Saturday, August 23, 2008

Americans, the Common Law, and Freedom – What you need to know.

Friday, August 22, 2008

Melinda Pillsbury-Foster


“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —“


When you read the preamble to the Declaration of Independence remember what the world looked like to the men who wrote it. Then look at our world through their eyes; understanding their world and the institutions they used routinely brings understanding of what has gone so wrong with our world today.


Their world was the same and different. The agreement to go to war came after a long process of discourse over the issues, not by leaders, but by ordinary people. The Committees of Correspondence drove a dialogue on why the people should govern themselves, enacting formally what they had been doing for two centuries. They were a people who expected to cooperate, looking across into each other's eyes, never up to anyone in government.


Over that time they had built a vibrant and robust society that was stretching out in all directions. The people governed themselves, using of a system of organizing tools, proven over time. Those tools were town government operating with transparency, ensuring that real control remained directly in the hands of the people. For justice, they used the Common Law, brought with them from England.


Control of the functions of government through the town ensured that government would never eat up the seed corn. Direct scrutiny by the people on what was spent, the authority always with them to approve or deny, kept government small and honest. Delving back in time you see these people assumed that no one went into government to make money or secure their retirement because the pay was terrible and there were no benefits. Those serving in government were assumed to have enough money to be able to donate their time. That model still persists in some parts of New England. The same principles were in use for the justice system through the Common Law Courts. Judges performed a service to the community, drawing from their own time to do so.


In use by the people for centuries, the common law was not something apart from the people but like the air they breathed. School children saw it operating and were prepared to use it themselves when they became adults. Going to court was serious, a process treated with respect, but instead of dividing them they entered into that process knowing that, ultimately, there would be justice. Contrast that to how the system of courts looks to us today.

The Common Law is a system for justice that is handled directly by the people. That is the system our Founders assumed would continue; it was one of those tools, used sparingly, that allowed a free people to govern themselves directly. Town government, with its absolute transparency and resulting low costs, along with the Common Law, were the foundation for freedom that the Founders assumed would continue.


Elections handled directly by the people; the votes totaled openly and transparently.

Spending by government overseen directly by the people.

Common law courts that possessed the right to judge both the facts and the law.


The system worked. It remains the system intended by our Founders. It can still work today.


How do we become, again, a people who govern themselves? That we can do so is inherent in our mission statement. The Declaration of Independence says,

“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.


Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”


The first Amendment of the Bill of Rights owes its existence to a common law case heard in New York in 1735. In 1735 the Royal Governor of New York attempted to suborn the right of jury to decide fact and law. It had begun with the publication of the New-York Weekly Journal in 1633 with Zenger as the editor. The paper began because Crosby, the Royal Governor, was corrupt and the people needed the truth. Zenger was arrested and incarcerated for telling the truth on November 17, 1734. The bail set made his release impossible.

The Zenger Case was heard on August 4th of that year saw a jury of twelve men render the verdict of not guilty, thus overthrowing the law and setting a course that lead to the principle that the truth is its own defense. It was this case that remained in the minds of our Founders when they wrote the Bill of Rights, addendum to the Constitution, which was intended to limit government, never us.

The verdict of Not Guilty affirmed the right of anyone to break a law that violated the conscience of the community and the right of an individual to speak the truth.

The Zenger Case is with you any time you serve on a jury.


The Common Law is the muscle behind our rights.

Many today think of the Common Law as antiquated and impractical; nothing could be further from the truth. The disused understanding of these tools are waiting for us to pick up. They are easy to use and bring with them amazing benefits, also forgotten, that created the American people as different from any nation on the face of the Earth.


When you are empaneled as a juror on a Common Law Court you already understand that this is a grave responsibility. You take up the charge to become, with those others serving, the conscience of your community. You leave behind you any prejudices. Those who serve understand they must see the matter at hand dispassionately, demand the facts, scrutinize the evidence, see beyond evasion to the root of the issues. Then, the juror must reflect on each other point, listening as if the life of their community depended on it.


America itself owes its existence, in part, to another case where the jury refused to violate the conscience of the community and the right of the individual. That jury heard its case in England in 1670. King Charles II demanded the prosecution of William Penn for the crime of preaching his Quaker faith. The jury foreman, Edward Bushel, along with the rest of the jury, found the law unjust, in violation of the people's right to worship. The case was heard at the Old-Bailey from the 1st to the and 5th of Sept.

Afterwards, the jury was incarcerated for returning a verdict that outraged the judge. He directed that the jury reconsider their verdict. They retired and returned with the same verdict, Not Guilty. The judge then confined the jury in Newgate Prison to remain without food or water until the desired verdict was rendered. They continued to hold that William Penn was not guilty. Eventually they were fined and released.

William Penn, then 26 immigrated to Pennsylvania. The lesson of the right of the jury to decide is the birth right of all Americans and the midwife of our freedom.


The Common Law and its principles remain in use, though those now in power try to disguise their existence. A pivotal example of the same kind of courage shown in the Zenger and Penn cases took place in the township of Credit River, Minnesota on 12th December 1968. The issue was the fraud being perpetrated by banks across the world. It is known as the Credit River Case.


Jerome Daly faced eviction from his home. Daly had sued the bank, his house in foreclosure; while reviewing the papers and practices he had noticed that the mortgage was issued with no legal consideration. The verdict rendered hinged on the admission by the president of the First National Bank of Montgomary that there was no legal consideration with the loan written for Jerome Daly's mortgage. The bank president testified, ‘this was standard banking practice exercised by their bank in combination with the Federal Reserve Bank of Minneapolis, another private bank, further that he knew of no United States Statute or law that gave the plaintiff the authority to do this.”


Daly kept his home. Two weeks later the judge in the case, Mahoney, was murdered. No one ever said that freedom and justice would come without costs.


Courts that follow the common law accept the tenet that the jury decides on all issues, both fact and law; they can demand more information. Nothing is hidden from them. The judge is only there to be called on by the jury. They must understand that the rights of individuals trump statute, and, most importantly, they are acting as the incarnation of the conscience of the community.


Arguably, the most important check and balance to power in government is the power of the informed jury to decide on the issues of both of law and fact. Today, we as Americans face the need to restore to use the tools that connect us to our own power, granted not by government, but by God.

Start with your local county, establish your own Heritage Association on the common law and the Constitution.

Let your local law enforcement know what their obligations are under the Constitution.

Celebrate Jury Rights Day, September 5th . Get to know the Fully Informed Jury Association.


A free people will govern themselves; a people who will be free do it themselves.

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