Common Law Pleading Regarding Name Changes
Part Two B -- How Do Common Law Suits Proceed?
Remedies and reason
To remedy a right, to repair an injury to a right through restoring the right to the person and compensating them for their losses while that right was deprived – is at the very center of why any suit is brought:
From the quote above (Perry 11), “The law will, that in every case where a man is wronged and endammaged, that he shall have remedie,” leaves no room for excluding a suit from a remedy if clearly someone has been wronged. When Lord Coke said, in “every case” and “shall have remedy” it speaks that the law lives only for justice. And that “the law expands by force of its inherent elasticity” speaks of its unwritten nature -- how that elasticity itself gives the law its profound power. And that power is not grounded in stiff codified law, but in history itself. It “is not confined to precedent,” but its foundation is in reason, “reason more extensive than ... this or that case” within the past.
And an action to repair one’s self is but also, literally a demand (McKelvey, 5):
When all other avenues of reasoning with someone fail, there must be a way to correct a wrong, and that is to demand it in an action. It is also not just a demand with the force of the king and his servants standing behind that demand, but it is also an invitation to a challenge.
Common law actions are often referred to as “special pleadings,” because each one is different to suit its case at hand. Instead of swords and other physical instruments of violence as were used anciently, each uses the living words of knowledge and logic brought together (the living law), to battle one’s opponent (Perry, 4):
And the logic of the law is not bound by codes and statutes, for it is alive (7):
Codes do not bind it. Rules do not bind it. Logic binds it.
So, in the midst of this demand and invitation to a challenge are the ten different forms of common law actions. They are the living weapons of the law. As a plaintiff in an action, one matches the wrong with the form so there is sureness of the wrong done. But the forms themselves are structured in a manner which affords flexibility to the law. So the law lives, and its weapons too (3):
Like the living law that cannot be written, they are its institution, and they live and breathe to fulfill justice. If the law lives and breathes, so do the forms of its actions.
In the early days of English law, the writ called Praecipe was used (See Magna Charta, chapter 34). It became custom to first demand one’s right from someone, and then if they did not fulfill that demand, for a court to be had in which they had an opportunity to show cause why they should not fulfill it (4):
The writs or commands were how the law was enforced. If you did not obey someone’s demand or command, in fairness, the common law allowed you to either challenge the writ, or be subject to the remedy under the force of the king and his servants.
In one’s pleading that the defendant meet the demand, or that the plaintiff is wrong in their accusation, the object of the pleading was to find the weaknesses of the logic regarding the facts (3):
In the pleading, concerning the wrong brought forward, the beauty of the pleading is in the certainty of its truth.
It is not about following a code, or a rule, but given one point, the opponent counters it with another, back and forth til the facts are clear and the loss thus certain (2-3):
When the arguments between the parties are clear and make sense, both the law and the facts are certain. Good pleading, the logic of the law, it is the “heart string of the common law.” It is good to recall some of the opening quotes of this treaties, that the common law is the law based on “good common sense” which “inspires every man who may happen to be possessed of it” (RCCL, 588-9); the pleading is the logic concerning the facts – it is a reflection of common law, for at common law itself is unwritten. Ipsius legis viva vox means that pleading is the voice of the living law itself.
In recent times, many people have come to adopt codes, rules and regulations to govern the courts, imposing a civil-ness which has only stymied swift and sure judgment. Civil law has taken such a firm foothold among many that they have forgotten what the nation was founded upon and willingly they have handed the keys to the their kingdom over to codes, policies, administrators, judges, when by right, it is the true place of the people themselves to rule themselves in freedom – by the unwritten law (8-9):
When the right form of action is chosen, the law is clear and judgment swift and sure. Following codes, statutes, and rules in a court at common law, even to extinguish the common law completely is an “experiment” “impeding the administration of justice.”
Part Two C -- How Do Common Law Suits Proceed?: Common law courts