Common Law, being derived from Natural Justice, bases its legal procedures on the centrality of Due Process: the three-fold right of anyone to be notified of the charges being brought against him, to see the evidence in such a suit, and to be tried and judged before his own peers. No legitimate trial can proceed nor can a conviction be rendered if the accused has not been given these rights, and afforded the chance to freely defend himself in a court of law.
Such rights are based on these fundamental doctrines of the Common Law:
- It is presumed that the accused is innocent, not guilty;
- The burden of proof of the accused’s guilt rests not upon the defendant but the plaintiff, who must convince a jury of the guilt of the accused beyond any reasonable doubt, and
- The accused cannot be detained without due process but must appear promptly before a Court, according to the principle of Habeas Corpus, which is Latin for ”produce the body.”
Both sides in a dispute are given equal time to file their statements and evidence, make motions to the Court, and respond to arguments. But to avoid “vexatious litigation” designed to simply harass or disrupt an adversary – which can drag out and impede justice and due process itself – the Court normally sets a strict time limit on pre-trial proceedings, after which the trial commences.
The pre-trial period allows both sides to present their evidence and arguments to one another in order to seek a settlement prior to a Court appearance. This presentation is usually referred to as Examination for Discovery or Voir Dire (“to see and say”) where either party can demand any relevant evidence or document from the other. If Examination does not produce a settlement of differences, then the Court is convened and a trial begins.
The general procedures and protocols of a Common Law Court are summarized in the following outline, which must be followed by anyone seeking to accuse and try other parties.
STEP ONE: Compiling the Case
A Statement of Claim must be produced by those bringing a case, known as the Plaintiffs. Their Statement sets out in point form the basic facts of the dispute, the wrong being alleged, and the relief or remedy being sought.
Next, the Plaintiff’s Statement of Claim must be accompanied by supporting evidence: documents and testimonies proving their case beyond any reasonable doubt. This evidence must be duly sworn by those not party to the dispute in the form of witnessed statements; and it must consist of the original documents themselves, and not copies.
As well, anyone whose testimony is used in this body of evidence must be willing to come into Court to testify and affirm their own statement.
STEP TWO: Seeking the Remedy of a Common Law Court; Filing a Notice of Claim of Right
After gathering his case, a Plaintiff must then seek the aid of a Common Law Court and its officers. Such a Court can be brought into being by publishing a Notice of Claim of Right, which is a public declaration calling for the assistance of the community in the asserting of the Plaintiff’s right under Natural Justice to have his case heard through the Common Law, by way of a jury of his neighbours and peers. Such a Notice can be published in local newspapers or simply notarized and posted in a prominent public location, like a town hall or library.
STEP THREE: Forming a Common Law Court
Within 24 hours of the issuing of such a Notice of Claim of Right, any twelve citizens of a community can constitute themselves as a Common Law Court and its jury, and must then appoint the following Court Officers:
- a Court Adjudicator, to advise and oversee the Court proceedings
- a Public or elected Prosecutor to conduct the case; this person is normally the Plaintiff or someone they authorize to advise but not represent them
- a Defense Counsel to advise but not represent the accused
- a Court Sheriff, either elected from the community or delegated from among existing peace officers. The community can choose to elect a Sheriff for any term — the usual term is anywhere from 3 to 5 years, but may be shorter or longer
- Bailiffs, a Court Registrar and a Court Reporter
- A jury of twelve men and women elected from the community
It is assumed that people with knowledge of the Common Law and legal procedure will act in these capacities. And, as mentioned, a Common Law Magistrate or Justice of the Peace may also initiate this formation of a Common Law Court.
STEP FOUR: Swearing in and Convening the Jury and Court Officers; Oaths of Office
Upon the appointment of these Court Officers, the Adjudicator (a Justice of the Peace or a comparable Magistrate) will formally convene the Court by taking and administering the following Oath of Common Law Court Office to all of the Court officers:
I (name) will faithfully perform my duties as an officer of this Common Law Court according to the principles of Natural Justice and Due Process, acting at all times with integrity, honesty and lawfulness. I recognize that if I fail to consistently abide by this Oath I can be removed from my Office. I make this public Oath freely, without coercion or ulterior motive, and without mental reservation.
After taking this oath, the Jury members, Court Counsellors, Sheriffs, Bailiffs and Reporter will then convene and receive instructions from the Adjudicator concerning the case. The Adjudicator is not a presiding Judge or Magistrate but an advisor to the Court, and has no power to influence, direct or halt the actions or the decisions of the Jury or other Court officers, except in the case of a gross miscarriage of justice or negligence on the part of Court officers. Thus, the Court is self-regulating and dependent on the mutual respect and governance of the Court officers and the Jury.
STEP FIVE: Pretrial Conference
The Adjudicator brings together both parties in a pre-trial conference to settle the case prior to a trial. If a settlement is not achieved, both parties must engage in a mandatory Examination for Discovery where the evidence and statements of both sides will be presented. After a period of not more than one week, this pre-trial conference will conclude and the trial will commence.
STEP SIX: Issuing a Public Summons
No person or agency may be lawfully summoned into Common Law Court without first receiving a complete set of charges being brought against them and a formal Notice to Appear, or Writ of Public Summons. Such a Summons outlines the exact time, date and address when and where the trial will commence.
The Public Summons is applied for by the Plaintiff through the Court Registrar. The Summons will be issued under the signature of the Court Adjudicator and delivered to the Defendant by the Court Sheriff within 24 hours of its filing in the Court Registry by the Plaintiff.
The Sheriff must personally serve the Defendant, or post the Summons in a public place and record the posting if the Defendant avoids service. The Defendant has seven days to appear in Court from the date of service.
STEP SEVEN: The Trial Commences; Opening Arguments
After an introduction by the Adjudicator, the trial commences with opening arguments by first the Plaintiff or Prosecutor, and then the Defendant. The Adjudicator and both Counsellors will then have the chance to question either parties for clarification, and to make motions to the Court if it is apparent that the proceedings can be expedited.
Note: Step Seven can still occur even if one side, usually the Defendant, is not present in Court and refuses to participate. Such a trial, being conducted in-absentia, remains a legitimate legal procedure once the Defendant is given every opportunity to appear and respond to the charges and evidence against him. An in-absentia trial will commence with the Plaintiff presenting his opening argument followed by his central case. The Court-appointed Defense Counsel will then be given the chance to argue on behalf of the absent Defendant, if that is the wish of the latter.
It is often the case that a non-response or non-appearance by the Defendant can result in the Adjudicator advising the Jury to declare a verdict in favour of the Plaintiff, on the grounds that the Defendant has tacitly agreed with the case against himself by not disputing the evidence or charges, and making no attempt to appear and defend his own good name in public.
STEP EIGHT: The Main Proceedings
Assuming the proceedings are not being conducted in-absentia and the Defendant is present, the main proceedings of the trial then commence with the Plaintiff’s presentation of the details of his evidence and argument against the Defendant, who can then respond. The Plaintiff may be assisted by the Prosecutor.
After his presentation, the Plaintiff is then cross-examined by the Defendant or his advising Counsel. Following cross-examination, the Defendant presents his case, with or without his advising Counsellor and in turn is cross-examined by the Plaintiff or the Prosecutor. There are usually no restrictions placed on the duration of the main proceedings.
STEP NINE: Closing Arguments and Summaries to the Jury and Final Advice by the Adjudicator
After the main proceedings, the Adjudicator has the chance to further question both parties in order to give final advice to the Jury. The Plaintiff and the Defendant then have the right to give their summary argument to the Court. The Adjudicator closes with any final comments to the Jury.
STEP TEN: The Jury Retires to Deliberate
The Court is held in recess while the twelve jury members chosen from the community retire to come to a unanimous verdict and a sentence, based on their appraisal of all the evidence. There is no time restriction on their deliberations, and during that time, they are not allowed contact with anyone save the Court Bailiff, who is their guard. The Jury’s verdict and sentence must be consensual and unanimous.
STEP ELEVEN: The Jury Issues its Unanimous Verdict and Sentence
The Court is reconvened after the Jury has come to a verdict. If the jurors are not in complete unanimity concerning the verdict, the defendant is automatically declared to be innocent. The Jury spokesman, chosen from among them by a vote, announces the verdict to the Court, and based on that verdict, the final sentence is also declared by the Jury, or jointly with the Adjudicator.
STEP TWELVE: The Court Adjourns and the Sentence is Enforced
Following the announcement of the Verdict and Sentence, the Adjudicator either frees the Defendant or affirms and authorizes the decision of the Jury in the name of the Court, and instructs the Sheriff to enforce that sentence. The Adjudicator dismisses the Jury and concludes the trial proceedings. The complete record of the proceedings is a public document, accessible to anyone, and it can in no way be withheld, altered or compromised by the Adjudicator or any other party.
A Note on Common Law Enforcement:
It is understood that every able bodied member of the community is obligated and empowered by Natural Law to assist the Court Sheriff and his Deputies in enforcing the sentence of the Court, including by ensuring the imprisonment of the guilty, the monitoring of his associates and the public seizure of the assets and property of the guilty and his agents, if such is the sentence of the Court.
This collective law enforcement is required in the interest of public safety, especially when the guilty party is an entire institution or head officers of that body.
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