The common law is a system of "justice" that is the foundation of the legal systems in countries such as: Australia, Canada, Great Britain and the United States, among others. Common law has a long and chequered history a history and application that is often misunderstood and confused.
There is a political movement in the United States which desires to bring back the common law. The members of this movement often refer to themselves as patriots. The basic premise of the patriot movement is that the United States has gone astray from its foundation via fraud, deception, manipulation, corruption, and other nefarious means, but that its course can be righted with the return of the common law and literal application of the Constitution of the United States. The heart of this movement then, rests on the premise that liberty can be restored to America with the truthful application of common law and the Constitution concurrent with the eradication of fraud and deceit.
If that sounds a bit idyllic and utopian, that is because it truly is just that. This essay exposes basic flaws in the patriot movement's premise. First, the Constitution of the United States has very little to do with individual rights of citizens, residents or any other people who are located within the geographic boundaries of the United States. A reading of that document will reveal that "We the People" are granted only a few basic rights within the body of it.
Under the unamended Constitution, the "people" have the privilege of the Writ of Habeas Corpus unless the government chooses to suspend it under the guise of protecting the public safety or by housing its prisoners offshore. Bills of Attainder and ex post facto laws are abolished. Direct taxes are eliminated, the right to vote for certain groups is granted, and the trial of all crimes shall be by jury. This is the basic substance of the rights retained by the people in the United States Constitution.
To avoid these few constitutional dictates, the various branches of government have interpreted and applied the Constitution to validate bills of attainder and ex post facto laws when it suits the government interests to do so. Direct taxes are not allowed, however, nearly all taxes have miraculously been deemed to be indirect taxes, hence valid under the Constitution. While the right to vote has been expanded to include more people, this right has been corrupted by a process that revolves around "connections", money and fraudulent vote counting. Jury trials are still available in criminal matters, but these are under heavy attack from the government. Whenever a daring jury frees an innocent person that the government wants to punish, the jurors and the jury system are ridiculed.
The real body of rights in the Constitution come from amendments thereto, which were only add-ons, or after-the-fact allowances to the people. Most of these rights are contained in the Bill of Rights, or the first ten amendments to the Constitution. They include freedom of worship, speech, press, assembly and the right to petition the government for grievances. Also is the right to bear arms, freedom from unreasonable searches, right to an indictment, right against self-incrimination, right of protection from double jeopardy, right to due process, speedy jury trials, trial by jury in common law matters of a civil nature, right against cruel and unusual punishment, and retention of certain rights not delegated to the government.
The Bill of Rights was tacked onto the Constitution in December of 1791. The Constitution was written created 17th September 1787 and ratified 21st June 1788. Many believe James Madison to have been the instigator of the Bill of Rights, but this is a misconception, as will be explained.
Throughout history, there are basically two political philosophies. The first believes in rights for the rulers. While many names are used to describe this group, at the time of the American Revolution, followers of this doctrine were referred to as Tories. The second believes in the rights for individuals. Again, there have been many different names for them, but during the Revolution, the followers of that doctrine were called Whigs. Whig and Tory principles can be compared to Light and Dark, however, not all who spout Whig principles are working for the Light, but for selfish interests instead.
Madison was clearly in the Tory camp when he began co-authoring the Federalist Papers with fellow Tory, Alexander Hamilton. Madison began getting not-so-subtle nudges away from Hamilton's reasoning from Thomas Jefferson, who was regarded as one of the leading Whigs. Madison, realizing that his political ambitions would be more readily attained from the Whig base, seemingly drifted away from Hamilton's philosophical bent and towards Jefferson's. This can be readily observed by reading Federalist Papers, which were released in sequence. The earlier ones penned by Madison struck Tory chords, while the later ones rang of Whig principles. However, Madison's true essence was showing through in the earlier documents, and the later ones were more for show and flattery to promote his political agenda.
Madison proudly sent Jefferson a copy of the proposed constitution and was jolted when he received a letter dated 20th December 1787 from Thomas Jefferson, who was in Paris at the time, in which Jefferson wrote about the proposed constitution.
... I will now tell you what I do not like. First, the omission of a bill of rights, providing clearly, and without the aid of sophism, for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury ... Let me add, that a bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inference.
Again Jefferson asserted to Madison that there must be a bill of rights in a letter from Paris dated 31st July, 1788, and yet again on 18th November 1788. Since Madison was trying to promote his own political advancement via Jefferson, on the issue of a bill of rights he did what was suggested. However, many years later, when Madison finally became President of the United States, he went against the most basic advice from Jefferson on very serious issues by re-enacting Alexander Hamilton's liberty-stealing national bank act to fund his hopeless War of 1812 that nearly broke the back of the young country. Colours do show in time, especially those of a Tory.
A literal application of the Constitution would be of little effect to freedom in America. It is a primarily a Tory document containing only a few Whig principles. However, the Whig principles do shine for all to see in the Bill of Rights. Additionally, a few amendments, such as the Thirteenth abolishing slavery (which was quite acceptable and protected under the Constitution), the Fourteenth which establishes equal protection under the law, the Fifteenth which prevents racial discrimination, and the Nineteenth which prevents gender discrimination in assessing the right to vote also benefit "We the People."
A full rollback to the bare-bones Constitution would actually exclude the amendments thereto, including the Bill of Rights. Slavery would once again be permissible and openly supported by the Constitution of the United States! This would leave only the common law as the purported sword of justice that the patriot movement would yield. The common law has its roots in Arthurian England, supposedly the brainchild of King Arthur, however this would be an overstatement. Many are the legends leading to this statement, and whether it is true is for the reader to judge, as time has vanquished and corrupted much of history, however, there are significant pointers towards Arthur massively corrupting the then existing court system of "justice" into what we now call the "common law."
When Arthur was king he expanded and corrupted the existing court system until it was ready for his evil purpose to contrive a case against Gwenevere and Lancelot. By using the newly corrupted court system, Arthur was able to absolve himself from responsibility for the verdict and the sentence, however, it was obvious that even in the unjust courts of his, he could not succeed in a case against the Queen with honest testimony. That she was innocent was irrelevant and inconsequential to Arthur as he began trying to build a false case against the Queen. But Arthur had difficulty in acquiring perjured testimony for his murderous attempt because the penalty for perjury was so severe that potential false witnesses were too frightened to lie under oath. Arthur resolved this problem by corrupting the standard of proof necessary to convict for perjury, thereby making it highly improbable for anyone to be convicted unless they actually confessed to lying under oath. Then, through a combination of enticing and threatening witnesses to lie, Arthur was able to contrive a false, yet very powerful case against Gwenevere.
Arthur's corrupted system of "justice" now emulated its corruptor, being that was strict, rigid and severe while at the same time being deceptive and murderous. With this court system, which sufficiently promoted perjury and fraud while it severely punished honesty and sincerity, Arthur set about framing the Queen while hiding from responsibility by behind the "common law" system of "justice." History has protected Arthur because the legal system, embedded with fraud, has been held accountable for the horrible deed and the murderous perpetrator has gone unpunished. So outraged were the supporters of Gwenevere that she had been convicted at a perjured trial, that Lancelot was able to summon a vast army to storm Camelot and rescue the Queen from Arthur's heinous plot. The aftermath of all this is the common law, which haunts us even today. And fraud is among the most difficult causes of action to prove in common law courts, and prosecutions for perjury so rare as to be virtually non-existent.
Ostensibly, the common law is based upon the principal that when things happen repeatedly, they ought to have a consistent treatment. It provides for remedies for legal wrongs. That is, if a person steals a loaf of bread, under common law, the owner of that bread should have a remedy against the thief. Likewise, the state should have a punishment that it can mete out for the wrong. Over time, and over case after case, a body of law developed to compensate the victim and punish the thief. This is the common law.
The common law has some very noticeable problems. First, it is slow to evolve, so it is cumbersome and difficult to change. Second, it is complex and mysterious. Third, it encourages perjury and discourages honesty. Forth, it is strict and unwavering. It is said of the common law that ignorance of it is no excuse, which is true, however, knowledge of it often is. Under common law, the technically "innocent" often go free, while the morally innocent are frequently and severely punished. The common law strictly requires procedural adherence to it while worrying little about substantive issues that are being contested.
There is no room for common sense in the common law. For example, if a merchant has a caravan parked on the county line, and a thief purloins bread from that carriage, it could be that the thief would get away just because nobody could prove from which county the bread was stolen! In another area of the law, a person could be deprived of the benefit of a contract because of a strict, common law reading of an agreement, regardless of how unconscionable the strict interpretation of the "agreement" was. This is the common law.
In the study of many legal systems, I have never uncovered one so stark and strict as the common law, which cares so little for the spirit of the law and so much for the letter of it. In essence, the common law is a god unto itself that demands its tithes and must be obeyed. It is painfully slow and unfair by design to extract maximal suffering. It is a system where a criminal can literally get away with murder via perjury or through technical interpretations of it. In short, the common law knows not justice it is evil.
In an ironic twist of fate, people turned to the ecclesiastical courts for mercy from the harshness of the common law. It should be remembered that the clergy was responsible for the inquisitions, so mercy and fairness were not a given in their chambers. However, the ecclesiastical courts developed several doctrines which are today lumped into the category of equity. In equity, the chancellor could use common sense and award proper relief for those who could have no justice under the common law. However, equity is subject to the whims of whoever occupies the bench, and many jurists can be quite cavalier in their rulings. It often happens that the "equitable" remedy for the common law is much worse than the original ailment.
So harsh is the common law, that the jury system was developed to counter the law's tyranny. When the Seventh Amendment of the U.S. Constitution was drafted, it paid particular attention to allowing jury trials for civil disputes over $20 for suits at common law. And, the Amendment forbids judicial review of facts ascertained by juries. The Seventh Amendment is a strong pointer to Americans that the common law is putrid, but the import of this purpose for the Amendment is lost on most scholars of American jurisprudence today.
In summary, those who wish to return to the strict common law either know not what they seek, or else, they fully deserve what they desire. Those who seek unbending and literal interpretation of the Constitution are basically Tories who care not for individual rights. Those who wish to follow the Bill of Rights are seeking Whig (Light) principles, however, they fancifully seek those principles in a Tory (Dark) world, the world of the physical realm. But, things are changing; murder and perjury are about to meet Truth.
Utopia cannot exist in this realm, but turning within to the Love of the Divine Mother can afford one peace and comfort in this corrupt and deteriorating world. The Correction is underway, and soon the disgusting common law will be flushed away and be of no account whatsoever, along with all of the other earthly forms of "justice."
Copyright © 2003 by Steffan Stanford