The use of royal writs

This section explains the high prerogative, extraordinary writs which the king would issue, and how they can now be issued in this country by plaintiff or defendant in a court of record.

Before examining what these writs are, the definition of a writ itself will be examined (Black, 1783):

So, a writ is often in a letter form, addressed to a specific person or group, it is in the sovereign’s, a president’s, or a state’s name, it is sealed with a seal and it commands someone to do something for the progression of a suit, or, for some other reason, it can require an act or grant authority for an act to be done. Simply, it is a command from the sovereign authority.

In civil law, many of these writs also exist and can be petitioned for with the state itself functioning as the sovereign.

In a court at common law, the common law assumes the sovereignty of the parties involved, especially though of the plaintiff who brings the suit into her court and pronounces judgment. Sometimes though the ordinary course of the common law court fails to accomplish the justice which one party or another wishes, so by their own prerogative, a party will issue one or several of the king’s extraordinary writs.

As mentioned, they were originally issued by a petition to the king, but now that the king is gone in this time of post American revolution, as one of the sovereign people, sitting as the tribunal of the court, one may issue them by one’s own will, out of one’s own common law court to accomplish a multitude of tasks. Like the kings of old, one writ is to command one’s ministers to do a task, another to command other individuals or groups to, another to deliver one’s self out of prison being held without charges and into a court for justice, and so forth.

Typically, they are also each accompanied by an invitation from the sovereign to show just cause why the document should not be obeyed. And if no just cause is given and they fail to obey the writ, then the sovereign may fine or imprison them for contempt.

Further, the titles of the writs do not limit the sovereign’s power in directing justice. The writs may certainly take other names, for it is a maxim of law that (Black, 1728):

In other words, titles do not control, though they certainly are important as they are indicators of what may be within a writ or other document, but the commands themselves are what matters. If it clear what the will of the king is, the ministers to a court should be a mirror of that will.

Perry (102) introduces the writs in his text:

These writs may be issued any time by the sovereign of the court, either orally or in written form. Habeas Corpus is perhaps an excellent example of this. Referring to the quote at the start of the previous section — because the court is wherever the sovereign happens to be, even in prison, one may issue habeas corpus verbally to release one’s self into a formal court venue.

In the case to remedy the hindering of the common law right to change one’s name, several of the extraordinary writs are very applicable for the sovereign of the court to issue when necessary. The first of which is a “Writ of Error Quae Corum Nobis Residant,” sometimes simply called “Corum Nobis”. Black explains this writ as follows:

The very last line is most important, as this writ is typically issued to “correct [a] purely ministerial error of [an] officer of the court,” especially a magistrate of the court or a clerk of the court; the writ is also “to correct a judgment in the same court in which it was rendered.”

Perry explains the Writ of Error Coram Nobis in a similar manner, though goes into more detail as to how it was down before the revolution (222):

“Before us, the king” notices an error made in a judgment and so he orders that his servants to correct the judgment in accordance with the his “contemplation of law” and “matter[s] of fact.”

The next writ one might possibly use is a Writ of Mandamus (Black, 1113):

Most importantly here, the Writ of Mandamus is “to command performance of a specific duty which relator [of the mandamus] is entitled to have performed” – such as compelling the defendants to recognize service of the common law suit served unto them, thus helping to set the plaintiff squarely in her right to a suit at common law. As also revealed above, “it could only compel them to act, but not control [that] action.” And, with this writ it can be proper at the end, to give the “opportunity to show cause” why the writ should not be obeyed. As well, by the definition above, for a “peremptory” mandamus, by words “it is the usual practice” one can understand that such rules are not set in stone – a beauty of the common law.

Perry (102) also gives an explanation of this writ:

It is used to make things “consonant to right and justice.” It resolves dissonance with harmony. Perry also reveals perhaps more clearly here that this writ “compels ... performance” when the act is not being done at all, but that the writ is clearly not meant to micro-manage the person in their accomplishment or personal discretion in carrying out that duty. Additionally, the line, “and for an infinite number of other purposes,” heralds that the obvious intention of the writ is what is of greatest importance, but also the words “infinite number” speaks to the vast abilities and powers of the sovereign and the extreme flexibility of the common law.

The next writ was a Writ of Certiorari and is often called a Writ of Review contemporarily. Generally, its purpose is to repair material irregularities in a suit (Perry, 107):

This writ can play a role in correcting the behavior of a lower court, or even pull a suit out of a lower and into that higher court reviewing it. The value of this writ is that this it’s purpose is to correct “any material irregularity” or wherever something is “imperfect” in a proceeding. It is also good to remember the definition of a court of record, that one of its qualities is that error lies in its judgments, and that no matter how much a common law tribunal tries to be perfect, unlike a civil court where everything is firmly fixed in statues – it is not going to be “perfect.” But if a court sees its own irregularity, it can still correct those with a writ of certiorari.

The reader at this time may be thinking, wait, this makes a court at common law an extremely powerful entity. And it has an unlimited jurisdiction. Is there nothing to control its far reaching powers? Well, some of these have been discussed already, but in the next sections these will be covered in more detail. For now, back to the high prerogative writs.

When turning to Black (287-8) concerning certiorari, the listing is quite extensive, with an abundance of references to its use in statutory, civil settings, but the parts perhaps most applicable are shown below:

“Where judgment is a miscarriage of justice” and “circumstances are so exceptional that an immediate review is in interest of justice” are possibly the most applicable to this suit. The writ of certiorari might be issued among other things if the court saw a scheduling error and an error in one of the court’s own judgments so would issue this writ in review of the action in progress to correct its own errors.

The next writ one might issue is a Writ of Execution to have the magistrate (a minister of the sovereign) to enforce judgment. The court could just as readily titled this a the “Writ of Procedendo” given the slight difference in definitions and the great flexibility of the common law. Turning to those definitions, a Writ of Execution has been defined as follows (Black, 1786):

This is a very straightforward definition, and very easy to understand. After the judgment has been made, this is a command to a minister of the court to enforce it.

If you file a common law suit, functioning as a sovereign — one of the people as contemplated in the Preamble of the Constitution, the government is the vehicle by which the sovereign people rule their land by the common law.

Turning to the writ of procedendo itself (Perry, 1367):

After the sovereigns battle in their pleading until one or the other admit defeat by demurrer, or by their silence in the various matters, after such a battle, amid “improper delays” or potential delay by ministers to the court, “to go on with the discharge of their judicial function” this writ is issued. And “disobedience of this order may be punished as a contempt.”

Black (1367) shares a similar evaluation of this writ:

In this definition, here we see the use of the sovereign’s name and will when delay is occurring. “It was the earliest remedy for the refusal or neglect of justice.”

Other extraordinary, high prerogative writs could be discussed, but these are the most applicable to this suit at this time.

It seems appropriate at this point to include several quotes below. These quotes reinforce and add yet another level of validity to all that has been said thus in this treaties:

“...at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects...with none to govern but themselves....” [Chisholm v. Georgia (US) 2 Dall 419, 454, 1 L Ed 440, 455 DALL (1793) pp471_472.]

From this quote one can understand, that if the “sovereignty has devolved on the people” that truly there is no higher ruler than the individual people themselves to govern and bring suits against each other when wrongs are done.

“The very meaning of ‘sovereignty’ is that the decree of the sovereign makes law.” [American Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S. 347, 53 L.Ed. 826, 19 Ann.Cas. 1047.]

This quote coincides with the concept that at common law – whatever someone thinks is right and wrong – using their “good common sense” is like a “magic power” because whatever they think and say is right and wrong — that is the law.

“To presume that a sovereign forever waives the right to exercise one of its powers unless it expressly reserves the right to exercise that power in a commercial agreement turns the concept of sovereignty on its head.” [Merrion et al., DBA Merrion & Bayless, et al. v. Jicarilla Apache Tribe et al. (1982) 455 U.S. 130, 102 S. Ct. 894, 71 L. Ed. 2d 21, 50 U.S.L.W. 4169 pp. 144_148]

This helps one understand that at any moment, whether involved in a civil, admiralty, or other variety of suit outside of common law, or after invoking a statute or code, or if involved in any sort of business agreement or otherwise, one never loses their sovereignty and may return to using the common law in virtually any situation, without limits.

“The people of this State, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the King by his prerogative.” [Lansing v. Smith, 4 Wend. 9 (N.Y.) (1829), 21 Am.Dec. 89 10C Const. Law Sec. 298; 18 C Em.Dom. Sec. 3, 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 167; 48 C Wharves Sec. 3, 7.]

And those rights and prerogative of the sovereign can be exercised in a suit at common law.

For a brief explanation of ALL of the extraordinary writs go to: More about royal writs or move to the the next section:

Part Two E -- How Do Common Law Suits Proceed?: The form: “Trespass on the Case”