Don’t Base Your Rights On Common Law
There are defects in the common law that make it a poor source for securing our rights. Natural law is the true source of unalienable rights.
By Richard Walbaum
It is not uncommon for people in the freedom movement to assert that they are common-law freemen, as if somehow the common law is a fundamental source of rights. But the common law is just another form of municipal law that evolved over time, and there are defects in the common law that have motivated its reform. The term “common law” describes the law held in common between the different circuits served by itinerant judges who traveled from town to town, to dispense the King’s justice. This common law superseded purely local customs. An “attorney at law” is an attorney who practices the common law.
The common law is said to be an unwritten law; this is because it does not derive its authority from any legislative enactment, but instead derives its force of law from the opinions of the courts.
This creates two defects: First, Art. 1 Sec. 9 Cl. 3 of the U.S. Constitution prohibits the passing of an ex post facto law (a law after the fact). There is a legal maxim nullum crimen sine lege which is Latin for “No crime, no punishment without a previous penal law.” Being unwritten, there is no law that the public can peruse, and prosecution can take place even though there is no statutory ban on an action.
Second, it violates the mandate of the separation of powers of the U.S. Constitution. Article I of the Constitution gives Congress the power to make law, while Article III gives the judiciary the power to interpret and apply it. Thus, the constitutionally limited role of federal courts precludes them from defining crimes or creating classifications for criminal offenses.
The trial of legal issues in the United States was subject to many defects, due largely to the fact that the entire English Procedural System, the source of U.S. common law, had grown up in a patchwork fashion. It has been said that the great body of statutes are there to remedy the defects in the common law, in order to accommodate changing conditions.
Efforts to reform the system of common law pleading produced the Federal Rules of Civil Procedure in 1938, and as a consequence modified the system of pleading as developed at common law, and in some jurisdictions totally swept it away in its entirety, so the Reformers thought, but subsequent events have cast grave doubts on this conclusion, as the stubborn fact is that common law pleading still survives as the basis of our modern remedial law. While the fundamental principles of the common law are said to be unchangeable, it is known for its ability to adapt and evolve with the needs of the times.
The common law is in force, unless modified by statute. It is because of the changeable nature of common law that it can become corrupted with time, and cannot be used as a satisfactory source of rights. One must base one’s rights on natural law because, being the source of unalienable rights given by God, can never be corrupted.
From The LAWFUL Remedy to Tyranny, p. 48-51.
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