore, “[t]he language of the Constitution,” said Chief Justice Taft, “cannot be interpreted safely except by reference to the common law… as it was when the instrument was framed and adopted.”
Those who demanded and those who drafted the Second Amendment revered their English liberties and knew well that the right to arms is a personal responsibility rooted deep in the common law. “The laws of England,” said Granville Sharp, “always required the people to be armed, and not only armed, but to be expert in arms.”
To know the Second Amendment in the context of our common law tradition will prevent its misrepresentation. A decade before American Independence, Blackstone wrote that common law “judges do not pretend to make new law, but to vindicate the old one from misrepresentation.”
Thus, the wisdom of our Second Amendment is seen in light of the common law: government is without authority to trespass (infringe) upon the natural right and responsibility of the individual to arm himself in his own defense and that of his family, neighbors, and country.
Colonial Americans insisted that the common law William Blackstone espoused was their birthright, which included the personal right to arms. Leading up to America’s Independence, however, England’s Parliament followed Blackstone’s unfortunate error.
In “[o]ur American plantations…”, said Blackstone, “the common law… has no… authority… .” From this false premise, Parliament reached a false and costly conclusion: The common law having no authority in the Colonies, Americans have no right to keep and bear arms. Thus, at Lexington and Concord, England began her policy of aggression to disarm her Colonies.
England’s use of force, however, backfired; the resulting war fueled American resolve and sharpened her convictions to keep her arms. To the victorious Americans, the personal right to keep and bear arms had become more than a reasoned conclusion, it was a felt necessity.
As they contemplated a national Bill of Rights “the smell of gunpowder from Lexington and Concord,” says Les Adams, “was still in their noses.” Consequently, they forbade their new government from infringing upon their personal rights to keep and bear arms. In addition, Americans saw that the Second Amendment gave teeth to their other personal freedoms in the Bill of Rights, encouraging boldness to freely speak, write, and associate.
Indeed, the Second Amendment was theirs: they knew its meaning, had suffered long to earn its passage, and tolerated nothing less than each person’s natural right to arms and private discipline in their use. Thus, without a hint of objection, they added the Second Amendment to the Constitution.
The common law tradition had always understood rights as an individual and personal, not collective, matter. “[T]he public good,” said Blackstone, “is in nothing more essentially interested than the protection of every individual’s private rights.” By this principle, James Madison structured the Second Amendment: the public good (“the security of a free State”) depends upon the private right “to keep and bear Arms,” being kept from infringement.
Justice Joseph Story, champion of our common law and Constitution, called the Second Amendment “the palladium” of liberties “since it offers a strong moral check against the usurpation and arbitrary power of rulers.” Justice Story understood the present necessity of the Second Amendment, but also foresaw the great danger creeping toward it, the danger now facing us: a gradual undermining, a gnawing at its foundation of personal right — in a word, infringement. “There is,” he said, “certainly no small danger that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.”
Identifying the danger, Justice Story forewarns us; taking heed, we will fulfill the Second Amendment’s purpose: real national security.