NOTES ON PAPER ARROWS
freedom-school.com/paper-arrows.pdf
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=32&invol=243
BARRON v. CITY OF BALTIMORE, 32 U.S. 243 (1833)
32 U.S. 243 (Pet.)
JOHN BARRON, survivor of JOHN CRAIG, for the use of LUKE TIERNAN, Executor of
JOHN CRAIG,
v.
The MAYOR and CITY COUNCIL OF BALTIMORE.
January Term, 1833
government of the United States, and is not applicable to the legislation of the states.
_______________________________________________________-
The question thus presented is, we think, of great importance, but not of much difficulty. The constitution
was ordained and established by the people of the United States for themselves, for their own
government, and not for the government of the individual states. Each state established a constitution for
itself, and in that constitution, provided such limitations and restrictions on the powers of its particular
government, as its judgment dictated.
The people of the United States framed such a government for the United States as they supposed best
adapted to their situation and best calculated to promote their interests. The powers they conferred on
this government were to be exercised by itself; and the limitations on power, if expressed in general terms,
are naturally, and, we think, necessarily, applicable to the government created by the instrument. They
are limitations of power granted in the instrument itself; not of distinct governments, framed by different
persons and for different purposes.
http://ussc.leopoldwilson.info/volume/32/243/32%20U.S.%20243.pdf
the right to be protected against violence
while in the lawful custody of a United States
marshal, Logan v. United States, 144 U.S. 263,
and the right to inform the United States
authorities of violation of its laws, In re
Quarles, 158 U.S. 532. [p98]
For the transcript of this call please email J & J M<olde_silas@totalusa.net>, and Jim will email
them to you when they become available.
Oct 6, 2011 Gemini Research Group Howard Griswold Law Study
http://recordings.talkshoe.com/TC-95099/TS-538736.mp3
http://www.talkshoe.com/talkshoe/web/talkCast.jsp?masterId=95099&cmd=tc
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0211_0078_ZO.html
Twining v. State (No. 10)
___
Syllabus
Opinion
[ Moody ]
Dissent
[ Harlan ]
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MOODY, J., Opinion of the Court
SUPREME COURT OF THE UNITED STATES
211 U.S. 78
Twining v. State
ERROR TO THE COURT OF ERRORS AND APPEALS OF THE STATE OF NEW
JERSEY
No. 10 Argued: March 19, 20, 1908 --- Decided: November 9, 1908
MR. JUSTICE MOODY, after making the foregoing statement, delivered the opinion
of the court.
In the view we take of the case, we do not deem it necessary to consider whether, with
respect to the Federal question, there is any difference in the situation of the two
defendants. It is assumed, in respect of each, that the jury were instructed that they
might draw an unfavorable inference against him from his failure to testify, where it
was within his power, in denial af the evidence which tended to incriminate him. The
law of the State, as declared in the case at bar, which accords with other decisions
(Parker v. State, 61 N.J.L. 308; State v. Wines, 65 N.J.L. 31; State v. Zdanowicz, 69
N.J.L. 619; State v. Banuski, 64 Atl. Rep. 994), permitted such an inference to be
drawn. The judicial act of the highest court of the [p91] State, in authoritatively
construing and enforcing its laws, is the act of the State. Ex parte Virginia, 100 U.S.
339; Scott v. McNeal, 154 U.S. 34; Chicago, Burlington & Quincy Railroad Company
v. Chicago, 166 U.S. 226. The general question, therefore, is whether such a law
violates the Fourteenth Amendment either by abridging the privileges or immunities
of citizens of the United States or by depriving persons of their life, liberty or property
without due process of law. In order to bring themselves within the protection of the
Constitution, it is incumbent on the defendants to prove two propositions: first, that
the exemption from compulsory self-incrimination is guaranteed by the Federal
Constitution against impairment by the States; and, second, if it be so guaranteed,
that the exemption was, in fact, impaired in the case at bar. The first proposition
naturally presents itself for earlier consideration. If the right here asserted is not a
Federal right, that is the end of the case. We have no authority to go further and
determine whether the state court has erred in the interpretation and enforcement of
its own laws.
The exemption from testimonial compulsion, that is, from disclosure as a witness of
evidence against oneself, forced by any form of legal process, is universal in
American law, though there may be differences as to its exact scope and limits. At the
time of the formation of the Union the principle that no person could be compelled to
be a witness against himself had become embodied in the common law, and
distinguished it from all other systems of jurisprudence. It was generally regarded
then, as now, as a privilege of great value, a protection to the innocent, though a
shelter to the guilty, and a safeguard against heedless, unfounded or tyrannical
prosecutions. Five of the original thirteen States (North Carolina, 1776;
Pennsylvania, 1776; Virginia, 1776; Massachusetts, 1780; New Hampshire, 1784)
had then guarded the principle from legislative or judicial change by including it in
constitutions or bills of rights; Maryland had provided in her constitution (1776) that
no man ought to be compelled to give evidence against [p92] himself in a common
court of law or in any other court, but in such cases as have been usually practiced in
this State or may hereafter be directed by the legislature;
and in the remainder of those States, there seems to be no doubt that it was
recognized by the courts. The privilege was not included in the Federal Constitution
as originally adopted, but was placed in one of the ten Amendments which were
recommended to the States by the first Congress, and by them adopted. Since then, all
the States of the Union have, from time to time, with varying form but uniform
meaning, included the privilege in their constitutions, except the States of New Jersey
and Iowa, and in those States it is held to be part of the existing law. State v.
Zdanowicz, supra; State v. Height, 117 Iowa, 650. It is obvious from this short
statement that it has been supposed by the States that, so far as the state courts are
concerned, the privilege had its origin in the constitutions and laws of the States, and
that persons appealing to it must look to the State for their protection. Indeed, since,
by the unvarying decisions of this court, the first ten Amendments of the Federal
Constitution are restrictive only of National action, there was nowhere else to look up
to the time of the adoption of the Fourteenth Amendment, and the State, at least until
then, might give modify or withhold the privilege at its will. The Fourteenth
Amendment withdrew from the States powers theretofore enjoyed by them to an
extent not yet fully ascertained, or rather, to speak more accurately, limited those
powers and restrained their exercise. There is no doubt of the duty of this court to
enforce the limitations and restraints whenever they exist, and there has been no
hesitation in the performance of the duty. But whenever a new limitation or restriction
is declared, it is a matter of grave import, since, to that extent, it diminishes the
authority of the State, so necessary to the perpetuity of our dual form of government,
and changes its relation to its people and to the Union. The question in the case at bar
has been twice before us, and been left undecided, as the cases were disposed of on
other grounds. Adams v. New [p93] York, 192 U.S. 585; Consolidated Rendering Co.
v. Vermont, 207 U.S. 541. The defendants contend, in the first place, that the
exemption from self-incrimination is one of the privileges and immunities of citizens of
the United States which the Fourteenth Amendment forbids the States to abridge. It
is not argued that the defendants are protected by that part of the Fifth
Amendment which provides that "no person . . . shall be compelled in any criminal
case to be a witness against himself," for it is recognized by counsel that, by a long
line of decisions, the first ten Amendments are not operative on the States. Barron v.
Baltimore, 7 Peters 243; Spies v. Illinois, 123 U.S. 131; Brown v. New Jersey, 175
U.S. 172; Barrington v. Missouri, 205 U.S. 483. But it is argued that this privilege is
one of the fundamental rights of National citizenship, placed under National
protection by the Fourteenth Amendment, and it is specifically argued that the
"privileges and immunities of citizens of the United States," protected against state
action by that Amendment, include those fundamental personal rights which were
protected against National action by the first eight Amendments; that this was the
intention of the framers of the Fourteenth Amendment, and that this part of it would
otherwise have little or no meaning and effect. These arguments are not new to this
court, and the answer to them is found in its decisions. The meaning of the phrase
"privileges and immunities of citizens of the United States," as used in the Fourteenth
Amendment, came under early consideration in the Slaughter-House Cases, 16 Wall.
36. A statute of Louisiana created a corporation and conferred upon it the exclusive
privilege, for a term of years, of establishing and maintaining within a fixed division
of the city of New Orleans stock-yards and slaughter-houses. The act provided that
others might use these facilities for a prescribed price, forbade the landing for
slaughter or the slaughtering of animals elsewhere or otherwise, and established a
system of inspection. Those persons who were driven out of independent business by
this law denied its validity in suits which came to this [p94] court by writs of error to
the Supreme Court of the State which had sustained the act. It was argued, inter alia,
that the statute abridged the privileges and immunities of the plaintiffs in error as
citizens of the United States, and the particular privilege which was alleged to be
violated was that of pursuing freely their chosen trade, business or calling. The
majority of the court were not content with expressing the opinion that the act did not,
in fact, deprive the plaintiffs in error of their right to exercise their trade (a
proposition vigorously disputed by four dissenting justices), which would have
disposed of the case, but preferred to rest the decision upon the broad ground that the
right asserted in the case was not a privilege or immunity belonging to persons by
virtue of their National citizenship, but, if existing at all, belonging to them only by
virtue of their state citizenship. The Fourteenth Amendment, it is observed by Mr.
Justice Miller, delivering the opinion of the court, removed the doubt whether there
could be a citizenship of the United States independent of citizenship of the State by
recognizing or creating and defining the former. "It is quite clear, then," he proceeds
to say (p. 74),
that there is a citizenship of the United States and a citizenship of a State, which are
distinct from each other, and which depend upon different characteristics or
circumstances in the individual.
The description of the privileges and immunities of state citizenship, given by Mr.
Justice Washington in Corfield v. Coryell, 4 Wash. C.C. 371, is then quoted, approved
and (p. 76) said to include "those rights which are fundamental," to embrace "nearly
every civil right for the establishment and protection of which organized government
is instituted," and "to be the class of rights which the state governments were created
to establish and secure." This part of the opinion then concludes with the holding that
the rights relied upon in the case are those which belong to the citizens of States as
such, and are under the sole care and protection of the state governments. The
conclusion is preceded by the important declaration that the civil rights theretofore
appertaining to citizenship of the States [p95] and under the protection of the States,
were not given the security of National protection by this clause of the Fourteenth
Amendment. The exact scope and the momentous consequence of this decision are
brought into clear light by the dissenting opinions. The view of Mr. Justice Field,
concurred in by Chief Justice Chase and Justices Swayne and Bradley, was that the
fundamental rights of citizenship, which by the opinion of the court were held to be
rights of state citizenship, protected only by the state government, became, as the
result of the Fourteenth Amendment, rights of National citizenship protected by the
National Constitution. Said Mr. Justice Field (p. 95):
The fundamental rights, privileges and immunities which belong to him as a
free man and a free citizen, now belong to him as a citizen of the United
States, and are not dependent upon his citizenship of any State. . . .
The Amendment does not attempt to confer any new privileges or immunities
upon citizens, or to enumerate or define those already existing. It assumes
that there are such privileges and immunities which belong of right to citizens
as such, and ordains that they shall not be abridged by state legislation. If this
inhibition has no reference to privileges and immunities of this character, but
only refers, as held by the majority of the court in their opinion, to such
privileges and immunities as were before its adoption specially designated in
the Constitution or necessarily implied as belonging to citizens of the United
States, it was a vain and idle enactment, which accomplished nothing, and
most unnecessarily excited Congress and the people on its passage. With
privileges and immunities thus designated or implied, no State could ever
have interfered by its laws, and no new constitutional provision was required
to inhibit such interference. The supremacy of the Constitution and laws of the
United States always controlled any state legislation of that character. But if
the Amendment refers to the natural and inalienable rights which belong to all
citizens, the inhibition has a profound significance and consequence. [p96]
In accordance with these principles, it is said by the learned justice that the
privileges and immunities of state citizenship described by Mr. Justice
Washington, and held by the majority of the court still to pertain exclusively to
state citizenship and to be protected solely by the state government, have
been guaranteed by the Fourteenth Amendment as privileges and
immunities of citizens of the United States. And see the concurring opinions of
Mr. Justice Field and Mr. Justice Bradley in Bartemeyer v. Iowa, 18 Wall. 129,
and in Butchers' Union Company v. Crescent City Company, 111 U.S. 746.
There can be no doubt, so far as the decision in the Slaughter-House
Cases has determined the question, that the civil rights sometimes described
as fundamental and inalienable, which before the war Amendments were
enjoyed by state citizenship and protected by state government, were left
untouched by this clause of the Fourteenth Amendment. Criticism of this
case has never entirely ceased, nor has it ever received universal assent by
members of this court. Undoubtedly it gave much less effect to
the Fourteenth Amendment than some of the public men active in framing it
intended, and disappointed many others. On the other hand, if the views of
the minority had prevailed, it is easy to see how far the authority
and independence of the States would have been diminished by subjecting
all their legislative and judicial acts to correction by the legislative and review
by the judicial branch of the National Government. But we need not now
inquire into the merits of the original dispute. This part, at least, of
the Slaughter-House Cases has been steadily adhered to by this court, so that
it was said of it, in a case where the same clause of the Amendment was
under consideration (Maxwell v. Dow, 176 U.S. 581, 591),
The opinion upon the matters actually involved and maintained by the
judgment in the case has never been doubted or overruled by any judgment of
this court.
The distinction between National and state citizenship and their respective
privileges there drawn has come to be firmly established. And so it was held
that the right of peaceable assembly [p97] for a lawful purpose (it not
appearing that the purpose had any reference to the National Government)
was not a right secured by the Constitution of the United States, although it
was said that the right existed before the adoption of the Constitution of the
United States, and that "it is and always has been one of the attributes of
citizenship under a free government." United States v. Cruikshank, 92 U.S.
542, 551. And see Hodges v. United States, 203 U.S. 1. In each case,
the Slaughter-House Cases were cited by the court, and in the latter case, the
rights described by Mr. Justice Washington were again treated as rights of
state citizenship under state protection. If then it be assumed, without deciding
the point, that an exemption from compulsory self-incrimination is what is
described as a fundamental right belonging to all who live under a free
government, and incapable of impairment by legislation or judicial decision, it
is, so far as the States are concerned, a fundamental right inherent in state
citizenship, and is a privilege or immunity of that citizenship only. Privileges
and immunities of citizens of the United States, on the other hand, are only
such as arise out of the nature and essential character of the National
Government, or are specifically granted or secured to all citizens or persons
by the Constitution of the United States. Slaughter-House Cases, supra, p.
79; In re Kemmler, 136 U.S. 436, 448; Duncan v. Missouri, 152 U.S. 377, 382.
Thus, among the rights and privileges of National citizenship
recognized by this court are the right to pass freely from State
to State, Crandall v. Nevada, 6 Wall. 35; the right to petition
Congress for a redress of grievances, United States v.
Cruikshank, supra; the right to vote for National officers, Ex
parte Yarbrough, 110 U.S. 651; Wiley v. Sinkler, 179 U.S. 58;
the right to enter the public lands, United States v.
Waddell, 112 U.S. 76; the right to be protected against violence
while in the lawful custody of a United States marshal, Logan
v. United States, 144 U.S. 263, and the right to inform the
United States authorities of violation of its laws, In re
Quarles, 158 U.S. 532. [p98]
RE: ******Breach of Fiduciary Duty, Breach of Trust ****
Most of these cases were indictments against individuals for conspiracies to deprive
persons of rights secured by the Constitution of the United States, and met with a
different fate in this court from the indictments in United States v. Cruikshank and
Hodges v. United States, because the rights in the latter cases were rights of state, and
not of National, citizenship.
But assuming it to be true that the exemption from self-incrimination is not, as a
fundamental right of National citizenship, included in the privileges and immunities of
citizens of the United States, counsel insist that, as a right specifically granted or
secured by the Federal Constitution, it is included in them. This view is based upon
the contention which must now be examined, that the safeguards of personal rights
which are enumerated in the first eight Articles of amendment to the Federal
Constitution, sometimes called the Federal Bill of Rights, though they were by those
Amendments originally secured only against National action, are among the
privileges and immunities of citizens of the United States, which this clause of
the Fourteenth Amendment protects against state action. This view has been, at
different times, expressed by justices of this court (Mr. Justice Field in O'Niel v.
Vermont, 144 U.S. 323, 361; Mr. Justice Harlan in the same case, 370, and in
Maxwell v. Dow, 176 U.S. 606, 617), and was undoubtedly that entertained by some
of those who framed the Amendment. It is, however, not profitable to examine the
weighty arguments in its favor, for the question is no longer open in this court. The
right of trial by jury in civil cases, guaranteed by the Seventh Amendment (Walker v.
Sauvinet, 92 U.S. 90), and the right to bear arms guaranteed by the Second
Amendment (Presser v. Illinois, 116 U.S. 252), have been distinctly held not to be
privileges and immunities of citizens of the United States guaranteed by
the Fourteenth Amendmentagainst abridgment by the State, and, in effect, the same
decision was made in respect of the guarantee against prosecution, except by
indictment of a grand jury, contained in the Fifth Amendment (Hurtado v.
California, 110 U.S. 516), [p99] and in respect of the right to be confronted with
witnesses, contained in the Sixth Amendment. West v. Louisiana, 194 U.S. 258. In
Maxwell v. Dow, supra, where the plaintiff in error had been convicted in a state
court of a felony upon an information, and by a jury of eight persons, it was held that
the indictment, made indispensable by the Fifth Amendment, and the trial by jury
guaranteed by the Sixth Amendment, were not privileges and immunities of citizens
of the United States, as those words were used in the Fourteenth Amendment. The
discussion in that case ought not to be repeated. All the arguments for the other view
were considered and answered, the authorities were examined and analyzed, and the
decision rested upon the ground that this clause of the Fourteenth Amendment did
not forbid the States to abridge the personal rights enumerated in the first eight
Amendments, because those rights were not within the meaning of the clause
"privileges and immunities of citizens of the United States." If it be possible to render
the principle which governed the decision more clear, it is done so by the dissent of
Mr. Justice Harlan. We conclude, therefore, that the exemption from compulsory self-
incrimination is not a privilege or immunity of National citizenship guaranteed by this
clause of the Fourteenth Amendment against abridgment by the States.
The defendants, however, do not stop here. They appeal to another clause of
the Fourteenth Amendment, and insist that the self-incrimination, which they
allege the instruction to the jury compelled, was a denial of due process of law. This
contention requires separate consideration, for it is possible that some of the personal
rights safeguarded by the first eight Amendments against National action may also be
safeguarded against state action, because a denial of them would be a denial of due
process of law. Chicago, Burlington & Quincy Railroad v. Chicago, 166 U.S. 226. If
this is so, it is not because those rights are enumerated in the first eight Amendments,
but because they are of such a nature that they are included in the conception of due
process of law. Few [p100] phrases of the law are so elusive of exact apprehension as
this.
Doubtless the difficulties of ascertaining its
connotation have been increased in American
jurisprudence, where it has been embodied in
constitutions and put to new uses as a limit on
legislative power.
This court has always declined to give a
comprehensive definition of it, and has
preferred that its full meaning should be
gradually ascertained by the process of
inclusion and exclusion in the course of the
decisions of cases as they arise. There are
certain general principles well settled,
however, which narrow the field of discussion
and may serve as helps to correct conclusions.
These principles grow out of the proposition,
universally accepted by American courts on the
authority of Coke, that the words "due process
of law" are equivalent in meaning to the words
"law of the land," contained in that chapter of
Magna Carta, which provides that
no freeman shall be taken, or imprisoned, or
disseised, or outlawed, or exiled, or any wise
destroyed; nor shall we go upon him, nor send
upon him, but by the lawful judgment of his
peers or by the law of the land.
Murray v. Hoboken Land Co., 18 How.
272; http://supreme.justia.com/us/59/272/case.html
Davidson v. New Orleans, 96 U.S. 97;
http://supreme.justia.com/us/96/97/case.html
Jones v. Robbins, 8 Gray, 329; Cooley, Const.Lim. (7th ed.), 500; McGehee, Due
Process of Law, 16. From the consideration of the meaning of the words in the light of
their historical origin, this court has drawn the following conclusions:
First. What is due process of law may be ascertained by an examination of those
settled usages and modes of proceedings existing in the common and statute law of
England before the emigration of our ancestors, and shown not to have been
unsuited to their civil and political condition by having been acted on by them after
the settlement of this country. This test was adopted by the court, speaking through
Mr. Justice Curtis, in Murray v. Hoboken Land Co., 18 How. 272, 280 (approved in
Hallinger v. Davis, 146 U.S. 314, 320; Holden v. Hardy, 169 U.S. 366, 390, but see
Lowe v. Kansas, 163 U.S. 81, 85). Of course, the part of the Constitution
then [p101] before the court was the Fifth Amendment. If any different meaning of
the same words, as they are used in the Fourteenth Amendment, can be conceived,
none has yet appeared in judicial decision. "A process of law," said Mr. Justice
Matthews, commenting on this statement of Mr. Justice Curtis,
which is not otherwise forbidden, must be taken to be due process of law, if it can
show the sanction of settled usage both in England and this country.
Hurtado v. California, 110 U.S. 516, 528.
Second. It does not follow, however, that a procedure settled in English law at the
time of the emigration, and brought to this country and practiced by our ancestors, is
an essential element of due process of law. If that were so, the procedure of the first
half of the seventeenth century would be fastened upon the American jurisprudence
like a straightjacket, only to be unloosed by constitutional amendment. That, said Mr.
Justice Matthews, in the same case, p. 529, "would be to deny every quality of the law
but its age, and to render it incapable of progress or improvement." Holden v.
Hardy, 169 U.S. 366, 388; Brown v. New Jersey, 175 U.S. 172, 175.
Third. But, consistently with the requirements of due process, no change in ancient
procedure can be made which disregards those fundamental principles, to be
ascertained from time to time by judicial action, which have relation to process of law
and protect the citizen in his private right, and guard him against the arbitrary action
of government. This idea has been many times expressed in differing words by this
court, and it seems well to cite some expressions of it. The words due process of law
were intended to secure the individual from the arbitrary exercise of the powers of
government, unrestrained by the established principles of private rights and
distributive justice.
Bank of Columbia v. Okely, 4 Wh. 235, 244 (approved in Hurtado v. California, 110
U.S. 516, 527; Leeper v. Texas, 139 U.S. 462, 468; Scott v. McNeal, 154 U.S. 34, 45).
This court has never attempted to define [p102] with precision the words "due process
of law." . . . It is sufficient to say that there are certain immutable principles of
justice which inhere in the very idea of free government which no member of the
Union may disregard.
Holden v. Hardy, 169 U.S. 366, 389.
The same words refer to that law of the land in each State, which derives its
authority from the inherent and reserved powers of the State, exerted within the
limits of those fundamental principles of liberty and justice which lie at the base of
all our civil and political institutions.
In re Kemmler, 136 U.S. 436, 448.
The limit of the full control which the State has in the proceedings of its courts,
both in civil and criminal cases, is subject only to the qualification that such
procedure must not work a denial of fundamental rights or conflict with specific
and applicable provisions of the Federal Constitution.
West v. Louisiana, 194 U.S. 258, 263.
The question under consideration may first be tested by the application of these
settled doctrines of this court. If the statement of Mr. Justice Curtis, as elucidated in
Hurtado v. California, is to be taken literally, that alone might almost be decisive.
For nothing is more certain, in point of historical fact, than that the practice of
compulsory self-incrimination in the courts and elsewhere existed for four hundred
years after the granting of Magna Carta, continued throughout the reign of Charles
I (though then beginning to be seriously questioned), gained at least some foothold
among the early colonists of this country, and was not entirely omitted at trials in
England until the eighteenth century. Wigmore on Evidence, § 2250 (see, for the
Colonies, note 108); Hallam's Constitutional History of England, ch. VIII, 2
Widdleton's American ed., 37 (describing the criminal jurisdiction of the Court of
Star Chamber); Bentham's Rationale of Judicial Evidence, book IX, ch. III, § IV.
Sir James Fitzjames Stephen, in his studies of the reports of English trials for crime,
has thrown much light on the existence of the practice of questioning persons accused
of [p103] crime and its gradual decay. He considers, first, a group of trials which
occurred between 1554 and 1637. Speaking of the trial before the jury, he says:
The prisoner, in nearly every instance, asked, as a favor, that he might not be
overpowered by the eloquence of counsel denouncing him in a set speech, but, in
consideration of the weakness of his memory, might be allowed to answer separately
to the different matters which might be alleged against him. This was usually granted,
and the result was that the trial became a series of excited altercations between the
prisoner and the different counsel opposed to him. Every statement of counsel
operated as a question to the prisoner, and indeed they were constantly thrown into
the form of questions, the prisoner either admitting or denying or explaining what was
alleged against him. The result was that, during the period in question, the
examination of the prisoner, which is at present scrupulously and I think even
pedantically avoided, was the very essence of the trial, and his answers regulated the
production of the evidence; the whole trial, in fact, was a long argument between the
prisoner and counsel for the Crown, in which they questioned each other and
grappled with each other's arguments with the utmost eagerness and closeness of
reasoning.
Stephen, 1 Hist. of the Crim.Law 325.
This description of the questioning of the accused and the meeting of contending
arguments finds curious confirmation in the report of the trial, in 1637, of Ann
Hutchinson (which resulted in banishment) for holding and encouraging certain
theological views which were not approved by the majority of the early Massachusetts
rulers. 1 Hart's American History Told by Contemporaries 382. The trial was
presided over and the examination very largely conducted by Governor Winthrop,
who had been for some years before his emigration an active lawyer and admitted to
the Inner Temple. An examination of the report of this trial will show that he was not
aware of any privilege against self-incrimination or conscious of [p104] any duty to
respect it. Stephen says of the trials between 1640 and 1660 (Ib., 358):
In some cases, the prisoner was questioned, but never to any greater extent than that
which it is practically impossible to avoid when a man has to defend himself without
counsel. When so questioned, the prisoners usually refused to answer.
He further says (Ib., 440): "Soon after the Revolution of 1688, the practice of
questioning the prisoner died out." But committing magistrates were authorized to
take the examination of persons suspected, which, if not under oath, was admissible
against him on his trial, until, by the 11 & 12 Vict., ch. 2, the prisoner was given the
option whether he would speak, and warned that what he said might be used against
him. But even now, there seems to be a very well recognized and important exception
in English law to the rule that no person can be compelled to furnish evidence against
himself. A practice in bankruptcy has existed from ancient times, and still exists,
which would not be constitutionally possible under our national bankruptcy law or
under the insolvency law of any State whose constitution contains the customary
prohibition of compulsory self-incrimination. The Bankruptcy Act of 1 James I, ch. 15,
§ 7 (1603), authorized the commissioners of bankruptcy to compel, by commitment if
necessary, the bankrupt to submit to an examination touching his estate and dealings.
The provision was continued in the subsequent acts, and in 1820, in Ex parte Cossens,
Buck, Bkey. Cases, 531, 540, Lord Eldon, in the course of a discussion of the right to
examine a bankrupt, held that he could be compelled to disclose his violations of law
in respect of his trade and estate, and, while recognizing the general principle of
English law that no one could be compelled to incriminate himself, said: "I have
always understood the proposition to admit of a qualification with respect to the
jurisdiction in bankruptcy." The act of 6 Geo. IV, ch. 16, § 36 (1825), authorized the
compulsory examination of the bankrupt "touching all matters relating either to his
trade, dealings, or estate, or which may tend to disclose any [p105] secret grant,
conveyance or concealment of his lands." The act of 12 & 13 Vict., ch. 106, § 117
(1849), contained the same provision. Construing these acts, it was held that the
bankrupt must answer, though his answer might furnish evidence of his crime, and
even if an indictment were pending against him, and that the evidence thus compelled
was admissible on his trial for crime. Re Heath, 2 D. & Ch. 214; Re Smith, 2 D. & Ch.
230, 235; Reg. v. Scott, Dearsley & Bell, 47; Reg. v. Cross, 7 Cox C.C. 226; Reg. v.
Widdop, L.R. 2 C.C. R. 3. The act of 46 & 47 Vict., ch. 52, § 17 (1883), which we
understand to be (with some amendment not material here) the present law, passed
after the decisions cited, expressly provided that the examination shall be taken in
writing and signed by the debtor, "and may thereafter be used in evidence against
him." It has since been held that other evidence of his testimony than that written and
signed by him may be used. Reg. v. Erdheim (1896), 2 Q.B.D. 260, and see Rex v. Pike
(1902), 1 K.B. 552. [*] It is to be observed that not until 1883 did Parliament, which
has an unlimited legislative power, expressly provide that the evidence compelled
from the bankrupt could be used in proof of an indictment against him. The rule had
been previously firmly established by judicial decisions upon statutes simply
authorizing a compulsory examination. If the rule had been thought to be in conflict
with "the law of the land" of Magna Carta, "a sacred text, the nearest approach to an
irrepealable, `fundamental statute' that England has ever had," 1 Pollock & Maitland,
152, it is inconceivable that such a consideration would not have received some
attention from counsel and judges. We think it is manifest, from this review of the
origin, growth, extent and limits of the exemption from compulsory self-incrimination
in the English law, that it is not regarded as a part of the law of the land of Magna
Carta or the due process of law, which [p106] has been deemed an equivalent
expression, but, on the contrary, is regarded as separate from and independent of due
process. It came into existence not as an essential part of due process, but as a wise
and beneficent rule of evidence developed in the course of judicial decision. This is a
potent argument when it is remembered that the phrase was borrowed from English
law, and that to that law we must look at least for its primary meaning.
But without repudiating or questioning the test proposed by Mr. Justice Curtis for the
court, or rejecting the inference drawn from English law, we prefer to rest our
decision on broader grounds, and inquire whether the exemption from selfincrimination is of such a nature that it must be included in the conception of due
process. Is it a fundamental principle of liberty and justice which inheres in the very
idea of free government and is the inalienable right of a citizen of such a government?
If it is, and if it is of a nature that pertains to process of law, this court has declared it
to be essential to due process of law. In approaching such a question, it must not be
forgotten that, in a free representative government, nothing is more fundamental than
the right of the people through their appointed servants to govern themselves in
accordance with their own will, except so far as they have restrained themselves by
constitutional limits specifically established, and that, in our peculiar dual form of
government, nothing is more fundamental than the full power of the State to order its
own affairs and govern its own people, except so far as the Federal Constitution
expressly or by fair implication has withdrawn that power. The power of the people of
the States to make and alter their laws at pleasure is the greatest security for liberty
and justice, this court has said in Hurtado v. California, supra. We are not invested
with the jurisdiction to pass upon the expediency, wisdom or justice of the laws of the
States as declared by their courts, but only to determine their conformity with the
Federal Constitution and the paramount laws enacted pursuant to it. Under the guise
of interpreting the Constitution we must [p107] take care that we do not import into
the discussion our own personal views of what would be wise, just and fitting rules of
government to be adopted by a free people and confound them with constitutional
limitations. The question before us is the meaning of a constitutional provision which
forbids the States to deny to any person due process of law. In the decision of this
question, we have the authority to take into account only those fundamental rights
which are expressed in that provision, not the rights fundamental in citizenship, state
or National, for they are secured otherwise, but the rights fundamental in due process,
and therefore an essential part of it. We have to consider whether the right is so
fundamental in due process that a refusal of the right is a denial of due process. One
aid to the solution of the question is to inquire how the right was rated during the time
when the meaning of due process was in a formative state and before it was
incorporated in American constitutional law. Did those who then were formulating
and insisting upon the rights of the people entertain the view that the right was so
fundamental that there could be no due process without it? It has already appeared
that, prior to the formation of the American Constitutions, in which the exemption
from compulsory self-incrimination was specifically secured, separately,
independently, and side by side with the requirement of due process, the doctrine was
formed, as other doctrines of the law of evidence have been formed, by the course of
decision in the courts covering a long period of time. Searching further, we find
nothing to show that it was then thought to be other than a just and useful principle of
law. None of the great instruments in which we are accustomed to look for the
declaration of the fundamental rights made reference to it. The privilege was not
dreamed of for hundreds of years after Magna Carta (1215), and could not have been
implied in the "law of the land" there secured. The Petition of Right (1629), though it
insists upon the right secured by Magna Carta to be condemned only by the law of the
land, and sets forth by way of grievance divers violations of [p108] it, is silent upon
the practice of compulsory self-incrimination, though it was then a matter of common
occurrence in all the courts of the realm. The Bill of Rights of the first year of the
reign of William and Mary (1689) is likewise silent, though the practice of questioning
the prisoner at his trial had not then ceased. The negative argument which arises out
of the omission of all reference to any exemption from compulsory self-incrimination
in these three great declarations of English liberty (though it is not supposed to
amount to a demonstration) is supported by the positive argument that the English
Courts and Parliaments, as we have seen, have dealt with the exemption as they
would have dealt with any other rule of evidence, apparently without a thought that
the question was affected by the law of the land of Magna Carta, or the due process of
law which is its equivalent.
We pass by the meager records of the early colonial time, so far as they have come to
our attention, as affording light too uncertain for guidance. See Wigmore, § 2250,
note 108; 2 Hennings St. at Large, 422 (Va. 1677); 1 Winthrop's History of New
England, 47, Provincial Act, 4 W. & M. Ancient Charters, Massachusetts, 214.
Though it is worthy of note that neither the declaration of rights of the Stamp Act
Congress (1765) nor the declaration of rights of the Continental Congress (1774) nor
the ordinance for the government of the Northwestern Territory included the privilege
in their enumeration of fundamental rights.
But the history of the incorporation of the privilege in an amendment to the National
Constitution is full of significance in this connection. Five States, Delaware,
Pennsylvania, New Jersey, Georgia and Connecticut, ratified the Constitution without
proposing amendments. Massachusetts then followed with a ratification, accompanied
by a recommendation of nine amendments, none of which referred to the privilege;
Maryland with a ratification without proposing amendments; South Carolina with a
ratification accompanied by a recommendation of four amendments, none of which
referred to the privilege, [p109] and New Hampshire with a ratification accompanied
by a recommendation of twelve amendments, none of which referred to the privilege.
The nine States requisite to put the Constitution in operation ratified it without a
suggestion of incorporating this privilege. Virginia was the tenth State to ratify,
proposing, by separate resolution, an elaborate Bill of Rights under twenty heads, and
in addition twenty amendments to the body of the Constitution. Among the rights
enumerated as "essential and inalienable" is that no man "can be compelled to give
evidence against himself," and "no freeman ought to be deprived of his life, liberty or
property but by the law of the land." New York ratified with a proposal of numerous
amendments and a declaration of rights which the convention declared could not be
violated and were consistent with the Constitution. One of these rights was that
No person ought to be taken, imprisoned or deprived of his freehold, or be exiled or
deprived of his privileges, franchises, life, liberty or property but by due process of
law;
and another was that, "in all criminal prosecutions, the accused . . . should not be
compelled to give evidence against himself." North Carolina and Rhode Island were
the last to ratify, each proposing a large number of amendments, including the
provision that no man "can be compelled to give evidence against himself;" and North
Carolina, that "no freeman ought to be . . . deprived of his life, liberty or property but
by the law of the land;" and Rhode Island, that "no freeman ought to be . . . deprived
of his life, liberty or property but by the trial by jury, or by the law of the land."
Thus, it appears that four only of the thirteen original States insisted upon
incorporating the privilege in the Constitution, and they separately and
simultaneously with the requirement of due process of law, and that three States
proposing amendments were silent upon this subject. It is worthy of note that two of
these four States did not incorporate the privilege in their own constitutions, where it
would have had a much wider field of usefulness, until many years after. New
York [p110] in 1821 and Rhode Island in 1842 (its first constitution). This survey does
not tend to show that it was then in this country the universal or even general belief
that the privilege ranked among the fundamental and inalienable rights of mankind,
and, what is more important here, it affirmatively shows that the privilege was not
conceived to be inherent in due process of law, but, on the other hand, a right
separate, independent and outside of due process. Congress, in submitting the
amendments to the several States, treated the two rights as exclusive of each other.
Such also has been the view of the States in framing their own constitutions, for in
every case, except in New Jersey and Iowa, where the due process clause or its
equivalent is included, it has been thought necessary to include separately the
privilege clause. Nor have we been referred to any decision of a state court save one
(State v. Height, 117 Iowa, 650), where the exemption has been held to be required by
due process of law. The inference is irresistible that it has been the opinion of
constitution makers that the privilege, if fundamental in any sense, is not fundamental
in due process of law, nor an essential part of it. We believe that this opinion is
proved to have been correct by every historical test by which the meaning of the
phrase can be tried.
The decisions of this court, though they are silent on the precise question before us,
ought to be searched to discover if they present any analogies which are helpful in its
decision. The essential elements of due process of law, already established by them,
are singularly few, though of wide application and deep significance. We are not here
concerned with the effect of due process in restraining substantive laws, as, for
example, that which forbids the taking of private property for public use without
compensation. We need notice now only those cases which deal with the principles
which must be observed in the trial of criminal and civil causes. Due process requires
that the court which assumes to determine the rights of parties shall have jurisdiction,
Pennoyer v. Neff, 95 U.S. 714, 733; Scott v. McNeal, 154 U.S. 34; Old Wayne Life
Association [p111] v. McDonough, 204 U.S. 8, and that there shall be notice and
opportunity for hearing given the parties, Hovey v. Elliott, 167 U.S. 409; Roller v.
Holly, 176 U.S. 398, and see Londoner v. Denver, 210 U.S. 373. Subject to these two
fundamental conditions, which seem to be universally prescribed in all systems of law
established by civilized countries, this court has up to this time sustained all state
laws, statutory or judicially declared, regulating procedure, evidence and methods of
trial, and held them to be consistent with due process of law. Walker v. Sauvinet, 92
U.S. 90; Re Converse, 137 U.S. 624; Caldwell v. Texas, 137 U.S. 692; Leeper v.
Texas, 139 U.S. 462; Hallinger v. Davis, 146 U.S. 314; McNulty v. California, 149
U.S. 645; McKane v. Durston, 153 U.S. 684; Iowa Central v. Iowa, 160 U.S. 389;
Lowe v. Kansas, 163 U.S. 81; Allen v. Georgia, 166 U.S. 138; Hodgson v.
Vermont, 168 U.S. 262; Brown v. New Jersey, 175 U.S. 172; Bollin v. Nebraska, 176
U.S. 83; Maxwell v. Dow, 176 U.S. 581; Simon v. Craft, 182 U.S. 427; West v.
Louisiana, 194 U.S. 258; Marvin v. Trout, 199 U.S. 212; Rogers v. Peck, 199 U.S.
425; Howard v. Kentucky, 200 U.S. 164; Rawlins v. Georgia, 201 U.S. 638; Felts v.
Murphy, 201 U.S. 123.
Among the most notable of these decisions are those sustaining the denial of jury trial
both in civil and criminal cases, the substitution of informations for indictments by a
grand jury, the enactment that the possession of policy slips raises a presumption of
illegality, and the admission of the deposition of an absent witness in a criminal case.
The cases proceed upon the theory that, given a court of justice which has jurisdiction
and acts not arbitrarily, but in conformity with a general law, upon evidence, and
after inquiry made with notice to the parties affected and opportunity to be heard,
then all the requirements of due process, so far as it relates to procedure in court and
methods of trial and character and effect of evidence, are complied with. Thus, it was
said in Iowa Central v. Iowa, 160 U.S. 393:
But it is clear that the Fourteenth Amendment in no way undertakes to control
the [p112] power of the State to determine by what process legal rights may be
asserted or legal obligations be enforced, provided the method of procedure adopted
gives reasonable notice and affords fair opportunity to be heard before the issues are
decided;
and in Louisville & Nashville Railroad Company v. Schmidt, 177 U.S. 230, 236:
It is no longer open to contention that the due process clause of the Fourteenth
Amendment to the Constitution of the United States does not control mere forms of
procedure in state courts or regulate practice therein. All its requirements are
complied with, provided in the proceedings which are claimed not to have been due
process of law the person condemned has had sufficient notice and adequate
opportunity has been afforded him to defend;
and in Hooker v. Los Angeles, 188 U.S. 314, 318:
The Fourteenth Amendment does not control the power of a State to determine the
form of procedure by which legal rights may be ascertained, if the method adopted
gives reasonable notice and affords a fair opportunity to be heard;
and in Rogers v. Peck, 199 U.S. 435:
Due process of law, guaranteed by the Fourteenth Amendment, does not require the
State to adopt a particular form of procedure, so long as it appears that the accused
has had sufficient notice of the accusation and an adequate opportunity to defend
himself in the prosecution.
It is impossible to reconcile the reasoning of these cases and the rule which governed
their decision with the theory that an exemption from compulsory self-incrimination is
included in the conception of due process of law. Indeed, the reasoning for including
indictment by a grand jury and trial by a petit jury in that conception, which has been
rejected by this court in Hurtado v. California and Maxwell v. Dow, was historically
and in principle much stronger. Clearly appreciating this, Mr. Justice Harlan, in his
dissent in each of these cases, pointed out that the inexorable logic of the reasoning of
the court was to allow the States, so far as the Federal Constitution was concerned, to
compel any person to be a witness against himself. In Missouri v. Lewis, 101 U.S. 22,
Mr. Justice Bradley, speaking [p113] for the whole court, said, in effect, that
the Fourteenth Amendment would not prevent a State from adopting or continuing
the civil law instead of the common law. This dictum has been approved and made an
essential part of the reasoning of the decision in Holden v. Hardy, 169 U.S. 387, 389,
and Maxwell v. Dow, 176 U.S. 598. The statement excludes the possibility that the
privilege is essential to due process, for it hardly need be said that the interrogation
of the accused at his trial is the practice in the civil law.
Even if the historical meaning of due process of law and the decisions of this court did
not exclude the privilege from it, it would be going far to rate it as an immutable
principle of justice which is the inalienable possession of every citizen of a free
government. Salutary as the principle may seem to the great majority, it cannot be
ranked with the right to hearing before condemnation, the immunity from arbitrary
power not acting by general laws, and the inviolability of private property. The
wisdom of the exemption has never been universally assented to since the days of
Bentham; many doubt it today, and it is best defended not as an unchangeable
principle of universal justice, but as a law proved by experience to be expedient. See
Wigmore, § 2251. It has no place in the jurisprudence of civilized and free countries
outside the domain of the common law, and it is nowhere observed among our own
people in the search for truth outside the administration of the law. It should, must
and will be rigidly observed where it is secured by specific constitutional safeguards,
but there is nothing in it which gives it a sanctity above and before constitutions
themselves. Much might be said in favor of the view that the privilege was guaranteed
against state impairment as a privilege and immunity of National citizenship, but, as
has been shown, the decisions of this court have foreclosed that view. There seems to
be no reason whatever, however, for straining the meaning of due process of law to
include this privilege within it, because, perhaps, we may think it of great value. The
States had guarded the privilege [p114] to the satisfaction of their own people up to
the adoption of the Fourteenth Amendment. No reason is perceived why they cannot
continue to do so. The power of their people ought not to be fettered, their sense of
responsibility lessened, and their capacity for sober and restrained self-government
weakened by forced construction of the Federal Constitution. If the people of New
Jersey are not content with the law as declared in repeated decisions of their courts,
the remedy is in their own hands. They may, if they choose, alter it by legislation, as
the people of Maine did when the courts of that State made the same ruling. State v.
Bartlett, 55 Maine 200; State v.Lawrence, 57 Maine 574; State v. Cleaves, 59 Maine
298; State v. Banks, 78 Maine 490, 492; Rev.Stat. ch. 135, § 19.
We have assumed only for the purpose of discussion that what was done in the case at
bar was an infringement of the privilege against self-incrimination. We do not intend,
however, to lend any countenance to the truth of that assumption. The courts of New
Jersey, in adopting the rule of law which is complained of here, have deemed it
consistent with the privilege itself, and not a denial of it. The reasoning by which this
view is supported will be found in the cases cited from New Jersey and Maine, and see
Reg. v. Rhodes (1899), 1 Q.B. 77; Ex parte Kops (1894), A.C. 650. The authorities
upon the question are in conflict. We do not pass upon the conflict, because, for the
reasons given, we think that the exemption from compulsory self-incrimination in the
courts of the States is not secured by any part of the Federal Constitution.
Judgment affirmed.
* I In certain offenses, which may be generally described as embezzlements, the
evidence compelled from a bankrupt cannot be used against him. 24 & 25 Vict., ch.
96, § 85; 53 & 54 Vict., ch. 71, § 27.
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The People of the State of New York, Respondent, v. Edward Ferguson,
Appellant. ... is impaneled and sworn, jeopardy attaches (e.g., Crist v Bretz, 437 U.S. 28
, 35; ...Enright v Siedlecki, 59 N.Y.2d 195 , 199; see, United States v Dinitz,
424 US, ....Anderson v United States, 481 A.2d 1299 [DC Ct App]; State v Fedette,
462 ...
10.
GRAY v. BENSON | Leagle.com
www.leagle.com/decision/19781727443FSupp1284_11528
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United States District Court, D. Kansas. .... In that case the Eastern District of New
York held that (1) whenever the ..... Enright, (on reargument), 437 F.Supp.
http://famguardian.org/TaxFreedom/Forms/PolAction/SecTreas.htm
FORMS: 2.16 LETTER TO THE SECRETARY OF THE TREASURY
RIGHT Click here for the Word 97 version of this document
The message below was written by one of our readers, and was intended to be sent to the United
States Secretary of the Treasury. It established legal proof of your status you can use in a court
of law. It also plants a fire under the tail of the Secretary to refute your findings.
<<ADDRESS>>
<<CITY>>, <<STATE>> <<ZIP>>
<<DATE>>
PAUL O’NEIL
SECRETARY OF TREASURY
1500 PENNSYLVANIA AVENUE NORTH WEST
WASHINGTON, D.C. (20220)
Dear Secretary O’Neil,
To the Internal Revenue Service (IRS) agents, officers, and computers keeping records on <<YOUR NAME>>
(ref.no. <<SSN/TIN>>). Your records are in error, the undersigned is a NONRESIDENT ALIEN with respect to
the "United States" as those terms are defined in 26 U.S.C. §7701(a)(9) and (a)(10) and 26 C.F.R §31.3121(e) and
has never had income “effectively connected to a trade or business” within the "United States".
I COME NOW to file this Memorandum to inform you of my discoveries and demand the IRS correct the errant
records contained within your systems. Below are the specific conclusions I have reached and what I would like for
you to do:
MY CITIZENSHIP STATUS
1. The issues as to whether there are different meanings for the term "United States", and whether there are three
different "United States" operating within the same geographical area, and one "United States" operating outside
the Constitution over its own territory (in which it has citizens belonging to said "United States"), were settled in
1901 by the Supreme Court in the cases of De Lima v. Bidwell, 182 U.S. 1 and Downes v. Bidwell, 182 U.S. 244
(1901). In Downes supra, Justice Harlan dissented as follows:
“The idea prevails with some -- indeed, it found expression in arguments at the bar -- that
we have in this country substantially or practically two national governments; one, to
be maintained under the Constitution, with all its
restrictions; the other to be maintained by Congress outside and independently of that
instrument, by exercising such powers as other nations of the earth are accustomed to exercise.”
[Downes supra, page 380, emphasis added]
“It will be an evil day for American liberty if the theory of a government outside of the
supreme law of the land finds lodgment in our constitutional jurisprudence. No higher duty
rests upon this court than to exert its full authority
to prevent all violation of the principles of the Constitution.”
[Downes supra, page 382, emphasis added]
2. This theory of a government operating outside the Constitution over its own territory, with citizens of the
"United States" belonging thereto under Article 4, Section 3, Clause 2 (4:3:2) of the Constitution, was further
confirmed in 1922 by the Supreme Court in Balzac v. Porto Rico, 258 U.S. 298, wherein that Court affirmed, at
page 305, that the Constitution does not apply outside the limits of the 50 States of the Union,
quoting Downes supra and De Lima supra; that, under, the "United States" was given exclusive power over the
territories and the citizens of the "United States" residing therein.
3. The issue arose again in 1944, in the case of Hooven & Allison Co. v. Evatt, Tax Commissioner of Ohio, 324 U.S.
652, wherein the U.S. Supreme Court stated as follows at page 671-672:
The term "United States" may be used in any one of several senses. [1] It may be merely the
name of a sovereign occupying the position analogous to that of other sovereigns in the family
of nations. [2] It may designate the territory over which the sovereignty of the United
States extends, [3] or it may be the collective name of the states which are united by and
under the Constitution.[1]
[brackets, numbers and emphasis added]
Quoting Fourteen Diamond Rings v. United States, 183 U.S. 176; cf. De Lima v. Bidwell, 182 U.S. 1; Dooley v.
United States, 182 U.S. 222; Faber v. United States, 221 U.S. 649; cf. Huus v. New York & P.R.S.S. Co., 182
U.S. 392; Gonzales v. Williams, 192 U.S. 1; West India Oil Co. v. Domenech, 311 U.S. 20.
The Court, in Hooven supra, indicated that this was the last time it would address the issue; it would just be
judicially noticed.
4. The issue arose in Brushaber v. Union Pacific Railroad Company, 240 U.S. 1. In that case, the high Court
affirmed that the "United States" could levy a tax on the income of a nonresident alien when that income
derived from sources WITHIN the "United States" i.e. (its territorial jurisdiction).
5. Based upon the decision in Brushaber supra, the Commissioner of Internal Revenue, with the approval of the
Secretary of the Treasury, promulgated the Court's decision as Treasury Decision 2313 (see EXHIBIT #1). T.D.
2313 declared that Frank R. Brushaber was a NONRESIDENT ALIEN with respect to the "United States". T.D.
2313 also declared that the Union Pacific Railroad Company was a DOMESTIC CORPORATION with respect to
the "United States" (i.e. its territorial jurisdiction).
6. The Complaint filed by Mr. Brushaber shows that he was a nonresident of the "United States" (D.C.), residing
instead in the State of New York, in the borough of Brooklyn, and a Citizen thereof, with his principal place of
business in the borough of Manhattan. He owned stocks and bonds issued by the Union Pacific Railroad Company,
upon which a cash dividend was declared to him by said company, a domestic corporation of the "United
States". Union Pacific was chartered by an Act of Congress for the territory of the federal state of Utah, in order
to build a railroad and telegraph line and other purposes. It is a matter of public record that the Union Pacific
Railroad Company was a domestic "United States" corporation, of the federal state of Utah, residing in the District
of Columbia, with its principal place of business in Manhattan, New York. It was created by an Act of the
"United States" Senate and House of Representatives (under their exclusive authority, granted by the Constitution
for the United States at 1:8:17) on July 1, 1862 by the 37th Congress, 2nd Session, as recorded in the
Statutes At Large, December 5, 1859 to March 3, 1863 at Chapter CXX, page 489. Considering the foregoing
evidence of the diversity of citizenship of the two parties, it is clear that Mr. Brushaber
was a "nonresident alien with respect to the United States", who had income from sources within said "United
States". His income derived from the Union Pacific Railroad Company, a corporate citizen created by Congress
and residing WITHIN the "United States" (i.e. the District of Columbia). (see EXIBIT #2)
[A] domestic corporation is an artificial person whose residence or domicile is fixed by law
within the territorial jurisdiction of the state which created it. That residence
cannot be changed temporarily or permanently by the migrations of its officers or agents to
other jurisdictions. So long as it is an existing corporation its residence, citizenship, domicile,
or place of abode is within the state which created it. It cannot reside or have its domicile
elsewhere; neither can it in legal contemplation be absent from the state of its creation.
[Fowler v. Chillingworth, 113 So. 667, 669 (1927)] [emphasis added]
7. Related cases are Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796): Hylton was a Congressman; his
salary was income from sources WITHIN the "United States". See also Springer v. U.S., 102 U.S.
586 (1881): Springer, a Virginia Citizen, operated a carriage business in the District of Columbia.
8. The first paragraph of the Secretary's Treasury Decision (EXHIBIT #1) is quoted here as follows:
(T.D. 2313)
Income Tax
Taxability of interest from bonds and dividends on stock of domestic[2] corporations owned by
nonresident aliens, and the liabilities of nonresident aliens under Section 2 of the act of October
3, 1913.
To collectors of internal revenue:
Under the decision of the Supreme Court of the United States in the case of Brushaber v.
Union Pacific Railway [sic] Co., decided January 24, 1916, it is hereby held that
income accruing to nonresident aliens in the form of interest from the
bonds and dividends on the stock of domestic corporations is subject to the income tax
imposed by the act of October 3, 1913.
[footnote and emphasis added]
9. The above decision by the Secretary of the Treasury determined that a tax on income derived from rents, sales of
property, wages, professions, or a trade or business WITHIN the "United States", was applicable to such "income"
when payable to a nonresident alien, i.e. a Union State Citizen.
10. All income tax provisions under 26 U.S.C., subtitle A (an excise tax on "income"), are divided between
sources WITHIN and WITHOUT the "United States". They are imposed upon the worldwide income of
citizens of the "United States" and aliens residing therein, and upon nonresident aliens (of all kinds) receiving
income from sources WITHIN said "United States" and WITHIN the other parts of the American Empire which
fall WITHIN the exclusive legislative jurisdiction of the Congress of the "United States", pursuant to 1:8:17 and
4:3:2.
CONSTITUTIONAL AUTHORITY GRANTED TO CONGRESS
11. The Constitution gives to Congress the power to act for the 50 Union States as an international representative
and to do so without (outside) the boundaries of each of those 50 States. These powers are expressed in Article 1,
Section 8, Clauses 1 thru 16 (1:8:1-16).
12. The Constitution gave to Congress a seat of government, known as the District of Columbia. In time, Congress
created a government for the "District", and this "District" became a federal state by
definition. However, this "state" (D.C.) is not "united" by or under the Constitution for the United States of
America. D.C. has never joined the Union.
13. Furthermore, the Constitution granted to Congress the authority to govern the "District", just as the Legislatures
of each of the several States of the Union govern their States within the geographical limits of those States. As
Congress began to legislate for the "District", under authority of 1:8:17 and 1:8:18, the difference between the
citizens of the "District" and the Citizens[3] of the Union became apparent, in that the citizens of the "District" did
not possess the right of suffrage or other rights (see Balzac supra, De Lima supra,
and Downes supra) and therefore were not recognized as a part of the Sovereignty of "We the People". The
Constitution for the United States of America provided no means of taxing these "District" citizens of the
"United States". A method of forming municipal governments and of exercising taxing power over these citizens
within the territories of the "United States" was decided by The Insular Cases (see the Bidwell cases, supra). "The
Constitution was made for States, not territories," wrote Daniel Webster. "... [T]he Constitution of the
United States as such does not extend beyond the limits of the States which are united by and under it ....", wrote
author Langdell in "The Status of Our New Territories", 12 Harvard Law Review 365, 371.
14. The distinction between "citizens of the United States" and "Union State Citizens" has
been fully recognized by the Congress and the Courts as follows:
We have in our political system a government of the United States and a government of each of the
several States. Each one of these governments is distinct from the others, and ach has citizens of its own who owe
it allegiance, and whose rights, within its jurisdiction, it must protect. [United States v. Cruikshank, 92 U.S. 588,
590 (1875)]
The Federal Government is a "state". [Enright v. U.S., D.C.N.Y., 437 F.Supp. 580, 581]
Foreign State. A foreign country or nation. The several United States are considered "foreign"
to each other except as regards their relations as common members of the Union. [Black's Law
Dictionary, Sixth Edition, page 1407]
15. Congress identifies these citizens of the "District" as "individuals" or citizens who reside in the "United States"
and who are subject to the direct control of Congress in its local taxing and other municipal laws.
16. In De Lima supra, the U.S. Attorney defined federal taxes with the following words, at page 99-108:
Federal taxation is either general or local. Local taxes are levied under Article 1, Section 8,
Paragraph 1. Local taxes are for the support of territorial or non-state governments.
Congress imposed a federal excise tax on the "income" of these citizens or "individuals" at 26
U.S.C., Section 1, as a local tax:
Such taxes are not for the common welfare of the United States, but are to defray the expense of
the government of the locality, and in the dual position which Congress occupies in our
system, as Federal Government and as local government for the territory of the United States
not ceded into States of the Union, it has the power to tax for local purposes.
[e Lima supra, page 99]
Hence the term "from sources WITHIN the United States".
General taxes are of two kinds, direct; and what, for brevity may be
called indirect, meaning thereby duties, imposts, and excises. Direct taxes must be laid on all
the States alike
[De Lima supra, page 100]
17. A Citizen of one of the 50 States, residing therein, is a nonresident alien with respect to this local taxing power
of Congress (see Brushaber supra). Outside the geographical area of the "United States" [as that term is defined
at 26 C.F.R. 1.911-2(g)], Congress lacks power to support the local government by imposing a tax on the incomes
of nonresident aliens (ones outside the locality, i.e. Citizens of the 50 States) UNLESS they reside within that
jurisdiction by residence, or UNLESS the source of their income is situated WITHIN that geographical
territory. Any income arising from sources therein must be withheld at the source by the "withholding agent" (see
T.D. 2313, 26 C.F.R. 871, and 26 U.S.C. 1461), unless the recipient is engaged in a trade or business therein. For
a full discussion of this local taxation, see pages 55 and 99-108 of De Lima supra. For confirmation of the
domestic municipal jurisdiction of the "United States", see Downes supra at pages 383-388.
18. Congress has control of these "individuals", whether they "reside" WITHIN the
"United States" (i.e. territorial states) or WITHOUT the "United States". These "individuals" (i.e. born within
the jurisdiction of Congress, such as a citizen born in the District of Columbia or in one of the territories), whether
they reside within "United States" territories, without the "United States" in the "foreign countries" [as defined at
26 C.F.R. 1.911-2(h)], or abroad, are still liable for the federal income tax, unless they abrogate that citizenship by
naturalization or otherwise. (See 26 C.F.R. 871-5, -6 and -12 and 1.932-1). However, at 26 U.S.C. 911 (a)(1),
Congress has exempted from taxation all "foreign earned income" of these citizen individuals, except for Puerto
Ricans (see 26 C.F.R. 1.932-1(b), IRS Form 2555).
19. Another type of nonresident aliens are those citizens of contiguous countries such as Mexico, Canada and other
foreign countries. These foreigners, residents or nonresidents (as the case may be), are subject to the tax on
incomes received from any place in the American Empire, i.e. in these united States and in the "United States". A
Union State Citizen, previously nonresident, may lose his nonresident status by residing within the territorial
sovereignty of the "United States" for 183 days (26 C.F.R. 1.871-7(d)(2)) and thereby becomes subject to the local
tax on incomes received from sources within and without the "United States" (i.e. worldwide income).
THE INCOME TAX IS A LOCAL TAX IMPOSED WITHIN THE "UNITED STATES".
THE UNDERSIGNED IS A STRANGER TO THIS LOCALITY.
THE DEFINITIONS IN 26 THE INTERNAL REVENUE CODE.
20. The definitions used in 26 U.S.C. are very clear in defining "State" and "United States". In every definition
that uses the word "include", only the words that follow are defining the term. For example:
21. 26 U.S.C. 3121(e)(1) State. --The term "State" includes the District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, and American Samoa.
22. 26 U.S.C. 7701(a)(9) United States. -- The term "United States" when used in a geographical sense
includes only the States and the District of Columbia.
23. The federal government has used these definitions correctly, but IRS agents seem to assume that they mean the
50 States of the Union (America) when they look at the word "States" in 26 U.S.C. 7701(a)(9). You cannot use the
common, everyday meaning of the terms "United States" or "State" when talking about the federal tax laws and
many other laws that are enacted under the local, municipal authority of the "United States" government.
24. Another example is the Omnibus Acts at 86th Congress, 1st Session, Volume 73, 1959, and 2nd Session,
Volume 74, 1960, Public Laws 86-70 and 86-624. These Acts reveal the crafty way in which the federal
government uses correct English and how Congress changes the meanings of words by using its own
definitions. For example, all the United States Code definitions had to be changed to allow Alaska and Hawaii to
join the Union of States united under the Constitution. When Alaska joined the Union, Congress added a new
definition of "States of the United States". This definition had never appeared before, to wit:
Sec. 48. Whenever the phrase "continental United States" is used in any law of the United States
enacted after the date of enactment of this Act, it shall mean the 49 States on the North
American Continent and the District of Columbia, unless otherwise expressly provided. [cf.
1 USCS 1, "Other provisions:"]
[emphasis added]
Where is it otherwise expressly provided? Answer:
Sec. 22. (a) Section 2202 of the Internal Revenue Code of 1954 (relating to
missionaries in foreign service), and sections 3121(e)(1), 3306(j), 4221(d)(4), and 4233(b) of
such code (each relating to a special definition of "State") are amended by striking out "Alaska,".
(b) Section 4262(c)(1) of the Internal Revenue Code of 1954 (definition of "continental
United States") is amended to read as follows: "(1) Continental United States. -- The term
'continental United States' means the District of Columbia and the States other than Alaska."
When Hawaii was admitted to the Union, Congress again changed the above definition, to wit:
Sec. 18. (a) Section 4262(c)(1) of the Internal Revenue Code of 1954 (relating to the definition of "continental
United States" for purposes of the tax on transportation of persons) is amended to read as follows: "(1)
Continental United States. -- The term 'continental United States' means the District of Columbia and the States
other than Alaska and Hawaii."
WHAT ARE THE STATES OTHER THAN ALASKA AND HAWAII?
25. They certainly cannot be the other 48 States united by and under the Constitution, because Alaska and Hawaii
just joined them, RIGHT? The same definitions apply to the Social Security Acts. So, what is left? Answer: the
District of Columbia, Puerto Rico, Guam, Virgin Islands, etc. These are the States OF (i.e. belonging to) the
"United States" and which are under its sovereignty. Do not confuse this term with states of the Union, because the
word "of" means "belonging to" in this context.
26. Congress can also change the definition of "United States" for two sentences and then revert back to the
definition it used before these two sentences. This is proven in Public Law 86-624, page 414, under School
Operation Assistance in Federally Affected Areas, section (d)(2):
The fourth sentence of such subsection is amended by striking out "in the
continental United States (including Alaska)" and inserting in lieu thereof "(other than Puerto
Rico, Wake Island, Guam, or the Virgin Islands)" and by striking out "continental
United States" in clause (ii) of such sentence and inserting in lieu thereof "United States (which
for purposes of this sentence and the next sentence means the fifty States and the District of
Columbia)". The fifth sentence of such subsection is amended by striking out "continental"
before "United States" each time it appears therein and by striking out "(including Alaska)".
27. This one section, all by itself, contains all the evidence you need, by words of construction, to prove that the
term "United States" on either side of these sentences did not mean the 50 States united by and under the
Constitution. If that is not conclusive to you, then see the following:
26 C.F.R. 31.3121(e)-1 State, United States, and citizen.
(a) When used in the regulations in this subpart, the term "State" includes [in its restrictive form]
the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Territories
of Alaska and Hawaii before their admission as States, and (when used with respect to services
performed after 1960) Guam and American Samoa.
(b) When used in the regulations in this subpart, the term "United States", when used in a
geographical sense, means the several states, (including the Territories of Alaska and Hawaii
before their admission as States), the District of Columbia, the Commonwealth of Puerto
Rico, and the Virgin Islands. When used in the regulations in this subpart with respect to
services performed after 1960, the term "United States" also includes
[in its expansive form] Guam and American Samoa when the term is used in a geographical
sense. The term "citizen of the United States" includes [in its restrictive form] a citizen of the
Commonwealth of Puerto Rico or the Virgin Islands, and, effective January 1, 1961, a citizen of
Guam or American Samoa.
[emphasis added]
In paragraph (a), Alaska and Hawaii only fit the definition of "State" before joining the Union. That means the
definition of "State" was never meant to be the 48 now 50 States of the Union unless distinctly expressed. If
paragraph (b) confuses you, the following is submitted:
28. The word "geographical" was never used in tax law until Alaska and Hawaii joined the Union, and it is not
defined in the Internal Revenue Code. So, we must use the definition found in the Standard Random House
Dictionary:
ge.o.graph.i.cal 1. of or pertaining to geography 2.
of or pertaining to the natural features, population, industries, etc., of a region or regions
29. Were you born in the "United States"? The preposition "in" shows that the "United States" in this question is
a place, a geographical place named "United States". It is singular, even though it ends in "s". It also can be plural
when referring to the Union States which are places which exist by agreement.
Every human in a nation is a natural Citizen of a place called a nation, if he was born in that nation. Those same
people must be naturalized (born again) if they want to become a citizen of another nation. Original citizenship
exists because of places, not agreements. This is jus soli, the law of the place of one's birth (see Black's Law
Dictionary, Sixth Edition).
30. Here are two questions, your own answers to which will solve the dilemma. In a geographical sense, where is
the State of Texas located on the continent? In a geographical sense, here is the "United States" (Congress) located
on the continent?
31. Now, since typewriters were purchased from the areas that just joined the Union, namely Alaska and Hawaii,
according to Title 1, Congress had to use a term that is NOT used in the Internal Revenue Code, in order to buy the
same typewriters from the same geographical area:
Sec. 45. Title I of the Independent Offices Appropriation Act, 1960, is amended by striking out
the words "for the purchase within the continental limits of the United States of any typewriting
machines" and inserting in lieu thereof "for the purchase within the STATES OF THE UNION
AND THE DISTRICT OF COLUMBIA OF ANY TYPEWRITING MACHINES".
[emphasis added]
And, for declarations made under the penalties of perjury, the statute at 28 U.S.C. 1746 separately defines
declarations made WITHIN and WITHOUT the "United States" as follows:
If executed WITHOUT the United States: I declare ... under the laws of the United States of
America that the foregoing is true and correct.
If executed WITHIN the United States, its territories, possessions,
or commonwealths: I declare ... that the foregoing is true and correct.
added]
[emphasis
The latter clause above is the penalty clause that is found on IRS Form 1040 and similar IRS forms. And, 28 U.S.C.
1603(a)(3) states as follows:
(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d)
of this title….
Section 1332(d). The word "States", as used in this section, includes the Territories, the District
of Columbia, and the Commonwealth of Puerto Rico.
EXAMPLES OF THE TWO DEFINITIONS OF THE TERM "United States" IN 26 U.S.C.
32. 26 U.S.C. Subtitle F, 7701(a)(9):
(9) United States. -- The term "United States" when used in a
geographical sense includes only the States and the District of Columbia.
33. 26 U.S.C. Subtitle D, section 4612(a)(4)(A):
(A) In general. -- The term "United States" means the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, any possession of the United States, the Commonwealth of
the Northern Mariana Islands, and the Trust Territory of the Pacific
Islands.
[emphasis added]
34. The Supreme Court stated in Hepburn & Dundas v. Ellsey, 6 U.S. 445, 2 Cranch 445, 2 L.Ed 332, that the
District of Columbia is not a "State" within the meaning of the Constitution. Therefore, it is apparent that the
meaning of the term "States" in the first definition above can only mean the territories and possessions belonging to
the "United States", because of the specific mention of the District of Columbia and the specific absence of the 50
States (inclusio unius est exclusio alterius). The District of Columbia is not a "State" within the meaning of the
Constitution (see Hepburn supra). Therefore, the 50 States are specifically excluded from this first definition of the
term "United States".
35. Congress has no problem naming the "50 States" when it is legislating for them, so, in the second definition of
the term "United States" above, Congress expressly mentions them, and there is no misunderstanding. If a statute in
26 U.S.C. does not have a special "word of art" definition for the term "United States", then the First Definition of
the term "United States" is always used (see above) because of the general nature of that term as defined by
Congress.
36. When citizens or residents of the first "United States" are without the geographical area of this first "United
States", their "compensation for personal services actually rendered" is defined as "foreign earned income" in 26
U.S.C., Section 911(b) and 911(d)(2), as follows:
911(b) Foreign Earned Income. -- ...
(d)(2) Earned Income. -(A) In general. -- The term "earned income" means wages, salaries, or professional fees, and
other amounts received as compensation for personal services actually rendered, but does not
include that part of the compensation derived by the taxpayer for personal services rendered by
him to a corporation which represents a distribution of earnings or profits rather than a
reasonable allowance as compensation for the personal services actually rendered.
37. A citizen or resident of the first "United States" does not pay a tax on his "compensation for personal services
actually rendered" while residing outside of the first "United States", because Congress has exempted all such
compensation from taxation under 26 U.S.C., Section 911(a)(1), which reads as follows:
911(a) Exclusion from Gross Income. -- ... [T]here shall be excluded from the
gross income of such individual, and exempt from taxation ... (1) the foreign earned income of
such individual.
38. When residing without (outside) this "United States", the citizen or resident of this "United States" pays no tax
on "foreign earned income", but is required to file a return, claiming the exemption (see IRS Form 2555).
39. 26 C.F.R., Section 871-13(c) allows this citizen to abandon his citizenship or residence in the "United States"
by residing elsewhere.
40. 26 C.F.R., Section 1.911-2(g) defines the term "United States" as follows:
(g) United States. The term "United States" when used in a geographical sense includes any
territory under the sovereignty of the United States. It includes the states[4], [Puerto Rico,
Guam, Mariana Islands, etc.] the District of Columbia, the possessions and territories of the
United States, the territorial waters of the United States, the air space over the United States,
and the seabed and subsoil of those submarine areas which are adjacent to the territorial waters
of the United States and over which the United States has exclusive rights, in accordance with
international law...
None of the 50 united States comes under the sovereignty of the "United States", and subsection (h) defines the 50
States united by the Constitution as "foreign countries":
(h) Foreign country. The term "foreign country" when used in a geographical sense includes
any territory under the sovereignty of a government other than that of the United States. [26
C.F.R. 1.911-2(h)]
All of the 50 States are foreign with respect to each other and are under the sovereignty of their respective
Legislatures, except where a power has been expressly delegated to Congress. The Citizens of each Union State are
foreigners and aliens with respect to another Union State, unless they establish a residence therein under the laws of
that Union State. Otherwise, they are nonresident aliens with respect to all the other Union States.
41. The regulations at 26 C.F.R., Section 1.1-1(a) state, in pertinent part:
(a) General Rule. (1) Section 1 of the Code imposes an income tax on the income of
every individual who is a citizen or resident of the United States and, to the extent provided by
Section 871(b) or 877(b), on the income of a nonresident alien individual.
26 U.S.C., Section 1 imposes a tax on "taxable income" as follows, in pertinent part:
There is hereby imposed on the taxable income of ... every married individual ... who makes
a single return jointly with his spouse under section 6013 ....
42. The regulations promulgated to explain 26 U.S.C., Section 1 are found in 26 C.F.R. Section 1.1-1, and state in
pertinent part:
(a) General Rule. (1) Section 1 of the Code imposes an income tax on the income
of every individual who is a citizen or resident of the United States and, to the extent provided
by Section 871(b) or 877(b), on the income of a nonresident alien individual.
Please note that the term "taxable income" is not used as such in the above statute because the "income" of those
classes of individuals mentioned is taxable as "taxable income".
Section 1.871 Classification and manner of taxing alien Individuals:
(a) Classes of aliens. For purposes of the income tax, alien individuals are divided generally
into two classes, namely, resident aliens and nonresident aliens. ...
(b) Classes of nonresident aliens. -(1) In general, For purposes of the income tax, nonresident alien individuals are divided into
the following three classes:
(i) Nonresident alien individuals who at no time during the taxable year are engaged in a trade
or business in the United States,
(ii) Nonresident alien individuals who at any time during the taxable year are, or are deemed
under Section 1.871-9 to be, engaged in a trade or business in the United States, and
(iii) NOT APPLICABLE (concerns residents of Puerto Rico)
43. 26 C.F.R., Section 871-13 states as follows:
(a) In general. (1) An individual who is a citizen or resident of the United States at the beginning of the taxable
year but a nonresident alien at the end of the taxable year, or a nonresident alien at the beginning of the taxable year
but a citizen or resident of the United States at the end of the taxable year, is taxable for such year as though his
taxable year were comprised of two separate periods, one consisting of the time during which he is a citizen or
resident of the United States and the other consisting of the time during which he is not a citizen or resident of the
United States.
NONRESIDENT ALIEN
44. The federal income tax is a local tax for the "United States" to support local government and, in order to
become liable to this tax, a State Citizen must be a resident therein (i.e. a resident alien), or receive income from
sources therein, or be engaged in a trade or business therein.
45. In 26 U.S.C., Section 7701(b)(1)(A) & (B), Congress defined the statutory difference between
"resident alien" and "nonresident alien" as follows:
(b) Definitions of Resident Alien and Nonresident Alien. -(1) In general. -- For purposes of this title ...
(A) Resident Alien. -- An alien individual shall be treated as a resident of the United States
with respect to any calendar year if (and only if) such individual meets the requirements of clause
(i), (ii), or (iii):
(i) Lawfully admitted for permanent residence. – Such individual is a lawful permanent resident
of the United States at any time during such calendar year.
(ii) Substantial presence. -- Such individual meets the substantial presence test of paragraph (3).
(iii) First year election. -- Such individual makes the election provided in subparagraph (4).
(B) Nonresident Alien. -- An individual is a nonresident alien if such individual is neither a
citizen of the United States nor a resident of the United States [within the meaning of
subparagraph (A)].
46. The undersigned is not a "resident" (as that term is defined in the above statutes) nor citizen of this "United
States". The undersigned is a nonresident alien as that term is defined in subsection (B), and has the same status as
the Plaintiff in Brushaber supra.
INDIVIDUALS REQUIRED TO MAKE RETURNS OF INCOME
47. The following individuals are required to make returns of income:
26 C.F.R., Section 1.6012-1. Individuals required to make returns of income.
(a) Individual citizen or resident. -(1) In general. ... an income tax return must be filed by every individual ... if such individual is
...
(i) A citizen of the United States, whether residing at home or abroad,
(ii) A resident of the United States even though not a citizen thereof, or
(iii) An alien bona fide resident of Puerto Rico during the entire taxable year.
48. The undersigned (clearly) is not defined in the above statutes, but is defined in the following statute as one who
is not required to make a return.
49. 26 C.F.R., Section 1.6013-1 states:
(b) Nonresident Alien. A joint return shall not be made if either the husband or wife at any time
during the taxable year is a nonresident alien.
The undersigned is nonresident alien with respect to the "United States", with no income derived from sources
within the "United States".
50. 26 C.F.R., Section 871-7 states, in pertinent part, as follows:
Except as otherwise provided in Section 1.871-12, a nonresident alien individual to whom this
section applies is not subject to the tax imposed by section 1 or section 1201(b) [5] but, pursuant
to the provision of section 871(a), is liable to a flat tax of 30 percent upon the aggregate of the
amounts determined under paragraphs (b), (c), and (d) of this section which are received during
the taxable year from sources within the United States.
[emphasis added]
51. Please note 26 C.F.R., Section 1.871-4(b), Proof of residence of aliens, which establishes a key legal
presumption:
(b) Nonresidence presumed. An alien by reason of this alienage, is presumed to be a
nonresident alien.
52. Further facts are illustrated by the definition of "withholding agent" at 26 U.S.C., Section 7701(a)(16):
Withholding agent. -- The term "withholding agent" means any person required to deduct and
withhold any tax under the provisions of section 1441, 1442, 1443, or 1461.
53. 26 U.S.C., Section 1441 refers to nonresident aliens who receive income from sources within the "United
States", as set forth in Section 871 (a)(1). These sections do not apply to the undersigned. The undersigned, has
not had taxable income to present, and I do not foresee any taxable income in my future.
54. Your attention is invited to 26 C.F.R., Section 31.3401(a)(6)-1(b), which states as follows:
Remuneration for services performed outside the United States. Remuneration paid to a
nonresident alien individual ... for services performed outside the United States is excepted from
wages and hence is NOT SUBJECT TO WITHHOLDING.
[emphasis added]
55. As a rule, Military Retirement Pay of a nonresident alien individual is exempted from the income tax at 26
C.F.R., Section 31.3401(a)-1(b)(1)(ii), with the following exception:
Where such retirement pay or disability annuity ... is paid to a nonresident alien individual,
withholding is required only in the case of such amounts paid to a nonresident alien individual
who is a resident of Puerto Rico.
and at 26 C.F.R., Section 935-1(a)(3):
[F]or special rules for determining the residence for tax purposes of individuals under military
or naval orders, see section 514 of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 App.
U.S.C. 574. The residence of an individual, and, therefore, the jurisdiction with which he is
required to file an income tax return under paragraph (b) of this section, may change from year
to year.
Section 574 (1) of The Soldiers' and Sailors' Relief Act states that:
For the purposes of taxation in respect of the personal property, income, or gross income of any
such person by any State, Territory, possession, or political subdivision of any of the foregoing,
or the District of Columbia, of which such person is not a resident or in which he is not
domiciled ... personal property shall not be deemed to be located or present in or to have a situs
for taxation in such State, Territory, possession or political subdivision, or district. [emphasis
added]
55. When the undersigned received the initial correspondence, a copy of exhibit #4 was filed with the District
Director in Kansas City, Missouri. No rebuttal has been received. The time for a rebuttal has elapsed. (see exibit
#4)
If there is anything confusing to the readers of this documentary evidence, please do not try to explain the content of
the dissembled income tax rules and regulations to Me.
CONCLUSION
The undersigned is in no way subjected to any derivative liability. The procedures set forth in 26 C.F.R. do not
authorize the Secretary or his delegate to manufacture income and tax it where a Person is without the taxable
class. 26 C.F.R., Section 871 is unclouded in that, where there is no income from sources within the
"United States" by a nonresident alien, the choice is delegated to that Person by Congress as to whether a return is
to be filed or not (see 26 C.F.R. 1.871-8). Where the Secretary determines the existence of taxable income when
there has been no return, he should sign the substitute return and assume the responsibility for the determination as
required by 26 U.S.C. 6020 (b)(1). Treasury Decision 2313 explains that the withholding agent is responsible for
withholding the tax from sources within the "United States", for filing a Form 1040NR and for paying over the tax
withheld from said nonresident alien. (See Treasury Decision 2313 and 26 C.F.R. 1.1461-3). Therefore, no taxable
income has existed, therefore, no penalties or interest should accrue or apply to the undersigned.
The fact that the undersigned was not aware of the above information in the earlier years of life and reported the
"earned income" from labor in the foreign States of the Union as a local tax of the "United States", does not change
my status as a Citizen of the Republic of Union States. Nor does it change the status from nonresident alien to an
"individual" defined in 26C.F.R., Section 1.1-1. Nor does it justify the Secretary's actions taken when he has been
repeatedly informed by the "PATRIOTS" of their true status. The Secretary is required to know the law he is
administering, and to do so with justice and equity within the parameters set forth by Congress. Arbitrary actions
are discouraged by the Executive, the Congress and the Courts. The undersigned can find no Act, Law or Statute
that requires policing the domestic Citizens that file incorrect forms with the Internal Revenue Service that
implicate a taxable income. It is also not my job to educate the "IRS".
The employees of the "IRS" should be informed of the tax laws as they actually exist, not misinformed to
defraud WE THE PEOPLE of the 50 States of the Union. The bill for my time spent over the last 18 years, trying
to decipher the IRS rules and regulations is as follows; At $125 per hour. About 43,159 hours are billable. The
stress placed on myself and my parents over this phony scheme, threatening letters, and propaganda spread
throughout the media and directed to the undersigned and my parents is another $3,000,000 you can add to my
remuneration. The employees of the IRS did everything imaginable to conceal the truth that has been explained by
this document, and the FAMILY GAURDIAN WEB SITE.
If you think the amount above is exorbitant, think about all the good people of OUR great Nations that turn over
hard earned non-taxable income to the IRS in error.
Please, have a letter of apology sent to my parents signed by
the Secretary of the Treasury along with $2,000,000 for the undue stress caused by their son seeking the truth about
the income tax fraud perpetuated continually throughout their lives.
If there is some reason I have had taxable income in the past that I am not aware of, Please, inform Me
immediately with the applicable regulations pertinent to a natural Sovereign Citizen of the Union States. If there is
an error in this document please inform me immediately. If there is no error in this document, promptly release the
Notice of Federal tax liens on the property at 92 Lemans Court, Lake St. Louis, Missouri. Return the $8,126 (with
interest and penalties it should come to about $25,000) that was stolen from my account in 1994/5. Correct the
errant records contained in your systems.
And please: leave Me alone!
Please instead use as the target of your illegal acts of avaricious extortion some other ignorant product of the
deficient American public education that you helped implement (Dept. of Education) who is too stupid to know that
you don’t have jurisdiction over him either.
If the IRS does somehow negate any of this document, please remember, the income tax laws are void due to the
VOID FOR VAGUENESS DOCTORINE.
For more evidence please see http://famguardian.org/Subjects/Taxes/taxes.htm. If you need help correcting your
errant records, feel free to seek my opinion as to how I want records on this Sovereign Natural National Citizen to
read. Who, after all, is better to ask? Should you wish to dispute any of the contents of this letter, please first
provide a signed, notarized response to the questions at:
http://famguardian.org/TaxFreedom/Forms/Discovery/Deposition/Deposition.htm
You have 15 days to find errors in this document that would negate the intent of this document and provide your
written, signed, notarized rebuttal to the above questions. Otherwise, your lack of response constitutes a legal
admission of the facts and conclusions described herein. Be sure to sign any rebuttal, per 28 U.S.C. 1746(1).
I declare under penalty of perjury, under the laws of the United States of America, that the foregoing is true and
correct, to the best of my knowledge and belief, per 28 U.S.C. 1746(1).
Executed on this _____day of _________________,________.
Constitutionally Submitted,
All Rights Reserved Without Prejudice U.C.C. 1-207
___________________________________
<<YOURNAME>>
<<YOUR ADDRESS>>
<<CITY>> , <<STATE>> Republic
United States of America
Telephone <<TELEPHONE>>
NOTARY AND PROOF OF SERVICE
STATE OF _____________ )
COUNTY OF ___________ )
On __________________________ before me ___________________personally appeared
______________________ personally known to me (proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument, and acknowledged to me that he executed same in his
authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the
person acted, executed the instrument.
I do hereby certify that I have served _______________________________________________(name of agency or
person served) with a true copy of the within document (circle one) (personally)/(by Certified Mail with Return
Receipt Requested), from/at _______________________________________________________________ (city and
state mail was sent from).
Witness my hand and official seal.
Signature of Notary:_______________________________________
Certified Mail #:______________________________________
[1] See Langdell, "The Status of our New Territories," 12 arvard Law Review 365, 371; see also Thayer,
"Our New Possessions," 12 Harvard Law Review 464; Thayer, "The Insular Tariff Cases in the Supreme
Court," 15 Harvard Law Review 164; Littlefield, "The Insular Cases," 15 Harvard Law Review 169, 281.
[2] "Domestic" in the "United States" statutes means inside D.C., the possessions, territories, and enclaves
of the "United States", i.e. federal states.
[3] Please note that the U.S. Constitution always denoted "Citizen" and "Person" in capital letters until the 14th
Amendment, wherein citizen and person were not capitalized.
[4] This term "state" evidently does not embrace one of the 50 States (where I am a free inhabitant), united by
the Constitution, because they are separate governments or foreign states with respect to the "United States" (i.e.
D.C., its territories, possessions and enclaves).
[5] Capital gains tax.
Copyright Family Guardian Fellowship
Last revision: April 02, 2009 04:12 PM
This private system is NOT subject to monitoring
NY V MERRIAM 16 S CT 10 B
1. The New York Supplement - Page 1123 - Google Books Result
books.google.com/books?id=eOUKAAAAYAAJ
1912 - Law reports, digests, etc
Order affirmed, with $10 costs and disbursements. ... Action by Evelyn Day limner
against Frank B. Torrey >as executor, etc., of Edward Warren Day. ... BRYAN v.
SAFIR. (Supreme Court, Appellate Division, First Department. ... Action by the
Cambridge Trust Company against Henry Merriam and Stanley L. Smith, as
partners, ...
2. CITES BY TOPIC: foreign state - Family Guardian
famguardian.org/TaxFreedom/CitesByTopic/ForeignState.htm
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(b) An ''agency or instrumentality of a foreign state'' means any entity - ... [N.Y. v.
reMerriam 36 N.E. 505; 141 N.Y. 479; affirmed 16 S.Ct. 1073; 41 L. Ed. 287]
[underlines added] ... The Law of Nations, Book I, §10, MONSIEUR DE VATTEL.
§ 10 ...
3. TITLES OF NOBILITY & JURISDICTION - Freedom School
freedom-school.com/citizenship/titles-of-nobility-jurisdiction.html
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Dec 12, 2012 - The Constitution, in Article I, Section 10 gives us the unlimited right to
contract, ... Maine v. Thiboutot, 448 U.S. 1, (1980) 100 S.Ct. 2502, 65 L.Ed.2d
555 ...him was void and relief should be granted under Rule 60(b)(4). ... NY vs.
re Merriam, 36N.E. 505; 141 N.Y. 479; affirmed 16 S.Ct. 1073; 41 L.Ed. 287.
4. [PDF]
Why You Aren't Eligible for Social Security, Form #06.001 - SEDM
sedm.org/Forms/06-AvoidingFranch/SSNotEligible.pdf
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10 Resources for Further Study and Rebuttal . ... Article 1, Section 10 . ...... N.Y. v.
reMerriam 36 N.E. 505, 141 N.Y. 479, affirmed 16 S.Ct. 1073, 41 L. Ed. 287 .
5. Reports of Cases Argued and Determined in the Supreme Court of ...
books.google.com/books?id=c9sDAAAAYAAJ
Indiana. Supreme Court, Horace E. Carter, Albert Gallatin Porter - 1873 - Law reports,
digests, etc
Supreme Court, Horace E. Carter, Albert Gallatin Porter, Gordon Tanner, James
Buckley Black, Benjamin Harrison, Michael Crawford Kerr, John ... So Lycll v. Lapeer
Co., 6 McLean, 446 - 273 Lyles v. Styles, 2 Wash. ... B.tllou, 16 Barb. ... The Mayor
ofN. Y., 5 Duer,674 65 M'Gregg v. ... 346 132 Merriam v. ... Farley, 10 Cush.
6. Reports of Cases Argued and Decided in the Supreme Court of the ...
books.google.com/books?id=d5cDAAAAQAAJ
United States. Supreme Court, Stephen Keyes Williams, Edwin Burritt Smith - 1885 Law reports, digests, etc
Supreme Court, Stephen Keyes Williams, Edwin Burritt Smith, Ernest Hitchcock. M.
Martin r. Judd, 81 111. 488 807 Martin e. Waddell, 16 Pet. 867, 410. ... Ins.
Co., 10Bosw. ... Cincinnati, 1 Ohio St. 268 410 Mavs b. ... Meneely, 62 N. Y. 427 831
M-rcer, The, 1 Spr. 284 876 Mercer v. ... Meigh, 2 El. & Bl. 364 825 Merriam t.
7. rights - section520.org
section520.org/rights.html
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... Union of several States. United States v Minnesota, 270 U.S. 181, 46 S.Ct. 298, 70
L.Ed. 539 ... 10C Const. Law Sec. 298; 18 C ... In re Merriam, 36 N. E. 505, 141 N.
Y.479, affirmed 16 S. Ct. 1073, 163 U. S. 625, 41 L.Ed. 287. CALIFORNIA ...
8. [PDF]
Supreme Court of the United States - Amazon Web Services
sblog.s3.amazonaws.com/.../10/Ford-petition-and-appendix-2013-07-24....
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10. A. As This Court Has Recognized,. Sovereign Immunity Is An Immunity. From Suit
.... B. This Court Repeatedly Has Made Clear. That The Strict ... Page(s). CASES.
Anderson v. Hayes Construction Co.,. 153 N.E. 28 (N.Y. 1926) . ... 16. Block v. North
Dakota ex rel. Board of. University & School Lands,. 461 U.S. 273 (1983) ...
9. 283 U.S. 258 - Resource.Org - Public Resource
bulk.resource.org/courts.gov/c/US/283/283.US.258.282.html
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by Supreme Court - 1931 - Cited by 207 - Related articles
Bowers v. N. Y. & Albany Co., 273 U. S. 346, 47 S. Ct. 389, 71 L. Ed. 676. ... May 16,
1925, the Bureau wrote plaintiff that an examination of its income tax ... 10. The
government, in support of the judgment below, insists that no claim for ... Merriam, 263
U. S. 179, 187, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547; Bowers v.
10. [PDF]
DA Vance's Motion to Dismiss - Knife Rights
www.kniferights.org/18%20DA%20First%20Motion%20to%20Dismiss%...
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S. MOTION TO DISMISS PURSUANT TO FEDERAL RULE 12 (b)(1) and. 12(b)(6).
2011 CV 03918 (BSJ)(RLE) .... 10. Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937 (2009)
. .....16. People v. Birth, 49 A.D.3d 290 (1st Dept. 2008) lv. denied 10 N.Y.3d 859 (2008)
. .....16. Merriam-Webster's Collegiate Dictionary (11th ed. 2005) .
Your LABOR is your Private Property
"Income means gains/profit from property severed from capitol, however invested or
employed. Income is not a wage or compensation from any type of labor"
Stapler v. United States, 21 F.Supp 737 at 739
“…every man has a natural right to the fruits of his own labor, as generally admitted;
and no other person can rightfully deprive him of those fruits, and appropriate them
against his will…”
The Antelope, 23 U.S. 66, 120
“The right to labor and to its protection from unlawful interference is a constitutional
as well as common-law right. Every man has a natural right to the fruits of his own
industry”.
48 American Jurisprudence, pg. 80
“Among these unalienable rights, as proclaimed in the Declaration of Independence is
the right of men to pursue their happiness, by which is meant, the right to pursue any
lawful business or vocation, in any manner not inconsistent with the equal rights of
others… It has been well said that, the property which every man has is his own labor,
as it is the original foundation of all other property so it is the most sacred and
inviolable… to hinder his employing…in what manner he thinks proper, without
injury to his neighbor, is a plain violation of the most sacred property”.
Butchers’ Union v. Crescent City Co., 111 U.S. 746, at 756-757
“There can be no sanction or penalty imposed upon one because of the exercise of a
constitutional right”.
Sherar v. Cullen, 481 F. 945
“…The term [liberty]…denotes not merely freedom from bodily restraint but also the
right of the individual to contract, to engage in any of the common occupations of
life…The established doctrine is that this liberty may not be interfered with, under the
guise of protecting public interest, by legislative action…”.
Meyer v. Nebraska, 262 U.S. 390, 399, 400
“A right common in every citizen such as the right to own property or to engage in
business of a character not requiring regulation cannot, however, be taxed as a special
franchise by first prohibiting its exercise and then permitting its enjoyment upon the
payment of a certain sum of money”.
Stevens v. State, 2 Ark., 291. 35 Am. Dec. 72,
Spring Valley Water Works v. Barber, 99 Cal. 36, 33 Pac. 735, 21 L.R.A. 416
“…The right to enjoy property without unlawful deprivation, is a personal right,
whether the property in question is a welfare check, a home, or a savings account. In
fact a fundamental interdependence exists between the person’s right to liberty and the
personal right in property. Neither could have meaning without the other”.
Lynch v. Household Finance Corp., 405 U.S. 538