The Loss of the Right to a Trial by Jury: Child Support and Divorce Cases in America

“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 Bastards 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 Bastard 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 bastardy 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 bastardly 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 partiæ 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 bastardly 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