Common Law versus Equity Law

Some say family courts do not have the proper authority to assign custody

A Criminal Act created by the legislature in 1913 changed the Common Law. Up until then, unmarried men had no obligation to support any child born out of wedlock and hence no right to the child (unmarried had absolute rights). Never heretofore an action under law; therefore right to trial by jury in Massachusetts is absolute. The criminal act had a sacred right to a trial by jury. But now

* women can choose to abort the child and

* the state ignores the natural right (see the Preamble of the state constitution) to the care, custody, companionship, and guardianship (CCCG) of the child that comes with the obligation of support. Only a criminal conviction of abuse, abandonment or neglect (i.e., a positive disqualifying event) could break this natural, reciprocal right.

That means I now have proof in MA that all custody interventions by the state, all divorces, issues involving children born out-of-wedlock, and alimony had the absolute right to a trial by jury, all at one time were classified as criminal acts, and none of them was never done under equity!!!!

And this change was not complete till at least the 1980s. And although no longer subject to criminal charges with the 'sacred' right to a trial by jury, the same punishments are handed out by the judiciary (e.g., restrictions on personal liberty and taking of income (i.e., property) under equity, for the enrichment of the state, various state actors, and one party (predominately female) in a custody battle.

Amended version of the Memorandum of Law should be out this week-end based on this and several more 'begetting' cases.

CONLON v. SAWIN, 37 Mass. App. Ct. 545 (1994) Section 25 of Chapter 310 of the Acts of 1986 repealed the exclusive jurisdiction of the District Courts over criminal nonsupport complaints formerly conferred by G.L.c. 273, § 12.

Under G.L.c. 209C, § 3(a), inserted by St. 1986, c. 310, § 16, the District, Boston Municipal and Probate and Family Court Departments were given concurrent civil jurisdiction over complaints to establish paternity or support.


COMMONWEALTH v. MacKENZIE, 368 Mass. 613 (1975) Our paternity statutes were enacted to deal with the problem of defaulting fathers. Commonwealth v.

Dornes, 239 Mass. 592, 594 (1921). See G.L.c. 273, § 15. There was no showing that unwed mothers presented a similar social problem. Furthermore, statutes obligating a father to support his illegitimate child eliminated a sex-based discrimination. At common law, the father of an illegitimate child had no duty to contribute to the support of his child (Commonwealth v.

Dornes, supra, at 593-594), whereas the mother did have such a duty (Commonwealth v. Hall, 322 Mass. 523, 528 [1948]). In addition, because the woman carries and bears the child, the pressures of society make it nearly impossible for her successfully to deny parenthood or to avoid responsibility for the child. The father, on the other hand, because not visibly linked to the child, often is unaware of the tie or denies it, and thus the fact of his parenthood is more difficult to prove.

For these reasons, defaulting fathers have posed a significant social problem, while defaulting mothers have not.


Two more section.  Comments please:


Parens Patriae

In In re Burrus, 136 US 586 (1890) and Barry v. Mercein, 46 US 103 (1847), the US Supreme Court stated, relying heavily on In re Barry, 42 F 113 (1844), that since the Federal Courts did not have Common Law jurisdiction; therefore, the Federal Courts, to include the Supreme Court, could not intervene in custody or as parens patriae since both of these required Common Law jurisdiction. The underlying Federal decision used Massachusetts case law to support its claim regarding Common Law jurisdiction. Burrus relied so heavily on In re Barry, supra, that In re Barry, supra, was appended to the Burrus decision.

Married women, heretofore, did not have the right to custody since they were not bound to provide support. You'll find in both Blackstone and Kent Commentaries that married women had no rights to their children, due in part to the reciprocal natural right based on the sole obligation of the father.

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.


That the Tender Years Doctrine was a re-interpretation of the immutable laws of nature within the confines of Common Law jurisdiction. See Mercein v. Barry, 25 Wend. 64 (1840) the American courts (still taking cues from English practices) did not like being bound down by strict rules of Common Law that required the court to give the child born in wedlock back to the father in every custody case, for instance In Mercein v. Barry, supra, quoting a “speech of Ld. Lyndhurst in the House of Lords July 30, 1838, on the bill in relation to the custody of infants, 44th vol. Parl. Debates, 3 series, p. 774, he says:”

"As the law now stood, the father of a child born in lawful wedlock was entitled to the entire and absolute control and custody of that child, and to exclude from any share in that control and custody the mother of that child. The mother might be the most virtuous woman that ever lived, amiable in her manners, fond and attached to her children; the father, on the other hand, might be profligate in character, brutal in manner, living in adultery, and yet would have the right, under the existing law, to the custody of the children of his marriage, to the exclusion of even access to them of his wife, their mother."

Both the English Courts and the American courts repeatedly called upon the law of nature to justify adopting the “Tender Years” doctrine, a rude and foreign alteration of the natural law, specifically in Mercein v. Barry, supra:


“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]


Custody was still a Common Law determination, just with a different immutable natural law justification.

Furthermore, In re Barry, supra, used Massachusetts case law to show that custody and parens patriae required Common Law adjudication.

Hence divorce proceedings did not, could not, were never heretofore practiced under equity nor permitted any judicial discretion. Instead, custody was decided based on immutable rules of nature, i..e., God's laws, and reciprocal natural rights. God's laws, the laws of nature, could have only been interfered by the state with if a parent did not fulfill their natural law obligations and the state had to save the child under criminal proceedings.

Since the current “Best Interest of the Child” determination requires equity jurisdiction and is not based on the immutable laws of nature nor on reciprocal natural rights, the state implements an unconstitutional scheme under color of law, color of authority in this Constitutional Republic. Instead, the “Best Interest of the Child” is a creation by the legislature and judiciary which now enriches the state through federal incentive monies.




In cases of vinculo matrimonii, one party had to either confess to the crime of adultery or a criminal trial by jury in the Court of General Sessions would adjudicate the matter, see Clarke v. Clarke, Massachusetts Archives Collection, Vol. 009, Page 221-222 (1737), Wharton v.. Wharton, Massachusetts Archives Collection, Vol. 009, Page 068 (1675) (summaries available on-line at

Furthermore, the Legislature or the Governor and his council were de facto juries. These body of men voted for or against granting a divorce; such a matter was never left to the discretion of just one person. The final step in the criminal process was to free the innocent party from any constraints of personal liberty imposed by the marriage contract, see Bigelow, supra. The guilty party was subject to criminal penalties to include jail, fines, whippings, and never being allowed to marry again; e.g., examples of what restraints on personal liberties the state could impose because of is/her unlawful action. The innocent party, through the divorce, would be free from any restraints on his/her personal liberties.


Divorce was a criminal matter in Massachusetts all the way back to the Massachusetts Body of Liberties (1641). In fact, adultery was a capital crime punishable with death.


Even after the sighing of the Constitution, divorce fell under the criminal statutes, see Barber v. Root, 10 Mass. 260 (1813) (“Regulations on the subject of marriage and divorce are rather parts of the criminal, than of the civil, code; ...”), Wilbur v. Crane, 30 Mass. 284 (1832) ("... the wife, after committing the foulest crime against her husband, [adultery] ..." ), West Cambridge v. Lexington, 18 Mass. 506 (1823), (“... procured a divorce on account of the criminal conduct [adultery] of the party with whom they had been connected in marriage.”), and Commonwealth v. Call, 38 Mass. 509 (1839) (“That the facts of which the jury have found the prisoner guilty, do not constitute the crime of adultery:”).

Only subsequent to the signing of the state Constitution did divorce become a civil matter. Since it was never heretofore a civil matter, once it became a civil dispute between two people, the right to a trial by jury is Constitutionally required per Article XV, Part the First, of the state Constitution since it was never heretofore practiced as a civil matter and the right to a trial by jury under criminal adjudication was the case over the issue of adultery or cruelity..


In cases of mensa et thoro, divorce of bed and board – a jury would determine whether the party had left for just cause, see Commonwealth v. Foster, 156 Mass. 485 (1892), (“... whether in a particular case cruelty or intoxication falling short of that will be enough, must depend on the circumstances, and the question is for the jury.”), and Pidge v. Pidge, 44 Mass. 257 (1841), (“...that where the wife leaves the husband, under such an apprehension of personal violence, as a jury shall deem to have been reasonable, ...”).


Again, Bigelow, supra, erroneously states that juries were not heretofore part of divorces; however, juries played a significant role in the criminal process of divorce. Juries were the absolute determiners of fact in divorce cases.

What Bigelow, supra, does show is that the innocent party of the divorce was seeking to be free from any and all restraints on personal liberties imposed by the marriage contract. The state could impose restraints on the personal liberties of the guilty party because he/she had committed a crime or was adjudged by a jury to have caused the other party to, with just cause – meaning violating the natural law requirements of the marriage contract, leave the marriage. This too allowed the state to impose alimony, because of criminal or inappropriate – a question of fact for the jury - behavior.