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http://books.google.com/books?id=MKA...ancery&f=false
The Equity jurisdiction of the High Court of Chancery embraces:
I. Accident and Mistake
II. Account
III. Fraud
IV. Infants
V. Specific Performance of Agreement
VI. Trusts
There was a Common Law side to Courts of Chancery, but it was very limited and narrow.
Amazing what one learns when reading these old treatises.
Equity (law)
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People started petitioning the King for relief against unfair judgments and as the number of petitioners rapidly grew, the King delegated the task of hearing petitions to the Lord Chancellor. As the early Chancellors had no formal legal training, and were not guided by precedent, their decisions were often widely diverse. However, in 1529 a lawyer, Sir Thomas More, was appointed as Chancellor, marking the beginning of a new era. After this time, all future Chancellors were lawyers, and from around 1557 onwards, records of proceedings in the Courts of Chancery were kept, leading to the development of a number of equitable doctrines. Criticisms continued, the most famous being 17th century jurist John Selden's aphorism: ‘Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. ‘Tis all one as if they should make the standard for the measure we call a foot, a Chancellor’s foot; what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an indifferent foot: ‘tis the same thing in a Chancellor’s conscience.’[6]
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This tension grew to an all-time high in the Earl of Oxford’s case (1615), where a judgment of Chief Justice Coke was allegedly obtained by fraud.[7] The Lord Chancellor, Lord Ellesmere, issued a common injunction out of the Chancery prohibiting the enforcement of the common law order. The two courts became locked in a stalemate, and the matter was eventually referred to the Attorney-General, Sir Francis Bacon. Sir Francis, by authority of King James I, upheld the use of the common injunction and concluded that in the event of any conflict between the common law and equity, equity would prevail. Equity's primacy in England was later enshrined in the Judicature Acts of the 1870s, which also served to fuse the courts of equity and the common law (although emphatically not the systems themselves) into one unified court system.
Once equity became a body of law, rather than an arbitrary exercise of conscience there was no reason why it needed its own courts. Consequently the Judicature Act was established, which is the basis of the court structure in England to this date, and that there would no longer be different procedures for seeking equitable and common law remedies. The Judicature Acts fused only the administration of common law and equity; there is still a body of rules of equity which is quite distinct from that of common law rules, and acts as an addition to it. Although they are implemented by the same courts, the two branches of the law are separate. Where there is conflict, equity still prevails.
Clever :) ....Quote:
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Statute of Uses 1535
In order to avoid paying land taxes and other feudal dues, lawyers developed a primitive form of trust called ‘the use’. This trust enabled one person (who was not required to pay tax) to hold the legal title of the land for the use of another person. The effect of this trust was that the first person owned the land under the common law, but the second person had a right to use the land under the law of equity.
Henry VIII enacted the Statute of Uses in 1535 (which became effective in 1536) in an attempt to outlaw this practice and recover lost revenue. The Act effectively made the beneficial owner of the land the legal owner, and liable for feudal dues.
The response of the lawyers to this Statute was to create the ‘use upon a use’. The Statute recognised only the first use, and so land owners were again able to separate the legal and beneficial interests in their land.
For an example, see Godwyne v. Profyt (after 1393): a petition to the Chancellor [8]
See generally treatises on equity and trusts.
Chancery originated as the secretarial department of the Crown.
Overtime, it evolved to have its own jurisdiction.
Equity (law)
Quote:
History
The distinction between "law" and "equity" is an accident of history. The law courts or "courts of law" were the courts in England that enforced the king's laws in medieval times. Here the King's Judges, educated in law rather than theology, administered the universal law of the realm.[4] This body of law evolved on the basis of previously set precedent into what is recognised as the Common law of England. However, if changes were not quick enough, or if decisions by the judges were regarded as unfair, litigants could still appeal directly to the King, who, as the sovereign, was seen as the 'fount of justice' and responsible for the just treatment of his subjects. Such filings were usually phrased in terms of throwing oneself upon the king's mercy or conscience. Eventually, the king began to regularly delegate the function of resolving such petitions to the Chancellor, an important member of the King's Council.[4] The early Chancellors were often clergymen or nobles, acting as the King's confessor and thereby literally as keeper of the King's conscience. As a result of their theological and clerical training, Chancellors were well versed in the Latin and French languages as well as in classical Roman civil and canon law, which heavily influenced equity.[5] Soon the Chancery, the Crown's secretarial department, began to resemble a judicial body and became known as the "Court of Chancery".
By the 15th century, the judicial power of Chancery was recognized. Equity, as a body of rules, varied from Chancellor to Chancellor, until the end of the 16th century. After the end of the 17th century, only lawyers were appointed to the office of Chancellor.
One area in which the Court of Chancery assumed a vital role was the enforcement of uses, a role which the rigid framework of land law could not accommodate. This role gave rise to the basic distinction between legal and equitable interests.
So .... if you want common law principles, you need to ensure equity conflicts not with common law, else equity shall prevail over common law by historical precedence and custom.
Equity works upon imperfect rights (a right and its corresponding obligation held by different parties). You will need to extinguish others interests in a given res to approximate closer to perfect right and absolute ownership.
Equity is a branch of the Law of Remedies. Equity was initially a remedial body of law. Its principles and influence stem from Roman Civil and Canon Law.
http://www.constitution.org/cmt/ccl/equi_juris.htm
Quote:
Originally Posted by shikamaru
These days though, the rule of One Form prevails as common law (case law).
Keyword there: formQuote:
Originally Posted by David Merrill
There is the form of law as well as its substance or spirit.
You want to bring about the spirit of law, not simply just its form.
There may be one procedure for both equity and common law, but the bodies of law are still separate and distinct. See my #2 post.
You can steer the judge as to which way you want him to rule by way of the issues raised as well as the remedy sought.
Box in the judge as well as destroy the counter-party.
You give him the case law (precedence) in which to hang his hat upon and he shall have to rule accordingly.
If not, there is always appeal. An appeal has its roots in form from admiralty/maritime law. In common law, procedure would be a writ of error.
Be not enraptured by the form so that the spirit is forgotten :).
Quote:
Originally Posted by shikamaru
That "common law" was reset in 1938. Louis Dembitz BRANDEIS corrected a mistake (Swift v. Tyson - 1842) in the common law and 1938 being after 1933 means the corrected precedence has a bankruptcy/foreclosure component.
There is some background we must address before moving forward to address the statement above.Quote:
Originally Posted by David Merrill
Swift v. Tyson (1842) crafted a new form of law called federal common law. The opinion was delivered by Associate Justice Joseph Story at the time.
The intent was to craft a uniform set of rules to handle negotiable instruments and other forms of commercial paper (commerce). The government of the United States never followed common law. In fact, its forms and precedences abide by Roman Civil Law and Lex Fori.
The case above was overruled in Erie R.R. v. Tompkins.
Swift had unintended consequences, particularly forum shopping for that forums standard which would be beneficial to one of the parties to a suit.
Erie eliminates the forum shopping but the remnants of this federal common law still exist with regard to commercial paper.
My side of the conversation was spurred by this comment in particular. Please forgive my gisting without clarification. I have a way of responding to only one point in a post without detailing my thought process. My thought process in other words thought that all you were talking about was that one sentence, being that I have read the actual case (attached).Quote:
Originally Posted by shikamaru
I suppose this point is often missed about Erie because it is at the very bottom in the concurring (in part) opinion of Justice REED.
Now bear with me please. I feel that I may finally be able to coalesce this trust structure into a portrait that most or all reading this post may be able to grasp. First a quick dip in the Admiralty from Proctor WISWALL's 1994 comparative lecture on British, American and Australian admiralty rules he made for Ebsworth and Ebsworth. Look on Page 18 of the Secret Admiralty paper linked; quoting WISWALL:Quote:
In this Court, stare decisis, in statutory construction, is a useful rule, not an inexorable command.
You, being familiar with Erie will spot immediately that the author and WISWALL are both speaking about that same 1938 case. Next though get a look inside the Constitution (1984) with Annotations (the big green one). While looking here though, you should try understanding my perspective as the 'saving to suitors' clause is the namesake of "my" website and the source of Diversity of Citizenship too. The Diversity, being redacted in its simplest form between those who endorse private credit from the Fed and those who redeem lawful money instead:Quote:
The delay may seem strange, especially in light of the quite rapid effects of the 1938 merger of the Equity Rules into the first Federal Rules of Civil Procedure. But the late depression era was one of great social activism on the part of the Federal government, and this faded seamlessly into wartime legislation which appropriated control of private property. The District Courts under the new FRCP were quickly forced by the volume of litigation into the wholesale application of equitable remedies in actions "at law".
The 1938 merger of law and equity rules left no loose ends; the procedure is entirely uniform regardless of the nature of the remedy prayed, though of course issuance of an injunction requires at least an ex parte hearing in chambers. The 1966 merger, however, leaves six special Supplemental Admiralty Rules...
http://img249.imageshack.us/img249/4...ftanderie1.jpg
http://img197.imageshack.us/img197/4...ftanderie2.jpg
Now that it is said and done go back to the top of this post and review what you said and how it is contradictory to what Justice REED said of Erie.
Quote:
Originally Posted by shikamaru
Quote:
In this Court, stare decisis, in statutory construction, is a useful rule, not an inexorable command.
You are correct Shikamaru. The only way that both of you can be correct is that the common law, compiled case law opinions are faulty - specifically between 1842 and 1938, when like I said - it was reset. Erie effectively reset the common law.
P.S. I think it was Charles WEISMAN who kept getting beat up in court on Constitutional and other logical arguments when a judge took pity and pulled him aside in the hallway. The judge explained how no case law was binding if it happened before 1938. Do you get my point now?
I learned such from the gentile-man, Howard Freeman . Some clips from his presentations .
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I was asked to testify in a tax case as an expert witness. After many days of preparation, I felt confident of my research. I spent over 30 minutes presenting many Supreme Court decisions that supported the defendant's position. The prosecution concluded his statements, and to my amazement, the judge told the jury that they could only consider certain facts, none of which were the facts I had given.
As soon as the trial was over I went around to the judge's office and he was just coming in through his back door. I said, "Judge, by what authority do you overturn the standing decisions of the United States Supreme Court. You sat on the bench while I read that case law. Now how do you, a District Judge, have authority to overturn decisions of the Supreme Court?" He says. "Oh, those were old decisions." I said, "Those are standing decisions. They have never been overturned. I don't care how old they are; you have no right to overturn a standing decision of the United States Supreme Court in a District Court."
PUBLIC LAW V. PUBLIC POLICY
He said, "Name any decision of the Supreme Court after 1938 and I'll honor it, but all the decision you read were prior to 1938, and I don't honor those decisions." I asked what happened in 1938. He said, "Prior to 1938, the Supreme Court was dealing with Public Law; since 1938, the Supreme Court has dealt with Public Policy. The charge that Mr. S. was being tried for is a Public Policy Statute, not Public Law, and those Supreme Court cases do not apply to Public Policy." I asked him what happened in 1938? He said that he had already told me too much - he wasn't going to tell me any more.
1938 AND THE ERIE RAILROAD
Well, I began to investigate. I found that 1938 was the year of the Erie Railroad v. Tompkins case of the Supreme Court. It was also the year the courts claim they blended Law with Equity. I read the Erie Railroad case. A man had sued the Erie Railroad for damages when he was struck by a board sticking out of a boxcar as he walked along beside the tracks. The district court had decided on the basis of Commercial (Negotiable Instruments) Law: that this man was not under any contract with the Erie Railroad, and therefore he had no standing to sue the company. Under the Common Law, he was damaged and he would have had the right to sue.
This overturned a standing decision of over one hundred years. Swift v. Tyson in 1840 was a similar case, and the decision of the Supreme Court was that in any case of this type, the court would judge the case on the Common Law of the state where the incident occurred - in this case Pennsylvania. But in the Erie Railroad case, the Supreme Court ruled that all federal cases will be judged under the Negotiable Instruments Law. There would be no more decisions based on the Common Law at the federal level. So here we find the blending of Law with Equity.
This was a puzzle to me. As I put these new pieces together, I determined that all our courts since 1938 were Merchant Law courts and not Common Law courts. There were still some pieces of the puzzle missing.
A FRIEND IN THE COURT
Fortunately, I made a friend of a judge. Now you won't make friends with a judge if you go into court like a "wolf in black sheep country." You must approach him as though you are the sheep and he is the wolf. If you go into court as a wolf, you make demands and tell the judge what the law is - how he had better uphold the law or else. Remember the verse: I send you out as sheep in wolf country; be wise as a serpent and harmless as a dove. We have to go into court and be wise and harmless, and not make demands. We must play a little dumb and ask a lot of questions. Well, I asked a lot of questions and boxed the judges into a corner where they had to give me a victory or admit what they didn't want to admit. I won the case, and on the way out I had to stop by the clerk's office to get some papers. One of the judges stopped and said, "You're an interesting man, Mr. Freeman. If you're ever in town, stop by, and if I'm not sitting on a case we will visit.
AMERICA IS BANKRUPT
Later, when I went to visit the judge, I told him of my problem with the Supreme Court cases dealing with Public Policy rather than the Public Law. He said, "In 1938, all the higher judges, the top attorneys and the U.S. attorneys were called into a secret meeting and this is what we were told:
America is a bankrupt nation - it is owned completely by its creditors. The creditors own the Congress, they own the Executive, they own the Judiciary and they own all the state governments.
Take silent judicial notice of this fact, but never reveal it openly. Your court is operating in an Admiralty Jurisdiction - call it anything you want, but do not call it Admiralty.
Wow .... I am floored.
I think the appeals process is a smoking gun with respect to this.
I think it was said that an appeal lies as an action of admiralty.... I'll see if I can dig it up. It is from the Supreme Court case Delovio v. Boit.
Oh snap! If all courts are really admiralty/maritime courts, bringing your case as a libel with the stating of the remedy as savings to suitors has to really get the judge's blood pressure up.
Here we go:
As to the other reason for its not being a court of record, viz, that it proceeds according to the course of the civil law, and that an appeal, and not a writ of error, lies from its decrees
Delovio v. Boit (1815)
This echos the research of "the Informer".
And the entire Jonathan Swif Society , of which he was member .
What Trust Guy said!
Thanks for the correction - Howard FREEMAN not Charles WEISMAN. That is the account I was looking for.
Quote:
Originally Posted by shikamaru
The appeals process is the bullet in that analogy. Common law is case law. - Stare decisis. If you look at the Colorado constitution you find that the only judges allowed to practice law are the county court judges.
The county court judges perform the arraignment and if the defendant is stubborn about pleading, practices law as the defendant's attorney and pleads for him. [In my persecution, that is a large component about where they screwed up by trying to prosecute me 4.5 years later. There was the district court judge (felonies are all heard in district) trying to practice law.] Too late to fall back on the county court judge's faulty arraignment.Quote:
No supreme court justice, judge of any intermediate appellate court, district court judge, probate judge, or juvenile judge shall engage in the practice of law.
That aside though, the county court judge practices law and delegates the findings of fact to the jury (allegedly). If the defendant does not like that then he appeals. The appellate court will hear nothing but Authorities - common law. Mind you, the trial judge has to be careful because he has only so many brownie points before he looks bad, so the citations (authorities) that the defendant brings into the record at trial count too. But those authorities (citations) are common law too - they are citations from appellate courts.
The appellate courts therefore form the common law. It is the opinions from the appellate court system that produces case law/common law.
This is the beauty of the remedy and the 'saving to suitors' clause of 1789! There is only a gaping window of flawed common law in American history. In Trust Guy's account from Howard FREEMAN we do not hear, Bring any case after 1938 and before 1842 and I will listen to you...
Therefore Justice REED mitigates the rigor of the common law doctrine altogether and only agrees conditionally with BRANDEIS. He just plays down the role of the common law altogether but the appellate judges and justices are never allowed to practice law from the bench; therefore they have to abide and are bound by the Authorities outside the scope of 1842 to 1938.
Like Bennett v. Butterworth 52 U.S. 669 - 1840. The principle that is binding today has nothing to do with slavery. But I am certain many judges would try to make you feel that your citation is worthless because the case is about slavery! Sorry about the resolution; some day when I am in the repository I will remember to get a better image:
This is fairly cut and dry. One cannot expect a judge to abide in pre-1938 case law. However that pre-1842 law is faulty is a myth. Especially when we deal with fundamental aspects of remedy and the constitutions. Ideally then, no state can blend law and equity because the Constitution (federal) draws a distinction between them - but then the constructive trusts of the state districts comes into play in commercial matters...
This is fascinating to write about because we are speaking of the Judiciary Act of 1789 where the namesake of this website is found - the 'saving to suitors' clause and fundamental diversity intended for the states as individual nations in compact. That is just one aspect that I find fascinating because that same Act is where the state districts were formed and in 1790 an Act was formed to put the financial obligations of the US Government on those same state districts - executed under the direction of Master Mason George WASHINGTON.
So to tie this together cohesively I will remind you that this rare book collection, where I got the image in Post #5 from is found in the Mason Library.
If you look closely though, you will find that here on this monumental (literally) spot where fiat currency began in America the date on those law books and this image is not 1938 - but 1935!
Now maybe you are understanding why I jumped on that one sentence for foundation. This is a very complex topic to fully explain.
Regards,
David Merrill.
Pre 1842 . Hummm . . . I’ll need to dig out my videos taken at the 1990 Center for Action doo daww and listen to Howard’s account again. I do not recall his stating such . Then again I was somewhat fixated on the Bankruptcy and Reservations of Right aspects for some time . Bankruptcy especially after receiving an anonymous postal delivery from Ft. Collins Colorado of Daniel E. Petersen’s brief on the Bankruptcy .
Quote:
Originally Posted by Trust Guy
How recently did that arrive?
Can you give us the Case # so I can read it off PACER?
Let me think . It was before LeRoy Schweitzer and Dan Petersen left Colorado . So that would have been maybe 1992 ish ?
It just showed up one day . The Ft. Collins postmark made me think of The Committee of the States folks . Or maybe The Committee of Correspondence ? I’ve forgotten who was active at that time . My little group of study partners reffed and shepardised every cite .
I’ll look for it today , weather and chores permitting .
That's way before PACER anyway. It would be interesting if you scan it though. I heard that PETERSEN was loosed from prison only to lien some judges and be the first back in for bogus liens on the 2007 legislation. I thought maybe you were talking a bit more recent paper.
Another thought crossed my mind about this.
There is one advantage to One Form - and that is all the judges become generic. It once was that there were a variety of different judges for all the different jurisdictions, including Chancery.
Well, it’s not upstairs here . Be happy to scan it on up . Should be easy to spot provided I locate the right case of references . Generated a thick binder of law library copies .
I can not be certain of the time frame . I’m remembering this study being before I got neck deep in the Buck Act and Government in Trust .
Still a few specialized Judges . There are something like 19 or 21 authorized Federal tax case Judges that circuit ride out of DC . If you can get to them rather than be duped into IRS Tax “Court” . If you’re charged criminally they are easier to schedule . But a lawyer doesn’t seem to know about such things and represents you right into acquiesce to an unqualified personage presiding .
What a racket .
I also consider this part of an effective questioning of Trust in traffic matters . Trust matters belong in Equity . The Traffic Court is usually an administrative function often openly overseen by a Magistrate .
Not in the studio . At least I turned up the J. B. Nelson and Informer x-reffs .
Boy , humidity around here has really taken it’s toll .
Tried to put this up for your information . Web Host is still a pain on file permissions since moving to their New and Improved blah blah blah .
Out of deference those here , I found this online . There are other , smaller , file versions available with a quick search , but this matches mine . Photo copied from his original . Less chance for alteration . So, here’s a little something in the vein from JB to tide you over . December 1991 . Courtesy U.S.A. The Republic .
RE : SENATE REPORT NO. 93-549, Etc. pdf 6.64 mb
That revives a lot of nostalgia within me. Thanks for that letter!Quote:
Originally Posted by Trust Guy
Ah ,the good ol’ days . ( shudder )
Thanks for the impetus to get this chore started . Was putting it off till later in the year . Always possible excitement when poking around the out buildings during hornet nesting season .
Turned up my 1981 law course by George Lee Kindred , of all things forgotten . Maybe I’ll even find Guerrilla Gorilla by that fellow up Alaska way . Should be good for a few giggles .
If the U.S. is bankrupt, who is the creditor?
IMF?
Is there a way to turn a statutory court into a court of Chancery?
Welcome Dreloc!
That is an interesting question.
not to mention the syncro-ring it has to it.. hi Dreloc.Quote:
Originally Posted by David Merrill
refreshing to see this thread again because I couldnt begin to comprehend the significance of it back when I first read it, not that now I can completely either.
someone on Rod Class's call that walter brought to our attention in the notary thread mentioned that it is a possibility. may want to check that (if it wasnt yourself that mentioned it there?)
If a court is admiralty, and one of the parties submits an affidavit to the fact that there is 'no contract concerning the matter', does that not end any admiralty question? It would seem to do something of the sort, combined with a demand for findings of fact and conclusions of law, would take the court out of admiralty. Am I mistaken that admiralty requires a contract?
You could start with the treatise "Benedict on Admiralty".Quote:
Originally Posted by pumpkin
You'll be able to find a copy on Google Books.
The older versions are more clear in understanding than more recent versions.
You can thank the late, great "Informer" for this tip.
At the federal level, you have several types of court, but I will only discuss two of them.Quote:
Originally Posted by dreloc
You have your judiciary courts aka Article III.
You have your legislative courts aka Article I.
There are only 94 courts at the federal level which are Article III courts. This is the US Supreme Court as well as your district courts. I suspect a small sprinkling of other peculiar courts are Article III courts.
Your Article I courts are such as Social Security, U.S. Tax Court, and others.
When I hear 'statutory court', are you referring to courts created by legislative fiat?
For those more advanced in this, it is said by the late "Informer" as well as Rod Class that all courts are administrative rather than judicial.
For those more advanced still, you convene your own court by how you administer your private law business AND commercial business.
As to state courts, I have yet to do an in depth study or analysis of them. I suspect it will be similar to that written above.
Very interesting point. Few might realize that keeping bills or tax notices around is effectively to maintain a court of record (i.e. the records you keep). To pay taxes you owe might be to collect tax on yourself or your person and participate in the U.S. Tax Court or whatever tax court it might be. Perhaps carrying around ID is a kind of 'mobile record keeping'. Maybe even State ID itself is a kind of record?Quote:
Originally Posted by shikamaru
Related: Be Your Own Recorder?
It is always helpful when:Quote:
Originally Posted by allodial
a) One ceases to fall on one's own sword.
b) Cease to weld one's sword in such a way as to be a grave injury to yourself or cause.
*nods* Somehow it might even be that 90% of the problems most people could be self-inflicted.Quote:
Originally Posted by shikamaru