Part three in a series
So we find…
So we find ourselves in day three of this series and before I go any further I would to thanks to the folks at @bdvoter.cur , “thank you very, very much!”. Those nice folks were so kind in up-voting the Dash from 04/09/20 and it truly made my evening. In case you missed that edition of the Dash you can click right here and it will take directly to it; no foolin’ it really does. Then come on back for this one if you would.
In the first…
In the first of this series we learned about courts, how to tell what kind of court you might be involved with, and a court that you probably didn’t know existed. Yesterday we analyzed what exactly the government here in the USA was created to do. I’m guessing that if you read that edition it most likely opened your eyes a little wider than normal by the time you finished.
Today we are going to focus our attention on the common law, and we might even go a little further than that it time allows. So let’s get started…
Having the name…
Having the name, “common law”, you would think most people would know about it but that is not the case. Most people, if you were to ask them about “common law”, would mostly likely say, “Oh. .. don’t you mean “common law marriage, right?”
Try it sometime; the results will likely be 1 out of 20 will actually know a little about it if you are lucky. So the name “common law” has gone from being an everyday part of life here in the USA to an ‘unknown’ within our society today in a relatively short period of time.
That's a really...
That’s a really sad thing too, because if we don’t start paying attention and do something to revive it you can bet our crooked politicians will amend the constitution to eliminate completely and then we are totally screwed. Every time a change is made to the constitution we “the people” end up holding the “short straw” if you know what I mean.
So what exactly…
“So what exactly is common law?”, is the question I here you mumbling to yourself. Well, when we get done here you will be the 1 in 20 I spoke of, so I can assure you of that, and I’m also going to answer the question as well. But first I want to give you a little history lesson on common law.
Any guesses first on how old common law is? Really, no guesses? Well, when the first European settlers came to the shores here they brought common law with them. On our soil that dates back to the time when the settlers landed at Plymouth Rock, Massachusetts. So how does that sound?
So that was...
So that was the start here in what would become the United States; but common law itself dates back way further than that. The common law here in the USA has its roots in English common law which dates back to the 11th century around the time of the Norman Conquest of England.
By now you are starting to understand this common law has been around quite awhile, which should have wondering how and why we shelved it for codes and statutes? While you wonder about that, I’ll go ahead on now and tell you what common law is.
Just like always...
Just like always, I’ll call Bouvier’s law dictionary for the definition, “COMMON LAW. That which derives its force and authority from the universal consent and immemorial practice of the people. See Law, common.”
Hell’s bells. I thought this was going to be easy, hold on while I make sure I even know the correct definition of “immemorial”.
It’s a good thing I looked that word up, thank God that I don’t have to pay by the “word” when use Bouvier’s. Here is their definition, ” IMMEMORIAL. That which commences beyond the time of memory. Vide Memory, time of. IMMEMORIAL POSSESSION. In Louisiana, by this term is understood that of which no man living has seen the beginning, and the existence of which he has learned from his elders. Civ. Code of Lo. art. 762; 2 M. R. 214; 7 L. R. 46; 3 Toull. p. 410; Poth. Contr. de Societ«, n. 244; 3 Bouv. Inst. n. 3069, note”
Okay, so are we clear on the definition of “common law”?
What the hell; one more definition won’t kill us, so let’s get the “Law, common” explanation.
LAW, COMMON. The common law is that which derives its force and authority from the universal consent and immemorial practice of the people. It has never received the sanction of the legislature, by an express act, which is the criterion by which it is distinguished from the statute law. It has never been reduced to writing; by this expression, however, it is not meant that all those laws are at present merely oral, or communicated from former ages to the present solely by word of mouth, but that the evidence of our common law is contained in our books of Reports, and depends on the general practice and judicial adjudications of our courts.
2.The common law is derived from two sources, the common law of England, and the practice and decision of our own courts. In some states the English common law has been adopted by statute. There is no general rule to ascertain what part of the English common law is valid and binding. To run the line of distinction, is a subject of embarrassment to courts, and the want of it a great perplexity to the student. Kirb. Rep. Pref. It may, however, be observed generally, that it is binding where it has not been superseded by the constitution of the United States, or of the several states, or by their legislative enactments, or varied by custom, and where it is founded in reason and consonant to the genius and manners of the people.
- The phrase "common law" occurs in the seventh article of the amendments of the constitution of the United States. "In suits at common law, where the value in controversy shall not exceed twenty dollar says that article, "the right of trial by jury shall be preserved. The "common law" here mentioned is the common law of England, and not of any particular state. 1 Gallis. 20; 1 Bald. 558; 3 Wheat. 223; 3 Pet. R. 446; 1 Bald. R. 554. The term is used in contradistinction to equity, admiralty, and maritime law. 3 Pet. 446; 1 Bald. 554.
4.The common law of England is not in all respects to be taken as that of the United States, or of the several states; its general principles are adopted only so far as they are applicable to our situation. 2 Pet, 144; 8 Pet. 659; 9 Cranch, 333; 9 S. & R. 330; 1 Blackf 66, 82, 206; Kirby, 117; 5 Har. & John. 356; 2 Aik. 187; Charlt. 172; 1 Ham. 243. See 5 Cow. 628; 5 Pet. 241; 1 Dall. 67; 1 Mass. 61; 9 Pick. 532; 3 Greenl. 162; 6 Greenl. 55; 3 Gill & John. 62; Sampson's Discourse before the Historical Society of New York; 1 Gallis. R. 489; 3 Conn. R. 114; 2 Dall. 2, 297, 384; 7 Cranch, R. 32; 1 Wheat. R. 415; 3 Wheat. 223; 1 Blackf. R. 205; 8 Pet. R. 658; 5 Cowen, R. 628; 2 Stew. R. 362
Okay, that should do it right there. I think we have what we need. Thank's Bouvier's Law dictionary, I couldn't do it without you.
So common law...
So common law is what the people decide is appropriate for their local society or community to put it in layman’s terms.
What may be acceptable in one local may not be acceptable in another one and the jury of local people will determine that by hearing the claim and the testimony in court. That is what section 2 of the definition is telling us with, "There is no general rule to ascertain what part of the English common law is valid and binding.”
An even equally important part of section 2 is this,”It may, however, be observed generally, that it is binding where it has not been superseded by the constitution of the United States, or of the several states, or by their legislative enactments,…” This is what we really need to paying attention too.
So far the crooks (lawmakers) in Washington have been content on just letting common law sit on proverbial “shelf “so to say, since they haven’t amended the Constitution to do away with common law. To the best of my knowledge neither has any state done so either.
Now some of…
Now some of you may want to point to section 3 and tell me that there is what “kills” us being able to use common law. But your mind is playing tricks on you, so read it again.
It isn’t saying that suits at common law are limited to $20 it is saying that even suits less than $20 have a right to be heard and decided by a jury. In today's “court system” it is basically known as “small claims” courts or justice of the peace courts. Jury trials happen even now in small claims courts. Judge Judy isn’t the only one deciding “small claims”; people just like you and me are called to be jurors at our local JP courts to hear and decide the outcomes of small claims cases.
I think we’ve done enough for today. Tomorrow we’ll take a closer look at how the current “court system” (administrative hearing system) tries to mimic common law courts. After we get done with that; I think we will be far enough along to actually get into the claim vs complaint, which is what actually got this series started. So hang in there, there is light at the end of the tunnel.
Key points to remember:
• In common law the local folks decide what is “law” for their local.
• Common law is in the constitution of the United States and has never been outlawed by amendment
• Common law has over 900 years of use in settling disputes between man.(men and women)
Until next time,
Sult
