By Anna Von Reitz
I have been asked, "Why do I attack British Equity Law so vehemently?"
Here's the short answer--- It's not British and it's not Equity and it's not Law.
In
the 1750's a great hue and cry began in England because of the
arbitrary and unjust effects of imposing outdated written "one-size fits
all" laws without consideration of mitigating circumstances.
For example, the sentence for murder is death.
But
what about unintentional, accidental murder? What we now call
"manslaughter"? And what about murder committed by children by
accident? Or by the mentally incompetent, who couldn't possibly know
what they were doing? How about murder in self-defense? The young woman
being choked by a would-be rapist and thief, who finds a loaded gun and
fires? Or crimes of passion? The betrayed husband who finds his wife
in the arms of another man and snaps?
There
was a good deal of well-founded discontent with the hoary and Draconian
Common Law of England, which had ceased to be determined on a case by
case basis as intended, and devolved--- especially in large cities, to a
reliance on sentences established by the "case law". This
over-reliance on the pure written law of record in similar cases (and
who is to say what is "similar"?) and the gradual replacement of true
jury trial by one's peers to judgment by rule and by whatever jury was
summoned (quite often not actual peers of the accused) led to massive
controversy about the true nature of justice and the ability of the
Common Law to provide it.
Not,
I think, coincidental to the times, the BBC is advertising a series
called, "Garrow's Law" which is supposedly based on actual cases tried
by William Garrow, a young Barrister who stood on the forefront of this
entire movement to bring a more considered and considerate justice into
the courts, and the development of a system of law that could see beyond
the black and white words on a page clearly stating things like, "the
sentence for murder is death by hanging...." (no matter what).
Sounds wonderful, doesn't it? A better law.....a more just law....a more considerate law....a more fair law.....
But,
unfortunately, just as the pendulum moved in the 1750's to create the
shades of grey we all now know and agree to be just, such as the
provisions for manslaughter and juvenile court, the same forward and
redeeming motion carried too far in the other direction, muddying the
virtuous and sure, if sometimes dreadful and Puritanical English Common
Law with international Admiralty Law, to create British Equity Law.
The
primary proponent of this "mocking marriage" of English Common Law
with Admiralty Law was Lord Mansfield, a former Scottish Admiralty
Attorney who rose to favor and crafted the basis of British Equity Law
in the years immediately before the American Revolution.
The
problem with British Equity Law is that is allows the judge to sit in
place of the King, which displaces the traditional place and power of
the Jury of One's Peers.
Suddenly,
a Barrister is King.... He can use "his discretion" to inflict the
harshest sentence available under the written law, or he can soften the
sentence as he sees fit, or dismiss the case entirely. Just like the
King of England might.
Of
course, this power is entirely seductive to the members of the Bar
Association, and, as it turns out, seductive for the King as well: his
minions can use their discretion to benefit him and his friends and the
ruling class in general, and if by chance they go too far in their toady
behavior, he, the King, can emerge as the savior from these abuses, his
hands immaculately clean.
So
the idealists who sought to create a more perfect justice than the
English Common Law provided, wound up creating something that was more
varied, more precise, more mutable---more "sophisticated" in the bad
sense of that word, but also far more prone to manipulation, abuse, and
the currying of favor.
Also,
it must be said, that this new Equity Law totally violated another
safeguard provided to individual people by the honestly executed Common
Law--- judgment by one's own peers.
England
then as now is a culture dominated by culture. A man does not have to
speak to be known in England. Who and what he is, his education, his
social station is worn like an armband or -- famously--- a "funny hat".
So the tradition of trial by jury of one's peers is a literal
reflection of the fact that different strata of society have different
standards, different knowledge, and different values.
What
is justice to a chimney sweep or a fisherman is not necessarily the
same as the justice of a lord----or, and this is my point entirely---- a
barrister.
What
one man regards are gross impropriety is commonplace to another. So
those of the same social class and profession and nation are unavoidably
the "peers" that can most rightly judge the actions of another of their
brethren.
And,
ultimately, this tradition of judgment by peers also yields the most
accurate judges of the law itself, by testing a law against all social
strata, all professions, all religions, all races---- to judge if it is
truly fair and right in all their many eyes.
When
a jury of one's true peers is replaced by a judge, the power and
purpose of jury nullification is also lost. The Common Law of England
and the Common Law of America both provide(d) for the additional
safeguard of jury nullification. Quite aside from judging the
particulars of an individual case, true common law juries can judge the
law itself, and if they find it unfair, unreasonable, or unjust--- they
can throw it out.
The legislature does not rule the people it serves, so long as the people have access to the power of jury nullification.
This
safeguard of the Common Law prevents oppressive, insane, arbitrary, or
unfair laws from standing on the books and plaguing entire generations
of people.
So
from the standpoint of preventing abuse of power by judges exercising
their "personal discretion" for personal or social gain, and from the
standpoint of ensuring that people are judged by their peers and not by
someone alien to the realities of their lives, and from the standpoint
of truly refining the law itself--- the Common Law stands superior in
every respect, despite the occasions when Equity Law has provided true
equity and justice via the good heart and wisdom of individual judges.
With
a clear insight now into the ways and means used by the British
Territorial United States of America subsidiary to gain secretive
control of American land and labor assets, and to also insinuate British
Equity Law on American soil, it is thunderously apparent how "Equity
Law" has been used to oppress the people and gild the "kings"---- those
in Westminster and in Congress.
If
the object of law is justice and order, then Equity Law is the open
door to feudalism, class strife, cronyism, and ultimately---though not
in every case---- injustice, because by adopting British Equity Law, we
adopt coercive power and place it in the hands of one man or woman,
operating only according to his or her "discretion" --- which ultimately
too often means "what I can get away with".
It
also leads to a perverse rewards system, in which those judges who make
the most money for the court get the richest pensions and favors, and
who are preened and petted for the choicest professional favors. He who
feeds the king---whoever and whatever the "king" may be--- gets fed in
return, so in such a system, the natural affinities a man might have for
justice too often get set aside in favor of his new vacation home, a
college education for his grandson, or a new job promotion for his
wife.
The
justice provided by one man can be bought or sold; it is only a
question of --- at what price? Therein lies another potent reason that
British Equity Law fails the cause of justice--- it's relatively easy
to buy, bully, or kill one man, but the bulwark of a thousand years of
Common Law? That is not so easily swayed!
Also,
finally, and this is most telling, too---- without Jury Nullification
doing its after-the-fact pruning and proving of the Legislature's work,
laws proliferate like dandelions in spring.
It
seems to be a universal plague of nature that men who are elected to
the legislature think that it is their business to pass laws for other
men to live by, and if at least ten such mandates do not carry their
names and approvals each session, they think they aren't doing their
jobs.
I
did a random study here in Alaska some years ago and found that the
legislature was passing between two and three hundred new laws per
year.....3000 new laws, give or take, per decade.
What,
ho? Are we really creating so many brand new point sources of evil and
mayhem that it takes 200-300 new laws every year to keep things in
order? And who is going to learn all these new laws? And who is going
to pay for their enforcement?
Without
the operation of Jury Nullification operating in the background, these
laws just burgeon and accumulate, like a cancer growing in the dark.
This is why at last count, the federal government and its agencies were
busy trying to enforce 80 million laws.
Think about it. Seriously. Eighty million laws.
This
is yet another dangerous and undesirable result of adopting British
Equity Law and allowing it to run rampant on our shores. It denies jury
nullification and results in this unbridled growth and proliferation of
laws that simply stay on the books and appear to breed ten new volumes
every year.
Somebody
has to pay for enforcing all those laws, and plainly, it has already
reached the point where any attempt at fair, competent, and universal
application of such laws is impossible. Nobody has the ability to know
and obey 80 million laws, so they are (a) meaningless or (b) arbitrarily
and sporadically enforced, which gives rise to more injustice and more
police incompetence and other social evils and costs too numerous to
contemplate.
I
once estimated that if the current Alaska legislature did nothing but
review and repeal laws already on the books, it would take them ten
years to arrive at a reasonable number of laws that could be provided a
reasonable amount of enforcement. Ten years of legislative sessions,
just to clean up the mess that would have been taken care of by jury
nullification otherwise?
Prone
to corruption and difficult to correct is a recipe for failure no
matter what idealistic goals might otherwise be espoused, and all that
is quite aside from the fact that the American people are owed the
American Common Law.
American
Common Law, unlike its British Cousin, didn't suffer the disadvantages
of the British Equity system. At worst, it was simply elbowed out of
the way and left in relative disuse by the quiet, improper proliferation
of British courts on our shores.
Wrapping up with my first comment-- it's not British, it's not Equity, and it's not Law---
British
Equity Law isn't British in the same way that a mixed breed dog is
neither this breed nor that; the English Common Law is what it is, but
Admiralty Law comes from the far corners of the Earth, an ancient
amalgam that belongs everywhere and nowhere, with roots in the trading
practices of Sumeria, Babylon, Egypt, Mycenae, Crete, Africa, India,
China.....
It
isn't equitable, either. What is equitable about men submitting
themselves "in trust" to another man who is not impartial, not likely to
be their peer, and who has profit motive to sheer them both?
And
as for being Law--- Law is based on timeless religious and ethical
principles, not the opinions and individual pet peeves and petty
concerns of men caught up in the exercise of their own spleens and the
commerce of political power.
So, no, it's not British. It's not Equity. And it most certainly is not Law.
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