Is the Common Law based upon the Scripture? by Guest author Richard Anthony

Is the Common Law really based upon God’s Law?

Richard Anthony


Many people assume that the “common law” is based upon God’s Law, or that it was based upon God’s Law at one time. However, the facts show otherwise.Remember how we were taught that the U.S. Constitution was based upon God’s Law, and how it was a godly system of law? Until we researched it ourselves and found just the opposite to be true? (See our article called The Deception of the U.S. Constitution for further study). Well, the same is true for the “common law.” When one researches this system of law, one finds just the opposite to be true. And similarly how if one claims “Constitutional rights” it places them under the jurisdiction of man’s law, the same is true when one claims the “common law,” it brings them under the jurisdiction of man’s law also.

Now, I was once a firm believer in the common law, too. We were taught that the “common law” was based upon God’s Law. We were also taught that the common law was in full force in the 1800’s, and that it is in the 1900’s when things changed. Okay. Here is a law dictionary from the 1800’s. and let’s see how it defines “common law,” and what “law” it really represents. Remember, this is the meaning of “common law” from the 1800’s! The following definition are taken from A Dictionary of Law, by William C. Anderson, 1893, which is one of the best law dictionaries around. And as a side note, this definition is the same as when used in the US Constitution.

 

 

What System of Law is the Common Law based upon? 

Custom of merchants: A system of customs, originating among merchants, and allowed for the benefit of trade as part of the common law. Page 303.Law-merchant; law of merchants: The rules applicable to commercial paper were transplanted into the common law from the law merchant. They had their origin in the customs and course of business of merchants and bankers, and are now recognized by the courts because they are demanded by the wants and conveniences of the mercantile world. Pages 670-671.

Roman Law: The common law of England has been largely influenced by the Roman law, in several respects:…Through the development of commercial law. Page 910.

I read this entire law dictionary from cover to cover, and not once did it ever mention that the common law was, or had ever been, based upon God’s Law. As we can see, it is based upon Roman Law, commercial law, and the law of merchants.

Let us continue with what this common law entailed, in court:

 

 

Common Law Courts 

Plaintiff: In common law proceedings we speak of the actor (the party bringing suit) as “plaintiff,”…In the equity rules of the Supreme Court, the actor is always called plaintiff. Page 776.

Now, think about this. In common law proceedings, the plaintiff is the actor. We all know what an actor is; someone who is playing, someone who is acting, someone who is pretending, someone who is not speaking the truth. What does pretending have to do with God’s Truth? Nothing. If the common law court was based upon God’s Truth, and discovering Truth, they would not be involved in play acting.

Let us see another definition of how “common law” was used in a court of law:

 

Side of the court: The law side and the equity side of a court designate a court administering justice, in the former case under the forms of strict law or common law, in the latter case according to the more liberal principles of equity. The equity side of the courts is deemed always open for pleadings and proceedings preparatory to the hearing of causes upon their merits. Page 952.

Now, notice this definition does not specify which “forms of strict law” are administered under the common law. However, by reading the other definitions in this law dictionary, it becomes obvious it is based upon Roman Law, commercial law, and the law of merchants.

Now, let’s examine a form of punishment under the common law, and see if it’s based upon scripture:

 

Common Law Punishment 

Scold: A troublesome and angry woman, who, by brawling and wrangling among her neighbors, breaks the public peace, increases discord, and becomes a nuisance to the neighborhood. At common law, a common scold is a public nuisance. The sentence was that she be placed in a tre-bucket, castigatory, or cucking-stool, that is, in Anglo-Saxon, the scolding stool. The offence is now punishable, if at all, by fine, or by fine and imprisonment.In 1824 a woman was convicted of this offense in the city of Philadelphia, and the sentence was, as at common law, that she “be placed in a ducking or cucking-stool, and be plunged three times in the water.” This sentence was reversed by the supreme court, which decided that the old common law punishment had not been adopted in Pennsylvania. The court also said that the punishment was introduced at a time when women were subjected to degradation as slaves; that authorities differ as to what the original punishment was, and how, therefore, it was to be executed upon offenders, if executed at all.

In 1866 the same court, in reviewing the record in another case, said that the law has been considered settled since the decision in the James Case; that the penal code of 1860 did not abolish the offense; and that, as to the unreasonableness of punishing women alone for a too free use of the tongue, it is enough to say that the common law, which is the expressed wisdom of ages, adjudges that it is not unreasonable. Page 923.

There are many interesting points to consider in this definition. Firstly, in 1824, at common law, this woman was punished by being dunked in water three times. Okay, if the common law is based upon scripture, where is this punishment listed in scripture? It is not. God tells us many punishments in scripture, for it is His Law. But nowhere do you find this punishment in scripture. Why? Because the common law is created by man, not God. It is a different law, under a different jurisdiction.

Secondly, notice the date “1824.” This was called the “old common law” in 1824. In other words, this common law punishment had been around for a long time by 1824, most likely from the 1700’s or earlier, at a time when this “common law” was supposedly more Christ-like. I do not see any evidence that the common law was ever based upon God’s Law.

Thirdly, notice the last sentence of this definition. It says “the common law is the expressed wisdom of ages.” It does not say the common law is the expressed wisdom of God. No. It is the wisdom of men, throughout the ages. And the common law changes from time to time, as the above definitions verify, as society changes. God’s Law does not change. The common law is arbitrary and capricious, and changes with the times. God’s Law does not. The “common law” and God’s Law are not the same law!

 

 

Common Law based upon God’s Law?But, aren’t there parts of the common law that are based upon God’s Law? Yes, of course there are! Hitler had some laws that were based on God’s Law too. So did Stalin, and Communist China. Many of man’s laws contain parts of God’s Law within them, but it does not mean it is a godly system of law, just because some of their law lines up with scripture. For example, almost all of man’s laws punish people for murder. This is based upon God’s Law, right? But just because the laws in Nazi Germany might have punished some people for murder, it does not mean that Nazi law was a godly system of law.

Now, here is a “common law” which most people would say is based upon scripture, but look at how the words are used:

 

Husband: At common law, husband and wife are one person in law, and he is that person; that is, the legal existence of the woman is suspended or at least incorporated into that of the husband, under whose protection she performs everything. They cannot give evidence for or against each other. He may chastise her moderately. For any crime committed in his presence, except treason and murder, she is presumed to act by his coercion. Page 518.

Yes, on its face, it does seem to be based upon God’s. Scripture says man and women become “one flesh,” whereas the common law says man and women become “one person.” But let’s take a closer look:

First of all, a servant of Christ is not a person, but a slave. Slaves are not persons, under both God’s Law and mans law. Therefore, at common law, the husband is a “person,” which is a fiction of the State, a creation of the State, and not a man created under God.

Secondly, they have a “legal existence.” It is not a lawful existence under God’s Law, but a legal existence under man’s law.

And thirdly, notice the common law “presumes” that she acts according to her husband’s coercion. Now wait a minute, under God’s Law, one is innocent until proven guilty! Under the common law, the husband is presumed guilty, and is presumed to have coerced his wife, until proven innocent! God’s Law never presumes one is guilty, only man’s law presumes guilt.

 

Another Law DictionaryScripture says to verify everything by two or three witnesses. Therefore, here are some other definition from Bouvier’s Dictionary, 1856 which confirms that the common law is not based upon God’s Law.

 

The Common Law Contradicts God’s Law 

ACCESSARY:, criminal law. He who is not the chief actor in the perpetration of the offence, nor present at its performance, but is some way concerned therein, either before or after the fact committed.
7. By the rules of the common law, accessaries cannot be tried without their consent, before the principals. Foster, 360. The evils resulting from this rule, are stated at length in the 8th vol. of Todd’s Spencer, pp. 329, 330.

Under God’s Law, an accessory to a crime is just as guilty as the one perpetuating the crime (Psalms 50:18, 1 Timothy 5:22). Scripture also shows that those who participate in evil through somebody else are guilty of the act themselves. For example, David gave orders to Joab and instructed him to have Uriah killed. Even though David did not kill him himself, but had another do it for him, God placed the sin of murder on David himself (II Samual 11:14 – 12:9). In addition, if a man has seen a crime, or has heard of a crime, and does not bear witness of this crime as a witness, then this man shall bear the criminals iniquity (Leviticus 5:1).

But under the common law, the accessary cannot be brought to court unless he consents to go to court. This is admittedly called an evil rule in this same definition!

 

COLLATERAL WARRANTY: contracts, descent. Where the heir’s title to the land neither was, nor could have been, derived from the warranting ancestor; and yet barred the heir from ever claiming the land, and also imposed upon him the same obligation of giving the warrantee other lands, in case of eviction, as if the warranty were lineal, provided the heir had assets. 4 Cruise, Real Prop. 436.
2. The doctrine of collateral warranty, is, according to Justice Story, one of the most unjust, oppressive and indefensible, in the whole range of the common law. 1 Sumn. R. 262.

Question. Is the Law of God unjust, oppressive and indefensible? Well, how can the “common law”, which is “unjust, oppressive and indefensible”, according to the above lawful definition, be based upon God’s Law, which is Just, Righteous, and Good?

 

MAXIM: Many things have been introduced into the common law, with a view to the public good, which are inconsistent with sound reason. Co. Litt. 70; Broom’s Max. 67; 2 Co. R. 75. See 3 T. R. 146; 7 T. R. 252.

Question. Is the Law of God inconsistent with “sound reason.” No. So how can the “common law”, which is “inconsistent with sound reason,” according to the above lawful definition, be based upon God’s Law?

 

ABORTION: 3. When abortion is produced with a malicious design, it becomes a misdemeanor, at common law, 1 Russell, 553; and the party causing it may be indicted and punished.

Under God’s Law, murder is a felony (Genesis 9:6, Exodus 20:13). Under the common law, you get a slap on the wrist. Is the “common law” really based upon God’s Law?

 

ARSON: criminal law. At common law an offence of the degree of felony; and is defined by Lord Coke to be the malicious and voluntary burning of the house of another, by night or day. 3 Inst. 66.
3. The offence of arson at common law, does not extend further than the burning of the house of another. By statute this crime is greatly enlarged in some of the states, as in Pennsylvania, where it is extended to the burning of any barn or outhouse having bay or grain therein; any barrack, rick or stack of hay, grain, or bark; any public buildings, church or meeting-house, college, school or library. Act 23d April, 1829; 2 Russell on Crimes, 486; 1 Hawk. P. C. c. 39 4 Bl. Com. 220; 2 East, P. C. c. 21, s. 1, p. 1015; 16 John. R. 203; 16 Mass. 105. As to the extension of the offence by the laws of the United States, see Stat. 1825, c. 276, 3 Story’s L. U. S. 1999.

So, under the common law, arson does not extend further than the burning of a house. Therefore, I can burn your carriage, car, warehouse, barn, barracks, outhouse, and not be charged with arson! However, under God’s Law, he that burns a fire must pay restitution for everything that was burned by the fire he started, and is not limited to just the house (Exodus 22:6).

 

ATTORNEY: One who acts for another by virtue of an appointment by the latter.
9. The name of attorney is given to those officers who practice in courts of common law.

Hmmm. Where does the term “attorney” appear in scripture? It does not. However, scripture uses the term “lawyer,” which is always used in a negative sense, and explains why many lawyers are evil (Luke 7:30; 11:46-52).

 

DEAD-BORN: descent, persons. Children dead-born are considered, in law, as if they had never been conceived, so that no one can claim a title, by descent, through such dead-born child. This is the doctrine of the civil law. The rule in the common law is, probably, the same, that a dead-born child is to be considered as if he had never been conceived or born in other words, it is presumed he never had life. it being a maxim of the common law, that mortuus exitus non est exitus. Co. Litt. 29 b. See 2 Paige, R. 35; Domat, liv. prel. t. 2, s. 1, n. 4, 6; 4 Ves. 334.

Under God’s Law, a man or woman is born at the moment of conception. But the common law says one is born at the moment one comes out of the womb.

 

FALCIDIAN LAW: 4. By the common law, the power of the father to give his property is unlimited. He may bequeath it to his children equally, to, one in preference to another, or to a stranger, in exclusion of the whole of them.

Under God’s Law, the father must give his inheritance to his first-born (Deuteronomy 21:15-17).

 

The Common Law is a Man-Made Law 

AUTHORITY: contracts. The delegation of power by one person to another.
4. This rule of the common law has been adopted and followed from the civil law. Story, Ag. 47; Dig. 3, 3, 1, 1 Poth. Pand. 3, 3, 3; Domat, liv. 1, tit. 15, 1, art. 5; see also 3 Chit. Com. Law, 5, 195 7 T. R. 350.ISLAND: A piece of land surrounded by water.
5. The doctrine of the common law on this subject, founded on reason, seems to have been borrowed from the civil law. Vide Inst. 2, 1, 22; Dig. 41, 1, 7; Code, 7; 41, 1.

Hmm. So much for the common law being adopted, followed, and borrowed from God’s Law; in truth it is founded on “man’s reason” (not God’s Truth), and is borrowed from the “civil law” (not God’s Law).

 

FIDEI-COMMISSUM: 3. The uses of the common law, it is said, were borrowed from the Roman fidei-commissum. 1 Cru. Dig. 388; Bac. Read. 19; 1 Madd. Ch. 446-7.

Another confirmation that the common law is borrowed from Roman law (not God’s Law).

 

CUSTOM: A usage which had acquired the force of law.
2. A custom derives its force from the tacit consent of the legislature and the people, and supposes an original, actual deed or agreement.
3. Customs are general or, particular customs. 1. By general customs is meant the common law itself, by which proceedings and determinations in courts are guided.

Notice the common law is guided by general customs of man (not by the principles of God).

 

JEOPARDY: 3. The constitution declares that no person shall “for the same offence, be twice put in jeopardy of life and limb.” The meaning of this is, that the party shall, not be tried a second time for the same offence after he has once been convicted or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him; but it does not mean that he shall not be tried for the offence, if the jury have been discharged from necessity or by consent, without giving any verdict; or, if having given a verdict, judgement has been arrested upon it, or a new trial has been granted in his favor; for, in such a case, his life and limb cannot judicially be said to have been put in jeopardy. 4 Wash. C. C. R. 410; 9 Wheat. R. 579; 6 Serg. & Rawle, 577; 3. Rawle, R. 498; 3 Story on the Const. 1781. Vide 2 Sumn. R. 19. This great privilege is secured by the common law. Hawk. P. C., B. 2, 35; 4 Bl. Com. 335.
4. This was the Roman law, from which it has been probably engrafted upon the common law. Vide Merl. Rep. art. Non bis in idem. Qui de crimine publico accusationem deductus est, says the Code, 9, 2, 9, ab alio super eodem crimine deferri non potest. Vide article Non bis in idem.

Again, confirmation that the common law is influenced by Roman Law, and not God’s Law.

 

JOURNAL: common law. A book used among merchants, in which the contents of the waste-book are separated every month, and entered on the debtor and creditor side, for more convenient posting in the ledger.

The above definition shows that the “common law” is commonly used by merchants, because it is commercial law.

 

COMMON LAW: That which derives its force and authority from the universal consent and immemorial practice of the people.

Notice the common law derives its force and authority from the people (not from God).

 

LAW, COMMON: The common law is that which derives its force and authority from the universal consent and immemorial practice of the people. It has never received the sanction of the legislature, by an express act, which is the criterion by which it is distinguished from the statute law. It has never been reduced to writing; by this expression, however, it is not meant that all those laws are at present merely oral, or communicated from former ages to the present solely by word of mouth, but that the evidence of our common law is contained in our books of Reports, and depends on the general practice and judicial adjudications of our courts.
2. The common law is derived from two sources, the common law of England, and the practice and decision of our own courts. In some states the English common law has been adopted by statute. There is no general rule to ascertain what part of the English common law is valid and binding. To run the line of distinction, is a subject of embarrassment to courts, and the want of it a great perplexity to the student. Kirb. Rep. Pref. It may, however, be observed generally, that it is binding where it has not been superseded by the constitution of the United States, or of the several states, or by their legislative enactments, or varied by custom, and where it is founded in reason and consonant to the genius and manners of the people.
3. The phrase “common law” occurs in the seventh article of the amendments of the constitution of the United States. “In suits at common law, where the value in controversy shall not exceed twenty dollar says that article, “the right of trial by jury shall be preserved. The “common law” here mentioned is the common law of England, and not of any particular state. 1 Gallis. 20; 1 Bald. 558; 3 Wheat. 223; 3 Pet. R. 446; 1 Bald. R. 554. The term is used in contradistinction to equity, admiralty, and maritime law. 3 Pet. 446; 1 Bald. 554.
4. The common law of England is not in all respects to be taken as that of the United States, or of the several states; its general principles are adopted only so far as they are applicable to our situation. 2 Pet, 144; 8 Pet. 659; 9 Cranch, 333; 9 S. & R. 330; 1 Blackf 66, 82, 206; Kirby, 117; 5 Har. & John. 356; 2 Aik. 187; Charlt. 172; 1 Ham. 243. See 5 Cow. 628; 5 Pet. 241; 1 Dall. 67; 1 Mass. 61; 9 Pick. 532; 3 Greenl. 162; 6 Greenl. 55; 3 Gill & John. 62; Sampson’s Discourse before the Historical Society of New York; 1 Gallis. R. 489; 3 Conn. R. 114; 2 Dall. 2, 297, 384; 7 Cranch, R. 32; 1 Wheat. R. 415; 3 Wheat. 223; 1 Blackf. R. 205; 8 Pet. R. 658; 5 Cowen, R. 628; 2 Stew. R. 362. SOURCES OF THE LAW. By this expression is understood the authority from which the laws derive their force.
10. The tacit laws, which derive their authority from the consent of the people, without any legislative enactment, may be subdivided into 1st. The common law, which is derived from two sources, the common law of England, and the practice and decisions of our own courts. It is very difficult, in many cases, to ascertain what is this common law, and it is always embarrassing to the courts. Kirl. Rep. Pref. In some states, it has been enacted that the common law of England shall be the law, except where the same is inconsistent with our constitutions and laws. Customs which have been generally adopted by the people, have the force of law. The principles of the Roman law, being generally founded in superior wisdom, have insinuated themselves into every part of the law. Many of the refined rules which now adorn the common law appear there without any acknowledgment of their paternity, and it is at this source that some judges dipt to get the wisdom which adorns their judgments. The proceedings of the courts of equity and many of the admirable distinctions which manifest their wisdom are derived from this source. To this fountain of wisdom the courts of admiralty owe most of the law which governs in admiralty cases.

This definition also states that Roman Law is superior law (I thought God’s Law was the superior law!), and that the Roman law has insinuated itself into every part of the common law.

 

MARRIAGE: 12. The common law requires no particular ceremony to the valid celebration of marriage. The consent of the parties is all that is necessary, and as marriage is said to be a contract jure gentium, that consent is all that is needful by natural or public law.

Natural and Public law are opposed to God’s Law. Natural law is made by and for the natural man, which receiveth not the things of the spirit of God. Why is not God’s Law mentioned in this definition, since God ordained marriage? Because common law is not based upon God’s Law, but man’s law.

 

STATUTE: 9. Among the civilians, the term statute is generally applied to all sorts of laws and regulations; every provision of law which ordains, permits, or prohibits anything is a statute without considering from what source it arises. Sometimes the word is used in contradistinction to the imperial Roman law, which, by way of eminence, civilians call the common law.

Again, the “common law” is another term for Roman Law (not God’s Law).

 

Miscellaneous 

INEVITABLE ACCIDENT: A term used in the civil law, nearly synonymous with fortuitous. event. (q. v.) 2 Sm. & Marsh. 572. In the common law commonly called the act of God. (q. v.) 2 Smed. & Marsh. Err. & App. 572.VIS MAJOR: a superior force. In law it signifies inevitable accident.
2. This term is used in the civil law in nearly the same way that the words act of God, (q. v.) are used in the common law.

Interesting how the common law attributes natural disasters to God, as if He deliberately sets out to destroy property and people with hurricanes, earthquakes, lightning, etc.

 

INFANT: 5. Considerable changes of the common law have probably taken place in many of the states.MEMORY, TIME OF: According to the English common law, which has been altered by 2 & 3 Wm. IV., c. 71, the time of memory commenced from the reign of Richard the First, A. D. 1189. 2 Bl. Com. 31.

Evidence that the common law has been revised, changed, and altered with time. In addition, the common law, at any one time, differs from State to State, country to country, and from one period of time to another. Allowing people to pick and choose which parts of the common law to obey, and which ones to ignore. God’s Law does not change; what God defines as good and evil at one time, will still be good and evil at a later time.

 

CHRISTIANITY: The religion established by Jesus Christ.
2. Christianity has been judicially declared to be a part of the common law of Pennsylvania.

It is important to note that only the “common law of Pennsylvania” has declared Christianity to be a part of it (emphasis on the word “part”). In other words, only “part” of the common law is based on Christianity. The other parts of the common law, as have been proved, is taken from merchant law, commercial law, civil law, Roman law, and human reason. This goes directly contrary to scripture, for God’s Law is being yoked (merged together) with man’s laws; believers are being yoked with unbelievers, righteousness with unrighteousness, light with darkness, and Christ with Belial.

 

2 Corinthians 6:14-16, “Be ye not unequally yoked together with unbelievers: for what fellowship hath righteousness with unrighteousness? and what communion hath light with darkness? And what concord hath Christ with Belial? or what part hath he that believeth with an infidel? And what agreement hath the temple of God with idols?”

Besides, man’s laws always have parts of it that can be found in God’s Laws, such as laws punishing murder, stealing, etc., It does not mean it is a godly system of law.

It is also important to notice from the above definition that only the common law of Pennsylvania declared this. Not the “common law” of any other place, state, country, or people. This shows how the common law changes, and it very different, from place to place. When someone says they follow the “common law”, what “common law” are they referring to? Can they just pick and choose which common law at will to follow, and disregard other common laws? Thus becoming their own god, determining for themselves what is good and evil?

 

ConclusionEvery law dictionary I have looked at verifies that the common law and God’s Law are opposed to each other. I have not been able to verify that the common law is or was based upon God’s Law. If you have any evidence to the contrary, please share it with me.

 


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