Do you know, if the court operates in Law or Equity? If Not, You Will
"In Law or Equity"?
by Alfr Alfred ed Adask
For the past two or three generations,
state and federal judges have increasingly
ruled against Americans who
defend themselves with the principles,
rights, and laws mandated by their state
or national constitutions. Occasionally,
trial court judges even issue a seemingly
impossible declaration, "Don't bring
that Constitution into my court!" Although
the reasons are unclear, there is
growing suspicion that our courts are
somehow no longer bound to recognize,
obey, or enforce the law and Americans
can no longer demand the "unalienable
rights" formerly guaranteed
by our constitutions.
Some patriot researchers attribute
governmental "lawlessness" to the fact
that our currency (Federal Reserve
Notes) is no longer lawful money (i.e.,
it's not backed by gold or silver). Others
blame the loss of law on the "national
emergency" that's effectively suspended
the Constitution since 1933
[See "Rising Tides", this issues]. Others
trace our loss of rights back to
government's use of martial (military)
law which was imposed on us "temporarily"
during the Civil War (1861-
1865) but allegedly continued to this
day. While the explanations vary, there
is widespread agreement that: 1) Americans
no longer enjoy "constitutional
Rights"; and 2) virtually all of today's
courtroom "trials" are actually administrative
In 1997 (in AntiShyster Vol. 7
Nos. 1 & 4), I published my first speculation
that government is using trusts
(like Social Security, Medicare, and the
National Highway Trust) as one of, perhaps
the principle device to "legally" bypass
the Constitution and thereby deprive
us of our Rights. A year later, my "trust
fever" burns even hotter, supported by a
growing body of indirect evidence.
Some of this evidence is seen in
the similarity between our court's persistent
use of seemingly unconstitutional
procedures, and the lawful
(though not precisely "constitutional")
procedures routinely the practiced in
courts of equity.
Curiously, controversies involving
trusts are 1) virtually always administered
in courts of equity, not adjudicated
in courts of law; 2) there are no
"legal rights" in courts of equity; and
3) under Article III, Section 2 of the
Constitution ("The judicial Power shall
extend to all Case, in Law and Equity .
. . .), courts of equity are absolutely constitutional.
In other words, if your case were
"accidentally" tried in a court of equity
rather than a court of law, you would
experience the same frustration as "patriots"
who see their constitutional
rights ignored and their cases administered
(under some mysterious procedure
they can't quite understand) rather
than adjudicated in law.
If government has truly established
legal procedures in which we
are tried administratively without constitutional
rights, and if government is
using lawful courts of equity to implement
this procedure then perhaps government
has not imposed some bizarre
new system of law (martial, maritime
or admiralty, etc.) upon us, but has instead
imposed a new individual status
upon us which makes us "appear" as
"entities" that can be properly tried in
equity rather than law. Maybe government
changed us from real, fleshand-
blood persons (who must be tried
in law) to artificial entities (that must
be tried in equity). If "trust fever" is
valid, our failure to understand and recognize
"equity" may be a fatal defect
in our forays into the judicial system.
Dad what's an equity?
Most of us have a dim idea of
what "law" means, but few understand
the meaning of "equity". However, before
we can understand equity, we must
first understand law, and to understand
law, we must first understand Rights.
The primary purpose of courts of
law is to determine each litigant's legal
rights; the primary purpose of courts of
equity is to determine each litigant's equitable
rights. Legal rights are based
on legal (not equitable) title and ultimately
believed to be clearly given by
God, not man. Equitable rights, on the
other hand, are imperfect, imprecise,
vague and while sometimes traceable
to God, they are more likely to be derived
It appears to me that if your rights
are legal (based on legal, not equitable,
title), you have "legal standing" and access
to courts of law. However, if your
"rights" are only equitable, you have
no legal rights and therefore no standing
in law or access to courts of law.
If you don't understand the nature of
your rights (legal or equitable) you
won't understand whether you are being
tried in courts of law or courts of
equity. The distinction is crucial since
courts of equity are not legally bound
to recognize legal, constitutionally-protected,
God-given rights. Therefore, if
you argue legal rights or law in a court
of equity, the judge may lawfully dismiss
your arguments as "frivolous" and
you will lose your case.
Learning from history?
What follows are several definitions
from the 1856 edition of Bouvier's
Law Dictionary which illustrate the relationship
and differences between
rights, law and equity. For emphasis,
I've italicized or underlined various
words and phrases. Footnotes and
[bracketed] comments are my insertions:
RIGHT. . . that quality in a person
by which he can do certain actions,
or possess certain things which belong
to him by virtue of some title. . . .
[Crucial point: Apparently, rights
flow from and depend on title. Without
title, you have no rights. With title,
your rights will depend on the "quality"
of that title: I.e., lessor title generates
lessor rights; superior title generates
superior rights. Equitable title generates
equitable rights, but only legal
title generates legal rights.]
2. . . Right is the correlative of
duty, for, wherever one has a right due
to him, some other must owe him a duty.
[I.e, if I have a right, someone else has
a duty. But if I have no rights, no one
else (not even government) has any correlative
duties. This concept is vital to
understanding Law.] . . .
9. These latter rights are divided
into absolute and relative. The absolute
rights of mankind may be reduced to
three principal . . . articles: the right of
personal security, which consists in a
person's legal and uninterrupted enjoyment
of his life, his limbs, his body, his
health, and his reputation; the right of
personal liberty, which consists in the
power of locomotion, of changing situation,
or removing one's person to
whatsoever place one's inclination may
direct, without any restraint, unless by
due course of law; the right of property,
which consists in the free use, enjoyment,
and disposal of all his acquisitions,
["acquire" means to secure legal
title to property; "purchase" means
to secure equitable title.] without any
control or diminution, save only by the
laws of the land. . . .
10. The relative rights are public
or private: the first are those which subsist
between the people and the government,
as the right of protection on the
part of the people, and the right of allegiance
which is due by the people to
the government; the second are the reciprocal
rights of husband and wife,
parent and child, guardian and ward,
and master and servant.1
11. Rights are also divided into
legal and equitable. The former are
those where the party has the legal title
to a thing, and in that case, his remedy
for an infringement of it, is by an action
in a court of law. Although the person
holding the legal title may have no
actual interest, but hold only as trustee,
the suit must be in his name, and not in
general, in that of the cestui que trust [a
trust's beneficiary] . . . . Equitable rights
are those which may be enforced in a
court of equity by the cestui que trust.2
LAW. . . law denotes the rule . . .
of human action or conduct. In the civil
code of Louisiana . . . it is defined to be
"a solemn expression of the legislative
will."3 . . .
2. Law is generally divided into
four principle classes, namely; Natural
law, the law of nations, public law, and
private or civil law. When considered
in relation to its origin, it is statute law
or common law. When examined as to
its different systems it is divided into
civil law, common law, canon law.
When applied to objects, it is civil,
criminal, or penal. It is also divided into
natural law and positive law4 . . . Into
law merchant, martial law, municipal
law, and foreign law5. . . .
EQUITY. In the early history of
the law, the sense affixed to this word
was exceedingly vague and uncertain.
. . It was then asserted that equity was
bounded by no certain limits or rules,
and that it was alone controlled by conscience6
and natural justice. . . .
3. . . The remedies for the redress
of wrongs, and for the enforcement of
rights, are distinguished into two
classes, first, those which are administered
in courts of common law; and,
Gun Owners of America
GOA defends firearms ownership as a freedom issue using its
members to put the heat on their Congressmen.
As the late Sen. Everett Dirksen used to say,
"When I feel the heat, I see the light."
Congressman Ron Paul (R-TX) has called GOA
"the only no-compromise gun lobby in Washington."
Want to keep your rights from being legislated away by
secondly, those which are administered
in courts of equity. Rights which are
recognized and protected, and wrongs
which are redressed by the former
courts [of law], are called legal rights
and legal injuries. Rights which are recognized
and protected, and wrongs
which are redressed by the latter [equity]
courts only, are called equitable
rights and equitable injuries. The
former are said to be rights and wrongs
at common law, and the remedies,
therefore, are remedies at common law;
the latter are said to be rights and
wrongs in equity, and the remedies,
therefore, are remedies in equity. Equity
jurisprudence may, therefore, properly
be said to be that portion of remedial
justice which is exclusively administered
by a court of equity, as
contradistinguished from that remedial
justice, which is exclusively administered
by a court of law.7
EQUITABLE ESTATE. An equitable
estate is a right or interest in
land, which, not having the properties
of a legal estate, but being merely a right
of which courts of equity will take notice,
requires the aid of such court to
make it available.8
2. These estates consist of uses,
trusts, and powers. . . .
EQUITY, COURT OF. . . . one
which administers justice, where there
are no legal rights, . . . but [is used when]
courts of law do not afford a complete,
remedy, and where the complainant has
also an equitable right. [see] Chancery.
CHANCERY. The name of a
court exercising jurisdiction at law, but
mainly in equity.
2. It is not easy to determine how
courts of equity originally obtained the
jurisdiction they now exercise.9 Their
authority, and the extent of it, have been
subjects of much question, but time has
firmly established them . . . .
3. . . . "American courts of equity
are, in some instances, distinct from
those of law; in others, the same tribunals
exercise the jurisdiction both of
courts of law and equity, though their
forms of proceeding are different in
their two capacities.10 The supreme
court of the United States, and the circuit
courts, are invested with general equity
powers, and act either as courts of
law or equity, according to the form of
the process and the subject of adjudication.
. . . In most of the states, the
two jurisdictions centre in the same judicial
officers, as in the courts of the
United States; [In other words, both
state and federal judges can hear cases
in both law and equity.] . . . .
4. The jurisdiction of a court of
equity differs essentially from that of a
court of law. The remedies for wrongs,
or for the enforcement of rights, may
be distinguished into two classes those
which are administered in courts of law,
and those which are administered in
courts of equity. . . .
In . . . America, courts of common
law proceed by certain prescribed
forms, [not precisely true since 1982]
and give a general judgment for or
against the defendant. They entertain jurisdiction
only in certain actions, and
give remedies according to the particular
exigency of such actions. But there
are many cases in which a simple judgment
for either party, without qualifications
and conditions, and particular
arrangements, will not do entire justice
. . . to either party. Some modification
of the rights of both parties is required;
some restraints on one side or the other;
and some peculiar adjustments, either
present or future, temporary or perpetual.
In all these cases, courts of common
law have no methods of proceeding,
which can accomplish such objects.
Their forms of actions and judgment are
edy cannot be found, or cannot be administered
to the full extent of the relative
rights of all parties. . . . In such
cases, where the courts of common law
cannot grant the proper remedy or relief,
the law . . . of the United States . .
. authorizes an application to the courts
of equity or chancery, which are not
confined or limited in their modes of
relief by such narrow [legal] regulations,
but which grant relief to all parties,
in cases where they have rights . . .
and modify and fashion that relief according
to circumstances11. . . .
The jurisdiction of a court of equity
is sometimes concurrent with that
of courts of law and sometimes exclusive.
It exercises concurrent jurisdiction12
in cases where the rights are purely
of a legal nature, but [exercises exclusive
jurisdiction] where other and more
efficient aid is required than a court of
law can afford to meet the difficulties of
the case, and ensure full redress.
. . . The remedy [in equity] is often
more complete and effectual than it
can be at law. . . . [E]specially in some
cases of fraud, mistake and accident,13
courts of law cannot and do not afford
any redress; in others they do, but not
always in so perfect a manner. A court
of equity . . . . will remove legal impediments
to the fair decision of a question
depending at law.14 It will prevent
a party from improperly setting up, at a
trial, some title or claim, which [might
be legal, but] would be inequitable. It
will compel [the party] to discover, on
his own oath, facts which he knows are
material to the rights of the other party,
but which a court of law cannot compel
the party to discover.15 It will perpetuate
[record] the testimony of witnesses
to rights and titles, which are in
danger of being lost, before the matter
can be tried [at law].16
It will counteract and control, or
set aside fraudulent judgments. It will
provide for the safety of property in dispute
It will exercise . . . an exclusive
jurisdiction . . . in all cases of merely
equitable rights, that is, such rights as
are not recognized in courts of law. [I.e.,
if you lack legal title to the subject of
litigation, your case must be heard in
equity; i.e., you have no access to law.]
Most cases of trust and confidence fall
under this head.18 Its exclusive jurisdiction
is also extensively exercised in
granting special relief beyond the reach
of the common law. . . . it will restrain
any undue exercise of a legal right,
against conscience and equity [Courts
of equity can "legally" overrule legal
rights, but probably only on a case-bycase
basis. I.e., an equity judge is "legally"
empowered to ignore the litigants'
legal rights and the law.]; . . . it
will, in many cases, supply the imperfect
execution of instruments, and reform
and alter them according to the
real intention of the parties;19 . . . and,
in all cases in which its interference is
asked, its general rule is, that he who
asks equity must do equity. If a party,
therefore, should ask to have a bond for
a usurious debt given up, equity could
not decree it, unless he could bring into
court the money honestly due without
. . . [I]n matters within its exclusive
jurisdiction, where substantial justice
entitles the party to relief, but the
positive law is silent, it is impossible to
define the boundaries of [equitable]
jurisdiction, or to enumerate, with precision,
its various principles."
If Bouvier is correct and equity
has no "defined boundaries" or limited
"enumeration of its various principles,"
there is truly no "law" in a court of equity.
In a sense, a court of equity is absolutely
contrary to the constitutional
mandate for a limited government. The
judge (or other government official acting
as a trustee) can do virtually anything
he deems proper that is consistent
with "public policy" so long as his
actions can be justified as "reasonable"
or at least not "shocking to the conscience".
This is consistent with allegations
that courts (of equity) now "legislate
from the bench" to create "judgemade
law" by exercising the unbridled
power that the Constitution was intended
I suspect that the fundamental
flaw in our Constitution may be the legitimization
of courts of equity where
litigants had no rights and judges have
no law. This may be the fundamental
constitutional "crack" that allowed the
entrance of big, non-constitutional government,
bureaucracies et. al.
Ha. Ha. Ha. It is to laugh.
At first, it sounds kinda nuts, but
"by law," courts of equity can't recognize "law". That is, according
Bouvier's definitions, courts of equity
can't normally recognize legal arguments
or determine legal issues. As a
result, if you try to defend yourself in a
court of equity with legal arguments
based on positive law and constitutionally-
protected Rights, you'd probably
lose since the judge can't "legally" recognize
legal arguments. You'd be as
absurd as a man arguing baseball rules
at a football game, and the judge would
properly dismiss your arguments as
But stranger still, even though
you used "frivolous" legal arguments
in a court of equity, if the judge merely
liked you, or felt capricious, or particularly
disliked your opponent, the judge
could rule in your favor for no discernible
legal reason! As a result, one
man could make a legal argument in a
court of equity and win, while another
man could make the same legal argument
under identical circumstances,
and not only lose but wind up in jail.
Because the equity court judge has virtually
unlimited discretion/ power, the
"law" would become a complete
crapshoot, where the only way to win
would be to suck up to the judge, and
the only thing a judge might fear would
be public exposure. That's a fairly accurate
description of today's judicial
system. (This also signals that the
"magic words" for court watchers' affidavits
might be the judge's ruling
"shocked my conscience" or was "unreasonable".)
Further, the resultant confusion
and misunderstanding might be enormous
and even intentional. Suppose a
particular "patriot" reached the erroneous
conclusion that the traffic courts
were acting under admiralty law. Suppose
he defended against a speeding
ticket with (erroneous) admiralty arguments,
but the judge still knowingly
ruled in his favor. Next thing you know,
that patriot could be out on the seminar
circuit, charging $100 a head to hear
him explain how to beat traffic tickets
with admiralty law. Then, hundreds of
his students would start jamming the
traffic courts with admiralty arguments,
and virtually all of `em would be
quickly wisked off to jail before the
judge burst out giggling at their lunacy.
In theory, I can even imagine a
group of judges, sitting around a bar,
holding their sides with gleeful laughter
as they swapped stories of the last
irrational decisions they made in court.
"Admiralty?!" gasps one. "Hell, that's
nothin' I just ruled in favor of a kid
who argued the cop was a space alien!
You wait six months, and every fool
patriot in the country will be arguing
the cops are all `greys' from Jupiter!"
OK, maybe the hypothetical
judges didn't really meet to snicker over
the latest irrationality they "seeded" into
the patriots' "understanding" of law.
But what about the lawyers? Wouldn't
they also be frustrated and driven half
nuts by the unbridled discretion of equity
court judges and the resultant judicial
caprice? How long would it take
the average lawyer to realize that (for
whatever reason), there's no point to
studying or arguing law because law no
longer works. If you want to win, you
kiss the judge's butt, join the same
country club, be a Mason, make huge
financial contributions to the judge's
political campaign fund (even if he has
no opponent in the election), and in
really important cases, bribe the old
s.o.b. Does this sound a like a fairly
accurate representation of current judicial
My point is that a judicial system
that relied almost entirely on equity
would soon deteriorate into a chaos
reminiscent of Alice In Wonderland.
Every time you turned around, there'd
be some "Red Judge" hollering "Off
with his head!" A judicial system that
recognizes no legal rights or positive
law is destined to degenerate into a raw
power struggle, a kind of feeding frenzy
between lawyers, litigants and judges.
America cannot survive without
legal rights, positive laws, and courts
that recognize them.
Lose your form,
lose your substance
One reason for the confusion between
law and equity goes back to 1982
when the federal courts in their infinite
wisdom combined the procedural
"forms" of law and equity into a single,
uniform procedure. The usual explanation
for unification of legal and equitable procedures was that
the practice of law so attorneys
and litigants would only have to learn
one complex set of forms and procedures
rather than two.
Nice theory, but unified procedure
creates at least one adverse consequence.
Once law and equity procedures
appear identical in form, litigants
and lawyers could no longer automatically
tell from the form of a court's
documents and procedures whether
their case was being tried in law or administered
in equity. Attorneys compensated
for this uncertainty by adding
boilerplate to their pleadings to "pray
the court" for all awards and remedies
that might be due their clients "in both
law and equity". That way, if the court
was operating in law fine, the client
could win in law. If equity the client
could also win.
But once it became difficult to
distinguish between the procedural
forms of law and equity, the need to
distinguish between their substance was
also diminished. Cases were won or
lost, not on law, but on procedure.
Again and again, the courts, law schools
and lawyers chanted their mantra "procedure,
If the judge said you won, hooray!
If he said you lost, too bad, you
could always appeal (and pay more
money to your lawyer). But the judge
was always viewed as solely responsible
for his decision, and the lawyers
were implicitly relieved from liability
for failing to argue only law in a court
of law, or only equity in a court of equity.
The client, of course, never had a
clue. Moreover, he seldom realized that
his lawyers didn't have a clue, either,
in this "brave new world" of unified
However, there might be an even
greater danger in "unifying" the procedures
of law and equity: deception. To
illustrate, suppose a trustee was in
charge of two bank accounts; one for
your senile grandmother and another
for your aging grandfather. And suppose
that while the trustee faithfully
managed your grandfather's account, he
systematically embezzled money from
grandma's until she was virtually penniless.
Suppose grandma and grandpa
died, causing the trustee to provide a
full accounting to the heirs for all the
money he'd been administering in the
two accounts. Since grandma's account
was empty, an accounting would reveal
the embezzlement. How could the
trustee conceal the empty, embezzled
What if the trustee told the heirs
that, in order to "simplify" the procedural
problems inherent in probating
two bank accounts, he "combined" all
the money from grandma's and
grandpa's two bank accounts into a
single "family" account? The heirs,
assuming the trustee was helping them
to easily inherit a single fat bank account,
would approve. But, in fact, by
combining the two bank accounts into
one, the trustee could conceal the fact
that Grandma's account was empty.
Similarly, I suspect the real purpose
behind "unifying" law and equity
procedures may have been to conceal
the fact that Americans no longer have
easy access to law. Like Grandma's
embezzled bank account, our law is
now mostly missing. So long as the procedural
forms of law and equity were
different, if law "disappeared", its loss
would be instantly obvious when someone
tried to sue using the traditional
procedure associated with law. The
courts would reject the "legal" procedure,
the litigant would ask Why? and
the courts would have to admit he no
longer had any legal rights or legal
standing. That admission would be
truly "politically incorrect".
But by combining the procedural
forms that previously distinguished law
from equity, the judicial system could
very nearly conceal the fact that law
virtually disappeared. A person could
sue using the new-and-improved "unified"
procedural forms, and think he
was operating in law when he was in
fact operating in equity. The courts
could accept his procedure and then rule
either for or against him (their discretion
is nearly unbounded in equity) and,
if he lost, never bother to explain that
his "legal" arguments were truly "frivolous"
since there is no law in a court of
Of course, this hypothesis sounds
preposterous and it may be. Nevertheless,
until I find proof to the contrary,
this equity-passing-as-law hypothesis
"fits" with otherwise inexplicable but
verified observations of judicial "lawlessness".
Further, even if our law has
not been "replaced" by equity, I still
suspect that 90% or more of our current
court cases are being administered
in equity rather than adjudicated in law.
If that's true, then we must understand
equity so we can effectively present our
cases in court.
Arraigned in law or equity?
Here's another definition from
Bouvier's Law Dictionary (1856) that
may help "signal" whether a "criminal"
trial is taking place in equity rather than
ARRAIGNED, crim. law practice.
Signifies the calling of the defendant
to the bar of the court, to answer
the accusation contained in the indictment.
It consists of three parts.
1. Calling the defendant to the bar
by his name, and commanding him to
hold up his hand; this is done for the
purpose of completely identifying the
prisoner, as the person named in the
indictment; the holding up his hand is
not, however, indispensable, for if the
prisoner should refuse to do so, he may
be identified by any admission that he
is the person intended. 1 Bl. Rep. 3.
2. The reading of the indictment
to enable him fully to understand, the
charge to be produced against him; The
mode in which it is read is, after saying,
"A B, hold up your hand," to proceed,
"you stand indicted by the name
of A B, late of, &c., for that you on,
&c." and then go through the whole of
3. After this is concluded, the
clerk proceeds to the third part, by adding,
"How say you, A B, are you guilty
or not guilty?" Upon this, if the prisoner,
confesses the charge, the confession
is recorded, and nothing further is
done till judgment. If, on the contrary,
he answers "not guilty", that plea is
entered for him, and the clerk or attorney
general [prosecutor], replies that he
is guilty; then an issue is formed. . . . .
The previous definition implies:
1) Arraignments take place in
criminal law but it says nothing about
"arraignments" in alternative legal arenas
like equity. (Can you be truly "arraigned"
2) Your name is the first, crucial
element to proceeding with the arraignment.
Apparently, if you are not properly
named and identified, the court
3) Any indication that a "person"
in court is the same "person" being arraigned
is sufficient to allow the court
to proceed with the arraignment, indictment,
At first glance, the identification
requirement seems unremarkable, but
there could be some unexpected confusion
since, today, the term "person"
includes both "real" and "artificial"
entities. A "real" entity is a natural, living,
flesh-and-blood man or woman.
An "artificial" entity includes imaginary,
man-made "creations" like corporations
As explained in "My Evil Twin"
(this issue of the AntiShyster), it appears
that the capitalized name "Alfred
Norman Adask" identifies the real, flesh
and blood "person" who as a member
of We The People is generally
superior to government's administrative
authority. However, the "same" name
written in upper-case letters "ALFRED
N. ADASK" may identify an artificial
entity which is completely subject to
government control. As a result, although
the two names sound alike, if
they identify two entirely different legal
entities, they are not really the
Unfortunately, while the distinction
between the two name forms can
be seen in print, it can't be heard in
speech. This may be important since a
real defendant (Alfred) has constitutionally-
protected, God-given legal
rights which must be tried in law, an
artificial entity (ALFRED) being
"tried" (actually "administered") in "equity",
has no legal rights whatever.
So what would happen if the
judge called out the name "ALFRED
N. ADASK" (artificial entity) and "Alfred
Norman Adask" (real) heard the
sound of a name similar to his own, assumed
the judge was talking to him, and
mistakenly raised his hand to signal he
(Alfred) was ALFRED? Could the
court be so blind (or deceptive) as to
allow "Alfred N. Adask" to be arraigned
in the stead of "ALFRED N. ADASK"?
I think the answer is Yes.
If so, it seems probable that if you
were able to properly notify the court
that you are John B. Doe (real) rather
than JOHN B. DOE (artificial), you
might be able to avoid administrative
hearings whenever the government's
paperwork identified and sought to "arraign"
or "administer" JOHN B. DOE
(a creature of the state).20
4) Now, here's the good part:
Note that according to Bouvier's definition,
after the proper person is identified,
and the charge read to him: ". . .
the clerk proceeds to the third part, by
adding, `How say you, A B, are you
guilty or not guilty?'"
If the defendant pleads "guilty",
the trial moves directly to the judgment
phase where the judge pronounces punishment.
But, if the defendant "answers
`not guilty' . . . and the clerk or attorney
general [prosecutor], replies that he
is guilty; then an issue is formed."
The definition implies that in
law it's not enough that you merely
respond "not guilty" to the
government's charges. After you plead
"not guilty," someone from the
government's side (either the clerk or
prosecutor) must contradict your "not
guilty" plea by "replying" that you are
guilty. Why? Just like the definition
says, to "form" an "issue".21
What's an "issue"? It's a controversy
that seeks settlement by the
court of law. For example, if I say you
stole my money, and you must say you
didn't. One of us argues Yes, the other
No. Now we have an "issue" which
allows the court to use it's various procedures
to determine which of us has
sufficient evidence to "prove" his argument.
But without an "issue", the court
of law has nothing to determine, nothing
to decide, no evidence to compare
and weigh nothing to adjudicate. And
that probably means no legal jurisdiction.
In my experience of alleged arraignments
and apparent trials, the prosecutor
reads the charges and the judge
asks the defendant, "How do you plead?
Guilty or Not Guilty?" The defendant
(typically) says "Not Guilty", and the
judge says, something like, "OK, Mr.
Prosecutor, bring on your first witness."
But no one contradicts the defendant's
"not guilty" plea. The prosecutor does
not "reply" (as Bouvier requires) that
"Oh, yessss he is, Your Honor! He is
guilty as Hell!" (or words to that effect).
Therefore, if you are charged
with an apparent crime and the court
asks for your pleas ("Not guilty"), but
the prosecutor offers no contrary response
to your plea, could it be that you
are being "tried" in equity rather than
law? If so, it might follow that a
"charge" in a court of equity is not a
question waiting for a preliminary answer
from the defendant, but an administrative
statement of fact that is already
presumed to be true. In other words, in
equity, there might not be a presumption
of innocence for the defendant/beneficiary.
However, if there is any presumption
of "innocence" or honesty in
courts of equity, that presumption favors
If a charge in equity is really just
a statement of administrative fact presumed
to be true where is the controversy?
Without a presumption of innocence,
a declaration of innocence, and
the prosecution's contradictory reply,
where is the "issue" for the court to adjudicate
in law? And if there's no issue
but the court still proceeds what can
that mean, except maybe it's not a court
of law? Maybe it's some other kind of
court that does not require a bona fide
"issue" to proceed. Maybe it's a court
Of course, perhaps arraignment
procedure in law has fundamentally
changed since Bouvier defined "arraignment"
in 1856. But I'll bet it
hasn't. I'll bet that over time we've
been deceived into assuming that an "issue"
for the court to adjudicate in law
(not administer in equity) is created
when 1) the prosecutor first reads the
charge, and 2) the defendant denies the
charge by pleading "not guilty". We
have assumed the defendant's reply
("not guilty") contradicted the
prosecutor's charge and thereby created
an issue empowering the court to proceed
Maybe so. After all, what difference
does it make if I deny the
prosecutor's charges, or if the prosecutor
denies my "not guilty" plea? Maybe
none, but if it doesn't matter, why did
the procedure change? Why has government
decided that it no longer needs
to contradict a defendant's "not guilty"
As usual, I don't know. But I suspect
that lack of contradiction by the
government signals the case is not an
"issue" to be adjudicated in law it's a
"dispute" to be administered in equity.
If so, the average defendant could argue
endlessly about his "constitutional
rights" (which clearly exist in law) and
still be found guilty when the judge rules
his arguments are "frivolous".
The presumed defendant (who
assumes he's being tried in law) would
be incensed that the judge ignored his
"constitutional arguments". But if the
case were actually being heard in equity,
1) the "defendant" would probably
have the legal status of a "beneficiary";
and 2) the only relevant "law" (the "law
of the case") would be the contract or
trust indenture under which the defendant/
beneficiary was being "tried". Until
the defendant/beneficiary identified
that underlying contract or trust indenture
and rendered it void (perhaps for
fraud), the defendant/beneficiary would
remain in equity where "constitutional
rights" are irrelevant and only government
"policy" may (or may not) be honored
according to the judge's conscience
and personal discretion.
Again, all of this is conjectural.
Nevertheless, it appears that since a
modern "arraignment" does not follow
the 1856 procedure for creating an "issue"
in law, the modern arraignment
does not, in fact, take place in law, but
rather in equity. If so, anyone who argues
law in an equitable, administrative
hearing is as foolish as a man arguing
football rules at a baseball game, and
therefore bound to lose.
However, where previously, the
foolish man was the defendant arguing
law, it might be that by understanding
and arguing (or challenging) equity, we
might be able to expose the prosecutor
or plaintiff as the fool, since I doubt that
any of `em are prepared to concede the
deception and admit that almost all of
their trials are in equity.
Historically, courts of equity have
had four important characteristics that
allow them to operate in ways that
would appear illegal or unconstitutional
in courts of law. First, courts of equity
have no obligation to recognize legal
rights or legal arguments. Second, they
function almost entirely according to
the alleged "conscience" and personal
discretion (unbridled power) of the
judge on a case-by-case basis. Third,
they are the natural court to hear cases
based on trusts. Fourth, they are primarily
available to hear the pleas of trust
beneficiaries who, by definition, have
no legal title and therefore no legal
rights to property.
Today, our courts routinely behave
in ways that seem unpredictable
and contrary to law. There are several
hypotheses to explain these apparent
contradictions. This article explored the
possibility that, for reasons yet to be
fully understood, our courts of law have
virtually disappeared and our preexisting
courts of equity have surreptitiously
"expanded" to fill the void. If so, when
we assume we are being tried in law,
we are actually being administered in equity.
Failure to recognize this hypothetical
distinction guarantees a judicial loss.
This hypothesis is unproven, but
there is indirect evidence that suggests
our cases are routinely administered in
courts of equity rather than tried in
courts of law. This indirect evidence
is seen primarily in the similarities between
the apparently unconstitutional
powers of today's courts and the legitimate
powers that could be exercised by
courts of equity. In other words, our
current complaints about our presumed
courts of law might be explained if our
presumption was false and, in fact, our
courts were courts of equity.
The research (and conjecture)
1 How `bout the reciprocal rights
of the trustees and beneficiaries of trusts?
Are those "private" and therefore
"relative", vague and undefined?
2 This implies that only beneficiaries
(who, by definition, have only
equitable title to trust property) can sue in
courts of equity. More importantly,
anyone defined as a "beneficiary" has no
legal standing and may therefore be
"lawfully" denied access to courts of law.
Perhaps only trustees (who retain legal
title to trust property) have automatic
access to courts of law.
3 Law describes the correlative
relationship between rights and duties. In
this sense, law is first an exercise in logic:
If A, then B. If one person has a right
(A), then by "law", another person must
have a correlative duty (B). For example,
if I paid for and have a right to a property,
the previous owner has a duty to give me
that property. However, some people do
not obey this "natural" logical law.
Therefore, governments are instituted to
pass positive laws which declare in no
uncertain terms, "If A, then B or else
C". Now, if the former owner of the
property refuses to surrender it to me,
government has a duty to enforce my right
by compelling the person to give me the
property and may even punish the person
for failing to do so voluntarily. But if I
have no right, no person has a correlative
duty, and government has no duty of
enforcement. More importantly, without
rights, there can be no "logical equation"
there is no law.
4 If law is either "positive" or
"natural" (equitable), then perhaps the
Congressional statutes codified in "nonpositive"
federal Titles (like Title 26; the
IRS laws) have been passed as equity
rather than law.
5 "Equity" is not listed as a "class"
or "system" of law but as you'll see in
subsequent definitions of "equity" and
"equitable" natural law and equity may
6 Whose "conscience"? The
judge's conscience. This is consistent
with modern observations of unbridled
7 I.e., "law" and "equity" are
exclusive and separate. Therefore legal
arguments and remedies that may be
compelling in courts of law have no force
(they are "frivolous") in a court of equity.
8 This implies that unlike our
intrinsic, unalienable, legal rights (given
us by God), equitable rights are virtually
nonexistent without a court's declaration.
While litigants can demand their legal
rights from other people, they can only
can only ask, plead, and "pray" that their
equitable rights be enforced by a court of
equity. Your vague, imperfect equitable
rights do not exist without a government/
9 The probable explanation is
obvious; they resulted from the usurpation
of power by government officials who
were frustrated by legal impediments
imposed by the God-given rights of
"uppity" common litigants.
10 In 1856, by their procedural
"forms" you could know them. However,
since the 1930's and later federal laws
passed in 1982, the procedural "forms" of
law and equity have been "combined", are
now virtually indistinguishable and give
no prima facie clue to their substance.
11 "Circumstances" not law. I.e.,
the court of equity judge has virtually
unlimited discretion/ power. Although we
falsely believe all our "rights" are
immutable, courts of equity exist, in part,
to "modify", "restrain", or "adjust" our
rights! Unfortunately, few of us understand
the difference between legal and
equitable rights. I suspect courts of
equity can only "modify" our equitable
rights but may not be able to even
recognize our legal rights!
12 "Concurrent jurisdiction" is
consistent with "patriot" complaints that
judges exercise "dual" jurisdictions and/
or extralegal powers.
13 Does this mean that all traffic
"accidents" and insurance cases must be
administered in courts of equity?
14 This implies that a fundamental
purpose for equity is to ignore on a caseby-
case basis those laws which are seen as
"unfair" or "politically incorrect" and
allow decisions according to "public
policy" or even public opinion rather than
15 This sounds much like the
current judicial system's emphasis on
16 Based on the "testimony" in a
court of equity, could a litigant appeal to a
real court of law in a subsequent "trial de
17 This implies that courts of
equity may hear "disputes" presented by
"disputants" (if there are such things),
while courts of law hear "controverseys"
presented by "litigants".
18 I.e., trust-based cases are
usually heard in equity. If government is
using trusts to (usually) place us in the
status of beneficiaries, then our cases
might always be administered in courts of
19 This might mean equity courts
can reinterpret contracts according to the
"real" intentions of the parties. If so, this
power could be easily mistaken for
making ex post facto laws.
20 I've only seen one court case in
my life wherein the defendants were
identified in the case title by their
Capitalized Names rather than their
UPPER CASE NAMES. It was a
criminal trial of three judges. I'm not sure
why the Judges used their Capitalized
Names, but perhaps doing so served
notice on the face of the court documents
that they were real persons (not artificial),
possibly members of We The People (the
court's creator) and therefore not
automatically subject to the court's
21 This implies that a "charge" in
law may not be a statement so much as a
question, as in, "According to this piece
of paper (not a real man) Bill Smith says
you killed Bob Jones true or false?" If
you, a real person, answer False (not
guilty), some other real person must stand
up and contradict your answer. Real
persons are presumed innocent. That is,
real persons are presumed to have
answered truthfully. Therefore, it's up to
the opposing party to present enough
evidence to prove you are lying and
therefore guilty of the alleged crime.