Before the American Revolution all Americans were subjects of the British Crown, as each colony operated under a corporate charter authorized by the King of England and the British Crown. The British Crown was, and remains to this day, a corporation headed by the King, with the Parliament as its ruling-making body authorized to issue acts or statutes. The American colonies, as sub-corporations of the British Crown, were obligated to obey the acts-statutes of Parliament. The people of the American colonies, like the people of Britain, possessed natural rights under Common Law; and were bound by Parliamentary statutes only when engaged in corporate commerce or upon waiving their rights under Common Law and consenting to the jurisdiction of the acts-statutes. Stated in other terms, statutes-acts of Parliament (and all lesser legislative and administrative bodies) apply to a man ONLY after he has consented to be under their jurisdiction – that is, they require the “consent of the governed”. (Even today in Britain, the ordinary man recognizes the distinction between law and acts-statutes. In Britain “Law” means Common Law ONLY; acts or statutes mean legislated acts which are not considered “law”.) At the start of the American revolution the Crown dissolved the royal corporate charters of all the American colonies, at which time each man in the former American colonies became a sovereign – his own “king”. Here the term “man” is used to mean every living man, woman and child within the former colonies, with the exception of slaves, who were considered property. Thus the term “people” – which is grammatically correct as either singular or plural – means the man as sovereign, either individually or collectively. After the start of the revolution but before the United States existed, there was no legal government. A group of representatives, acting “in the name and by the authority of the good people of these colonies,” declared the independence of the colonies from the British Crown and the state of Great Britain.
From the beginning, in the 1776 Declaration of Independence, the people were acknowledged as the source of authority, i.e. the sovereignty of the American people which authorized the Declaration of Independence.
Next came the 1778 Articles of Confederation. The states that existed by the authority of the people, created those Articles while in Congress assembled. That didn’t work as well as expected.
In 1787 the people themselves came forth “to ordain and establish this Constitution for the United States of America” [see Preamble]. On September 17th, 1787, the states held a convention and all those present unanimously joined in. [see last paragraph of U.S. Constitution]
So, in 1787, unanimous concurrence was achieved and the Constitution was born, later to be ratified.
The Constitution for the United States of America, in fact, created a TRUST – a type of contract.
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
If one closely examines the structure of the PREAMBLE, one observes that it actually contacts all the elements of a TRUST:
TRUSTOR: We the People [trustors]
VENUE: of the United States
PURPOSE: in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty
BENEFICIARY: to ourselves and our Posterity,
ENABLING ACTION 1: do ordain [declare the law]
ENABLING ACTION 2: and establish [bring into existence]
WHAT: this Constitution [articles of incorporation for trust]
TRUSTEE: for the United States of America. [trustee]
RULES: the text in the body of the Constitution
ANALYSIS OF PREAMBLE
The Preamble defines the context in which the remainder of the Constitution must be interpreted. Most of it is self explanatory. Here’s an explanation that points to popular sovereignty:
After the Declaration of Independence, but before the ordainment and establishment of the Constitution, the people of the United States (that is the former colonies or states) pretty much handled their own affairs using the common law. They were not subject to any higher authority other than the authority of the common law as administered by the people themselves (self governance). Although the states did exist, they only existed by the authority of the people. Every man was a king, and every woman a queen–and none had any subjects. Upon declaring our independence, we all became sovereigns and members of the peerage (nobility).
“The people of this State, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the King by his prerogative. Through the medium of their Legislature they may exercise all the powers which previous to the Revolution could have been exercised either by the King alone, or by him in conjunction with his Parliament; subject only to those restrictions which have been imposed by the Constitution of this State or of the U.S.”
Lansing v. Smith, 21 D. 89., 4 Wendel 9 (1829) (New York)
“D.” = Decennial Digest
Lansing v. Smith, 4 Wend. 9 (N.Y.) (1829), 21 Am.Dec. 89
10C Const. Law Sec. 298; 18 C Em.Dom. Sec. 3, 228;
37 C Nav.Wat. Sec. 219; Nuls Sec. 1`67; 48 C Wharves Sec. 3, 7.
NOTE: Am.Dec.=American Decision, Wend. = Wendell (N.Y.)
The enabling actions in the Preamble are significant because there is simply nothing in the use of those words to imply that the People relinquished any of their own power and authority. The People declared the law (ordain) without taking away from themselves the authority to declare law again in the future. The People established the Constitution without taking away from themselves the authority to establish anything else in the future. In other words, the people gave birth to the Constitution without giving up any of their own power and authority.
What was before, continues to be so today.
From the context of the Preamble, one may conclude that the laws of the United States do not apply to People. The People, as ordainers and establishers of the country, are each individual sovereigns of the country and may not be involuntarily subjected to the laws of the United States. In practical terms a man, as an individual sovereign and one of the people, is NOT bound by the Constitution UNLESS that man freely consents – “consent of the governed.” Likewise, a man, as an individual sovereign and one of the people, is NOT bound by the acts-statutes created by any legislative or other political body under the authority of that Constitution UNLESS that man freely consents – once again, “consent of the governed.”
Because of Amendment X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” the government has no authority, and cannot assume any authority over the People. Government powers may not reach beyond that which is constitutionally granted. In order for the government to subject People to its law it is necessary for the People to relinquish their sovereignty. Sovereignty is a natural right which cannot lawfully be relinquished involuntarily. Any removal of sovereignty must be accomplished voluntarily by the subject himself.
Some modern legal scholars have asserted that the Constitution, as well as the acts-statutes flowing from legislative bodies authorized the Constitution, automatically apply to all of American people because our ancestors gave their consent through the ratifications by the states of the Constitution. This argument is flawed in several respects.
First, the state governments approved the Constitution; NOT the people of those states. And the people remained sovereign even after the ratification of the Constitution. Therefore, since the term “people” is grammatically correct as either singular or pleural, each individual man retained his sovereignty. The amendments to the Constitution and numerous court decisions have affirmed this interpretation, in that the statement “right of the people” means an individual right guaranteed to each man, not to a collective of men.
Second, under contract law (which includes trusts) in order to be valid, both parties to a contract must freely and knowingly consent to that contract, with each delivering something of value to the other (known as “consideration”). Therefore, a contract signed by a man is NOT enforceable upon his descendants, unless they later also freely and knowingly consented to that contract.
Third, some legal scholars have written that simply by living in America, a man’s descendants give “implied consent” to the contract of the Constitution. To the question of what “consideration” is given to these descendants, these writes reply that the consideration is the “rights and privileges” offered by the government and accepted by these descendants – that UNLESS a man objects to this “implied consent” and explicitly waives all benefits and privileges from government, he has consented to be bound by this contract with government and is therefore bound by all its acts-statutes. This very recent interpretation is clearly faulty, since it fails to recognize that each man is a sovereign (as noted above). And a sovereign cannot be bound by another sovereign, much less by the contracts engaged into by other men. Further, in Western law and tradition, just as God is the creator and sovereign, so is each man sovereign and creator. As such a man, as creator and sovereign cannot be bound by his subjects and any institutions he creates, without his consent. The consent from another sovereign man can NOT bind another sovereign man – it binds only himself. Thus each man, as a sovereign and master, can be bound ONLY if he knowingly and freely consents to such a contract, in which he delegated a specified and limited authority to government. In consenting to this contract, a man does not surrender his sovereignty, but forever retains his status as an individual sovereign. He is NOT subject to law under the Constitution unless he freely consents. Further he is NOT subject to any acts-statutes by legislatures and other institutions created under the authority of the Constitution unless he freely consents.
Sovereign individuals are subject only to a Common Law, whose primary purposes are to protect and defend individual rights, and to prevent anyone, whether public official or private person, from violating the rights of other individuals. Within this scheme, Sovereigns are never subject to their own creations, and the constitutional contract is such a creation. To quote the Supreme Court, “No fiction can make a natural born subject.” Milvaine v. Coxe’s Lessee, 8 U.S. 598 (1808). That is to say, no fiction, be it a government, a corporation, a legislated statute or act, or an administrative regulation, can mutate a natural born Sovereign into someone who is subject to his own creations.
“Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration the responsibility is purely political, no appeal except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth “may be a government of laws and not of men.” For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.” [Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)]
Every Sovereign State Citizen is endowed with certain unalienable rights, for the enjoyment of which no written law or statute is required. “These are fundamental or natural rights, recognized among all free people,” wrote Chancellor Kent in the case of United States v. Morris. The U.S. Supreme Court has repeatedly stated that fundamental rights are natural rights which are inherent in state citizenship:
“This position is that the privileges and immunities clause protects all citizens against abridgment by states of rights of national citizenship as distinct from the fundamental or natural rights inherent in state citizenship.” [Madden v. Kentucky, 309 U.S. 83 (1940)]
[84 L.Ed. 590, at 594
What are the fundamental or natural rights recognized among all free people? Chancellor Kent answered as follows: “That the rights to lease land and to accept employment as a laborer for hire are fundamental [natural] rights, inherent in every free citizen, is indisputable.” United States v. Morris, 125 F.Rept. 322, 331 (1903)
“In the United States***, sovereignty resides in the people who act through the organs established by the Constitution. The Congress as the instrumentality of sovereignty is endowed with certain powers to be exerted on behalf of the people in the manner and with the effect the Constitution ordains. The Congress cannot invoke the sovereign power of the people to override their will as thus declared.” Perry v. United States, 294 U.S. 330, 353 (1935)
No discussion of sovereignty would be complete, therefore, without considering the sovereignty that resides in “US”, the People. The Supreme Court has often identified the People as the source of sovereignty in our republican form of government. Indeed, the federal Constitution guarantees to every State in the Union a “Republican Form” of government, in so many words:
Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government …. Constitution for the United States of America, Article 4, Section 4
What exactly is a “Republican Form” of government? It is one in which the powers of sovereignty are vested in the People and exercised by the People. Black’s Law Dictionary, Sixth Edition, makes this very clear in its various definitions of “government”:
Republican government. One in which the powers of sovereignty are vested in the people and are exercised by the people, either directly, or through representatives chosen by the people, to whom those powers are specially delegated. In re Duncan, 139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219; Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L.Ed. 627.
The Supreme Court has clearly distinguished between the operation of governments in Europe, and government in these United States*** of America, as follows:
“In Europe, the executive is almost synonymous with the sovereign power of a State; and generally includes legislative and judicial authority. … Such is the condition of power in that quarter of the world, where it is too commonly acquired by force or fraud, or both, and seldom by compact [consent]. In America, however, the case is widely different. Our government is founded upon compact [consent]. Sovereignty was, and is, in the people.” Glass v. The Sloop Betsey, 3 Dall 6 (1794)
Crown colonies = corporations of the British Crown with corporate charters with King as the Sovereign
War of Independence à King cancelled charters of all of the colonies in America è each individual American became his own sovereign and each state became its own sovereign
Individual sovereignty – subject only to himself and the customs of his neighbors (Common Law)
The 4 United States:
“United States” as a private corporation – 1871 — UScorp
(1) United States* or U.S.* (first meaning)
The name of the sovereign Nation, occupying the position of other sovereigns in the family of nations.
(2) United States** or U.S.** (second meaning)
The federal government and the limited territory over which it exercises exclusive sovereign authority.
(3)United States-Corp or US-Corp as a private corporation – 1871 — UScorp
(4) United States*** or U.S.***
The collective name for the States united by and under the Constitution for the United States of America.
TYPES OF COURTS:
1.) District Court of the United States (DCUS) = Article III (judicial) court
2.) United States District Court (USDC) = Administrative Article I (legislative)
3.) Article IV (territorial) court
COURT OF RECORD v COURTS OF NO RECORD
The only difference between an action at law and a counterclaim in a court of record is that the original parties have their identifications changed. The defendant becomes the counterplaintiff, and the plaintiff becomes the counterdefendant. Other than that, the counterclaim is written the same as an action at law.
A court of record proceeds according to the common law. It is not a criminal court and it is not a civil court; those two courts are statutory courts, not common law courts.
Also, note that in every county there is only ONE court. The court is typically subdivided into divisions. No matter what division you file the case in, it is still the same court. When you file a common law case the clerks typically don’t know what that is and tend to classify it as a civil case. Sometimes in the Federal courts it is filed as a “constitutional court” case or a “miscellaneous” case (which has a lower filing fee).
It is not necessary to argue too much with the clerk. If the clerk is too ignorant to do it the right way, don’t worry. If the clerk doesn’t like the caption at the top of the page, don’t ask what you should do because he cannot give you legal advice. Instead, you ask him what he requires: he can tell you that.
Changes to the paper can be made on the spot by hand printing IF you print very clearly. Hand printing is legally the same as typewriting. If the clerk objects to the term “counterclaim” you may change it to say “complaint”. It doesn’t really matter because it is the actual text in the body of the paper that is the substance. Titles, headings, and other items in the caption are merely aids to understanding. The substance of the paper is what controls, not the titles and headings.
There are two kinds of trial courts: superior and inferior.
The criminal court is an inferior court because it is operating according to special rules (criminal code) and not according to the common law. Even if its name is “Superior Court of …..” it is still an inferior court so long as it is operating according to some code or statutes rather than the common law.
On the other hand, a court of record, so long as it meets the criteria, is a true superior court.
The decisions and proceedings of an inferior court are not presumed to be valid. The inferior court can be sued in a superior court (that’s called a “collateral attack”). In other words, the superior court (court of record) out ranks the inferior court not of record”.
When you do a counterclaim, the primary issue is jurisdiction. By what authority does the inferior court presume to take jurisdiction over the parties? When the counterclaim is filed, all parties in the inferior court, and the inferior court itself, are served with the suit. Because the primary issue is jurisdiction, the proceedings in the inferior court must stop immediately and may not proceed until it proves in the superior court that it has jurisdiction. If it [the inferior court] fails to prove its jurisdiction, then the final judgment of the superior court will be that the inferior court had no jurisdiction and all proceedings thereafter are barred.
If the inferior court proceeds anyway, then contempt proceedings and judgment enforcement proceedings can be initiated in the superior court.
Court of Record
www.1215.org/lawnotes/lawnotes/courtrec.htm COMMENTARY This writer concludes, from the definitions below, that a court of record is a court which must meet the following criteria: 1. generally has a seal 2. power to fine or imprison for contempt 3. keeps a record of the proceedings [“enrolled” for posterity; a transcript is NOT a record] 4. proceeding according to the common law (not statutes or codes) 5. the tribunal is independent of the magistrate (judge) Note that a judge is a magistrate and is NOT the tribunal. The tribunal is either the sovereign himself [the plaintiff], or a fully empowered jury (not paid by the government) —————————————————————– Black’s Law Dictionary, 4th Ed., 425, 426 COURT. … INTERNATIONAL LAW COURT: The person and suite of the sovereign; the place where the sovereign sojourns with his regal retinue, wherever that may be. …. CLASSIFICATION Courts may be classified and divided according to several methods, the following being the more usual: COURTS OF RECORD and COURTS NOT OF RECORD. The former [courts of record] being those whose acts and judicial proceedings are enrolled, or recorded, for a perpetual memory and testimony, and which have power to fine or imprison for contempt. Error lies to their judgments, and they generally possess a seal. Courts not of record are those of inferior dignity, which have no power to fine or imprison, and in which the proceedings are not enrolled or recorded. 3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E. 229, 231. A “court of record” is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a perpetual memorial. Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc. Mass., 171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689. ….—————————————————————– See 7 Cal Jur 571 for more info about courts of record 7 California Jurisprudence, Bancroft Whitney (1922), Page 580-581Courts of Record.–Courts are divided generally into courts of record and those that are not of record. A court of record is a judidical tribunal having attributes and exercising functions independently of the person designated generally to hold it, and proceeding according to the course of the common law.4 In a court of record the acts and judicial proceedings are enrolled, whereas, in courts not of record, the proceedings are not enrolled. The privilege of having these enrolled memorials constitutes the great leading distinction between courts of record and courts not of record.5 4. Ex parte Thistleton, 52 Cal. 220. As to what are “courts of common-law jurisdiction” within the meaning of the federal naturalization act, see Alienage and Citizenship, Vol. 1, p. 911. 5. Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 742, per Sawyer, J., concurring. See infra, §§ 26-28, as to records. Under the constitutional revision of 1863, the district, county and probate courts were also courts of record. Caulfield v. stevens, 28 Cal. 118. —————————————————————- Webster’s New Practical Dictionary, 386 (1953) G. & C. Merriam Co., Springfield, Mass. MAGISTRATE A person holding official power in a government; as: a The official of highest rank in a government (chief, or first, magistrate). b An official of a class having summary, often criminal, jurisdiction. —————————————————————– Merriam-Webster On-Line Dictionary MAGISTRATE an official entrusted with administration of the laws —————————————————————– Black’s Law Dictionary, 4th Ed., 1103 MAGISTRATE Person clothed with power as a public civil officer. State ex rel. Miller v. McLeod, 142 Fla. 254, 194 So. 628, 630. A public officer belonging to the civil organization of the state, and invested with powers and functions which may be either judicial, legislative, or executive. But the term is commonly used in a narrower sense, designating, in England, a person intrusted with the commission of the peace, and, in America, one of the class of inferior judicial officers, such as justices of the peace and police justices. Martin v. State, 32 Ark. 124; Ex parte White, 15 Nev. 146, 37 Am.Rep. 466; State v. Allen, 83 Fla. 655, 92 So. 155, 156; Merritt v. Merritt, 193 Iowa 899, 188 N.W. 32, 34.…. The word “magistrate” does not necessarily imply an officer exercising any judicial functions, and might very well be held to embrace notaries and commissioners of deeds. Schultz v. Merchants’ Ins. Co., 57 Mo. 336. —————————————————————– California Penal Code 7. Words and phrases….The following words have in this code the signification attached to them in this section, unless otherwise apparent from the context:…. 9. The word “magistrate” signifies any one of the officers mentioned in Section 808. …. 807. Magistrate defined. A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense. (Enacted 1872.) 808. Persons designated as magistrates The following persons are magistrates: 1. The judges of the Supreme Court 2. The judges of the courts of appeal. 3. The judges of the superior courts. 4. The judges of the municipal courts. 5. The judges of the justice courts. —————————————————————– Black’s Law Dictionary, 4th Ed., 1602, 1603 SUIT Old English Law The witnesses or followers of the plaintiff. 3 Bl. Comm. 295. See Secta. Modern Law A generic term, of comprehensive signification, and applies to any proceeding by one person or persons against another or others in a court of justice in which the plaintiff pursues, in such court, the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law [Common Law] or in equity. See Kohl v. U.S., 91 U.S. 375, 23 L.Ed. 449; Weston v. Charleston, 2 Pet. 464, 7 L.Ed. 481; Syracuse Plaster Co. v. Agostini Bros. Bldg. Corporation, 169 Misc. 564 7 N.Y.S.2d 897. —————————————————————– Black’s Law Dictionary, 4th Ed., 1677 TRIBUNAL The seat of a judge; the place where he administers justice. The whole body of judges who compose a jurisdiction; a judicial court; the jurisdiction which the judges exercise. See Foster v. Worcester, 16 Pick. (Mass.) 81. —————————————————————– Webster’s New Practical Dictionary, 707 (1953) G. & C. Merriam Co., Springfield, Mass. TRIBUNE 1. In ancient Rome, a magistrate whose special function was to protect the interests of plebeian citizens from the patricians. 2. Any defender of the people. —————————————————————– Merriam-Webster On-Line Dictionary COURT 1. the residence of a sovereign or similar dignitary 2: a sovereign and his officials and advisers as a governing power 3: an assembly of the retinue of a sovereign 4: an open space enclosed by a building or buildings 5: a space walled or marked off for playing a game (as tennis or basketball) 6: the place where justice is administered; also: a judicial body or a meeting of a judicial body
A “minute order” issued by a judge is not part of the record.
The proceedings of the courts of common law are records. But every minute made by a clerk of a court for his own future guidance in making up his record is not a record. 4 Wash. C.C. 698. See 10 Penn. St. 157; 2 Pick. Mass. 448; 4 N. II. 450; 6 id. 567; 5 Ohio St. 545; 3 Wend. N.Y. 267; 2 Vt. 573; 6 id. 580; 5 Day, Conn. 363; 3 T. B. Monr. Ky. 63. [Note: The keeping of a transcript of the court proceedings does NOT establish that court as a true “court of record”. ONLY a court operating under Common Law can be a true “court of record” in which either the plaintiff or jury can act as the tribunal.]
“The Common-Law Record consists of the Process, the Pleadings, the Verdict and the Judgment. After Judgment, such Errors were Reviewable by Writ of Error. Errors which occurred at the Trial were not part of the Common-Law Record, and could be Reviewed by a Motion for a New Trial, after Verdict and before Judgment; by Statute, such Errors could be Reviewed after judgment by incorporating them into the Record by means of a Bill of Exceptions. It was therefore essential to keep clearly in mind the distinction between Matter of Record and Matter of Exception.
“UNDER the ancient practice, the Proceedings in a litigated case were Entered upon the Parchment Roll, and when this was completed, the end product became known as the Common-Law Record. It consisted of Four Parts, the Process, which included the Original Writ and the Return of the Sheriff, by which the Court acquired Jurisdiction over the defendant; the Pleadings, presented by the Parties in the prescribed order to develop an Issue of Law or of Fact, and which included the Declaration and all subsequent Pleadings, together with the Demurrers, if any; the Verdict; and the Judgment. These Four Elements formed the Common-Law Record, but it should be observed that at the point where the Retrospective Motions come into play, the Record has not been developed beyond the Stage of Entering the Verdict upon the Roll. At this point it should also be recalled that between the time when the Pleadings Terminated in an Issue, which Joinder in Issue was duly Recorded on the Parchment Roll, and the time when an Entry of the Verdict was made, nothing was Recorded on the Parchment Roll. The reason for this was that between the Joinder of Issue and the Rendition of the Verdict, the Trial takes place, and what occurs during this Trial does not Appear upon the Face of the Common-Law Record. Thus, Offers and Rejection of Evidence, the Court’s Instruction of the Jury, or its Refusal to Instruct as requested by Counsel, or any Misconduct Connected with the Trial, such as Prejudicial Remarks on the Part of the Court, and the like—that is—any Error that occurs at the Trial—cannot be corrected by resort to the Common-Law Record because not Apparent Upon its Face. Such Errors were preserved only in the notes made by the Presiding Judge, or in his memory, and were reviewable, after Verdict and before Final Judgment, by a Motion for New Trial made before the Court En Banc at Westminster, within four days after the Commencement of the Next Term following the Rendition of the Verdict. As each of the Judges of the Court had Motions of a similar character coming up for decision from the Trials over which they had presided, the natural inclination of each Judge was to support the Rulings of his brother Jurists, and thus Overrule the Motion for a New Trial. Furthermore, Errors that occurred at the Trial were not Reviewable after Judgment on Writ of Error, because Not Apparent on any one of the Four Parts of the Common-Law Record. To remedy this Defect, Parliament enacted Chapter 31 of the Statute of Westminster II in 1285,6 which provided for Review of such Errors through the use of what came to be known as a Bill of Exceptions.
“Thus, it appears that in four out of five Retrospective Motions, the Court is permitted to consider only Defects Apparent Upon the Face of Part of the Common-Law Record—the Process, the Pleadings, and the Verdict—and Errors Occurring at the Trial were regarded as extraneous and not to be considered in rendering Judgment upon the Motions. Matters extraneous to or outside of the Record could be tested after Verdict and before Judgment only by a Motion for a New Trial. A distinction is made between Matter of Record and Matter of Exception, Matter of Record referring to those Errors Apparent upon the Face of the Common-Law Record and hence Reviewable after Final Judgment upon a Writ of Error, and Matter of Exception referring to those Errors which Occurred at the Trial, and were Not Apparent on the Face of the Common-Law Record, hence Reviewable after Final Judgment only by incorporating such Errors into the Record by means of a Bill of Exceptions, as authorized by Chapter 31 of the Statute of Westminster II in 1285.”
Koffler: Common Law Pleading 567-568
Proceedings in courts of chancery are said not to be, strictly speaking, records; but they are so considered. Gresley, Ev. 101. And see 8 Mart. La. N. S. 303; 1 Rawle, Penn. 381; 8 Yorg. Tenn. 142; 1 Pet. C. C. 352.
Bouvier’s Law Dictionary, 14th Ed. (1870)
In practice. A memorandum of what takes place in court, made by authority of the court. From these minutes the record is afterwards made up.
Toulier says they are so called because the writing in which they were originally was small; that the word is derived from the Latin minuta (scriptura), in opposition to copies which were delivered to the parties, and which were always written in a larger hand. 8 Toullier, n. 413.
Minutes are not considered as any part of the record. 1 Ohio, 268. See 23 Pick. Mass. 184.
Bouvier’s Law Dictionary, 14th Ed. (1870)
MINUTE BOOK: A book kept by the clerk or prothonotary of a court, in which minutes of its proceedings are entered.
Bouvier’s Law Dictionary, 14th Ed. (1870)
A court of record is a “superior court.”
A court not of record is an “inferior court.”
“Inferior courts” are those whose jurisdiction is limited and special and whose proceedings are not according to the course of the common law.” Ex Parte Kearny, 55 Cal. 212; Smith v. Andrews, 6 Cal. 652
Criminal courts proceed according to statutory law. Jurisdiction and procedure is defined by statute. Likewise, civil courts and admiralty courts proceed according to statutory law. Any court proceeding according to statutory law is not a court of record (which only proceeds according to common law); it is an inferior court.
“The only inherent difference ordinarily recognized between superior and inferior courts is that there is a presumption in favor of the validity of the judgments of the former, none in favor of those of the latter, and that a superior court may be shown not to have had power to render a particular judgment by reference to its record. Ex parte Kearny, 55 Cal. 212. Note, however, that in California ‘superior court’ is the name of a particular court. But when a court acts by virtue of a special statute conferring jurisdiction in a certain class of cases, it is a court of inferior or limited jurisdiction for the time being, no matter what its ordinary status may be. Heydenfeldt v. Superior Court, 117 Cal. 348, 49 Pac. 210; Cohen v. Barrett, 5 Cal. 195” 7 Cal. Jur. 579
The decisions of a superior court may only be challenged in a court of appeal.
The decisions of an inferior court are subject to collateral attack. In other words, in a superior court one may sue an inferior court directly, rather than resort to appeal to an appelate court.
Decision of a court of record may not be appealed.
It is binding on ALL other courts.
However, no statutory or constitutional court (whether it be an appellate or supreme court) can second guess the judgment of a court of record. “The judgment of a court of record whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it.” Ex parte Watkins, 3 Pet., at 202-203. [cited by SCHNECKLOTH v. BUSTAMONTE, 412 U.S. 218, 255 (1973)] – U.S. Supreme Court
Also see Counterclaim Notes
What is a court?
This article is about the substantive definition of a court. For form, legal, and dictionary definitions, see Court of Record Most attorneys will tell you that a court is a forum where litigants may take problems for resolution. Others will tell you that the terms “court” and “judge” are interchangeable. Then there are the various dictionary definitions. But, here is the real substance of a court:
A court is a stage
upon which the sovereign conducts his show
so as to satisfy the rest of the world that his decision is a good one.
The modern concept of a court is based on the ancient English traditions. To best understand it, imagine how things were in the 12th century. The king was the sovereign. On his throne by Divine Right, he was the source of all law. So went the theory. But the king was as vulnerable to death as was anyone else.
Consider this scenario:
The king is sitting on his throne, gazing out the window, surveilling his kingdom. He notices one of the knaves stealing oranges from his favorite orange tree. No problem. Guards are summoned and instructed to incarcerate the knave for a month in the castle dungeon.
There you have all the elements of basic court procedure: jurisdiction, evidence, accusation, judgment, punishment. The king had the jurisdiction; he had personally seen the violation of his rules (the evidence), then he rendered and executed the judgment. Theoretically, that is all that is needed.
As a practical matter, there is more to the story.
In this case the criminal’s brother happens to be the king’s chief cook. The cook takes a day off to visit the dungeon. The prisoner complains about the injustice of it all, that he meant no harm, that he didn’t do it, and that the king was totally unfair. Mr. Cook, enraged by his brother’s story, promises to help. That evening the king dies from a slight overdose of arsenic (that’s how the nobility solved problems in those days).
The arsenic factor is what led to our modern court system. The royalty of that period realized that they were vulnerable, so they devised a trial system which would encourage others to not take it out on the king. This resulted in a
The king is sitting on his throne, gazing out the window, surveilling his kingdom. He notices that one of the knaves is stealing oranges from his favorite orange tree. No problem. He summons the guards and instructs them to bring the knave before the court. Papers are drawn up and a formal accusation is published for the world to see. A future date is set, and the knave is given an opportunity to round up defensive evidence and witnesses as well as a king-trained, tested, and licensed defense attorney.
On the appointed day, the king’s representative publicly announces the accusations, the defendant publicly states his innocence and the reasons therefor. Great argument is heard for both sides, and the king renders his judgment: 30 dungeon days. Attending the trial are the various court officers: judge, counsellors, marshall, court reporter, court jester, court clerk, and the various courtiers who invariably attach themselves to the seat of power. Among them all is the prisoner’s brother, the king’s chief cook.
On visiting day at the dungeon, the criminal complains on deaf ears. Brother chief cook says, “Sorry Bro. I was at the trial. I saw the evidence, I saw that you had an opportunity to defend, and I saw that the judgment was according to law. Even if the judgment was in error, the procedure was fair. There is nothing I can do for you.”
The king’s show was a success! Because of public judicial procedure he is guaranteed a long arsenic-free life, even though there was no difference in the final outcome.
In the first scenario the king acted according to theory. In the second scenario the king acted with prudent life-extending considerations.
Modern court procedure still adheres to the traditions of the past. You can see this in the various rules, statutes, and canons. For example, in Canon 2 of the CODE OF JUDICIAL CONDUCT it is well understood that “A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” There is no specific requirement that he actually have integrity and impartiality beyond that minimum required by law; only that the judge should act in a manner that promotes that image.
Maintaining image while protecting sovereign interests is probably the most important function of a court. The actual effectiveness of a government court in meting out justice has been questioned. Spend a day in any traffic court and you will get the full flavor of how the courts protect sovereign interests as they put on a show of procedural propriety.
Subject: NISI PRIUS COURT (is a “court of no record”) “George H. Cullins” wrote: > Black’s Law Dictionary defines Nisi Prius Courts as:> > “The nisi prius courts are such as are held for the trial of issues of fact> before a jury and one presiding judge. In America the phrase was formerly> used to denote the forum (whatever may be its statutory name) in which the> cause was tried to a jury, as distinguished from the appellate court.”> > To me, that says the nisi prius court is a TRIAL COURT, which of course is> where the FACTS of a case are discovered.> > Thornton says a nisi prius court is a “court of no record.” But a record > is kept in a trial court =============================================================================== Bill Thornton replies: On the surface of it, your doubts are reasonable. I’ll do my best toexplain nisi prius courts, courts of record, and courts of no record. First, the mere keeping of a record does not qualify any court to be acourt of record. Black’s Law Dictionary, Fifth Edition, contributes tothe confusion by listing only two of the four requirements for a courtto qualify as a court of record. If you want the full explanation, seehttp://www.chrononhotonthologos.com/lawnotes/courtrec.htm. InCalifornia, all courts are named as courts of record. However, if in anindividual case they are not operated as courts of record, then theydon’t qualify as such. It takes more than a name to make a court ofrecord. Even though a court may be keeping a record, it is a court ofno record if it does not conform to the remaining three requirements fora lawful court of record. Black’s Law Dictionary’s omissions are subtle. But, if you look deepenough, you can recombine the information and get to the real meaning ofterms such as “nisi prius”. “Nisi prius” is a Latin term. Individually, the words mean thus: “Prius” means “first.” For example, “Prius vitiis laboravimus, nunclegibus” means “We labored first with vices, now with laws.” Quotedfrom Black’s Law Dictionary, Fifth Edition. “Nisi” means “unless.” Quoting from B.L.D., 5th Ed.: “The word isoften affixed as a kind of elliptical expression, to the words ‘rule,”order,’ ‘decree,’ ‘judgment,’ or ‘confirmation,’ to indicate that theadjudication spoken of is one which is to stand as valid and operativeunless the party affected by it shall appear and show cause against it,or take some other appropriate step to avoid it or procure itsrevocation.” A rule of procedure in courts is that if a party fails to object tosomething, then it means he agrees to it. A nisi procedure is aprocedure to which a person has failed to object (show cause) andtherefore it follows that the person agrees to it. Or, conforming tothe format in the preceding paragraph, a nisi procedure is a procedureto which a party agrees UNLESS he objects or shows cause. A “nisi prius” procedure is a procedure to which a party FIRST agreesUNLESS he objects. A “nisi prius court” is a court which will proceed unless a partyobjects. The agreement to proceed is obtained from the parties first. It is a matter of right that one may demand to be tried in a court ofrecord. By sheer definition, that means that the court must proceedaccording to the common law (NOT the statutory law). The only way thata court can suspend that right is by the prior agreement of theparties. For tactical reasons the state prefers to proceed according tostatutory law rather than common law. The only way it can do that is toobtain the prior agreement from the parties. That is the primary (buthidden) purpose of the arraignment procedure. During arraignment thecourt offers three choices for pleading (guilty, not guilty, nolocontendre). But all three choices lead to the same jurisdiction, namelya statutory jurisdiction, not a common law jurisdiction. That is tosay, the question to be decided is whether or not the statute wasviolated, not whether the common law was violated. The dictionary does not lie in its definition of a nisi prius court.But it does omit some important information. Namely, that it is a courtthat has been set up by prior agreement assumed because when the threestatutory options [guilty, not guilty, nolo contendre] were presentedto the defendant he chose one. He thus failed to enforce his right to beprosecuted in a court of record. Once the agreement (as evidenced in the arraignment proceeding) has beensecured, the court proceeds under statutory authority. Now the courtceases to be a court of record and becomes a court of no record by priorlack of objection, i.e. by prior agreement implied by failure to object.. Naturally, after securing the agreement, a nisi prius court can move onto examine the facts with a judge and jury, etc. etc. George H. Cullins wrote: > Mr. Thornton says that the murderers have entered into a contract to go> outside the rules of the “codes” even though they don’t know it. Since a> contract is an AGREEMENT between two or more people, how can a contract be> made without the parties knowing about it. Bill Thornton replies: Yes. If the party never objects, then he must have agreed. Surely youhave heard of appeals that were lost because objection was not timelymade. The appellate court treats unopposed actions by the trial courtas if those actions were agreed to by the party who untimely objected. George H. Cullins wrote: > He says the Penal Codes are not the “law.” My understanding is that the law> is the statutes (codes) plus the law made by appellate judges every time they> make a decision. So if the Penal Code is not the law, what is? Bill Thornton replies: When the word “law” is used without qualification, then it means commonlaw. An “attorney at law” means one who practices common law(notwithstanding the fact that modern attorneys are not trained about thesubject). An “attorney in equity” is one who practices before an equitycourt. In the U.S. 99.99999% of all proceedings are in equity, which iswhy the judges may take liberties. Statutes are expressions of will from the legislature. To keep youconfused, they append the word “law” to it. Naturally, you are supposedto then believe that statutory law is the same as and equal to commonlaw (it isn’t). Codes are nothing more than a collection of statutesand other rules arranged by subject instead of being arranged by date.Law beats statutes; statutes beat codes. A judge exercises his discretion. Because he is authorized by thestatutes to exercise his discretion, most appeals of judges’ decisionswill fail. The appellate courts generally will not second guess a trialcourt’s use of discretion. In a court of record, a judge has NO discretion. Discretion is reserved to the independent tribunal.
A court of record is a “superior court.”
A court not of record is an “inferior court.”
“Inferior courts” are those whose jurisdiction is limited and special and whose proceedings are not according to the course of the common law.” Ex Parte Kearny, 55 Cal. 212; Smith v. Andrews, 6 Cal. 652
Criminal courts proceed according to statutory law. Jurisdiction and procedure is defined by statute. Likewise, civil courts and admiralty courts proceed according to statutory law. Any court proceeding according to statutory law is not a “court of record” (which only proceeds according to common law); it is an inferior court.
“The only inherent difference ordinarily recognized between superior and inferior courts is that there is a presumption in favor of the validity of the judgments of the former (superior), none in favor of those of the latter (inferior), and that a superior court may be shown not to have had power to render a particular judgment by reference to its record. Ex parte Kearny, 55 Cal. 212. Note, however, that in California ‘superior court’ is the name of a particular court. But when a court acts by virtue of a special statute conferring jurisdiction in a certain class of cases, it is a court of inferior or limited jurisdiction for the time being, no matter what its ordinary status may be. Heydenfeldt v. Superior Court, 117 Cal. 348, 49 Pac. 210; Cohen v. Barrett, 5 Cal. 195” 7 Cal. Jur. 579
The decisions of a superior court may only be challenged in a court of appeal.
The decisions of an inferior court are subject to collateral attack. In other words, in a superior court one may sue an inferior court directly, rather than resort to appeal to an appelate court.
Decision of a court of record may not be appealed.
It is binding on ALL other courts.
However, NO statutory or constitutional court (whether it be an appellate or supreme court) can second guess the judgment of a court of record. “The judgment of a court of record whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it.” Ex parte Watkins, 3 Pet., at 202-203. [cited by SCHNECKLOTH v. BUSTAMONTE, 412 U.S. 218, 255 (1973)]
Also see Counterclaim Notes
Habeas Corpus: History and Definition
There are two definitions for habeas corpus: one formal and the other substantive. The formal definition may be found in any law dictionary. This essay is about the substantive definition. The substantive definiton of habeas corpus is not found in the dictionaries, but rather, in the history books.
In the early days (before Magna Carta), the king had many court systems operating: e.g. courts of Common Pleas, Exchequer, King’s Bench, Chancery, etc. Each court had its jurisdiction defined. Of course, as an arm of government, courts are simply another form of bureaucracy with assigned functions. Like any bureaucracy, they always want to expand their jurisdictions. If a court exceeded its jurisdiction, a person could go to the proper court that should have had jurisdiction, and ask for an order directing the errant court stop its proceedings and release jurisdiction to the proper court. The phrase, “habeas corpus,” meaning, “you have the body” was put at the end of pleadings to the second court asking that the first court be required to produce the body if it was being held. In its most common form, the full formal phrase for habeas corpus was “habeas corpus ad subjiciendum.”
Of course, as you might surmise, that would pit one court bureaucracy against another. The Habeas Corpus worked quite well because, as long as the defendant was not a common enemy to both bureaucracies, one bureaucracy would not miss any opportunity to put down a competing bureacracy. The practical result of all this is that the defendant would often be ordered released, which was the second court’s way of telling the first court that it didn’t know what it was doing and had strayed from it’s original jurisdiction (i.e. exceeded jurisdiction). The habeas corpus, as a by-product of bureaucratic turf protection, tended to serve personal liberty well. Over the centuries it became known as the “Great Writ of Liberty.” It was the only known privilege or right that became stronger with the passage of time.
In summary, habeas corpus is the process of one court sitting in judgment of another court’s jurisdiction. It is NOT a civil or criminal proceeding, but rather it is a family fight between courts. That is why, even though you find habeas corpus rules in the civil procedure books ( FRCP and Calif CCP) the procedures stand somewhat alone, independent of the rest of the procedures in those codes. The reason is obvious: Why would a court burden itself with procedural requirements? That stuff is ok for outsiders not part of the court system (i.e. plaintiffs, defendants, and attorneys) but not ok for judges themselves.
In America, everyone can be sovereign. When you move for habeas corpus, you are activating your own court, which is separate and distinct from their court. You sit in judgment of the jurisdiction of their court. When you order them to produce the injured party and to demonstrate the injury, and when they fail to produce, then your court can issue an order to dismiss the case for lack of jurisdiction. Your court is a court of record and takes precedence over the statutory court.
Also, see Congressional Research Service’s Overview on Habeas Corpus.
This document is a bridge between the Constitutional protection of one’s access to the common law, and the Magna Carta. The modern value of the following is that it links the Magna Carta to the Common Law. The U.S. Constitution guarantees one’s access to the Common Law, i.e. the Magna Carta. (See the next to last line of the first paragraph.)
CONFIRMATIO CARTARUM 
October 10, 1297
EDWARD, by the grace of God, King of England, Lord of Ireland, and Duke of Guian, to all those that these present letters shall hear or see, greeting. Know ye that we, to the honour of God and of Holy Church, and to the profit of our realm, have granted for us and our heirs, that the Charter of liberties, and the Charter of the forest, which were made by common assent of all the realm, in the time of King HENRY our father, shall be kept in every point without breach. (2) And we will that the same charters shall be sent under our seal, as well to our justices of the forest, as to others, and to all sheriffs of shires, and to all our other officers, and to all our cities throughout the realm, together with our writs, in the which it shall be contained, that they cause the foresaid charters to be published, and to declare to the people that we have confirmed them in all points; (3) and that our justices, sheriffs, mayors, and other ministers, which under us have the laws of our land to guide, shall allow the said charters pleaded before them in judgement in all their points, that is to wit, the Great Charter as the common law[*] and the Charter of the forest, for the wealth of our realm.
- AND we will, That if any judgement be given from henceforth contrary to the points of the charters aforesaid by the justices, or by any other our ministers that hold plea before them against the points of the charters, it shall be undone, and holden for nought.
- AND we will, That the same charters shall be sent, under our seal, to cathedral churches throughout our realm, there to remain, and shall be read before the people two times by the year.
- AND that all archbishops and bishops shall pronounce the sentence of excommunication against all those that by word, deed, or counsel do contrary to the foresaid charters, or that in any point break or undo them. (2) and that the said curses be twice a year denounced and published by the prelates aforesaid. (3) And if the said prelates, or any of them, be remiss in the denunciation of the said sentences, the archbishops of Canterbury and York for the time being shall compel and distrein them to the execution of their duties in form aforesaid.
- AND for so much as divers people of our realm are in fear that the aids and tasks which they have given to us beforetime towards our wars and other business, of their own grant and good will (howsoever they were made) might turn to a bondage to them and their heirs, because they might be at another time found in the rolls, and likewise for the prises taken throughout the realm by our ministers: (2) We have granted for us and our heirs, that we shall not draw such aids, tasks, nor prises into a custom, for any thing that hath been done heretofore, be it by roll or any other precedent that may be founden.
- Moreover we have granted for us and our heirs, as well to archbishops, bishops, abbots, priors, and other folk of holy church, as also to earls, barons, and to all the communalty of the land, that for no business from henceforth we shall take such manner of aids, tasks, nor prises, but by the common assent of the realm, and for the common profit thereof, saving the ancient aids, and prises due and accustomed.
- AND for so much as the more part of the communalty of the realm find themselves sore grieved with the maletent of wools, that is to wit, a toll of forty shillings for every sack of wool, and have made petition to us to release the same; We at their requests have yearly released it, and have for granted us and our heirs, that we shall not take such things without their common assent and good will, saving to us and our heirs the custom of wools, skins, and leather, granted before by the communalty aforesaid. In witness of which things we have caused these our letters to be made patents. Witness EDWARD our son at London the tenth day of October, the five and twentieth year of our reign.
 25 Edw. i, c. i. Danby Pickering (ed.), Statutes at Large (Cambridge, 1726-1807), I, 273-75.
 Aquitaine, the territory in southwestern France.
 The Charter of the Forest was issued in 1217, early in the reign of Henry III, as a supplement to Magna Carta. It was confirmed by him in 1225. Some of the provisions omitted in the reissues of Magna Carta which relate to forest matters appeared in the Charter of the Forest.
 “Aids,” “tasks,” and “prises” were forms of taxation.
The above is quoted from “Sources of Our Liberties” Edited by Richard L. Perry, American Bar Foundation; distributed by Associated College Presses, 32 Washington Place, New York 3, New York.
[*] This reaffirms that the Magna Carta may be pleaded as the Common Law before a court.
“The power of the United States to tax is limited to persons, property, and business within their jurisdiction, as much as that of a state is limited to the same subjects within its jurisdiction.” — Supreme Court Justice Fields
by Attorney Lowell H. “Larry” Becraft Jr.
HOTT = www.HourOfTheTime.com
In the United States, there are two separate and distinct jurisdictions, one being that of the States within their own territorial boundaries and the other being federal jurisdiction. Broadly speaking, state jurisdiction encompasses the legislative power to regulate, control and govern real and personal property, individuals and enterprises within the territorial limits of any given State. In contrast, federal jurisdiction is extremely limited, with the same being exercised only in areas external to state legislative power and territory. Notwithstanding the clarity of this simple principle, the line of demarcation between these two jurisdictions and the extent and reach of each has become somewhat blurred due to popular misconceptions and the efforts expended by the federal government to conceal one of its major weaknesses. Only by resorting to history and case law can this obfuscation be clarified and the two distinct jurisdictions be readily seen.
The original thirteen colonies of America were each separately established by charters from the English Crown. Outside of the common bond of each being a dependency and colony of the mother country, England, the colonies were not otherwise united. Each had its own governor, legislative assembly and courts, and each was governed separately and independently by the English Parliament.
The political connections of the separate colonies to the English Crown and Parliament descended to an rebellious state of affairs as the direct result of Parliamentary acts adopted in the late 1760’s and early 1770’s. Due to the real and perceived dangers caused by these various acts, the First Continental Congress was convened by representatives of the several colonies in October, 1774, and its purpose was to submit a petition of grievances to the British Parliament and Crown. By the Declaration and Resolves of the First Continental Congress, dated October 14, 1774, the colonial representatives labeled these Parliamentary acts of which they complained as “impolitic, unjust, and cruel, as well as unconstitutional, and most dangerous and destructive of American rights;” but further, they asserted that these acts manifested designs, schemes and plans “which demonstrate a system formed to enslave America.”
Matters grew worse and between October, 1775, and the middle of 1776, each of the colonies separately severed their ties and relations with England, and several adopted constitutions for the newly formed States. By July, 1776, the exercise of British authority in all of the colonies was not recognized in any degree. The capstone of this actual separation of the colonies from England was the more formal Declaration of Independence.
The legal effect of the Declaration of Independence was to make each new State a separate and independent sovereign over which there was no other government of superior power or jurisdiction. This was clearly shown in M’Ilvaine v. Coxe’s Lessee, 8 U.S. (4 Cranch) 209, 212 (1808), where it was held:
- “This opinion is predicated upon a principle which is believed to be undeniable, that the several states which composed this Union, so far at least as regarded their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign states, and that they did not derive them from concessions made by the British king. The treaty of peace contains a recognition of their independence, not a grant of it. From hence it results, that the laws of the several state governments were the laws of sovereign states, and as such were obligatory upon the people of such state, from the time they were enacted.”
The consequences of independence was again explained in Harcourt v. Gaillard, 25 U.S. (12 Wheat.) 523, 526, 527 (1827), where the Supreme Court stated:
- “There was no territory within the United States that was claimed in any other right than that of some one of the confederated states; therefore, there could be no acquisition of territory made by the United States distinct from, or independent of some one of the states.
“Each declared itself sovereign and independent, according to the limits of its territory.
“[T]he soil and sovereignty within their acknowledged limits were as much theirs at the declaration of independence as at this hour.”
Thus, unequivocally, in July, 1776, the new States possessed all sovereignty, power, and jurisdiction over all the soil and persons in their respective territorial limits.
This condition of supreme sovereignty of each State over all property and persons within the borders thereof continued notwithstanding the adoption of the Articles of Confederation. Article II of that document declared:
- “Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”
As the history of the confederation government demonstrated, each State was indeed sovereign and independent to such a degree that it made the central government created by the confederation fairly ineffectual. These defects of the confederation government strained the relations between and among the States and the remedy became the calling of a constitutional convention.
The representatives which assembled in Philadelphia in May, 1787, to attend the Constitutional Convention met for the primary purpose of improving the commercial relations among the States, although the product of the Convention was more than this. But, no intention was demonstrated for the States to surrender in any degree the jurisdiction so possessed by them at that time, and indeed the Constitution as finally drafted continued the same territorial jurisdiction of the States as existed under the Articles of Confederation. The essence of this retention of state jurisdiction was embodied in Art. I, ¤ 8, cl. 17 of the U.S. Constitution, which defined federal jurisdiction as follows:
- “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”
The reason for the inclusion of this clause in the Constitution is obvious. Under the Articles of Confederation, the States retained full and complete jurisdiction over lands and persons within their borders. The Congress under the Articles of Confederation was merely a body which represented and acted as agents of the separate States for external affairs, and it had no jurisdiction within the States. This defect in the Articles made the Confederation Congress totally dependent upon any given State for protection, and this dependency did in fact cause embarrassment for that Congress. During the Revolutionary War while the Congress met in Philadelphia, a body of mutineers from the Continental Army surrounded the Congress and chastised and insulted its members. The governments of both Philadelphia and Pennsylvania proved themselves powerless to remedy this situation, so Congress was forced to flee first to Princeton, New Jersey, and finally to Annapolis, Maryland. Thus, this clause was inserted into the Constitution to give jurisdiction to Congress over its capital, and such other places which Congress might purchase for forts, magazines, arsenals and other needful buildings wherein the State ceded jurisdiction of such lands to the federal government. Other than in these areas, this clause of the Constitution did not operate to cede further jurisdiction to the federal government, and jurisdiction over those areas which had not been so ceded remained within the States.
While there had been no real provisions in the Articles which permitted the Confederation Congress to acquire property and possess exclusive jurisdiction over that property, the above clause filled an essential need by permitting the federal government to acquire land for the seat of government and other purposes from certain of the States. These lands were deemed essential to enable the United States to perform the powers delegated by the Constitution, and a cession of lands by any particular State would grant exclusive jurisdiction of them to Congress. Perhaps the best explanations for this clause in the Constitution were set forth in Essay No. 43 of The Federalist:
- “The indispensable necessity of complete authority at the seat of government carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government on the State comprehending the seat of the government for protection in the exercise of their duty might bring on the national councils an imputation of awe or influence equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. This consideration has the more weight as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession will be derived from the whole people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated.
“The necessity of a like authority over forts, magazines, etc., established by the general government, is not less evident. The public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated by requiring the concurrence of the States concerned in every such establishment.”
Since the ratification of the present U.S. Constitution, the U.S. Supreme Court and all lower courts have had many opportunities to construe and apply this clause of the Constitution. The essence of all these decisions manifests a legal principle that the States of this nation have exclusive jurisdiction of property and persons located within their borders, excluding such lands and persons residing thereon which have been ceded to the United States.
Perhaps one of the earliest decisions on this point was United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818), which involved a federal prosecution for a murder committed on board the Warship, Independence, anchored in the harbor of Boston, Massachusetts. The defense complained that only the state had jurisdiction to prosecute this crime and argued that the federal circuit courts had no jurisdiction of this crime supposedly committed within the federal government’s admiralty jurisdiction. In argument before the Supreme Court, counsel for the United States admitted as much:
- “The exclusive jurisdiction which the United States have in forts and dock-yards ceded to them, is derived from the express assent of the states by whom the cessions are made. It could be derived in no other manner; because without it, the authority of the state would be supreme and exclusive therein,” Id., at 350-51.
In holding that the State of Massachusetts had jurisdiction over this crime, the Supreme Court of the United States held:
- “What, then, is the extent of jurisdiction which a state possesses?
- “We answer, without hesitation, the jurisdiction of a state is co-extensive with its territory; co-extensive with its legislative power,” Id., at 386-87.
- “The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction… Congress has power to exercise exclusive jurisdiction over this district, [Washington, D.C.] and over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.
“It is observable that the power of exclusive legislation (which is jurisdiction) is united with cession of territory, which is to be the free act of the states. It is difficult to compare the two sections together, without feeling a conviction, not to be strengthened by any commentary on them, that, in describing the judicial power, the framers of our constitution had not in view any cession of territory; or, which is essentially the same, of general jurisdiction,” Id., at 388.
The Supreme Court in Bevans thus established a principle that federal jurisdiction extends only over the areas [of land within the states] wherein it possesses the power of exclusive legislation, and this is a principle incorporated into all subsequent decisions regarding the extent of federal jurisdiction. To hold otherwise would destroy the purpose, intent and meaning of the entire U.S. Constitution.
The decision in Bevans was closely followed by decisions made in two state courts and one federal court within the next two years. In Commonwealth v. Young, Brightly, N.P. 302, 309 (Pa. 1818), the Supreme Court of Pennsylvania was presented with the issue of whether lands owned by the United States for which Pennsylvania had never ceded jurisdiction had to be sold pursuant to state law. In deciding that the law of Pennsylvania exclusively controlled this sale of federal land, the Court held:
- “The legislation and authority of congress is confined to cessions by particular states for the seat of government, and purchases made by consent of the legislature of the state, for the purpose of erecting forts. The legislative power and exclusive jurisdiction remained in the several states, of all territory within their limits, not ceded to, or purchased by, congress, with the assent of the state legislature, to prevent the collision of legislation and authority between the United States and the several states.”
A year later, the Supreme Court of New York was presented with the issue of whether the State of New York had jurisdiction over a murder committed at Fort Niagara, a federal fort. In People v. Godfrey, 17 Johns. 225, 233 (N.Y. 1819), that court held that the fort was subject to the jurisdiction of the State since the lands therefore had not been ceded to the United States:
- “To oust this state of its jurisdiction to support and maintain its laws, and to punish crimes, it must be shown that an offense committed within the acknowledged limits of the state, is clearly and exclusively cognizable by the laws and courts of the United States. In the case already cited, Chief Justice Marshall observed, that to bring the offense within the jurisdiction of the courts of the union,[federal courts] it must have been committed out of the jurisdiction of any state; it is not (he says,) the offence committed, but the place in which it is committed, which must be out of the jurisdiction of the state.”
The decisional authority upon which this court relied was United States v. Bevans, supra.
At about the same time that the New York Supreme Court rendered its opinion in Godfrey, a similar fact situation was before a federal court, the only difference being that the murder was committed on land which had been ceded to the United States. In United States v. Cornell, 25 Fed.Cas. 646, 648, No. 14,867 (C.C.D.R.I. 1819), the court held that the case fell within federal jurisdiction:
- “But although the United States may well purchase and hold lands for public purposes, within the territorial limits of a state, this does not of itself oust the jurisdiction or sovereignty of such State over the lands so purchased. It remains until the State has relinquished its authority over the land either expressly or by necessary implication.
“When therefore a purchase of land for any of these purposes is made by the national government, and the State Legislature has given its consent to the purchase, the land so purchased by the very terms of the constitution ipso facto falls within the exclusive legislation of Congress, and the State jurisdiction is completely ousted.”
Almost 18 years later, the U.S. Supreme Court was again presented with a case involving the distinction between state and federal jurisdiction. In New Orleans v. United States, 35 U.S. (10 Pet.) 662, 737 (1836), the United States claimed title to property in New Orleans likewise claimed by the city. After holding that title to the subject lands was owned by the city, the Court addressed the question of federal jurisdiction:
- “Special provision is made in the Constitution for the cession of jurisdiction from the States over places where the federal government shall establish forts or other military works. And it is only in these places, or in the territories of the United States, where it can exercise a general jurisdiction.”
In New York v. Miln, 36 U.S. (11 Pet.) 102 (1837), the question before the Court involved an attempt by the City of New York to assess penalties against the master of a ship for his failure to make a report regarding the persons his ship brought to New York. As against the master’s contention that the act was unconstitutional and that New York had no jurisdiction in the matter, the Court held:
- “If we look at the place of its operation, we find it to be within the territory, and, therefore, within the jurisdiction of New York. If we look at the person on whom it operates, he is found within the same territory and jurisdiction,” Id., at 133.
“They are these: that a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified and exclusive,” Id., at 139.
Some eight years later in Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845), the question of federal jurisdiction was once again before the Court. This case involved a real property title dispute with one of the parties claiming a right to the contested property via a U.S. patent; the lands in question were situated in Mobile, Alabama, adjacent to Mobile Bay. In discussing the subject of federal jurisdiction, the Court held:
- “We think a proper examination of this subject will show that the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory, of which Alabama or any of the new States were formed,” Id., at 221.
“[B]ecause, the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, except in the cases in which it is expressly granted,” Id., at 223.
“Alabama is therefore entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law,” Id., at 228-29.
The single most important case regarding the subject of federal jurisdiction appears to be Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 531, 5 S.Ct. 995 (1885), which sets forth the law on this point fully. Here, the railroad company property which passed through the Fort Leavenworth federal enclave was being subjected to taxation by Kansas, and the company claimed an exemption from state taxation because its property was within federal jurisdiction and outside that of the state. In holding that the railroad company’s property could be taxed, the Court carefully explained federal jurisdiction within the States:
- “The consent of the states to the purchase of lands within them for the special purposes named, is, however, essential, under the constitution, to the transfer to the general government, with the title, of political jurisdiction and dominion. Where lands are acquired without such consent, the possession of the United States, unless political jurisdiction be ceded to them in some other way, is simply that of an ordinary proprietor. The property in that case, unless used as a means to carry out the purposes of the government, is subject to the legislative authority and control of the states equally with the property of private individuals.”
Thus the cases decided within the 19th century clearly disclosed the extent and scope of both State and federal jurisdiction. In essence, these cases, among many others, hold that the jurisdiction of any particular State is co-extensive with its borders or territory, and all persons and property located or found therein are subject to that jurisdiction; this jurisdiction is superior. Federal jurisdiction results from a conveyance of state jurisdiction to the federal government for lands owned or otherwise possessed by the federal government, and thus federal jurisdiction is extremely limited in nature. There is no federal jurisdiction if there be no grant or cession of jurisdiction by the State to the federal government. Therefore, federal territorial jurisdiction exists only in Washington, D.C., the federal enclaves within the States, and the territories and insular possessions of the United States.
The above principles of jurisdiction established in the last century continue their vitality today with only one minor exception. In the last century, the cessions of jurisdiction by States to the federal government were by legislative acts which typically ceded full jurisdiction to the federal government, thus placing in the hands of the federal government the troublesome problem of dealing with and governing scattered, localized federal enclaves which had been totally surrendered by the States. With the advent in this century of large federal works projects and national parks, the problems regarding management of these areas by the federal government were magnified. During the last century, it was thought that if a State ceded jurisdiction to the federal government, the cession granted full and complete jurisdiction. But with the ever increasing number of separate tracts of land falling within the jurisdiction of the federal government in this century, it was obviously determined by both federal and state public officials that the States should retain greater control over these ceded lands, and the courts have acknowledged the constitutionality of varying degrees of state jurisdiction and control over lands so ceded.
One of the first cases to acknowledge the proposition that a State could retain some jurisdiction over property ceded to the federal government was Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S.Ct. 455 (1930). Here, a state attempt to assess an ad valorem tax on Army blankets located within a federal army camp was found invalid and beyond the state’s jurisdiction. But in regards to the proposition that a State could make a qualified cession of jurisdiction to the federal government, the Court held:
- “[T]he state undoubtedly may cede her jurisdiction to the United States and may make the cession either absolute or qualified as to her may appear desirable, provided the qualification is consistent with the purposes for which the reservation is maintained and is accepted by the United States. And, where such a cession is made and accepted, it will be determinative of the jurisdiction of both the United States and the state within the reservation,” Id., at 651-52.
Two cases decided in 1937 by the U.S. Supreme Court further clarify the constitutionality of a reservation of partial state jurisdiction over lands ceded to the jurisdiction of the United States. In James v. Dravo Contracting Company, 302 U.S. 134, 58 S.Ct. 208 (1937), the State of West Virginia sought to impose a tax upon the gross receipts of the company arising from a contract which it had made with the United States to build some dams. One of the issues involved in this case was the validity of the state tax imposed on the receipts derived by the company from work performed on lands to which the State had ceded “concurrent” jurisdiction to the United States. The Court held that a State could reserve and qualify any cession of jurisdiction for lands owned by the United States; since the State had done so here, the Court upheld this part of the challenged tax notwithstanding a partial cession of jurisdiction to the U.S. A similar result occurred in Silas Mason Co. v. Tax Commission of State of Washington, 302 U.S. 186, 58 S.Ct. 233 (1937). Here, the United States was undertaking the construction of several dams on the Columbia River in Washington, and had purchased the lands necessary for the project. Silas Mason obtained a contract to build a part of the Grand Coulee Dam, but filed suit challenging the Washington income tax when that State sought to impose that tax on the contract proceeds. Mason’s argument that the federal government had exclusive jurisdiction over both the lands and its contract was not upheld by either the Supreme Court of Washington or the U.S. Supreme Court. The latter Court held that none of the lands owned by the U.S. were within its jurisdiction and thus Washington clearly had jurisdiction to impose the challenged tax; see also Wilson v. Cook, 327 U.S. 474, 66 S.Ct. 663 (1946).
Some few years later in 1943, the Supreme Court was again presented with similar taxation and jurisdiction issues; the facts in these two cases were identical with the exception that one clearly involved lands ceded to the jurisdiction of the United States. This single difference caused directly opposite results in both cases. In Pacific Coast Dairy v. Department of Agriculture of California, 318 U.S. 285, 63 S.Ct. 628 (1943), the question involved the applicability of state law to a contract entered into and performed on a federal enclave to which jurisdiction had been ceded to the United States. During World War II, California passed a law setting a minimum price for the sale of milk, and this law imposed penalties for sales made below the regulated price. Here, Pacific Coast Dairy consummated a contract on Moffett Field, a federal enclave within the exclusive jurisdiction of the United States, to sell milk to such federal facility at below the regulated price. When this occurred, California sought to impose a penalty for what it perceived as a violation of state law. But, the U.S. Supreme Court refused to permit the enforcement of the California law, holding that the contract was made and performed in a territory outside the jurisdiction of California and within the jurisdiction of the United States, a place where this law didn’t apply. Thus in this case, the existence of federal jurisdiction was the foundation for the decision. However, in Penn Dairies v. Milk Control Commission of Pennsylvania, 318 U.S. 261, 63 S.Ct. 617 (1943), an opposite result was reached on almost identical facts. Here, Pennsylvania likewise had a law which regulated the price of milk and penalized milk sales below the regulated price. During World War II, the United States leased some land from Pennsylvania for the construction of a military camp; since the land was leased, Pennsylvania did not cede jurisdiction to the United States. When Penn Dairies sold milk to the military facility for a price below the regulated price, the Commission sought to impose the penalty. In this case, since there was no federal jurisdiction, the Supreme Court found that the state law applied and permitted the imposition of the penalty. These two cases clearly show the different results which can occur with the presence or absence of federal jurisdiction.
A final point regarding federal jurisdiction concerns the question of when such jurisdiction ends or ceases. This issue was considered in S.R.A. v. Minnesota, 327 U.S. 558, 563-64, 66 S.Ct. 749 (1946), which involved the power of a State to tax the real property interest of a purchaser of land sold by the United States. Here, a federal post office building was sold to S.R.A. pursuant to a real estates sale contract which provided that title would pass only after the purchase price had been paid. In refuting the argument of S.R.A. that the ad valorem tax on its equitable interest in the property was really an unlawful tax on U.S. property, the Court held:
- “In the absence of some such provisions, a transfer of property held by the United States under state cessions pursuant to Article I, Section 8, Clause 17, of the Constitution would leave numerous isolated islands of federal jurisdiction, unless the unrestricted transfer of the property to private hands is thought without more to revest sovereignty in the states. As the purpose of Clause 17 was to give control over the sites of governmental operations to the United States, when such control was deemed essential for federal activities, it would seem that the sovereignty of the United States would end with the reason for its existence and the disposition of the property. We shall treat this case as though the Government’s unrestricted transfer of property to non-federal hands is a relinquishment of the exclusive legislative power.”
Thus when any property within the exclusive jurisdiction of the United States is no longer utilized by that government for governmental purposes, and the title or any interest therein is conveyed to private interests, the jurisdiction of the federal government ceases and jurisdiction once again reverts to the State.
The above principles regarding the distinction between State and federal jurisdiction continue today; see Paul v. United States, 371 U.S. 245, 83 S.Ct. 426 (1963), and United States v. State Tax Commission of Mississippi, 412 U.S. 363, 93 S.Ct. 2183 (1973). What was definitely decided in the beginning days of this Republic regarding the extent, scope, and reach of each of these two distinct jurisdictions remains unchanged and forms the foundation and basis for the smooth workings of state governmental systems in conjunction with the federal government. Without such jurisdictional principles which form a clear boundary between the jurisdiction of the States and the United States, our federal governmental system would have surely met its demise long before now.
In summary, the jurisdiction of the States is essentially the same as they possessed when they were leagued together under the Articles of Confederation. The confederated States possessed absolute, complete and full jurisdiction over property and persons located within their borders. It is hypocritical to assume or argue that these States, which had banished the centralized power and jurisdiction of the English Parliament and Crown over them by the Declaration of Independence, would shortly thereafter cede comparable power and jurisdiction to the Confederation Congress. They did not and they closely and jealously guarded their own rights, powers and jurisdiction. When the Articles were replaced by the Constitution, the intent and purpose of the States was to retain their same powers and jurisdiction, with a small concession of jurisdiction to the United States of lands found essential for the operation of that government. However, even this provision did not operate to instantly change any aspect of state jurisdiction, it only permitted its future operation wherein any State, by its own volition, should choose to cede jurisdiction to the United States.
By the adoption of the Constitution, the States jointly surrendered some 17 specific and well defined powers to the federal Congress, which related almost entirely to external affairs of the States. Any single delegated power, or even several powers combined, do not operate in a fashion so as to invade or divest a State of its jurisdiction. As against a single State, the remainder of the States under the Constitution have no right to jurisdiction within the single State absent its consent.
The only provision in the Constitution which permits territorial jurisdiction to be vested in the United States is found in Art. I, ¤ 8, cl. 17, which provides the mechanism for a voluntary cession of jurisdiction from any State to the United States. When the Constitution was adopted, the United States had jurisdiction over no lands within the States, and it possessed jurisdiction only in the lands encompassed in the Northwest Territories. Shortly after formation of the Union, Maryland and Virginia ceded jurisdiction to the United States for Washington, D.C. Over time, the States have ceded jurisdiction to federal enclaves within the States. Today, the territorial jurisdiction of the United States is found only in such ceded areas, which encompass Washington, D.C., the federal enclaves within the States, and such territories and possessions which may now be owned by the United States.
The above conclusion is buttressed by the opinion of the federal government itself. In June 1957, the United States government published a work entitled Jurisdiction Over Federal Areas Within The States: Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States, Part II, and this report is the definitive study on this issue. Therein, the Committee stated:
- “The Constitution gives express recognition to but one means of Federal acquisition of legislative jurisdiction — by State consent under Article I, section 8, clause 17… Justice McLean suggested that the Constitution provided the sole mode for transfer of jurisdiction, and that if this mode is not pursued, no transfer of jurisdiction can take place,” Id., at 41.
“It scarcely needs to be said that unless there has been a transfer of jurisdiction (1) pursuant to clause 17 by a Federal acquisition of land with State consent, or (2) by cession from the State to the Federal Government, or unless the Federal Government has reserved jurisdiction upon the admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, such jurisdiction being for exercise by the State, subject to non- interference by the State with Federal functions,” Id., at 45.
“The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State,” Id., at 46.
“On the other hand, while the Federal Government has power under various provisions of the Constitution to define, and prohibit as criminal, certain acts or omissions occurring anywhere in the United States, it has no power to punish for various other crimes, jurisdiction over which is retained by the States under our Federal-State system of government, unless such crime occurs on areas as to which legislative jurisdiction has been vested in the Federal Government,” Id., at 107.
Thus from a wealth of case law, in addition to this lengthy and definitive government treatise, the “jurisdiction of the United States” is identified as a very precise and carefully defined portion of America. The United States is one of the 50 jurisdictions existing on this continent, excluding Canada and its provinces. FEDERAL CRIMINAL JURISDICTION
NUMEROUS COURT RULINGS:
It is a well established principle of law that all federal “legislation applies only within the territorial jurisdiction of the United States unless a contrary intent appears;” see Caha v. United States, 152 U.S. 211, 215, 14 S.Ct. 513 (1894); American Banana Company v. United Fruit Company, 213 U.S. 347, 357, 29 S.Ct. 511 (1909); United States v. Bowman, 260 U.S. 94, 97, 98, 43 S.Ct. 39 (1922); Blackmer v. United States, 284 U.S. 421, 437, 52 S.Ct. 252 (1932); Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575 (1949); United States v. Spelar, 338 U.S. 217, 222, 70 S.Ct. 10 (1949); and United States v. First National City Bank, 321 F.2d 14, 23 (2nd Cir. 1963). This particular principle of law is expressed in a number of cases from the federal appellate courts; see McKeel v. Islamic Republic of Iran, 722 F.2d 582, 589 (9th Cir. 1983) (holding the Foreign Sovereign Immunities Act as territorial); Meredith v. United States, 330 F.2d 9, 11 (9th Cir. 1964) (holding the Federal Torts Claims Act as territorial); United States v. Cotroni, 527 F.2d 708, 711 (2nd Cir. 1975) (holding federal wiretap laws as territorial); Stowe v. Devoy, 588 F.2d 336, 341 (2nd Cir. 1978); Cleary v. United States Lines, Inc., 728 F.2d 607, 609 (3rd Cir. 1984) (holding federal age discrimination laws as territorial); Thomas v. Brown & Root, Inc., 745 F.2d 279, 281 (4th Cir. 1984) (holding same as Cleary, supra); United States v. Mitchell, 553 F.2d 996, 1002 (5th Cir. 1977) (holding marine mammals protection act as territorial); Pfeiffer v. William Wrigley, Jr., Co., 755 F.2d 554, 557 (7th Cir. 1985) (holding age discrimination laws as territorial); Airline Stewards & Stewardesses Assn. v. Northwest Airlines, Inc., 267 F.2d 170, 175 (8th Cir. 1959) (holding Railway Labor Act as territorial); Zahourek v. Arthur Young and Co., 750 F.2d 827, 829 (10th Cir. 1984) (holding age discrimination laws as territorial); Commodities Futures Trading Comm. v. Nahas, 738 F.2d 487, 493 (D.C.Cir. 1984) (holding commission’s subpoena power under federal law as territorial); Reyes v. Secretary of H.E.W., 476 F.2d 910, 915 (D.C.Cir. 1973) (holding administration of Social Security Act as territorial); and Schoenbaum v. Firstbrook, 268 F.Supp. 385, 392 (S.D.N.Y. 1967) (holding securities act as territorial). This principle was perhaps best expressed in Caha v. United States, 152 U.S., at 215, where the Court declared:
- “The laws of Congress in respect to those matters do not extend into the territorial limits of the states, but have force only in the District of Columbia, and other places that are within the exclusive jurisdiction of the national government.” Caha v. United States, 152 U.S. 211, 215, 14 S.Ct. 513 (1894) at 215
But, because of treaties as well as express statutory language, the federal drug laws operate extra-territorially; see United States v. King, 552 F.2d 833, 851 (9th Cir. 1976). The United States has territorial jurisdiction only in Washington, D.C., the federal enclaves within the States, and in the territories and insular possessions of the United States. However, it has no territorial jurisdiction over non-federally owned areas inside the territorial jurisdiction of the States within the American Union, and this proposition of law is supported by literally hundreds of cases.
As a general rule, the power of the United States to criminally prosecute is, for the most part, confined to offenses committed within “its jurisdiction” in the absence of treaties. This is born out simply by examination of 18 U.S.C. ¤5 which defines the term “United States” in clear jurisdictional terms.  Further, ¤7 of that federal criminal code contains the fullest statutory definition of the “jurisdiction of the United States.” The U.S. district courts [which are LEGISLATIVE-CONTRACT courts] have jurisdiction of offenses occurring within the “United States” pursuant to 18 U.S.C. ¤3231.
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Examples of this proposition are numerous. In Pothier v. Rodman, 291 F. 311 (1st Cir. 1923), the question involved whether a murder committed at Camp Lewis Military Reservation in the State of Washington was a federal crime. Here, the murder was committed more than a year before the U.S. acquired a deed for the property which was the scene of the crime. Pothier was arrested and incarcerated in Rhode Island and filed a habeas corpus petition seeking his release on the grounds that the federal courts had no jurisdiction over this offense not committed in U.S. jurisdiction. The First Circuit agreed that there was no federal jurisdiction and ordered his release. But, on appeal to the U.S. Supreme Court, in Rodman v. Pothier, 264 U.S. 399, 44 S.Ct. 360 (1924), that Court reversed; although agreeing with the jurisdictional principles enunciated by the First Circuit, it held that only the federal court in Washington State could decide that issue. In United States v. Unzeuta, 35 F.2d 750 (8th Cir. 1929), the Eighth Circuit held that the U.S. had no jurisdiction over a murder committed in a railroad car at Fort Robinson, the state cession statute being construed as not including railroad rights-of-way. This decision was reversed in United States v. Unzeuta, 281 U.S. 138, 50 S.Ct. 284 (1930), the Court holding that the U.S. did have jurisdiction over the railroad rights-of-way in Fort Robinson. In Bowen v. Johnson, 97 F.2d 860 (9th Cir. 1938), the question presented was whether the lack of jurisdiction over an offense prosecuted in federal court could be raised in a habeas corpus petition. The denial of Bowen’s petition was reversed in Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442 (1939), the Court concluding that such a jurisdictional challenge could be raised via such a petition. But, the Court then addressed the issue, found that the U.S. both owned the property in question and had a state legislative grant ceding jurisdiction to the United States, thus there was jurisdiction in the United States to prosecute Bowen. But, if jurisdiction is not vested in the United States pursuant to statute, there is no jurisdiction; see Adams v. United States, 319 U.S. 312, 63 S.Ct. 1122 (1943).
The lower federal courts also require the presence of federal jurisdiction in criminal prosecutions. In Kelly v. United States, 27 F. 616 (D.Me. 1885), federal jurisdiction of a manslaughter committed at Fort Popham was upheld when it was shown that the U.S. owned the property where the offense occurred and the state had ceded jurisdiction. In United States v. Andem, 158 F. 996 (D.N.J. 1908), federal jurisdiction for a forgery offense was upheld on a showing that the United States owned the property where the offense was committed and the state had ceded jurisdiction of the property to the U.S. In United States v. Penn, 48 F. 669 (E.D.Va. 1880), since the U.S. did not have jurisdiction over Arlington National Cemetery, a federal larceny prosecution was dismissed. In United States v. Lovely, 319 F.2d 673 (4th Cir. 1963), federal jurisdiction was found to exist by U.S. ownership of the property and a state cession of jurisdiction. In United States v. Watson, 80 F.Supp. 649, 651 (E.D.Va. 1948), federal criminal charges were dismissed, the court stating:
- “Without proof of the requisite ownership or possession of the United States, the crime has not been made out.”
In Brown v. United States, 257 F. 46 (5th Cir. 1919), federal jurisdiction was upheld on the basis that the U.S. owned the post office site where a murder was committed and the state had ceded jurisdiction; see also England v. United States, 174 F.2d 466 (5th Cir. 1949); Hudspeth v. United States, 223 F.2d 848 (5th Cir. 1955); Krull v. United States, 240 F.2d 122 (5th Cir. 1957); and Gainey v. United States, 324 F.2d 731 (5th Cir. 1963). In United States v. Townsend, 474 F.2d 209 (5th Cir. 1973), a conviction for receiving stolen property was reversed when the court reviewed the record and learned that there was absolutely no evidence disclosing that the defendant had committed this offense within the jurisdiction of the United States. In United States v. Benson, 495 F.2d 475, 481 (5th Cir. 1974), in finding federal jurisdiction for a robbery committed at Fort Rucker, the court held:
- “It is axiomatic that the prosecution must always prove territorial jurisdiction over a crime in order to sustain a conviction therefor.”
In two Sixth Circuit cases, United States v. Tucker, 122 F. 518 (W.D.Ky. 1903), a case involving an assault committed at a federal dam, and United States v. Blunt, 558 F.2d 1245 (6th Cir. 1977), a case involving an assault within a federal penitentiary, jurisdiction was sustained by finding that the U.S. owned the property in question and the state involved had ceded jurisdiction. In In re Kelly, 71 F. 545 (E.D.Wis. 1895), a federal assault charge was dismissed when the court held that the state cession statute in question was not adequate to convey jurisdiction of the property in question to the United States. In United States v. Johnson, 426 F.2d 1112 (7th Cir. 1970), a case involving a federal burglary prosecution, federal jurisdiction was sustained upon the showing of U.S. ownership and a state cession. And cases from the Eighth and Tenth Circuits likewise require the same elements to be shown to demonstrate the presence of federal jurisdiction; see United States v. Heard, 270 F.Supp. 198 (W.D.Mo. 1967); United States v. Redstone, 488 F.2d 300 (8th Cir. 1973); United States v. Goings, 504 F.2d 809 (8th Cir. 1974) (demonstrating loss of jurisdiction); Hayes v. United States, 367 F.2d 216 (10th Cir. 1966); Hall v. United States, 404 F.2d 1367 (10th Cir. 1969); United States v. Carter, 430 F.2d 1278 (10th Cir. 1970); and United States v. Cassidy, 571 F.2d 534 (10th Cir. 1978).
Of all the circuits, the Ninth Circuit has addressed jurisdictional issues more than any of the rest. In United States v. Bateman, 34 F. 86 (N.D.Cal. 1888), it was determined that the United States did not have jurisdiction to prosecute for a murder committed at the Presidio because California had never ceded jurisdiction; see also United States v. Tully, 140 F. 899 (D.Mon. 1905). But later, California ceded jurisdiction for the Presidio to the United States, and it was held in United States v. Watkins, 22 F.2d 437 (N.D.Cal. 1927), that this enabled the U.S. to maintain a murder prosecution. See also United States v. Holt, 168 F. 141 (W.D.Wash. 1909), United States v. Lewis, 253 F. 469 (S.D.Cal. 1918), and United States v. Wurtzbarger, 276 F. 753 (D.Or. 1921). Because the U.S. owned and had a state cession of jurisdiction for Fort Douglas in Utah, it was held that the U.S. had jurisdiction for a rape prosecution in Rogers v. Squier, 157 F.2d 948 (9th Cir. 1946). But, without a cession, the U.S. has no jurisdiction; see Arizona v. Manypenny, 445 F.Supp. 1123 (D.Ariz. 1977).
The above cases from the U.S. Supreme Court and federal appellate courts set forth the rule that in criminal prosecutions, the government, as the party seeking to establish the existence of federal jurisdiction, must prove U.S. ownership of the property in question and a state cession of jurisdiction. This same rule manifests itself in state cases. State courts are courts of general jurisdiction and in a state criminal prosecution, the state must only prove that the offense was committed within the state and a county thereof. If a defendant contends that only the federal government has jurisdiction over the offense, he, as proponent for the existence of federal jurisdiction, must likewise prove U.S. ownership of the property where the crime was committed and state cession of jurisdiction.
Examples of the operation of this principle are numerous. In Arizona, the State has jurisdiction over federal lands in the public domain, the state not having ceded jurisdiction of that property to the U.S.; see State v. Dykes, 114 Ariz. 592, 562 P.2d 1090 (1977). In California, if it is not proved by a defendant in a state prosecution that the state has ceded jurisdiction, it is presumed the state does have jurisdiction over a criminal offense; see People v. Brown, 69 Cal. App.2d 602, 159 P.2d 686 (1945). If the cession exists, the state has no jurisdiction; see People v. Mouse, 203 Cal. 782, 265 P. 944 (1928). In Montana, the state has jurisdiction over property if it is not proved there is a state cession of jurisdiction to the U.S.; see State ex rel Parker v. District Court, 147 Mon. 151, 410 P.2d 459 (1966); the existence of a state cession of jurisdiction to the U.S. ousts the state of jurisdiction; see State v. Tully, 31 Mont. 365, 78 P. 760 (1904). The same applies in Nevada; see State v. Mack, 23 Nev. 359, 47 P. 763 (1897), and Pendleton v. State, 734 P.2d 693 (Nev. 1987); it applies in Oregon (see State v. Chin Ping, 91 Or. 593, 176 P. 188 (1918), and State v. Aguilar, 85 Or.App. 410, 736 P.2d 620 (1987)); and in Washington (see State v. Williams, 23 Wash.App. 694, 598 P.2d 731 (1979)).
In People v. Hammond, 1 Ill.2d 65, 115 N.E.2d 331 (1953), a burglary of an IRS office was held to be within state jurisdiction, the court holding that the defendant was required to prove existence of federal jurisdiction by U.S. ownership of the property and state cession of jurisdiction. In two cases from Michigan, larcenies committed at U.S. post offices which were rented were held to be within state jurisdiction; see People v. Burke, 161 Mich. 397, 126 N.W. 446 (1910), and People v. Van Dyke, 276 Mich. 32, 267 N.W. 778 (1936). See also In re Kelly, 311 Mich. 596, 19 N.W.2d 218 (1945). In Kansas City v. Garner, 430 S.W.2d 630 (Mo.App. 1968), state jurisdiction over a theft offense occurring in a federal building was upheld, and the court stated that a defendant had to show federal jurisdiction by proving U.S. ownership of the building and a cession of jurisdiction from the state to the United States. A similar holding was made for a theft at a U.S. missile site in State v. Rindall, 146 Mon. 64, 404 P.2d 327 (1965). In Pendleton v. State, 734 P.2d 693 (Nev. 1987), the state court was held to have jurisdiction over a D.U.I. committed on federal lands, the defendant having failed to show U.S. ownership and state cession of jurisdiction.
In People v. Gerald, 40 Misc.2d 819, 243 N.Y.S.2d 1001 (1963), the state was held to have jurisdiction of an assault at a U.S. post office since the defendant did not meet his burden of showing presence of federal jurisdiction; and because a defendant failed to prove title and jurisdiction in the United States for an offense committed at a customs station, state jurisdiction was upheld in People v. Fisher, 97 A.D.2d 651, 469 N.Y.S.2d 187 (A.D. 3 Dept. 1983). The proper method of showing federal jurisdiction in state court is demonstrated by the decision in People v. Williams, 136 Misc.2d 294, 518 N.Y.S.2d 751 (1987). This rule was likewise enunciated in State v. Burger, 33 Ohio App.3d 231, 515 N.E.2d 640 (1986), a case involving a D.U.I. offense committed on a road near a federal arsenal.
In Kuerschner v. State, 493 P.2d 1402 (Okl.Cr.App. 1972), the state was held to have jurisdiction of a drug sales offense occurring at an Air Force Base, the defendant not having attempted to prove federal jurisdiction by showing title and jurisdiction of the property in question in the United States; see also Towry v. State, 540 P.2d 597 (Okl.Cr.App. 1975). Similar holdings for murders committed at U.S. post offices were made in State v. Chin Ping, 91 Or. 593, 176 P. 188 (1918), and in United States v. Pate, 393 F.2d 44 (7th Cir. 1968). Another Oregon case, State v. Aguilar, 85 Or.App. 410, 736 P.2d 620 (1987), demonstrates this rule. Finally, in Curry v. State, 111 Tex. Cr. 264, 12 S.W.2d 796 (1928), it was held that, in the absence of proof that the state had ceded jurisdiction of a place to the United States, the state courts had jurisdiction over an offense.
Therefore, in federal criminal prosecutions involving jurisdictional type crimes, the government must prove the existence of federal jurisdiction by showing U.S. ownership of the place where the crime was committed and state cession of jurisdiction. If the government contends for the power to criminally prosecute for an offense committed outside “its jurisdiction,” it must prove an extra-territorial application of the statute in question as well as a constitutional foundation supporting the same. Absent this showing, no federal prosecution can be commenced for offenses committed outside “its jurisdiction.”
 See Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 529, 5 S.Ct. 995 (1885).
 The statutory definition of “United States” as expressed in this ¤ 5 is identical to the constitutional definition of this term; see Cunard S. S. Co. v. Mellon, 262 U.S. 100, 43 S.Ct. 504 (1923), which deals with the definition of “United States” as used in the 18th Amendment.
JURISDICTION of Federal Courts – Cites and Rulings
Federal Jurisdiction, Form #05.018 (OFFSITE LINK) -detailed treatment of federal jurisdiction.
SEDM Jurisdictions Database (OFFSITE LINK) -detailed treatment of all jurisdictions in the U.S.
Federal Enforcement Authority Within States of the Union, Form #05.032 (OFFSITE LINK) -detailed treatment of federal jurisdiction.
(39) Persons residing outside United States
If any citizen or resident of the United States does not reside in (and is not found in) any United States judicial district, such citizen or resident shall be treated as residing in the District of Columbia for purposes of any provision of this title relating to –
(A) jurisdiction of courts, or
(B) enforcement of summons.
U.S. Code Annotated, Article III-The Judiciary:
UNITED STATES CODE ANNOTATED
CONSTITUTION OF THE UNITED STATES
ARTICLE III–THE JUDICIARY
Current through P.L. 106-73, approved 10-19-1999
Section 2, Clause 1. Jurisdiction of Courts
Consent of the parties cannot confer subject matter jurisdiction on federal court, nor can party ever waive its right to challenge the subject matter jurisdiction of the court. United Indus. Workers, Service, Transp., Professional Government of North America of Seafarers’ Intern. Union of North America, Atlantic, Gulf, Lakes and Inland Waters Dist. AFL-CIO, (Local No. 16) on Behalf of Bouton v. Government of Virgin Islands, C.A.3 (Virgin Islands) 1993, 987 F.2d 162.
Federal jurisdiction cannot be conferred upon court by consent of parties, nor may its absence be waived. Commonwealth Land Title Ins. Co. v. U.S., D.Conn.1991, 759 F.Supp. 87.
United States district court has only limited jurisdiction, depending upon either the existence of a federal question or diverse citizenship of the parties, and where such elements of jurisdiction are wanting district court cannot proceed, even with the consent of the parties. Wolkstein v. Port of New York Authority, D.C.N.J.1959, 178 F.Supp. 209.
Parties may not by stipulation invoke judicial power of United States in litigation which does not present actual “case or controversy.” Sosna v. Iowa, U.S.Iowa 1975, 95 S.Ct. 553, 419 U.S. 393, 42 L.Ed.2d 532; Memphis Light, Gas and Water Division v. Craft, Tenn.1978, 98 S.Ct. 1554, 436 U.S. 1, 56 L.Ed.2d 30.
Parties may not confer jurisdiction either upon the Supreme Court of the United States or a United States District Court by stipulation. California v. LaRue, U.S.Cal.1972, 93 S.Ct. 390, 409 U.S. 109, 34 L.Ed.2d 342, rehearing denied 93 S.Ct. 1351, 410 U.S. 948, 35 L.Ed.2d 615.
Parties may not by stipulation invoke judicial power of the United States in litigation which does not present an actual case or controversy. Citizens Concerned for Separation of Church and State v. City and County of Denver, C.A.10 (Colo.) 1980, 628 F.2d 1289, certiorari denied 101 S.Ct. 3114, 452 U.S. 963, 69 L.Ed.2d 975.
Federal courts are not bound by factual stipulations that impact on their jurisdiction; hence, courts are not bound by stipulations on which existence of a “case or controversy” might turn. Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Aboard Tanker Dauntless Colocotronis, C.A.5 (La.) 1978, 577 F.2d 1196, certiorari denied 99 S.Ct. 2857, 442 U.S. 928, 61 L.Ed.2d 296.
Parties cannot invoke jurisdiction of federal court by stipulating to jurisdictional requirement of standing. Vannatta v. Keisling, D.Or.1995, 899 F.Supp. 488, affirmed 151 F.3d 1215, certiorari denied 119 S.Ct. 870, 142 L.Ed.2d 771.
Norwood v. Kenfield, 34 C. 329; Ex parte Giabonini, 117 C. 573, [49 P. 732]
“A universal principle as old as the law, is that a proceedings of a court without jurisdiction are a nullity and its judgment therein without effect either on person or property.”
[Norwood v. Kenfield, 34 C. 329; Ex parte Giabonini, 117 C. 573, [49 P. 732]]
Re Application of Wyatt, 114 Ca.App. 557, [300 P. 132]; Re Cavitt, 47 Cal.App.2d. 698, [118 P.2d. 846].
Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction to hear is void ab initio.
[Re Application of Wyatt, 114 Ca.App. 557, [300 P. 132]; Re Cavitt, 47 Cal.App.2d. 698, [118 P.2d. 846].]
Brooks v. Yawkey, 200 F. 2d 633
“…federal jurisdiction cannot be assumed, but must be clearly shown”.
[Brooks v. Yawkey, 200 F. 2d 633]
Stanard v. Olesen, 74 S. Ct. 768
“No sanction can be imposed absent proof of jurisdiction”.
[Stanard v. Olesen, 74 S. Ct. 768]
Osborn v. Bank of U.S., 22 U.S. 738, 1824 WL 2682 (U.S.,1824)
“But whatever may be the correct interpretation of the constitution upon this point, it has long been settled, that the Circuit Courts can exercise no jurisdiction but what is conferred upon them by law. The judiciary act does not vest them with jurisdiction where a State is a party. On the contrary, in a case like the present, it vests exclusive jurisdiction in the Supreme Court.”
[Osborn v. Bank of U.S., 22 U.S. 738, 1824 WL 2682 (U.S.,1824)]
‘In the first place, the State courts are older than the Federal courts. They were here administering justice and functioning between litigants for 150 years before the Federal Government was organized. When the Constitution was written and adopted these State courts were not abolished nor subordinated to the national courts created by the Constitution of the new nation. The national courts have jurisdiction only of those things conferred upon them by law. And at the time of the creation of the national courts and at time of writing the Constitution itself the State courts were kept as a separate and distinct judicial institution. As a result all cases that originate in the State court must be appealed to an appellate court of the State and thence to the Supreme Court of the State. All cases originating in the United States court must be appealed to the Circuit Court of the United States or to the Supreme Court of the United States. Nowhere has a Federal trial court been given supervisory or appellate jurisdiction over State judges.’ (emphasis added)
“A court lacking diversity jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking. 28 U.S.C.A. §1332.”
“Party invoking jurisdiction of the court has duty to establish that federal jurisdiction does not exist. 28 U.S.C.A. §§1332, 1332(c).”
“There is a presumption against existence of federal jurisdiction; thus, party invoking federal court’s jurisdiction bears the burden of proof. 28 U.S.C.A. §§1332, 1332(c); Fed.Rules Civ. Proc. rule 12(h)(3), 28 U.S.C.A.”
“If parties do not raise question of lack of jurisdiction, it is the duty of the federal court to determine the manner sua sponte. 28 U.S.C.A. §1332.”
“Lack of jurisdiction cannot be waived and jurisdiction cannot be conferred upon a federal court by consent, inaction, or stipulation. 28 U.S.C.A. §1332.”
“Although defendant did not present evidence to support dismissal for lack of jurisdiction, burden rested with plaintiffs to prove affirmatively that jurisdiction did exist. 28 U.S.C.A. §1332″. Basso v. Utah Power and Light Company, 495 F.2d 906 (1974)
Rule 12(h)(3) of the Federal Rules of Civil Procedure provides that ‘whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.’ A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking. Bradbury v. Dennis, 310 F.2d 73 (10th Cir. 1962), cert. denied, 372 U.S. 928, 83 S.Ct. 874, 9 L.Ed.2d 733 (1963). The party invoking the jurisdiction of the court has the duty to establish that federal jurisdiction does exist, Wilshire Oil Co. of Texas v. Riffe, 409 F.2d 1277 (10th Cir. 1969), but, since the courts of the United States are courts of limited jurisdiction, there is a presumption against its existence. City of Lawton, Okla. v. Chapman, 257 F.2d 601 (10th Cir. 1958). Thus, the party invoking the federal court’s jurisdiction bears the burden of proof. Becker v. Angle, 165 F.2d 140 (10th cir. 1947).
If the parties do not raise the question of lack of jurisdiction, it is the duty of the federal court to determine the matter sua sponte. Atlas Life Insurance Co. v. W. I. Southern Inc., 306 U.S. 563, 59 S.Ct. 657, 83 L.Ed. 987 (1939); Continental Mining and Milling Co. v. Migliaccio, 16 F.R.D. 217 (D.C. Utah 1954). Therefore, lack of jurisdiction cannot be waived and jurisdiction cannot be conferred upon a federal court by consent, inaction or stipulation. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); Natta v. Hogan, 392 F.2d 686 (10th Cir. 1968); Reconstruction Finance Corp. v. Riverview State Bank, 217 F.2d 455 (10th Cir. 1955).
[Basso v. Utah Power and Light Company, 495 F.2d 906 (1974)]
O’Donohue v. United States, 289 U.S. 516 (1933): Ruled that district courts were Art. III courts.
‘As the only judicial power vested in Congress is to create courts whose judges shall hold their offices during good behavior, it necessarily follows that, if Congress authorizes the creation of courts and the appointment of judges for a limited time, it must act independently of the Constitution and upon territory which is not part of the United States within the meaning of the Constitution. … It is sufficient to say that this case (The American Insurance Company et al. v. Canter, supra) has ever since been accepted as authority for the proposition that the judicial clause of the Constitution has no application to courts created in the territories, and that with respect to them Congress has a power wholly unrestricted by it.’ [289 U.S. 516, 543] After an exhaustive review of the prior decisions of this court relating to the matter, the following propositions, among others, were stated as being established:
- ‘1. That the District of Columbia and the territories are not states within the judicial clause of the Constitution giving jurisdiction in cases between citizens of different states;
- ‘2. That territories are not states within the meaning of Rev. St. 709, permitting writs of error from this court in cases where the validity of a state statute is drawn in question;
- ‘3. That the District of Columbia and the territories are states as that word is used in treaties with foreign powers, with respect to the ownership, disposition, and inheritance of property;
- ‘4. That the territories are not within the clause of the Constitution providing for the creation of a supreme court and such inferior courts as Congress may see fit to establish.’
IMPORTANCE OF JURISDICTION:
The major reason citizens of the 50 states have been punished for laws that were not applicable to them is because they did not challenge jurisdiction. They were, therefore, “presumed” to be citizens subject to the territorial jurisdiction of the United States Government. [Maxim: “A presumption not rebutted becomes law.”]
Challenging jurisdiction is done by demanding written legal FACTS from the agency asserting their jurisdiction over the subject matter and you. Remember, jurisdiction cannot be ASSUMED, it must be PROVEN! Without FACTS substantiating jurisdiction, a case cannot be held over for trial. A simple Freedom Form challenging jurisdiction is included here. Jurisdiction can also be challenged in Pre-Trial hearings.
(a) Exclusive Jurisdiction Not Required.— It is not required that the Federal Government obtain exclusive jurisdiction in the United States over land or an interest in land it acquires.
(b) Acquisition and Acceptance of Jurisdiction.— When the head of a department, agency, or independent establishment of the Government, or other authorized officer of the department, agency, or independent establishment, considers it desirable, that individual may accept or secure, from the State in which land or an interest in land that is under the immediate jurisdiction, custody, or control of the individual is situated, consent to, or cession of, any jurisdiction over the land or interest not previously obtained. The individual shall indicate acceptance of jurisdiction on behalf of the Government by filing a notice of acceptance with the Governor of the State or in another manner prescribed by the laws of the State where the land is situated.
(c) Presumption.— It is conclusively presumed that jurisdiction has not been accepted until the Government accepts jurisdiction over land as provided in this section.
The plaintiff in error insists that the Pennsylvania court had no jurisdiction to proceed against it; consequently the judgment it rendered was void for the want of the due process of law required by the 14th Amendment. If the defendant had no such actual, legal notice of the Pennsylvania suit as would bring it into court, or if it did not voluntarily appear therein by an authorized representative, then the Pennsylvania court was without jurisdiction, and the conclusion just stated would follow, even if the judgment would be deemed conclusive in the courts of that commonwealth. The constitutional requirement that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state is necessarily to be interpreted in connection with other provisions of the Constitution, and therefore no state can obtain in the tribunals of other jurisdictions full faith and credit for its judicial proceedings if they are wanting in the due process of law enjoined by the fundamental law. ‘No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party.’ Scott v. McNeal, 154 U.S. 34, 46 , 38 S. L. ed. 896, 901, 14 Sup. Ct. Rep. 1108. No state can, by any tribunal or representative, render nugatory a provision of the supreme law. And if the conclusiveness of a judgment of decree in a court of one state is questioned in a court of another government, Federal or state, it is open, under proper averments, to inquire whether the court rendering the decree or judgment had jurisdiction to render it.
Such is the settled doctrine of this court. In the leading case of Thompson v. Whitman, 18 Wall. 457, 468, 21 L. ed. 897, 901, the whole question was fully examined in the light of the authorities. Mr. Justice Bradley, speaking for the court and delivering its unanimous judgment, stated the conclusion to be clear that the jurisdiction of a court rendering judgment in one state may be questioned in a collateral proceeding in another state, [204 U.S. 8, 16] notwithstanding the averments in the record of the judgment itself. The court, among other things, said that if it be once conceded that ‘the validity of a judgment may be attacked collaterally by evidence showing that the court had no jurisdiction, it is not perceived how any allegation contained in the record itself, however strongly made, can affect the right so to question it. The very object of the evidence is to invalidate the paper as a record. If that can be successfully done no statements contained therein have any force. If any such statements could be used to prevent inquiry, a slight form of words might always be adopted so as effectually to nullify the right of such inquiry. Recitals of this kind must be regarded like asseverations of good faith in a deed, which avail nothing if the instrument is shown to be fraudulent.’ This decision was in harmony with previous decisions. Chief Justice Marshall had long before observed in Rose v. Himely, 4 Cranch, 241, 269, 2 L. ed. 608, 617, that, upon principle, the operation of every judgment must depend on the power of the court to render that judgment. In Williamson v. Berry, 8 How. 495, 540, 12 L. ed. 1170, 1189, it was said to be well settled that the jurisdiction of any court exercising authority over a subject ‘may be inquired into in every other court when the proceedings in the former are relied upon and brought before the latter by a party claiming the benefit of such proceedings,’ and that the rule prevails whether ‘the decree or judgment has been given in a court of admiralty, chancery, ecclesiastical court, or court of common law, or whether the point ruled has arisen under the laws of nations, the practice in chancery, or the municipal laws of states.‘ In his Commentaries on the Constitution, Story, 1313, referring to Mills v. Duryee, 7 Cranch, 481, 484, 3 L. ed. 411, 413, and to the constitutional requirement as to the faith and credit to be given to the records and judicial proceedings of a state, said: “But this does not prevent an inquiry into the jurisdiction of the court in which the original judgment was given, to pronounce it; or the right of the state itself to exercise authority over the person or the subject-matter. The Con- [204 U.S. 8, 17] stitution did not mean to confer [upon the states] a new power or jurisdiction, but simply to regulate the effect of the acknowledged jurisdiction over persons and things within the territory.” In the later case of Galpin v. Page, 18 Wall. 350, 365, 366, 368, 21 L. ed. 959, 962, 963,-decided after, but at the same term as, Thompson v. Whitman,-the court, after referring to the general rule as to the presumption of jurisdiction in superior courts of general jurisdiction, said that such presumptions ‘only arise with respect to jurisdictional facts concerning which the record is silent. Presumptions are only indulged to supply the absence of evidence or averments respecting the facts presumed. They have no place for consideration when the evidence is disclosed or the averment is made. When, therefore, the record states the evidence or makes an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred.’ In the same case: ‘It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court; by which is meant until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered.’
[Old Wayne Mut. Life Assn v. McDonough, 204 U.S. 8 (1907)]
“The canon of construction which teaches that legislation of Congress [Statutes or acts], unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States [the corporate U.S., which means ONLY the District of Columbia, Puerto Rico, territories, and other possessions], Blackmer v. United States, supra, 284 U.S. at 437, 52 S.Ct. at page 254, is a valid approach whereby unexpressed congressional intent may be ascertained It is based on the assumption that Congress is primarily concerned with domestic conditions. [“Domestic” being defined as in the corporate United States which includes ONLY the District of Columbia, Puerto Rico, territories, and other possessions.] We find nothing in the Act itself, as amended, nor in the legislative history, which would lead to the belief that Congress entertained any intention other than the normal one in this case. The situation here is different from that in Vermilya-Brown Co. v. Connell, 335 U.S. 377 , where we held that by specifically declaring that the Act covered ‘possessions’ of the United States, Congress directed that the Fair Labor Standards Act, 29 U.S.C.A. 201 et seq., applied beyond those areas over which the United States has sovereignty and was in effect in all ‘possessions.’ This Court concluded that the leasehold there involved was a ‘possession’ within the meaning of the Fair Labor Standards Act.”
In passing upon the questions involved in this and kindred cases, we ought not to overlook the fact that, while the Constitution was intended to establish a permanent form of government for the states which should elect to take advantage of its conditions, and continue for an indefinite future, the vast possibilities of that future could never have entered the minds of its framers. The states had but recently emerged from a war with one of the most powerful nations of Europe, were disheartened by the failure of the confederacy, and were doubtful as to the feasibility of a stronger union. Their territory was confined to a narrow strip of land on the Atlantic coast from Canada to Florida, with a somewhat indefinite claim to territory beyond the Alleghenies, where their sovereignty was disputed by tribes of hostile Indians supported, as was popularly believed, by the British, who had never formally delivered possession [182 U.S. 244, 285] under the treaty of peace. The vast territory beyond the Mississippi, which formerly had been claimed by France, since 1762 had belonged to Spain, still a powerful nation and the owner of a great part of the Western Hemisphere. Under these circumstances it is little wonder that the question of annexing these territories was not made a subject of debate. The difficulties of bringing about a union of the states were so great, the objections to it seemed so formidable, that the whole thought of the convention centered upon surmounting these obstacles. The question of territories was dismissed with a single clause, apparently applicable only to the territories then existing, giving Congress the power to govern and dispose of them.
Had the acquisition of other territories been contemplated as a possibility, could it have been foreseen that, within little more than one hundred years, we were destined to acquire, not only the whole vast region between the Atlantic and Pacific Oceans, but the Russian possessions in America and distant islands in the Pacific, it is incredible that no provision should have been made for them, and the question whether the Constitution should or should not extend to them have been definitely settled. If it be once conceded that we are at liberty to acquire foreign territory, a presumption arises that our power with respect to such territories is the same power which other nations have been accustomed to exercise with respect to territories acquired by them. If, in limiting the power which Congress was to exercise within the United States, it was also intended to limit it with regard to such territories as the people of the United States should thereafter acquire, such limitations should have been expressed. Instead of that, we find the Constitution speaking only to states, except in the territorial clause, which is absolute in its terms, and suggestive of no limitations upon the power of Congress in dealing with them. The states could only delegate to Congress such powers as they themselves possessed, and as they had no power to acquire new territory they had none to delegate in that connection. The logical inference from this is that if Congress had power to acquire new territory, which is conceded, that power was not hampered by the constitutional provisions. If, upon the other hand, we assume [182 U.S. 244, 286] that the territorial clause of the Constitution was not intended to be restricted to such territory as the United States then possessed, there is nothing in the Constitution to indicate that the power of Congress in dealing with them was intended to be restricted by any of the other provisions.
[. . .]
If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible; and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out, and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action.
We are therefore of opinion that the island of Porto Rico [Puerto Rico] is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; that the Foraker act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff cannot recover back the duties exacted in this case.
“The judicial power does not extend to the determination of abstract questions.” Muskrat v. United States, 219 U.S. 346, 361 , 31 S.Ct. 250; Liberty Warehouse Company v. Grannis, 273 U.S. 70, 74 , 47 S.Ct. 282; Willing v. Chicago Auditorium Ass’n, 277 U.S. 274, 289 , 48 S.Ct. 507; Nashville, Chattanooga & St. Louis R. Co. v. Wallace, 288 U.S. 249, 262 , 264 S., 53 S.Ct. 345, 87 A.L. R. 1191.”
It is clear, that Congress cannot punish felonies generally; and, of consequence, cannot punish misprision of felony. It is equally clear, that a State legislature, the State of Maryland for example, cannot punish those who, in another State, conceal a felony committed in Maryland. How, then, is it that Congress, legislating exclusively for a fort, punishes those who, out of that fort, conceal a felony committed within it?
The solution, and the only solution of the difficulty, is, that the power vested in Congress, as the legislature of the United States, to legislate exclusively within any place ceded by a State, carries with it, as an incident, the right to make that power effectual. If a felon escape out of the State in which the act has been committed, the government cannot pursue him into another State, and apprehend him there, but must demand him from the executive power of that other State. If Congress were to be considered merely as the local legislature for the fort or other place in which the offence might be committed, then this principle would apply to them as to other local [19 U.S. 264, 429] legislatures, and the felon who should escape out of the fort, or other place, in which the felony may have been committed, could not be apprehended by the marshal, but must be demanded from the executive of the State. But we know that the principle does not apply; and the reason is, that Congress is not a local legislature, but exercises this particular power, like all its other powers, in its high character, as the legislature of the Union. The American people thought it a necessary power, and they conferred it for their own benefit. Being so conferred, it carries with it all those incidental powers which are necessary to its complete and effectual execution.
Whether any particular law be designed to operate without the District or not, depends on the words of that law. If it be designed so to operate, then the question, whether the power so exercised be incidental to the power of exclusive legislation, and be warranted by the constitution, requires a consideration of that instrument. In such cases the constitution and the law must be compared and construed. This is the exercise of jurisdiction. It is the only exercise of it which is allowed in such a case. For the act of Congress directs, that ‘no other error shall be assigned or regarded as a ground or reversal, in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties,’ &c.
[. . .]
It is clear that Congress, as a legislative body, exercise two species of legislative power: the one, limited as to its objects, but extending all over the Union: the other, an absolute, exclusive legislative power over the District of Columbia. The preliminary inquiry in the case now before the Court, is, by virtue of which of these authorities was the law in question passed? When this is ascertained, we shall be able to determine its extent and application. In this country, we are trying the novel experiment of a divided sovereignty, between the national government and the States. The precise line of division between these is not always distinctly marked. Government is a moral not a mathematical science; and the powers of such a government especially, cannot be defined with mathematical [19 U.S. 264, 435] accuracy and precision. There is a competition of opposite analogies.
The foregoing considerations would lead, in case of doubt, to a construction of any statute [legislated act] as intended to be confined in its operation and effect to the territorial limits over which the lawmaker has general and legitimate power. ‘All legislation is prima facie territorial.’ Ex parte Blain, L. R. 12 Ch. Div. 522, 528; State v. Carter, 27 N. J. L. 499; People v. Merrill, 2 Park. Crim. Rep. 590, 596. Words having universal scope, such as ‘every contract in restraint of trade,’ ‘every person who shall monopolize,’ etc., will be taken, as a matter of course, to mean only everyone subject to such legislation, not all that the legislator subsequently may be able to catch. In the case of the present statute, the improbability of the United States attempting to make acts done in Panama or Costa Rica criminal is obvious, yet the law begins by making criminal the acts for which it gives a right to sue. We think it entirely plain that what the defendant did in Panama or Costa Rica is not within the scope of the statute so far as the present suit is concerned. Other objections of a serious nature are urged, but need not be discussed.
[American Banana Co. v. U.S. Fruit, 213 U.S. 347 at 357-358]
“Legislation [statutes or acts] is presumptively territorial and confined to limits over which the law-making power has jurisdiction. American Banana Company v. United Fruit Co., 213 U.S. 347, 357 , 29 S. Sup. Ct. 511, 16 Ann. Cas. 1047. In Patterson v. Bark Eudora, supra, this court declared such legislation as to foreign vessels in United States ports to be constitutional. We think that [248 U.S. 185, 196] there is nothing in this section to show that Congress intended to take over the control of such contracts and payments as to foreign vessels except while they were in our ports. Congress could not prevent the making of such contracts in other jurisdictions. If they saw fit to do so, foreign countries would continue to permit such contracts and advance payments no matter what our declared law or policy in regard to them might be as to vessels coming to our ports.”
[Sandberg v. McDonald, 248 U.S. 185 (1918)]
“Special provision is made in the constitution, for the cession of jurisdiction from the states over places where the federal government shall establish forts, or other military works. And it is only in these places, or in the territories of the United States, where it can exercise a general jurisdiction.”
[New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836)]
In Foley Bros. v. Filardo,12 we had occasion to refer to the ‘canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States * * * .’ That presumption, far from being overcome here, is doubly fortified by the language of this statute and the legislative purpose underlying it.
[U.S. v. Spelar, 338 U.S. 217 at 222 (1949)]
Pollard v. Hagan, 44 U.S. 213, 221, 223 (1845) VERY IMPORTANT !!!!!!
“. . .the United States never held any municipal sovereignty, jurisdiction, or right of soil in Alabama or any of the new states which were formed … “
When Alabama was admitted into the union, on an equal footing with the original states, she succeeded to all the rights of sovereignty, jurisdiction, and eminent domain which Georgia possessed at the date of the cession, except so far as this right was diminished by the public lands remaining in the possession and under the control of the United States, for the temporary purposes provided for in the deed of cession and the legislative acts connected with it. Nothing remained to the United States, according to the terms of the agreement, but the public lands. And, if an express stipulation had been inserted in the agreement, granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative: because the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a state or elsewhere, except in the cases in which it is expressly granted. 7 ”
“… the states are separate sovereigns with respect to the federal government”
“Jurisdiction . . . is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.” Id., at 682 (citations omitted). 10
Lowe v. Alexander 15 Cal. 296 VERY IMPORTANT !!!!!!
It is well settled that no intendments can be indulged in favor of the jurisdiction of inferior courts, but that their jurisdiction must affirmatively appear, or their judgments will be absolutely void. “The general distinction seems to be fully agreed, that power and authority shall be intended as to courts of general jurisdiction, but as to inferior or limited courts, those who claim any right or exemption under their proceedings, are bound to show affirmatively that they had jurisdiction.” (1 Phil. Ev. Cow. & Hill’s notes, 206.) There is no doubt about the law upon this subject, and the authorities are so numerous, and so familiar to the profession, that a citation of them is entirely unnecessary.”
[Lowe v. Alexander 15 Cal. 296]
Louisville RR v. Motley, 211 U.S. 149, 29 S.Ct. 42 (1908) VERY IMPORTANT !!!!!!
“Neither party has questioned that jurisdiction, but it is the duty of this court to see to it that the jurisdiction of the circuit court, which is defined and limited by statute, is not exceeded. This duty we have frequently performed of our own motion. Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 , 28 S. L. ed. 462, 463, 4 Sup. Ct. Rep. 510; King Iron Bridge & Mfg. Co. v. Otoe County, 120 U.S. 225 , 30 L. ed. 623, Sup. Ct. Rep. 552; Blacklock v. Small, 127 U.S. 96, 105 , 32 S. L. ed. 70, 73, 8 Sup. Ct. Rep. 1096; Cameron v. Hodges, 127 U.S. 322, 326 , 32 S. L. ed. 132, 134, 8 Sup. Ct. Rep. 1154; Metcalf v. Watertown, 128 U.S. 586, 587 , 32 S. L. ed. 543, 9 Sup. Ct. Rep. 173; Continental Nat. Bank v. Buford, 191 U.S. 120 , 48 L. ed. 119, 24 Sup. Ct. Rep. 54. ”
There was no diversity of citizenship, and it is not and cannot be suggested that there was any ground of jurisdiction, except that the case was ‘suit . . . arising under the Constitution or laws of the United States.’ 25 Stat. at L. 434, chap. 866, U. S. Comp. Stat. 1901, p. 509. It is the settled interpretation of these words, as used in this statute, conferring jurisdiction, that a suit arises under the Constitution and laws of the United States only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United States.
“In addition, there are several well known subordinate principles. The Government may not be sued except by its consent. The United States has not submitted to suit for specific performance*99 or for an injunction. This immunity may not be avoided by naming an officer of the Government as a defendant. The officer may be sued only if he acts in excess of his statutory authority or in violation of the Constitution for then he ceases to represent the Government.”
[U.S. ex. rel. Brookfield Const. Co. v. Stewart, 284 F.Supp. 94 (1964)]
“Our own experience is fully consistent with the common law’s rejection of a rule of judicial immunity from prospective relief. We never have had a rule of absolute judicial immunity from prospective relief, and there is no evidence that the absence of that immunity has had a chilling effect on judicial independence. None of the seminal opinions on judicial immunity, either in England or in this country, has involved [466 U.S. 522, 537] immunity from injunctive relief. 15 No Court of Appeals ever has concluded that immunity bars injunctive relief against a judge. See n. 6, supra. At least seven Circuits have indicated affirmatively that there is no immunity bar to such relief, and in situations where in their judgment an injunction against a judicial officer was necessary to prevent irreparable injury to a petitioner’s constitutional rights, courts have granted that relief. 16 ”
We also agree with the Rankin court that immunity for judicial acts in the clear absence of jurisdiction is lost only if the judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes or case law expressly depriving him of jurisdiction. See 633 F.2d at 849. Issues of jurisdiction are often complex, and judges should be free to decide them without concern that their errors may subject them to liability.
In the instant case, the federal district court judge assumed that a court which had subject matter jurisdiction did not act in the clear absence of jurisdiction. The court refused to reconsider its ruling when the appellants introduced Rankin as new authority. Because the issues of whether Judge Hosemann knew he lacked personal jurisdiction or acted in the face of clearly valid statutes or case law expressly depriving him of jurisdiction are matters for initial determination in the district court, we reverse the order dismissing the claim against Judge Hosemann and remand to the district court for further proceedings not inconsistent with this opinion.FN10
[Dykes v. Hosemann, 743 F.2d 1488 (1984)]
Manning v. Ketcham, 58 F.2d 948 (1932) VERY IMPORTANT !!!!!!
An affirmance results. When a judge acts in the clear absence of all jurisdiction, i. e., of authority to act officially over the subject-matter in hand, the proceeding is coramnon judice. In such a case the judge has lost his judicial function, has become a mere private person, and is liable as a trespasser for the damages resulting from his unauthorized acts. Such has been the law from the days of the case of The Marshalsea, 10 Coke 68. It was recognized as such in Bradley v. Fisher, 13 Wall. (80 U. S.) 335, 351, 20 L. Ed. 646. In State ex rel. Egan v. Wolever, 127 Ind. 306, 26 N. E. 762, 763, the court said: ‘The converse statement of it is also ancient. Where there is no jurisdiction at all there is no judge; the proceeding is as nothing.’
Honesty of purpose and sincere belief that appellant was acting in the discharge of his official duty under his oath of office and for the public welfare is not available as a defense further than in mitigation of damages. See Glazar v. Hubbard, 102 Ky. 68, 69, 42 S. W. 1114, 39 L. R. A. 210, 80 Am. St. Rep. 340; Prell v. McDonald, 7 Kan. 266, 283, 12 Am. Rep. 423; DeCourcey v. Cox, 94 Cal. 665, 669, 30 P. 95; Truesdell v. Combs, 33 Ohio St. 186, 194.
[Manning v. Ketcham, 58 F.2d 948 (1932)]
In the present case we have looked into the authorities and are clear, from them, as well as from the principle on which any exemption is maintained, that the qualifying words used were not necessary to a correct statement of the law, and that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offences, jurisdiction over the subject of offences being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over offences committed within a certain district, should hold a particular act to be a public offence, which is not by the law made an offence, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked. Indeed some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised. And the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reasons.
*12 The distinction here made between acts done in excess of jurisdiction and acts where no jurisdiction whatever over the subject-matter exists, was taken by the Court of King’s Bench, in Ackerley v. Parkinson. FN18 In that case an action was brought against the vicar-general of the Bishop of Chester and his surrogate, who held the consistorial and episcopal court of the bishop, for excommunicating the plaintiff with the greater excommunication for contumacy, in not taking upon himself the administration of an intestate’s effects, to whom the plaintiff was next of kin, the citation issued to him being void, and having been so adjudged. The question presented was, whether under these circumstances the action would lie. The citation being void, the plaintiff had not been legally brought before the court, and the subsequent proceedings were set aside, on appeal, on that ground. Lord Ellenborough observed that it was his opinion that the action was not maintainable if the ecclesiastical court had a general jurisdiction over the subject-matter, although the citation was a nullity, and said, that ‘no authority had been cited to show that the judge would be liable to an action where he has jurisdiction, but has proceeded erroneously, or, as it is termed, inverso ordine.’ Mr. Justice Blanc said there was ‘a material distinction between a case where a party comes to an erroneous conclusion in a matter over which he has jurisdiction and a case where he acts wholly without jurisdiction;’ and held that where the subject-matter was within the jurisdiction of the judge, and the conclusion was erroneous, although the party should by reason of the error be entitled to have the conclusion set aside, and to be restored to his former rights, yet he was not entitled to claim compensation in damages for the injury done by such erroneous conclusion, as if the court had proceeded without any jurisdiction.FN19
[Bradley v.Fisher,80 U.S. 335, 13 Wall 335, 351, 352 (1871)]
Few doctrines were more solidly [386 U.S. 547, 554] established at Common Law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it ” is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” (Scott v. Stansfield, L. R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 349, note, at 350.) It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.
We do not believe that this settled principle of law was abolished by 1983, which makes liable ” every person” who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. Accordingly, this Court held in Tenney v. Brandhove, 341 U.S. 367 (1951), that the immunity of legislators for acts within the legislative role was not abolished. The immunity of judges for acts within the judicial role is equally well established, and [386 U.S. 547, 555] we presume that Congress would have specifically so provided had it wished to abolish the doctrine. 9
The Common Law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is rather that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. Restatement, Second, Torts 121 (1965); 1 Harper & James, The Law of Torts 3.18, at 277-278 (1956); Ward v. Fidelity & Deposit Co. of Maryland, 179 F.2d 327 (C. A. 8th Cir. 1950). A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, 10 the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.
U.S. v. Will, 449 U.S. 200 (1980) VERY IMPORTANT !!!!!!
“In another, not unrelated context, Chief Justice Marshall’s exposition in Cohens v. Virginia, 6 Wheat, 264 (1821), could well have been the explanation of the Rule of Necessity; he wrote that a court “must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them.” Id., at 404 (emphasis added)
[U.S. v. Will, 449 U.S. 200 (1980)]
FEDERAL RULES OF CIVIL PROCEDURE CITES RELATING TO JURISDICTION:
VERY IMPORTANT !!!!!!
Federal Rules of Civil Procedure, Rule 12(b) provides the escape clause from federal prosecution for the citizens of the 50 states:
Rule 12. Defenses and Objections–
(b) “…the following defenses may at the option of the pleader be made by motion:
(1) lack of jurisdiction over the subject matter.
(2) lack of jurisdiction over the person.
…A motion making any of these defenses shall be made before pleading..
(h)(3) “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”
Pacemaker Diagnostic Clinic of America Inc. v. Instromedix Inc., 725 F.2d 537 (9th Cir. 02/16/1984)
Pacemaker argues that in the federal system a party may not consent to jurisdiction, so that the parties cannot waive their rights under Article III. The maxim that parties may not consent to the jurisdiction of federal courts is not applicable here. The rule is irrelevant because it applies only where the parties attempt to confer upon an Article III court a subject matter jurisdiction that Congress or the Constitution forbid. See, e.g., Jackson v. Ashton, 33 U.S. (8 Peters), 148, 148-49, 8 L. Ed. 898 (1834); Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan, 111 U.S. 379, 28 L. Ed. 462, 4 S. Ct. 510 (1884). The limited jurisdiction of the federal courts and the need to respect the boundaries of federalism underlie the rule. In the instant case, however, the subject matter, patents, is exclusively one of federal law. The Supreme Court has explicitly held that Congress may “confer upon federal courts jurisdiction conditioned upon a defendant’s consent.” Williams v. Austrian, 331 U.S. 642, 652, 91 L. Ed. 1718, 67 S. Ct. 1443 (1947); see Harris v. Avery Brundage Co., 305 U.S. 160, 83 L. Ed. 100, 59 S. Ct. 131 (1938). The litigant waiver in this case is similar to waiver of a defect in jurisdiction over the person, a waiver federal courts permit. Hoffman v. Blaski, 363 U.S. 335, 343, 4 L. Ed. 2d 1254, 80 S. Ct. 1084 (1960).
[Pacemaker Diagnostic Clinic of America Inc. v. Instromedix Inc., 725 F.2d 537 (9th Cir. 02/16/1984)]
In International Shoe Co. v. Washington, 326 U.S. 310 (1945), the Supreme Court held that a court may exercise personal jurisdiction over a defendant consistent with due process only if he or she has “certain minimum contacts” with the relevant forum “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Unless a defendant’s contacts with a forum are so substantial, continuous, and systematic that the defendant can be deemed to be “present” in that forum for all purposes, a forum may exercise only “specific” jurisdiction – that is, jurisdiction based on the relationship between the defendant’s forum contacts and the plaintiff’s claim. The parties agree that only specific jurisdiction is at issue in this case.
In this circuit, we analyze specific jurisdiction according to a three-prong test:
(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (quoting Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). The first prong is determinative in this case. We have sometimes referred to it, in shorthand fashion, as the “purposeful availment” prong. Schwarzenegger, 374 F.3d at 802. Despite its label, this prong includes both purposeful availment and purposeful direction. It may be satisfied by purposeful availment of the privilege of doing business in the forum; by purposeful direction of activities at the forum; or by some combination thereof.
We have typically treated “purposeful availment” somewhat differently in tort and contract cases. In tort cases, we typically inquire whether a defendant “purposefully direct[s] his activities” at the forum state, applying an “effects” test that focuses on the forum in which the defendant’s actions were felt, whether or not the actions themselves occurred within the forum. See Schwarzenegger, 374 F.3d at 803 (citing Calder v. Jones, 465 U.S. 783, 789-90 (1984)). By contrast, in contract cases, we typically inquire whether a defendant “purposefully avails itself of the privilege of conducting activities” or “consummate[s] [a] transaction” in the forum, focusing on activities such as delivering goods or executing a contract. See Schwarzenegger, 374 F.3d at 802. However, this case is neither a tort nor a contract case. Rather, it is a case in which Yahoo! argues, based on the First Amendment, that the French court’s interim orders are unenforceable by an American court.
LICRA and UEJF contend that we must base our analysis on the so-called “effects” test of Calder v. Jones, 465 U.S. 783 (1984), which is normally employed in purposeful direction cases. See, e.g., CE Distrib., LLC v. New Sensor Corp., 380 F.3d 1107, 1111 (9th Cir. 2004); Schwarzenegger, 374 F.3d at 803; Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002). In Calder, a California-based entertainer sued the National Enquirer and various individual defendants for an allegedly defamatory article published in the Enquirer. The article had been written and edited in Florida, and the defendants had few contacts with California. The Court nonetheless upheld the exercise of personal jurisdiction in California because the defendants knew that the article would have an effect in that state. In the words of the Court, the defendants had not engaged in “mere untargeted negligence”; rather, their “intentional, and allegedly tortious, actions were expressly aimed at California.” 465 U.S. at 789.
In this circuit, we construe Calder to impose three requirements: “the defendant allegedly [must] have
(1) committed an intentional act,
(2) expressly aimed at the forum state,
(3) causing harm that the defendant knows is likely to be suffered in the forum state.” Schwarzenegger, 374 F.3d at 803 (quoting Dole Food, 303 F.3d at 1111).
In some of our cases, we have employed a slightly different formulation of the third requirement, specifying that the act must have “caused harm, the brunt of which is suffered and which the defendant knows is likely to be suffered in the forum state.” Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082, 1087 (9th Cir. 2000) (emphasis added). The “brunt” of the harm formulation originated in the principal opinion in Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482 (9th Cir. 1993). That opinion required that the “brunt” of the harm be suffered in the forum state; based on that requirement, it concluded that there was no purposeful availment by the defendant. Id. at 1486. A dissenting judge would have found purposeful availment. Relying on the Supreme Court’s opinion in Keeton v. Hustler Magazine, 465 U.S. 770 (1984), he specifically disavowed the “brunt” of the harm formulation. Core-Vent, 11 F.3d at 1492 (Wallace, C.J., dissenting) (“[T]he Supreme Court has already rejected the proposition that the brunt of the harm must be suffered in the forum.”). Without discussing the disputed “brunt” of the harm formulation, a concurring judge agreed with the dissenter that purposeful availment could be found. Id. at 1491 (Fernandez, J., concurring) (“I agree with Chief Judge Wallace that purposeful availment can be found in this case.”). Later opinions picked up the “brunt” of the harm formulation of the principal opinion in Core-Vent without noting that at least one, and possibly two, of the judges on the panel disagreed with it. See, e.g., Bancroft & Masters, 223 F.3d at 1087; Panavision, 141 F.3d at 1321; Caruth v. Int’l Psychoanalytical Ass’n, 59 F.3d 126, 128 (9th Cir. 1995).
We take this opportunity to clarify our law and to state that the “brunt” of the harm need not be suffered in the forum state. If a jurisdictionally sufficient amount of harm is suffered in the forum state, it does not matter that even more harm might have been suffered in another state. In so stating we are following Keeton, decided the same day as Calder, in which the Court sustained the exercise of personal jurisdiction in New Hampshire even though “[i]t is undoubtedly true that the bulk of the harm done to petitioner occurred outside New Hampshire.” 465 U.S. at 780.
LICRA and UEJF contend that the Calder effects test is not satisfied because, in their view, Calder requires that the actions expressly aimed at and causing harm in California be tortious or otherwise wrongful. LICRA and UEJF contend that they have done no more than vindicate their rights under French law, and that their behavior has therefore not been wrongful. They conclude that their behavior therefore does not confer personal jurisdiction in California. We agree with LICRA and UEJF that the Calder effects test is appropriately applied to the interim orders of the French court. But we disagree with them about the meaning and application of Calder.
In any personal jurisdiction case we must evaluate all of a defendant’s contacts with the forum state, whether or not those contacts involve wrongful activity by the defendant. See, e.g., Quill Corp. v. North Dakota, 504 U.S. 298, 308 (1992) (upholding jurisdiction to enforce state tax on out-of-state corporation that sent catalogs and goods to forum); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 479 (1985) (upholding personal jurisdiction based on a course of dealing related to a franchise agreement). Many cases in which the Calder effects test is used will indeed involve wrongful conduct by the defendant. See, e.g., Calder, 465 U. S. at 790, (allegedly defamatory publication purposefully directed at California); Bancroft & Masters, 223 F.3d at 1088 (wrongful interference with California corporation’s use of domain name); Sinatra v. Nat’l Enquirer, Inc., 854 F.2d 1191, 1192 (9th Cir. 1988) (unauthorized use of celebrity’s name and likeness to promote Swiss clinic); Lake, 817 F.2d at 1422-23 (provision of legal services to secure allegedly improper custody order). But we do not read Calder necessarily to require in purposeful direction cases that all (or even any) jurisdictionally relevant effects have been caused by wrongful acts. We do not see how we could do so, for if an allegedly wrongful act were the basis for jurisdiction, a holding on the merits that the act was not wrongful would deprive the court of jurisdiction.
We therefore analyze all of LICRA and UEJF’s contacts with California relating to its dispute with Yahoo!, irrespective of whether they involve wrongful actions by LICRA and UEJF. There are three such contacts. The first two contacts, taken by themselves, do not provide a sufficient basis for jurisdiction. However, the third contact, considered in conjunction with the first two, does provide such a basis.
The first contact is the cease and desist letter that LICRA sent to Yahoo!, demanding that Yahoo! alter its behavior in California to conform to what LICRA contended were the commands of French law. A cease and desist letter is not in and of itself sufficient to establish personal jurisdiction over the sender of the letter. Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc., 148 F.3d 1355, 1361 (Fed. Cir. 1998) (“A patentee should not subject itself to personal jurisdiction in a forum solely by informing a party who happens to be located there of suspected infringement.”). There are strong policy reasons to encourage cease and desist letters. They are normally used to warn an alleged rights infringer that its conduct, if continued, will be challenged in a legal proceeding, and to facilitate resolution of a dispute without resort to litigation. If the price of sending a cease and desist letter is that the sender thereby subjects itself to jurisdiction in the forum of the alleged rights infringer, the rights holder will be strongly encouraged to file suit in its home forum without attempting first to resolve the dispute informally by means of a letter. See Red Wing Shoe, 148 F.3d at 1360-1361; Cascade Corp. v. Hiab-Foco AB, 619 F.2d 36, 38 (9th Cir. 1980); Douglas Furniture Co. of Cal., Inc. v. Wood Dimensions, Inc., 963 F. Supp. 899, 903 (C.D. Cal. 1997) (“If any attempt by an intellectual property holder to put an alleged wrongdoer on notice forced the property holder to submit to the jurisdiction of the alleged wrongdoer’s forum, an intellectual property owner would be forced to file an action in his own jurisdiction in order to avoid the threat of being haled before a court in another, possibly distant state.”).
This is not to say that a cease and desist letter can never be the basis for personal jurisdiction. For example, in Bancroft & Masters, we upheld jurisdiction based on two letters sent by Augusta National Inc. (“ANI”), based in Georgia, contending that Bancroft & Masters, Inc. (“B & M”) was improperly using its domain name. One letter was sent to Network Solutions, Inc. (“NSI”) in Virginia. NSI was then the sole registrar of domain names. The other, a cease and desist letter, was sent to B & M at its corporate offices in California. B & M sued ANI in federal district court in California seeking a declaratory judgment that it had the right to the disputed domain name. On the assumption that B & M’s factual allegation was true, we held that the letters were intended to trigger NSI’s dispute resolution procedures, to interfere wrongfully with B & M’s use of its domain name, and to misappropriate that name for ANI’s own use. 223 F.3d at 1087. We therefore upheld jurisdiction under Calder based on the letters.
LICRA’s letter was not used to facilitate settlement. Although it stated that LICRA would file suit in eight days if Yahoo! had not complied with LICRA’s demands, LICRA filed suit five days after the date of the letter. Nonetheless, LICRA’s letter to Yahoo! was more like a normal cease and desist letter than the letters at issue in Bancroft & Masters, for it was not abusive, tortious or otherwise wrongful. Rather, it simply alerted Yahoo! to its view of French law and stated its intent to file suit in France to enforce that law against Yahoo!.
Under these circumstances, we do not believe that LICRA’s letter is a contact that would, if considered alone, justify the exercise of personal jurisdiction.
LICRA and UEJF’s second contact (or, more precisely, set of contacts) with California was service of process on Yahoo! in California. LICRA first effected service of process to commence the French suit. LICRA and UEJF later effected service of the French court’s two interim orders. We do not regard the service of documents in connection with a suit brought in a foreign court as contacts that by themselves justify the exercise of personal jurisdiction over a foreign litigant in a United States court. If we were to hold that such service were a sufficient basis for jurisdiction, we would be providing a forum-choice tool by which any United States resident sued in a foreign country and served in the United States could bring suit in the United States, regardless of any other basis for jurisdiction. We are unaware of any case so holding, and Yahoo! has cited none.
Third, and most important, LICRA and UEJF have obtained two interim orders from the French court directing Yahoo! to take actions in California, on threat of a substantial penalty. We agree with LICRA and UEJF that the French court’s orders are appropriately analyzed under the Calder effects test.
The first two requirements are that LICRA and UEJF “have ‘(1) committed an intentional act, [which was] (2) expressly aimed at the forum state[.]’ ” Schwarzenegger, 374 F.3d at 805 (quoting Dole Food, 303 F.3d at 1111). It is obvious that both requirements are satisfied. LICRA intentionally filed suit in the French court. Indeed, it had previously signaled its intent to file suit in its April 5 letter to Yahoo!. UEJF intentionally joined LICRA’s suit ten days later. Further, LICRA and UEJF’s suit was expressly aimed at California. The suit sought, and the French court granted, orders directing Yahoo! to perform significant acts in California. It is of course true that the effect desired by the French court would be felt in France, but that does not change the fact that significant acts were to be performed in California. The servers that support yahoo.com are located in California, and compliance with the French court’s orders necessarily would require Yahoo! to make some changes to those servers. Further, to the extent that any financial penalty might be imposed pursuant to the French court’s orders, the impact of that penalty would be felt by Yahoo! at its corporate headquarters in California. See Dole Food, 303 F.3d at 1113-14.
The third requirement is that LICRA and UEJF’s acts ” ‘caus[e] harm that the defendant knows is likely to be suffered in the forum state.’ ” Id. This requirement is somewhat problematic, for Yahoo! has not shown or even alleged any specific way in which it has altered its behavior in response to the French court’s interim orders. Yahoo! changed its policy with respect to Yahoo.com after the French court’s orders were entered, but Yahoo! has consistently maintained that the change was unrelated to the orders. Therefore, even if we were persuaded that Yahoo!’s change of policy harmed it in some way, Yahoo! itself has represented that such harm was not caused by any action of LICRA or UEJF. Nor is it clear that, absent the interim orders, Yahoo! would change its policy in the future. Indeed, Yahoo! represented to us during oral argument that there is nothing that it would like to do, but is now refraining from doing, because of the interim orders.
Yahoo!, however, points to the possibility that a substantial penalty will be assessed under the French court’s November 20 interim order. It points in particular to the provision in that order specifying that the potential amount of the penalty increases by 100,000 Francs for every day that Yahoo! is in violation of the court’s orders. Yahoo! represents to us that even now, after its change of policy, it is acting in plain violation of the orders. It contends that a declaratory judgment determining the enforceability by an American court of the French court’s orders will allow it to determine an appropriate course of conduct with respect to the activities in which it continues to engage. The district court found that, notwithstanding its new policy, the Yahoo.com auction site still offers certain items for sale (such as stamps, coins, and a copy of Mein Kampf) which appear to violate the French Order. While Yahoo! has removed the Protocol of the Elders of Zion from its auction site, it has not prevented access to numerous other sites which reasonably “may be construed as constituting an apology for Nazism or a contesting of Nazi crimes.”
Suits by Foreign States.—The privilege of a recognized foreign state to sue in the courts of another state upon the principle of comity is recognized by both international law and American constitutional law.1029 To deny a sovereign this privilege “would manifest a want of comity and friendly feeling.”1030 Although national sovereignty is continuous, a suit in behalf of a national sovereign can be maintained in the courts of the United States only by a government which has been recognized by the political branches of our own government as the authorized government of[p.775]the foreign state.1031 As the responsible agency for the conduct of foreign affairs, the State Department is the normal means of suggesting to the courts that a sovereign be granted immunity from a particular suit.1032 Once a foreign government avails itself of the privilege of suing in the courts of the United States, it subjects itself to the procedure and rules of decision governing those courts and accepts whatever liabilities the court may decide to be a reasonable incident of bringing the suit.1033 The rule that a foreign nation instituting a suit in a federal district court cannot invoke sovereign immunity as a defense to a counterclaim growing out of the same transaction has been extended to deny a claim of immunity as a defense to a counterclaim extrinsic to the subject matter of the suit but limited to the amount of the sovereign’s claim.1034 Moreover, certain of the benefits extending to a domestic sovereign do not extend to a foreign sovereign suing in the courts of the United States. A foreign state does not receive the benefit of the rule which exempts the United States and its member States from the operation of the statute of limitations, because those considerations of public policy back of the rule are regarded as absent in the case of the foreign sovereign.1035
[. . .]
Narrow Construction of the Jurisdiction.—As in cases of diversity jurisdiction, suits brought to the federal courts under this category must clearly state in the record the nature of the parties. As early as 1809, the Supreme Court ruled that a federal court could not take jurisdiction of a cause where the defendants were described in the record as “late of the district of Maryland,” but were not designated as citizens of Maryland, and plaintiffs were described as aliens and subjects of the United Kingdom.1037 The meticulous care manifested in this case appeared twenty years later when the Court narrowly construed Sec. 11 of the Judiciary Act of 1789, vesting the federal courts with jurisdiction when an alien was a party, in order to keep it within the limits of this clause. The judicial power was further held not to extend to private suits in which an alien is a party, unless a citizen is the adverse party.1038 This interpretation was extended in 1870 by a holding that if there is more than one plaintiff or defendant, each plaintiff or defendant must be competent to sue or liable to suit.1039 These rules, however, do not preclude a suit between citizens of the same State if the plaintiffs are merely nominal parties and are suing on behalf of an alien.1040
FEDERAL STUDY ON JURISDICTION WITHIN THE STATES:
In June, 1957, the government of the United States published a work entitled Jurisdiction Over Federal Areas Within The States: Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States, Part II. The Committee stated at pg. 45 :
“It scarcely needs to be said that unless there has been a transfer of jurisdiction pursuant to clause 17 by a Federal acquisition of land with State consent, or by cession from the State to the Federal Government, or unless the Federal Government has reserved jurisdiction upon admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, such jurisdiction being for exercise by the State, subject to non-interference by the State with Federal functions…”
“The consent requirement of Article I, section 8, clause 17 was intended by the framers of the Constitution to preserve the State’s jurisdictional integrity against federal encroachment. The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State,” Id., at 46.
According to the April, 1956, report (Part I), pages 41-47 of the Interdepartmental Committee “Study Of Jurisdiction Over Federal Areas Within The States,” the court has recognized three methods by which the federal government may acquire exclusive legislative jurisdiction over a physical area:
Constitutional consent.—Other than the District of Columbia, the Constitution gives express recognition to but one means of Federal acquisition of legislative jurisdiction– purchase with State consent under article I, section 8, clause 17.
…”and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the creation of forts, magazines, arsenals, dockyards and other needful buildings….”
“The debates in the Constitutional Convention and State ratifying conventions leave little doubt that both the opponents and proponents of Federal exercise of exclusive legislature jurisdiction over the seat of government were of the view that a constitutional provision such as clause 17 was essential if the Federal government was to have such jurisdiction…. While, as has been indicated in the preceding chapter, little attention was given in the course of the debates to Federal exercise of exclusive legislative jurisdiction over areas other than the seat of government, it is reasonable to assume that it was the general view that a special constitution provision was essential to enable the United States to acquire exclusive legislative jurisdiction over any area…”
According to the 1956 report, pages 7-8, “… the provision of the second portion, for transfer of like jurisdiction [as the District of Columbia] to the Federal Government over other areas acquired for Federal purposes, was not uniformly exercised during the first 50 years of the existence of the United States. It was exercised with respect to most, but not all, lighthouse sites, with respect to various forts and arsenals, and with respect to a number of other individual properties. But search of appropriate records indicates that during this period it was often the practice of the Government merely to purchase the lands upon which its installations were to be placed and to enter into occupancy for the purposes intended, without also acquiring legislative jurisdiction over the lands.”
“Federal reservation.–In Fort Leavenworth R.R. v. Lowe, 114 U.S. 525 (1885), the Supreme Court approved a method not specified in the Constitution of securing legislative jurisdiction in the United States. Although the matter was not in issue in the case, the Supreme Court said (p. 526):
“The land constituting the Reservation was part of the territory acquired in 1803 by cession from France, and until the formation of the State of Kansas, and her admission into the Union, the United States possessed the rights of a proprietor, and had political dominion and sovereignty over it. For many years before that admission it had been reserved from sale by the proper authorities of the United States for military purposes, and occupied by them as a military post. The jurisdiction of the United States over it during this time was necessarily paramount. But in 1861 Kansas was admitted into the Union upon an equal footing with the original States, that is, with the same rights of political dominion and sovereignty, subject like them only to the Constitution of the United States. Congress might undoubtedly, upon such admission, have stipulated for retention of the political authority, dominion and legislative power of the United States over the Reservation so long as it should be used for military purposes by the government; that is, it could have excepted the place from the jurisdiction of Kansas, as one needed for the uses of the general government. But from some cause, inadvertence perhaps, or over-confidence that a recession of such jurisdiction could be had whenever desired, no such stipulation or exception was made.”(See also United States v. Gratoit concerning post-statehood reservation of mines, salt licks, salt springs, and mill seats in the (former) Eastern ceded territories.)
“State cession.–In the same case, ( Fort Leavenworth R.R. v. Lowe,) the United States Supreme Court sustained the validity of an act of Kansas ceding to the United States legislative jurisdiction over the Fort Leavenworth military reservation, but reserving to itself the right to serve criminal and civil process in the reservation and the right to tax railroad, bridge, and other corporations, and their franchises and property on the reservation. In the course of its opinion sustaining the cession of legislative jurisdiction , the Supreme Court said (p. 540):
“… Though the jurisdiction and authority of the general government are essentially different form those of the State, they are not those of a different country; and the two, the State and general government, may deal with each other in any way they may deem best to carry out the purposes of the Constitution. It is for the protection and interests of the States, their people and property, as well as for the protection and interests of the people generally of the United States, that forts, arsenals, and other buildings for public uses are constructed within the States. As instrumentalities for the execution of the powers of the general government, they are, as already said, exempt from such control of the States as would defeat or impair their use for those purposes; and if, to their more effective use, a cession of legislative authority and political jurisdiction by the State would be desirable, we do not perceive any objection to its grant by the Legislature of the State. Such cession is really as much for the benefit of the State as it is for the benefit of the United States.”
“Whenever a government has been established, I have always supposed, that a power to preserve itself, was a necessary, and an inseparable, concomitant. But the existence of the Federal government would be precarious, it could no longer be called an independent government, if, for the punishment of offences of this nature [bribery of a tax collector], tending to obstruct and pervert the administration of its affairs, an appeal must be made to the State tribunals, or the offenders must escape with absolute impunity. The power to punish misdemeanors, is originally and strictly a common law power; of which, I think, the United States are constitutionally possessed. It might have been exercised by Congress in the form of a Legislative act; but, it may, also, in my opinion be enforced in a course of Judicial proceeding. Whenever an offence aims at the subversion of any Federal institution, or at the corruption of its public officers, it is an offence against the well-being of the United States; from its very nature, it is cognizable under their authority; and, consequently, it is within the jurisdiction of this Court, by virtue of the 11th section of the Judicial act. [2 U.S. 384, 396] The Court being divided in opinion, it became a doubt, whether sentence could be pronounced upon the defendant; and a wish was expressed by the Judges and the Attorney of the District, that the case might be put into such a form, as would admit of obtaining the ultimate decision of the Supreme Court, upon the important principle of the discussion: But the counsel for the prisoner did not think themselves authorised to enter into a compromise of that nature. The Court, after a short consultation, and declaring, that the sentence was mitigated in consideration of the defendant’s circumstances, proceeded to adjudge,
“That the defendant be imprisoned for three months; that he pay a fine of 200 dollars; and that he stand committed, ’till this sentence be complied with, and the costs of prosecution paid.”
[The United States v. Worrall, 32 U.S. 384 (1798)]
The first position taken by the defendants is that their claims must be tested by the laws of the state in which the lands are situate rather than by the legislation of Congress, and in support of this position they say that lands of the United States within a state, when not used or needed for a fort or other governmental purpose of the [243 U.S. 389, 404] United States, are subject to the jurisdiction, powers, and laws of the state in the same way and to the same extent as are similar lands of others. To this we cannot assent. Not only does the Constitution (art. 4, 3, cl. 2) commit to Congress the power ‘to dispose of and make all needful rules and regulations respecting’ the lands of the United States, but the settled course of legislation, congressional and state, and repeated decisions of this court, have gone upon the theory that the power of Congress is exclusive, and that only through its exercise in some form can rights in lands belonging to the United States be acquired. True, for many purposes a state has civil and criminal jurisdiction over lands within its limits belonging to the United States, but this jurisdiction does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use, and to prescribe in what manner others may require rights in them. Thus, while the state may punish public offenses, such as murder or larceny, committed on such lands, and may tax private property, such as live stock, located thereon, it may not tax the lands themselves, or invest others with any right whatever in them. United States v. McBratney, 104 U.S. 621, 624 , 26 S. L. ed. 869, 870; Van Brocklin v. Tennessee (Van Brocklin v. Anderson) 117 U.S. 151, 168 , 2 S.. L. ed. 845, 851, 6 Sup. Ct. Rep. 670; Wisconsin C. R. Co. v. Price County, 133 U.S. 496, 504 , 33 S. L. ed. 687, 690, 10 Sup. Ct. Rep. 341. From the earliest times Congress by its legislation, applicable alike in the states and territories, has regulated in many particulars the use by others of the lands of the United States, has prohibited and made punishable various acts calculated to be injurious to them or to prevent their use in the way intended, and has provided for and controlled the acquisition of rights of way over them for highways, railroads, canals, ditches, telegraph lines, and the like. The states and the public have almost uniformly accepted this legislation as controlling, and in the instances where it has been questioned in this court its validity has been upheld and [243 U.S. 389, 405] its supremacy over state enactments sustained. Wilcox v. Jackson, 13 Pet. 498, 516, 10 L. ed. 264, 273; Jourdan v. Barrett, 4 How. 169, 185, 11 L. ed. 924, 931; Gibson v. Chouteau, 13 Wall. 92, 99, 20 L. ed. 534, 536; Camfield v. United States, 167 U.S. 518 , 42 L. ed. 260, 17 Sup. Ct. Rep. 864; Light v. United States, 220 U.S. 523, 536 , 537 S., 55 L. ed. 570, 574, 31 Sup. Ct. Rep. 485. And so we are of opinion that the inclusion within a state of lands of the United States does not take from Congress the power to control their occupancy and use, to protect them from trespass and injury, and to prescribe the conditions upon which others may obtain rights in them, even though this may involve the exercise in some measure of what commonly is known as the police power. ‘A different rule,’ as was said in Camfield v. United States, 167 U.S. 518 , 42 L. ed. 260, 17 Sup. Ct. Rep. 864, ‘would place the public domain of the United States completely at the mercy of state legislation.’
It results that state laws, including those relating to the exercise of the power of eminent domain, have no bearing upon a controversy such as is here presented, save as they may have been adopted or made applicable by Congress. [Utah Power and Light v. United States, 243 U.S. 389 (1917) ]
The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course. JUSTICE SCALIA exposes the weakness in the Court’s conclusion that Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973), “overruled the statutory predicate to Eisentrager’s holding,” ante at ___. As he explains, the Court’s approach is not a plausible reading of Braden or Johnson v. Eisentrager, 339 U.S. 763 (1950). In my view, the correct course is to follow the framework of Eisentrager.
Eisentrager considered the scope of the right to petition for a writ of habeas corpus against the backdrop of the constitutional command of the separation of powers. The issue before the Court was whether the Judiciary could exercise jurisdiction over the claims of German prisoners held in the Landsberg prison in Germany following the cessation of hostilities in Europe. The Court concluded the petition could not be entertained. The petition was not within the proper realm of the judicial power. It concerned matters within the exclusive province of the Executive, or the Executive and Congress, to determine.
The Court began by noting the “ascending scale of rights” that courts have recognized for individuals depending on their connection to the United States. Id. at 770. Citizenship provides a longstanding basis for jurisdiction, the Court noted, and among aliens physical presence within the United States also “gave the Judiciary power to act.” Id. at 769, 771. This contrasted with the “essential pattern for seasonable Executive constraint of enemy aliens.” Id. at 773. The place of the detention was also important to the jurisdictional question, the Court noted. Physical presence in the United States “implied protection,” id. at 777-778, whereas in Eisentrager “th[e] prisoners at no relevant time were within any territory over which the United States is sovereign,” id. at 778. The Court next noted that the prisoners in Eisentrager “were actual enemies” of the United States, proven to be so at trial, and thus could not justify “a limited opening of our courts” to distinguish the “many [aliens] of friendly personal disposition to whom the status of enemy” was unproven. Id. at 778. Finally, the Court considered the extent to which jurisdiction would “hamper the war effort and bring aid and comfort to the enemy.” Id. at 779. Because the prisoners in Eisentrager were proven enemy aliens found and detained outside the United States, and because the existence of jurisdiction would have had a clear harmful effect on the Nation’s military affairs, the matter was appropriately left to the Executive Branch and there was no jurisdiction for the courts to hear the prisoner’s claims.
The decision in Eisentrager indicates that there is a realm of political authority over military affairs where the judicial power may not enter. The existence of this realm acknowledges the power of the President as Commander in Chief, and the joint role of the President and the Congress, in the conduct of military affairs. A faithful application of Eisentrager, then, requires an initial inquiry into the general circumstances of the detention to determine whether the Court has the authority to entertain the petition and to grant relief after considering all of the facts presented. A necessary corollary of Eisentrager is that there are circumstances in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated. See also Ex parte Milligan, 4 Wall. 2 (1866).
The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the petitions. First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. The opinion of the Court well explains the history of its possession by the United States. In a formal sense, the United States leases the Bay; the 1903 lease agreement states that Cuba retains “ultimate sovereignty” over it. Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba, Art. III, T.S. No. 418. At the same time, this lease is no ordinary lease. Its term is indefinite and at the discretion of the United States. What matters is the unchallenged and indefinite control that the United States has long exercised over Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the “implied protection” of the United States to it. Eisentrager, supra, at 777-778.
The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify “a limited opening of our courts” to show that they were “of friendly personal disposition” and not enemy aliens. 339 U.S. at 778. Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.
In light of the status of Guantanamo Bay and the indefinite pretrial detention of the detainees, I would hold that federal court jurisdiction is permitted in these cases. This approach would avoid creating automatic statutory authority to adjudicate the claims of persons located outside the United States, and remains true to the reasoning of Eisentrager. For these reasons, I concur in the judgment of the Court. [Rasul v. Bush, 542 U.S. 466 (2004)]
Teledyne, Inc. v. Kone Corp., 892 F.2d 1404, C.A.9 (Cal.) (1989)
Unlike state courts, the lower federal courts are courts of limited jurisdiction. “It remains rudimentary law that ‘as regards all courts of the United States inferior to [the Supreme Court] two things are necessary to create jurisdiction, whether original or appellate. The Constitution must have given to the court the capacity to take it, and an act of Congress must have supplied it····’ ” Finley, 109 S.Ct. at 2006 (quoting The Mayor v. Cooper, 6 Wall. 247, 252, 18 L.Ed. 851 (1868)).
[Teledyne, Inc. v. Kone Corp., 892 F.2d 1404, C.A.9 (Cal.) (1989)]
Jones v. Mayer, 392 U.S. 409 (1968): An “act of Congress” that has national scope and operates inside the states
“As its text reveals, the Thirteenth Amendment “is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.” Civil Rights Cases, 109 U.S. 3, 20 . It has never been doubted, therefore, “that the power vested in Congress to enforce the article by appropriate legislation,” ibid., includes the power to enact laws “direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not.” Id., at 23. 74
“Thus, the fact that 1982 operates upon the unofficial acts of private individuals, whether or not sanctioned by state law, presents no constitutional problem. If Congress has power under the Thirteenth Amendment to eradicate conditions that prevent Negroes from buying and renting property because of their race or color, then no federal statute calculated to achieve that objective [392 U.S. 409, 439] can be thought to exceed the constitutional power of Congress simply because it reaches beyond state action to regulate the conduct of private individuals. The constitutional question in this case, therefore, comes to this: Does the authority of Congress to enforce the Thirteenth Amendment “by appropriate legislation” include the power to eliminate all racial barriers to the acquisition of real and personal property? We think the answer to that question is plainly yes.
“By its own unaided force and effect,” the Thirteenth Amendment “abolished slavery, and established universal freedom.” Civil Rights Cases, 109 U.S. 3, 20 . Whether or not the Amendment itself did any more than that – a question not involved in this case – it is at least clear that the Enabling Clause of that Amendment empowered Congress to do much more. For that clause clothed “Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.” Ibid. (Emphasis added.)
Those who opposed passage of the Civil Rights Act of 1866 argued in effect that the Thirteenth Amendment merely authorized Congress to dissolve the legal bond by which the Negro slave was held to his master. 75 Yet many had earlier opposed the Thirteenth Amendment on the very ground that it would give Congress virtually unlimited power to enact laws for the protection of Negroes in every State. 76 And the majority leaders in Congress – who were, after all, the authors of the Thirteenth Amendment – had no doubt that its Enabling Clause contemplated the sort of positive legislation that [392 U.S. 409, 440] was embodied in the 1866 Civil Rights Act. Their chief spokesman, Senator Trumbull of Illinois, the Chairman of the Judiciary Committee, had brought the Thirteenth Amendment to the floor of the Senate in 1864. In defending the constitutionality of the 1866 Act, he argued that, if the narrower construction of the Enabling Clause were correct, then
“the trumpet of freedom that we have been blowing throughout the land has given an `uncertain sound,’ and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the constitutional amendment, nor is such the fair meaning of the amendment itself. . . . I have no doubt that under this provision . . . we may destroy all these discriminations in civil rights against the black man; and if we cannot, our constitutional amendment amounts to nothing. It was for that purpose that the second clause of that amendment was adopted, which says that Congress shall have authority, by appropriate legislation, to carry into effect the article prohibiting slavery. Who is to decide what that appropriate legislation is to be? The Congress of the United States; and it is for Congress to adopt such appropriate legislation as it may think proper, so that it be a means to accomplish the end.” 77
“Surely Senator Trumbull was right. Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational [392 U.S. 409, 441] one. For this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery – its “burdens and disabilities” – included restraints upon “those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens.” Civil Rights Cases, 109 U.S. 3, 22 . 78 Just as the Black Codes, enacted after the Civil [392 U.S. 409, 442] War to restrict the free exercise of those rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men [392 U.S. 409, 443] into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.
“Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom – freedom to “go and come at pleasure” 79 and to “buy and sell when they please” 80 – would be left with “a mere paper guarantee” 81 if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.” [Jones v. Mayer, 392 U.S. 409 (1968)]
- 4. This term “state” 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” (e. D.C., its territories, possessions and enclaves).
- 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” (e. D.C., its territories, possessions and enclaves).
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