Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence
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  Article III § 2 Clause 1 (Introduction)  
"That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be (directed) only by reason and conviction, not by force or violence; and therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless, under colour of religion, any man disturb the peace, the happiness, or safety of society. And that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other." 1

Article III § 2 clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and treaties made, or which shall be made, under their Authority; ‑to all Cases affecting ambassadors, other public ministers and consuls; ‑to all cases of admiralty and maritime Jurisdiction; ‑to Controversies to which the United States shall be a Party; ‑to Controversies between two or more States; ‑between a State and Citizens of another State; 2 ‑between Citizens of different States; ‑between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

This clause pertains to the jurisdiction of the judicial branch of the general government. The jurisdictions listed are (i)cases "in Law and Equity . . . "; (ii)cases "affecting ambassadors . . . "; (iii)cases "of admiralty and maritime Jurisdiction"; (iv)controversies that involve the "United States" as a party; (v)controversies between States; (vi)controversies between a "State and Citizens of another State"; 3 (vii)controversies between citizens of different States; (viii)controversies between citizens of the same State who claim land granted by a different State; and (ix)controversies between a State or some of its citizens and a foreign State or some of the latter’s citizens. — No doubt each of these jurisdictions is important. But one subject matter jurisdiction – "Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and treaties made . . .  under their Authority" – goes to the core of the investigation’s basic jurisdictional principles, and therefore demands special attention. The other jurisdictions don’t frequently affect ordinary citizens, so we’ll not focus on them now. But cases in law and equity are the subject matter of everyday legal proceedings, and no one in this country is unaffected by them.

It’s probably safe to say that at the beginning of the 21st century, most adult Americans think they know what "Law" is, but simultaneously think that the meaning of "Equity" is a little fuzzy. It’s also probably safe to claim that the average American’s concept of "Law" in this context is wrong, and their concept of "Equity" is even fuzzier than they think. They clearly demand definition.

"By the fourteenth century, England possessed two distinct and somewhat rival court systems, known popularly as ‘law’ and ‘equity’ courts. Law courts were characterized by their development of the common law [(See common law.)], use of juries . . . , reliance on common-law pleading and the writ system, and a rigid formality in their approach to resolving legal conflicts. Equity courts adopted a more flexible approach to cases and provided for broad remedies.". 4 As we’ve indicated elsewhere, 5 law has a jurisdiction that is roughly equivalent to the jurisdiction of a jural compact, while equity is roughly equivalent to the jurisdiction of an ecclesiastical compact. If the equivalence between the jural jurisdiction and the common-law jurisdiction weren’t rough, then we would claim that the jurisdiction of the common law was exclusively over delicts, meaning that it doesn’t have jurisdiction over anything else. But this is not true. The common law sometimes had jurisdiction over subject matters that had little or nothing to do with delicts, as will be shown shortly. It’s safe to say that criminal delicts and gross delicts are the same. This means that the common law had primary jurisdiction over gross delicts, just as the jural society has primary jurisdiction over gross delicts under the global covenant. But depending on the nature of the case, a subtle delict might be tried either under equity, or under law. — The subject matter jurisdiction of equity courts was usually, but not always, contracts. But sometimes non-contractual civil actions were tried in equity. Likewise, sometimes contractual issues were tried at law.

In our analysis of the global Covenants, the distinction between the jurisdiction of the jural society and the jurisdiction of the ecclesiastical society is extremely clear. The jural society has jurisdiction over delicts of all kinds, exclusively, while the ecclesiastical society has jurisdiction over contractual disputes, exclusively. Compared to these clear distinctions, the relative boundaries between law and equity are extremely messy. The problem with this messiness is that delicts demand a global in personam jurisdiction, while contracts do not. This messiness has existed for centuries. But it has gotten worse since the 1930s. That’s because the Federal Rules of Civil Procedure adopted in 1938 presumed to blend law and equity, and thereby totally ignore the difference between global and local in personam jurisdictions that exists in Scripture. The reason this merger of law and equity is treacherous is because the total elimination of the distinction between global and local jurisdictions relegates consent to oblivion in the default application of all laws. To look at this treachery up close, we’ll look at three concepts from law and equity: (1)unconscionable contracts, (2)injunctions, and (3)unjust enrichment.


1This was a proposal to the Virginia Legislature, at the Virginia Constitutional Convention in May 1776, initially drafted by George Mason. — "Committee Draft of the Virginia Declaration of Rights", Papers of George Mason pp. 284-285 — See "The Founders’ Constitution" at the University of Chicago, URL:​founders/​documents/​v1ch1s3.html.

2Modified by the 11th Amendment, URL: ./0_C_Am_XI-XXVII.htm​#EleventhAM.

3Such "controversies" were modified by the 11th Amendment, URL: ./0_C_Am_XI-XXVII.htm​#EleventhAM.

4The Oxford Companion to the Supreme Court of the United States, p. 430, "Injunctions and Equitable Remedies", by James B. Stoneking.

5See the treatment of injunctions under Article I § 8 cl 3, URL: ./0_2_1_2_Art_I_Sec_8_Cl_3.htm​#RoughEquivalence.

copyright © 2013 Charles Raleigh Porter, III
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