An American Perspective: Common Law Proceedings

Chapter 3 - Courts

§4. Common Law Proceedings

In order to fully comprehend the legal significance of the Court of Record, some detailed writings as to their proceedings from “Koffler: Common Law Pleading” is supplied for an expanded clarity as to the functions and process.

“The Common-Law Record consists of the Process, the Pleadings, the Verdict and the Judgment. After Judgment, such Errors were Reviewable by Writ of Error. Errors which occurred at the Trial were not part of the Common-Law Record, and could be Reviewed by a Motion, for a New Trial, after Verdict and before Judgment; by Statute, such Errors could be Reviewed after judgment by incorporating them into the Record by means of a Bill of Exceptions. It was therefore essential to keep clearly in mind the distinction between Matter of Record and Matter of Exception.
Under the ancient practice, the Proceedings in a litigated case were Entered upon the Parchment Roll, and when this was completed, the end product became known as the Common-Law Record. It consisted of Four Parts, the Process, which included the Original Writ and the Return of the Sheriff, by which the Court acquired Jurisdiction over the defendant; the Pleadings, presented by the Parties in the prescribed order to develop an issue of Law or of Fact, and which included the Declaration and all subsequent Pleadings, together with the Demurrers, if any, the Verdict, and the Judgment. These Four Elements formed the Common-Law Record, but it should be observed that at the point where the Retrospective Motions come into play, the Record has not been developed beyond the Stage of Entering the Verdict upon the Roll.
At this point it should also be recalled that between the time when the Pleadings Terminated in an issue, which Joined in Issue was duly Recorded on the Parchment Roll, and the time when an Entry of the Verdict was made, nothing was Recorded on the Parchment Roll. The reason for this was that between the Joinder of Issue and the Rendition of the Verdict, the Trial takes place, and what occurs during this Trial does not Appear upon the Face of the Common-Law Record. Thus, Offers and Rejection of Evidence, the Court’s Instruction of the Jury, or its Refusal to instruct as requested by counsel, or any Misconduct Connected with the Trial, such as Prejudicial Remarks on the Part of the Court, and the like – that is – any Error that occurs at the Trial – cannot be corrected by resort to the Common-Law Record because not Apparent on its Face.
Such Errors were preserved only in the notes [minutes] made by the Presiding Judge, or in his memory, and were reviewable, after Verdict and before Final Judgment, by a Motion for New Trial made before the Court En Banc at Westminster, within four days after the Commencement of the Next Term following the Rendition of the Verdict. As each of the Judges of the Court had Motions of a similar character coming up for decision from the Trials over which they had presided, the natural inclination of each Judge was to support the Rulings of his brother Jurists, and thus Overrule the Motion for a New Trial. Furthermore, Errors that occurred at the Trial were not Reviewable after Judgment on Writ of Error, because Not Apparent on any one of the Four Parts of the Common-Law Record. To remedy this Defect, Parliament enacted Chapter 31 of the Statute of Westminster II in 1285, which provided for Review of such Errors through the use of what came to be known as a Bill of Exceptions.
Thus, it appears that in four out of five Retrospective Motions, the Court is permitted to consider only Defects Apparent Upon the Face of Part of the Common-Law Record – the Process, the Pleadings, and the Verdict – and Errors Occurring at the Trial were regarded as extraneous and not to be considered in rendering Judgment upon the Motions. Matters extraneous to or outside of the Record could be tested after Verdict and before Judgment only by a Motion for a New Trial. A distinction is made between Matter of Record and Matter of Exception. Matter of Record referring to those Errors Apparent upon the Face of the Common-Law Record and hence Reviewable after Final Judgment upon a Writ of Error, and Matter of Exception referring to those Errors which Occurred at the Trial, and were Not Apparent on the Face of the Common-Law Record, hence Reviewable after Final Judgment only by incorporating such Errors into the Record by means of a Bill of Exceptions, as authorized by Chapter 31 of the Statute of Westminster II in 1285.”225

We can conclude from this selection of Koffler’s writings on the Court of Record that it consists of four parts. The first procedure is to gain jurisdiction over the defendant in any case. After jurisdiction is gained by the court, allowing them to hear and see the case, then pleadings are set forth, in which the plaintiff and defendant argue their position in a specific format. Following the various motions of the pleadings is the trial to see and hear each parties case, and the matter of adjudicating the facts and law pertaining to the subject-matter and personam of the defendant, otherwise known as the verdict, which is concluded by a tribunal independent of the magistrate. After this necessary and ancient due process of the law, a judgment is awarded based upon the final verdict.

Although all courts are not operating or proceeding as a Court of Record, this is the foundation of any proceeding in law. Any court process that you encounter will consist of one of these elements, whether it is a nisi prius, military tribunal, maritime/ admiralty, or any other court of law. All courts follow administrative procedures. If you figure out the administrative procedures, you can gain some insight as to how to interact, both publicly and privately.

[225 Koffler: Common Law Pleading, pg. 567-568 (1969)
Copyleft by Bill Thornton of 1215.org]