There is a lot of misleading information which is being touted around as common law. The descriptions below are as accurate as it gets. The customs and traditions upon which it is founded have also been wrapped up in sound bites and are guaranteed to get the gullible and ignorant into trouble.
Ever since the “Freeman” movement was injected into proceedings the courts have become wise to it and do not hear the arguments which are mainly irrelevant to all court proceedings.
Only a knowledge of how a court works will have any effect.
The worse aspects of common law are execution and all manner of cruel punishments.
The best parts are the upholding of natural law and truth through tradition. As the court is directed by the judge a little knowledge is a dangerous thing, but a good solid understanding of the court procedures and common law can help you win, if you know what you are doing.
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This short introduction is in the main from “The History of Common Law in England” by Sir Matthew Hale published in 1739.
Sir Matthew Hale (1609 – 1676) attended Lincoln’s Inn to study the law. He became the chief justice of the Court of King’s Bench,
There are two types of law:
Lex scripta, the written law and Lex non scripta, the unwritten law.
Not all laws have the original text available in writing.
The unwritten laws have obtained their force by immemorial usage and custom.
Written Laws are usually called statute laws or acts of parliament.
Written up for the tripartate of King, Lords and Commons,
Without the consent of all three, no such laws can be made.
The monarchy with the advice of the parliament can make laws.
There are two types of statutes:
Those not in time of memory and those within time of memory.
Time within the reign of Richard 1st was classified as within memory.
Therefore within time of memory in a legal sense was from 6th July 1189.
Because any time before this was presumed to be without beginning the laws previous to 6th July 1189 are part of common law through usage and custom.
The first statute roll is The Magna Charta and is in The Tower (as at the time of writing in 1739).
Leges non scripta or customary laws before William 1st the conqueror and in the time of Richard 1st. This is the legal limitation of time of memory.
Those statutes extant in The Book of Magna Charta
The first available record of a summons to parliament was during the reign of Edward 1st.
The records before this have been lost or mislaid.
The laws before memory are not only of course oral, they have been written and transfer from one age to another.
A vast number of Legis non Scriptae are all allowed as the rule and direction of justice and judicial proceedings.
Common law in its usual and proper acceptance is:
The Law which proceedings and determination in the Kings Ordinary Courts of justice
are directed and guided.
(This is why common law is useful in holding court, you can steer the court into common law if you know what to do.)
The various and particular customs of cities, towns and manors are thus part of the common law.
The common law does determine what of those customs is good and reasonable and void.
The common law gives to those customs that it adjudges reasonable, the force and efficacy of their obligation.
The common law determines what is that continuance of time which makes such a custom and the limits and extensions thereof. It cannot be altered or changed by an act of parliament.
Ecclesiastical and Civil law
Neither canon nor civil law have any obligation as laws within this Kingdom as the Popes emperors made those laws.
All strength that either the Papal or Imperial Laws have obtained in this Kingdom is only because they have been received and admitted either by the consent of parliament and are part of the Statute Laws of Kingdom are else by immemorial use or custom.
Their authority is founded merely on their being admitted and received by us which alone gives them their authoritative essence and qualifies their obligation.
There are three courts of note, wherein the Civil and in one of them the Canon and Ecclesiastical Law has been, with certain restrictions allowed in this Kingdom:
1 The Courts Ecclesiastical of the Bishops and their derivative officers.
2 The Admiralty Court
3 The Curia Militaris, or Court of the Constable or Marshal, or those persons commissioned to exercise that jurisdiction.
(Neither the canon nor the civil law have any obligation within the kingdom, as they were at the time of writing not recognized as they were of foreign authority) The only inclusion of these laws would be by Act of Parliament and not derived from themselves. The courts of England are not bound by the courts of the Pope or Justinian. The only jurisdiction is therefore derived from the Crown.
The sentence in Ecclesiastical courts is excommunication as at time of writing in 1739. (Henry V111 legitimatized the issue of common law writs of execution for heresy by burning in conjunction with the Ecclesiastical Court)
The Civil Law is taken in as a director in exposition in court, especially of Wills and Legacies.
The Admiralty was restricted to a thing done at sea but from 1296 courts were using the Admiralty jurisdiction on land and
rebuked by the wig lawyers for it, yet these same lawyers were also using it for their own benefit. See The Development of Admiralty Jurisdiction and practice since 1800 (page 4).
This was used until 1861 after which anything within the body of a country on land or sea was removed from the Admirals Court and declared triable only at common law. Various devices consisting chiefly of legal fictions were employed in the common law courts but writs of prohibition were issued against civilians who tried using Admiralty during the reign of Elizabeth 1 – James 1.
Here are the other articles referred to in the show:
We have done many shows on the systems of law, here are a few: