In this section will be taught how a suit proceeded at common law. Because there is no written law, no statutes to guide, the only thing one has is one’s own sovereign authority, the force of logic, and a knowledge of history.
One should also be informed that when a suit at common law was filed, usually no statement of what the “law” is was mentioned. It was merely assumed that the facts which transpired had caused a wrong, else why would the suit be brought!? If the defendant wished to counter attack, logic of the facts and how they were presented was all that could be done. No arguments of what was right and wrong could be made. If you had a wrong, it would fit into a category (a form of action), and suits were filed using those specific categories or forms, each relating to either contractual agreements, or natural or ownership rights. That was all. These forms of wrongs were centuries old, and that they stood the test of time was the proof for their continued use. One of the few ways a Defendant could counter attack not just concerning facts and logic was a claim that the suit was not filed under the proper form, but as will be shown, at common law, appeals to for cannot hinder justice from being executed. Those forms of action though will be discussed further below. Nonetheless, first will be addressed the subject of history.
An understanding of history is imperative to understanding how common law functions in the United States. As mentioned, whenever there is a book published in the U.S. teaching about the common law, it teaches the pre-revolutionary history of it, so that the student will understand what the law is and how they can apply it in their own royal court.
Moreover, history itself is taught so that one will not resort to new cumbersome laws of which the past has already found solutions. Perry (p.108) quotes Pollock and Maitland:
These books also teach some of Roman law too, because most of mainland Europe used Roman law, while England used common law. This is done so that the student will clearly understand the difference. Roman law evolved primarily out of people seeking an arbitrator to resolve their conflicts (Perry, 13) and by way of the writing down or codification of laws (RCCL, 591). As civil law applies not to the case of common law name changes, the details of civil law will not be covered. The student ought to keep aware though of the adoption by the civil law of the common law principle to change their name by the common law, similar to the civil law’s adoption of the right of Habeas Corpus (RCCL, 592).
The history of common law itself is also detailed and for the purpose of this document, what is covered is only what may be deemed the most essential to an understanding of the origins and application of common law, and, most especially, details in relation to common law name changes and other changes to the indica of the self.
When William the Conqueror came to England and overthrew the old kings, with him and his posterity, it became established that the kingship was the source of the law and of justice itself. The name of the king’s court was called, Curia Regis. Perry (28) explains it below:
Elsewhere, Perry (p.21) speaks of the king being the fountain of all justice:
Furthermore, although the king did delegate authority to others, this by no means diminished his own authority in any matter within his overarching jurisdiction (p.139):
In England, after William the Conqueror, the rights of freemen began to be established. It was pretty bumpy at first and the first few kings were rather unruly, but with King Henry II, he established the grand jury and the jury trial to put checks on the kings own power (p.14 in The Development of Constitutional Guarantees of Liberty, by Roscoe Pound, New Haven: Yale University Press, 1957).
When King John came to rule, some thought that he was not behaving justly and rightly, and under the sword was forced to sign the Magna Carta in 1215 A.D.; it put some great checks on the king’s power which have endured the test of time. This Great Charter laid down a firm foundation for the common law to stand. Particularly, it established numerous rights in the land, putting a check on the king’s previously unlimited power and authority. The 34th chapter established that every freeman could not be deprived of his own court in which to settle matters (Pound, p.122):
In time, also, the several forms of common law actions evolved. How they evolved is a very long tail in itself, but, essentially, each one had come about simply to fulfill a specific purpose. They are each is listed below (McKelvey, 4):
Historically, that is the purpose of any action at law (meaning common law) – to remedy a wrong. These actions represent the unwritten living law, and they adapt to fit the circumstance. More will be said of this later.
The next few sections address why a suit is brought and how it is brought. In particular covering:
• what a remedy is and how reason informs all the proceedings of common law
• what a common law court is
• the use of high prerogative writs in a common law suit
• the aspects of an original complaint/action in relation to the common law form “Trespass on the Case” used to remedy the loss of a right to a name change,
• how battle between the parties occurs at common law, and
• how common law applies when or if you were to file a suit at common law.
Part Two B -- How Do Common Law Suits Proceed?: Remedies and reason