Common Law Versus Equity

Many are now saying that family courts do not have proper legal jurisdiction to do what they do. This is because family law was common law until someone basically decided otherwise, even though it did not meet he definition of "equity". A federal suit on this basis in underway to remove powers, obviously abused, by Massachusetts family courts.


To make one liable in equity, his act must proximately have caused injury of which plaintiff complains. Irving Trust Co. v. Deutsch, 2 F.Supp.971 (1932). There is no rule in equity that "once a fiduciary always a fiduciary." Irving Trust Co. v. Deutsch, 2 F.Supp. 971 (1932).
[Emphasis added - Mark's question - how then can Equity be used in "no-fault" divorce if there is no injury?]

It is true that the separation of common law from equity jurisdiction is peculiar to Great Britain; no other of the states of the old world having adopted it. But it is equally true that in no other of the states of the old world did trial by jury constitute a part of their jurisprudence, and every practical lawyer knows that to give jurisdiction to a court of equity, or to distinguish a case of equity jurisdiction from one of common law under the British practice, the averment is indispensable that the complainant is remediless at law. When it is said that the separation of common law from equity jurisdiction is peculiar to Great Britain, it must only be understood that it is there exercised by distinct courts and under distinct forms. For, as an essential branch or exercise of judicial power, it is acknowledged to exist everywhere; nor is it possible for anyone acquainted with its nature and character, and the remedies it affords for the assertion of rights or the punishment of wrongs, to doubt that the power to exercise it, and the means of exercising it must exist some where, or the administration of justice will be embarrassed if not incomplete. To administer it through the ordinary powers of a common law court is impracticable; and hence, wherever there exists no provision in the jurisprudence of a country for its full exercise, the consequence must ever be that after the common law court have ingrafted into their practice as much as can be there assumed, the Legislature is compelled to exercise the rest; or else leave a large space for the appropriate field of judicial action unoccupied. Livingston v. Moore, 7 Pet. 469, 547-548 (1833). at law. This suit was predicated entirely upon a purely legal right. It nowhere sets up or discloses a case for equitable relief. He does not seek to set aside his contract or the charter issued in pursuance to his agreements. He does not offer to pay off any of his indebtedness, or the monies he had secured by deed of trust upon the identical property in process of foreclosure at the very time he secured the delay and extension by these new agreements. He stands strictly upon a legal alleged right to recover damages for an alleged conversion or the recovery of this property, and as he has pleaded this case, so we must consider it, for we cannot go beyond that. Shall we apply the familiar maxim here and say, "As you have bound yourself, so must you stand bound"? * * * Parties must come into court with clean hands, and in seeking equitable relief should do, offer to do, equity. Appellants sue on a strictly legal claim, sounding in damages for an alleged tort, and in the alternative for the possession of the property, and nowhere recognizes his indebtedness of offers to do equity, or indicates his willingness to discharge the same. Trott v. Plato, 244 S.W. 1085, 1087, 1089 (1922). [ Emphasis added]


Equity Acts in Personam.

The early English chancellors, in the development of the notion that equity acts on and effects merely the consciences of those against whom its aid is sought in the enforcement or protection of rights, laid down the maxim, that equity acts in personam against the parties, and not in rem upon the subject-matter, or, as it was expressed in the legal nomenclature of the day, equitas agit in personam. 10 R.C.L., Equity, § 137, p. 387 (1915).

"[E]quity acts in personam ("against the person"), while the law acts only in rem ("against the property"). Thomas Conyngton & Louis O. Bergh, Business Law, 4th ed. (The Ronald Press Company, 1949), p. 10. "One of the distinguishing features between the civil law of Rome and the common law of England is that the civil law acted personally, while the common law acts territorially." Jones v. Hines, 47 So. 739, 157 Ala.642, 15A C.J.S., Common Law, § 1.

Rights in rem are the subject-matter of the law of property, rights in personam of the law of obligations. * * * Rights in rem are the province of the law of property, rights in personam of the law of obligations. Barry Nicholas, Roman Law (Oxford Univerity Press, 1962), pp. 101, 158. ". . . Chancery acts in personam by means of the subpoena [summons], and this is its charactertic mark. * * * Throughout the several departments of jurisdiction runs the common principle that the Chancellor addresses himself directly to the conscience of the individual, acting in personam by means of the subpoena and being therefore independent of territorial limits of jurisdiction." Sir Carleton Kemp Allen, Law in the Making, 7th ed. (Oxford University Press, 1964), pp. 408, 413

Selected custody cites:

  • De Manneville v. De Manneville, 10 Ves. 51, 60 (1804) showed in England, courts of Chancery’s could not use parens patriae or their powers of equity against the "legal, natural, right of the father to have the custody of the person of his child.  Fathers had a ‘natural right’ to their children that neither the state nor mother could intervene.  Also see Rex v. De Manneville, (1804).
  • Angel v. Mclellan, 16 Mass. 28 (1819) the SJC calls on both the Common Law and “laws of nature” in determining family law issues, not equity. (“By the common law, parents are bound to maintain their children during minority…” and “This principle, which is founded in the law of nature, has received the sanction of repeated judicial decisions;”)
  • Commonwealth v. Briggs, 33 Mass. 203, (1834) which shows the Common Law being applied to natural rights with regard to the parent-child relationship.  As per De Manneville, supra, the father had a natural right to his children which the state had to enforce and only question when the reciprocal right of caring for the child was violated.
  • The King v. Greenhill, 4 Ad. & E., 624  (1836), again provides that the father has title to the custody of the children.
  • 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 permitted the mother, if not guilty of adultery, to limited custody of the children during their tender years.  A natural law argument that nature would not rip a child of tender years from its mother’s breast permitted the intrusion of the father’s natural right only if the mother was not guilty of the crime of adultery.
  • Mercein v. Barry, 25 Wend. 64 (1840) the American courts did not like being bound down by strict rules of Common Law that required the court to give the child back to the father in every case and repeatedly called upon the law of nature to justify adopting the “Tender Years” doctrine, a rude and foreign alteration of the natural law, specifically:
    • “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”
  • Custody was still a Common Law determination, just with a different natural law justification.
  • Bigelow v. Bigelow, 120 Mass. 320 (1876) shows that by violating his natural law obligations, the state can inflict punishment on a father who abandons his wife and children when the wife demands remedy.  Although used to show that the right to a jury trial does not exist, it makes this claim only "when a wife is living apart from her husband, for justifiable cause."
  • Baldwin v. Foster, 138 Mass. 449 (1885) shows that a father who is separated from his child through no fault of his own is not liable for child support and as the innocent party is entitled to custody.  Also shows a right to a jury trial over child support amounts.  Again, a Common Law right to custody and for determination of child support obligations, not equity.
  • Foss v. Hartwell, 168 Mass 66 (1897) right to trial by jury over disputed child support amounts.
  • Bucknam v. Bucknam, 176 Mass. 229 (1900), As is clearly stated in Bucknam, “Under the provisions of law prior to the adoption of the Constitution, all cases of marriage, divorce, and alimony”, NO MENTION OF CHILD SUPPORT.  It further states that awards of alimony were based on “account of the misconduct and neglect of” the guilty party, never applied to the ‘innocent party’.
  • Purington v. Jamrock, 195 Mass. 187, (1907) shows that the Common Law “Best Interest” could only be exercised by the state when the state overcame the parent’s right of property and hence the state owned the children.
  • Ex parte G.C., Jr. (In re: G.C., Jr. v. E.B. and D.B.), 1040001, Supreme Court of Alabama, 2005 Ala., stated that "Children are a gift from God. They need and deserve the love and support of both their mothers and their fathers. Parents have God-given rights concerning their children, which are and should be protected by state government.” This state, under its social compact, should protect that God given relationship, not intervene to arbitrarily punish one parent.

To many quotes from this case to pass along in this email but read about the Common Law verses Equity court's right to custody determinations.

JOHN J. COCKE v. A. B. HANNUM and Louisa his wife., 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 [**2] by Talfourd, J., In re Hakeman, 74 Eng. C. L. R. 222.

Courts of equity consult the general interests of the minor, and do not consider themselves as fettered by the legal rights of the father. They accordingly consult the interests of the child, pecuniary, social, and moral.

Courts of law, on the other hand, have felt bound to respect the legal right of the father, allowing that legal right to prevail in every case unless the child is of such tender years as to require the attention of a mother, or the father is disqualified for the custody of the child, or the child old enough to decide for itself.


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.

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