LAWS versus STATUTES: A Brief Explanation
LAWS versus STATUTES: A Brief Explanation
by John-Henry Hill, M.D., P.D.
November 14, 2017
After reading this, you will know more than almost ALL attorneys and rookie district court judges!
LAW and legislated ACTS (STATUTES) (the latter often called “statutory law”) are NOT the same by a long shot! In America true (along with Britain) LAW refers to the unwritten Common Law (which determines what is “lawful” and “unlawful”) was developed over the centuries by juries and tribunals in Common Law courts in Britain, America and most former British colonies. LEGISLATED ACTS, STATUTES and ORDINANCES refer to legislated POLICIES (which determine what is “legal” or “illegal”, which are themselves derived from the word “legislated”) or rules passed by a legislature or legislature-like political body on the local level (such as a city council or a town’s board-of-selectmen). Regulations are simply detailed rules written by un-elected, administrative government personnel to implement the legislated statutes and ordinances. These legislated POLICIES (a statute or a collection of statutes called “codes”) and administrative regulations are enforced by the POLICE – that is, “police” enforce legislated and administrative “policy”; they do NOT enforce true LAW, which is the unwritten Common Law. Common Law consists ONLY of unwritten Common Law established through numerous Common Law court decisions accumulated over the centuries in Britain and its former colonies, including America. Make no mistake: the unwritten Common Law remains today the highest “law of the land” both in Britain and America. Further, in America the Common Law is superior in authority to the U.S. Constitution and all U.S. Supreme Court decisions – a fact the U.S. Supreme Court has repeatedly affirmed in their written opinions to this very day!
Why is the distinction between Common Law (true LAW) and statutory law (i.e., legislated POLICY and administrative REGULATIONS) so extremely important? The Common Law, being the long-standing customs of the people, must be followed by everyone in your society and does NOT require your individual consent. It is the LAW of your society based on local customs established over the centuries. Conversely, statutes and regulations require that you, as an individual man or woman, give your CONSENT to that statutory law (legislated policy) BEFORE you fall under its jurisdiction and under the authority of the police and the legislative-administrative courts. A statute is NEVER a Law; ONLY after an individual man has freely consented to a statute does that statute acquire the FORCE OF LAW - but it NEVER becomes true law. That is what is meant by the phrase “consent of the governed”: You must give your individual consent BEFORE you are obligated to follow legislated statutes or administrative regulations. In short, a legislated act (statute) is simply an “OFFER TO CONTRACT”, which (as with ANY contract) each man can consent or refuse consent. The “catch” is that today the courts (and all departments of government at the federal, state and local levels) make the PRESUMPTION that you, by NOT objecting to a legislated act (statute), have consented to that new act or statute. The ancient Maxim of Law applies: “He, who does not object, consents.” (Senior level judges are well aware of this fact; BUT lower court judges, lawyers, the police, bureaucrats, and most of the populace have NO idea that a legislated act or statutes are simply “offer to contract”. Instead, the latter groups incorrectly believe that all legislated acts (statutes) are automatically mandatory!
You are required to follow Common Law, which is based on God’s law of “do no harm”. However you, as an individual man or woman, must CONSENT to a statute or regulation before you may be subject to any penalties under that statute and/or regulation as adjudged by a legislated-administrative legislated court. Most state and federal appeals and supreme court “judges” are, in fact, NOT judges at all. They are called “justices”; not “judges”. Justices in the state and federal appeals and supreme courts are required to act FIRST under Common Law – and, have no doubt, they know this fact of law. Only after the person has waived his Common Law rights in the inferior courts (lower-level courts such as district courts) may the higher (superior) courts invoke statutes and regulations. And these justices most certainly know the enormous difference between an “unlawful” act and an “illegal” act. That is precisely why they are properly called “justices” – they are required to administer justice under the Common Law FIRST. The “judges” of the lower state and federal courts (most often called “district courts”, “traffic courts”, etc.) are NOT properly called “justices” – they do NOT administer “justice” under the Common Law. Instead, they most often enforce legislated policy. But be warned: do NOT count on attorneys and lower-level judges knowing these facts, much less “police officers” by any titles assigned to them by their governments at all levels - local, state or federal!
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True LAW is the “Common Law” only. Statutes, regulations, ordinances and codes are legislated POLICY; not true LAW. But WHY should it matter to the average person? What PRACTICAL significance can this distinction make in anyone’s life?
If you violate a POLICY created by a legislated statute, you have committed an “illegal” act – that is, you acted contrary to legislated policy - and have NOT necessarily committed an “unlawful” act (properly a “crime”) by violating Common Law. For our first example, by applying for and accepting a state-issued “driver’s license”, you have actually signed a CONTRACT. If you are then stop by the “police” for “speeding” (exceeding the posted “speed limit” which is an “illegal” act) while “driving” in a “motor vehicle” on a public road, you have violated public policy (statutes and regulations) under that contract. If you knowingly or unknowingly CONSENT to these statutes or regulations, either by word or deed, then you fall under the jurisdiction of their statutory administrative, non-judicial courts and/or their administrative agencies. On the other hand, while traveling in your automobile on a public road at a speed exceeding their posted speed limit, you have NOT committed an “unlawful act” under Common Law, UNLESS you caused injury or harm to another other human being and/or his property (which is a true “crime” in Common Law). Under Common Law, you have an inherent and unalienable right to travel. (An “Unalienable” right means a natural, inherent right that you can never forfeit or involuntarily have taken from you.) Further, under Common Law, you may be jailed or fined ONLY after being convicted of a crime by a 12-person jury operating in a true Common Law court-of-record. However, it is possible to WAIVE your natural rights under Common Law, after which you fall under the jurisdiction of statutes and regulations – deceptively called “statutory law”. The state is merely enforcing a contract to which you consented.
In our second example, if you rob another man’s house, you will have broken BOTH the Common Law and so-called “statutory law” (legislated policy). Under Common Law jurisdiction, if a 12-person jury finds you, the “accused”, guilty in a true judicial Common Law court-of-record, then the usual penalty is DEATH. (The only alternative finding by a jury is “innocent” – never “not guilty.) If you retain your rights under Common Law, you are assuming full criminal and commercial liability for your actions. However, the government offers you an alternative. If you waive your rights under Common Law and consent to the jurisdiction of the state’s legislated policies under STATUTES, then by contract with the state, the state grants you the “benefits and privileges” of “limited commercial liability”. The state assumes “full commercial liability” for your actions and reduces your criminal liability. In return, by contract and consent, you are required to follow their RULES enforced by their police and administrative courts, in which you are called the “defendant” (not the “accused”). Consequently, now you must pay fines for those speeding tickets and other “illegal” actions, even though you have harmed or injured no other man or woman. However, with the bitter comes the sweet! If you stole someone’s property or physically injured someone, you may choose to consent to the state’s jurisdiction under its “statutory law” or policy. By consenting to this policy, the state grants you the “benefit and privilege” of “limited commercial liability” and reduced criminal liability for your actions. As a result, your punishment will be limited by contract to a fine and/or brief imprisonment as prescribed by their legislated rules (statutes and regulations) – NOT death, as per Common Law. Under which system you operate in any given situation is YOUR choice.
When most people appear in a so-called “court-of-law”, in most instances they are appearing in a non-judicial, legislative-administrative court operating under commercial-contract law; and NOT a true judicial “court of record” which is required to operate ONLY under the unwritten Common Law – NO exceptions! Such a Common Law “court of record” out-ranks absolutely ALL other courts - even the U.S. Supreme Court (which may act either as a true judicial court or a legislated-administrative court under contract-commercial court). In numerous court rulings the U.S. Supreme Court has affirmed the superior and absolute authority of true Common Law court-of-record (which is the ONLY true “superior court”), stating that verdicts and rulings in a Common Law “court of record” can NOT be challenged by ANY other court, including state and federal district courts, state and federal appeals courts, state supreme courts, or even the U.S. Supreme Court and all international courts. Wow!
But HOW do you know if you are operating in a legislative-administrative court and not in a true judicial court, which by definition is required to be a true Common Law court-of-record? Quite easily, If the judge issues ANY decisions or rulings about proper procedure, issues warnings or rulings about “contempt of court”, or issues decisions regarding guilt or innocence; or threatens to fine or imprison you at ANY time, then you are DEFINITELY in a non-judicial legislative-administrative “court of no record”, regardless of whether or not a transcript (call the “minutes”) is kept of the proceedings. In a true judicial Common Law court-of-record, the judge can act ONLY as an administrator of court procedures, such as scheduling hearings, collecting documents and maintaining reasonable order. The judge can NOT ever function as the TRIBUNAL. Under Common Law the TRIBUNAL is the SOLE lawful entity that can decide what are the LAW and the FACTS of the case. And ONLY the TRIBUNAL (as either the person acting as the plaintiff OR a 12 jury of no fewer than12 people) can make any decision on the innocence or guilt of an accused person, or impose any sentence upon the accused person found guilty, whether the punishment is a fine and/or imprisonment. To repeat myself, in a true judicial Common Law court-of-record a court judge can NEVER act as the Tribunal, which is the ONLY lawful entity that can decide both the LAW and FACTS of the case and can impose a sentence upon those found guilty.
Further, ONLY a Tribunal can issue a judgment of “contempt of court” in a true Common Law court-of-record. Consequently, a judge in a typical court (a non-judicial, administrative court-of-no-record) may “legally” issue a “contempt of court” ruling against a person ONLY if that person has consented to the administrative authority of that court. If that person has NOT consented to the court’s jurisdiction, that same “contempt-of-court” is “legal”, but “unlawful” under true LAW (Common Law). If this explanation is too confusing, you can be absolutely certain that any court you have ever observed on TV or real-life was NOT been a true judicial Common Law court-of-record. A lower-level judge will almost NEVER allow it. In fact, the judge may be unaware of the different types of courts! Instead the judge will presume (under implied consent and/or by your words or actions demonstrating any adherence to his/her administrative court rules) that you have WAIVED your Common Law right to 12-person jury trial before a true judicial Common Law court-of-record, UNLESS you demand it over and over and over again!!! And under the unwritten Common Law, the judge will be correct: an ancient maxim of unwritten Common Law states that “A statement or presumption not rebutted before or during a court appearance becomes a fact of law in that particular case. As an ancient Roman maxim of law proclaimed, “He, who would be deceived, let him.”; or in modern English, “If you do NOT know the law and consequently waive your rights, that is YOUR fault! The court is under NO obligation to teach you.”
When in court, if you stand when instructed by the court when the judge enters the courtroom; or pass through the courtroom’s railing to the prosecution and defense tables; or plead either “guilty”, “not guilty” or “nolo contendre” (“no contest”) at arraignment, hearing or trial; or do NOT object to ALL rules, regulations, orders and decisions by the judge (even those favorable to you!); or if you remain silent and do not expressly object to EACH and EVERY presumption made the prosecution and the judge, then the judge will make a “presumption of fact in law” that you have WAIVED all your natural rights under Common Law, agree with everything the prosecutor and judge have said, and have CONSENTED to the jurisdiction of the judge’s legislated, non-judicial administrative court operating under legislated statutes and regulations. The applicable Maxims of Law are “An unrebutted presumption becomes a fact of law in the case.” and “He, who does not object, consents.”
That is why you can be fined and/or imprisoned in a legislated, non-judicial administrative court without the benefit of a 12-person trial by jury. Without consulting anyone else, the judge can issue a “summary judgment” deciding your guilt or innocence; plus what penalty you will pay (a fine and/or imprisonment) should you be found guilty. Further, should the judge decide to grant you a “jury trial”, the judge does so totally at his discretion - as a “PRIVILEGE” to you. (And a Maxim of Law states: “A privilege is, as it were, a private law.” And the jury will most certainly be composed of six (6) or fewer jurors – NOT a 12-man jury. Finally, the verdict of this jury is merely an “advisory opinion” to the judge, which he may accept or reject as he wishes. Thus, the jury could find you “not guilty, but because the verdict is merely an “advisory opinion” to the judge: the judge has the power to ignore the jury’s “advice” and find you “guilty”. [Note by author: I have actually seen this happen in court several times, although it is rare.]
At this point the reader might be thinking that the courts routinely violate the 7th Amendment which states:
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury [a 12-man jury of one’s peers] shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”
So, how can a judge issue a “summary judgment” or even disregard the verdict of a jury from a “jury trial”. To back you up, you might even cite the U.S. Supreme Court ruling: "Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda v. Arizona, 384 US 436 at 491.
The fact is that a “trial by jury” [a 12-man jury of one’s peers] is NOT the same as a “jury trial”. You waived your Constitutional guarantee of a “trial by jury” [a 12-man jury of one’s peers] when you unknowingly “consented” to be tried under the jurisdiction of the judge’s private, commercial (contract) court. That you did not know that you were consenting is YOUR problem: “Ignorance of the law is no excuse.” The judge was under no obligation to inform you that you were waiving your rights guaranteed by the Constitution and placing yourself under the jurisdiction of his private, commercial (contract) court. You are SUPPOSED to know the Law!! Again, applicable Maxims of Law include:
“Consent makes the law.”; “A contract is a law between the parties, which can acquire force only by consent.“; “Consent makes the law: the terms of a contract, lawful in its purpose, constitute the law as between the parties.”; “To him consenting no injury is done.”; “He who consents cannot receive an injury.”; “Consent removes or obviates a mistake.”; “The agreement of the parties makes the law of the contract.” And lastly, “The agreement of the parties overcomes or prevails against the Law.” What this last Maxim of Law means is that you can waive your natural, constitutionally guaranteed rights by entering into a CONTRACT. (Just try joining the U.S. Marine Corps – for which you sign a CONTRACT – then later demand that your drill sergeant respect your Constitutionally-guaranteed rights!!!! He will probably scream at you at a minimum; and may even beat the Hell out of you!)
But you might argue that you never signed a contract giving the judge and his private, commercial court any jurisdiction over you – which is undoubtedly true. However, by your words, actions and even your demeanor in court the judge made the PRESUMPTION that you consented to his jurisdiction and that of his private, commercial (contract) court. And because you did NOT object, by law it became a fact in the case. “An unrebutted presumption becomes a fact of law in the case.” and “He, who does not object, consents.” Even you showing up in court was evidence of your agreement and consent. Other examples of your consent are obeying ANY instructions or commands from the court which you obey: “Take off your hat.”; “Stop chewing gum.”; “Come forward to the defendant’s table.”; “Be seated:”; etc. The applicable Maxim of Law is:”Manner and agreement overrule the law.” In short, by following ANY of the judge’s (or other court official’s) instructions – however minor or innocent-appearing-, you are demonstrating evidence of your consent to be under his jurisdiction and that of his private, commercial (contract) court.
And when you open the swinging gate (that separates the spectators from the judge’s, prosecutor’s and defendant’s section), you have performed the equivalent of opening the gate on an old sailing ship and entering upon the vessel. And once on board a ship (it used to be only a ship at sea; not a docked ship), the captain has absolute powers over you.”Manner and agreement overrule the law.” Another action that definitively places you under the court’s private, commercial (contract) jurisdiction is HIRING AN ATTORNEY. By hiring an attorney, you become a “client”, which is defined as a person mentally incompetent to defend himself. And because of that status, a “client” automatically becomes a “ward of the court” - supposedly for your benefit, even if that “benefit” means imposing a huge fine and/or imprisonment!!!
Knowingly or unknowingly, by either words or deeds, by actions or non-actions, even your demeanor, you have waived all of your rights under Common Law. You have instead provided evidence to support the court’s presumption that you have consented to a contract that places you under the court’s private, commercial (contract) jurisdiction Knowledge of the Law is YOUR responsibility. And Silence is NOT golden – it can be fatal!
Addendum #1:
How could you have avoided this “trap” which the current “justice system” has created? While the procedure is too complex to explain in detail here, you simply needed to file with the court a signed, sworn, notarized “Affidavit of Truth” in which you challenged the court’s presumption of jurisdiction over you. In essence you would be filing a COUNTER-CLAIM, making you the plaintiff and the judge (police officers, etc.) the defendants.
Under Law, all other actions of law must stop until the issue of jurisdiction has been resolved – meaning the state’s case against you is put “on hold”. Further, this is NOT a “motion” to the court’ this is a COUNTER-CLAIM. Thus, NO judge or other government private, commercial (contract) court may decide this issue of jurisdiction. It MUST be resolved in a true “Court of Record”, that is, a court operating under the Common Law.
However, you, as a private man, must file this affidavit against the judge (and any others) as a MAN in his PRIVATE CAPACITY – and NOT as an official of the court. You must also place yourself at financial risk by assuming full and unlimited commercial liability for any claims proved to be false. The Maxim of Law: “Claims made without accountability are void.” The accused or opponent MUST do the same.) You would state in your affidavit that the judge (as a private man) had, let’s say, 7 calendars days to respond to your affidavit with his own signed, sworn, notarized “Affidavit of Truth” in which he rebutted each and every item in your affidavit. If he fails to do so in the time you allotted to him (7 days), then you have won! (By NOT rebutting your affidavit, he has AGREED with everything you stated in your affidavit.) Applicable Maxims of Law: “An unrebutted affidavit stands as the truth in Law.”; ”An affidavit must be rebutted point-for-point.”; “He, who does not object, consents.”; “Truth stands supreme.”
If he does reply as a private man with his own “Affidavit of Truth” in which he rebuts all of your statements, you would then be able to hold YOUR OWN COURT operating under the Common Law in which the judge (as the PRIVATE MAN) would be required to PROVE with real evidence that you had signed some type of contract placing you under his and the court’s private, commercial (contract) jurisdiction.
Addendum #2:
The Foundation Of Law
There are basically three classes of laws:
(1) The Laws of God, which encompass the Laws of Nature;
(2) The Law of the Land, also referred to as the Common Law; and lastly there is
(3) Private Law, or man-made law, also referred to as Contract Law.
1.) The COMMON LAW:
Our Founding Fathers believed that it was self-evident that the God of Nature is the sovereign of the universe and everything in it (as well as mankind) and that He had endowed all mankind with "certain unalienable rights" making them self-directing sovereigns, which means that any governments instituted among men derive their just powers (only) from the consent of the governed, who are the source of earthly power and authority. Hence any attempt to exercise any powers NOT conveyed by the People is unjust and unauthorized, and any act done pursuant to such usurpation of power is void.
They were further convinced that God's temporal law for mankind was expressed in the law of the land. Common law is common-sense law. It is simple, straightforward and self evident, primarily because it is based on God's Laws. It is the foundational law of the union of States.
The Founding Fathers authorized three legal systems in the Constitution, first Common Law, secondly Equity Law, and thirdly Admiralty Law, which is the law of the sea. Gradually Common Law has been displaced by Equity Law until today the Common Law is rarely heard of or understood because it has been covered up and hidden away by the legal profession for very understandable business reasons. Such people are pursuing their own private agenda. In fact the Common Law is generally looked upon as obscene, example: to have a common law marriage is considered to be unclean. Why? The first marriage license in the United States was issued in 1863. The question is not whether some third party should or should not perform the service; it is whether sovereigns must get permission from their servants (the government) before they can be married.
It should be remembered that the People are the sovereigns of State governments and the States are the sovereigns of the federal government. Thus the People, either directly or indirectly, are the sovereigns over both governments. The States have been given specific and limited power. They also made sure there were provisions that safeguarded the People's right to abolish or change that government and to create a different one if they chose.
2.) Private Law [contract law] = MAN-MADE-LAW
Private Law is that law [contract law] which comes into being when people enter into agreements [contracts] creating the rules and terms by which they agree [CONSENT] to be bound together.
State and federal constitutions are examples of private law. They come under the heading of contract law because they are contracts that establish governments and are designed to protect the People from the government. To keep the government under control, the People were very precise in the language they used to make it perfectly clear exactly what powers were being delegated AND that any powers not specifically delegated were reserved (by the People) to the states or the People.
It should be remembered that the People are the sovereigns of State governments and the States are the sovereigns of the federal government. Thus the People, either directly or indirectly, are the sovereigns over both governments. The States have been given specific and limited power. They also made sure there were provisions that safeguarded the People's right to abolish or change that government and to create a different one if they chose.
3.) Public Law [a form of private law]
Public Law is a form of private law that results when laws are made in proper application of the delegated authority conveyed to the legislators. Title 18 (the Federal Criminal Code) is an example of public law. It was drafted to grant unto non-citizens the protections and defenses Citizens have under common law; Title 18 does not apply to sovereign Citizens, who answer directly to violations of GOD's Laws.
4.) Administrative Law is one term used to describe private law that comes into existence when someone acquires dominion over others and can dictate to them what the law is. Title 26 (the Internal Revenue Code) in an example of Administrative Law; it and the other federal titles classified by congress as "non-public" (administrative) laws, thus apply only to subjects of the federal government.!