Fundamental Principles and the Rule of Law

This is a reasonable axiom that is learned from history although not well learned and followed by subsequent generations.  Niccolò Machiavelli, expressed this principle [1469-1527]: ”Whoever wishes to foresee the future must consult the past; for human events ever resemble those of preceding times. This arises from the fact that they are produced by men who ever have been, and ever shall be, animated by the same passions, and thus they necessarily have the same results.”   Edmund Burke in his works on the Revolution in France [1790]: “People will not look forward to posterity, who never look backward to their ancestors.”  George Santayana wrote in The Life of Reason, [1905]: “Those who cannot remember the past are condemned to repeat it.”  Winston Churchill [1924] brought this to our attention to George Santayana’s rendition of the principle when he said: “Those that fail to learn from history, are doomed to repeat it.”

A number of the State Constitutions in like manner structure their constitutions which includes this principle in their bills of rights. The State of Virginia in their Constitution expresses the feelings of a number of States in the Union:  “That no free Government, or the Blessing of Liberty, can be preserved to any People, but by a firm Adherence to Justice, Moderation, Temperance, Frugality & Virtue, and by frequent Recurrence to fundamental Principles. “

“It will be remembered, that a frequent recurrence to fundamental principles is solemnly enjoined by most of the state constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy, to which republics are liable, as well as other governments, though in a less degree than others.” –James Madison, Report of the Virginia Resolutions.

This affirmation by the Founders is a recognition of the importance of looking to history which is what framers did is constructing the the framework of the Union under a constitution.

Today we have forgotten the lessons of history.  We have a community that no longer revers the principles of the constitution calling is “out dated” for our times.  They have failed to “frequently recur” to those “fundamental principles” which history has proven time and again.  One such principle is called the “rule of law”.  As far back as the year 82 BC, one writer observed the problem as he wrote: “The foundation of the destruction of this people is beginning to be laid by the unrighteousness of your lawyers and your judges.”  [Alma 10:27]  Moving forward, George Mason and Thomas Jefferson brought this to the attention of the Colonies as they included in the Declaration of Independence: “He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation: . . .”

These observations shows that the “rule of law” had a changing perspective as to what that term encompassed.  As Amuleck observed the “unrighteousness” of the lawyers and judges was not limited a moral condition, but was directed more to the enslavement of the people developed by the “law of man”.  Like so much in our time, we are enslaved by excessive administrative regulations and laws that bind the people to the wishes of an oppressive government disguised and sold as “freedom”.  Remembering the principle that control of the people’s substance is control over their actions.

To demonstrate the fundamental principle associated with the “rule of law” found in the fifth and fourteenth Amendments of our Constitution.

Fifth Amendment in part:  “No person shall be . . .  deprived of life, liberty, or property, without due process of law; . . .”

Fourteenth Amendment in like manner, in part: “nor shall any State deprive any person of life, liberty, or property, without due process of law; . . .”

The fundamental in these two amendment is the phrase, “due process of law”.  What is “due process of law”?  Due process is understandable, however, it is the term “law” that has been altered by the legal profession, the “lawyers and judges”.  It is the “jurisdiction” that is “foreign to our constitution, and unacknowledged by our laws; . . .”  A simple study into the history of the Union will show that the accepted “law” of that time, known and practiced was the common law.  It was the implementation of admiralty in the form of the civil law that was the grievance expressed by Jefferson.  Circuit Justice Baldwin in his opinion Bains v. The James and Catherine, 2 Federal Cases, Case No. 756 (1854), spent several pages discussing this conflict concluding that: “It is therefore a self evident proposition, that the jurisprudence of the United States is not founded in the civil law, . . .” [419]

Supreme Court Justice Campbell in his dissenting opinion in Jackson v. The Magnolia, 61 U.S. 296 (1857)  In 1768, John Adams, the Coke of the Revolution, prepared for the citizens of Boston instructions to their representatives, Otis, Cushing, Samuel Adams, and Hancock. The citizens said to their representatives, that, “next to the revenue itself, the late extensions of the jurisdiction of the admiralty are our greatest grievance. The American courts of admiralty seem to be forming by degrees into a system that is to overturn our constitution, and to deprive us of our best inheritance, the laws of the land. It would be thought in England a dangerous innovation, if the trial of any matter on land was given to the admiralty.” [p. 330]

“That Congress declare that  “The respective colonies are entitled to the common law of England, and to the benefit of such English statutes as existed at the time of the colonization, which had been found suitable to their situation.”

“In their address setting forth the cause and necessity for their taking up of arms, they allege that statutes have been passed for extending the jurisdiction of courts of admiralty beyond their ancient limits.” [p. 331]

Two phrases that are commonly used interchangeably, are the “rule of law” and the “law of the land”.  In his extensive works on Admiralty, Erastus Benedict informs the legal profession that; “where the common law was the of the land, the civil law was held to be the law of the admiralty, and the course of proceedings in admiralty closely resembled the civil law practice.” And; “It has indeed been said, that this extensive jurisdiction of the admiralty in the colonies was the subject of complaint at the time of the Revolution; and it is undoubtedly true, that the extension of the admiralty Jurisdiction beyond its ancient limits was, in some petitions and public documents, stated as one of the grievances of the colonies.”  Benedict on Admiralty

So the fundamental to be incorporated when using the terms “law of the land” and “rule of law” is the “common law” not the civil law.  When we use the proper legal structure in the language of the law a different meaning emerges and a different and clear understanding of our Constitution is made clear.  Without this understanding, the Constitution will never be understood.

“It is never to be forgotten that in the construction of the language of the Constitution,  we are to place ourselves as nearly as possible  in the condition of  the men who framed that instrument.” Ex Parte Bain. 12 U.S. 1 7 S. Ct. 781.

“We are bound to interpret the  Constitution in the light of the law as it existed  at the time it was adopted.”  Mattos v. U.S. 156 U.S. 237 at 243.

“It must  be  interpreted  in the light  of Common Law,  the principles and  history  of which were  familiarly known to the  framers  of  the  Constitution.  The  language  of the Constitution  could not be understood  without reference to the Common Law.”  U.S. v. Wong Kim. Ark. 169 U.S. 649.18 S. Ct. 456.

“In this, as in other respects, (a Constitutional provision) must be  interpreted  in the light of the  Common Law,  the principles and  history of which  were familiarly known to the framers of the Constitution… Minor v. Happersett. 21 Wall. 162.

“The  language  of the Constitution, as has been well said, could not be  understood without  reference to the Common Law.”  1 Kent. Comm. 336,  Kepner v. U.S.  195 U.S. 100 at 125.

If we can do this simple adjustment in our thinking, a lot of our problems would be answered.  Controversies over the terms “general welfare”, “common defense” to name a few would be settled.

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