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209 Posts

Posted - 28 Jul 2011 :  19:35:31  Show Profile  Reply with Quote
Most people who delve into the Law soon find themselves lost in a maze of rules. And just when they think they understand the rules for the issue they are dealing with, they find that the judge makes his ruling based on something else, often refusing to even allow their argument into his court.

At best, people call this "legal trickery". More often they accuse the courts of "fraud" or "corruption". In short, they place the blame on the legal system for not behaving in a manner that they understand and expect.

But unraveling the legal trickery is not nearly as hard as you might think. Often there are two possibilities, but you only know about one of them. Learn the other, and the prosecutor has nowhere left to hide.

My experience with the courts is that they do not run roughshod over the Law. They are most likely applying the correct set of rules, but those just happen to be rules that you are unfamiliar with.

Picking the correct Rule Book

The very first thing you must figure out when going to court is which jurisdiction the case will be heard in. There are three (3):

1) Common Law
2) Admiralty
3) Equity

In the old days, you knew the jurisdiction based on what court you were being dragged into. Modern courts sit in what is called "concurrent jurisdiction". The judge has authority to apply any of the three sets of rules that apply, including a combination of them.

But it is not that hard to figure out which rule set he is applying. Here are some basic guidelines:

I. Common Law

This is "The law of the land". It only applies on land (not at sea), and it is the only law that living men and women are subject to without their consent.

This is Ten Commandments stuff. Kill or steal, and the Common Law needs no consent from you in order to punish you. And that punishment is severe. "An eye for an eye ..."

The Common Law can also enforce contracts, but only if there is valuable consideration on both sides. So unless the payment is in lawful money (gold or silver coins), a contract cannot be enforced under the Common Law.

By now you should have figured out that very little happens in court these days under the rules of the Common Law. But that does not mean they do not have access to those rules if they need them. Where the other two jurisdictions are silent on an issue, the courts still rely upon the Common Law.

One power of the Common Law is used by the courts every day: Contempt of court. The Common Law punishments for contempt have always been either a fine or imprisonment. It was Winston Shrout who first told me that every man behind bars is there for contempt of court. I can now prove that from the NZ statues, and I'm sure Winston can prove it from the US ones. Only the Common Law has this power of punishment, and these are the only Common Law punishments left.

And certain powers, such as arrest without a warrant, appear to rely upon the Common Law. But just because the Policeman arrests you using the Common Law right of "citizen's arrest", doesn't mean you will be tried under the rules of the Common Law.

The Common Law does not compel performance. Its basis is "Thou shalt NOT ...", so it will only prevent or punish a wrong. If a court or statute is compelling you to do something, then it cannot be under the rules of the Common Law.

II. Admiralty

This is Maritime Law, or the Law of the Sea. As such, you probably think it does not apply on land, and you would be wrong.

Here are the most common things that move a case into Maritime jurisdiction:

1) Postal delivery.

The statute creating the Post Office establishes "post roads" every time a contract is established for mail delivery. Look up "road" in your dictionary, and you will find something like this, the second definition from Webster's 1828 Dictionary:

A place where ships may ride at anchor ...

Now you know why the Post Office delivers mail right to your doorstep "for free", and why it keeps getting funded despite losing money year after year. This is how they established an Admirlaty "overlay" right across the land and practically to every house.

This is greatly expanded upon in the thread on general post office:

2) Negotiable Instruments

The Law Merchant developed among international traders who shipped goods over long distances, usually between countries. Shipping is a high risk venture, and they soon figured out that there was no point risking the money in transit as well as the goods every time a transaction took place. So they developed paper instruments that were redeemable for the lawful money (gold or silver coins).

When such an instrument was received as payment for one transaction, it was often payable in the country of origin. So it would be endorsed (signed over to another party) and sent on the next ship back to that country as payment for the next transaction. The choice of whether you collected your coins or signed it over to pay another party is what made it "negotiable".

Anyone who has endorsed a check over to another party has used this law. A check is a Bill of Exchange drawn on a bank, and most countries have their negotiable instrument laws in a "Bills of Exchange Act" that unifies these rules internationally.

So when you use paper to pay in place of gold and silver coins, your contract is founded on negotiable instrument law, which is Maritime Law, and any case involving that contract will be heard under the rules of Admiralty.

3) Statutory Words

Another clue that your case will be heard in Admiralty can be found in the very words of the accusation or the title of the Statute you supposedly breached. Look for words like:

(BERTH, See Webster's 1828)
Warrant, Arrest, Bail (Check your Admiralty Law rules and see that these are standard procedures applied to ships)
Dock (Did you voluntarily step into the dock at court?)
Bar (Did you "cross the bar" when entering the court?)

These words are merely clues. They are not what moved you into Admiralty. Anything involving ships or airplanes is properly handled under Admiralty. Cars get caught in "transport" because they use the "road". Most things ending in "SHIP" involve a "BERTH" certificate.

4) Registration/Registry

In the case of both cars and births, it is the fact of registration that drags these things from the land into Admiralty. Any "registry" is a list of ships, or at least "vessels". Once they can locate the registration, either through a licence plate, or a "name" and "date of birth" or other registration number, they have the vessel locked firmly into Admiralty jurisdiction.

But keep in mind that every single example above is voluntary. You receive mail at your house voluntarily. Every contract, by its very definition, is voluntary. Boarding a boat or plane is voluntary. And even registration is voluntary. Even when they automatically register your child, they cannot force you to divulge a name. And without a name, they cannot link your baby (or you) to the birth registration.

So unlike the image of the merciless captain dealing out 39 lashes, this is not the situation you are in when dragged into the court's Admiralty jurisdiction. You are merely in a contract dispute regarding a ship, and the penalty is financial. When you do not pay, you then get punished for contempt of court.

Honi soit qui mal y pense

Edited by - Caleb on 28 Jul 2011 22:56:38

Advanced Member

209 Posts

Posted - 28 Jul 2011 :  20:32:10  Show Profile  Reply with Quote
III Equity

Equity is probably the least understood jurisdiction of the three. Yet since 1615 the English courts (and their offspring in the half of the planet that was their colonies at one time or another) have operated according to this rule, found unaltered in the NZ Judicature Act 1908:

99 In cases of conflict rules of equity to prevail
Generally in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter the rules of equity shall prevail.

So the moment you realize that you do not understand Equity, you know you are in trouble!

There is one major difference between the Common Law and Equity that few people understand: Split property ownership. At Common Law, a man own's his property absolutely. In Equity, this ownership can be qualified or restricted by a contract.

1) Trust

The most common form of contract that gave rise to Equity is called a Trust. It involves three parties:

1) Settlor - gives the property away and writes up the rules (contract, called a Trust Deed) whereby it is to be managed.
2) Trustee - receives "legal title" to the property, but can only manage it in accordance with the rules found in the Trust Deed.
3) Beneficiary(s) - the one(s) for whom the property is managed. Usually has the use of the property, called "equitable title".

So neither the Trustee nor the Beneficiary have absolute ownership of the property. A dispute between them cannot be settled using the rules of the Common Law, as a court of Common Law is bound to rule in favor of the holder of legal title in every case. So these matters are heard in Equity.

2) Estate

An Estate works exactly like a Trust. Only the circumstances and the titles of the parties are different:

1) Testator - Man who dies and leaves a Will (the contract)
OR Intestate - if he dies without leaving a Will (no contract)

2) Executor - Named in the Will, and charged with carrying out its instructions
OR Administrator - if no Will, and therefore no Executor named. Must follow a standardized set of rules laid out in statute

3) Heirs - people who receive the property, either named in the Will or determined by statute (usually by blood relation) in absence of a Will

The Executor or Administrator is able to do anything with the property in the name of the deceased, but still must act in the best interests of the heirs, and in accordance with the instructions found either in the Will or in the applicable statute.

3) Bankruptcy

It may come as a surprise to learn that Bankruptcy follows the exact same rules as an Estate, but it is easy to show. The Common Law treated a debt as similar to theft, and therefore threw you into debtor's prison. Today we have a "kinder, gentler" procedure called bankruptcy, again with three parties:

1) Bankrupt - the debtor is killed on paper, and his assets (property) removed from his control.

2) Administrator - No Will, so no Executor named. The contract is effectively the debtor's unpaid Bills.

3) Creditors - receive the property in proportion to the amount of their outstanding Bills.

This structure is called a "bankruptcy estate", in acknowledgement that it is really just estate law and nothing more.

Perhaps you can see the justice in the notion that, if your debts are not gold and silver coins, and therefore do not fall under the rules of the Common Law, it is only "equitable" to deal with them under another set of rules: Rules that are not as harsh as punishment for theft.

The point to take from the above is, clearly you are going to lose the moment you assert absolute rights to property ownership in a court of Equity. You are asking the court to dispossess the other party who has an interest in the property, and a court of Equity will simply not do this. So you will lose, and no one will tell you why!

IV Statute

You may have noticed that "statutory" jurisdiction was not among the three listed. In fact, statute is just a mix of all three, but predominantly Admiralty and Equity. Often the rules of the Common Law are written up as a statute, such as a "Crimes Act", and those crimes closely mirror the Common Law, but the punishments do not. So even when it looks like, feels like, and smells like the Common Law, you are most likely dealing with rules of Admiralty or Equity dressed up to mirror the Common Law as closely as possible.

Many statutes are "codes" that explicitly say that they replace the rules of the common law. This makes them a set of rules presumably agreed to under Admiralty or Equity.

The important point here is that the statutes do not derive their authority from some imaginary power of a legislature to "make laws". Those so-called "laws" must always conform to the rules of one of the three jurisdictions, and it is the extent to which they conform to this real law that they derive their authority.

Finally, add to the above these two overarching facts:

1) The nation (and globe) is operating in bankruptcy.
2) There is no lawful money in circulation.

Therefore we are all operating within an equitable structure (bankruptcy estate) where our contracts are only enforceable in Admiralty (negotiable instruments). So it makes complete sense that virtually every case before the courts today is determined by the rules of Admiralty and/or Equity, with the Common Law often a no-show.

For an entertaining allegory about how our legal status was seriously affected by the national bankruptcy, watch the popular film, "Pirates of the Caribbean: Curse of the Black Pearl". Then read my own unique interpretation of that film here:

Honi soit qui mal y pense

Edited by - Caleb on 28 Jul 2011 20:49:55
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