Sheila Terese, Wallen, Sui Juris
c/o General Delivery
Arivaca [zip code exempt]
ARIZONA STATE
In Propria Persona
Under Protest, Necessity, and
by Special Visitation Only
UNITED STATES DISTRICT COURT
JUDICIAL DISTRICT OF ARIZONA
UNITED STATES OF AMERICA, ) Case No. 95-484-WDB
)
Plaintiff, ) MEMORANDUM OF LAW
) IN SUPPORT OF CHALLENGE
v. ) TO CRIMINAL JURISDICTION
) OF THIS COURT
Sheila Terese, Wallen, ) [i.e. There is none.]
)
Defendant. ) Rules 301, 302:
) Federal Rules of Evidence
) Rule 54: Federal Rules
) of Criminal Procedure
________________________________)
COMES NOW Sheila Terese, Wallen, Sui Juris, Citizen of Arizona
state and Defendant in the above entitled matter (hereinafter
"Defendant"), to present this Her Memorandum of Law in Support of
Her Challenge to the Jurisdiction of this Court, i.e. there is no
jurisdiction in a United States District Court [sic], as distinct
from a District Court of the United States [sic], to bring a
criminal prosecution for alleged violations of Title 21, United
States Code, Section 841(a)(1). Defendant now presents a
detailed Memorandum of Law on the subject of Federal Judicial
Authority within the several States of the Union (hereinafter
"the several States"), to wit:
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Federal Judicial Authority within the Several States
This memorandum will be construed to comply with provisions
necessary to establish presumed fact (Rules 301 and 302, Federal
Rules of Evidence, and attending State rules), should interested
parties fail to rebut any given allegation of fact, or matter of
law, addressed herein. This position will be construed as
adequate to meet all requirements of judicial notice, thus
preserving fundamental Law. Matters addressed herein, if not
rebutted, will be construed to have general application. This
memorandum addresses jurisdiction of United States District
Courts and related agencies of the United States (federal
government).
Part I: Foundation of Law, Jurisdiction, Principles & History
In the American system of Government, the Separation of Powers
Doctrine works in two ways: First, it assures separation between
the three branches of government, the branches being legislative,
executive, and judicial. Second, the Doctrine effects vertical
separation between the operations of the state and federal
governments, or put another way, operations of the government of
the United States and the governments of the several States which
are parties to the Constitution for the United States of America,
as lawfully amended (hereinafter "U.S. Constitution").
In this system, as asserted by American Founders in the
Declaration of Independence, all Men (and Women) are created
equal, and are equally endowed by their Creator with certain
unalienable or inherent Rights, those listed in the Declaration
of Independence being the Rights to life, liberty, and the
pursuit of happiness, or in the less poetic phrasing of the Fifth
Amendment to the U.S. Constitution: life, liberty and property.
This list, of course, is not exhaustive, as articulated in the
Ninth and Tenth Amendments to the U.S. Constitution, and all,
individually and collectively, are accountable in the framework
of "the laws of Nature and Nature's God." The phrase, in modern
terms, is better understood as physical and moral law. Man
cannot author or amend the laws of Nature and Nature's God, but
is directly accountable in the framework of cause and effect, or
where moral law is concerned, cause and consequence.
By establishing these principles prior to addressing the
reasons for, and the power and operation of, government, American
Founders preserved the essence of English and American-lineage
Common Law which evolved and was proven by cultural experience
over many hundreds of years. The Magna Charta, drafted and
signed by King John in 1215, is commonly recognized as the point
of demarcation so far as a formal proclamation of common rights
is concerned. The foundation was basically biblical, with the
understanding that People are individually created and are,
therefore, individually accountable to God. Even when
governments encroache on the special relationship between Man and
God, Man is still accountable, individually and collectively, and
s/he invariably suffers the consequences of tyranny.
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The Founders went on to say that governments are established
among Men for the sole purpose of securing inherent Rights, and
governments so established may rule only by the consent of the
Governed.
In July 1776, the notion of specifically delegated authority
conveyed by constitutions was well understood, because the
English considered the Magna Charta and subsequent similar
documents to be elements of their unwritten constitution. On the
other hand, American colonies had continuing experience with
written constitutions for civil government which began in 1636
(Massachusetts).
Lowell H. Becraft, Jr., an attorney from Huntsville, Alabama,
addresses historical events leading to the American Revolution,
in his privately distributed memorandum on federal jurisdiction,
as follows:
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 unhappy
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,
the purpose of which 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," and the purpose of which were
designs, schemes and plans "which demonstrate a system
formed to enslave America." Revolution was assuredly in
the formative stages absent conciliation between the
mother country and colonies.
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 any and all 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.
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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.
And a further expression of similar import is found in
Harcourt v. Gaillard, 25 U.S. (12 Wheat.) 523, 526, 527
(1827), where the 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. In Article II of that document, it was
expressly stated:
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.
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As the history of the confederation government
demonstrated, each State was indeed sovereign and
independent to the 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 produced more than this. But, no intention
was demonstrated for the States to surrender in any
degree the jurisdiction so possessed by the States 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 reads 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 necessity for granting federal government sovereignty over
land which would serve as the seat of that government became
conspicuous during the Revolution, when a contingent of irate
folks from the Continental Army beleaguered Congress while it was
in session in Philadelphia. Members of Congress fled
Philadelphia to Princeton, New Jersey, and from there to
Annapolis, Maryland. Philadelphia and Pennsylvania governments
were unable, or unwilling, to disperse the rebels who taunted and
insulted Members of Congress. Problems persisted for the weak
government under the Articles of Confederation following the
Revolution, and it was in this framework that the Constitutional
Convention was called in 1787. The purpose for establishing a
seat of government under Congress' exclusive legislative
jurisdiction was addressed 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.
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Becraft cites several early court cases which addressed the
matter of State versus "United States" (federal government)
jurisdiction, with each of the decisions reinforcing the
principle of State sovereignty, unless or until land is ceded by
a State legislature 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 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 follows:
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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, 3 Wheat., at 350, 351.
In holding that the State of Massachusetts had
jurisdiction over the crime, the Court 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, 3
Wheat., at 386, 387.
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, 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, 3 Wheat., at 388.
Thus in Bevans, the Court established a principle that
federal jurisdiction extends only over the areas 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 state law of
Pennsylvania exclusively controlled this sale of federal
land, the Court held:
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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 therefor
had not been ceded to the United States. The rationale
of its opinion stated:
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, it must
have been committed out of the jurisdiction of
any state; it is not (he says,) the offense
committed, but the place in which it is
committed, which must be out of the jurisdiction
of the state.
The case relied upon by this court was U.S. 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 committed in the case occurred 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, describing such jurisdiction
as follows:
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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.
Through the first half of the 19th century, State and United
States territorial jurisdiction was reasonably clear-cut, as
accounts above evidence. But, during the Civil War and
afterwards, entrenched powers concluded that Congress, on behalf
of the United States, has a unique role in and through the
territorial United States in those lands, whether ceded by
legislatures of the several States, or acquired, by war or
otherwise, by the United States. This alleged authority is at
Article IV, Section 3, Clause 2 (4:3:2) of the U.S. Constitution:
The Congress shall have Power to dispose of and make
all needful Rules and Regulations respecting the
Territory and other Property belonging to the United
States ....
During the Reconstruction period immediately following the
Civil War, an Imperial Congress postured to make an end run
around the U.S. Constitution. One of the first important
measures was promulgation in their proposal for a Fourteenth
Amendment. This amendment, secured at bayonet point, created a
colorable citizenship known as a "citizen of the United States".
To that point, People generally thought of themselves as United
States citizens just as they do today; and the body of the U.S.
Constitution even makes rhetorical use of the term "Citizen of
the United States", but People were Citizens of their respective
Union States, and this term could have referred to no other
status, since there was no such thing as "federal citizenship"
when the U.S. Constitution was written. The distinction between
separate classes of citizens is best demonstrated by comparing
court decisions, the first in 1855, the second in 1875:
A citizen of any one of the States of the union, is
held to be, and called a citizen of the United States,
although technically and abstractly there is no such
thing. To conceive a citizen of the United States who is
not a citizen of some one of the States, is totally
foreign to the idea, and inconsistent with the proper
construction and common understanding of the expression
as used in the Constitution, which must be deduced from
its various other provisions. The object then to be
attained, by the exercise of the power of naturalization,
was to make citizens of the respective States. (Ex Parte
Knowles, 5 Cal. 300 (1855))
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We have in our political system a Government of the
United States and a government of each of the several
States. Each one of these governments is distinct from
the others, and each has citizens of its own who owe it
allegiance, and whose rights, within its jurisdiction, it
must protect. The same person may be at the same time a
citizen of the United States and a citizen of a State,
but his rights of citizenship under one of these
governments will be different from those he has under the
other. (United States v. Cruikshank, 95 U.S. 542 (1875))
Where the State Citizen, identified in the Preamble of the
U.S. Constitution and in 1:2:2, 1:3:3, 3:2:1, and 4:2:1, is a
Sovereign or Principal, the Fourteenth Amendment citizen of the
United States belongs to a subject, or subordinate class, as
demonstrated by Section 1 of that "amendment":
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any
law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
The citizen of the United States (a/k/a "federal citizen") was
distinct from the State Citizen, or there wouldn't have been any
need to restate due process rights already articulated in the
Fifth Amendment. In the framework of what has already been
covered, it is clear that Citizens of the States (a/k/a State
Citizens) were not then, and are not now, "subject to the
jurisdiction" of the United States within the several States.
This matter was addressed by Thomas Jefferson by way of "The
Kentucky Resolutions" in response to the Alien and Sedition Acts
in 1798. The second of nine resolutions addressed the matter of
United States authority to punish crimes:
2. Resolved, That the Constitution of the United
States, having delegated to Congress a power to punish
treason, counterfeiting the securities and current coin
of the United States, piracies, and felonies committed on
the high seas, and offenses against the law of nations,
and no other crimes whatsoever.
Where Jefferson articulated the limited, direct authority
which the United States could exercise over State Citizens, the
Fourteenth Amendment citizen of the United States appears to be
subject to United States authority wherever s/he might be,
whether in the geographical United States (a/k/a "the federal
zone"), or in any of the several States which are parties to the
U.S. Constitution (a/k/a "the state zone"). More to the point,
however, the subject class of citizens of the United States would
be viewed on a par with corporations, associations, and other
artificial entities created, franchised, and/or sanctioned by
government, and United States authority would reach into the
States under the auspices not of inherent or unalienable Rights
-- Rights which American Founders proclaimed to be the direct
endowments from God, but under the notion of civil rights --
rights granted by government to its subject classes.
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From this point forward, the American dialogue concerning Law
was to change, departing the biblical base of Common Law where
God is Sovereign and Man is endowed directly by His Creator, to
embrace a secular view of man whereby the individual is little
more than a chattel property, and exists solely for the
convenience and exploitation of entrenched powers (read
"Oligarchy"). This change is easily demonstrated in the Roe v.
Wade decision which threw the door open to abortion on demand.
Even though medical science long ago demonstrated that life
begins at conception, the U.S. Supreme Court did not consider
either the existence or sanctity of life in the landmark
decision. The unborn baby, conveniently referred to as a
"fetus," does not qualify as a "person" in the context of the
Fourteenth Amendment definition promulgated by Congress, so,
since the unborn lacks legal standing, the law is indifferent to
his existence; whether or not life has intrinsic value or unborn
babies have God-given rights wasn't and isn't even considered.
The so-called Fourteenth Amendment effected a subtle
perversion of first causes. Where State Citizens, being
Sovereign, have God-given rights which are merely secured by the
state and federal constitutions, the subject citizen of the
United States falls under Congress' Article IV legislative
jurisdiction; the list of his constitutionally assured rights is
itemized in the Fourteenth Amendment. Beyond that, he is
dependent on Congress for grants of privilege; rather than God,
government is the federal citizen's prime mover.
The next important move was incorporation of the District of
Columbia as a municipal corporation and political subdivision of
the geographical, or self-interested, United States (federal
government). Original incorporation was in 1871, with several
re-organizations during that decade and since. Thereafter, the
corporate federal government became increasingly important,
particularly through late-century westward development, as the
United States (federal government) managed settlement territory
simultaneously with post-Civil War reconstruction -- the days of
Carpet Bagger plunder. Then, in 1884, the Supreme Court gave way
to powerful influences in the Julliard case when it reversed
Justice Fields from four years earlier by concluding that
Congress could print paper money because the U.S. Constitution
does not expressly prohibit United States paper money.
Considering provisions of Article I, Sec. 8, Clause 5 (1:8:5),
and Article I, Section 10, Clause 1 (1:10:1), of the U.S.
Constitution, which stipulate that Congress will mint coin and
regulate value, and the several States cannot make anything but
gold and silver coin a tender for payment of debt, the Julliard
decision was conspicuously contrary to constitutional intent, but
as Naval Academy founder George Bancroft pointed out in a
detailed rebuttal to the decision (A Plea for the Constitution of
the United States: Wounded in the House of Its Guardians),
Julliard was based on Congress' legislative jurisdiction under
Article IV of the U.S. Constitution, in the geographical United
States. Thus, manifestation of Congress' dual role -- exercise
only of delegated power under Article I within the several
States, and exercise of any power not specifically prohibited by
the U.S. Constitution within the geographical United States (the
federal zone) under Article IV. So far as lawful implication,
the People and the governments of the several States had the
Right to reject United States paper money, as several court
decisions confirm; but, as a practical matter, the nation was
largely changed over to paper money, rather than gold and silver
coin, by the time the Federal Reserve Act established the Federal
Reserve System in 1913. By 1933, the Federal Reserve Note, not
to be confused with the current Federal Reserve Bank Note, was
backed 60% by obligations of the United States, and by 40% gold.
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Congress also engaged in massive land-grabs both within the
Continental United States and abroad. Takeover of the Hawaiian
Islands, going to war with Spain to take the Philippines, Puerto
Rico, etc., and nearly all States admitted to the Union after the
Civil War were blackmailed into land concessions. Oklahoma,
admitted in 1907, adopted the following provision at Article I,
Section 3 of the state constitution:
The people inhabiting the State do agree and declare
that they forever disclaim all right and title in or to
any unappropriated public lands lying within the
boundaries thereof.
Even though the U.S. Constitution grants authority for the
United States (federal government) to establish nothing more than
forts, magazines, arsenals, dockyards and other needful buildings
within the several States, from the time of the Civil War, well
into this century, including mineral-rich Alaska, Congress
indulged its greed for land; whereas the intent of American
Founders, via the U.S. Constitution, the "Ordinance of 1887: The
Northwest Territorial Government", and other such instruments,
was clearly to keep the federal beast locked soundly within its
box which was, for the most part, limited to the ten miles square
(100 square miles) authorized for the seat of the federal
government.
Toward the end of the 19th century, some of the retained
federal lands within the several States were declared to be
national parks. Development of federally owned resources
accelerated in the 1930's via public works programs, such as
building dams for flood control and electrical generation, and a
multitude of other enterprises.
On the enforcement and judicial fronts, there was a
corresponding re-organization. The Department of Justice was
created by Act of Congress on June 22, 1870 (Forty-First
Congress, Session II, Chapter 150, pages 162 et seq.), with the
Attorney General at the head of this organization. To that
point, each government agency or department pretty well took care
of its own legal affairs, but the Act establishing the Justice
Department consolidated authority over most enforcement and legal
matters, including those of the Department of the Interior.
Changing United States courts around was a somewhat longer
process, but it was managed over time. The United States Circuit
Courts became United States Courts of Appeal via Act of Congress
on March 3, 1891, and organization of United States District
Courts, with amendments since, was accomplished by Act of
Congress on March 3, 1911 (Sixty-First Congress, Session III,
Chapter 231, pages 1087 et seq.).
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Part II: Current Federal Jurisdiction in the States
While some of the seemingly unrelated history conveyed in Part
I of this memorandum might appear not to address United States
judicial authority within the several States, it will fall into
place when the office of "federal magistrate" is addressed.
Magistrates in United States District Courts are simply federal
park commissioners and nothing more. The name was changed, but
the character and jurisdiction of the office did not.
The territorial jurisdiction of federal magistrates, which is
easily demonstrated by way of two statutes, is concurrent with
jurisdiction of United States District Courts within the several
States. Or at least it would appear so. The first definition,
in relative part, comes from Title 18 of the United States Code,
the Code of Criminal Procedure, at Section 7, with particular
attention to 7(3) (U.S.C., 1979 edition):
7. Special maritime and territorial jurisdiction of
the United States defined
The term "special maritime and territorial jurisdiction
of the United States", as used in this title [18 U.S.C.
1 et seq.], includes:
(3) Any lands reserved or acquired for the use of the
United States, and under the exclusive or concurrent
jurisdiction thereof, or any place purchased or otherwise
acquired by the United States by consent of the
legislature of the State in which the same shall be, for
the erection of a fort, magazine, arsenal, dockyard, or
other needful building.
The second comes from the so-called Buck Act, at 4 U.S.C.
110 (1995 Lawyer's Cooperative CD-ROM edition):
110. Same; definitions
As used in sections 105-109 of this title -- ...
(d) The term "State" includes any Territory or
possession of the United States.
(e) The term "Federal area" means any lands or premises
held or acquired by or for the use of the United States
or any department, establishment, or agency of the United
States; and any Federal area, or any part thereof, which
is located within the exterior boundaries of any State,
shall be deemed to be a Federal area located within such
State.
[emphasis added]
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Definition of the term "State" as included in the above cite
as used in both the United States Code and in the codes of the
various States is essential to understanding that most statutes
in the United States Code presume application in federal "States"
such as the District of Columbia, Puerto Rico, etc., and not
within the several States which are parties to the U.S.
Constitution. The distinction in 18 U.S.C. 7(3) is subtle, but
becomes clearer when read very carefully: special territorial
jurisdiction, where the United States Code of Criminal Procedure
is applicable, embraces: (1) "Any lands reserved or acquired for
the use of the United States, and under the exclusive or
concurrent jurisdiction," (2) "or any place purchased or
otherwise acquired by the United States by consent of the
legislature of the State in which the same shall be, for the
erection of a fort, magazine, arsenal, dockyard, or other needful
building."
In the first instance, the United States (federal government)
has exclusive or concurrent jurisdiction over any land acquired
for any purpose; whereas, in the second instance, the United
States (federal government) has jurisdiction only over lands
which are acquired for a constitutional purpose, as specified in
Article I, after the land has been ceded to the United States by
the State Legislature. In the District of Columbia, Puerto Rico,
the Virgin Islands and other United States (federal government)
possessions classified as "States" in federal municipal law,
Congress has unrestricted and exclusive legislative jurisdiction,
pursuant to Article IV, so purchase of land for United States
(federal government) use automatically comes under Congress'
legislative jurisdiction, with or without consent of the State
Legislative body. In the second instance, legislatures of the
several States must cede jurisdiction over acquired property to
the United States (federal government) before any judicial
authority can be exercised.
The Buck Act definition of "State" is about as straightforward
as any of the various definitions of "State" which refer to the
federal "States":
The term "State" includes any Territory or possession of the
United States.
A similar definition of the term is located in Rule 54 of the
Federal Rules of Criminal Procedure:
"State" includes District of Columbia, Puerto Rico,
territory and insular possession.
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Jurisdiction of United States District Courts, being limited
to federal "States" and to federal enclaves within the several
States, is further reinforced by another Rule 54 application:
"Act of Congress" includes any act of Congress locally
applicable to and in force in the District of Columbia, in
Puerto Rico, in a territory or in an insular possession.
The distinction between federal "States" and the several
[Union] States is clarified in the jurisdiction and venue statute
(territorial jurisdiction) governing conduct of United States
District Courts. According to The United States Government
Manual for 1995/96, at page 75, is 18 U.S.C. 3231 (1979
edition, U.S.C.):
3231. District courts
The district courts of the United States shall have
original jurisdiction, exclusive of the courts of the
States, of all offenses against the laws of the United
States.
Nothing in this title [18 U.S.C. 1 et seq.] shall be
held to take away or impair the jurisdiction of the
courts of the several States under the laws thereof.
If the distinction between the federal "States" and the
several [Union] States is not made clear enough by 3231, proof
of the distinction is found in the legislative history for 18
U.S.C. 3241, again using the 1979 edition of the United States
Code ("U.S.C."):
3241. Jurisdiction of offenses under certain sections
The United States District Court for the Canal Zone and
the District Court of the Virgin Islands shall have
jurisdiction of offenses under the laws of the United
States, not locally inapplicable, concurrently within the
territorial jurisdiction of such courts, and
jurisdiction, concurrently with the district courts of
the United States, of offenses against the laws of the
United States committed upon the high seas.
At various times, other territorial courts were included in
this statute. The district court of the Philippines was removed
in 1946 when the island nation became an independent
commonwealth; then "Act July 7, 1958 deleted 'District Court for
the Territory of Alaska'...." In other words, up until the point
at which Alaska was admitted to the Union, that Territory was
considered a federal "State." Once admitted to the Union,
Alaskan courts no longer qualified as courts of the United
States. State courts, because of Tenth and Eleventh Amendments
and the Separation of Powers Doctrine, could not legitimately
exercise any federal authority. The Canal Zone district court
has been removed from this statute since the 1979 U.S.C. edition
was published, so the District Court of the Virgin Islands is the
only remaining federal "State" court that exercises concurrent
jurisdiction with United States District Courts under 18 U.S.C.
3241.
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We turn now to the "special territorial" jurisdiction found at
18 U.S.C. 7(3) by way of examining the evolution of what are
today known as "federal magistrate judges", formerly known as
"federal magistrates", and before that, as "national park
commissioners". The first selection comes from historic and
amendment notes following 28 U.S.C. 631, which provides for
appointment and tenure of federal magistrate judges (1995
Lawyer's Cooperative CD-ROM edition of U.S.C.):
1979. Act Oct. 10, 1979, in subsec. (a), substituted
"Where the conference deems it desirable, a magistrate
may be designated to serve in one or more districts
adjoining the district for which he is appointed. Such a
designation shall be made by the concurrence of a
majority of the judges of each of the district courts
involved and shall specify the duties to be performed by
the magistrate in the adjoining district or districts."
for "Where an area under the administration of the
National Park Service, or the United States Fish and
Wildlife Service, or any other Federal agency, extends
into two or more judicial districts and it is deemed
desirable by the conference that the territorial
jurisdiction of a magistrate's appointment include the
entirety of such area, the appointment or reappointment
shall be made by the concurrence of a majority of all
judges of the district courts of the judicial districts
involved, and where there is no such concurrence by the
concurrence of the chief judges of such district
courts."; in subsec. (b), in the introductory matter,
inserted "reappointed to", in para. (1), inserted ", and
has been for at least 5 years,", in cl. (A), inserted
"or", in cl. (B), deleted "or" following "Islands;"
deleted cl. (C) which read: "in an area under the
administration of the National Park Service, the United
States Fish and Wildlife Service, or any other Federal
agency that extends into two or more States, a member in
good standing of the bar of the highest court of one of
those States;"' in para. (4), substituted "; and" for a
period and added para. (5), redesignated subsecs. (f)ü(j)
as subsecs. (g)ü(k) respectively; and added new subsec.
(f).
[emphasis added]
Before examining deletions made in the 1979 amending Act, it
will be useful to import the index from earlier law pertaining to
national park commissioners before all the name changes, with the
current Magistrate Act at 28 U.S.C. 631-639:
Amendments (1995 Lawyer's Cooperative CD-ROM edition of
U.S.C.):
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1954. Act Aug. 13, 1954, ch 728, 1(c), 68 Stat. 704,
amended the analysis of this chapter by adding "and
expenses" to item 633.
1968. Act Oct. 17, 1968, P. L. 90-578, Title I, 101,
82 Stat. 1108, amended the analysis of this chapter by
substituting items 632 through 639 for items which read:
"632 .Park commissioners; jurisdiction and powers;
procedure
"633 .Fees and expenses
"634 .Salaries of Park Commissioners; disposition of
fees
"635 .Park Commissioners; residence
"636 .Accounts
"637 .Oaths, acknowledgments, affidavits and
depositions
"638 .Seals
"639 .Dockets and forms; United States Code".
1972. Act Mar. 1, 1972, P.L. 92-239, 3, 86 Stat. 47,
amended the analysis of this chapter by substituting ",
powers, and temporary assignment" for "and powers" in
item 636.
It is also useful to see the evolution of this Act dating to
the last century:
Based on title 28, U.S.C., 1940 ed., 526 and 527,
sections 27, 66, 80e, 100, 117e, 129, 172, 198e, 204e,
256d, 395e, 403c-5, 403h-5, 404c-5, and 408m of title 16,
U.S.C., 1940 ed., Conservation, and section 863 of title
48, U.S.C., 1940 ed., Territories and Insular Possessions
(May 27, 1894, ch. 72, 5, 28 Stat. 74; May 28, 1896,
ch. 252, 19, 20, 29 Stat. 184; Apr. 12, 1900, ch.
191, 34, 31 Stat. 84; Mar. 2, 1901, ch. 814, 31 Stat.
956; Mar. 3, 1911, ch. 231, 291, 36 Stat. 1167; Jan.
7, 1913, ch. 6, 37 Stat. 648; Aug. 22, 1914.
Section consolidates section 526 and a portion of 527,
both of title 28, U.S.C., 1940 ed., with provisions of
sections 27, 66, 80e, 100, 117e, 129, 172, 198e, 204e,
256d, 395e, 403c-5, 403h-5, 404c-5 and 408m of title 16,
U.S.C., 1940 ed., and provisions of section 863 of title
48, U.S.C., 1940 ed., Territories and Insular
Possessions, relating to appointment of United States
commissioners. For other provisions of said sections see
Distribution Table.
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Some of the provisions of section 863 of title 48,
U.S.C., 1940 ed., Territories and Insular Possessions
were retained in that title.
The provision of sections 395e, 403c-5, 404c-5, and
408m of title 16, U.S.C., 1940 ed., for appointment of
the Park Commissioner in the Hawaii National Park,
Shenandoah National Park, Great Smoky Mountains National
Park, Mammoth Cave National Park and Isle Royale National
Park upon "the recommendation of the Secretary of the
Interior" was omitted as inconsistent not only with other
provisions of this title but with other statutes
applicable to other national parks.
All such park commissioners are United States
commissioners and the revision of these sections makes
possible uniformity and consistency in administrative
matters concerning such commissioners. (See, also,
sections 604 and 634 of this title.)
Words "the Director of the Administrative Office of the
United States Courts" were substituted for "Attorney
General" in section 526 of title 28, U.S.C., 1940 ed., in
view of the general supervision by the Director over
clerks and commissioners under section 601 et seq. of
this title.
A provision in section 526 of title 28, U.S.C., 1940
ed., that commissioners should have the same powers and
duties as are conferred and imposed by law, was omitted
as superfluous.
[emphasis added]
Jurisdiction provisions relating to federal magistrate
judges/national park commissioners were enacted in definitive
terms for the Grand Canyon National Park Commissioner:
Special commissioner for Grand Canyon National Park;
appointment; jurisdiction; compensation. Act Sept. 14,
1959, P. L. 86-258, 1-3, 73 Stat. 546, provided:
"Sec .1. The United States District Court for the
District of Arizona shall appoint a special commissioner
for the Grand Canyon National Park, Arizona. The
commissioner shall hold office for four years, unless
sooner removed by the district court, and he shall be
subject to the general laws and requirements applicable
to United States commissioners.
"Sec .2. The jurisdiction of the commissioner in
adjudicating cases brought before him shall be limited to
the trial, and sentencing upon conviction, of persons
charged with the commission of those misdemeanors
classified as petty offenses (18 U.S.C. 1) [18 U.S.C. 1]
relating to the violation of Federal laws or regulations
applicable within the park: Provided, That any person
charged with a petty offense may elect to be tried in the
district court of the United States; and the
commissioner shall apprise the defendant of his right to
make such election, but shall not proceed to try the case
unless the defendant, after being so apprised, signs a
written consent to be tried before the commissioner. The
exercise of additional functions by the commissioner
shall be consistent with and be carried out in accordance
with the authority, laws, and regulations of general
application to United States commissioners. The rules of
procedure set forth in title 18, section 3402, of the
United States Code [18 U.S.C. 3402], shall be followed in
the handling of cases by such commissioner. The
probation laws shall be applicable to persons tried by
the commissioner and he shall have power to grant
probation.
[emphasis added]
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Now we go to a few court cases to nail the matter down:
Powers and duties were coextensive with limits of
judicial district in which he was appointed. United
States v. Harden, 10 F 802 (D.C. N.C., 1881); United
States v. Stern, 177 F 479 (D.C. Pa. 1910).
Purpose of Federal Magistrates Act, 28 U.S.C. 631 et
seq., was to provide method to relieve judges of some of
their non-Article III functions. United States v. First
National Bank of Rush, 576 F.2d 852 (10th Cir., 1978),
78-1 USTC 9462, 42 AFTR 2d 78-5049.
Purpose of Federal Magistrates Act (28 U.S.C. 631-
638) is to remove from workload of United States District
Courts matters which are more desirably performed by
lower tier of judicial officers. United States v.
Richardson, 57 FRD 196 (D.C. N.Y., 1972).
Evolution of the federal magistrate judge demonstrates that he
is merely a glorified national park commissioner, who is a bar-
licensed attorney, and his territorial jurisdiction is concurrent
with jurisdiction of the United States District Court where he
serves. As previously demonstrated via analysis of 18 U.S.C.
7(3) and 4 U.S.C.110(d) & (e), there is a gray area where
there might be some discretion. In the federal "States", United
States District Court venue and jurisdiction may extend to
national parks and other lands retained by the United States, but
in the several States which are parties to the U.S. Constitution,
United States judicial authority may be exercised only on federal
enclaves, i.e. lands ceded to the United States by legislatures
of the several States, "for the erection of a fort, magazine,
arsenal, dockyard, or other needful building" (1979 edition,
U.S.C.). There is, and was, no constitutional authority for
Congress to retain land for the United States, as was the case in
Oklahoma, Colorado, Nevada, Alaska, etc., in States admitted to
the Union subsequent to the Civil War. Nevada appears to be
leading the charge on this issue, namely, the right of the United
States (federal government) to retain land in the several States
other than for constitutional purposes; and it is clear, by
distinctly separate authorities pertaining to federal "States"
and to the several States in 18 U.S.C. 7(3) & 3231 and 4
U.S.C. 1001(d) & (e), that application of judicial authority in
the United States Code of Criminal Procedure limits jurisdiction
to federal enclaves which have been ceded by legislatures of the
several States for constitutional purposes only.
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Still, this is a vague area which has yet to be thoroughly
explored: Within the several States, the United States has
judicial authority either: (1) on federal enclaves ceded by
legislatures of the several States for constitutional purposes,
or (2) on federal enclaves ceded for constitutional purposes and
in national parks. In his memorandum, Becraft frames his
conclusion concerning United States judicial jurisdiction by
basing it on an 1885 Supreme Court decision, even though the
decision was premised on facts relative to the federal
reservation at Ft. Leavenworth, Kansas:
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. There, 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. 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 such jurisdiction; this jurisdiction is
superior. Federal jurisdiction results only 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. And 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 possessions of the United
States.
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During the Eisenhower administration, the matter of federal
jurisdiction within the States was addressed at length by a
specially formed Interdepartmental Committee for the Study of
Jurisdiction Over Federal Areas Within the States, with both
State and United States (federal government) representatives
participating in the study. Assistant Attorney General Mansfield
D. Sprague chaired the committee. Part I of the report, titled
"The Facts and Committee Recommendations," was submitted to
Attorney General Herbert Brownell, Jr., then transmitted to
President Eisenhower in April, 1956, and Part II, titled "A Text
of the Law of Legislative Jurisdiction," was submitted in June,
1957. The latter report, in particular, affirms the conclusion
that United States judicial authority within the several States
extends only so far as the constitutional grant:
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. [Page 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]
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The 1957 report appears to accommodate United States (federal
government) retention and/or acquisition of land, and therefore
legislative and judicial jurisdiction, other than that
specifically prescribed in the U.S. Constitution under Article I
authority. Therefore, if the report is correct on this hair-
splitting matter, congressional blackmail of States admitted to
the Union after the Civil War would appear to be legitimized, and
the report seems to accommodate legislative cession of land to
the United States (federal government) for other than
constitutional purposes ... national parks, flood control, and
electrical generation dams, etc.
However, the jury is still out on this matter, because recent
U.S. Supreme Court decisions such as New York v. United States et
al., 505 U.S. ___, 120 L.Ed.2d 120, 112 S.Ct. 2408 (1992), seem
to condemn this conclusion under authority of the Tenth Amendment
and the Separation of Powers Doctrine. The United States
(federal government) cannot exercise any authority within the
several States which is not specifically enumerated in Article I
of the U.S. Constitution; and officers of the several States
cannot accommodate any United States (federal government)
exercise of power which is not specifically delegated under
Article I, without first securing a constitutional amendment.
Regardless of the Tenth Amendment and the Separation of Powers
issues, any given Act of Congress, under United States judicial
authority, applies only to the extent of the Act and attending
regulations, with territorial limits prescribed at 18 U.S.C.
7(3) and 4 U.S.C. 110(d) & (e).
Generally speaking, territorial bounds for United States
judicial authority are applicable with respect to both civil and
criminal matters, with diversity of citizenship being the only
exception in civil matters. This expansion of United States
judicial authority does not extend to criminal matters, except as
specified by Thomas Jefferson in "The Kentucky Resolutions." The
U.S. Supreme Court has repeatedly prescribed the limits of
federal criminal jurisdiction in definitive terms. The
conclusive statement is this: "[Federal] legislation applies
only within the territorial jurisdiction of the United States
unless a contrary intent appears [in the legislation] ...." See
Caha v. United States, 152 U.S. 211, 215 (1894), 14 S.Ct. 513;
American Banana Company v. United Fruit Company, 213 U.S. 347
(1909), 357, 29 S.Ct. 511; United States v. Bowman, 260 U.S. 94
(1922), 97, 93, 43 S.Ct. 39; Blackmer v. United States, 284 U.S.
421 (1932), 437, 52 S.Ct. 252; Foley Bros. v. Filardo, 336 U.S.
281 (1949), 285, 69 S.Ct. 575; United States v. Spelar, 338 U.S.
217, 222 (1949), 70 S.Ct. 10; and United States v. First
National City Bank, 321 F.2d 14, 23 (2nd Cir. 1963).
The matter is addressed in Rule 54 of the Federal Rules of
Criminal Procedure [selected portions, 1978 edition, U.S.C.]:
Rule 54. Application and Exception
(a) Courts. These rules apply to all criminal
proceedings in the United States District Courts ....
(c) Application of terms. As used in these rules the
following terms have the designated meanings.
"Act of Congress" includes any act of Congress locally
applicable to and in force in the District of Columbia,
in Puerto Rico, in a territory or in an insular
possession.
The words "demurrer," "motion to quash," "plea in
abatement," "plea in bar" and "special plea in bar," or
words to the same effect, in any act of Congress shall be
construed to mean the motion raising a defense or
objection provided in Rule 12.
"Federal Magistrate" means a United States magistrate
as defined in 28 U.S.C. 631-639, a judge of the United
States or another judge or judicial officer specifically
empowered by statute in force in any territory or
possession, the Commonwealth of Puerto Rico, or the
District of Columbia, to perform a function to which a
particular rule relates.
"Judge of the United States" includes a judge of a
district court, court of appeals, or the Supreme Court.
"Law" includes statutes and judicial decisions.
"Magistrate" includes a United States magistrate as
defined in 28 U.S.C. 631-639, a judge of the United
States, another judge or judicial officer specifically
empowered by statute in force in any territory or
possession, the Commonwealth of Puerto Rico, or the
District of Columbia, to perform a function to which a
particular rule relates, and a state or local judicial
officer, authorized by 18 U.S.C. 3041 to perform the
functions prescribed in Rule 3, 4, and 5.
"State" includes District of Columbia, Puerto Rico,
territory and insular possession.
"United States magistrate" means the officer authorized
by 28 U.S.C.631-639.
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Application of Acts of Congress was clearly articulated in
Caha v. United States supra, where the Supreme Court stated as
follows:
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.
Application of terms in Rule 54 of the Federal Rules of
Criminal Procedure appears to exclude jurisdiction of United
States courts on national parks within the several States, as has
repeatedly been demonstrated via 4 U.S.C. 110(d) & (e) and 18
U.S.C. 7(3) definitions and applications, and the definition of
"State" cited above; but, regardless of this hair splitting,
United States judicial authority via United States District
Courts, which is concurrent with the jurisdiction of national
park commissioners (now known as federal magistrate judges), does
not extend to the several States in any general way, other than
in territory ceded by the legislatures of the several States,
whether for constitutional purposes or for national parks. Thus,
the law of legislative jurisdiction is preserved in the
convoluted United States Code by tracking the history and
evolution of United States courts and their officers.
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Part III: Character of Law & Court Effect on Jurisdiction
Judicial authority of the United States is established in
Article III of the U.S. Constitution:
Article III
Section 1. The judicial Power of the United States,
shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time
ordain and establish. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good
Behavior, and shall, at stated Times, receive for their
Services a Compensation, which shall not be diminished
during their Continuance in Office.
Section 2. [1] The judicial Power shall extend to all
Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties
made, or which shall be made, under their Authority; --
to all Cases affecting Ambassadors, other public
Ministers and Consuls; -- to all Cases of admiralty and
maritime Jurisdiction; -- to Controversies to which the
United States shall be a Party; -- to Controversies
between two or more States; -- between a State and
Citizens of another State; -- between Citizens of
different States; -- between Citizens of the same State
claiming Lands under the Grants of different States, and
between a State, or the Citizens thereof, and foreign
States, Citizens or Subjects.
[2] In all Cases affecting Ambassadors, other public
Ministers and Counsels, and those in which a State shall
be a Party, the Supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned,
the supreme Court shall have appellate Jurisdiction, both
as to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.
[3] The Trial of all Crimes, except in Cases of
Impeachment, shall be by Jury; and such Trial shall be
held in the State where the said Crimes shall have been
committed; but when not committed within any State, the
Trial shall be at such Place or Places as the Congress
may by Law have directed.
Section 3. [1] Treason against the United States, shall
consist only in levying War against them, or, in adhering
to their Enemies, giving Aid and Comfort. No person shall
be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open
Court.
[2] The Congress shall have Power to declare the
Punishment of Treason, but no Attainder of Treason shall
work Corruption of Blood, or Forfeiture except during the
Life of the Person attainted. [copied from Black's Law
Dictionary, 6th edition]
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The U.S. Supreme Court has classified the judicial authority
which is granted under Article III into three categories: First,
those cases in Common Law and equity which are cognizable within
the framework of the Section 2, Clause 1 "arising under" clause;
second, admiralty and maritime jurisdiction under Section 2,
Clause 1; and third, cases pertaining to ambassadors, etc.
Cases relating to the several States are affected by the Eleventh
Amendment, ratified in 1798, but don't materially affect the
instant matter.
Concern in this context focuses on two types of law and the
originating source. Use of the term "law" in Article III of the
U.S. Constitution, as is the case for due process amendments in
the Bill of Rights (first Ten Amendments, particularly the
Fourth, Fifth, Sixth and Seventh), contemplates the Common Law of
English-American lineage. Equity, also known as chancery,
pertains primarily to commercial or contract law, and is
voluntary on the part of participating parties. In other words,
Common Law was assumed and construed to be the Law of the Land
applicable both within the United States (federal zone) and
within the several States.
Constitutional intent was carried out by the first Congress
via the Judicial act of 1789. In this Act, original cognizance
over admiralty and maritime affairs was vested in courts of the
United States, exclusive of the several States, with a safeguard
built in, known as the "saving to suitors clause." Suitors, or
parties to an action, could remove to Common Law jurisdiction
where the Common Law was competent to provide a remedy. The
saving to suitors clause is retained in the current United States
Code. See 28 U.S.C. 1333(1).
In the beginning, admiralty and maritime jurisdiction applied
only to matters concerning international contracts and affairs on
the high seas, with the law of nations providing a guiding light.
The Supreme Court, early on, concluded that, while admiralty
jurisdiction is conveyed in Article III, 2, Clause 1, it is
distinct from authority pertaining to law and equity and,
therefore, does not fall under authority of the "arising under"
clause See American Insurance Co. v. 356 Bales of Cotton, 26
U.S. 511 (1828), 7 L.Ed 242; Romero v. International Terminal
Operating Co., 358 U.S. 354 (1959), 3 L.Ed.2d 368, 79 S.Ct. 468,
reh. den. 359 U.S. 962, 3 L.Ed.2d 769, 79 S.Ct. 795.
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The nature and origin of admiralty law is set out in Vol. 1 of
Corpus Juris, 1914 edition, p. 1249, as follows:
I. DEFINITION
[1] Admiralty is that branch or department of
jurisprudence which relates to and regulates maritime
property, affairs, and transactions, whether civil or
criminal. In a more limited sense it is the tribunal
exercising jurisdiction over maritime causes and
administering the Maritime law by a procedure peculiar to
itself and distinct from that followed by courts either
of equity or of common law.
II. ORIGIN AND GROWTH
[2] A. Under the Civil Law. Admiralty courts owe
their origin and procedure largely to the civil law,
which prevailed in Italy and along the north coast of the
Mediterranean, where naval commerce was originally most
active, and where, after the fall of the Western Empire,
the merchants and traders by sea brought about the
establishment of a court of consuls in each of the
principal maritime cities to hear causes arising out of
maritime commerce and property. The judges of these
consular courts were chosen on Christmas of each year by
the chief merchants, and they enforced and applied to
controversies the customs of the sea, whose origin is
long anterior to the civil law itself. These courts
gradually developed and extended their jurisdiction as
maritime commerce became more profitable and important,
until ultimately, in most states, they were merged into,
and became known as, courts of admiralty.
[3] B. In England. The admiralty is a court of
ancient origin, traceable back in English jurisprudence
to the reign of Edward I, and exercising a jurisdiction
coeval and coextensive with that of other foreign
maritime courts; indeed, by some authorities it is said
to have existed long before that time. But owing to the
hostility which, from historic causes, gradually
developed in England against the civil law, the
jurisdiction of admiralty was there greatly restricted
and limited, both by statute and by decisions of the
common-law courts interpreting the same. A reaction in
favor of the admiralty courts has now taken place,
however, and by acts of parliament they have regained
much of their lost jurisdiction, and have acquired
jurisdiction over all claims for damages done by any
ship, whether on land or water.
[4] C. In the United States. It is now well settled,
after much controversy, that the jurisdiction of the
courts of admiralty in the United States is not limited
to that of the English admiralty at the time of the
Revolution, but is derived from the early usages of the
statutes and the federal laws and decisions.
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The history related above hardly does justice to the continued
English-American battle over imposition of admiralty law which,
as the article suggests, is in the nature of Roman Civil Law,
British feudal law, or simply Civil Law, whereby legislative and
administrative bodies are ultimate authorities without any
reference to an independent judicial body. This kind of rule had
the effect of setting English Barons against King John I, with
the results being the Magna Charta, signed in 1215, and in 1640,
the Popular Rebellion which ended Star Chambers and convoluted
ecclesiastical courts under Charles I. American founders were
fully aware of the effects of admiralty or Civil Law -- the vice-
admiralty courts of George III were largely responsible for the
Revolution. Thus, the "saving to suitors" clause was
incorporated in the Judicial Act of 1789.
However, in the period following the Civil War, Congress found
admiralty rule convenient and, as the geographical United States,
under Congress' alleged Article IV legislative jurisdiction,
became an increasingly powerful influence, admiralty rule was
extended. First, as already noted from The United States
Government Manual of 1995/96, circuit courts were changed to
courts of appeal by Act of March 3, 1891, then United States
District Courts were reorganized and set by Act of March 3, 1911
(Sixty-First Congress, Sess. III, Chap. 231, pp. 1087, et seq.
[Public No. 475]). The nature of United States District Courts
is revealed in the Act at 9: "The district courts, as courts
of admiralty and as courts of equity ...."
In other words, the district courts of the United States, from
the Act of March 3, 1911 on, if not before, have never really had
a Common Law character in federal territories, and their
legitimate relationship to and within the several States has at
best been at arm's length and shaky, where the real party of
interest is the geographical United States (federal government)
under Congress' Article IV legislative jurisdiction, exclusive of
Article I delegated authorities. However, within federal areas
or territories, as described in the Buck Act at 4 U.S.C. 4(e),
and the first part of 18 U.S.C. 7(3), the same limitation does
not apply, as disclosed at 11 of Corpus Juris supra, p. 1251:
[11] 7. Territorial courts. Although admiralty
jurisdiction can be exercised in the states in those
courts only which are established in pursuance of the
third article of the constitution, the same limitation
does not extend to the territories, and congress may vest
admiralty jurisdiction in courts created by a territorial
legislature as well as in territorial courts created by
act of congress, and it has exercised this power in both
instances. [In re Cooper, 143 U.S. 472, 12 Sec. 453, 36
L.Ed 232; The City of Panama, 101 U.S. 453, 25 L.Ed.
1061; American Insurance Co. v. 356 Bales of Cotton
supra ....]
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To say that United States district courts didn't have a Common
Law character isn't precisely correct. In diversity suits at law
or in equity, or suits covered by other provisions of the
"arising under" clause, they appear to have had a "law"
character. However, in 1938, via Erie Railroad Co. v. Tompkins,
the U.S. Supreme Court declared that there is no longer a
national or general Common Law. Today, they operate exclusively
under "Special maritime and territorial jurisdiction of the
United States," as defined at 18 U.S.C. sec. 7(3), under
admiralty/civil law rules, which are contrary to the Common Law
indigenous to the several States. In fact, court decisions
disclose that they have only admiralty and vice-admiralty
capacities and, in effect, they either accommodate private
international law or they serve as administrative law courts (see
5 U.S.C. sec, 701 et seq.). The U.S. Supreme Court is the only
remaining United States court which has a true Article III
judicial character and, under Rule 17.1 of the Supreme Court
Rules, has original jurisdiction over actions at law.
The fine line determining applicability of the Article III,
2, Clause 1 "arising under" clause is the real party of interest.
So long as an agent or agency of the United States (federal
government) is carrying out an Article I delegated power within
the several States, courts of the United States have jurisdiction
by way of the "arising under" clause, whether as the complaining
party or defendant. However, if an agent or agency of the United
States operates under Congress' article IV legislative
jurisdiction, which is exclusive to the geographical United
States (read "the federal zone"), or to the United States
(federal government), which is a foreign corporation with respect
to the several States, the "arising under" clause does not apply
because the act is perpetrated under color of law. In other
words, the "Act of Congress" which is locally applicable only in
the District of Columbia, Puerto Rico, etc., does not
legitimately reach the several States or the population of State
Citizens inhabiting those several States.
For example, in Dan Meador's Public Notice Memorandum
pertaining to the character of the "Internal Revenue Service" and
proper application of the Internal Revenue Code (which to date
has been published as legal notice in Oklahoma, Nebraska and
Montana newspapers), He demonstrated that IRS is an agency of the
Department of the Treasury, Puerto Rico (Congress never created a
Bureau of Internal Revenue, predecessor of IRS), and that no
taxing statute in the Internal Revenue Code is applicable to the
several States, save as pertains to import duties on alcohol,
tobacco, and firearms in Subtitle E, and certain items in
Subtitle D of the Internal Revenue code (i.e. Windfall Profits
Tax on off-shore and imported petroleum). In the event that
officers and agents who allege to represent United States
(federal government) laws and interests prove to be operating
under color of law within the several States, then United States
judicial authority cannot spare them from accountability in the
framework of laws and courts of the several States.
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Suppose a soldier stationed at Ft. Sill robbed a store or
murdered someone in Lawton, Oklahoma. The fact that he is in
United States military service and might have even used an Army-
issued gun does not affect the law he broke, or the sovereign
territorial authority which originates there, and is responsible
for enforcing the law. In other words, immunity travels only so
far as legislative jurisdiction and the precise limit of any
given law. Under Congress' Article I delegated authority, agents
and officers of the United States have certain legitimate duties
which reach the several States, but under Congress' Article IV
authority in the geographical, self-interested United States
(federal zone), the cloak of immunity is shed at borders of the
several States, except on federal enclaves which have been ceded
by legislatures of the States to the United States (federal
government) for constitutional purposes only.
This distinction between United States "arising under" and
admiralty jurisdiction is territorial in nature, particularly
when admiralty jurisdiction is exercised under authority of
Article IV in the geographical United States and when it
represents United States (federal government) interests outside
of Congress' role as the Article I legislative body for national
government. Even then, this authority must comply with the law
of legislative jurisdiction. If this is not the case, then the
limitations of the Tenth Amendment and of the Separation of
Powers Doctrine are of no effect.
Part IV: Statute Application Determined by Regulation
The Administrative Procedures Act, located at 5 U.S.C. 552
et seq., and the Federal Register Act, located at 44 U.S.C.
1501 et seq., provide the means for determining what statutes in
any given Act of Congress are applicable where. If a statute has
general application, then the agency head responsible for
carrying out whatever duties the statute prescribes is required
to promulgate regulations disclosing the who, what, when, where
and how, and have the regulation published in the Federal
Register, if it has general application. If regulations are not
published in the Federal Register, they have at best limited
application. The controlling statute in the Federal Register Act
is 44 U.S.C. 1505(a):
1505. Documents to be published in Federal Register.
(a) Proclamations and Executive Orders; documents
having general applicability and legal effect; documents
required to be published by Congress.
There shall be published in the Federal Register --
(1) Presidential proclamations and Executive orders,
except those not having general applicability and
legal effect or effective only against Federal
agencies or persons in their capacity as officers,
agents, or employees thereof;
(2) documents or classes of documents that the
President may determine from time to time have
general applicability and legal effect; and
(3) documents or classes of documents that may be
required so to be published by Act of Congress.
For the purposes of this chapter [44 U.S.C. 1501 et
seq.] every document or order which prescribes a penalty
has general applicability and legal effect.
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At 44 U.S.C. 1507, the provision is made that, "The contents
of the Federal Register shall be judicially noticed ...", and at
1510, which establishes the Code of Federal Regulations, it
provides at subsection (e) that, "The codified documents [in the
Code of Federal Regulations] of the several agencies published in
the supplemental edition of the Federal Register ... shall be
prima facie evidence of the text of the documents and of the fact
that they are in effect on and after the date of publication."
In other words, where the several States and the general
population are concerned, a statute created by Act of Congress is
somewhat like a hot air balloon that will not get off the ground
until someone pumps hot air into it (as if it does not have
enough hot air already). Regulations are to statutes as hot air
is to the balloon. As stated in 1505(a)(1), if regulations for
any given statute aren't published in the Federal Register,
application is limited to Federal agencies or persons acting in
their capacity as officers, agents, or employees of Federal
agencies.
Provisions of 44 U.S.C.1505(a) are restated at 1 CFR 5.2:
5.2 Documents required to be filed for public
inspection and published.
The following documents are required to be filed for
public inspection with the Office of the Federal Register
and published in the Federal Register:
(a) Presidential proclamations and Executive orders in
the numbered series, and each other document that the
President submits for publication or orders to be
published.
(b) Each document or class of documents required to be
published by act of Congress.
(c) Each document having general applicability and
legal effect.
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Citations of authority requirements are as follows:
21.40 General requirements: Authority citations.
Each section in a document subject to codification must
include, or be covered by, a complete citation of the
authority under which the section is issued, including --
(a) General or specific authority delegated by statute;
and
(b) Executive delegations, if any, necessary to link
the statutory authority to the issuing agency.
21.41 Agency responsibility.
(a) Each issuing agency is responsible for the accuracy
and integrity of the citations of authority in the
documents it issues.
(b) Each issuing agency shall formally amend the
citations of authority in its codified material to
reflect any changes thereto.
The character of Federal statutory law, and the need for
regulations, have been addressed time and again by the U.S.
Supreme Court and Circuit Courts of Appeal. Many of the clearer
statements relate to application of the Internal Revenue Code, as
in California Bankers Association v. Schultz, 416 U.S. 21 (1974),
26, 94 S.Ct. 1494, 1500, 39 L.Ed.2d 812:
Because it has a bearing on our treatment of some of
the issues raised by the parties, we think it important
to note that the Act's civil and criminal penalties
attach only upon violation of regulations promulgated by
the Secretary; if the Secretary were to do nothing, the
Act itself would impose no penalties on anyone.
In Foley Brothers v. Filardo, 336 U.S. 281 (1949), the high
court said, "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." In order for a contrary intent to be facilitated,
delegations of authority and implementing regulations must be
published in the Federal Register, and/or any given statute must
clearly articulate application.
Fortunately, there is a reasonably easy way to discern what
statutes in the United States Code have general application to
the several States and to the population at large. This is
through the Parallel Table of Authorities and Rules, which begins
on page 751 of the 1995 Index Volume to the Code of Federal
Regulations. Its authority is located at 1 CFR 8.5(a):
(a) Parallel tables of statutory authorities and rules.
In the Code of Federal Regulations Index or at some other
place as the Director of the Federal Register considers
appropriate, numerical lists of all sections of the
current edition of the United States Code (except section
301 of title 5) which are cited by issuing agencies as
rule-making authority for currently effective regulations
in the Code of Federal Regulations. The lists shall be
arranged in the order of the titles and sections of the
United States Code with parallel citations to the
pertinent titles and parts of the Code of Federal
Regulations.
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This handy finding aid lists United States Code statutes by
title and section in the left-hand column, if implementing
regulations have been published in the Federal Register, and
applicable regulations by title and part, in the right-hand
column. If the statute doesn't appear, it doesn't have
implementing regulations which have been published in the Federal
Register, signifying that, in accordance with 44 U.S.C.
1505(a)(1) provisions, the statute is applicable only to Federal
agencies, or the officers, agents, and employees of Federal
agencies. If the statute number does appear and a regulation is
cited, the regulation must be consulted to determine application.
Where the instant matter is concerned, the table immediately
resolves the matter of territorial jurisdiction for United States
District Courts: there are no implementing regulations for 18
U.S.C. 7 & 3231. The absence of implementing regulations for
these two statutes confirms that the special maritime and
territorial authority of the United States District Court does
not reach into the several States and to the population at large;
the authority applies only on federal enclaves which have been
ceded to the United States for constitutional purposes, and as
the second paragraph of 3231 specifies, the laws and judicial
authority of the several States are superior and govern within
areas of the States which are not within federal enclaves that
have been ceded to Congress by the legislatures of the several
States.
Further, there are no implementing regulations for 28 U.S.C.
631-639, the Federal Magistrate Act. That is to say, these
glorified national park rangers in black robes, known as federal
magistrate judges, have no authority within in the several
States. Therefore, the United States District Courts have no
authority within in the several States, per the following:
Powers and duties were coextensive with limits of
judicial district in which he was appointed. United
States v. Harden, 10 F 802 (D.C. N.C., 1881); United
States v. Stern, 177 F 479 (D.C. Pa., 1910).
Where matters pertaining to alleged offenses under the
Internal Revenue Code are concerned, there are no implementing
regulations to support 26 U.S.C. 7402, which prescribes
jurisdiction for United States District Courts. This confirms
proofs in Meador's Public Notice Memorandum which demonstrate
that there are no implementing regulations for Internal Revenue
Code statutes prescribing taxing, assessment, and collection
authority, save as relates to import duties on distilled spirits,
etc., itemized in Subtitle E of the Internal Revenue Code, with
the general authority being 27 CFR, Part 70, which is under
Bureau of Alcohol, Tobacco and Firearms ("BATF") exclusive
administration.
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Matters relating to United States securities, etc., are
commonly at issue in federal prosecutions, so it is useful to
briefly examine underlying the authorities. The U.S.
Constitution, at Article I, Sec. 8, Clause 1, provides, "The
Congress shall have Power [1:8:5] to coin Money [and] regulate
the Value thereof," and at 10, Clause 1, stipulates that, "No
State shall ... coin Money; emit Bills of Credit; make any
Thing but gold and silver Coin a Tender in Payment of Debts ...."
Since these provisions have never been amended or repealed,
underlying authorities for current United States credit and
monetary systems should be examined for application:
12 U.S.C. 226. "Federal Reserve Act" NO REGULATION
12 U.S.C. 227. "Banking Act of 1933" NO REGULATION
12 U.S.C. 228. "Banking Act of 1935" NO REGULATION
There are no regulations applicable to the several States for
the Jury Selection and Service Act, 28 U.S.C. 1861 et seq.
Use of the Parallel Table of Authorities and Rules is probably
easiest to demonstrate by analysis of an actual case issued via
the Department of Justice and/or a United States Attorney. In
order to do this, we will use United States of America v. Kenney
F. Moore, Colleen Moore, and Wayne Gunwall, 96 CR-082C, United
States District Court for the Northern District of Oklahoma,
Tulsa, under stamped impressions of Neal Kirkpatrick, Assistant
U.S. Attorney, and Fred White, grand jury foreperson.
The same people were charged in 95 CR-129C in the fall of 1995
by the same Assistant U.S. Attorneys, with Mr. White serving as
grand jury foreperson. The case was assigned to the same judge.
However, the grand jury foreperson was presented with some of the
same information included in this memorandum, and subsequently
the Moores and Mr. Gunwall filed criminal complaints against
federal government principals, sending complaints and evidence to
the United States District Court in care of the court Clerk, and
to the Oklahoma Attorney General, W. A. Drew Edmondson. The
complaint was received by the Clerk of the United States District
Court on Friday, Nov. 17, then Assistant U.S. Attorney
Kirkpatrick entered a motion to dismiss charges on Monday, Nov.
20.
Grand jury indictment against the Moores and Mr. Gunwall were
allegedly issued again on May 15, 1996, with a "SUMMONS IN A
CRIMINAL CASE" (96-CR-082-C) issued July 5, 1996, under the
semblance of a signature for Phil Lombardi, allegedly the issuing
officer of some undisclosed rank and horsepower.
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This case is interesting for a number of reasons, and would
not be included in this memorandum except that federal government
insiders have chosen to scandalize the Moores and Mr. Gunwall via
statewide Oklahoma media. One of the crucial points is that
after receiving summons for Dr. and Mrs. Moore (the Government
sent the Gunwall summons to the Moores and Moore papers to
Gunwall), Mr. Gunwall drove from Ponca City to Tulsa and
attempted to secure copies of relevant material from the office
of the United States District Court clerk. But, the file was
unavailable, allegedly still at an old office that wasn't open
that particular day. Yet, the information was made available to
Oklahoma print and broadcast media, and principals from the
United States federal government and the office of Oklahoma
Attorney General Edmondson fueled media reporting with comments.
It would be difficult to inflict much more injury on the
Moores and Mr. Gunwall than federal government officials have
already choreographed. The question of the moment, however,
concerns charges issued against Dr. & Mrs. Moore and Mr. Gunwall:
What authority lies behind them?
Government charges rest on four statutes, presented here in
the order in which they appear on the face of the alleged grand
jury indictment: 18 U.S.C. 371: Conspiracy; 26 U.S.C.
7212(a): Interfering with Administration of Internal Revenue
Laws; 18 U.S.C. 1341: Mail Fraud; and 18 U.S.C. 2: Aiding
and Abetting.
By consulting the Parallel Table of Authorities and Rules
supra, it is found that there are no implementing regulations
extending general application authority to the several States and
the population at large for any of these statutes. Therefore,
the statutes are applicable only to agencies of the United States
and to officers, agents, and employees thereof, per 44 U.S.C.
1505(a), cited above.
The only charge which might be of some concern would be mail
fraud, because Congress is obligated under Article I, 8 of the
U.S. Constitution with providing mail services for the several
States. However, manipulation of the Postal Service was one of
the first congressional initiatives which, for all practical
purposes, has moved the whole of United States federal government
under Congress' Article IV legislative jurisdiction within the
federal zone (the geographical "United States"). This was done
via Act of Congress by the Thirty-Seventh Congress, Session III,
Chapter 71 (1863). Sections 22 & 23 of this Act distinguish
between "domestic" mail within the federal zone and "drop" mail
elsewhere.
Today, the United States Postal Service, a United States
federal government corporation, handles "domestic" mail in the
federal zone (the District of Columbia, Puerto Rico, etc.), and
"non-domestic" mail delivered in the several States and
elsewhere. Regulatory application of 18 U.S.C. sec. 341
demonstrates the paradox for the United States federal
government: even though Congress is charged under Article I of
the U.S. Constitution with responsibility for maintaining mail
service within the several States, alleged Article IV authority
to govern the federal zone in any fashion not specifically
prohibited by the U.S. Constitution confers absolutely no
authority in, and with respect to, the several States which are
parties to the U.S. Constitution. Therefore, where Congress has
elected to incorporate the United States Postal Service under
Article IV authority, statutes prescribing penalties for mail
fraud, etc., are not applicable to, or enforceable in, the
several States.
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Part V: Summary and Conclusion
Through the 1930's, evolution of the corporate United States
federal government, under Congress' alleged Article IV
legislative jurisdiction in the federal zone (i.e. the
geographical, self-interested United States), was referred to as
"corporatism". Presently, the U.S. Supreme Court and various
other courts use the term "cooperative federalism" to refer to
the de facto arrangement between the United States federal
government and the governments of the several States (the latter
operating under the presumption that they are federal "States",
rather than independent republics subject only to Congress'
Article I delegated authority). This diabolical scheme, from
control of production and distribution of goods and services, to
the mathematically impossible social welfare system and criminal
enforcement, is premised on the notion that all activity is
commercial in nature. The effect has been to treat the entire
nation as a seamless garment which is under Congress' Article IV
exclusive legislative jurisdiction, rather than as a patchwork of
fifty independent republics which are subject only to Congress'
Article I delegated constitutional authority.
Thankfully, in the last few years, the U.S. Supreme Court has
provided footing which affords the possibility of correction. In
New York v. United States supra, the high Court reiterated
principles framed by the Tenth Amendment and the Separation of
Powers Doctrine: so far as the several States are concerned,
Congress can exercise only those powers specifically delegated by
the U.S. Constitution, and officers of the several States cannot
accommodate a United States (federal government) power which is
not delegated without first securing a Constitutional amendment.
Unrestricted application of the commerce clause has been taken to
task in Lopez and other such cases which are cited in Lopez.
Unfortunately, judicially correcting the problem isn't as easy
as it should be. Through the years, the U.S. Supreme Court has
occasionally conveyed a message by way of decisions, or more
appropriately, non-decisions. The maxim has been articulated
when the Court has been presented with evidences such as the
failed ratifications of the Fourteenth and Sixteenth Amendments:
ratification of amendments is a political, rather than a
judicial, matter.
If we read history properly, the nation's high Court attempted
to hold the line prior to acquiescence in Julliard (1884), and
again resisted socialistic New Deal legislation until yielding in
Erie Railroad (1938). The choice in both cases appears to have
been pragmatic, yielding constitutional principles to the
political tide, further enhancing the probability and prospects
of a hidden oligarchy in America.
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In light of the current pervasive circumstance, it is
necessary to revisit first causes in order to address the
situation. As set forth in Part I of this Memorandum, American
Founders proclaimed that the "laws of Nature and Nature's God"
govern nations and Men, and that all Men are endowed with certain
unalienable Rights by their Creator. This foundation is
acknowledged in the preambles to state and federal constitutions:
the sovereign American People, by way of their constitutions,
have granted only certain, specifically enumerated powers to
their state and federal governments.
In New York v. United States supra, the U.S. Supreme Court
addressed the matter of authority. In the American system, the
question isn't what power governments should have, but what
powers have actually been delegated. The high Court further
concluded that public servants who usurp powers which are not
delegated invariably do so for self-serving ends. The problem,
of course, is accountability.
As the development history presented in the Becraft memorandum
demonstrates, the several States preceded the "United States".
The original thirteen colonies secured independence from English
rule, and each thereby established sovereignty as an independent
nation. The confederation which they maintained following the
Revolution was, at best, weak, having precious little authority
over the several new States. This arrangement threatened the
harmony, and even the survival, of that Confederation. These
difficulties spawned the Constitutional Convention in 1787, with
the first States convening under the U.S. Constitution and with
the U.S. Constitution vesting the United States (federal
government) with only the authority necessary to carry out its
expressly delegated responsibilities. However, the People and
the several States did not surrender any more power than was
delegated; they retained that which they did not delegate,
including sovereignty over the territories within the respective
States of the Union.
Thomas Jefferson, responding to the Alien and Sedition Acts,
addressed this very problem, and the proper order of things in
the American system of government, in the Kentucky Resolutions:
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8th. Resolved, That a committee of conference and
correspondence be appointed, who shall have in charge to
communicate the preceding resolutions to the Legislatures
of the several States; to assure them that this
commonwealth continues in the same esteem of their
friendship and union which it has manifested from the
moment at which a common danger first suggested a common
union; that it considers union, for specified national
purposes, and particularly to those specified in their
late federal compact, to be friendly to the peace,
happiness and prosperity of all the States: that
faithful to that compact, according to the plain intent
and meaning in which it was understood and acceded to by
the several parties, it is sincerely anxious for its
preservation: that it does also believe, that to take
from the States all the powers of self-government and
transfer them to a general and consolidated government,
without regard to the special delegations and
reservations solemnly agreed to in that compact, is not
for the peace, happiness and prosperity of these States;
and that therefore this commonwealth is determined, as it
doubts not its co-States are, to submit to undelegated,
and consequently unlimited powers in no man, or body of
men on earth: that in cases of an abuse of the delegated
powers, the members of the general government, being
chosen by the people, a change by the people would be the
constitutional remedy; but, where powers are assumed
which have not been delegated, a nullification of the act
is the rightful remedy: that every State has a natural
right in cases not within the compact -- to nullify of
their own authority all assumptions of power by others
within their limits: that without this right, they would
be under the domination, absolute and unlimited, of
whosoever might exercise this right of judgment for them:
that nevertheless, this commonwealth, from motives of
regard and respect for its co-States, has wished to
communicate with them on the subject: that with them
alone it is proper to communicate, they alone being
parties to the compact, and solely authorized to judge in
the last resort of the powers exercised under it,
Congress being not a party, but merely the creature of
the compact, and subject as to its assumptions of power
to the final judgment of those by whom, and for whose use
itself and its powers were all created and modified:
That if the acts before specified should stand, these
conclusions would flow from them; that the general
government may place any act they thing proper on the
list of crimes, and punish it themselves whether
enumerated or not enumerated by the constitution as
cognizable by them: that they may transfer its
cognizance to the President, or any other person, who may
himself be the accuser, counsel, judge and jury, whose
suspicions may be the evidence, his order the sentence,
his officer the executioner, and his breast the sole
record of the transaction: that a very numerous and
valuable description of the inhabitants of these States
being, by this precedent, reduced, as outlaws, to the
absolute dominion of one man, and the barrier of the
Constitution thus swept away from us all, no rampart now
remains against the passions and the powers of a majority
in Congress to protect from a like exportation, or other
more grievous punishment, the minority of the same body,
the legislatures, judges, governors and counsellors of
the States, nor their other peaceable inhabitants, who
may venture to reclaim the constitutional rights and
liberties of the States and the people, or who for other
causes, good or bad, may be obnoxious to the views, or
marked by the suspicions of the President, or be thought
dangerous to his or their election, or other interests,
public or personal ....
Memo of Law Supporting Challenge to Criminal Jurisdiction:
Page 37 of 40
Jefferson's argument is as valid in 1996 as it was in 1798:
Congress and the other branches of federal government are not
parties to the U.S. Constitution; they are products of it. The
U.S. Constitution vests Congress with certain delegated
authorities under Article I, and nothing more. Within its own
borders, State authority is antecedent to that of the United
States and, as parties to the U.S. Constitution, the several
States have both the right and responsibility to correct their
agent, the United States (federal government), when ambition
seeks to abuse or expand the powers which have been delegated.
Of more immediate importance where the instant matter is
concerned, those who exceed the law, whether in the State
governments or in the United States (federal government), are
accountable to the Law of the Land, and ultimately, to the People
of the Land, within the several States. Operation under color of
law is outlaw and criminal, and accountability must be in Law.
Judges, magistrates, attorneys for the Department of Justice, and
other enforcement people do not have immunity when they exceed
the law as it is written.
This memorandum conclusively demonstrates jurisdiction of
United States District Courts within the several States.
Implicitly, authority of the Department of Justice, and of the
United States (federal government) enforcement agencies attached
to that Department, is concurrent with that of United States
District Courts, because the lawful authority of any given agency
extends only so far as the legislative jurisdiction of the
government it serves. All legislation is territorial in nature.
Memo of Law Supporting Challenge to Criminal Jurisdiction:
Page 38 of 40
VERIFICATION
Under penalties of perjury, per 28 U.S.C. 1746(1), I hereby
attest that, to the best of My current information, knowledge,
understanding, and belief, all matters of law and fact as set out
above are true and correct, materially complete, and not
misleading, so help Me God.
Executed on August 13, 1996
/s/ Sheila Wallen
________________________________
Sheila Terese, Wallen, Sui Juris
Citizen of Arizona state
/s/ Paul Andrew Mitchell
_________________________________
Paul Andrew, Mitchell, B.A., M.S.
Citizen of Arizona state, federal witness,
Counselor at Law, Counsel of Record
Memo of Law Supporting Challenge to Criminal Jurisdiction:
Page 39 of 40
PROOF OF SERVICE
I, Sheila Terese, Wallen, Sui Juris, hereby certify, under
penalty of perjury, under the laws of the United States of
America, without the "United States," that I am at least 18 years
of age, a Citizen of one of the United States of America, and
that I personally served the following document(s):
MEMORANDUM OF LAW
IN SUPPORT OF CHALLENGE TO
CRIMINAL JURISDICTION OF THIS COURT
[i.e. There is none.]
Rules 301, 302: Federal Rules of Evidence
Rule 54: Federal Rules of Criminal Procedure
by placing one true and correct copy of said document(s) in first
class United States Mail, with postage prepaid and properly
addressed to the following:
Office of the United States Attorney
110 South Church Avenue, Suite 8310
Tucson [85701]
ARIZONA STATE
Attorney General
Department of Justice
10th and Constitution, N.W.
Washington
DISTRICT OF COLUMBIA
Solicitor General
Department of Justice
10th and Constitution, N.W.
Washington
DISTRICT OF COLUMBIA
Executed on: _____________________________
/s/ Sheila Wallen
__________________________________________
Sheila Terese, Wallen, Sui Juris
Citizen of Arizona state
All Rights Reserved without Prejudice
Memo of Law Supporting Challenge to Criminal Jurisdiction:
Page 40 of 40
# # #
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U.S.A. v. Wallen