Our American Common Law

by Howard Fisher and Dale Pond

来自：http://www.svpvril.com/OACL.html



Common Law is a real thing. It is a real system of laws derived from centuries of work, study and sacrifice of millions of people. It is not trivial and inconsequential as some would have you think. It is the Common Law that is most represented within Our Constitution, Declaration of Independence and Our Bill of Rights. These documents were designed to limit and eliminate the vicious Equity, Maritime or Admiralty Law which was what we revolted against as Our Revolution against the totalitarianism of England.

Did you know the Anglo-American system (Our system) of jurisprudence is the only one which developed out of what is called the Common Law, that is, the general law of private property known in the British Isles? It is true - Common Law was designed through the centuries to secure the rights of individuals (you and me) to property and to make it difficult for property to be taken away from us by a government or governmental structure (bureaucracy) without due process of law. The Common Law was expounded over the years in hundreds of thousands of case decisions as a result of trials in which the Common Law jury acted as the Judges, and in which they exercised the authority to hear and decide questions of both Law and fact. Common Law deals with legal relationships, powers and liabilities, and types of actions rather than theoretical definitions of abstract legal concepts. The Common Law was recognized by Our Founding Fathers and is the basis of all law in America today.

The Common Law recognizes the Power of Government lies in the common people and not in an elite group of power brokers. It is the terrible Equity, Maritime or Admiralty Laws (laws of contract) that steals this power from the people and centralizes it into the hands of a few power oriented men. The Common Law deals in real property whereas the Equity Laws deal in written abstractions of performance (agreements or contracts). In other words, Masters own their own property, work and destiny. We are all Masters when we truly own our own property. Slaves do not own property, they usually rent property of another and are compelled to perform upon or with that rented (tenured) property according to some agreement or contract.

It is from such controversies involving property that all of our Rights have come. Property is known as Substance at the Common Law, and includes hard Money in the form of gold and silver coin as required by Our federal Constitution and every other State Constitution as they were all drafted to be in perfect harmony one with another.

Controversies involving these matters carry with them a Law jurisdiction, a jurisdiction in which all of our Rights are found. The Judge in a Court of Common Law is an impartial referee of the dispute, and he is bound to protect the Rights of the parties to the dispute, or he will have lost whatever jurisdiction he may have had, or claimed to have had. It is the Jury who decides whether or not the Facts of the case are valid and they also decide the Law - does it apply? Is it correct for this case?, etc. Only judges acting under equity law can decide law...

You know you are in an Equity/Admiralty Court when an American flag is displayed that has a GOLD trim. The gold trim denotes military jurisdiction and not Common Law or Constitutional jurisdiction. Wherever this flag is flown the Constitution is NOT. To see the civilian flag click here.

Gold and silver Coin are the only Things recognized at Law (within our Constitution) to be real and lawful money. Money is Substance in possession and not a Chose (thing) in action. When a debt is paid, at Law, the debt is extinguished; debt no longer exists; the debt is paid. Debt can only be paid with gold and silver Coin, or certificates redeemable on demand, at par, in gold and silver Coins. This is the legal meaning of the expression "tender in payment of debt", as found in Article I, Section 10 of the Constitution of the United States. Federal Reserve Notes are not money - they are bills/notes and/or certificates of indebtedness as each and every one of them are owed back to the Federal Reserve Bank who lent them to Us - plus interest.

Thomas Jefferson placed great emphasis on the concept of Rights. He said we did not bring the English Common Law, as such, to this continent; we brought the Rights of Man as evidenced through and by the tried and true ancient system of Common Law.

The Common Law of the States of the United States is the Common Law of England adopted by the original Constitution of the United States, so far as not modified by any alterations made by the Constitution of the State at the time of admission to the Union, and so far as not in direct conflict with the Constitution of the United States of America.

And the Common Law of the States may not be modified, limited nor abrogated either by an act of the legislature (Congress or State Legislature) or by a ruling of some judge or by any county board of commissioners or any other servant to the people. Federal and state bureaucracies are constantly writing and presenting code, rules or statutes in an attempt to circumvent the original Common Law foundation of Our Constitution. A major part of the problem that we are in is a result of these unlawful attempts by legislatures, judges and bureaucracies to modify or abrogate Common Law and thus Our Constitution.

While, in England, this Law was derived from feudal tenures in real property as held by a pyramid of proprietors (land owners) holding their rights given them from the King (or Crown) on down the line. The American Revolution destroyed any and all allegiance to the British Crown, including the rights of property in land, and all feudal tenures and dues were overthrown. All Rights of property in land in the United States became ALLODIAL TITLES in Allodial Freehold, existing under no lord or overlord whatsoever, including the authority of the Colony or State. The ties that bound property use or ownership to a higher or superior power were entirely and completed severed, destroyed and made as though they never existed.

This is the reason why our founding fathers considered that they had made every man a "King" on his own property. They got rid of the controls from the King and 'castle keep' owners (feudalism) within property ownership.

In England, William Pitt summarized the concept of private property under Common Law, as follows:

'The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter; but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement. "

As a result of all of this, the Common Law of the States is founded and grounded upon substantive titles in real property. No mere legislative enactment by Congress or State Legislature nor judicial ruling by Federal or State Courts can operate to deprive the People of their Rights at Law. This includes their Rights inherent in their Allodial Land Titles and to be Merchants and/or Traders at Law on the cash basis, and their Rights to access to Courts of Law and to a jurisdiction where their Rights are protected.

In the same vein no county or city ordinance, code, rule, policy, regulation or 'law' can override these same absolute guarantees. The same applies to corporate or private policies of business conduct which are often used to override Common Law or Constitutional guarantees. In other words, business or corporate policy cannot supersede Constitution Rights even though nearly every corporation in America ignores Our Constitution in pursuit of ever more bogus Federal Reserve Notes.

As contrasted with the Common Law of England, the system of law as practiced on the Continent of Europe (European Common Market) is called Civil Law, or Roman Civil Law, which is derived from the Law of the Ecclesiastical Chancellors. This is partly the ancient Law of Rhodes, the law of merchant traders upon commercial documents. The Civil Law is prosecuted by the Chancellor (the King's agent); he is not an impartial referee of the dispute.

This Civil Law of Roman origin has never been part of the Laws of England and has been declared not of the Laws of the Realm by the Parliament and by many experts of England in jurisprudence, such as Coke, Blackstone and Sir John Fortescue.

"The Common Law is absolutely distinguished from the Roman or Civil Law systems. "
People v Ballard
155 NYS 2d 59

The Roman Civil Law has always been outside of Common Law, operating on SUMMARY PROCESS, in gross violation of our RIGHTS TO DUE PROCESS.

As English society developed over the years, situations were met in the Common Law for which the Courts could provide no relief by any precedent. The controversies did not involve property, or substance. The parties thus had no other recourse than to go to the King. And when they did, he delegated his first minister to solve these problems. The minister was called a Chancellor (the same title as used on the Continent) and the relief granted was called Equity. This "Equity" meant what would be fair if the Common Law principle were extended and applied to the case at hand, as the Chancellor, in his sole discretionary judgment, chose to do. This is the so- called "law" we see being applied by "Judge" Wapner in the well known fake TV court program. He alone decides the law and facts of each case.

There thus developed in England and America two distinct systems of law and courts, each having a peculiar and particular application and jurisdiction. Equity is a jurisdiction in which the individual does not have any Rights, and one to which the individual can be subjected only if he volunteers or gives his informed consent. In the Common Law we have recognized inherent rights whereas in the Equity Law we have no rights whatsoever except those which may be bestowed upon us by the graces of the chancellor -(judge) wholly at his sole discretion.

In Equity there are no jury trials. The powers of the Common Law jury to hear and decide questions of both Law and Fact are exercised exclusively by the Chancellor. However, there may be "advisory juries" to advise the Chancellor of certain facts, but they are not permitted to hear any arguments regarding the Law. (Does this sound familiar today?) The controversies are decided by the Chancellor, who, besides being the Chief Prosecutor, (or Inquisitor, if you will), can go to any source he chooses, even to his own "conscience", to prove or justify his decision. In Equity, the parties do not have any Rights; the Constitution is stated by the Chancellor to be "frivolous"; and any so-called "rights" in his Court are actually "privileges" granted by the Chancellor, which he can also take away. Today this all powerful person is not called a Chancellor. She/He is called a Judge and she/he operates in all levels of "courts" throughout Our Land.

During the past century, the Congress of the United States and the Legislatures of the several States, as well as the Judges have presumed to exercise the authority to "merge" the procedures of Law and Equity. This is authority they do not have, yet this, too, is part of the problem we face today all over Our Land.

When we realize that a Court of Common Law proceeds "according to the course of the Common Law ", and that the parties have a Right to trial by a Common Law jury, where the jury exercises the authority to hear and decide questions of both Law and Fact, we can then know that if we are in a Court where the procedures have been "merged" with Equity, then we can know that we are not in a Court of Common Law ! Such a court does not recognize and refuses, to We The People, our Constitutional Rights to self and property.

For instance, the Constitution of the State of Iowa, Article V, Section 6, states, in part, as follows:

"The District Court shall be a court of law and equity, which shall be distinct and separate jurisdictions, . . . ."

Obviously, the two court systems have not been lawfully merged, and We The People do not have to accept the idea that they have been merged simply because a 'judge" or bureaucrat says a code, rule, statute or regulation makes it so. Remember that these lesser rules and regulations MUST be in harmony with the State and federal Constitutions in order to be valid and lawful. Otherwise they are null and void.

We must realize that the principles of Common Law and of Equity are those as distinguished and defined in England, before the adoption of the Constitution of the United States of America. Any modifications in definition or practice of either Law or Equity in England since the adoption of the Constitution of the United States of America have no significance, bearing or authority in the United States, since we are no longer under the jurisdiction of either Parliament or the Judges of England. Yet there are those in this country who claim that Equity jurisdiction (otherwise known as Chancery jurisdiction) in this country is the same in nature and extent as Equity jurisdiction in England!

Where the Constitution of the United States of America, or the Constitution of the State of Iowa, or of any State, mentions "law", it means "Common Law"; it does not mean any other "kind" of law! ! In addition to the above mentioned jurisdictions of Law (meaning Common Law ) and Equity, which are the only Judicial jurisdictions authorized either by the Constitution of the United States of America, or by the Constitution of the State of Iowa, or of any State, as drafted in conformance thereto, and being second thereto, there is also a private, political jurisdiction which is operative only on those who volunteer into it's private domain, outside of the Constitution. It is known as Law Merchant (lex mercatoria) the private rule of the bankers and merchants.

It is this system of 'legal' snares that has all of We The People by the throat...."

Law Merchant is neither Law nor Equity, but is only raw, private, political power, alien and illegal to our Constitution whatsoever, and operates outside of the Constitution .

The Law Merchant is an independent, parallel system of law, like Equity or Admiralty. The Law Merchant is not even a modification of the Common Law; it occupies a field over which the Common Law does not and never did extend. Common Law deals with the Money of Substance belonging to the People (Gold and Silver Coins); while the Law Merchant deals with the law of Bills, Notes and Checks, (in other words, with negotiable instruments and commercial paper). The Law Merchant is closely allied to the Equity system of agreements and contracts which it uses extensively because the Constitutions of Our States recognizes Equity law. Equity Law is the 'back door' used by Law Merchants (bankers, etc.) to gain access to what used to be Allodial Title or absolute ownership previously enjoyed by all Americans.

Our Declaration of Independence charges that America had been progressively subjected to "a jurisdiction foreign to our Constitution" (meaning the unwritten English Constitution), This foreign jurisdiction was a jurisdiction of lawless ad hoc equity derived out of the Roman Civil Law under the stark cover of such obscenities as the Writs of Assistance (which our Courts of today also claim to have the authority to issue) which allowed summary plundering of the colonists' wealth and substance TO THE ADVANTAGE OF the East India Company which controlled the Parliament. (As today, it allows the summary plundering of the American citizens' wealth and substance TO THE ADVANTAGE OF the banks and other financial (lending, insurance, etc.) institutions which control the Congress and State legislatures). It has been recognized and stated for over one hundred years that "we have the best Congress that money can buy" ! !

These Writs, even as only one wrong perpetrated by the commercial interests in the Parliament, were given authority by an Equitable jurisdiction called a debt action in assumpsit. This action, which gave satisfaction pursuant to the customs of the Law Merchant, (having been voluntarily entered into), had been an old debt action triable in a Court of Common Law (merely as a courtesy of the Common Law Courts, and not inherently a part of Common Law) (and triable by a Common Law Jury, as a protection to the Defendant), until lord Mansfield, Chief Justice of the Kings Bench, in 1760, arbitrarily and on his own authority, denied trial by jury in debt actions in assumpsit AND REMOVED THAT ACTION FROM THE Courts of Common Law into the Courts of Equity, where a trial by jury could not be had, and where there was merely a summary proceeding with no semblance of a "due process of Law". In other words, a merchant can, with a flick of his Pen, deprive anyone of their property without due process of Law (Common Law). Sound familiar?

This case is known as:

Moses y MacFerian
2 Burroughs 1005

and is the case that sparked the American Revolution and caused Thomas Jefferson to say that English law since that date (1760) should not ever be used over here as Equity/Merchant laws had become an instrument through which merchants could, from then on, assume power over anyone else's property solely at their discretion and whim.

It was this Equitable debt action in assumpsit which the Seventh Amendment of the Constitution of the United States was specifically meant to outlaw, by specifically providing that

"In suits at Common Law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved..."

The significance of this is pointed up by the fact that any controversy involving Money (Gold and Silver Coins) in an amount greater than twenty dollars, or any property such as real estate can only be tried in a Court of Common Law with the right of trial by jury who decides Law as well as the Facts of the case!

This means that any Mortgage Foreclosure action can be tried only in a Court of Common Law, and that the State Legislature has no Constitutional authority to provide, by statute (statutes are not real Law but are in reality 'color' of Law only and therefore are only binding on a voluntary or mutually agreed upon basis), that mortgage foreclosure actions shall be Equity actions! This means that Sheriff's Sales as a result of these Equitable Mortgage Foreclosure actions are null and void! ! And that the Sheriffs have participated in criminal confiscation of real property in violation of the Constitution and of their oaths of office! !

So, it can be seen that summary and arbitrary confiscation of income and property is nothing new in American tradition and history out of an illicit (meaning unlawful and unconstitutional) Equitable jurisdiction. It is precisely this Equitable jurisdiction wherein the Chancellor enforces the combination of unconstitutional Executive and Legislative Equity which is the jurisdiction foreign to our Constitution referred to in the Declaration of Independence. This is precisely what our American Revolution was all about and what our Bill of Rights was designed to prevent.

It is also a measure of the extent that the Bankers (both foreign and domestic) and other merchants, and their stooges, the lawyers and Judges, as well as the politicians of both major political parties, have betrayed the Public Trust and have attempted to place us in a Dictatorship of Unelected Rulers (being the "judges" and bureaucrats) ! !

Thus it can be seen that there is a direct similarity of our political/legal situation today with what it was in the years immediately preceding the Revolution of 1776. Only today we have a written Constitution that spells out our Rights and our freedoms, giving us precedents, whereas two hundred years ago they did not.

The Common Law Jury members (acting as judges of the Law) were sworn to "Do equal law, and execution of Right, to all the King's subjects, rich and poor, without having regard to any person" and that they will deny no man Common Right; but they were NOT sworn to obey or execute any statute of the King, or of the King and Parliament. Indeed, they are virtually sworn NOT to obey or execute any statutes that are against "Common Right", or contrary to the Common Law, or "Law of the Land"; but to certify the King thereof "... that is, to notify the King that his statutes are against the Common Law;.... and then proceed to execute the Common Law, notwithstanding such legislation to the contrary. The words of the oath on this point are these:

"That we deny no man Common Rights by (virtue of) the King's letters, nor none other mans', nor for none other cause; and in case any letters come to you contrary to the Law, (that is, the Common Law) that ye do nothing by such letters, but certify the King thereof, and proceed the execute the Law (that is, the Common Law), notwithstanding the same letters"

In Federalist Papers #48, Alexander Hamilton wrote in part, "No legislative act contrary to the Constitution can be valid." "The Constitution is, in fact, and must be regarded by judges as a fundamental law."

The Sheriff is also a servant of the People, elected and paid by and for Them; upon taking office he takes an oath to uphold the Constitution (the People's Law) and keep the peace.

In American Jurisprudence, on Sheriffs, Police and Constables, we find the following:

Origin of office: The office of sheriff is an ancient one, dating back to at least the time of Alfred, King of England, and the holder thereof has always been the chief executive officer and conservator of the peace in his shire or county. He is a county officer representing the executive or administrative power of the state within his county. In this country, the office is generally an elective one, and anciently in England, sheriffs were elected by freeholders of the county, although gradually, it became the custom for the Crown to appoint the Sheriff."

Abraham Lincoln stated the following on February 12, 1865:

"The people are the rightful masters of both Congress and the Courts. Not to overthrow the Constitution, but to overthrow the men who pervert the Constitution."

The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U. S. Constitution is the supreme Law of the Land, and any statute to be valid, must be in agreement. It is impossible for both the Constitution and a statute violating it to be valid. In such a dispute, one must prevail, and that is the Constitution .

In Volume 16, American Jurisprudence, 177, we find the following:

"The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

"Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it. . . .

A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.

No one is bound to obey an unconstitutional law and no courts are bound to enforce it. "

The Constitution guarantees the right of a freeholder to protect his property from Criminal Trespass.