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Re: [tips_and_tricks] Re: Common Law

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  • The Handyman
    As all may know Louisiana is a Civil Law state. But it was required to codify all of the principles of the common law into the Civil Code. This was a
    Message 1 of 5 , May 30, 2011
    
    As all may know Louisiana is a Civil Law state.  But it was required to codify all of the principles of the common law into the Civil Code.  This was a requirement imposed on Louisiana to become a state when purchased by the United States as all other states in the union were under the common law.  With respect to the opinions expressed I descent from what has been said because I met with a College Law Professor in 1986 and he emphatically stated that if an atomic bomb was to destroy all life on Louisiana and two humans arises from the ashes that the common law would arise with them. The common law cannot be created or destroyed by the legislature. If they don't recognize the common law they are in trouble but getting a remedy from the statutory  system will be a problem. In 1986 I helped opening the Common Law Court of the United States of America in Louisiana and issued a habeas corpus order which was dishonored by a state court.  However, on appeal one judge dissented and voted to honor the complaint. Attached are some documents that may be of interest?
    ----- Original Message -----
    From: Jake
    Sent: Monday, May 30, 2011 10:52 AM
    Subject: [tips_and_tricks] Re: Common Law

     

       > . . . you won't find any abrogation of the common law in any statute or
    book.

    Yes you will.  See e.g., Chapter 4 of the N.C. General Statutes & pay very 
    careful attention to the wording (emphasis added):



    § 4‑1.  Common law declared to be in force.
    All  such parts of the common law as were heretofore in force and use within
    this  State, or so much of the common law as is not destructive of, or repugnant
    to,  or inconsistent with, the freedom and independence of this State and
    the
    form  of government therein established
    , and which has not been otherwise
    provided  for in whole or in part, not abrogated, repealed, or become obsolete
    ,
    are  hereby declared to be in full force within this State.  (1715, c. 5, ss. 2, 
    3, P.R.; 1778, c. 133, P.R.;  R.C., c. 22; Code, s. 641; Rev., s. 932; C.S., s.
    970.)

    In simpler terms, for all practical purposes we've legislated the common law out of existence & now it's just a "catch basket" - if there is no state or federal statute which deals with a given issue we'll revert to the common law in THAT case, but if there is an applicable statute, we'll go by it.

    ~ ~ ~ 



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  • Michael
    ... Not one with a skilled interpretation of how legal statutes are written, I did not get the same simpler terms explanation from reading it. Seems like the
    Message 2 of 5 , May 30, 2011
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      --- In tips_and_tricks@yahoogroups.com, Jake <jake_28079@...> wrote:
      >
      > In simpler terms, for all practical purposes we've
      > legislated the common law out of existence & now
      > it's just a "catch basket" - if there is no state
      > or federal statute which deals with a given issue
      > we'll revert to the common law in THAT case, but
      > if there is an applicable statute, we'll go by it.


      Not one with a skilled interpretation of how legal
      statutes are written, I did not get the same "simpler
      terms" explanation from reading it.

      Seems like the statute is saying that those parts
      of the common law which are not destructive of or
      repugnant to the established form of government,
      and its statutes and rules are in force, as opposed
      to the other way around.

      Here is the Common Law Act for Illinois


      GENERAL PROVISIONS
      (5 ILCS 50/) Common Law Act.

      (5 ILCS 50/0.01) (from Ch. 1, par. 800)
      Sec. 0.01. Short title. This Act may be cited as the Common Law Act.
      (Source: P.A. 86‑1324.)


      (5 ILCS 50/1) (from Ch. 1, par. 801)
      Sec. 1. That the common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply the defects of the common law, prior to the fourth year of James the First, excepting the second section of the sixth chapter of 43d Elizabeth, the eighth chapter of 13th Elizabeth, and ninth chapter of 37th Henry Eighth, and which are of a general nature and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.
      (Source: R.S. 1874, p. 269.)
    • Jake
      Been REAL busy, but going thru unread e-mail, I wanted to comment on a couple responses to my posting of N.C. Gen. Stat. Chap. 4, entitled Common Law , which
      Message 3 of 5 , Jul 4, 2011
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        Been REAL busy, but going thru unread e-mail, I wanted to comment on a couple responses to my posting of N.C. Gen. Stat. Chap. 4, entitled "Common Law", which states that,

        "All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State."

        My point being that a careful reading reveals the common law ONLY applies in NC if there is no statute (state or federal) which already covers the given situation - that the common law has been "legislated out of existence."

        Michael responded: "Seems like the statute is saying that those parts of the common law which are not destructive of or repugnant to the established form of government, and its statutes and rules are in force, as opposed to the other way around."

        But you have to remember that the common law existed in NC (all 13 original States) BEFORE statutes were written by the legislature & 200+ years of statutes have virtually REPLACED the common law in NC (most everywhere else in the US too).

        Bear responded in his post "N. Carolina Common Law same as Colorado's" with 3 court decisions, including Biddix v. Henredon Furniture Industries, 76 N.C.App. 30, 331 S.E.2d 717 (1985), ". . . if our state legislature has expressed its intent to supplant the common law with exclusive statutory remedies, then common law actions, such as wrongful discharge, will be precluded."

        The NC court of appeals chose the word "supplant" (the common law) while I chose "replaced" but the end result is the same & since I've lived in NC for 20 years I can say that "replaced" is correct, except in circumstances where there is no statute (state or federal) which covers the given situation.  Then & only then do the courts go back to the common law - which was in force when NC was still a British Colony.

        ~ ~ ~
      • Michael
        Monday Independence Day 2011 All one can do is read thier own state rules and plan accordingly. Illinois: 5 ILCS Act 50 Common Law Act 50/1 - The common
        Message 4 of 5 , Jul 4, 2011
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          Monday Independence Day 2011

          All one can do is read thier own state rules
          and plan accordingly.

          Illinois:

          5 ILCS Act 50 Common Law Act

          50/1 - The common law of England...shall be
          the rule of decision, and shall be considered
          as of full force until repealed by legislative
          authority.
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