User:Oatmealo/Common law practice

Countries using the common law

Common law practice concerns how people actually apply common law both in their daily lives and in a lawsuit setting – as understood specifically within much of the patriot, tea-party, and common law movements within the United States. This is an understanding which greatly differs from that of many contemporary legal professionals. Within this understanding, this article specifically addresses how common law is practiced as functioning completely outside of civil law contexts, and differs quite significantly from other articles on common law which specifically address common law within the professionally popular civil content.

Within this understanding, outside of civil law, common law functions using the assumption that at the American Revolution the jurisdiction of the king of England and reciprocally the judges of the king's courts fell upon the people themselves to determine for themselves the law. Such individually applied common law is actively practiced by many people in former British colonies and particularly within the Common law movement.

Common law in this context is studied as it was practiced and set forth by the king himself and by his judges such that the practitioner may function as the king did in his own court.

History of Common Law Practice

The history of common law provides an understanding of how it can be applied by individuals within the United States and in other common law countries. It also explains the perspectives of the far political right who rely on the the following reasoning to explain their right to be the king or queen of their property and of their person, and that wherever they go, there is their royal court, passing judgment and thus moment by moment making the law by the common law. Their courts at common law are the highest courts, and the original jurisdiction, overwhich not even the U.S. Supreme Court has jurisdiction. And quite moreover, having unlimited jurisdiction, their will/determinations overrides all civil law (which functions within limited jurisdictions). Also in preface, historically as will be explained later below, civil law in the United States has been in a tension with common law, as civil law governs the regulation of government itself, exercising limited jurisdictions, while common law is the exercise by the people themselves governing or ruling themselves, each other, and the government -- particularly with an unlimited jurisdiction, just as the king had exercised before before the signing of the Magna Carta in 1215 A.D. As such, the common law is the foundational, core law within the United States and other common law countries. All of this is explained below.

Common law existing as the exercise of unlimited jurisdiction, means that the individual sitting in judgment, ultimately the king, overrules all others as the king was the ultimate source of both the determination of the law and the enforcement of that law within the kingdom:

“The ordinary king’s court, ... the full court sitting with the king, exercised a jurisdiction limited in fact only by the king’s will.” “The Court thus constituted was termed Curia Regis, or the King’s Court; it was also called Aula Regia, or the Royal Court. ... It had unlimited jurisdiction....” (Common-Law Pleading and Practice: Its History and Principles (1897), by R. Ross Perry, p.139 & 28, emph. added).

The king’s will was the only limit to his jurisdiction. As well, wherever he went, there was his court, for a court is: “The person and suite of the sovereign; the place where the sovereign sojourns... wherever that may be.” (Black’s Law Dictionary, 4th ed., p.425) Whether it be on his very throne, or in his castle, or as he sojourns the countryside. Wherever he was, there was his court. Other references also reinforce this principle:

“The words coram nobis (before us, the king) were used when reference was made to the King’s Bench, where the king was supposed in contemplation of law to actually sit.” (Common-Law Pleading and Practice: Its History and Principles, by R. Ross Perry, p.222)

“The very meaning of ‘sovereignty’ is that the decree of the sovereign [or the king] 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.)

The Magna Carta, also called the Great Charter, later placed limits or challenges to that unlimited jurisdiction. 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 strong 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, and put a check on the king’s previously unlimited power and authority through the right to call for a jury to judge the king’s judgments.

More references will be added here concerning the Magna Carta.

At the founding of the United States, the Preamble of the U.S. Constitution established the perpetuation of the king/sovereign’s unlimited jurisdiction having then rested upon the people themselves to rule as the king had in ancient days. A number of references show this to be the case. In the early days of the United States, the U.S. Supreme Court ruled that:

“...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) p.471-472.)

As well, the following references will be explained: (Jech v. Burch (1979) 466 F.Supp. 714, 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, Common-Law Pleading and Practice: Its History and Principles (1897), by R. Ross Perry, p.102-107, 222).

This freedom to exercise unlimited jurisdiction by individual people over each other and over government is exhibited throughout the historical literature and it is, more precisely, the fundamental and foundational freedom within the United States:

“...and upon whatever coast an English colony has been planted, there also have the colonists established the Common Law, and have ever afterwards clung to it as the birthright of themselves and their children, with a tenacity that no power, no suffering, no fear of danger, no hope of reward, could induce them to relax.” (A Report on the Civil and Common Law 1 Ca 588, 593)

This freedom of the individual to determine what the law is, without knowledge of written or civil law, is shown and was extolled by a committee of the first legislature of California in 1850 as a “magic power” because one’s unlimited jurisdiction literally overrules all civil and written law and all historical precidences (A Report on the Civil and Common Law 1 Ca 588, 599, 602) and California adopted this common law as its law. This legislative committee also explained that at that time there were some who wished to undermine the common law with civil law in California and in the United States as such undermining would be a boon to many in the various legal professions (1 Ca 588, 602).

In the same decade Justice Grier speaking for the U.S. Supreme Court also spoke of how there were many who wished to extinguish the common law and its use within the United States and replace it wholly with civil law, but that those attempts would fail (McFaul v. Ramsey (1857) 61 U.S. 20 How. 523 523, Common-Law Pleading and Practice: Its History and Principles (1897), by R. Ross Perry, p.8-9). They understood that at the very core, common law was and is the only real law in the United States.

Many historical texts also speak of the great flexibility to determine moment by moment according to each individual at common law what the law is, and how this characteristic gives the common law, and as a result particularly the United States, a strength and profound adaptability of law which nations following civil law lack and which hold those societies back in their social, legal, and financial behavior and evolution (Common-Law Pleading and Practice: Its History and Principles (1897), by R. Ross Perry, p.81-82, A Report on the Civil and Common Law 1 Ca 588, 591, 597, 602).

Contemporarily, the common law is still actively practiced particularly by those in the political right who value non-governmental involvement in their lives as popularly found among those who, by right, choose not to follow civil seatbelt laws, choose not have a driver’s license, nor to register a firearm, nor obtain civil name changes nor marriages, nor to pay property taxes nor income taxes. Such non-involvements by choice of unlimited jurisdiction are a right and freedom that cannot be taken away from people regardless of legislative law, civil court edicts, nor any kinds of business or financial agreements. As well, in California, many civil laws affirm the choice and freedom to operate at common law, and use common law practice and theory (California Civil Code 1812.219, Business and Professions Code 17511.10, Civil Code 1752, Revenue and Taxation Code 19375, Civil Code 851, Code of Civil Procedure 490.060, Civil Code 936, Civil Code 3333.5 (g), Civil Code 1942 (c) and Civil Code 1942.4 (f)). It’s validity is also mentioned throughout the U.S. Constitution, most notably in the 7th Amendment, which provided a check (of a jury) for a defendant to use against the unlimited jurisdiction of the plaintiff.

Filing suits at common law

In the evolution of common law from the time of William to Conquerer up to the time of the American Revolution in the late 1700s, as the common law was and is not something written down, ten titles of action were established by the crown and its courts, each covering specific evolved rights. Contemporarily in civil law, an action carries the title of a “complaint” whereas at common law, it may typically have one of the ten titles, which are: Debt, Detinue, Covenant, Special Assumpsit, General Assumpsit, Trespass, Trover, Replevin, Case (or Trespass on the Case), and Ejectment (Principles of Common Law Pleading (1894), by John Jay McKelvey, p.4), each representing specific rights -- first five being relational or accquired rights (p.12), the latter five being original or natural rights (p.31). When one’s rights were or are hindered and one preceeds with a suit to remedy such injury, one need not know any sort of lengthy written civil codes, but simply understand how all of one’s rights are protected by these ten forms of common law actions. Though even then, contemporarily, if it is filed using the wrong title, as the sovereign, you determine what the law is, regardless of the form, as long as one clearly states what the actions of the wrong-doer were, and often providing evidence thereof -- guilt and the law are presumed (A Report on the Civil and Common Law 1 Ca 588, 591, and see Principles of Common Law Pleading (1894), by John Jay McKelvey, and Common-Law Pleading and Practice: Its History and Principles (1897), by R. Ross Perry for much greater explanations of each title/form).

At common law, as one brings the accused into one’s sovereign court, with the state to enforce one’s judgments, if the accused cannot answer the facts set forth, the judgment goes to the sovereign. Furthermore, as sovereign, to more fittingly bring about the administration of justice, one also has the right to issue all of the high prerogative writs which the king would issue in his court. These writs include: Mandumus, Procedendo, Prohibition, Quo Warranto, Information, Habeas Corpus, Certiorari, and Writs of Error. Contemporarily many of these have been adopted by the civil law in the United States, and if choosing to function at civil law (where the state is the sovereign), one many appeal to the state for one of these writs. When one functioning at common law though, in one’s own court, one may issue such writs themselves (Common-Law Pleading and Practice: Its History and Principles (1897), by R. Ross Perry, p.102). And even when filing or participating in a civil suit, nothing can deprive one of functioning at common law, at any time (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, and 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).

Other Texts and Websites on Common Law Practice

References to be added

See also

• Common Law

External Links

• The Nitty Gritty Law School
• McUlta common law name change site