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Common Law Pleading Regarding Name Changes
Introduction
This body of text will instruct you on the history of common law and how to file a common law suit
as mentioned in the 7th Amendment to the U.S. Constitution to remedy someone depriving you of a
common law name change. You must realize that most attorneys today do not use this system of
law, and many local officials are not familiar with it either, but at the U.S. revolution in the late
1700s, common law pleading was what was used and in most states the ability to file a suit at
common law is mentioned in the statutes (see Affirming Codes (mculta.daisydoor.net/pldg/b3.html))
and it is also mentioned much in both federal and state civil suits (see Affirming Cases
(mculta.daisydoor.net/pldg/cases1.html)). Depending on the state or country you are in, you’ll have to
look up in your own constitution and statutes if it makes mention of it like it does in California
codes.
In places like Australia where I hear they do not have a Bill of Rights it was because all of the
forms of common law actions included the rights which are natural to us all. As I recall from my
political history classes, there was great debate in the United States whether to even have a Bill of
Rights either, for the development of the forms of action over the centuries was what guaranteed
our rights.
Also, you could file a suit according to statutory/civil law to claim common law rights, but in
several examples I have found, because the suits are filed using civil law, as the tribunal is a judge
in such circumstances, they tend to strictly follow statutes and not common law, so the
determination of such courts is not always in accordance with full common law. So, this document
suggests instead to use a suit “at common law,” and tells you what that’s all about and how to do it.
As said, the following document instructs you on the history of common law and how to file a suit
using common law, not statutory law. At common law, following statutes is merely optional.
Common law itself is a system of law that developed over hundreds of years in England. If you live
in the United States or other former British Colony, then if you do your homework, common law is
probably still on the books as part of your country’s constitution or is expressed in some other
manner. Most of the original colonists of such countries gloried in the common law over the civil
law (sometimes called statutory law or Roman law) because the common law was something
unwritten. Quite literally, it is “common sense.” There’s nothing to memorize, because there is no
written laws to recount.
The Seventh Amendment to the Constitution of the United States is our safeguard and guarantees
that everyone has the right to file a suit using common law and it places an additional guarantee
with that right — that the right to a trial by jury shall be preserved with that right. Let us read
the 7th Amendment now:

In Suits at common law, where the value in controversy shall


exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise
re-examined in any Court of the United States, than according
to the rules of the common law.

We see it mentioned here twice, at the beginning and at the end. At the beginning, it establishes
that we have the right to file a suit using common law, at the end it establishes that whenever a

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jury is called, the common law shall be their guide.


__________
This guide to common law pleading and practice in relation to common law name changes (and
changes to one’s identity or indica of self, such as gender) is divided into several parts, the first
several sections explain what the common law is in the United States and its history, the latter
sections, how a suit at common law proceeds. Everyone has a right to seek remedy to injustices by
way of serving and filing a common law suit in accordance with the 7th Amendment. Thirdly, this
brief explains how the common law applies to an identity change common law suit.
This document uses several texts as references, but primarily Black’s Law Dictionary 4th Edition,
St. Paul: West Publishing Co., 1957 (hereafter Black), Common-Law Pleading and Practice: Its
History and Principles, by R. Ross Perry – of the bar of the District of Columbia, Boston: Little,
Brown, and Co., 1897 (hereafter Perry), Principles of Common-Law Pleading, by John Jay
McKelvey – of the New York Bar, New York: Baker, Voorhis, and Co., 1894 (hereafter
McKelvey), and A Report on the Civil and Common Law (1 Ca 588), by a committee of the first
Legislature of California in 1850 (hereafter RCCL and available to read as a pdf). These four are
the primary texts of reference.
As much as possible, direct scans of the documents are used herein. Some quotations have been
pasted together due to page separations and other obstacles of the texts. So it is asked that the
reader please excuse lack of total precision in visual presentation.
Civil law (sometimes called Roman, statutory, or code law) has taken great prominence in recent
years and most of these texts are greater than 100 years old, but there are very few books
presently published on common law and how to file suits in accordance with the 7th Amendment.
Again, this guide will reveal the history of common law and its practice, and especially throughout
this text, show how it applies to changes to the indicators of the self, especially name.

TABLE OF CONTENTS
What is Common Law? (mculta.daisydoor.net/pldg/b2-1.html)
How Do Common Law Suits Proceed?
• History (mculta.daisydoor.net/pldg/b2-2a.html)
• Remedies and reason (mculta.daisydoor.net/pldg/b2-2b.html)
• Common law courts (mculta.daisydoor.net/pldg/pldg/b2-2c.html)
• The use of royal writs (mculta.daisydoor.net/pldg/pldg/b2-2d.html)
• The form “Trespass on the Case” (mculta.daisydoor.net/pldg/pldg/b2-2e.html)
• The proceedings in a court of record (mculta.daisydoor.net/pldg/pldg/b2-2f.html)
Magistrates at Common Law (mculta.daisydoor.net/pldg/pldg/b2-3.html)
End summary (mculta.daisydoor.net/pldg/pldg/b2-4.html)

Common Law Pleading Regarding Name Changes


Part One -- What is Common Law?
Common law is, very simply, what is “right” outside of any sort of government rules, or other so
called authorities. It places the ordinary person and their reasoning as the authority. It is the
natural, simple reasoning of what our rights are and what remedy is proper when those rights are
violated. Reason is the living law — the common law.
Civil law is different than common law. Civil law is law which is written down and has its roots in
the Roman Empire and in many texts is referred to as Roman law, or statutory law, or laws which
are written and interpreted by judges. Also, when you are functioning at civil law, you are
functioning as a “citizen,” like a Roman citizen, who is subject to the stern inflexibility of such
statutes and the arbitrary judgments of judges concerning such written law. The weakness of this
system of law is its great inflexibility and the abitrary decisions of magistrates — and the need for
it to try to cover every circumstance possible. As common law is less used today, many presently
have resorted to try to get civil laws passed to do just that, to cover every circumstance possible.

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For a metaphorical comparison though, civil law is like an ever expanding machine of control, of
which no one can know every part. Common law is like a living, breathing tool, connected to the
universe itself, and especially connected to your own internal knowledge of right and wrong, such
that this law can alter its form, bend and evolve to suit literally any situation at hand. Literally, it
is the living law, morality itself alive and in practice.
__________
A reading of the RCCL reveals that at that time, that there were a few attorneys who very much
desired for the establishment of civil law in California as possibly a great bolsterment to their
profession; they wished for common law to be abolished in California and civil law to be
exclusively adopted. From this report though, it is clear that most attorneys at the time understood
how foundational the common law was in California and in the United States generally and the
report concludes with the strong advocation that the legislature ensure that Common Law stays as
the law in California. The document also goes into some good detail concerning how common law
is truly the foundation upon which the United States was founded and of its superiority to civil law.
According to common law (RCCL, p.588-9):

Here we see that using common law, the plaintiff brings their case. They use reasoning to
determine that they have been done wrong and through that reasoning that they “form a just and
correct judgment.” The plaintiff determines the law and the judgment at common law. The
sovereign makes the law, as if their “good common sense” were a “magic power”! The individual
people are the sovereigns when living life and filing suits using common law.
Concerning San Francisco lawyers, this report said (589-90):

Later on in this brief will be discussed how a suit is brought forward using common law.
Concerning the common law’s validity and its fundamental permeation in the U.S. Constitution,
this report says much (591):

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Statutes mean nothing at common law. Common law is the, vast universal essence of all that is
right and just.
The report goes on to speak of how common law has influenced civil law (592):

In this quote above we see them reflecting on the 7th Amendment and how trial by jury and
Habeas Corpus have been adopted now in civil contexts as well as at common law. Such a
statement takes nothing away from the validity of the suits at common law and our fundamental
right to it. Later we shall see that Habeas Corpus is but one of the extraordinary royal writs that
one may issue in a court at common law.
The report goes on to explain that the common law has been grounded as the birthright of freedom
which every immigrant settler has taken with them out of England into their new land (593):

This is so powerful a statement about the common law, that they have “clung to it as their
birthright of themselves and their children, with a tenacity that no power, no suffering, no danger,
no hope of reward, could induce them to relax.”
The report makes several comparisons between common and civil law explaining some of it
metaphorically to the aide of the reader (597):

Like comparing civil law to a dead, inflexible machine, this quote speaks to this rigidity of the civil
law, but oppositely how the common law is alive.

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The report also speaks of how in civil law, not only are all the laws written down, but such a fact
thus leaves the people powerless and uneducated concerning the finely written details of the law,
requiring them to consult specialist attorneys at nearly very turn in their interactions with others
(602):

Furthermore, such a written system of laws also leaves people at the mercy of the deciphering
ability of “judges” who are charged (in civil law) with arbitrarily interpreting the written civil
law. In civil law, the making and more so interpretation thereof does not rest in the people
themselves, but upon the opinions of judges. The interpretations of judges are based (602):

In civil law, the law is decided according to a judge’s own “arbitrary and discretionary judicial
power.” The judge decides the law. Contrastingly, in common law, the people know intrinsically
what is right and wrong, and as sovereign, they know and determine the living law, the common
law, and bring their suits in accordance with it. In the next section it will be explained how suits
are typically brought.
__________
This may also be a good time to explain that many of these texts to be quoted herein refer to the
common law in the past tense, and explain in gross detail the common law and how suits proceeded
according to it as it was done at the revolution — when the colonies broke from England. Black
gives some additional insights about this in his definitions (Black, 345-6):

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From this, we not only see that common law was a very different animal than various other systems
of law, but we can also understand why it is so often studied in the past tense, for it encompasses
“usages and customs from immemorial antiquity” and is “the unwritten law of England.” It was
the law which “had been adopted and was in force here at the time of the Revolution.” And that it
has an “organic” nature – indicates its not only adaptability, but its fundamental nature as a
system of law and practice in this country.
Sometimes those studying and writing about the common law go even so far as to explain how

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proceedings were done at the time of William the Conqueror, before even the Magna Carta (one of
the seminal documents which helped ground the common law as the law of England). They go back
and refer to it in the past tense, because the common law is about the evolution of how people
thought about right and wrong. As we will later see, especially in the forms of common law actions,
it is still alive and adapting to new situations, but its foundation is ancient and a knowledge of the
law is based on principles of personal sovereignty and moral reasoning, not inert inflexible codes
interpreted by judges.
Also, in numerous contemporary civil cases, while referring to common law in the past tense, the
common law is repeatedly verified as still being quite valid today when it is evoked in a civil court
setting.
All of this speaking in the past tense, is also very much done so as to instruct the reader on what
the essence of the living law is: That history of what authority was, how reason was informed by it,
and how injustice was presented to the world, thus informing the reasoning and presentation of
today — not as a set of unbending rules, but by the understanding of truly what reasoning is and
how it came about; not by verbal form so stiff it strangles every suit, but by the establishment of
facts.
The history is to understand the principle that good form is a result of good substance — that
“form” itself drives not, nor enforces the common law, but facts and reason.

Part Two A -- How Do Common Law Suits Proceed?: History (mculta.daisydoor.net/pldg/b2-2a.html)

Common Law Pleading Regarding Name Changes


Part Two A -- How Do Common Law Suits Proceed?
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.
__________
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:

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One need not reinvent the wheel if we can find that the wheel has already been invented. History
also provides us with the living law (4):

Thus is maintained the understanding that the common law is not a set of rules, but a knowledge of
the past. Thus, the study of common law entails the study of the origins of law and how conflicts
have been historically resolved, and, then, such knowledge is applied to the present.
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:

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The king was the source of the law and of justice, and had ministers which assisted him in carrying
out that law and justice. The king’s ministers “pronounced his judgments.” His court was the
highest court and carried an unlimited jurisdiction. All other courts were inferior.
Elsewhere, Perry (p.21) speaks of the king being the fountain of all justice:

Here again we see the absoluteness of the king’s jurisdiction and authority.
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):

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The king’s will was supreme. If the king wished it, it was in his jurisdiction. Literally, his
jurisdiction was unlimited (and at common law, so is yours). Moreover, the king could hear or
review any case from a lower court, and could issue royal writs to command lower courts to do
things according to his will. These writs will be discussed later in one of the next sections. (p.141):

If the king was pleased to hear a case, it was done, the only thing limiting his jurisdiction was his
will alone. This passage above also touches on the need to petition for a royal writ to be issued by
the king. In common law courts in the United States, where there is no sovereign but the people
themselves, they themselves can issue their own writs by their own prerogative. Returning to the
texts again, nearly all documents issuing from the king and his court also bore a seal (141):

The seal was clearly a mark to whomever received a document from the king, be it someone in
another land, to all people of his land, or to an individual, so that they would know with absolute
surety that it was from the king himself. There would be no mistaking a document from the king.
Additionally, for writs issuing from the king, the seal and the king’s name together stood as a test
or a witness of the document’s validity (p.145):

This was how the king operated in his affairs, how his will was made know and justice
administered.
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):

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and the 61st chapter of the Magna Carta established that when the king did step into a matter, that
a jury of barons could be called, which upon making a decision had the force to counter the king’s
will. Later, the Magna Carta was given additional strength with the signing by King Edward I of
the Confirmatio Cartarum or Confirmation of the Charters. Part of that confirmation reads
(Pound, p.129):

The Great Charter and the Confirmation of it later profoundly influenced the establishment of the
common law in the United States. Pound himself says (18):

It was a charter, a set of propositions meant to become ordinary parts of how they lived their lives
– not a set of written down civil laws for which there was no bending.
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):

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A suit to claim the right of a common law name change, or change of other indica of the self, falls
under the form of Case, specifically “Trespass on the Case.” This specific form will be explained
later. For now it is important to understand that each of these represented specific rights for
which remedy could be sought.
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
(mculta.daisydoor.net/pldg/b2-2b.html)

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:

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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):

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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):

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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):

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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):

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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
(mculta.daisydoor.net/pldg/b2-2c.html)

Common Law Pleading Regarding Name Changes


Part Two C -- How Do Common Law Suits Proceed?
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

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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

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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

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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
(mculta.daisydoor.net/pldg/b2-2d.html)

Common Law Pleading Regarding Name Changes


Part Two D -- How Do Common Law Suits Proceed?
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

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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:

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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

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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):

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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:

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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):

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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:

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“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):

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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:

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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.]

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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
(mculta.daisydoor.net/pldg/writs2.html) or move to the the next section:
Part Two E -- How Do Common Law Suits Proceed?: The form: “Trespass on the Case”
(mculta.daisydoor.net/pldg/b2-2e.html)

Common Law Pleading Regarding Name Changes


Part Two E -- How Do Common Law Suits Proceed?
The form “Trespass on the Case”
Now we shall turn to some detailed explanations of the form of action titled “Case,” or sometimes
called, “Trespass on the Case.” This will be followed by descriptions of how a common law action
proceeds.
At the time of Curia Regis, to commence a suit, one would first issue a demand called “the original
writ” in which one demanded that another provide remedy for a wrong done. If they failed to
fulfill the demand, then a summons was served, “to summon him before the king or his justicars at
a certain time, to show cause why he had so failed” (Perry, 138). It appears that in time, this
original writ evolved to become the ten forms of action which could be used to commence a suit
(Perry 146-49).
McKelvey (4) briefly explains this evolution of the forms:

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So originally, the causes of action were grouped together out of “convenience,” with suits grouped
according to “similar causes of action,” each class of suit having two characteristics: “name and
form of statement.” Name was an indicator of the form within. In time, with “the broadening of
actionable wrongs,” new “classes of actions” were created. Thus the development of the common
law forms of action.
The title of the original complaint by the Plaintiff for the suit at hand was “Action for Trespass on
the Case,” approximately matching the title in the example above. Also by the quote above, the
title just as well could have been “Case” or “Action on the Case.” Nevertheless, the paper which is
first served in a suit would usually use one of the ten forms of action. The passage above also
expresses the great flexibility which the common law affords, that it’s purpose is justice, and the
forms are flexible such to accommodate new wrongs as the law evolves over time.
It is also worthy to note the phrase, “plaintiffs based their rights to relief upon ... theory,” which
emphasizes even more so that the common law is not something written down, but is merely one’s
own meditations about what is right and wrong – good common sense.
As mentioned, the “classes of actions, each [had their own] separate name and statement.” That
statement itself was often referred to as a “declaration.” For the purposes of this brief, the
class/form of action titled “Trespass on the Case” will be primarily discussed, as it is the one most
applicable for a common law name change suit. As this form of action is highly related historically

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and in the form of its statements within to the form of action Trespass, Trespass will be also and
firstly be discussed.
For greater clarity though, both Trespass and Trespass on the Case fall within the realm of being
natural rights, not acquired rights. All of the forms of action fall in either one or the other.
Acquired rights occur due to a contractual agreement. Conversely, natural rights are inherent to
one’s person and property (31):

Among the natural rights, an example, in the instance of Trespass, is the right to be able to walk
down the street without someone running their speeding bicycle into you causing you to break
your arm in a fall. You have the unwritten “right to personal security,” to be able to peaceably
walk down the street without harm coming to you. The same for all that one owns, if harming none,
to freely enjoy.
McKelvey goes on to explain some of the history behind these categories of actions based on
natural/original rights (32):

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From this one can understand even more fully how common law is very much the study and
understanding of history and principles. This passage also begins to reveal some of what the action
of case is. More will be explained later.
Moving beyond understanding some of the larger groupings, Trespass itself upon a person carries
some distinct requirements regarding the forms of statements necessary for its validity:

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Oh the simplicity of the common law! If someone has injured your person, the only imperative for
valid form is “a statement of the wrongful act.” Other declarations require more, but for injuries
to the person, its pretty straightforward. And any statement about the law itself – one’s right not to
be injured – need not ever be mentioned, for “the court is already informed of it” and such natural
rights “cannot be questioned by the court or controverted by the defendant.”
A declaration of Trespass upon property carries just one more formal requirement – a statement
of possession (34, 36):

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Again we see that stating the law is unnecessary, only a statement claiming possession and another
about the wrongs done regarding that possession.
Now we shall go into much more detail concerning the action of Case. As Case has been
historically a remedial form used when one’s wrong fits into no other category, there is an
abundance of information in the texts regarding its evolution to accommodate new forms of
wrongs.
Both Perry and McKelvey have much to say on the matter of Case. Below we begin with Perry
(77-8, 79):

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So at first this form of action sought to draw in wrongs that did not quite fit into the category of
trespass, but clearly needed a remedy. Later it has opened to encompass many more wrongs. In the
suit at hand, it fits into this class of action as it “lie(s) generally to recover damages for torts not
committed with force actual or implied,” for an injuries to both “the absolute and relative rights”,
and the injuries are based on an act of “non-feasance.” Thus, this is the correct formal category for
a name change suit.
Perry goes on to explain its continued extreme adaptability today, as the law organically evolves
and expands (81-2):

So as our civilization grows, this wrong will become ever more important. One can only surmise
that this is true, because in this form of action’s broad repertoire and in the light of a name or
identity change suit, Case has the potential to mend non-physical injuries regarding issues of
possession of personal identity and trespass upon it.
The quote above also uses two Latin phrases. “Vi et armis” meaning “with force and arms” (Black
1737) and “contra pacem” meaning “against the peace” (393). Considering the two, especially used
together, it appears that the charge of wrong needs simply to not be concerning an act of physical
violence, whether against one or many.
As well, because “the form of the declaration depends upon the circumstances ... there is greater
variety in this than any other form of action.” This profoundly touches on the great value of
substance over form embodied in this action, and that truly good substance is good form, not the
reverse.
Moving on to McKelvey, he also has much to say (58):

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McKelvey here provides many historical details of how this form came about. When a new form
was needed, a new form was created, and that form was “Case.”
McKelvey (61-3) continues:

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While some of the passage above covers other instances not related to a the hindrance of an
identity change, it is instructive concerning the broadness of this form of action, and presents a
deeper understanding of how this form of action may function.
Of particular value from the quote above is its insight into the forms of declaration for Case.
Similar to Trespass, “the absolute or natural right” itself “need not be stated,” only “a statement
of the wrongful act on the part of defendant” and sometimes if “necessary to state somewhat fully
the circumstances, in order to connect the act with the injury, as its cause.” So if one did choose to
serve and file a name/identity change suit at common law, one would in their
declaration/statement: Stating the wrongful acts which the defendants had done, and give the
details of those acts in the form of a statement of facts. By this we can understand that the
plaintiff’s form, in both name and statement, are good.
McKelvey (63) also includes a summary in regard to the requirements of a Case:

The quote above is fairly straightforward regarding the statements residing as part of the form of
action. As well, the indica of one’s name, gender, and other indica are clearly “of value [to the
plaintiff], or from which the plaintiff rightfully enjoys a benefit.”

Part Two D -- How Do Common Law Suits Proceed?: Proceedings of a court of record
(mculta.daisydoor.net/pldg/b2-2f.html)

Common Law Pleading Regarding Name Changes


Part Two F -- How Do Common Law Suits Proceed?
Proceedings of a court of record
Now that it is established what a common law form of action is and the particulars of the form of
action Trespass on the Case to obtain remedy for a hindrance to a common law name change, at
common law, after service of the action, the defendants have the opportunity to either plea, to raise
objections based on perceived insufficiencies or wrongful statements in the served action, or they
could demur, admit all facts were correct and to raise a question of law for the tribunal to decide.
If they chose the first, to raise objections, then this set in motion a series of letters or statements

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served or said back and forth between the plaintiff and defendant:
• To resolve the facts of the case until they were no longer in dispute, and/or
• To prove that the statement of the wrongs done were false or inadequate.
Once this battle of words had ended, then the question of law was raised for the tribunal to decide.
During all of this, if facts fell into an impassible dispute, a jury could be called to decide what facts
were actually correct. As well, and as further ensured by the 7th Amendment, a jury could be
called at any time to decided any matter of fact (and even of law). Post-revolution — similar to the
check put on the crown with a jury of barons in the 61st chapter of the Magna Carta — to call a
jury of twelve other sovereigns in a suit at common law is quite literally the only way to challenge
the final decision of a sovereign’s tribunal in a court of record.
As shown earlier, common law courts, court of record, have unlimited jurisdiction, while civil
courts such as “are courts of limited jurisdiction” [Stein vs. Brotherhood of Painters, Decorators,
and Paper Hangers of America, DCCDJ (1950) 11 F.R.D. 153]. Chief Justice Marshall of the U.S.
Supreme Court stated this fact clearly:

“The judgment of a court of record whose jurisdiction is final


is as conclusive on all the world as the judgment of this Court
[the U.S. Supreme Court] would be. It is as conclusive on this
Court as on other courts. It puts an end to inquiry concerning
the fact by deciding it.” Ex Parte Watkins, 28 U.S. 3 Pet. 193
193 (1830).

As such, if the defendant does feel errors have been made, there is no appeal to a higher court, for
at common law, the highest court is the sovereign’s, and the defendant’s only recourse is to use the
high prerogative writs themselves to recall the sovereign’s court into session for a re-trial.
This is the manner in which courts of record operate, many of the details of which are below.
As said above, after service of the action, several options were open to the defendant (McKelvey,
68-9):

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Essentially, statements, or “pleadings,” occurred back and forth between defendant and plaintiff.
A “plea” raised objections to facts and statements in the declaration, the demurrer admitted all
things were correct at that point and generally constituted an asking for the court to give
judgment. As shown above, it can be understood that ideally, virtually everything worth saying by
the plaintiff about the situation, was put forward in statements within the form of action.
If a plaintiff wanted to not have to dispute any of the facts with the defendant, they would in their
greatest honesty bring forth all the facts and wrongs of the case within the paperwork of their
original action. Then there would be nothing left for the defendant to dispute, and the defendant
would demur — for everything which the plaintiff could say, had already been said, and said well,
in the paperwork. Ideally that is the best course of action, to make sure you state all of the facts up
front as perfectly honestly as possible in the paperwork so your opponent will have nothing to
dispute, except perhaps form.
From the quote above, it also explains, “If the plaintiff did not demur, but put in a replication, the
defendant could demur to the replication; and so on through the whole list of successive
pleadings.” This “whole list” is theoretically infinitely long, and each plea in its order had a

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specific unique name/title, and though McKelvey and Perry do list many of them — as McKelvey
said in his Preface (iii), it is the “main principles of the subject” which matter “for the purposes of
the student who expects to practice in this country,” so not much fine detail is given. The principle
is that, the pleas could go on theoretically forever, but didn’t usually go past the forth plea before a
demurrer was submitted (McKelvey, 68):

Presently, many people follow the practice of titling their pleadings the answer and reply. Each
successive plea would take a swing at their opponent, back and forth, back and forth, disputing the
facts and arguments until one or the other gave up and demurred. Then upon the demurrer was
judgment rendered.
The next quote by McKelvey (2-3) explains some of what makes a declaration sufficient and who
can make objections to its insufficiency:

So to object to an insufficiency of a “statement of the plaintiff’s case” one must possess not merely
“a knowledge of the principles of pleading”, but also a “knowledge of substantive law” (meaning a
knowledge why and how one has rights, see Black, 1598), or in other words “a general knowledge
of the rights and obligations of the individual as a member of civilized society subject to the
common law, and of the different forms of action.” So if you do not know the common law and its
various forms of action, if all one can quote are statutes and written rules, then one’s objections

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are relatively meaningless. Also from this statement, it is clear that magistrates do not raise
objections or determine insufficiencies — “pleaders” do.
As well, it is clear that “the different forms of action [are the means by] which such rights and
obligations are enforced,” informing one that when a dispute in common law arises, the way one
enforces it is by using a common law action.
So, to tie it together, in a plea, when a pleader makes objections, they are made in regard in one’s
knowledge of right and wrong in an evolved society, especially in the light of the logic of “good
common sense,” all in relation to the clarity of the plaintiff’s statement that a right or rights have
been violated.
When the pleas had come to an end, then a demurrer was entered by one party or another. The
demurrer itself specifically could do several things, but one thing in general (70-1):

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So, the demurrer essentially admitted that all the facts put forth in the cause of action were true,
but claimed that either the facts were “not sufficient” to show a breach of the law, or that they
were so “informal,” not adequately fitting one of the ten forms of action in name and statements,
that the claim did not qualify the plaintiff for relief.
McKelvey goes on (71-2):

So, originally, the demurrer was a “harsh” one shot deal. Once the other party demurred on any
defect, the entire suit was thrown out. As this was at times rather unjust, common law proceedings
evolved so that outside of the specific defects pointed out by the defendants, on all other points in
the suit, the plaintiff would receive remedy.
The statute above and its ancient date, 1585, reveal a number of things to us. Firstly, the ancient
and time tested nature of the common law. Secondly, that as old as common law form is, its
simplicity is its strength (for Trespass on the Case it must include: the wrongs done and the facts
regarding those wrongs). Thirdly, that amid its simplicity, outside of failures of facts and form
pointed out by a defendant, justice is administered “without regarding any imperfection, defect, or
want of form in any ... pleading.” Which tells one that magistrates are not who are to make
objections to form, but that the tribunal “shall proceed and give judgment according as the very
right of the cause and matter in law shall appear unto them.” The tribunal is not to be a judge of
form, nor is the magistrate. Lastly, and perhaps most importantly, this reveals that form is not law,
nor should form be a measure of law in the rendering of justice. We shall see shortly that the
courts soon adapted so that not even calls on bad form affected judgment. Due to the statute above,
soon a new kind of demurrer came into being called a special demurrer, vs. the old variety, a
general demurrer. With this new demurrer one would specifically admit all facts were correct, but

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would make specific objections at the end concerning the form (72):

As much as this special demurrer might have helped a defendant to tear down a plaintiff’s suit
based on form, in the next passage we see yet another evolution in common law proceedings, that
soon it became such that, even when the defendant would point out defects in form, it could not
stop justice, and judgment was rendered in favor of the plaintiff regardless of inadequacies in
formal presentation (72):

Facts are the key. Not form. If one relies on defects in form, to point out a wrongly chosen form of
action, a badly phrased statement of the wrong, etc. — if one was “to rely upon some defect in the
other’s pleading instead of answering the facts set forth, final judgment was given against him.”
The proceedings had evolved to be strictly about law and facts. The above passage also
demonstrates the finality of a common law court’s decision, and the only way to possibly reverse
such a decision was to petition the sovereign, or in the sovereign’s watchful eye he might step in
directly to issue a high prerogative writ of error or of certiorari — the sovereign himself
correcting a mis-step in one of his reflections.
The next quote, as well, shows the invariable uselessness of a defendant to demur based on form,
versus to plea (73-4).

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For a defendant to demur instead of to plea the facts actually appears to be a sign that the
defendant really has no case, and that a wrongly titled action or a badly formed statement within it
cannot hinder the plaintiff from receiving the remedy he seeks. Only a defendant challenging the
facts can hope to turn the tide of a common law suit against him.

Part Three -- Magistrates at common law (mculta.daisydoor.net/pldg/b2-3.html)

Common Law Pleading Regarding Name Changes


Part Three -- Magistrates at common law
Now will be explained in more detail who a magistrate is and what their duties are in a suit at
common law. It will be shown below that in such a suit and court, the magistrate (referred to as a
“judge” in a civil-law suit) does not make decisions in a common law suit, but merely acts as an
executer of the court’s judgments, whether that court be the Plaintiff who is bringing the suit when
the defendant raises no objections to facts, or whether it is a jury who has passed judgment. The
power of the magistrate at common law is merely to execute the judgments. In the California
Codes, it designates who a magistrate is:

“The following persons are magistrates: ...The judges of the


superior courts....” [California Penal Code, Sec. 808.]

As shown earlier, in civil lawsuits, the judges are the courts, for they decide and enforce the law.
In common law suits, in California, the judge functions in the capacity of a magistrate.
When looking at the characteristics of a court of record, it is:

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"...a judicial, organized tribunal, having attributes and


exercising functions independently of the person of the
magistrate designated generally to hold it...." (Perry, 21)

and

"...a judicial tribunal having attributes and exercising


functions independently of the person of the magistrate
designated generally to hold it...." (Black, 426)

This means that for suits at common law, which occur in a court of record, the judges of the
superior courts are to behave as magistrates and are not behave a tribunal/judge. This is further
solidified by Black in his the definition of Magistrate (1103):

A magistrate is a “public civil officer” “clothed with power.” They are “inferior judicial officers,”
and by the California codes have various powers, such as “to issue a warrant for an arrest.”
Clearly civil law directs them, but by definition they are meant to serve as ministers to serve the
tribunals of common law courts – that justice would be delivered.
In a cross reference, let us look at the definition of night magistrate (1195):

Clearly, another name for a magistrate is a constable. Cross referencing this definition’s use of
“constable,” it reads (383):

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So in American law, a magistrate’s duty is to “execute the process of magistrates’ courts, and of
some other tribunals.” At common law, the magistrate’s duty is execution, to execute the
judgments of the tribunal, not to be the tribunal. It is also worthy to note that a constable has “the
custody of juries,” yet is but executor when ministering to a tribunal, be it one, or a jury of people.

The will of the court is execution of its judgment


Before courts became popular, if you had a dispute with another regarding your own life and
possessions, when breaches to your freedom of life, liberty and happiness occurred, by your own
common sense knowing what was right and wrong, you pulled out your fist, your sword, or your
gun and being the sovereign of your own life, enforced the law. It was quoted earlier in this
treaties, that “in the beginning of organized society men were much more prone to redress direct
injuries to person or property with the sword than by resort to actions at law” (McKelvey, 32). In
our history, as a we have evolved as a society, we now have chosen to not use such physical
violence, but to use more humane forms of remedy to wrongs, by forming a government by way of a
constitution, and so we use government as seen in the 7th Amendment to enforce our judgments.
Violence is still practiced in some ways, such as when someone enters your property and you shoot
that trespasser. As sovereign of your life and property and maker of the law, you enforce your
judgment. One may be familiar with signs which have fallen out of prominent use which say,
“Trespassers will be shot on sight” — that saying is a direct signal of the common law in use, but
the 7th Amendment ensures that we may also use government to resolve our disputes and enforce
our judgments at common law instead of personally resorting to physical violence.
So, like the kings of old, in Curia Regis, when judgments were entered, the ministers of the court
signed them also, stood behind them and enforced them for the peace of the kingdom. Before its
enforcement, if a defendant did not agree, they always had options before them to counter the suit
against them. But the duty of the ministers was to obey the will of the sovereign.

Motion vs. Writs


At common law you do not need to make motions, because a motion is to ask the court for
something, with the anticipation that it may or may not be granted. You can make motions, but it’s
kind of redundant, because, if you are the Plaintiff in your sovereign court, you are the tribunal,
not the magistrate. So its kind of like asking yourself for something.
In civil law, if you file a civil suit, the magistrate then functions as a judge and he/she will expect to
see “Motions” for him/her to rule on, instead of necessarily high prerogative writs which are
commands from your court for him/her to do things. At common law, the magistrate is not the
tribunal.
For clarity, black gives several definitions of “Motion” (1164):

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By what is said here, it is “an application” made “to a court or judge” “for a[n] ... order.” It is
worthy to note the distinction here between “court” and “judge.”
A writ is a command (1783):

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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 a common law court, a court of record, as it is the Plaintiff’s sovereign court, and if the
defendants cannot counter any of the facts of the case regarding the hinderance of rights, but only
to appeal to matters of bad form, then you issue the judgment and the magistrate executes it. And
if the magistrate delays in execution, then you simply issue a royal writ to correct the error and
have the judgment executed.
__________
In reality, as a magistrate, his specific duty is only ministerial and not tribunal. In the interest of
fulfilling justice, his duty is to carry out the will and commands of the tribunal he serves. When
Lord Coke uttered “The law will, that in every case where a man is wronged and endammaged,
that he shall have remedie,” it left no room for ambiguity, everyone who seeks remedy at common
law receives it (Perry, 11).
“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 (11).
And it charges all who serve such authority with the commission to dispense justice and remedy by
its command.
Part Four -- End Summany (mculta.daisydoor.net/pldg/b2-4.html)

Common Law Pleading Regarding Name Changes


Part Four -- End Summary
In summary, this brief has explained what the common law is, its history, its clear continuance in
Constitutional law -- its preservation as a right in the 7th Amendment, how a common law suit
proceeds, and especially how it applies to the suit at hand. Let us read again the 7th Amendment:

“In Suits at common law, where the value in controversy shall


exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise
re-examined in any Court of the United States, than according

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to the rules of the common law.”

From the founding of this country and from the founding of California, the common law has been a
right of the people, the right to rule their own lives and live free from kings and others who might
rule them in tyranny. They have:

“clung to it as their birthright of themselves and their


children, with a tenacity that no power, no suffering, no
danger, no hope of reward, could induce them to relax.” (RCCL,
593)

Nor will any one else inspired by the beauty and simplicity of the common law be induced to relax
from the pursuit of justice by the common law.
End

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