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BatKol
Advanced Member
USA
735 Posts |
 Posted - 27 Apr 2004 : 07:59:23
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Robert-James said: For I, as Paul was, have become an example, for ye to follow.
Steve: LOL! Those of us who know the real Robert-James (the one who can't be 'seen' over the internet) are having a real good laugh at this line. Your family values remind me of Karl Marx. |
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Caleb
Advanced Member
Philippines
209 Posts |
Posted - 05 May 2004 : 03:01:13
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Dear Steven,
Sorry I've been gone so long. Lots going on at present, so I still don't have the time to write all that is in my head to tell you. For now I'll give a simple answer to one of your two key questions above.
Steven asked:
"2) What is the written law (which is *based* on the Bible)that the Republic regards as "lawful" in the land know as America? "
I will leave the ball in your court to do a bit more study on exactly what common law is. Here are some clues from Bouvier's:
quote:
LAW, UNWRITTEN, or lex non scripta. All the laws which do not come under the definition of written law; it is composed, principally, of the law of nature, the law of nations, the common law, and customs.
LAW, WRITTEN, or lex scripta. This consists of the constitution of the United States the constitutions of the several states the acts of the different legislatures, as the acts of congress, and of the legislatures of the several states, and of treaties. See Statute.
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.
I hope this makes clear that common law, which is what is based on God's Law, is not written. Therefore your question shows why you are missing much of what I have been saying. Failing to understand how common law works, and from whence its authority is derived, leaves one no option but to look around for written laws to obey.
You will see in the above definitions a very sharp distinction between common law and statute law. Would you believe that one of them does not apply to you at all, unless you want it to? Under which category does the CONstitution fall?
I'll post more when I have a chance.
"Of the increase of His government and peace there shall be no end"
Isaiah 9:7 |
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BatKol
Advanced Member
USA
735 Posts |
Posted - 05 May 2004 : 07:28:21
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Greetings Caleb,
Thanks for your post and welcome back. I'll meditate on this aspect of common law some more and try to factor in how military conquest might effect this situation.
What might have been throwing me off from the beginning is that Paul's status was within the Lex Romana, a written law which gave him certain privilidges which he exersized. Also Babylonian law during the 3rd Kingdom bondage time was also statute oriented as evidenced by the addition used to frame Daniel (as well as the addition after Daniel's salvation from the lion's den which decreed death for anyone speaking against YHWH).
Peace to you,
Steve
p.s. - I hope my shorter posts are more enjoyable to you  |
Edited by - BatKol on 05 May 2004 08:04:11 |
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BatKol
Advanced Member
USA
735 Posts |
Posted - 05 May 2004 : 19:14:51
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Greetings,
So much for short posts. This was too good not to drop in!
When researching the origins of the Common Law I ran into an excellent piece from http://encyclopedia.thefreedictionary.com/Roman%20law . This nice bit on Roman Law shows that the Common Law was originally derived from a written code called the Twelve Tablets (449 BC).
Check this out:
Roman law is the legal system of the Roman republic.
The Roman Republic traditionally lasted as a representative government of Rome and its territories from 509 BC until the establishment of the Roman Empire, typically placed at 44 BC or 27 BC.
Roman law is also the legal system of the Roman Empire .
The Roman Empire is the term conventionally used to describe the Roman state in the centuries following its reorganization under the leadership of Gaius Julius Caesar Octavianus (Caesar Augustus). Although Rome possessed a collection of tribute-states for centuries before the autocracy of Augustus, the pre-Augustan state is conventionally described as the Roman Republic.
Roman law is the foundation of many legal systems of the world.
Roman law has its beginnings in the code known as the Twelve Tables. The Law of the Twelve Tables (Lex Duodecim Tabularum, more informally simply Duodecim Tabulae) were the ancient legislation that stood at the foundation of Roman law. The Law of the Twelve Tables formed the centrepiece of the constitution of the Roman Republic and the core of the mos maiorum. The Twelve Tables must be carefully distinguished from the unrelated, much older "twelve shields" of King Numa Pompilius.
From there, Roman law became highly advanced for its time, developing, over the centuries, many of the legal institutions that are taken for granted today.
The Common law was originally based on Roman law, before it developed into a tradition of its own in England from where it expanded to the United Kingdom apart from Scotland , to the United States apart from Louisiana
By contrast, so-called Civil law systems are more directly based on Roman law; the legal systems of most countries in continental Europe and South America fall into this category, frequently through the Napoleonic Code . These are sometimes called Latin systems (or "operating jure latino").
Roman law also developed the concepts of one law for the citizens and another law for foreigners – the beginnings of private international law
The Emperor Justinian arranged for the re-organisation of most of Roman law in his Codex and his Pandectae, a fifty book set which took three years to compile and was completed in 533 . It was intended as an overview of Roman law for legal students and consisted of just four books. Justinian's work was completed by Pandectae (or Digesto), Institutiones and Codex are part of the Corpus Juris Civilis . This has been called the most influential law work ever written as it has been on the reading list for legal students in countries using Civil law for nearly 1500 years so far.
This is an attempted alphabetical List of Roman laws.
Roman laws
Lex Acilia de intercalando (191 BC ) adjustment of the calendar
Lex Acilia repetundarum (123 BC ) repetundae procedures
Lex Acilia Calpurnia (67 BC ) - permanent exclusion from office in cases of electoral corruption
Lex Aebutia de magistratibus extraordinariis (154 BC )- proposer of extra-ordinary magistracy cannot hold it
Lex Aebutia de formulis
Lex Aelia et Fufia (c. 150 BC )- two laws probably regulating auspices
Lex Aelia Sentia (4 AD) - manumission of slaves
Lex Aemilia - distribution of freedmen among tribes
Lex Antonia de Termessibus - alliance with Termessus
Leges Antoniae - measures of Marcus Antonius against dictatorship etc
Lex Appuleia - measures of Saturninus, 103 BC and 100 BC
Lex Aternia-Tarpeia (454 BC ) - maximum fines
Lex Atinia (149 BC ) – Tribunes of the plebs automatically promoted to the senate
Lex Aufeia - settlement of Asia c. 124 BC
Lex Aurelia de tribunicia potestate (75 BC )
Lex Aurelia iudiciaria (70 BC . )
Lex Baebia - number of praetors
Lex Calpurnia (149 BC ) – Establishes a permanent extortion court
Lex Canuleia (149 BC ) – Allows patricians and plebeians to intermarry
Lex Cassia (137 BC ) – Introduces secret votes in court jury decisions
Lex Claudia (218 BC ) – Prohibits senators from participating in overseas trade
Lex Domitia de sacerdotis (104 BC ) – Establishes election of pontifex maximus until then chosen by the college of priests
Lex Gabinia (139 BC ) – Introduces secret votes in election for magistrate offices
Lex Genucia (342 BC ) – No man can hold the same office before 10 years have elapsed from the first election
Lex Hieronica (240 BC) – Taxation of Sicily
Lex Hortensia (287 BC) – Plebiscites approved by the Assembly of the People gain the status of law
Lex Icilia (454 BC) – Gave land to plebeians
Lex Julia (90 BC) – Granted citizenship to Roman allies
Leges Juliae (18 BC) – Regarding marriage
Lex Julia de Repetundis (59 BC) – Regarding extortion in the provinces
Lex Junia Norbana (17 BC) – Regarding status of freedmen
Leges Liciniae Sextiae (367 BC) – Regarding the rights of the plebs
Lex Manilia (66 BC) – Pompey's actions against Mithridates
Lex Ogulnia (300 BC) – The priesthoods are open to plebeians
Lex Oppia (215 BC) – Limited female adornment
Lex Ovinia (318 BC) – Allowed ex-magistrates to become Senators
Lex Papia Poppaea (AD 9) – Regarding marriage
Lex Plautia Papiria (89 BC) – Granted citizenship to Roman allies
Lex Poetilia (313 BC) – Regarding debt-slavery
Lex Pompeia (89 BC) – Regarding citizenship rights in Gaul
Leges provinciae (146 BC) – a set of laws designed to regulate and organize the administration of Roman provinces
Lex Publilia (339 BC) – Restricted patrum auctoritas
Lex Rubria (122 BC) – Authorized a colony on the ruins of Carthage
Leges Semproniae agrariae (133 BC) – Set of laws issued by Tiberius Gracchus to redistribute land among the poor; repealed after his assassination
Lex Titia (43 BC) – Gives Octavianus, Marcus Antonius and Lepidus full powers to defeat the assassins of Julius Caesar; legalizes the second triumvirate
Lex Trebonia (55 BC) – Organization of the provinces
Lex Valeria Cornelia (AD 5) – Regarding voting in the Comitia Centuriata
Leges Valeria Horatiae (449 BC) – Regarding the rights of the plebs
Lex Villia annalis (180 BC) – Established minimum ages for the cursus honorum offices; determined an interval of two years between offices
Lex Voconia (169 BC) – Women no longer can be the main heir to a dead man estate, including cases were there are no male relative alive
General denominations
Lex agraria – A law regulating distribution of public lands
Lex annalis - qualifications for magistracies
Lex frumentaria – A law regulating price of grain
Lex sumptuaria – A law regulating the use of luxury items and public manifestations of wealth
Special laws
Senatus consultum – A Senate decree
Senatus consultum de re publica defenda (see note 1) – Literally Senate decree for the defence of the Republic. Issued by the senate in cases of extreme peril for the republic, usually to deal with internal political violence. The first decree was issued in 121 BC, due to riots provoked by Gaius Gracchus.
Twelve Tables – The first set of Roman laws published by the Decemviri in 451 BC, which would be the starting point of the elaborate Roman constitution. The twelve tables covered issues of civil, criminal and military law. Every Roman that went to school was supposed to know them by heart.
Notes
Note 1 – The word Republic derives from the Latin res publica (literally, public thing). The Romans often wrote the two words as one, respublica and inflected both words.
History of the common law
The common law originally developed under the auspices of the adversarial system in historical England from judicial decisions that were based in tradition, custom and precedent.
The word tradition can refer to:
1. The art of memorizing and preserving a story from generation to generation without the need for a writing system. Tools to aid this process include rhyme and alliteration. The stories thus preserved are also referred to as tradition, or as part of an oral tradition
2. Procedures that are repeated in the same way, generation after generation, year after year. For example, it is now a tradition to have a Christmas tree to celebrate Christmas.
The word Custom can refer to:
A common practice among people, especially depending on country, culture, time and religion.
The difference between custom and culture is subtle, yet customs generally emphasizes practices while cultures rather focus on ideas.
The word Precedent can refer to:
The principle in law of using the past in order to assist in current interpretation and decision-making. Precedent can be of two types. Binding or mandatory precedent is a precedent under the doctrine of stare decisis that a court must consider when deciding a case. Advisory precedent are cases which a court may use but is not required to use to decide its cases. In general, binding precedent involves decisions made by a higher court in a common law jurisdiction.
The form of reasoning used in common law is known as casuistry or case-based reasoning. Casuistry is any attempt to determine the correct response to a moral problem, often a moral dilemma, by drawing conclusions based on parallels with agreed responses to pure cases, also called paradigms. Another common everyday meaning is "complex reasoning to justify moral laxity."
Casuistry is a branch of applied ethics. It is the standard form of reasoning applied in common law. Casuistry takes a relentlessly practical approach to morality. Rather than applying theories, it examines cases. By drawing parallels between paradigms, so called "pure cases," and the case at hand, a casuist tries to determine the correct response (not merely an evaluation) to a particular case.
Case-based reasoning (CBR), broadly construed, is the process of solving new problems based on the solutions of similar past problems. An auto mechanic who fixes an engine by recalling another car that exhibited similar symptoms is using case-based reasoning. A lawyer who advocates a particular outcome in a trial based on legal precedents or a judge who creates case law is using case-based reasoning. So, too, an engineer copying working elements of nature (practicing biomimicry), is treating nature as a database of solutions to problems.
Common law may be unwritten or written in statutes or codes.
The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts including both intentional torts and torts caused by negligence and as developing the body of law recognizing and regulating contracts. Today common law is generally thought of as applying only to civil disputes; originally it encompassed the criminal law before criminal codes were adopted in most common law jurisdictions . The term jurisdiction has more than one meaning. Jurisdiction is the power of a court to hear and decide a case before it.
In most common law systems, jurisdiction is conceptually divided between jurisdiction over the subject matter of a case and jurisdiction over the person of the litigants. (See personal jurisdiction.) Sometimes a court may exercise jurisdiction over property located within the perimeter of its powers without regard to personal jurisdiction over the litigants; this is called jurisdiction in rem.
The type of procedure practiced in common law courts is known as the adversarial system. The adversarial system (or adversary system) of law is the system of law, generally adopted in common law countries, that relies on the skill of the different advocates representing their party's positions and not on some neutral party, usually the judge, trying to ascertain the truth of the case. The inquisitorial system that is usually found on the continent of Europe among civil law. This adversarial system is also a development of the common law.
English citizens were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a caldron of boiling water or some other "test" of veracity. If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.
In 1154 , Henry II became known from the 12th century as the Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate reliably criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems.
Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously, with Thomas Becket, the archbishop of Canterbury. Things were resolved eventually, at least for a time, in Henry's favor when a group of his henchmen murdered Becket. For its part, the Church soon canonized Becket as a saint.
As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that Equity should prevail. A famous example is the fictional case of Jarndyce v Jarndyce in Bleak House, by Charles Dickens.
In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict. In the United States, parallel systems of law (providing money damages) and equity (fashioning a remedy to fit the situation) survived well into the 20th century in most juridictions: In the federal courts there is no separation between law and equity; Delaware still has separate courts of law and equity, and in many states there are separate divisions for law and equity within one court.
Common law legal systems
The common law constitutes the basis of the legal systems of: the United Kingdom (except Scotland),the Republic of Ireland, the United States (except Louisiana and Puerto Rico), Canada (except Quebec), Australia, New Zealand, South Africa, India, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries. Basically, every country which has been colonised at some time by Britain except those British colonies that were taken over from other Empires, such as Quebec (following French law to some extent) and South Africa (following Roman Dutch law to some extent) where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law.
The main alternative to the common law system is the civil law system, which is used in Continental Europe, Quebec, Louisiana, the former Soviet bloc, and most of the rest of the world. Scotland is often said to use the civil law but in fact it has a unique system which combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with a influence of common law after the unification with England in 1707.
The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case Li v. Yellow Cab Co., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)
New York State, which also has a civil law history from its Dutch colonial days, also began a codification of its laws in the 19th century. The only part of this codification process that was considered complete is known as the Field Code appling to civil procedure. The original colony of New Netherlands was settled by the Dutch and the law was also Dutch. When the British captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherlands -- as a punishment unique in the history of the British Empire -- they forced the English common law upon all the colonists, including the Dutch. This was problematic as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century. The influence of Roman, Dutch law continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.
Basic principles of common law
Statutes which reflect English common law are understood to always be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing case law and custom. This can readily seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many US states. Codification is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practiced in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practiced in England only after that date.
By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the damages or compensation available are limited to those outlined in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly -- that is, limited to their precise terms -- because the courts generally recognize the legistature as being supreme in deciding the reach of judge made law unless such statute should violate some "second order" constitutional law provision (compare judicial activism).
Where a tort is grounded in common law, then all damages traditionally recognized historically for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement, and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death. An old saying (in US states with no or low wrongful death damages) was: "It is better to back up and over the person to ensure his death and limit your legal liability!"
Works on the common law
The definitive historical treatise on the common law is Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765 - 1769. Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and stautory English law. The U.S. Supreme Court judge Oliver Wendell Holmes Jr. also published a short volume called The Common Law which remains a classic in the field. In the United States, the Corpus Juris Secundum is a compendium of the common law and its variations throughout the various state jurisdictions
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Edited by - BatKol on 05 May 2004 19:33:23 |
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Caleb
Advanced Member
Philippines
209 Posts |
Posted - 05 May 2004 : 21:25:47
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Steven,
This is good stuff. Very helpful. The reality is that the common law has never been done away with or superceded by statutes, and all our liberties come from common law. So the challenge is simply how to access that today. Once you know it is there, and act accordingly, this has great power even in a statutory COURT.
The military conquest of the Civil War affected the corporate/statute government, but not the common law/Lawful Government or America. This is the key. Our common law liberties have never been changed, as they cannot be changed. But right now we are still struggling to prove to the statutory COURTS that we are not creatures of statute. And we are also left to wonder what became of our Courts of (common) Law that will protect the perfect law of liberty.
I have some answers to the above which I will share later, and we are learning more as we struggle to free ourselves from the clutches of the beast. Twice in two months now I have stood in COURT and watched a JUDGE fail to gain jurisdiction over the living soul standing in front of him. In both cases another hearing was scheduled to try and achieve what that one had failed to do. So it was a half-victory, not a full one. The newspaper said I was "remanded on bail", but the JUDGE did not invite me to the next hearing by summons or bail or any other way. He could schedule another hearing but could not invite the living soul in front of him to it.
You would be amazed at how polite and well-behaved JUDGES are in these circumstances. Of course, we were behaving diplomatically, so he was simply responding in kind.
"Of the increase of His government and peace there shall be no end"
Isaiah 9:7 |
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Robert-James
Advanced Member
uSA
353 Posts |
Posted - 08 May 2004 : 18:29:02
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Greetings,
the Law is already written on our heart's. Psalm 40:8.
The problem is how to access this "holy of Holies" Law.
The physical body is the outer court. The inner court is the soul. The "holy of Holies" is the Spirit [man].
And the veil was rent.
Or, as some say, the circumcision of the heart.
We have not been this Way...before.
Jurisdiction is... law speak.
Whose [l]Law do we speak? |
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BatKol
Advanced Member
USA
735 Posts |
Posted - 09 May 2004 : 08:01:35
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Thanks Caleb,
I will continue to study the information and look forward to reading the other items you will be sharing soon. There might be a place that both our ideas meet in the middle and both be valid. Mine being that until we get Moshiach and a Deut 17 Israelite World Order we have what we have, and you saying what we have now is the common Law IF one knows how to access it. David Merrill has some thoughts on this as do others.
I am enjoying this. Thanks for having the discussion with me.
Hope this post finds you and yours doing well.
Peace,
Steve
"I am YHWH, and there is no other; apart from me there is no Elohim."
(Isa 45:5, Deut 4:35 1 King 8:60, Isa 45:18, Isa 45:14, Isa 46:9) |
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People get the Government they deserve
