Friday, February 6, 2009

Chapter 13
Common Law — Civil Law
"The Common Law is, in simple terms,
just plain common sense and
has its roots in the Ten Commandments."
— Jury Handbook

With this discussion we must be aware that all Christian civilized nations outside of the English-speaking nations, have a system of law that is based on the Roman civil law. That is a system of laws that has been long recognized in Europe and grew up from an absolute and centralized government. The type of mind that produces that sort of law is entirely different from the type of mind that exists in the freedom-loving English-speaking nations, and in particular, the United States of America.

Property, and the right to possess it, is the sole purpose of earthly laws. Property is not just a tangible thing only, such as land. Property, as represented in the 5th. Article of Amendments, also included the rights and actions a person can exercise. So when we speak of the right to property, we are speaking not only of the right to hold tangible or physical substance but the right to exercise our free agency or liberty. The following definition helps point out this fact:

"PROPERTY. The right and interest which a man has in lands and chattels to the exclusion of others. . . The sole and despotic dominion which one man claims and exercises over the external things of the world in total exclusion of the right of any other individual in the universe.
"As ordinarily used it means the things possessed, but it may include the right to use and enjoy it. The more comprehensive meaning is presumed to have been intended by the use of such a word in a constitution. . . . A vested right of action is property in the same sense that tangible things are property.
"Property, in the strict legal sense, is an aggregate of rights which are guaranteed and protected by the government, and in the ordinary sense, indicates the thing itself, rather than the rights attached to it. The term ‘property’ embraces every species of valuable right and interest. . . .
"In a strict legal sense, land is not property, but the subject of property. The term property, although in common parlance applied to a tract of land or a chattel, in its legal signification means only the right of the owner in relation to it. It denotes a right over a determinate thing. Property is the right of any person to possess, use, enjoy, and dispose of a thing." (Bouvier's, p. 2750.)

Common Law
With this short understanding of property, let’s get into a brief discussion on the type of law our forefathers intended that this nation should be under: that of "common law." Webster defines common law to be "The unwritten law of a country based on custom, usage, and the decisions of law courts, as contrasted with statute law." In The Making of America, Dr. W.Cleon Skousen says, "The Common law jury not only had power to ‘determine the facts,’ but it also had authority to ‘determine the law.’ It could determine what the law meant and whether or not the jury considered it constitutional. The jury could even ignore the law if it felt it would cause an injustice if applied to the case at hand." (The Making of America, p. 614.)

From Bouvier, we find the following definition as it pertains to this subject of common law mentioned in the 7th Article of Amendments:

"COMMON LAW. That system of law or form of the science of jurisprudence which has prevailed in England and in the United States of America, in contradistinction to other great systems, such as the roman or civil law.
"Those principles, usages, and rules of action applicable to the government and security of persons and of property, which do not rest for their authority upon any express and positive declaration of the will of the legislature.
"The law of any country, to denote that which is common to the whole country, in contradistinction to laws and customs of local application." (Bouvier's, p. 564.)

Law of Equity
Article III, Section 2, Clause 1, of the Constitution states, "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution. . . ." The law of equity is part of common law and, as can be seen below, can be very flexible and equitable, although it is easily encumbered:

"EQUITY. A branch of remedial justice by and through which relief is afforded to suitors in the courts of equity. In the broad sense in which this term is sometimes used it signifies natural justice. . . . In a more limited application, it denotes equal justice between contending parties. . . . One division of courts is into courts of law and courts of equity.
"The difference between the remedial justice of the courts of common law. . . . That administered by the courts of law is limited by the principles of the common law (which are to a great extent positive and inflexible), and especially by the nature and character of the process and pleadings, and of the judgments which those courts can render. . . . It is not uncommon, also, for cases to fall in those courts, from the fact that too few or too many persons have been joined as parties, or because the pleadings have not been framed with sufficient technical precision.
"The remedial process of the courts of equity, on the other hand, admits, and, generally, requires, that all persons having an interest shall be made parties, and makes a large allowance for amendments by summoning and discharging parties after the commencement of the suit. The pleadings are usually framed so as to present to the consideration of the court the whole case, with its possible legal rights, and all its equities, — that is, all the grounds upon which the suitor is or is not entitled to relief upon the principles of equity. . . . Its final process is varied so as to enable the courts to do that equitable justice between the parties which the case demands. . . ." (Ibid, p. 1059.)

Admiralty-Maritime Jurisdiction
Once again from Article III, Section 2, Clause 1, we read, "The judicial Powers shall extend to all Cases . . . of admiralty and maritime Jurisdiction." Admiralty-maritime is, however, not common law even though it is mentioned in the Constitution. Let us briefly explore this subject.

After the fall of the Western empire of Rome it became necessary that some tribunal should be established that could hear and decide cases that came out of maritime commerce, or commerce upon the seas. Eventually, jurisdiction in most maritime states was transferred to a court of admiralty. This court had jurisdiction of all affairs transacted at sea, including prize. Because the captain of a ship was totally responsible with the goods and delivery of his mission, he possessed total control and law in regard to his ship and duty. In consequence of this, jurisdiction of all controversies of a private character that grew out of maritime employment and commerce were added. As nations grew more commercial in nature, this became their most important jurisdiction.

From the maritime laws and courts of admiralty we have our current-day contractual agreements. These contractual agreements put the participants in a different court jurisdiction than common-law courts. Among them are insurance agreements. The captain of a ship would contract with a merchant to deliver goods. Due to the often high risks at sea, from such things as adverse weather conditions, piracy, wars, etc., he would also contract for the merchant to insure the ship, cargo, life, and things pertaining to his assignment.

"ADMIRALTY. A court which has a very extensive jurisdiction of maritime cases, civil and criminal.
"This ordnance (Code de Commerce, 1681) describes the jurisdiction of the admiralty courts as embracing all maritime contracts and torts arising from the building, equipment, and repairing of vessels, their manning and victualling, the government of their crews and their employment . . . and from . . . insurance. This was the general jurisdiction of the admiralty; it took all the consular jurisdiction which was strictly of a maritime nature." (Ibid, p. 139.)

"MARITIME. Pertaining to navigation or commercial intercourse upon the seas, great lakes, and rivers.
"The word ‘maritime’ is also to have its appropriate meaning relating to the sea. The words ‘admiralty’ and ‘maritime,’ as they are used in the constitution and acts of congress, are by no means synonymous. . . . They were evidently both inserted to preclude a narrower construction which might be given to either word, had it been used alone. The English admiralty had jurisdiction of all cases arising beyond sea, although not maritime in their character. These are excluded by the use of both terms." (Ibid., p. 2091.)

It was this problem with Kings George, III, — the admiralty and maritime jurisdiction he kept trying to impose on the colonists — along with his burdensome taxes and other oppressive measures, that brought about the Revolutionary War. We kicked King George and his laws of admiralty and maritime jurisdiction off our land. However, we have brought it back onto the land with our contracts and we have set ourselves outside the protection of the Constitution. It is as though we have dishonored our forefathers’ true intent. Have they shed their blood in vain?

Our Flag Is Now a Civil Law Flag
The flag of this nation was a Common Law flag with no gold fringe. The President of the United States, however, can designate a deviation from the regular flag, by executive order. In 1959, this was done. (4 U.S.C. Chapter 1, Section 1, 2, and 3; Executive Order No. 10834, August 21, 1959 F.R. 6865.) Now, our flag is a military flag. It resembles the regular flag of the United States, except that it has a gold-fringed border on three sides. (Pursuant to 4 U.S.C., Chapter 1, Section 1, 2, and 3; Executive Order No. 10834, August 21, 1959, 24 F.R. 6865.)

Such a military flag results in "jurisdictional" implication when flown. It represents admiralty jurisdiction, maritime law, and respective authority and powers; this is the jurisdiction and laws of contractual agreements and servitude.

A flag with a gold fringe around it is a Civil-Law flag and not a Common-Law flag. Those who accept it accept the Civil Law and contractual jurisdiction and wave their rights to Common-Law proceedings. When we pledge allegiance to a flag with gold fringe, we are pledging allegiance to Civil Law and not the Common Law of our forefathers. It is certainly not the "Title of Liberty" spoken of by Captain Moroni. Here is what Bouvier has to say about the implication in jurisdiction in regard to flags:
"Under what is called international law "the law of the flag," a shipowner who sends his vessel into a foreign port gives notice by his flag to all who enter into contracts with the shipmaster that he intends the law of the flag to regulate those contracts, and that they must either submit to its operation or not contract with him or his agents at all." (Bouvier, pp. 799-800.)

An Interesting Thought
While we are on the subject of admiralty jurisdiction and maritime law, which pertains to the sea or waters, let us consider a couple of scriptures in the light of the forgoing discussion. In Revelation, we read about the "great whore that sitteth upon many waters," (Rev. 17:1.) and that, "The waters . . . where the whore sitteth, are peoples, and multitudes, and nations, and tongues." (Rev. 17:15.) In the Book of Mormon, we read that the, "great and abominable church, which is the mother of abominations, whose founder is the devil . . . is the whore of all the earth . . . and she sat upon many waters; and she had dominion over all the earth, among all nations, kindreds, tongues, and people." (1 Ne.14:9-11.) The laws of admiralty and maritime refer to that which pertains to the sea. Could the scriptural references just cited have reference to this same admiralty and maritime jurisdiction? Perhaps it might warrant more serious study on the question.

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