Re: [tips_and_tricks] Re: common law v. statutory law
The statement: "Statutes in derogation of the common law must be strictly construed" appears--in similar fashion--in nearly all state laws or constitution. That should give you a hint that all these states are 'of the same origin'.
If you ask a judge or lawyer about the common law, you will get back this statement...or similar..."Mr ABC, understand that the common law was shrink-wrapped within the statutory law."
[Its true...that version of common law....]
Let's step back in time and examine how this all works.
Before 1776 it was well understood that the english common law was the heritage of an englishman. [That is an unwritten law] What other law existed was the King's law and the concept of equity. Post 1776 and really after the Treaty of Paris the King was removed and consequently his law was gone. So too gone was the ability to make law for another minus personal consent. So the english common law was the only law left. Thus picture this...what could those colonies that then became states...what ability did they have to make law for another? [Minus those who consent and those on territory of ownership.] After all...the elimination of the King wiped-off all their authority to make law...so gone was the colonial government and all that came later. [Now you know whey they embraced the constitution...eh?] So I now summarized the first law called the Declaration of Independence.
But.... how did we get some aspect of a common law acknowledged within written law? Understand all these so called states trace back the ORIGIN of all their power to the 4 organic laws. So...to find out what these states are....start there.
Look at the 3rd law, the Northwest Territory Ordinance. First examine the words of the ordinance: Be it ordained by the United States in Congress assembled..
Now mind you, this was just AFTER the King gave up his right to that territory. Doesn't the word ORDAINED sound a lot like a KING? Yep....the United States of America owned that territory or in the words of Mel Brooks, "Its good to be the King." So quickly they made law for it. Here are some words for people to memorize: Proprietary power is nearly without limitation. The United States of America--the confederacy--owned that territory so they exercised a PROPRIETARY POWER over that territory and made law for it. Now what was this ordinance other than WRITTEN LAW?
In that 3rd written law is mentioned ONE version of a common law but understand that the territory is under a proprietary power of the USA. "The inhabitants of the said territory shall always be entitled to the benefits of the writs of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law."
You can understand what they did. Notice that they are defining and ordaining ...are they not? The people post 1776 NOT on the proprietary territory enjoyed a lot of freedom. [No one ordained for them...] Those on the territory didn't....but so as not to awaken them too much, the USA offered them what I call "the cheesey substitute." They granted them enough stuff so as not to awaken them. [Sound familiar to the Bill of Rights?]
If you read the 3rd law carefully, you will find STATES formed within WHILE STILL UNDER a proprietary power. All the States you see today of a WRITTEN LAW fashion derive from this 3rd law. Now you know why they are all similar eh?
So I will summarize: (1) The Northwest Ordinance is WRITTEN LAW. Its a law for people that never existed in the 2 prior organic laws because there was no authority to make law because NO territory of a proprietary nature to the USA existed prior to the 3rd law. (2) Does not this WRITTEN 3rd LAW mention a common law? (3) So isn't this a SHRINK WRAP....just as the judge mentioned? In other words some version of an UNWRITTEN law within a WRITTEN law. (4) If a proprietary power is near limitless, then can't government define in its written law what is and isn't so? Does that not include some version of common law? [the cheesey substitute...] And state constitutions are simply written law subservient to all the organic laws.
So what do you have with ALL those court decisions that were mentioned about the common law? Aren't those courts government courts? Aren't those courts assumed operating over a territory? And where would they have POWER if everything is derived from a proprietary power over a territory of ownership?
At the time of the Northwest Ordinance it was HOPED no one "on the territory" would understand-well the Declaration of Independence. They could have declared their independence at any time. They might have had to fight....but the 1st law would have been on their side. That exists to this day.