High Court of Chancery

[shikamaru]

http://books.google.com/books?id=MKADAAAAQAAJ&pg=PA9&lpg=PA9&dq=law+side+of+the+court+of+chancery&source=bl&ots=Fltmmu-pgw&sig=XQn-yXcpeHdjkOcHkI_buvemn3w&hl=en&ei=g9J8TenFHoX7rAHv_OHoBQ&sa=X&oi=book_result&ct=result&resnum=6&ved=0CC8Q6AEwBQ#v=onepage&q=law%20side%20of%20the%20court%20of%20chancery&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.

[shikamaru]

Equity (law)

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.

....

Statute of Uses 1535

In order to avoid paying land taxes and other feudal dues. 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.

Clever ....

[shikamaru]

Chancery originated as the secretarial department of the Crown.
Overtime, it evolved to have its own jurisdiction.

Equity (law)

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.

[shikamaru]

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

[David Merrill]

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

These days though, the rule of One Form prevails as common law (case law).

[shikamaru]

These days though, the rule of One Form prevails as common law (case law).

Keyword there: form

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 .

[David Merrill]

Keyword there: form

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 .

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.

[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.

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.

[David Merrill]

You give him [the judge] the case law (precedence) in which to hang his hat upon and he shall have to rule accordingly.

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).

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.

In this Court, stare decisis, in statutory construction, is a useful rule, not an inexorable command.

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:

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...

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:

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.

You give him [the judge] the case law (precedence) in which to hang his hat upon and he shall have to rule accordingly.

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?

[Trust Guy]

I learned such from the gentile-man, Howard Freeman . Some clips from his presentations .
--------------------------------------------------------------------------------------

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.

[shikamaru]

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.

[shikamaru]

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)

[shikamaru]

This echos the research of "the Informer".

[Trust Guy]

And the entire Jonathan Swif Society , of which he was member .

[David Merrill]

What Trust Guy said!

Thanks for the correction - Howard FREEMAN not Charles WEISMAN. That is the account I was looking for.

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.

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.

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.

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.

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.