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Originally Posted by DCLXVI
Common law for me has been useful in determining the original meaning of words in old statutes and constitutions. The rule of common law only applies to court cases where the suit was brought by the suitor as a common law action.
Of course there are statutes indicting that common law shall be the rule of decision in the courts unless explicitly deviated from. However the common law has just been made subject to a statute and the force is still coming form that statute because the court is still sitting as a limited jurisdiction court and as such must derive all procedure from statute and power thus conferred.
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This would be the fundamental logic behind David Merrill's saving to suitor basis of action on the refusal for cause. The way the Refused For Cause works is by taking plaintiff/suitor role. One refuses the instrument for cause and then files the case in a court jacket. Filing the case as a libel of review means you, the suitor, the plaintiff, are "choosing" to file it in admiralty jurisdiction where Article Three of the US Constitution is controlling.
Thus the suitor has chosen jurisdiction, has chosen United States jurisdiction and has chosen the remedy to be a common law remedy, and has chosen himself as a competent court of jurisdiction. The article three court is just there as review.
It is important to realize that the common law remedy is provided for and not a common law court.