View single post by Joe Kelley
 Posted: Wed Sep 26th, 2018 01:22 pm
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Joe Kelley

 

Joined: Mon Nov 21st, 2005
Location: California USA
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Mana: 
 "Characterized neither by the private rights model of the seven common law forms of action nor by the "injury-in-fact" paradigm of modern standing doctrine, these matters took forms astonishingly similar to the "standingless" public action or "private attorney general" model that modern standing law is designed to thwart.... Adjudicatory models premised on a part-whole schema, like mandamus, are ultimately crowded out of our concept of justiciable controversies.... Procedurally, the models of access for raising claims of public right allowed individuals to command the attention of the law, as in the private rights model.... The Frothingham Court began its analysis with a discussion of nonconstitutional doctrines of equity, proceeded to reason from the constituent model in a way that shows clear prototype effects, then rejected the intermediate status of the public rights model, and finally raised constitutional considerations that helped lead to a modern conception of standing.... For over a hundred years, the metaphor of "standing" was shorthand for the question of whether a plaintiff had asserted claims that a court of equity would enforce...."


The Metaphor of Standing and the Problem of Self-Governance.
Steven L. Winter
https://constitution.org/1-Law/duepr/standing/winter_standing.htm

"All of the actions commonly in use in England, such as trespass, trover, case, debt, covenant, assumpsit and replevin were also in use in Massachusetts, and one even finds obscure actions, such as recout, in occasional use."

"Over the years the courts recognized other forms of actions that permitted recovery for injuries that did not exactly fit the forms of trespass or trespass on the case. Eventually, writs were also issued for these various types of actions."
http://law.jrank.org/pages/10897/Trespass-Common-Law-Form-Action.html

Common Law Forms of Action (Not genuine bottom up, grass roots, voluntary common law, rather English top down, dictatorial, divide and conquer, counterfeit Common Law: see Lysander Spooner an Essay on the Trial by Jury):


1. Trespass

"The fine in this criminal proceeding developed into an award of damages to the plaintiff. This change marked the beginning of tort action under the common law."

Look-up in Essay on the Trial by Jury the section concerning fines charged to the guilty that were not injurous to the guilty (ruinous).

"Over the years the courts recognized other forms of actions that permitted recovery for injuries that did not exactly fit the forms of trespass or trespass on the case. Eventually, writs were also issued for these various types of actions."

Organic (bottom up) common law, being adaptive, affords each indivdual seeking remedy for any percieve injury their right (1st ammendment) to create a writ of action that fits the individual situation. Reference needed here...

http://law.jrank.org/pages/10897/Trespass-Common-Law-Form-Action.html


2. Trover

"Early in its history, the English Common Law recognized the rights of a person whose property was wrongfully held (or detained). Such a person could bring an action of Detinue to recover the goods or, later, could bring an action on the case to recover the value of the goods. In the course of the sixteenth century, the action of trover developed as a specialized form of action on the case."
https://legal-dictionary.thefreedictionary.com/trover

Detinue
"Dating back to the twelfth century, detinue is one of the oldest forms of action in common law, along with the action of debt—a lawsuit for a specific sum of money owed."
https://legal-dictionary.thefreedictionary.com/detinue

Above lends validity to the accurate measure of liberty versus a profitable monopoly, as liberty is when all people are on equal footing according to the voluntary mutual defense association laws, and each indivdiual can tailor fit the common law action required to inform the country (the jury) as to what precisely is the injury done to the innocent victim, the same injury done by the guilty criminal. Civil rather than criminal cases, do not threaten the people as a whole: the public, as in "disturbing the peace," suggests. See Roger Roots work.


The encroachments upon individual freedom is this enforcement of assumed authority to define the injuries done by one indiviudal to another (or many to many) that are deemed worthy of due process, and only these specified formes are allowed, and no other forms are allowed, which thereby removes the actual power (indivdiual) to adapt to each situation. The many reasons to assume such authority include the reason that the "elite" can transfer more, and more, power from the "subjects," as each individual seeking remedy has to pay for boilerplate A, which turns out to be rejected, then pay for boilerpalte B, which turns out to be rejected, on and on and on, utill the cost of "justice" is unafordable.

3. Case



4. Debt

5. Covenant

6. Assumpsit

7. Replevin

Down into a rabbit hole...

"Let it be granted that one man has been wronged by another; the first thing that he or his advisers have to consider is what form of action he shall bring. It is not enough that in some way or another he should compel his adversary to appear in court and should then state in the words that naturally occur to him the facts on which he relies and the remedy to which he thinks himself entitled. No, English law knows a certain number of forms of action, each with its own uncouth name, a writ of right, an assize of novel disseisin or of mort d'ancestor, a writ of entry sur disseisin in the per and cui, a writ of besaiel, of quare impedit, an action of covenant, debt, detinue, replevin, trespass, assumpsit, ejectment, case. This choice is not merely a choice between a number of queer technical terms, it is a choice between methods of procedure adapted to cases of different kinds. Let us notice some of the many points that are implied in it."
Medieval Sourcebook:
F. W. Maitland:
The Forms of Action at Common Law, 1909

Why are commoners (subjects subjected to criminals inforcing a profitable monopoly that counterfeits rule of law) unable to afford due process of law?

"As early as the time of the American Revolution, lawyers and laymen alike were aware of the needless expense of litigation. One writer in 1770, for example, told a correspondent that "[L]aw suits are what we wish to avoid and always advise our friends against it, as tedious and very expensive..." (Letter from Anderson Bannatyne Co., Glasgow, to John Russel, Plymouth, June 5, 1770, in plymouth Notary Public Records, 1768-1830) The Reform of Common Law Pleading in Massachusetts 1760-1830: Adjudication as a Prelude to Legislation William E. Nelson