Common Law Pleading Regarding Name Changes

McUlta

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 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.

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:

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 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):

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:

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):

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):

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):

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:

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.”

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