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Section 1
In suits of common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.
Jury Preservation
…even with all its problems, the American judicial system both in its ideal theory and sometimes flawed practice offers persons accused of crimes more protection than any other system in the world.1
This may be true, but only because Yahweh’s2 judicial system is not operating anywhere in the world. Let me reiterate that “the right of a trial by jury” is a constitutional, not a biblical, right and is, in fact, adversarial to Yahweh’s juridical system. Consequently, this “right” is not something Christians should want to see preserved, but rather overthrown and replaced with Yahweh’s superior system. (See Chapters Six, Fourteen, and Fifteen for more concerning the Constitutional Republic’s unbiblical jury system as contrasted with Yahweh’s judicial system.)
Common Law
Amendment 7 twice employs the term “common law.” Just what is common law?
Common Law – That which derives its force and authority from the universal consent and immemorial practice of the people. The system of jurisprudence that originates in England and which was latter [sic] adopted in the U.S. that is based on precedent instead of statutory laws.
Traditional law of an area or region; also known as case law. The law created by judges when deciding individual disputes or cases. The body of law which includes both the unwritten law of England and the statutes passed before the settlement of the United States.
In Old England there were two types of Courts – law and equity. In the law court the judge applied statutes. As time went on situations that were not covered by statutes were uncovered and Judges “created” law, usually in equity. This is “common law.”
The U.S. is a common law country. In all states except Louisiana (which is based on the French civil code), the common law of England was adopted as the general law of the state, EXCEPT when a statute provides otherwise. Common law has no statutory basis; judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. Broad areas of law, most notably related to property, contracts and torts are traditionally part of the common law. These areas of law are mostly within the jurisdiction of the states and thus state courts are the primary source of common law. Thus, “common law” is used to fill in gaps. Common law changes over time, and at this time, each state has its own common law on many topics….3
Many Constitutionalists claim that Christianity is intrinsic to common law. This assumption is based upon assertions found in some early court decisions, such as Updegraph v. The Commonwealth:
…the assertion [made by the defense] is once more made that Christianity never was received as a part of the common law of this Christian land; and it is added that if it was it was virtually repealed by the Constitution of the United States and of this State [Pennsylvania]….
We [the Supreme Court of Pennsylvania] will dispose of what is considered the grand objection – the constitutionality of Christianity – for, in effect, that is the question. Christianity, general Christianity, is and always has been a part of the common law … not Christianity founded on any particular religious tenets; not Christianity with an established church … but Christianity with liberty of conscience to all men.
Thus this wise legislature framed this great body of laws for a Christian country and Christian people…. This is the Christianity of the common law … and thus it is irrefragably [undeniably] proved that the laws and institutions of this State are built on the foundation of reverence for Christianity…. In this the Constitution of the United States has made no alteration nor in the great body of the laws which was an incorporation of the common-law doctrine of Christianity. (Updegraph v. The Commonwealth, 1824)4
Joseph Story, U.S. Supreme Court Justice and one of the two reputed fathers of American Jurisprudence, concurred:
One of the beautiful boasts of our municipal jurisprudence is, that Christianity is part of the common law…. There never has been a period, in which the common law did not recognize Christianity as lying at its foundations….5
These assertions, however, are not uncontested. In a letter to Thomas Cooper on February 10, 1814, Thomas Jefferson renounced the idea that Christianity was intrinsic to common law:
For we know that the common law is that system of law which was introduced by the Saxons on their settlement in England, and altered from time to time by proper legislative authority from that time to the date of Magna Charta.... This settlement took place about the middle of the fifth century. But Christianity was not introduced till the seventh century; the conversion of the first Christian king of the Heptarchy having taken place about the year 598, and that of the last about 686. Here, then, was a space of two hundred years, during which the common law was in existence, and Christianity no part of it. If it ever was adopted, therefore, into the common law, it must have been between the introduction of Christianity and the date of the Magna Charta. ...if any one chooses to build a doctrine on any law of that period, supposed to have been lost, it is incumbent on him to prove it to have existed, and what were its contents…. If, therefore, from the settlement of the Saxons to the introduction of Christianity among them, that system of religion could not be a part of the common law, because they were not yet Christians, and if, having their laws from that period to the close of the common law, we are all able to find among them no such act of adoption; we may safely affirm (though contradicted by all the judges and writers on earth) that Christianity neither is, nor ever was a part of the common law…. Finally, in answer to Fortescue Aland’s question why the ten commandments should not now be a part of the common law of England? we may say they are not because they never were made so by legislative authority….6
In the same letter, Jefferson explained how the error spread about Christianity being inherent in common law. Jefferson realized that a misinterpretation had occurred with a Latin term by Prisot: ancien scripture, at the time used to refer to the ancient written laws of the Catholic Church. People incorrectly interpreted it to mean “Holy Scripture,” thus spreading the myth that common law came from the Bible.
Dennis Oliver Woods provides additional insight:
In England, natural law morphed into the “common law” of Henry II after the Norman Conquest of 1066 and bore only accidental resemblance to Biblical law. Henry II was no exemplar of Biblical law. His motivation was to create a law code common to the entire realm based on amalgamation of local custom. This he enforced in person as he or his judicial representatives traveled on horseback to outlying courts….
From that starting point common law became judge-made law based on precedent, not the Bible. Henry sought to impose his own common or customary law over that of the church, which culminated in the bloody conflict with Archbishop of Canterbury, Thomas Beckett.7
Both sides of this debate have their heroes. Nevertheless, for our purposes, the debate, as framed, diverts our attention from the real issue. Unless Christianity was pronomian (which includes the recognition of Yahweh’s law as supreme in the civil arena) at the time the United States Constitution was framed and ratified, it matters not if it was part of the common law. The plain fact of the matter is that the Christianity of that day was already far removed from pursuing Yahweh’s law in government, as demonstrated by the complete absence of biblical citations in the copious Constitutional Convention notes and the Federalist Papers. With few exceptions, Yahweh’s law was abandoned in 1787. In other words, late 18th-century Christianity was but a shell of 17th-century pronomian Puritanism.
The proof for this is evidenced in the Constitution itself and confirmed in myriad judicial decisions after the Constitution’s ratification. This was true even in The People v. Ruggles, in which Chancellor James Kent, Chief Justice of the Supreme Court of New York and the other reputed father of American Jurisprudence, testified to America’s Christian roots. The facts of the case are as follows:
The defendant was indicted … for that he did … wickedly, maliciously, and blasphemously utter and with a loud mouth publish in the presence and hearing of divers good and Christian people, of and concerning the Christian religion, and of and concerning Jesus Christ, the false, scandalous, malicious, wicked and blasphemous words following: “Jesus Christ was a bastard and his mother must be a whore,” in contempt of the Christian religion…. [T]he defendant was tried and found guilty and was sentenced by the court to be imprisoned for three months and to pay a fine of $500.8
Praise Yahweh that enough morality had carried over from 17th-century Christendom that the New York Supreme Court ruled against blasphemy. But do not miss that regardless how much true Christianity remained, it was not enough to induce the justices to condemn the blasphemer to death, as prescribed by early New England governments and by Yahweh Himself:
The legislators of Connecticut [in the 1650 Fundamental Agreement of the Colony of New Haven] begin with the penal laws, and … they borrow their provisions from the text of Holy Writ. “Whosoever shall worship any other God than the Lord,” says the preamble of the Code, “shall surely be put to death.” This is followed by ten or twelve enactments of the same kind, copied verbatim from the books of Exodus, Leviticus, and Deuteronomy. Blasphemy, sorcery, adultery, and rape were punished with death….9
And he that blasphemeth the name of YHWH,10 he shall surely be put to death, and all the congregation shall certainly stone him: as well the stranger, as he that is born in the land…. (Leviticus 24:16, KJV)
For the New York Supreme Court justices to have imposed the death penalty, particularly stoning, would have been a violation of Amendment 8’s prohibition against “cruel and unusual punishments.” Story, Kent, and other justices may have proclaimed Christianity to be a part of the common law, but, ultimately, the U.S. Constitution – not Yahweh’s law – reigned supreme with them, as it did and continues to do in any case where the two are antithetical to each other.
On his website, Woods provides a review of John Whitehead’s book The Second American Revolution, in which Woods points out another significant problem with the common law:
In Appendix II, Whitehead upholds the Common Law and the principle of “stare decisis.” Under “stare decisis” courts are bound to follow the precedent of previous cases….
The problem with stare decisis in the history of the Common Law is that there is a strong tendency for the precedent to quickly replace the authority of the higher law….
By the time of the American Revolution there were some 200 crimes punishable by the death penalty in Great Britain under Common Law, a radical departure from Biblical law. The law of God is subtly replaced by the law of man.11
The “rules of common law,” as provided for in Amendment 7, include the laws of Yahweh, but only in so far as they are amicable with the Constitution, congressional legislation, and the court’s liking. Consequently, it is incumbent upon every true Christian to work toward replacing the common law with Bible law.
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End Notes
1. International Information Programs, USInfo.org, “Trial by Jury,” Rights of the People: Individual Freedom and the Bill of Rights, <http://usinfo.org/zhtw/DOCS/RightsPeople/jury.html>.
2. YHWH (most often pronounced Yahweh) is the English transliteration of the Tetragrammaton, the principal Hebrew name of the God of the Bible. For a more thorough explanation concerning the sacred names of God, “The Third Commandment” may be read online, or the book Thou shalt not take the name of YHWH thy God in vain may be ordered from Mission to Israel Ministries, PO Box 248, Scottsbluff, Nebraska 69363, for a suggested $4 donation.*
3. “The ‘Lectric Law Library’s Lexicon on Common Law,” <http://www.lectlaw.com/def/c070.htm>.
4. Updegraph v. The Commonwealth, 11 Serg. & Rawle 394, (Pennsylvania, 1824) at 399, 402-403, 406-407.
5. Joseph Story, The Miscellaneous Writings: Literary, Critical, Juridical, and Political of Joseph Story, LL.D. (Boston, MA: James Munroe and Company, 1835) p. 451.
6. Thomas Jefferson, Albert Ellery Burgh, ed., The Writings of Thomas Jefferson, 20 vols. (Washington, DC: The Thomas Jefferson Memorial Association, 1905) vol. 8, pp. 90-91, 97.
7. Dennis Oliver Wood, “Shape of America – The Declaration,” <http://www.america-betrayed-1787.com/shape-of-america-the-declaration.html>.
8. The People v. Ruggles, 8 Johns 290 (1811).
9. Alexis de Tocqueville, Democracy in America, 2 vols. (New York, NY: The Colonial Press, 1899) vol. 1, pp. 36-37.
10. Where the Tetragrammaton YHWH – the four Hebrew characters that represent the personal name of God – has been unlawfully rendered the LORD or GOD in English translations, I have taken the liberty to correct this error by inserting YHWH where appropriate. For a more thorough explanation concerning the sacred names of God, “The Third Commandment” may be read online, or the book Thou shalt not take the name of YHWH thy God in vain may be ordered from Mission to Israel Ministries, PO Box 248, Scottsbluff, Nebraska 69363 for a suggested $4 donation.*
11. Dennis Oliver Woods, “A Review Of: The Second American Revolution,” <http://www.america-betrayed-1787.com/a-review-of-the-second-american-revolution.html>.
*We are admonished in Matthew 10:8 “freely ye have received, freely give.” Although we have a suggested a price for our books, we do not sell them. In keeping with 2 Corinthians 9:7, this ministry is supported by freewill offerings. If you cannot afford the suggested price, inform us of your situation, and we will be pleased to provide you with whatever you need for whatever you can send.
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