Definitions
Civil Liberties: Personal natural rights guaranteed and protected by Constitution; eg freedom of speech, press, freedom from discrimination, etc. Body of law dealing with natural liberties, shorn of excesses which invade equal rights of others. Constitutionally, they are restrictions on government.
Natural Rights: Those which grow out of nature of man, and depend upon his personality and are distinguished from those which are created by positive laws enacted by a duly constituted government to create an orderly civilized society.
Natural Liberty: The power of acting as one thinks fit, without any restraint or control, unless by the law of nature.The right which nature gives to all mankind of disposing of their persons & property after the manner they judge most consistent with their happiness, on condition of their acting within the limits of the law of nature, & so as not to interfere with the equal exercise of the same rights by other men. 1 Bl.Comm. 125
Common Right: A term applied to rights, privileges, and immunities appertaining to and enjoyed by all citizens equally and in common, and which have their foundation in the common law. Co. Inst. 142a; Spring Valley Waterworks v. Schottler, 62 Cal. 106.
Common Law: As distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgements and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and in this sense particularly the ancient unwritten law of England.
The "common law" is all the statutory and case law background of England and the American colonies before the American Revolution.
"Common law" consists of those principles, usage and rules of action applicable to government and security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the legislature. As distinguished from ecclesiastical law, it is the system of jurisprudence administered by the purely secular tribunals. ... In a broad sense, "common law" may designate all that part of the positive law, juristic theory, and ancient custom of any state or nation which is of general and universal application, thus marking off special or local rules or customs."
Privilege: A particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens. An exceptional or extraordinary power or exemption. A right, power, franchise, or immunity held by a person or class.
An exemption from some burden or attendance, with which certain persons are indulged, from a supposition of law that the stations which they fill, or the offices they are engaged in, are such as require all their time and care; and that, therefore, without this indulgence, it would be impracticable to execute such offices to that advantage which the public good requires.
FIDUCIARY. The term is derived from the Roman law, and means (as a noun) a person holding the character of a trustee, or a character analogous to that of a trustee, in respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires. Svanoev. Jurgens, 144 Ill. 507, 33 N.E. 955; Stoll v. King, 8 How.Prac.,N.Y., 299. A person having duty, created by his undertaking, to act primarily for another's benefit in matters connected with such undertaking. Haluka v. Baker, 66 Ohio App. 308, 34 N.E.2d 68, 70.
Civil and Criminal Courts: The former being such as are established for the adjudication of controversies between individual parties, or the ascertainment, enforcement, and redress of private rights; the latter, such as are charged with the administration of the criminal laws, and the punishment of wrongs to the public.
De facto Court: One established, organized, & exercising its judicial functions under authority of a statute apparently valid, though such statute may be in fact unconstitutional and may be afterward so adjudged
Court of Law: In a wide sense, any duly constituted tribunal administering the laws of the state or nation;
in a narrower sense, a court proceeding according to the rules of the common law and governed by its rules and principles.
Inferior Court: An inferior court is a court whose judgments or decrees can be reviewed, on appeal or writ of error, by a higher tribunal, whether that tribunal be the circuit or supreme court. Nugent v. State, 18 Ala. 521.
Court of Record: is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a perpetual memorial. Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc., Mass., 171, per Shaw, C. J. See,also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689.
Due Process of Law: Law in its regular course of administration through courts of justice. 3 Story, Const. 264, 661. "Due process of law "in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs." Cooley, Const. Lim. 441. Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution—that is, by the law of its creation— to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary appearance. Pennoyer v. Neff, 95 U.S. 733, 24 L.Ed. 565. Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law. Zeigler v. Railroad Co., 58 Ala. 599. These phrases in the constitution do not mean the general body of the law, common and statute, as it was at the time the constitution took effect; for that would seem to deny the right of the legislature to amend or repeal the law. They refer to certain fundamental rights, which that system of jurisprudence, of which ours is a derivative, has always recognized. Brown v. Levee Com'rs, 50 Miss. 468. "Due process of law," as used in the constitution, cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property. Embury v. Conner, 3 N.Y. 511, 517, 53 Am.Dec. 325. And see, generally, Davidson v. New Orleans, 96 U.S. 104, 24 L.Ed. 616. "Law of the land," "due course of law," and "due process of law" are synonymous. People v. Skinner, Cal., 110 P.2d 41, 45; State v. Rossi, 71 R.I. 284, 43 A.2d 323, 326; Direct Plumbing Supply Co. v. City of Dayton, 138 Ohio St. 540, 38 N.E.2d 70, 72, 137 A.L.R. 1058; Stoner v. Higginson, 316 Pa. 481, 175 A. 527, 531. But "judicial process" and "judicial proceedings" are not necessarily synonymous with "due process." Pennsylvania Publications v. Pennsylvania Public Utility Commission, 152 Pa.Super. 279, 32 A.2d 40, 49; Barry v. Hall, 98 F.2d 222, 68 App.D.C. 350. The essential elements of "due process of law" are notice and opportunity to be heard and to defend in orderly proceeding adapted to nature of case, and the guarantee or due process requires that every man have protection of day in court and benefit of general law. Dimke v. Finke, 209 Minn. 29, 295 N.W. 75, 79; Di Maio v. Reid, 13 N.J.L. 17, 37 A.2d 829, 830. Daniel Webster defined this phrase to mean a law which hears before it condemns, which proceeds on inquiry and renders judgment only after trial. Wichita Council No. 120 of Security Ben. Ass'n v. Security Ben. Assn., 138 Kan. 841, 28 P.2d 976, 980, 94 A.L.R. 629; J. B. Barnes Drilling Co. v. Phillips, 166 Okla. 154, 26 P.2d 766. This constitutional guaranty demands only that law shall not be unreasonable, arbitrary, or capricious, and that means selected shall have real and substantial relation to object. Nebbia v. People of State of New York, N.Y., 54 S.Ct. 505, 291 U.S. 502, 78 L.Ed. 940, 89 A.L.R. 1469; North American Co. v. Securities and Exchange Commission, C.C.A., 133 F.2d 148, 154.
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