Common law courts
Now that it is clear that reason is the soul of the common law, and that the forms of action are their embodiment in an suit at common law, before discussing the forms, it is important to understand what a common law court is, by definition, and then how that definition is related to our government.
Before explaining the details of a common law court, it is meaningful to examine Black’s definition of a “court” under the heading of “International Law” (425):
So, in a way, the court is wherever the sovereign happens to be. Wherever the king travels and passes a judgment, there is his court present.
As revealed earlier, in England, the king was the original source of authority and justice. Before the revolution, even then in the colonies, it was the king and the king’s servants who enforced the law in the king’s name and seal, and by their threat of force. The king ensured the peace in his kingdom. As such, when common law courts occurred after the revolution, they took on similar qualities as under the king, but the people themselves became the highest authority and instead of petitioning in extraordinary circumstances for royal writs which the king and his courts alone could grant, the people themselves came to issue their own (to be discussed shortly).
These new common law courts, like the common law courts of England, were called “courts of record.” Courts of record were different than other courts, such as civil and admiralty courts, (Perry 21-2):
Here one can see the typical characteristics of a court of record. Firstly, the “tribunal” is independent of the magistrate generally designated to hold it. Which means, at common law, that the magistrate is not a judge, but like the ministers of the king’s court of Curia Regis (covered earlier), the magistrate “took its inspiration from the king, and pronounced his judgments, which were binding upon the whole people” (28). The ministers stood to be a mirror of the king’s will and judgment. With the king’s name and seal they would ensure that the king’s judgments were enforced. For, quoted above, “all ... courts of record are the king’s courts.” Also, the proceedings were recorded “for a perpetual memorial and testimony.”
Black’s Law Dictionary 4th edition also defines a common law court, a court of record, in the same way (p.425-6):
It “is a judicial tribunal having attributes and exercising functions independently of the magistrate designated generally to hold it.” It proceeds “according to the ... common law.” Its acts are recorded for a memorial. It generally possess a seal. Can fine or imprison for contempt. And a final quality about them is that their judgments have errors. Common law courts are not “perfect” courts, but they are acceptable by the Constitution of the United States and in California.
For further reinforcement of the validity of common law courts/courts of record in the United States. Another passage of the U.S. Constitution (not just the 7th Amendment quoted at the start of this document) reads in Article 3, Section 2, that, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.” But what does in Law and Equity mean. Turning to Black once again it reads (426):
This brief is not meant to teach chancery or equity law, nor the definition of an equity court, but by Article 3, Section 2, along with Black above, “The judicial Power shall extend to all Cases, in Law” — meaning common law, and thus to “administer justice according to the rules and practice of the common law.”
One can thus understand the relationship between the people and their government at common law. The power of sovereignty rests with the people in their own courts of record and government ministers only act to reflect and enforce their will. The people rule. Their judgments may be imperfect, but also by the common law, those limits can be challenged by one’s opponent in the court of record, and when necessary through calling a jury. This puts a check on one’s individual sovereign will — “that magic power ‘good common sense’ ” (RCCL, 588-9), and how those checks occur will be explored shortly.
Part Two D -- How Do Common Law Suits Proceed?: The use of royal writs