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fyi @ Common Law - Self Defense

Taken from a British Legal Book -

Principle - Quod necessitas cogit defendit

"...Any person has a right to use all nesessary force for the purpose of protecting his own person and the persons of those dependent upon him. He has a right to use force to resist force. It may well be that the defence of any one by any one is allowed. The term 'self-defence' is accordingly to narrow: and it is sometimes replaced by the term 'private defence.' We have said that the amount of force used must be reasonable; in other words, its is for the defender to maintain a sense of proportion." pg. 317

* Constitutional and Administrative Law, Bentley and Lawson. London: Butterworths, 1961.




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interesting

but where does law finish?

Unalienable Rights

"A Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal doctrine arising from English common law[1] that designates one's place of residence (or, in some states, any place legally occupied, such as one's car or place of work) as a place in which one enjoys protection from illegal trespassing and violent attack. It then goes on to give a person the legal right to use deadly force to defend that place (his "castle").

This is where the maxim a man's home is his castle comes from.

You need to look at books alot older books than 1961 and carefully consider what you are studying. There has been a systematic attempt since the late 1800s to remove all concepts of common law and replace it with positive law. It's gotten worse in the last 40 years or so too.

A well trained monopolistic lawyer or judge will maintain that common law is judge made law. This isn't how our founders understood it. They understood it as the embodiment of their rights from English law, including such things as the Magna Carta.

Besides the castle doctrine, related common law rights might include knock and announce. This has been replaced in the last ten years with swat teams and deadly force. People and their dogs getting shot in their own homes. The common law subverted. The Nazi's would be proud.

Reading the declaration will give you a good sense of what you have an unalienable right to protect, your life, liberty, and pursuit of happiness (or as expressed in other documents, your property).

Unalienable Rights can't be taken away by a judge, or a majority vote. They are yours to defend, and they are a gift from God.

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

Unalienable Rights

...have obviously been subverted.

Legal positivists are carrying the day as you allude to.

I have, recent sources are also pertinent. The 4th Lateran Council of 1215 has given me invaluable insights.

donvino

I'm not sure what the 4th

I'm not sure what the 4th Lateran Council would give you insight in about common law, as it was the first council that instituted the inquistion. I view it as an anti-freedom document.

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

A Guess on Insight

Insight, as in sight inward, into, the looking at a thing's core, foundation, origin, thereby understaning what followed from there.

Just a guess, but I think that's what he means. Maybe he'll reply. About the 4th Lateran Council business, I haven't a clue. lol.

School's fine. Just don't let it get in the way of thinking. -Me

Study nature, not books. -Walton F. Dutton

Well, I looked up Lateran

Well, I looked up the Fourth Lateran council link, and found what I was looking for earlier.

First:
http://www.historyguide.org/ancient/3canon_b.html

But you should read the whole Fourth Lateran council carefully (you can see it online), because not only did it call for punishment for all declared heretics in the first few canons, but also a crusade, and as I recall, special clothing for jews in other sections. This time period was the start of the inquistions, and relatively near the split between the east and west church too.

----
I found out recently that Lombard was responsible for some of the discussion about conscience vs conscious at this time period, and have been meaning to read more about him.

Conscience vs conscious use to be the same word. It split I believe about this time. So Lombard is an important point beyond religious doctrine for studying origins.
---
http://www.historyguide.org/ancient/3canon_b.html

There are significant discussions of conscience among the Stoics. Seneca the Younger discusses conscience in his Epistulae Morales (43, 97, 105) and attributes several qualities to it. St Paul discusses conscience in various letters (I Corinthians; Romans; Hebrews; Timothy). Whatever the influence of Seneca and St. Paul might be on subsequent discussions of conscience and synderesis, late medieval discussions of conscience derive from Peter Lombard's presentation of the concepts of conscience and synderesis in his Sentences. Lombard cites a passage from St. Jerome, interpreting Ezekiel's vision of four living creatures coming out of a cloud. Each creature was shaped like a man, but each had four faces: the front face was human; the right was that of a lion; the left was that of an ox; and the back was that of an eagle (Ezekiel 1.4–14). Jerome identifies the human face as representing the rational part of man, the lion as the emotional, the ox as the appetitive, and the eagle as that “which the Greeks call synteresis: that spark of conscience which was not even extinguished in the breast of Cain after he was turned out of paradise, and by which we discern that we sin, when we are overcome by pleasures or frenzy and meanwhile are misled by an imitation of reason.” Jerome's comment that synteresis (alternatively, synderesis) is never extinguished in human beings and his remarks elsewhere to the effect that wicked people do cease to have any conscience led Lombard and subsequent thinkers to distinguish synderesis from conscience. While it is unclear that Jerome meant to distinguish the two, the distinction plays a major role in late medieval discussions of conscience.

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

Lateran Council of 1215

'Birth of Jury Trial was forced by a Great Religious Event....4th Lateran Council'

thus, 2 systems - mutatis mutandis --> Common and Civil

- Western Law was born out of a religious attack on the Judicial Ordeal and jury trial in particular was one of the Western forms that emerged in the wake of the attack.

Basically, Judges went from ministers of bloodshed to ministers of Law. Ordeals were akin to warfare --> Canon 18

donvino

You should go back to the

You should go back to the laws of Alfred the Great. You have to discard anything that calls for murdering a large number of people as inadmissable. The actual english roots for Christian law comes from Alfred - who traces it in turn to the Bible and apostles. When the Normans invaded, a lot of the Anglo-ish (english) law remained. Alfred the great was an uniquely Christian king, and quoted the Bible in his laws. Sherieffs for instance are from the anglos. The king was also elected.

FYI - I have a copy of Alfred's laws around here that I might be able to dig up if you want me to email you a copy. They are hard to find even online.

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

[Alfred] is generally

"[Alfred] is generally credited with establishing trial by jury, the law of "frank-pledge", and many other institutions which were rather the development of national customs of long standing.."

But he is responsible for the first common law (which united all the laws of england or anglo-land), which traced their roots to the Bible. Also, he first translated part of the Bible into (old) english, and he wrote a number of Christian writings including poetry (you can read a volume or two of these online).

Jury trial as a set of twelve men probably can be traced all the way to the Bible. They can be contrasted to town courts, where everyone is part of the decision making instead of a set of representatives. A good study of Alfred would probably contrast him with other Christian kings at the time, including Charlemagne. At this time, there was no split between the churches.

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

Yes on Alfred

As well the Norman Conquest and their fierce rulers and their successors the Angevins ie. Henry II circa 1154 persided over the initial stages of the creation of Common Law.

I do not disagree, I was merely referring to the theological roots of the criminal trial.

ie. moral theology, reasonable doubt, juries (juries of presentment and proto-juries) etc.

Sir Matthew Hale has some epic writings on the topic.

p.s. Danish Law ...'12 Thegns' - 12 high status persons to denounce all malefactors in their community.

donvino

We should start a separate

We should start a separate thread on this at some point. It's getting squished, but we obviously both like delving into history to see the origin of things.

And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

Hopefully

Someone will post a new comment here :)

donvino

You guys are funny! lol

You guys are funny! lol :p.

Hey, though, huh -- happy birthday to liberty's champion, Ron Paul! Go, Ron!!!

School's fine. Just don't let it get in the way of thinking. -Me

Study nature, not books. -Walton F. Dutton