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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 (seeAffirming Codes) and it is also mentioned much in both

federal and state civil suits (see Affirming Cases). 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:

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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 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 available to read as a pdf),

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?

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How Do Common Law Suits Proceed?

• History

• Remedies and reason

• Common law courts

• The use of royal writs

• The form ―Trespass on the Case‖

• The proceedings in a court of record

Magistrates at Common Law

End summary

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.

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

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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.

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Concerning the common law‘s validity and its fundamental permeation in the U.S.

Constitution, this report says much (591):

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):

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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.

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.

__________

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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

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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 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

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.

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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:

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.

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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):

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):

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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

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

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very center of why any suit is brought:

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

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):

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So, in a way, the court is wherever the sovereign happens to be. Wherever the king

travels and passes a judgment, there is his court present.

As revealed earlier, in England, the king was the original source of authority and

justice. Before the revolution, even then in the colonies, it was the king and the king‘s

servants who enforced the law in the king‘s name and seal, and by their threat of force.

The king ensured the peace in his kingdom. As such, when common law courts

occurred after the revolution, they took on similar qualities as under the king, but the

people themselves became the highest authority and instead of petitioning in

extraordinary circumstances for royal writs which the king and his courts alone could

grant, the people themselves came to issue their own (to be discussed shortly).

These new common law courts, like the common law courts of England, were called

―courts of record.‖ Courts of record were different than other courts, such as civil and

admiralty courts, (Perry 21-2):

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Here one can see the typical characteristics of a court of record. Firstly, the ―tribunal‖

is independent of the magistrate generally designated to hold it. Which means, at

common law, that the magistrate is not a judge, but like the ministers of the king‘s

court of Curia Regis (covered earlier), the magistrate ―took its inspiration from the

king, and pronounced his judgments, which were binding upon the whole people‖ (28).

The ministers stood to be a mirror of the king‘s will and judgment. With the king‘s

name and seal they would ensure that the king‘s judgments were enforced. For, quoted

above, ―all ... courts of record are the king‘s courts.‖ Also, the proceedings were

recorded ―for a perpetual memorial and testimony.‖

Black‘s Law Dictionary 4th edition also defines a common law court, a court of record,

in the same way (p.425-6):

It ―is a judicial tribunal having attributes and exercising functions independently of the

magistrate designated generally to hold it.‖ It proceeds ―according to the ... common

law.‖ Its acts are recorded for a memorial. It generally possess a seal. Can fine or

imprison for contempt. And a final quality about them is that their judgments have

errors. Common law courts are not ―perfect‖ courts, but they are acceptable by the

Constitution of the United States and in California.

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For further reinforcement of the validity of common law courts/courts of record in the

United States. Another passage of the U.S. Constitution (not just the 7th Amendment

quoted at the start of this document) reads in Article 3, Section 2, that, ―The judicial

Power shall extend to all Cases, in Law and Equity, arising under this Constitution.‖

But what does in Law and Equity mean. Turning to Black once again it reads (426):

This brief is not meant to teach chancery or equity law, nor the definition of an equity

court, but by Article 3, Section 2, along with Black above, ―The judicial Power shall

extend to all Cases, in Law‖ — meaning common law, and thus to ―administer justice

according to the rules and practice of the common law.‖

One can thus understand the relationship between the people and their government at

common law. The power of sovereignty rests with the people in their own courts of

record and government ministers only act to reflect and enforce their will. The people

rule. Their judgments may be imperfect, but also by the common law, those limits can

be challenged by one‘s opponent in the court of record, and when necessary through

calling a jury. This puts a check on one‘s individual sovereign will — ―that magic

power ‗good common sense‘ ‖ (RCCL, 588-9), and how those checks occur will be

explored shortly.

Part Two D -- How Do Common Law Suits Proceed?: The use of royal writs

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):

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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 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.

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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 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.‖

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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:

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

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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

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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

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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:

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.

__________

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It seems appropriate at this point to include several quotes below. These quotes

reinforce and add yet another level of validity to all that has been said thus in this

treaties:

“...at the Revolution, the sovereignty devolved on the people; and they are truly

the sovereigns of the country, but they are sovereigns without subjects...with none

to govern but themselves....” [Chisholm v. Georgia (US) 2 Dall 419, 454, 1 L Ed

440, 455 DALL (1793) pp471_472.]

From this quote one can understand, that if the ―sovereignty has devolved on the

people‖ that truly there is no higher ruler than the individual people themselves to

govern and bring suits against each other when wrongs are done.

“The very meaning of „sovereignty‟ is that the decree of the sovereign makes law.”

[American Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S. 347, 53 L.Ed.

826, 19 Ann.Cas. 1047.]

This quote coincides with the concept that at common law – whatever someone thinks is

right and wrong – using their ―good common sense‖ is like a ―magic power‖ because

whatever they think and say is right and wrong — that is the law.

“To presume that a sovereign forever waives the right to exercise one of its powers

unless it expressly reserves the right to exercise that power in a commercial

agreement turns the concept of sovereignty on its head.” [Merrion et al., DBA

Merrion & Bayless, et al. v. Jicarilla Apache Tribe et al. (1982) 455 U.S. 130, 102

S. Ct. 894, 71 L. Ed. 2d 21, 50 U.S.L.W. 4169 pp. 144_148]

This helps one understand that at any moment, whether involved in a civil, admiralty,

or other variety of suit outside of common law, or after invoking a statute or code, or if

involved in any sort of business agreement or otherwise, one never loses their

sovereignty and may return to using the common law in virtually any situation, without

limits.

“The people of this State, as the successors of its former sovereign, are entitled

to all the rights which formerly belonged to the King by his prerogative.” [Lansing

v. Smith, 4 Wend. 9 (N.Y.) (1829), 21 Am.Dec. 89 10C Const. Law Sec. 298; 18 C

Em.Dom. Sec. 3, 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 167; 48 C Wharves Sec. 3,

7.]

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

law.

For a brief explanation of ALL of the extraordinary writs go to: More about royal

writs or move to the the next section:

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

Case‖

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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.

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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.

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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:

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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 F -- How Do Common Law Suits Proceed?: Proceedings of a court of record

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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 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.

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As said above, after service of the action, several options were open to the defendant

(McKelvey, 68-9):

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

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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 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:

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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 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,

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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 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):

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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

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

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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:

"...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

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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):

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

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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).

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And it charges all who serve such authority with the commission to dispense justice and

remedy by its command.

Part Four -- End Summany

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 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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Reasoning the Common Law

Part One -- The Right to Change One‘s Name “The Bible is the Book upon which this Republic rests.” Andrew Jackson, Seventh

President of the United States.

God told Adam and Eve and their posterity, concerning the earth and the things

thereon, ―subdue it: and have dominion over the fish of the sea, and over the fowl of the

air, and over every living thing that moveth upon the earth.‖ [Genesis 1:28] After Cain

slew his brother Abel ―the LORD said unto Cain, Where is Abel thy brother? And he

said, I know not: Am I my brother‘s keeper? And he said, What hast thou done? the

voice of thy brother‘s blood crieth unto me from the ground.‖ [Genesis 4:9-10] And

God punished Cain for his misdoings unto his brother.

God gave them dominion over the earth, but he did not over each other, else God would

never have punished Cain. Cain‘s action against the life and freedom of his brother set

him in conflict with this the law --- all that is right.

Moreover, any violation of the freedom of another is consistent with a form of death:

If I were asked to answer the following question: WHAT IS SLAVERY? and I should

answer in one word, IT IS MURDER, my meaning would be understood at once. No

extended argument would be required to show that the power to take from a man his

thought, his will, his personality, is a power of life and death; and that to

enslave a man is to kill him.

P. J. Proudhon. What is Property? (1840)

When a person‘s life or an aspect of their life is put in a cage, when it is imprisoned,

when their freedom is withheld from them, freedom to enjoy their life and property ---

enslavement is death.

The naming of the self has been long held as a self-evident, inalienable right, and one

which is of highest value:

Good name in man and woman, dear my lord,

Is the immediate jewel of their souls;

Who steals my purse steals trash; ‟tis something, nothing;

‟Twas mine, ‟tis his, and has been slave to thousands;

But he that filches from me my good name

Robs me of that which not enriches him,

And makes me poor indeed.

W. Shakespeare. Othello Act III, Sc. 3, Line 155 (1604)

When a person owns nothing else, they always still own their name, and the name or

names they have, whether chosen by parents, or by one‘s self, truly, it is property far

more valuable than money or jewels, or riches of this world. And when one filches a

name or chosen indicator from another, taking it from them against their will --- truly,

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it is like a robber holding it for ransom with no intention of handing it over, except by

the terms the robber sets; and even then, in the robber‘s corrupt state, he is prone to

change the terms of the ransom on a frivolous or selfish whim.

Among autonomous control over the development and expression of one‘s intellect,

interests, tastes, and personality, to take on a new name and abandon the old, or to self-

determine even that one indeed has multiple names and to use those different names in

varied circumstance is a most ancient and time honored right.

When Abram took upon him the name Abraham (Genesis 17:5), and also when Jacob

took upon him the name Israel (Gen 35:10) are both clear examples. ―And God said

unto him, Thy name is Jacob: thy name shall not be called any more Jacob, but Israel

shall be thy name: and he called his name Israel‖ There are other instances in which

people even went by multiple names such as Peter or Cephas, meaning a stone, or

Simon (John 1:42) or Simeon (Acts 15:14), and Saul or Paul (Acts 13:9). Jesus gave

Simon/Simeon the name Peter, and Peter chose to take it. And even in some passages he

went by both names together -- Simon Peter (2 Peter 1:1).

So, one may have multiple names, which are each and all a person‘s lawful names.

Name, whatever is chosen or accepted by a person at will, it is or becomes their

representation unto whomever they interact. For as they own this very aspect of

themselves, it is theirs to choose by their very mind, will, and word. So if a person

chooses to have one name under one circumstance and another name in another

situation — it is their right and will for their life. Furthermore, it is not an act of

deception. It is like the decision of whether to wear a blue shirt one day and a yellow

shirt on another day. It is a right of freedom and liberty.

And likewise, all expressions and indicators of the self are one‘s right to determine.

Self-will is unalienable. Like choosing to wear whatever colored shirt one chooses, to

self-determine how one outwardly appears and socially categorizes one‘s self is equally

a natural self-evident right. If one chooses a gender or a gendered name which others

think is not appropriate, it is not within the right of others to force another to represent

themselves in a way which the hindered feels falsely represents them. It is the right of

each person to self-determine their representations of themselves. This is the

embodiment of personal freedom and sovereignty. For a servant of a sovereign to

falsely represent their master in the master‘s affairs, is to violate the master‘s right to

live their life in personal truth and freedom. What others think is irrelevant, so long as

the master is not hindering the rights of others.

Government servants themselves have a responsibility, a duty to uphold the rights of

the people they serve. If they did not, then the servants would rule over the master and

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the master‘s house. ―Verily, verily, I say unto you, The servant is not greater than his

lord.‖ (John 13:16)

Part Two -- The Right to Non-Misrepresentation of Identity

Reasoning the Common Law

Part Two -- The Right to Non-Misrepresentation of Identity

In our society, we prize how we are represented to others in the form of our identity

and particularly we eschew the deliberate public misrepresentation of one‘s identity —

to wrongfully say that one is a specific person in name, gender, age, address, etc. and

not another, particularly in one‘s personal life and business. And when this false

information is relayed to other persons, agencies, or businesses such deliberate

misrepresentations are considered unlawful as they may cause the loss of money or

capital, either for the misrepresented or for those unto whom the misinformation is

being relayed. When a servant deliberately misrepresents their master in their master‘s

affairs, it can only be interpreted as an immoral and unlawful act.

This immorality is also shown when one master dishonors the self-determination of

another; in its moral state, some call this ―hospitality.‖ In the judgment of all that is

moral, Jesus said:

Then shall he say also unto them on the left hand, Depart from me, ye cursed,

into everlasting fire, prepared for the devil and his angels:

For I was an hungred, and ye gave me no meat: I was thirsty, and ye gave me no

drink:

I was a stranger, and ye took me not in: naked, and ye clothed me not: sick, and

in prison, and ye visited me not. ...

Verily I say unto you, Inasmuch as ye did it not to one of the least of these, ye

did it not to me.

And these shall go away into everlasting punishment: but the righteous into life

eternal.

Matthew 25:41-43, 45-46

To welcome the stranger is not to call them a different name than they offer you. When

they come before you whatever name they speak, it is their name unto you as if they

had born it from birth. If Abraham were to come before you and you were to insist on

calling him Abram, against his will and tell everyone you meet that his name is Abram,

this would be morally wrong. It is his right to control his name and for him to not be

misrepresented in his affairs.

Even in ancient Greece this morality stood, ―The city which forgets to how to care for

the stranger has forgotten how to care for itself‖ Homer, The Odyssey, trans. Robert

Fitzgerald, p.233 (1961). The servant of the master, when they misrepresent that

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master in their care of his affairs, they disgrace themselves, and must needs be

reprimanded for such misrepresentation of another. Of the wronged, they cry out for

justice as Abel from the grave.

From a more recent example, Henri Nouwen said of this freedom, this right to be who

one is and not be misrepresented:

[We ought] to create an emptiness, not a fearful emptiness, but a friendly

emptiness where strangers can enter and discover themselves as free; free to sing

their own songs, speak their own languages, dance their own dances; free also to

leave and follow their own vocations.

Reaching Out, p.51 (1975)

Truly, these words express what freedom is about, what one‘s natural rights are really

about. It is the right to live unhindered in the enjoyment of one‘s life and all its facets.

It is to determine one‘s personal characteristics and live life true and full. Nouwen

speaks of meeting the stranger. But for the servant, yes, a servant may not always agree

with the style and personal liberty of their master, but when they act to take away that

freedom of life, when they misrepresent their master‘s chosen identity, it is immoral

and unlawful.

Part Three -- The Right to Privacy

Reasoning the Common Law

Part Three -- The Right to Privacy

Jesus said unto his disciples, ―I call you not servants; for the servant knoweth not what

his lord doeth.‖ John 15:15. Clearly the master has a right to privacy in matters which

the servants are kept occluded. Likewise, if a master asks for his servant to recognize a

change in the master‘s affairs, the master is not obligated to reveal all that he has done

in his affairs. The servant‘s duty alone is to honor the will and word of their master. If

the servant refuses and places a ransom upon that master‘s freedom, even a ransom

upon his chosen privacy, it can only be interpreted as treason against that sovereign

master.

“[T]he concept of privacy embodies the „moral fact that a person belongs to himself

and not others nor to society as a whole.‟” Thornburgh v. American College of

Obstetricians & Gynecologists, 476 U.S. 747, 777, n. 5 (Stevens, J., concurring).

Part of that which belongs to the sovereign is their name, and in their choosing of a

name is the right to be fully in control of their names in whatever papers and records

are theirs. They are the master of their own affairs. They choose the indicators of

themselves.

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The people have the right to be secure in their persons, houses, papers, and effects.

Perhaps one had a child who had run away from home, such as the prodigal son (Luke

15:11-32). Perhaps the father‘s servant chose to run around the town telling of that

which had happened to deliberately embarrass his master. This would be considered

wrong. It is an ancient common value that gossip is morally wrong:

He that is void of wisdom despiseth his neighbour: but a man of understanding

holdeth his peace.

A talebearer revealeth secrets: but he that is of a faithful spirit concealeth

the matter.

Proverbs 11:12-13

Likewise, the faithful servant will keep his master‘s affairs private.

One‘s personal school records are no different, for they are clearly part of one‘s papers

and effects. When another person deliberately violates the privacy of such papers

through depriving a person of control that which is theirs, their name or gender in such

effects, it forces the privacy of another to be exposed to any given audience -- especially

if the betrayer actively shares such records with others. In a brutal manner, unless they

fulfill their ransom, their bribe, it is like forcibly tying the victim down before the

world and stripping them naked for all to see. It violates their privacy.

Part Four -- The Right to Freedom from Deceit

Reasoning the Common Law

Part Four -- The Right to Freedom from Deceit A false witness shall not be unpunished, and he that speaketh lies shall not

escape.

Proverbs 19:5

In regards to honesty, this too is of ancient origin. Certainly the Ten Commandments

are a guide. ―Thou shalt not bear false witness against thy neighbor.‖ Exodus 20:16.

Truth is often relative to the individual. Reciprocally lying might be morally wrong,

but is not necessarily punishable. When a lie acts to deliberately hinder the right of

another, then such an act deserves a remedy --- for it is ―against‖ another as the

commandment reads.

As well, when one lie occurs, it is common that such a lie is followed by many others:

He who permits himself to tell a lie once, finds it much easier to do it a second

and third time, till at length it becomes habitual; he tells lies without attending

to it, and truths without the world‟s believing him. This falsehood of the tongue

leads to that of the heart, and in time depraves all its good dispositions.

Thomas Jefferson (1785)

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It is a commonly understood concept that when a person tells one lie, that they must

continue to tell lie after lie to cover up their original lie. It veritably becomes an ever

circling ring of lies. Moreover, said Justice Butler, ―A deceit is more than a lie [as it] is

coupled with some dealing [which causes] injury.‖

Silence also is clearly a form of deceit in certain circumstance. ―Silence can only be

equated with fraud where there is a legal or moral duty to speak, or where an inquiry

left unanswered would be intentionally misleading.‖ U.S. v. Tweel, 550 F.2d 297, 299. If

a person were involved in deceit and they were to deflect a correction of illicit behavior

by silence or a lie in the matter and continued in their corruption, it must needs be

interpreted as an act to swindle the rights of another.

In Ezekiel, God is additionally clear about how if dishonesty is used to exploit and

hinder the freedom of another it is wrong:

In thee have they taken gifts to shed blood; thou hast taken usury and increase,

and thou hast greedily gained of thy neighbours by extortion, and hast forgotten

me, saith the Lord GOD.

Behold, therefore I have smitten mine hand at thy dishonest gain which thou hast

made, and at thy blood which hath been in the midst of thee.

Ezekiel 22:12-13

And as hindering rights is like unto death, dishonesty to hinder such rights leaves blood

on one‘s hands. When they extort others, holding their freedoms for a ransom, when

they use dishonesty to cheat the natural rights from people, such acts cry for

retribution, they cry for a remedy.

Part Five -- The Right to Freedom from Conspiracy

Reasoning the Common Law

Part Five -- The Right to Freedom from Conspiracy

Conclusively below, when individuals act together and not just alone in a matter, the

punishment meted out upon them ought to be multiplied, for such activity requires not

simply individual choice to do evil, but talking, reasoning, and the forming of secret

pacts to preserve each others deceit.

In the story of Joseph and his coat of many colors, his brothers, ―they conspired against

him to slay him. And they said one to another, Behold, this dreamer cometh. Come now

therefore, and let us slay him, and cast him into some pit, and we will say, Some evil

beast hath devoured him: and we shall see what will become of his dreams.‖ Genesis

37:18_20 Joseph‘s brothers ended up selling him into slavery. Years later when

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Joseph‘s brothers came to Egypt for grain to make it through a famine and Joseph,

whom they did not recognize, was harsh with them and punished them, ―they said one

to another, We are verily guilty concerning our brother, in that we saw the anguish of

his soul, when he besought us, and we would not hear; therefore is this distress come

upon us.‖ Genesis 42:21

Clearly, they were not just individually guilty, but together guilty of conspiring

together to sell their brother into slavery. In another instance, Paul was plotted against

by a group of individuals:

And when it was day, certain of the Jews banded together, and bound themselves

under a curse, saying that they would neither eat nor drink till they had killed

Paul. And they were more than forty which had made this conspiracy.

Acts 23:12_13

From these two examples against Paul and Joseph, we can understand that conspiracy

is about forming a pact with others and plotting with those others in order to do wrong

unto another, to hinder another in the enjoyment of life and property. We can

understand from Jesus how this conspiracy can even spread throughout an

organization:

Even so every good tree bringeth forth good fruit; but a corrupt tree bringeth

forth evil fruit.

A good tree cannot bring forth evil fruit, neither can a corrupt tree bring forth

good fruit.

Every tree that bringeth not forth good fruit is hewn down, and cast into the

fire.

Wherefore by their fruits ye shall know them.

Matthew 7:17-20

Here is seen the severity of punishment for corruption within an organization. The

organism is not merely corrected, but the conspiracy with each other is seen as so

corrupt that the whole organism is cast away and destroyed. So when servants conspire

together against their master to hinder that master‘s liberty, truly, as evident from the

above passage, their teamed machinations ought to deserve a much greater punishment

for such orchestrated treason than if they were to merely acting alone.

This severity of greater punishment also leads one to consider the understanding that

when overseeing administrators are made aware of a situation and personally direct

underlings to make decisions, it must be concluded that their future silence in the

matter can only mean that they agree with the decision of that underling.

Still, even as much as it may be proper to uproot an entire organism when one part of it

bears bad fruit Jesus also said:

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And if thy right eye offend thee, pluck it out, and cast it from thee: for it is

profitable for thee that one of thy members should perish, and not that thy whole

body should be cast into hell.

And if thy right hand offend thee, cut it off, and cast it from thee: for it is

profitable for thee that one of thy members should perish, and not that thy whole

body should be cast into hell.

Matthew 5:29-30

As such, it is reasonable to conclude that although a punishment unto the whole tree of

the institution may be appropriate, it is also reasonable in the meting out of

punishment to be aware of and punish the small group, the eye or hand, who conspired

against one‘s freedom and simultaneously then put safeguards in place to ensure that

such conspiracies do not infect others within the larger body in the future.

Part Six -- The Right to Freedom from Racketeering

Reasoning the Common Law

Part Six -- The Right to Freedom from Racketeering But when a long train of abuses and usurpations, pursuing invariably the same

Object, evinces a design to reduce them under absolute Despotism, it is their

right, it is their duty, to throw off such Government, and to provide new Guards

for their future security.

— Declaration of Independence

It is commonly understood that a racket is ―a usually illegitimate enterprise made

workable by bribery or intimidation.‖ Webster‘s Ninth New Collegiate Dictionary

(1991). Upon reflection upon more ancient sources, for the purposes of this suit, it is

defined as a systematic tyranny which hinders natural rights and does so by extortion

for a profit. That profit might be for money, but may simply be to profit one by

bolstering one‘s pride, position of power, or security of position. Profit takes many

forms. In the Bible, many of the examples of ‗systematic hindrance of rights‘ revolve

around the behavior of kings.

In the biblical example of Shadrach, Meshach, and Abed-nego we see their right to

freedom of religion was hindered by the tyranny of King Nebuchadnezzar. His orders

were systematically applied to everyone; everyone‘s rights were hindered no matter

who you were. ―And whoso falleth not down and worshippeth shall the same hour be

cast into the midst of a burning fiery furnace.‖ Daniel 3:6. When King Nebuchadnezzar

found out about these three who would not bow down and worship his golden idol, the

king was full of ―rage and fury‖ against Shadrach, Meshach, and Abednego. Daniel

3:16. And when the three were cast into the fiery furnace, God was in their midst to

preserve them. Bewildered, the king ―said unto his counsellors, Did not we cast three

men bound into the midst of the fire? They answered and said unto the king, True, O

king. He answered and said, Lo, I see four men loose, walking in the midst of the fire,

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and they have no hurt; and the form of the fourth is like the Son of God.‖ Daniel 3:24-

25. Tyranny against freedom of worship is clearly not tolerated by God. When the

hindering of natural rights is applied systematically, universally unto all, it is clearly an

evil that is in need of correction. In this example God himself stepped in to correct this

injustice. In this example we also see the element of profit involved, the lust for total

power over others. In this case, the King stole people‘s freedom of life and worship, and

placed a ransom on their lives, and that ransom was to give up their freedom of

religion.

Another clear systematic hindrance of right is the example of King Herod who when

the wise men came looking for the infant Jesus to worship Him, they met with Herod.

Herod asked them that when they find the infant to bring him word that he might also

come to worship Jesus. After the wise men were warned by God in a dream not to

return to Herod:

Then Herod, when he saw that he was mocked of the wise men, was exceeding wroth,

and sent forth, and slew all the children that were in Bethlehem, and in all the

coasts thereof, from two years old and under, according to the time which he had

diligently enquired of the wise men.

Matthew 2:16

Here to profit himself, to try to ensure his continued position as king, Herod universally

slaughtered all of the children under two years old. It was a systematic hindrance of the

right to enjoy life embodied in the form of genocide.

Contemporarily, when a government or agents of government (whose power is

bestowed by the people) act to systematically hinder rights, the principle is the same.

Such tyranny, such despotism it is the responsibility of individual people, or people

acting together, to correct.

Thomas Jefferson said that ―Every government degenerates when trusted to the rulers

of the people alone. The people themselves, therefore, are its only safe depositories‖

Notes on the State of Virginia, Query 14 (1781). When government servants fall into a

degenerate state of tyranny, when they establish a racket for their benefit, it is proper

for people to correct the wrongs against them and ensure that such systematic

deprivations will not occur with others, nor in the future either.

Like the kings of the bible, those involved in intentionally constructing a systematic

tyranny, intentionally fortifying it, and/or maintaining such a tyranny over the people

to hinder their rights may do it for a profit which is not monetary. It may be to nurse

their personal insecurities, it may be to establish a given policy more strongly, it may be

to fortify their job security, it may be simply to experience the exercise of totalitarian

power, or to bolster one‘s pride in such an accomplishment of domination. Whatever

the profit, whatever the motive is actually irrelevant, what is relevant is the systematic

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hindrance of rights, the systematic robbery of rights in which a natural right is

universally hindered, or even universally held for a ransom by thieves.

Under such ―absolute Despotism, it is [the people‘s] right, it is their duty, to throw off

such Government [agents], and to provide new Guards for their future security.‖

Declaration of Independence.

Rights

Amendment I of the U.S. Constitution:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the Government for a redress of grievances.”

Amendment VII of the U.S. Constitution: “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.”

See http://www.usconstitution.net/.

Civil Cases Affirming the Validity of

Common Law Name and Other Identity Changes

This document is provided to give the reader a thorough review of federal and

California state civil court cases which certify the legal certainty of name changes and

other identity changes by way of common law. The reader should be aware that that

this site does not inform anyone of how to go about pursuing a civil court suit or civil

name change, but only quotes these civil suits below to help the reader understand the

validity of common law name changes and to give further clarification on how a

common law name change actually works.

To begin, as one reads about these cases one ought to keep aware that at common law,

you are the sovereign, which means you are the court. For, as explained elsewhere on

this site, a court is, ―The person and suit of the sovereign; the place where the sovereign

sojourns ... wherever that may be‖ (Blacks‘s Law Dictionary 4th ed., p.425).

Some civil cases (such as In re Ritchie 206 Cal.Rptr.238 and Lee v. Ventura County

Superior Court 11 Cal.Rptr.2d 763) speak of the state‘s power to regulate or

proportedly put limits on civil recognition of name changes in relation to changing

one‘s name to a roman numeral or to a racial epithet. In such cases, it is important to

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remember that if you are functioning at civil law, you are a subject of the state and

under state jurisdiction. But at common law, everything is under

your unlimited jurisdiction. ―The ordinary King‘s Court ... exercised a jurisdiction

limited in fact only by the king‘s will‖ (Perry 139) and ―it had unlimited jurisdiction‖

(Common-Law Pleading and Practice: Its History and Principles, by R. Ross Perry, p.139

& 28). This is the power and freedom of common law. Again, those limits practiced are

in civil law suits only, and do not function in a common law suit.

If one did pursue a civil suit one must understand that one is typically then subject to

follow civil law in such cases. Though of course, one may invoke common law at any

time regardless:

“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.]

“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]

Anyway, it is good remember that even if you are functioning at civil law, you never

give up the right to function at any time as a sovereign at common law.

__________

Okay, let‘s get to it and examine these cases.

In the case of Lindon v. First National Bank (1882), 10 F. 894, a woman who had

changed her last name to one that was not her husbands original surname name at

birth, was trying to claim control over her inheritance. The court ruled in her favor,

―At common law a man may change his name, and he is bound by any contract into

which he may enter in his adopted or reputed name, and by his known and recognized

name he may sue and be sued.‖ Thus, by common law, one may lawfully change their

name and be ―known and recognized‖ by that new name. Also, one may enter into any

kinds of contracts in their new adopted name. Contracts include employment (See

Coppage v. Kansas (1915) 236 US 1). And one can be recognized legally in court in

their new name.

In the next case, In re McUlta (1911), 189 F. 250, 26 A.B.R. 480, the ruling states that

even if a civil court is granted permission, by statute, to change a name by petition and

decree, this does ―not change the common law rule that a man may lawfully change his

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name at will and will be bound by any contract into which he enters under his adopted

or reputed name, and that he may sue and be sued in that name.‖ So, explicitly, we can

understand that a common law name change carries the same legal weight as a court

decreed name change. In this passage is also the use of the wording ―at will‖—this is

precisely what common law allows—no court issued order of name change is required.

The name change is done ―at will.‖ As shown elsewhere in this site, you do not need a

civil court issued name change at common law, because at common law, you are the

court, you are the king or queen in your court, and by your ―will‖ you decree that your

name is changed, and it is thus legally done. In this case, a certain person moved from

New York State to Pennsylvania, by common law, at will, assumed the name of ―J. D.

McUlta,‖ and then went bankrupt after several years of doing business in that new

name. This case is also an example that a person‘s name is really irrelevant in regards

to the person, for it only indicates the person — your name and other idica of self are

thus possessions you have total control over. Your certain presence and the truth of

your word are all that matters at common law:

This exception charges the bankrupt with fraud in obtaining the goods and

merchandise purchased, in that he did not inform his creditors of his right name,

and therefore he did not obtain title to the goods which he claims as exempt. We

dismiss this exemption. A name is used merely to designate a person or thing. It is

the mark or indica to distinguish him from other persons, and that is as far as the

law looks. In re Snook, supra; Rich v. Mayer (City Ct. N. Y.) 7 N. Y. Sup. 69, 70.

They are merely used as means of indicating identity of persons. Meyer v. Indiana

National Bank 27 Ind. App. 354, 61 N. E. 596. There is nothing in the evidence to

show that any fraud was committed by the bankrupt in purchasing the goods. They

were sold to him under his assumed name (the creditors never knew until after the

institution of bankruptcy proceedings and the adjudication, that the bankrupt was

doing business under an assumed name;) and he took title of the goods and could

have disposed of them under his assumed name and given a good title to the same.

Credit in this case was given to the man—not the name—and that man was J. D.

McUlta.

Name indicates the person; it is not, by law, the person. So if you already know a

specific person, and an aspect or aspects of that person change or evolve over time, this

is inconsequential. Furthermore, this federal case makes clear that, without any civil

court authorization, by common law one may legally assume and thus change their

name, their ―indica,‖ ―at will.‖ Also see California Civil Code § 1798.92(c) concerning

types of indica. This next case, Christianson v. King County (1912) 196 F. 791, 36 S.Ct.

114, 239 U.S. 356, 60 L.Ed. 327 made it all the way to the U.S. Supreme Court and was

affirmed by them. In this case, an immigrant from Norway, by common law, changed

his name. The case predominately revolved around a land dispute regarding the

descendants of the said person. The court speaks here of one‘s ―assumed‖ name-that

it is one‘s legal name. ―A man may lawfully change his name without resorting to legal

proceedings, and for all purposes the name assumed by him will constitute his legal

name.‖ Very clearly here, the name a person assumes as theirs, it is their legal name.

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The court proclaims here that an at will name change carries the exact same legal

weight as that of a civil court ordered name change.

To clarify intent, in the next case United States v. McKay (1924) 2 F.2d 257, a couple

who‘d assumed different names than their birth names were illegally selling liquor out

of their home during the Prohibition. The warrant issued to search their premises was

made out using their new name of McKay, but the accused tried to get out of being

prosecuted due to that it was issued under their assumed names. In response, the court

affirmed:

Under the common law a man can change his name at will, provided it is not done

with a fraudulent purpose; he may sue and be sued by such adopted name, and will be

bound by any contract into which he enters in his adopted name. [And this] is not

abrogated by the fact that a procedure is provided by statute for the change of

one‟s name.

Here again, is the conclusion that the common law carries the same legal weight as a

civil court ordered name change. The ruling concludes also that one‘s name is fairly

irrelevant, unless deception is involved, and that one may change and enter into any

kinds of contracts under one‘s newly chosen name.

In the case of Jech v. Burch (1979) 466 F.Supp. 714, some parents had given their

newborn child a last name that was not their own. A friend of the parents did not think

this was right and went to court over it. The court affirmed their common law right to

choose any name they wished. Particularly, the court touched upon the morality and

constitutionality of this right:

...a proper interpretation of Anglo-American political and legal history and

precedent leads to the conclusion that parents have a common law right to give

their child any name they wish, and that the Fourteenth Amendment protects this

right from arbitrary state action. ...

The common experience of mankind, whether parents agonizing over a name for

their newborn child, or grandparents trying to participate in the naming process,

or grown children living with the names their parents gave them, points up to the

universal importance to each individual of his own very personal label. Every

society has developed a special folklore around a person‟s name. One‟s name becomes

a symbol for one‟s self.

Good name in man and woman, dear my lord,

Is the immediate jewel of their souls;

Who steals my purse steals trash; ‟tis something, nothing;

‟Twas mine, ‟tis his, and has been slave to thousands;

But he that filches from me my good name

Robs me of that which not enriches him,

And makes me poor indeed.

W. Shakespeare. Othello Act III, Sc. 3, Line 155 (1604)

The “Blessings of Liberty” mentioned in the preamble of the Constitution include

time honored rights, amenities, privileges, and immunities, among which is

autonomous control over the development and expression of one‟s intellect,

interests, tastes, and personality. See Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739,

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35 L.Ed.2d 201 (1973) (concurring opinion of Douglas J., at 210-211, 93 S.Ct. 739).

The naming of one‟s own child comes within this catalogue of blessings of liberty.

And likewise, the naming of the self. This case directly expounds that this common law

right is part of the ―Blessings of Liberty‖ that the U.S. Constitution protects and that

specifically the Fourteenth Amendment aids in protecting people from intolerant

policies in this matter. The 14th Amendment specifically relates to government

behavior at civil law, and equal protection under it; clearly this ruling also indicates the

inclusion and protection of this common law right under such amendment.

Furthermore, the wording ―of universal importance‖ speaks of how truly this right to

determine one‘s name is a very human right, applicable to all. This protection of the

law must be honored; none are to ‗robbed‘ of this right ―of universal importance,‖ ―of

that which ... enriches [them]‖— this right, at will, to freely choose their ―own very

personal label‖— their name.

So thus far we have learned that common law name changes are a constitutional right

and that at common law, your word is equal to that of a civil court order. The next few

cases we shall examine reveal several things. First, that one may have multiple names

and identities in which one conducts one‘s life. Secondly, as such, all records of one‘s

name and names do not need to be in perfect alignment in one‘s life and dealings with

others. Thirdly, it is the right of each individual to control the use of these their names

and identities, chosen or otherwise, in their personal and business lives. As these things

are true, one may conclude that they might have a social security card and birth

certificate in one name, but conduct their business and personal lives in any number of

other names. They might even have a driver‘s licence in a even another name.

In the case California Packing Corp. v. Kandarian (1923) 62 Cal. App. 729, a person

had signed a contract for some goods using a name that did not appear to be his own.

The court ruled that the contract was valid. ―Without abandoning his real name, a

person may adopt any name, style, or signature wholly different from his own by which

he may transact business, execute contracts, issue negotiable paper, and sue and be

sued.‖ From this, one can completely live their life, especially financially, in any name

or names they chose. One might get caught up in the statement ―real name‖ and reason

that someone only has one name that is their true name. This is a difficult argument in

the light of In re McUlta in which we read that, ―A name is used merely to designate a

person or thing. It is the mark or indica to distinguish him from other persons, and

that is as far as the law looks.‖ Thus understood, the concept itself of ―real name‖ is

more or less irrelevant in so ―far as the law looks.‖ Other cases as we shall see further

reveal the right to control multiple legal names.

The next case is Abdul-Jabbar v. General Motors Corporation, 85 F.3rd 407 (9th Cir.

1996), in which the basketball star Kareem Abdul-Jabbar sued the GMC for using his

former name in one of their commercials. This case particularly reveals that the

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common law right tocontrol one‘s own name and identity is very much alive and well.

Frequent references are made to the common law rights of Abdul-Jabbar throughout

this case. In this case the court ruled in Abdul-Jabbar‘s favor saying that just because

he ceased using his birth name for 10 years to that point, did not mean that he had

abandoned control over it and its use. Specifically the court said:

An individual‟s decision to use a name other than their birth name—whether the

decision rests on religious, marital, or other personal considerations—does not

therefore imply intent to set aside the birth name, or the identity associated with

that name.

Lucidly here, one may have control over the use of multiple names and identities that

they have and have had. Furthermore, the case explicitly speaks of injury, both

economic and emotional, that others do not have the right to use aspects of one‘s

identity such as one of their names without their permission, as such non-approved use

by another may cause the person injury. And ―injury ... is not limited to present or

future economic loss, but ‗may induce humiliation, embarrassment, and mental

distress.‘ Waits, 978 F.2d at 1103 (quotations omitted).‖ So, in one‘s economic matters,

one has control of their identities and how they are used. Others, individuals,

governments, and other institutions, do not have the right to publically choose which

identity they will use in any aspects of someone‘s economic and social life, but

especially their economic life. ―Social life‖ is included in the previous sentence in that

―humiliation‖ and ―embarrassment‖ are aspects which are very much a part of one‘s

social life. And so as one may have and be in control of the use of multiple names and

associated identities, all records in all places cannot be and will not be in perfect

alignment with each other.

In the next case of Touchton v. Dover Corp./Rotary Lift Div., 319 F.Supp2d 1290

(N.D.Ala. 2004), Chris Touchton sued a company for recovery of his attorney‘s fees. Of

significance here in that Mr. Touchton, a single person, sued using the name ―Chris

Touchton d/b/a Touchton Enterprises Inc.‖ and the court ruled that this was fine:

―Absent a statute to the contrary, an individual has the right to be known by any name

that he chooses, and a judgement entered for or against that individual in either an

assumed or a trade name is valid.‖ Hence, a person may be known by multiple chosen

names and that choice of names is theirs to make, and neither the courts nor anyone

else can force them otherwise, unless a civil statute deems so (as shown if filing a suit

specifically at common law, such restrictions do not apply).

Of such statutes, the next case speaks of how some particular California statutes are

actually enacted as an ―affirmation‖ of the common law right. In re Useldinger 35

Cal.App.2d 723 (1939) reads:

The common-law right to change one‟s name has not been abrogated by statute in this

state and such change may be accomplished without resorting to legal proceedings,

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and as sections 1275 to 1279, inclusive, of the Code of Civil Procedure were

enacted in affirmation of that right and for the purpose of establishing a change

of name as a matter of record.

Lucidly here, it is pronounced that these codes were ―enacted in affirmation of that

[common-law] right.‖ The procedural codes are merely for recording purposes. By the

common law, the only proof that is needed is one‘s honest word, not a civil court order.

This particular case concerned a man who had gone by a different name than his birth

name since age 12 and now at age 25 wanted to establish a more permanent record of

it.

More than 14 years before the filing of the petition petitioner had exercised his

legal right to change his name to James J. Britt. Thereafter petitioner had

consistently used and had been generally known by the last-mentioned name and it

constituted petitioner‟s “legal name just as much as if he had borne it from

birth”. (Ray v. American Photo Player Co., supra, p. 314) The purpose of the

petitioner in filing this proceeding was to establish a legal record of that which

he had already legally done many years before.

So, simply giving one‘s word, by the common law stands as being of equal validity as

one‘s birth name. And it stands legally, as if one ―had borne it from birth.‖ No proof is

required, no civil court order, no marriage certificate, no driver‘s licence or social

security card. Again, by cases such as In re McUlta 189 F. 250, which is similar to this,

name is basically irrelevant in so far as the law is concerned, the person and their self-

determination and will for how they live their life is all that matters. You are the

sovereign court at common law, and your word is the court order. The statutes are just

to make a record of it. This also brings into question any sort of weight to the term,

―real name,‖ as the name one assumes is one‘s name as if they had borne it from birth.

It is also worthy to mention that in the state case In re Marriage of Banks (1974) 42

Cal.App.3d 631 the civil courts also ruled that:

Code Civ. Proc., §§ 1275-1279, were enacted in affirmation of the common law right

of a person to change his name without initiating legal proceedings and for the

purpose of providing for the establishment of a change of name as a matter of

record.

This makes it even more crystal clear that changing one‘s name is actually a matter

ONLY of common law, the common law is the legal name change. The civil court

procedure just makes it recorded, if that person desires it to be recorded. The federal

case of Brooks Bros. V. Brooks Clothing of California (1945) 60 F.Supp. 442 affirms

this:

It should be added that in California a person may without judicial proceeding,

change his name, and acquire property and do business under it. Ray v. American

Photo Player Co., 1920, 46 Cal.App.311, 189 P. 130; In re Useldinger, 1939, 35

Cal.App.2d 723, 96 P.2d. 958.

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Statute is simply to have a public record of it, and it is not prerequisite for legally

changing one‘s name. The codes are ―in affirmation of that [common-law] right‖ and

not to hinder it. If someone asks for proof of the change from you, and they are quite

certain of who you are, you need only inform them of the common law right and truly

they should accommodate. As an example, there is likely nothing wrong with anyone,

an individual or institution may have a ―policy‖ of asking for proof of your change of

name or other changes to your identity, but if before them invoke the common law — it

is the law and they are required, especially in business matters, to change it in

accordance with your will of how you wish to be represented. Otherwise, they are

breaking the law.

In the case of United States v. Mount, 757 F.2d 1315 (1995), someone was accused of

making a false statement about their chosen name when they applied for a passport.

The civil court ruled that the burden of proof of a common law name change is not

legally upon the one who has changed their name.

Where use of a false name is charged, the prosecution must show, first that the

name was not, in fact, the defendant‟s name, and second, that the defendant assumed

the name for a fraudulent purpose. See United States v. Cox, 593 F.2d 46 (6th

Cir.1979).

Essentially, the burden of proof is not upon one who has chosen a new name, but the

one who questions their honesty. And if they do question that honesty, they must show

both that it is not, ―in fact‖ their name, but also, and perhaps more importantly, that

they have changed it so to engage in fraud. If you, as the king or queen in your court

decree it, then it is so, unless someone can tell you otherwise and prove you have

decreed it out of fraud.

United States v. Cox, 593 F.2d 46 (1979) was a very similar case as someone was

accused of making a false statement in application for a U.S. passport. When the

passport agency went to do their research on whether the name was correct, they found

that the person had been going by several other names than the new one they had put

on their passport application, and so they accused the person of making a false

statement. The higher court that made the final ruling said that though the passport

agency did find proof that the person was using other names—they had no proof of

fraud regarding the person‘s free right to choose, by common law, whatever name they

will.

__________

In summary, at common law, you are the court, you speak to others what your name is

and thus it legally is changed. You can go by multiple names all of them perfectly legal

as long as you are not involved in fraud, and the burden of proof of the change or

chosen designation is never upon you, but only upon those around you, if they question

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it. And even if they do question it and find discrepancies, they can only really challenge

the change if they additionally have proof of fraud. Perhaps they find that your social

security card and the name you give them, or perhaps the name on your driver‘s

licence do not match, they are still obligated to change or accept the name you have

given to them — so that they will, thus, not misrepresent you in the various manners

you choose to present and conduct yourself in your business and personal affairs.