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The Loss of the Right to a Trial by Jury



 
 
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Old January 7th 10, 10:03 PM posted to alt.child-support
Dusty
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Default The Loss of the Right to a Trial by Jury

http://mensnewsdaily.com/2010/01/07/...es-in-america/

The Loss of the Right to a Trial by Jury: Child Support and Divorce Cases in
America
Thursday, January 7, 2010
By Mark Cimini
"I consider trial by jury as the only anchor ever yet imagined by man, by
which a government can be held to the principles of its constitution,"
Thomas Jefferson

Purpose
The purpose of this essay is to debunk both the statist notion that divorce
and child support have always been or can be adjudicated in equity courts
and to show that the punishments imposed under no fault divorce are
unconstitutional. Historically both divorce and child support are Common Law
matters. Unilateral divorce is and always was a punishment under the Common
Law. Child support is a Common Law punishment which now imposes slavery and
punishment without wrongdoing upon one divorcing parent and lack any of the
Common Law protections which provided Due Process to the accused; although,
the accused these days is deemed guilty by the state of lacking some
parenting ability, not abuse or abandonment per the Common Law requirements.

The fact that divorce and child support (i.e., providing necessities for a
child) were Common Law matter reinforces the premise that unilateral divorce
and providing necessities (i.e, child support) were punishments. Injury had
to be proven in a Common Law court. Remedy in a Common Law court was limited
to that which strictly addressed the proven injury. Lacking injury there was
no action. Divorce and child support were not equity actions based on a
biased statist perception of parental skills. The current system of equity
determinations is a violation of at least the Constitutional rights of the
Pursuit of Happiness, Personal Liberties, and the First, Fourth, Fifth,
Eighth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments.

The fundamental change away from Common Law adjudication of family law
matters means that you are no longer held accountable for your actions.
Instead you are held accountable for another's actions and whims. Actions
and whims that unconstitutionally violate your rights yet you are deprived
of your right to seek redress for the violation of those rights. Instead,
for the sake of the state's ideology, i.e., the state's religion, i.e.,
Soviet style socialism/communism, you are punished harsher than for abuse or
abandonment under the Common Law. It is contrary to fundamental fairness,
i.e., Due Process, to be held accountable and punished for the whims of
another, especially when that accountability and punishment use to hinge on
your own lawless actions being proven in a court of law.

The loss of rights is in part based on the promulgation of the lie that the
current approach to family law is the way it has always been. Time to tell
the truth and shame the devil.

Introduction
Although the United States' Founding Fathers recognized that the Common Law
right to a trial by jury as a cornerstone in the establishment of this
country, the self-proclaimed unaccountable judiciary has single-handedly
eliminated this sacred right to a trial by jury in family law and violated
multiple Constitutional provisions in the process. The statist notion that
the state, the most dysfunctional parent ever conceived, can intervene in
the most private of family matters without the need to identify any wrong
requiring remedy. By eliminating that "anchor .. to the principles of its
constitution", in the most fundamental and private of matters, the state has
violated the social compacts with its citizens. The protections of jury
involvement, including jury nullification, are lost to the leftist notion
that the state is infallible.

As a result of these changes, court intervention has became more pronounced,
extensive, and intrusive. The state no longer just provides the fair and
impartial forum for a dispute between divorcing couples but is an active and
biased participant. Overcrowded prisons are burdened with men held in
contempt for back child support, a form of debtor's prison, while rapists,
murders and other violent criminals are set free in the name of reducing the
burgeoning jail population.

The state's logic in denying modern trial by jury in family law ignores that
colonial laws under British rule provided exclusively for a Common Law trial
by jury in all family law matters. Thus the state has deprived citizens of
the right to a trial by jury and is instead imposing ideology in equity
courts that lack injury, i.e., wrongdoing, and provide remedy, i.e.,
punishment, because of its abuse of police powers.

The state should be limited to providing a fair and impartial forum. Limited
government was not permitted to decide family law matters based on statist
beliefs, imposing ideology on citizens who have done no wrong.

A Common Law trial by jury does not mean that a jury of one's peers gets to
decide who is a better parent. A Common Law jury identifies the harm and
determines remedy. Harms included the loss of rights or other illegal or
wrongful acts, but remedy for make-believe harms not ever imposed on an
innocent person. The jury was seen as the ultimate protection of these
rights and determiner of wrongs since the peers who comprised the jury were
adjudicating the limits of their own rights and behavior, not statist
determinations based on political ideology.

Even in states that have trial by juries, the issue of harm or an innocent
person's rights is not allowed under statist divorce. Instead one parent,
overwhelmingly male, is judged to be lacking in parenting skill - in
relation to the other parent, overwhelmingly female - resulting in:

1.. Punishment without wrongdoing (Eighth Amendment),
2.. Loss of parental rights (First Amendment),
3.. Loss of the right to a trial by jury.
4.. Arbitrary restrictions on personal liberties,
5.. Negatively impacting the pursuit of Happiness,
6.. Made to pay child support without the right to question that the money
is going for necessities (Due Process - Fifth and Fourteenth Amendment), and
7.. Made to work to their full potential so as to maximize the child
support paid (Thirteenth Amendment),
With federal incentives based on child support collections, the state looks
for every way to destroy families to generate revenue. Individual rights
usurped, state imposed peonage/slavery, and families destroyed to feed the
state's need for money. As a result, fit parents are reduced to involuntary
servitude, stripped of their wealth, and deprived of their children so that
the state and the artificial class of custodial parents can financially
benefit.

Divorce is no longer a criminal breach of conduct by one party, instead it
is a tools for the state to destroy families. Child support no longer is
punishment for failing to meet your obligations, but is transformed into a
transfer of wealth scheme incentivized by Federal Title IV remunerations to
the state.

How and why this happens requires a historical perspective. The "blending"
of the separate and distinct matters of divorce and child support which led
to the elimination of trail by jury and elimination of the requirement of
proving wrongdoing lead to the elimination of the sacred right to a trial by
jury and opened the door for the state to implement the statist fiat which
eliminates all constitutional protection in family law. From the first
settlers through the twentieth century, the judiciary has stealthily
eliminated this critical right to a trial by jury and ignored multiple
constitutional principles to create a new statist model of family law based
solely on its ever increasing police power.

The Common Law
The history of the Common Law preexisted Christianity in England. The rules
of the Common Law protected people's rights. A right to habeas corpus. The
right not to be punished without wrongdoing. The right to a trial by a jury
of one's peers. Property Rights and for this discussion family rights.

British law required that the colonies adjudicate divorce under
ecclesiastical or Common Law courts. However, since ecclesiastical courts
were not part of colonial governments, all valid colonial divorces were done
under Common Law jurisdiction. Common Law child support, i.e., "providing
necessities for a child", always had the right to a trial by jury.

The civil issue of providing "necessities for a child" not only had the
absolute right to a trial by jury under British law but clearly had the
right to a trial by jury in America as well. There is no colonial charter,
provincial law, colonial charter, or English law that overturned this sacred
right during the colonial period or thereafter.

What has happened to these Common Law rights is that all aspects of Due
Process, i.e., fundamental fairness in the court system, has been abolished.
The very definition of court has changed. The definition of a court under
the Common Law (per Lord Blackstone):

1.. A plaintiff complains of an injury,

2.. A defendant is accused of causing that injury, and

3.. The facts are determined in a fair and impartial trial, with a jury of
his peers.

But under the modern rules:

1.. A Plaintiff asks the state for to have their will imposed on another
party,

2.. A Defendant asks the court not to be punished, and

3.. A court that imposes its will, granting favors to one party, with no
regard at all of the natural rights and civil rights, of the other, innocent
party.

Going from adjudicating actions where juries determined guilt to a system of
imposing one's will on another is contrary to any and all laws that founded
this nations and is fundamentally unfair. It is unfair and illegal to use
state police power to impose the will of one person on another. Imposing
another's will required a showing of harm. The concept of remedy without an
injury, i.e., imposing one's will upon another, was never envisioned as a
state power by the founding fathers. This new state power provides a
slippery-slope to totalitarian government.

What is so crucial about juries is that they are supposed be comprised of
fellow citizens who are charged to determine the facts and determine the
fairness of the laws, i.e., jury nullification. In its place the state has
imposed a 'court' that ignores rights and imposes what the state thinks is
the best for one party.

Under the Common Law a fit parent has absolute rights to their children.
These rights are likened to the rights of property, but with greater
importance. As long as a parent met his legal obligations the right to the
child was absolute. The state could only interfere with these rights to
rescue a child, even during a divorce. This reciprocal relationship between
meeting one's obligation and the rights to a child was a reoccurring theme
under the Common Law. For example, the reciprocal relationship between a
citizen and the government.

Under Common Law jurisdiction only to rescue a child could the state
interfere with custody. Best Interest under Common Law jurisdiction first
had to address the question of natural right and if no one retained a
natural right, then and only then, could the state act "in the best
interest". "Best Interest" determinations under Common Law jurisdiction
were made to "save the child" who lacked a legal guardian.

Under equity jurisdiction fit parents are routinely punished to satisfy the
state's ideology. This punishment is not only devoid of a finding of
wrongdoing, but often ignores criminal wrongdoing. Gender biased family
court decision mask criminal adultery, battery, and fraud so as to meet the
state ideology.

Colonial Period
When the first colonists set foot on this continent they only had the Common
Law right to a trial by jury regarding any and all forms of child support
and all matters of divorce. All the initial charters included the provision
regarding laws for the colonies not being repugnant to the laws of England;
the King's Privy Council often overturned laws which were counter to the
laws of England. Since the laws of England required Common Law adjudication
of divorce and a trial by jury over providing necessities, those rights
should be protected today.

The Privy Council required that all matters of divorce in the colonies be
tried in ecclesiastical or Common Law courts. Otherwise the divorce would be
invalid, i.e., void. Since the colonies did not have ecclesiastical courts,
the only valid, non-void, colonial divorces were done under Common Law
jurisdiction.

The laws of England did not have child support outside of the Common Law
right to a trial by jury and Elizabethan Poor Laws until late in the 1800's.
Thus contrary to the modern judicial statement, "child support never had the
right to a trial by jury", the initial laws of the colonies only provided
for a trial by jury over providing necessities for a child, only after
proving some harm to the child. The keyword being necessities. Anything
viewed as more than necessities was not allowed. Lest we forget this
colonial era child support for necessities was a punishment for abuse or
abandonment.

Put bluntly, the judiciary has:

1.. stolen the right to a trial by jury,
2.. eliminated the requirement that the money be spent on the child,
3.. legislated away the right to be proven guilty of wrongdoing before
imposing the punishment of child support, and
4.. encouraged destructive behavior with its new statist family law model.
The judiciary, using dicta, and dicta supporting dicta, supporting dicta, .
etc., has eliminated from the matters of divorce and child support all of
the original colonial rights to a trail by jury and all the protections
against unwarranted intervention. The result is that now the state imposes
punishment without wrongdoing, rewards criminal behavior, and forces an
innocent person into a state of peonage without any safeguards to the true
welfare of children.

Focus on One State
Focusing on the history and devolution of divorce and "family law" in one
state helps clarify this historical trail of deception, tyranny, and
slavery. The state used here is Massachusetts. But the descent into a
statist government that abuses its police power to enslave fit parents
provides a blueprint that can be found across the United States.

To circumvent the right to a trial by jury the Massachusetts judiciary notes
that all colonial divorce cases were handled by the Governor and his
Council. This simplistic answer that fails to account for the requirements
of the Privy Council requiring a Common Law decision and that divorce and
child support were separate and distinct matters.

The Court of Assistants, circa 1630, was comprised of three separate groups:

1.. the Governor, or his Deputy, and
2.. three to seven members of the Governor's Council (similar to the
present day Senate) and
3.. the Governor's Assistants.
This court had exclusive jurisdiction over divorce, but no mention of the
separate and distinct matter of providing necessities for a child, i.e.,
modern day child support. The Court of Assistants had Common Law, criminal
and civil jurisdiction and could hear cases with a trial by jury.

The distrust of lawyers by the colonists showed in the Massachusetts Body of
Liberties (1641). This set of laws were among the first written laws of the
new world. This document outlawed lawyers practicing in the Massachusetts
Bay Colony. Thus the executive and legislative bodies took on many judicial
duties in Massachusetts.

Punishment for divorce in Massachusetts included: banishment (in English
criminal law this was an alternative to death), whipping, prison, fines, and
the guilty party could never remarry. Clearly divorce was a criminal
proceeding given the types of punishment. In all the Court of Assistant
proceedings there is no recorded case assigning child support, i.e.,
providing necessities for a child. There also seems to be no Provincial Law
regarding child support except for unmarried men.

In 1672 (Provincial Laws) the first law for providing for child support in
the case of unmarried couples:

"Whereas there is a Law provided by this Court for punishing of Fornicators,
but nothing as yet for the easing of Towns, where *******s are born, in
regard of the poverty of the Parent or Parents of such Children sometimes
appearing, nor any Rule held forth touching the refuted Father of a *******
for legal conviction."

This is a criminal matter retaining the right to a trial by jury regarding
indemnifying the towns against providing necessities, not payment to the
mother of the child born out of wedlock. The notion of payment to the mother
was seen as a possible encouragement for unwed mothers. This was not some
statist notion of best interest of the child. Financial relief of the town
was the goal. It should be noted that no loss of the right to a trial by
jury over providing necessities because it was a criminal matter.

This is the first instance of statutory deviation of the Common Law rule
regarding providing necessities for a child. Under the Common Law, unmarried
men did not have an obligation to support children. The punishment for
unmarried men retained the right to a trial by jury until approximately 1980
under criminal statutes, i.e., fornication and *******y statutes.

In 1692 the Court of Assistants was replaced by the The Superior Court,
which was still headed by the Governor with a panel of judges. Although the
Privy Council rejected this change (notice arrived in 1696) the Governor and
his Council subsequently retained jurisdiction over divorce. But again, no
record of the Governor or his Council (or the legislature) imposing child
support, see Clarke v. Clarke, Massachusetts Archives Collection, Vol. 009,
Page 221-222 (1737), Wharton v. Wharton, Massachusetts Archives Collection,
Vol. 009, Page 068 (1675). Divorce no longer had the punishment of
banishment but during this period the statutes still included the punishment
for the guilty party with the loss of the right to ever marry again. Since
sex outside of marriage was a crime, under fornication statutes, hence the
guilty party lost the right to beget legitimate children (a Common Law
disadvantage that is obsolete), since children outside of holy wedlock fell
under *******ly statutes.

The Governor and his Council, from 1630 until 1776, were never explicitly
given jurisdiction over custody or child support, i.e., providing
necessities for a child. There is no case of the Governor and his Council
imposing child support. No legislation is cited overriding the Common Law
right to a trial by jury. No grant, charter, or colonial law eliminating the
right to a trial by jury over providing necessities for a child. No record
whatsoever of when married men lost the right to a trial by jury. Just vague
judicial dicta that ignores the Common Law right to a trial by jury for
providing necessities to a child.

Post Colonial
In the Massachusetts Constitution, sole jurisdiction over divorce was given
to the Governor and his Council. However, in 1785 sole jurisdiction was
transferred to the Supreme Judicial Court (SJC) under its criminal powers.
Note that the Federal Constitution was signed/ratified in 1789 - hence
divorce should have fallen under the Sixth Amendment given the adjudication
of divorce under criminal jurisdiction by the SJC.

In 1838, divorce, which had previously been solely a criminal matter, was
for the first time allowed as a strictly civil dispute with a trial by jury
regarding the actions meeting the civil threshold for granting a divorce.
One of the first rulings by the SJC on this new statute states that in this
new civil matter a jury should determine whether the behavior meets the
threshold of the statute.

Divorced men who abused or abandoned their families seems to have lost the
right to a trial by jury in the 1800's because of the confusion between the
Governor's jurisdiction in divorce verses the separate and distinct issue of
child support where the Governor did not have jurisdiction. The
Massachusetts state courts ignored the Common Law nature of divorce under
the Governor and his Council.

In the later part of the 1800's the state judiciary confused the Governor's
jurisdiction over divorce with that of the separate and distinct issue of
the Common Law method of providing necessities for a child, i.e., child
support, in Bigelow v. Bigelow, 120 Mass. 320 (1876). Bigelow is a case of
punishment of a father for the criminal abandonment of his wife and
children. This case confused or 'blended' the separate and distinct matters
of divorce, custody, and child support. The conclusion reached in Bigelow or
its progeny:

1.. Never cited a single action by the Governor and his Council imposing
providing necessities for a child, i.e., child support,
2.. Did not acknowledge the fact that the adjudication of divorce required
a Common Law Court (hence making the Governor and his Council a Common Law
court or all divorces adjudicated by that body were void), or
3.. Cite any statute or provincial law, charter, or grant that altered the
Common Law right to a trail by jury over providing necessities.
There is nothing to explain the departure from the laws of England with the
loss of the sacred right to a trial by jury over necessities for a child. As
a matter of fact, the deprivation of the right to a trial by jury in certain
cases was a major reason for the American Revolution and the separation from
England.

No case law or legislation supporting the statement in Bigelow or its
progeny has ever been cited. No consideration that the Governor and his
Council had been handling divorce since 1630 and under Common Law
jurisdiction per the Privy Council. There is however plenty of caselaw where
third parties showing that an ex-husband had abandoned or abused the
children and the third party was using a trial by jury to recover the
necessities provided to the child(ren). If the state was right in the
interpretation of Bigelow there would be no need for any trails by jury by
these third parties. But there are and hence the dicta in Bigelow is wrong.

Thus, the Privy Council acknowledging the Governor and his Council as a
court of Common Law jurisdiction from 1630 until at least 1776. Also divorce
in England was not limited to ecclesiastical courts is ignored.

Article XV in the Massachusetts Constitution stated that all civil disputes
have the right to a trial by jury except as "heretofore" practiced. But if
the Privy Council accepted the Governor and his Council rulings as a Common
Law Court, heretofore the Governor and his Council was a trial by jury
before and after the adoption of the Massachusetts Constitution. Also note
that the original version of Article XV in the Massachusetts Constitution by
John Adams did not have the heretofore clause. Had John Adams had his way,
all civil disputes in Massachusetts would have the right to a trial by jury.

Under the Common Law of Massachusetts, married men had absolute right to
their children while married women had absolutely no right to their
children, even when the husband was dead, see Whipple v. Dow, 2 Mass. 415
(1807). Unmarried women had absolute right to their children, see Wright v.
Wright, 2 Mass. 109 (1806) (even if the mother later married the child's
Father), and unmarried men had a natural right to their children, which was
secondary only to the unmarried mother's rights.

Fathers may have had sole custody rights but the reciprocal was they had
sole legal responsibility. This reciprocal relationship, always part of
British Common Law, became enforced with criminal sanctions in the colonies.
No married/divorced woman ever faced these criminal prosecutions. Even after
the introduction of the Tender Years doctrine (discussed later).

Custody was determined according to strict rules of (natural) right under
the Common Law. The rights of custody were reciprocal to obligations of
support. This relationship was backed-up with criminal penalties in
Massachusetts if the party failed to uphold their natural law obligation.

In Pidge v. Pidge, 44 Mass. 257 (1841), the case which cites Statutes 1838,
c. 126 as "great change is introduced, and a divorce from the bond of
matrimony may be now decreed without any crime having been committed by the
libellee", the right to a trial by jury is clearly stated regarding who,
jury or judge, determines the facts of a divorce:

"It was held by the whole court, in Houliston v. Smyth, 3 Bing. 127, that
where the wife leaves the husband, under such an apprehension of personal
violence, as a jury shall deem to have been reasonable, her husband is
liable for necessaries for her support." [Emphasis added]. Pidge v. Pidge,
44 Mass. 257 (1841)

Houliston v. Smyth, 3 Bing. 127 is an English case which shows that divorces
in England were not only exclusively done in ecclesiastical courts but in
Common Law courts with the right to a trial by jury and cites additional
supporting caselaw. Hence the Common Law matter of divorce did have a trial
by jury over the interpretation of the facts.

Of note is that there are multiple cases that involve trials by jury over
providing necessities for a children. Third parties, to include towns,
merchants, and family members, would initiate cases to recover "necessities"
that had been provided to the children. In order for the third party to
prevail two things had to be proven: 1) children had been harmed by the
father, i.e., abused or abandoned, and that 2) the items provided were
'necessities' and nothing beyond 'necessities'. Clearly, if the divorce
proceeding had assigned child support there would be no need for additional
proceedings and certainly would not require a trial by jury to show harm.

The mid-1800's brought the tender years doctrine. Another deviation from the
Common Law. This change was based on "the laws of nature", not judicial
discretion. But child support was still only permitted when the Father
abandoned or abused his children even when the mother had custody. The
Common Law rule for providing for necessities required a showing of harm. So
even under the tender years doctrine no child support could be imposed
without proof of abuse or abandonment.

Once the state dropped the Tender Years doctrine they instituted the lie
that parents were equal and the state could arbitrarily impose Common Law
punishments of divorce and child support. Capricious restrictions on
personal liberties, unlawfully diminished parental rights, and
unconstitutional loss of property without any identified or proven
wrongdoing.

Equal rights without equal responsibility. The British Tender Years doctrine
only permitted maternal custody if the mother was not the guilty party in a
divorce. Something lost in the American version. The American version of the
Tender Years doctrine rewrote the immutable laws of nature and began
removing the reciprocal nature inherent in the parent-child relationship
thus allowing arbitrary statist intrusions in the family and arbitrary
punishments to one parent during a divorce. A clear violation of the Eight
Amendment's prohibition against arbitrary punishment. Going from "laws of
nature" to unbounded judicial discretion is a violation of Due Process.

Supreme Court Involvement
The US Supreme Court twice stated, relying on In re Barry, 42 F. Cas. 945
(1844), that it is a violation of Due Process to adjudicate custody under
any jurisdiction but Common Law, see Barry v. Mercein, 46 US 103 (1847); In
re Burrus, 136 US 586 (1890). Both of these case use In re Barry's assertion
that parens partić require Common Law jurisdiction. Another view of custody
jurisdiction supporting this is Ex Parte Barry, 43 U.S. 65 (1844).

Mercein v. Barry, 25 Wend 64 (1840) is the New York state case that leads to
In re Barry and Barry v. Mercein. In it you find nineteen pages of debate
between which Common Law rules should be followed. The Common Law rules
which had been in place since time immemorial or the new invention from
England, the "Tender Years Doctrine". A new set of custody rules based on a
reinterpretation of the laws of nature, not judicial discretion.

"The law of nature has given to her an attachment for her infant offspring
which no other relative will be likely to possess in an equal degree. And
where no sufficient reasons exist for depriving her of the care and nurture
of her child, it would not be a proper exercise of discretion in any court
to violate the law of nature in this respect" [Emphasis added], Mercein v.
Barry, 25 Wend 64 (1840)

An equally clear description of this jurisdictional issue can be found in
Cocke v. Hannum, 39 Miss. 423 (1860):

"The legal question presented by the record in this cause must be examined
by the light of the decisions of the courts of common law, and not by that
of decisions in courts of equity, acting on their claim to jurisdiction over
infants as representing the parens patriae. Even courts of equity disclaim
any power to deal with the persons of infants or to control their custody,
except where they are wards of court or owners of property. The only ground
on which courts of equity could assume jurisdiction here would be that the
infant was not an orphan and yet owned property, and then only on the ground
that the jurisdiction of the Court of Probates in such case to appoint
guardians was conferred by statute only, which did not necessarily affect
the jurisdiction in equity. It will lie found that courts of equity have
exercised a very liberal discretion on this subject in England, but at the
same time it has been admitted that their jurisdiction could only attach on
account of the ownership of property by the minor. See Wellesley v. Duke of
Beaufort, cited by Talfourd, J., In re Hakeman, 74 Eng. C. L. R. 222."

Again reinforcing the Common Law nature of these matters.

No Harm - Not Any More
In 1953 a new Massachusetts statute permitted imposing the punishment child
support without a showing of harm. Hence, the civil, non-punishment, of
child support in divorce matters was allowed without a trial by jury. Thus
prior to Statutes 1953, c. 505 there were no restrictions placed on personal
liberties unless there was abuse or abandonment. There is no corresponding
statute regarding changing the Common Law rules regarding eliminating a
right to a trial by jury during a divorce. After this statute, the state
began imposing constraints on personal liberties based on being classified
as a non-custodial parent, not based on proven criminal acts, e.g., abuse or
abandonment.

This statute and subsequent caselaw upholding Statute 1953, c. 505 provide
further proof that rules regarding providing necessities for a child
originate in the Common Law. Hence the state now places arbitrary
restrictions on personal liberties and imposes peonage which did not even
exist as a punishment under Common Law jurisdiction. Police power supporting
arbitrary state actions.

Freedom of Choice
Children, as young as eleven in Massachusetts, under Common Law
jurisdiction, could express their preferences to the court regarding custody
and under Common law jurisdiction their wishes, see Commonwealth v. Hammond,
27 Mass. 274 (1830) and Curtis v. Curtis, 71 Mass. 535 (1855), and hence a
child's personal liberties were respected by the Court, as long as the
choice was an acceptable person, i.e., no "Best Interest" determination.

No longer is a child given any real input into custody decisions. Instead
money - transferring of wealth between parents - takes precedence. The
personal liberties of children are held hostage by the statist equity
determinations and greed.

Statist Misbehavior
Circa 1970 the states adopted the Wisconsin Model - based on Soviet (Article
81) divorce law - which gave the states the right to impose the once
punishment of divorce and child support without a trial by jury. Now,
unconstitutional restriction are placed on personal liberties because of
judicial discretion, not criminal actions.

The case of Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380 (2004)
rewards a married woman who has an affair, gets pregnant from her lover,
which results in a divorce proceeding, where the husband has to pay child
support even though everyone, including the court, knows he is not the
father. The case misrepresents British Common Law and ignores MA case law as
far back as the Court of Assistants which punished women for fraud if they
tried to pass off illegitimate children on their husbands. Also statutes
from the 1700 and 1800's provided for a trial by jury to challenge
legitimacy, see Massachusetts Statutes 1785, Chapter 69; Statutes 1835,
Chapter 76, Section 20; Statutes 1860, Chapter 107, Section 27; Statutes
1882, Chapter 146, sect. 23.

Now however, the state goes after the biological father for child support as
well. So the crime of adultery is rewarded by the state with custody and two
tax-free child support checks for the same child. No trial by jury for the
lover, under *******ly or begetting statutes. No trial by jury over
providing necessities. No necessities test in either case. No right to
question where the money goes. No issue of fraud per the Common Law.
Collateral damage is an innocent ex-husband who is punished and two slaves
are created so that additional Title IV monies are funneled to judicial
coffers.

Additionally, the state in using Bigelow and its progeny in modern 'no-fault
divorce' is imposing the punishment once reserved for criminal behavior. In
fact the state is imposing harsher punishment since under the Common Law
only necessities were allowed. Instead the state now requires a percentage
of income without the ability to challenge the necessities issue.
Additionally the state's ability to impute or determine income means that a
person's choice of how to earn a living is bounded by the state's
expectations, i.e., imposing restraints on personal liberty, and hence there
is a claim of violating the Thirteenth Amendment in these non-punishment,
no-fault proceedings.

Summary
Parents had a Common Law right to their children in 1603 (The first year of
the reign of James I), 1760 (the date Thomas Jefferson said our laws
diverged from English laws), 1776 (the Declaration of Independence), 1780
(the signing of the Massachusetts Constitution), and 1789 (the signing of
the Federal Constitution). Children were, per the Common Law, likened to a
right of property with greater protections, see Purinton v. Jamrock, 195
Mass. 187; 80 N.E. 802; (1907). Thus the Common Law reciprocal parent-child
relationship has been stolen from us and replaced with peonage by a
totalitarian, ecclesiastical court system which imposes Soviet dogma on
innocent citizens.

What began as Common Law matters where harm was claimed and proven to a jury
of one's peers are now devoid of any protections offered by the Common Law
jury trial system. Modern no-fault-divorce is not a judicial matter, lacking
the concept of providing remedy for injury. The single Common Law rule
regarding a trial by jury over a dispute of providing necessities to a child
, the precursor to modern child support, has been replaced by statist
opinions backed up by police power, not the judgment of citizens that harm
was done.

Additionally, people have lost the right to make sure that the money is
going for necessities for the child. Thus, a parent who abused or abandoned
children had more rights under Common Law jurisdiction than you have in
today's ecclesiastical Family Courts. Instead the state intervenes,
rewarding crimes of adultery and fraud by relying on its police power to
deny citizens the right to a trial by jury over divorce and child support
matters.

Going from criminal and civil punishments for criminal behavior, e.g.,
abuse, abandonment, or adultery, to judicial discretion based on perception
of relative parental abilities is a violation of Due Process. This claim of
shifting the burden of proof and burden of persuasion is a violation of Due
Process.

Given the colonial Common Law restrictions on divorce and providing
necessities, divorced parents had more rights under British rule. We've gone
from rights based adjudication under the Common Law with citizen input via
trial by jury to statist determinations relying on police power, not consent
of the governed.

By transforming "providing necessities for a child" to "child support" and
blending divorce with child support the judiciary has eliminated the right
to a trial by jury, eliminated the requirement that the money be for
necessities, and that the money go for the child's needs.

By ignoring the Privy Council Common Law requirements regarding divorce the
state has taken the Common Law punishment of divorce and transformed it into
ecclesiastical courts - courts which impose beliefs on citizens - which
promote reward criminal behavior and fraud. The state has decided to punish
people based on the whims of another party, ignoring constitutional and
natural rights of an innocent person.

Depriving people of fundamental civil and natural rights, for the benefit of
another, not based on your own unlawful action proven in a court of law to a
jury of one's peers. The punishment in these ecclesiastical courts are not
only harsher than what was dispensed in Common Law courts as punishments for
proven injuries but ignores the safeguards that required money be spent on
the child.

Common Law court did not impose any statist notions in family law, but
instead protected families from unwarranted state intrusion into the most
private and fundamental of matters. Common Law courts required injury and
only provided remedy when an injury was proven, not whenever or whatever the
state felt like imposing.

The founding fathers complained about the usurpation of rights by the
British government. Sacred, unalienable rights which governments were
instituted to protect. The history of the formation of this country shows
how easy it is was to identify the specks in the eye of the ruling British
government. Now that government that was founded to protect rights - a
social compact based on family - ignores the beam that has developed in its
own eye.

Bottom line, do not believe the lies of the state or liberal organizations
that divorce and custody were always done "this way", i.e., meaning
arbitrary punishment of one parent based on the perception of relative
parenting ability. The truth is that the current system is derived from the
Soviet Union and stand in direct contrast to the laws of this land.


"Any state, any entity, any ideology that fails to recognize the worth, the
dignity, the rights of man, that state is obsolete.", The Obsolete Man, The
Twilight Zone, first aired June 2, 1961

Lucas v. Lucas, 69 Mass. 136 (1854) (divorce is a ".suit brought by one
person against another to obtain redress for himself for an injury done
him."); Miller v. Miller, 150 Mass. 111 (1889) ("Because the deserter is a
wrongdoer, the law gives the deserted party a right to a divorce.")

Jefferson's letter to Dr. Thomas Cooper, from Monticello, February 10, 1814

"Better that ten guilty persons escape than that one innocent suffer", Lord
Blackstone

"The Review of American Colonial Legislation ", Elmer Beecher Russell, page
172, "that acts of Divorce in the Colonies, more especially when there does
not appear to have been any suit instituted in any ecclesiastical court nor
any verdict in any court of Common Law, are either improper or
unconstitutional.", citing A.P.C., vol. v, p. 366. Pa Stats., vol.viii, p.
599; 7 April, 1773.

"It [Child Support] will always be a question for a jury, .", Kent's
Commentaries on American Law, Volume 2, Part IV, Lecture 29, First Edition.

"There was also the limitation in the Charter that no laws should be made
repugnant to the laws of England. This . [meant] that no such laws should be
passed as would be . subversive of those great fundamental principles of
English law which were considered to be the birthright of every
Englishman, - such, for instance, as the right to trial by jury." [Emphasis
added] , The American Invention of Child Support: Dependency and Punishment
in Early American Child Support Law, Drew D, Hansen, Yale Law Journal, March
1, 1999.

In re Campbell, 130 C. 380, 382, 62 P.613 (1900); Purinton v. Jamrock, 195
Mass. 187 (1907)

Ibid

Hibbette v. Baines, 78 Miss. 695 (1900)

"The Review of American Colonial Legislation ", Elmer Beecher Russell, page
172,

Ibid

The American Invention of Child Support: Dependency and Punishment in Early
American Child Support Law, Drew D, Hansen, Yale Law Journal, March 1, 1999.

"Our Divorce Courts: Their Origin and History: How They are Abused and How
They May Be reformed,", Second Edition, Judge Charles Cowley, Penhallow
Printing Company, 1890.

Hill v. Wells, 23 Mass 104, 106 (1828) "In 1692 the provincial legislature,
in revising the colonial laws, include provisions in relation to *******y,
in 'an act for the punishing of criminal offenders,' . "

Summaries available on-line at http://www.sec.state.ma.us/

See Pidge v. Pidge, 44 Mass. 257 (1841) and Barber v. Root, 10 MA 260 (1813)
("Regulations on the subject of marriage and divorce are rather parts of the
criminal, than of the civil, code; .")

Commonwealth v. Ham 156 MA 485 (1892)

Declaration of Independence, "For depriving us in many cases, of the benefit
of Trial by Jury:"

Hanover v. Turner, 14 MA 227 (1817), "(Upon this evidence the judge
instructed the jury, if they were satisfied by the evidence of the defendant's
gross abuse of his wife, .); Burlen v. Shannon, 115 MA 438 (1874); Alley v.
Winn, 134 MA 77 1883); Commonwealth v. Ham, 156 MA 485 (1892); Commonwealth
v. Acker, 197 MA 91 (1908)

"It was held by the whole court, in Houliston v. Smyth, 3 Bing. 127, that
where the wife leaves the husband, under such an apprehension of personal
violence, as a jury shall deem to have been reasonable, her husband is
liable for necessaries for her support." [Emphasis added]. Pidge v. Pidge,
44 Mass. 257 (1841)

Ex parte Winn, 48 Ariz. 529 (1936); Commonwealth v. Briggs, 33 Mass. 203
(1834); State v. Richardson, 40 N.H. 272 (1860), "It is a well settled
doctrine of the common law, that the father is entitled to the custody of
his minor children, as against the mother and every body else; that he is
bound for their maintenance and nurture, and has the corresponding right to
their obedience and their services. 2 Story's Eq., secs. 1343-1350; 2 Kent's
Com. 193; 1 Bl. Com. 453; Jenness v. Emerson, 15 N.H. 486; Huntoon v.
Hazelton, 20 N.H. 388."

Reynolds v. Davidow, 200 Miss. 480 (1946); "The putative father of an
illegitimate child is entitled to the custody of the child, as against all
persons but the mother; . Pote's Appeal, 51 Am. Rep., 540; Commonwealth v.
Anderson, 1 Ash., 55; Richards v. Hodges, 2 Saund., 83; ."

Foss v. Hartwell, 168 MA 66 (1897) "If there is a legal obligation, it must
rest upon the ground that he is entitled to the custody, the society, and
the services of the child. He must also have the right to determine where
his child shall live."; Rotch v. Miles, 2 Conn. 638 (1818) "The court
charged the jury, that if they should find, that the defendant deserted his
wife and children, ."

Tornroos v. R. H. White Co., 220 Mass. 336 (1915)

Angel v. McLellan, 16 Mass. 28 (1819), Baldwin v. Foster, 138 Mass. 449
(1885), Creely v. Creely, 258 Mass. 460 (1925)

Mercein v. Barry, 25 Wend 64 (1840) "The law of nature has given to her an
attachment for her infant offspring which no other relative will be likely
to possess in an equal degree. And where no sufficient reasons exist for
depriving her of the care and nurture of her child, it would not be a proper
exercise of discretion in any court to violate the law of nature in this
respect" [Emphasis added]

Lord Talfourd's Act (An Act to amend the Law relating to the Custody of
Infants, 2 & 3 Vict. (1839), c. 54 (U.K.)), AKA the "Tender Years Doctrine"
and "Art. VI, Infant custody Bill - A Plain letter to Lord Chancellor on the
Infant Custody Bill" Pearce Stevenson, Esq, 1839, 21 Law Mag. Quart. Rev.
Juris. 145 (1839)

And later noting: "There cannot be a tyranny more grievous than that which
would be wrought by judges, if allowed to determine the proper custody of a
child by running a parallel between the merits of contending parties."

". that a father who is deprived of the custody of his child by order of
court has no common law duty of support.", Kirby v. Kirby, 338 Mass 263
(1959)

Ibid

". if the infant be of sufficient discretion it will also consult its
personal wishes.", U.S. v. Green, 26 F. Cas. 30 (3 Mason, 482) (1824);
Commonwealth v. Hammond, 27 Mass. 274 (1830); Curtis v. Curtis, 71 Mass. 535
(1855)

11 March 1673, the case of Ruth Reed, Criminal Trials in the Court of
Assistants and Superior Court of Judicature 1630-1700, John Noble, John
Wilson and Son, University, Cambridge, MA 1897, Reprint from the
Publications of the Colonial Society of Massachusetts, Vol. III;
Commonwealth V. Merriam, 31 MA 518 (1833) "Chief Justice Raymond allowed
evidence that the mother was of bad fame, to rebut the presumption of
legitimacy, and the jury found the plaintiff to be illegitimate."

Isaiah 5:20 - Woe to those who call evil good, and good evil; Who put
darkness for light, and light for darkness; Who put bitter for sweet, and
sweet for bitter!

Finch v. Finch, 22 Conn. 411 (1853) provides an example bill for necessities
at the appellate level

Worcester v. Georgia, 31 U.S. 515; (1832), "It cannot be less clear when the
judgment affects personal liberty, and inflicts disgraceful punishment; if
punishment could disgrace when inflicted on innocence."

 




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