Invisible Contracts (Social Security): Rebuttal

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http://www.dailypaul.com/comment/2629731
_________________________________________________
SEE
_________________________________________________
Invisible Contracts (Social Security)
——————————————————————
https://wikipediaint.wordpress.com/2014/10/30/1364/
_________________________________________________
Articles
——————————————————————
https://wikipediaint.wordpress.com/about/
_________________________________________________

Invisible Contracts (Social Security)

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_____________________________________________
Really ?  Invisible Contracts ?

(updated Sept. 24, 2009)
—————————————————————–
http://home.hiwaay.net/%7Ebecraft/InvisibleContracts.html
_____________________________________________
Back in the

mid-80s,

an

author

named

George Mercier

wrote a long

treatise

he described as a

letter

that explained his

arguments

about the

federal income tax
………………………………………………..
This

book

obtained a

wide circulation

back then,

but within a few years,

it died down after the

Mercier legal theory

was championed by the

Pilot Connection Society,

an

organization

created

and

operated

by

Phil Marsh,

and

went down in flames
………………………………………………..
But, this work is again being

popularized

by

newbies

in the

freedom movement

and I have concluded that I need to provide my

view

of this

argument,

which in essence is that this

legal argument

has no substance
………………………………………………..
Let me explain some of the

gross flaws

of this

argument
………………………………………………..
For centuries,

philosophers

have written about various forms of

governments,

and some of these like

Thomas Hobbes

and

John Locke

wrote about the

Social Contract Theory”;

Locke

had an

impact

on the

founders

of our

country
………………………………………………..
A short explanation of this

theory

may be found on the Net here
_____________________________________________
http://www.iep.utm.edu/soc-cont/
_____________________________________________
From reading

Mercier’s Invisible Contracts,

it appears to me that he attempted to connect the

Social Contract Theory

to

modern American law
………………………………………………..
However,

American law

is not exclusively contract based,

yet

this is the precise contention asserted

by

Mercier
………………………………………………..
I know little about

Mercier,

and I have never met anyone who knew him
………………………………………………..
For all that is known about him,

George Mercier

may be somebody’s

nom de guerre
………………………………………………..
But from reading his work,

I have concluded that he probably lived in

New York
………………………………………………..
From the fact that he quoted very extensively from the works of

Mormon Church leaders,

I have concluded that he was a

Mormon
………………………………………………..
But then again, he was a

self confessed

pot-grower:
………………………………………………..
“For example, among other things, I am a

Marijuana Grower

[I am quite interested in Horticulture]”
………………………………………………..
I have never met a

pot-growing

Mormon
………………………………………………..
Mercier’s

legal theory

is that, here in

America,

the

relationship

between

citizens

and

government (Mercier’sKing”)

is

entirely commercial

and

based

on

implied

or

invisible

contracts
………………………………………………..
I could be wrong,

but I have concluded that

Mercier

first wrote some

treatise

of his

legal argument

that was

purely theoretical
………………………………………………..
Once this was done,

he simply added a

substantial amount

of other apparently relevant

(to him at least)

legal

and

other materials
………………………………………………..
It is only this

other material

that provides any shred of

legal support

for his

argument
………………………………………………..
I do not want to be

perceived

as

condemning everything he writes about

and there is much in

Invisible Contracts

with which I am in agreement
………………………………………………..
His work is easy to read,

is entertaining and interesting;

he chocks his

work

with lots of

stories

about the

Rockefellers

and

other elites

in our

society

and across the world
………………………………………………..
He condemns the

tyranny

of

present-day American government,

and such writing is popular,

both with me and other Americans
………………………………………………..
But, all of that is irrelevant regarding

his fundamental legal argument
………………………………………………..
Let me address

his contention

that

everything is commercial

in reference to the

King”, government
………………………………………………..
It is a

well established legal principle

that

any American government

engaged

in

commercial endeavors

is

subject

to the

same rules of commerce

as are

private individuals
………………………………………………..
For example, in
_____________________________________________
Lynch v. United States,

292 U.S. 571, 579,

54 S.Ct. 840

(1934),
—————————————————————–
https://supreme.justia.com/cases/federal/us/292/571/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=292&invol=571
——————————————————————
https://bulk.resource.org/courts.gov/c/US/292/292.US.571.html
——————————————————————
http://www.law.cornell.edu/supremecourt/text/292/571
_____________________________________________
the

Supreme Court

stated:
………………………………………………..
When the

United States

enters into

contract relations,

its

rights

and

duties

therein are

governed generally

by the

law applicable to contracts

between

private individuals
………………………………………………..
See also
_____________________________________________
Franconia Associates v. United States,

536 U.S. 129, 141,

122 S.Ct. 1993

(2002);
—————————————————————–
https://supreme.justia.com/cases/federal/us/536/129/
—————————————————————–
https://supreme.justia.com/cases/federal/us/536/129/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=536&invol=129
—————————————————————–
http://ruralhome.org/storage/documents/franconia.pdf
—————————————————————–
http://www.oyez.org/cases/2000-2009/2001/2001_01_455
_____________________________________________
and
_____________________________________________
United States v. Seaboard Air Line Ry. Co.,

22 F.2d 113, 115

(4th Cir. 1927)
—————————————————————–
http://law.justia.com/cases/federal/appellate-courts/F2/22/113/1474997/
——————————————————————
6.

http://www.americanbar.org/publications/under_construction/2013/january_2013/update_from_courts_connecticut_supreme_court.html
——————————————————————
http://openjurist.org/216/f2d/855/seaboard-air-line-railroad-company-v-united-states
_____________________________________________
(“And the

rule

is

well settled

that, when the

government * * *

comes down from its

position

of

sovereignty,

and enters the

domain

of

commerce,

it

submits itself

to the

same laws

that

govern individuals

there‘”),
………………………………………………..
among many others
………………………………………………..
Presuming that

our relationship

with

Uncle Sam

is

commercial,

what are these

contract rules

that apply to this

commercial government,

Mercier’s King?
………………………………………………..
The

statute of frauds

originates from the

common law

and

every state

today has a general

statute of frauds,”

if not several
………………………………………………..
Generally,

statutes of frauds

require

that

certain contracts

are only

valid

if

evidenced

by a

written contract
——————————————————————
Typically,

contracts for the sale of land,

contracts for the sale of goods over 500 bux,

all other contracts in excess of 5000 bux,

agreements to answer for the debts of others,

contracts that have a life in excess of one year,

etc.,

must be

memorialized

by a

written contract
——————————————————————
Two such

Alabama laws

appear below:
——————————————————————
§ 7-2-201

Formal requirements; statute of frauds

(1) Except as otherwise provided in this section

a contract for the sale of goods

for the price of $500 or more

is not enforceable by way of

action

or

defense

unless there is

some writing

sufficient to indicate

that a

contract for sale

has been made between the

parties

and

signed

by the

party

against whom

enforcement

is sought

or by his

authorized agent

or

broker
——————————————————————
A

writing

is not

insufficient

because it

omits

or

incorrectly states

a term agreed upon,

but the

contract

is not

enforceable

under this

paragraph

beyond the

quantity of goods

shown in such writing
——————————————————————
§ 8-9-2

Certain agreements void unless in writing

In the following cases,

every agreement

is

void

unless such

agreement

or

some note

or

memorandum thereof

expressing the

consideration

is in

writing

and

subscribed

by the

party

to be

charged therewith

or

some other person

by him thereunto

lawfully authorized

in

writing:
——————————————————————
(1) Every agreement

which, by its

terms,

is not to be

performed

within

one year

from the

making thereof;
——————————————————————
(2) Every special promise

by an

executor

or

administrator

to

answer damages

out of his own estate;
——————————————————————
(3) Every special promise

to

answer for the

debt,

default

or

miscarriage

of another;
——————————————————————
(4) Every

agreement,

promise

or

undertaking

made upon

consideration

of

marriage,

except mutual promises to marry;
——————————————————————
(5) Every contract

for the sale of

lands,

tenements

or

hereditaments,

or of

any interest therein,

except

leases

for a term not longer than

one year,

unless the

purchase money,

or a portion thereof is

paid

and the

purchaser

is put in

possession

of the

land

by the

seller;
——————————————————————
(6)  Every

agreement,

contract

or

promise

to make a will

or

to

devise

or

bequeath

any

real

or

personal

property

or

right,

title

or

interest

therein;
——————————————————————
(7) Every

agreement

or

commitment

to

lend money,

delay

or

forebear repayment thereof

or

to modify the provisions

of such

an agreement

or

commitment

except for

consumer loans

with a

principal amount

financed less than $25,000;
——————————————————————
(8) Notwithstanding

Section 7-8-113,

every agreement

for the

sale

or

purchase

of securities

other than through the

facilities

of a

national stock exchange

or of the

over-the-counter securities market
——————————————————————
With the

statute of frauds

in mind,

look at your

birth certificate,

driver’s license

and

SSN card
——————————————————————
What

promises to pay

appear

on any of these

documents?
——————————————————————
Did you

sign

any of these

documents

promising to

pay anything?
——————————————————————
Can

King government

sue you

for

breach of contract

based on your

birth certificate,

driver’s license

or

SSN?
——————————————————————
In truth and

as a matter of law,

these

documents

are

not contracts,

nor do they

evidence contracts
——————————————————————
Finally, there are no

invisible contracts”

regarding these matters
——————————————————————
Furthermore, having an

association

with some

regulated entity

like a

bank

does not supply some

nexus

to

King government,

absent

some express law
——————————————————————
Mercier

also

asserts

that

social security

is an

invisible contract
——————————————————————
For many years, I have posted the following in another file on my website:
—————————————————————–
http://home.hiwaay.net/%7Ebecraft/ssn.html
_____________________________________________
SOCIAL SECURITY IS NOT A CONTRACT
………………………………………………..
Art. 1, § 9, cl. 7

of the

U.S. Constitution

provides that
………………………………………………..
“No Money

shall be

drawn

from the

Treasury,

but in

Consequence of Appropriations

made by

Law”
………………………………………………..
While this

constitutional provision

does not of itself

place a maximum ceiling

on the

amount of debt

which can be

created

by

Congress,

it does

require

that

appropriating legislation

be

enacted

in order to

incur debts
………………………………………………..
This is aptly demonstrated by the

federal cases

which have

construed

this part of the

Constitution
………………………………………………..
In
_____________________________________________
Cummings v. Hardee,

102 F.2d 622

(D.C.Cir. 1939),
—————————————————————–
http://www.vivienkellems.org/security.html
_____________________________________________
and
_____________________________________________
Maryland Casualty Co. v. United States,

155 F.2d 823

(4th Cir. 1946),
—————————————————————–
https://casetext.com/case/maryland-casualty-co-v-united-states-8
_____________________________________________
it was held that

officers of the United States

lacked

all power

to

pay any claim

against the

United States

in the

absence

of an

appropriation from Congress

to

pay such claim
………………………………………………..
This principle was more fully explained in
_____________________________________________
Hughes Aircraft Co. v. United States,

534 F.2d 889, 906

(Ct.Cl. 1976),
—————————————————————–
https://casetext.com/case/hughes-aircraft-co-v-united-states-3
_____________________________________________
where that

Court

declared:
——————————————————————
“The

second principle

is that

before

any expenditure

of

public funds

can be made,

there must be an

act of Congress

appropriating the funds

and

defining the purpose

for such appropriation
——————————————————————
Thus,

no officer

of the

Federal Government

is

authorized

to

pay a debt due from the U.S.,

whether or not reduced to a

judgment,

unless an

appropriation

has been made for that purpose”
——————————————————————
See also
_____________________________________________
Reeside v. Walker,

52 U.S. (11 How.) 272

(1850);
—————————————————————–
https://supreme.justia.com/cases/federal/us/52/272/case.html
—————————————————————–
https://bulk.resource.org/courts.gov/c/US/52/52.US.272.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=52&invol=272
_____________________________________________
Cincinnati Soap Co. v. United States,

301 U.S. 308,

57 S.Ct. 764

(1937);
—————————————————————–
https://supreme.justia.com/cases/federal/us/301/308/case.html
—————————————————————–
https://bulk.resource.org/courts.gov/c/US/301/301.US.308.659.687.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=301&invol=308
_____________________________________________
and
_____________________________________________
Office of Personnel Management v. Richmond,

496 U.S. 414,

110 S.Ct. 2465, 2471

(1990)
—————————————————————–
https://supreme.justia.com/cases/federal/us/496/414/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=496&invol=414
—————————————————————–
http://laws.findlaw.com/us/496/414.html
_____________________________________________
LAW REVIEW 1104
—————————————————————–
http://lawcenter.org/LAW_REVIEW_1104.html
_____________________________________________
In
_____________________________________________
National Association of Regional Councils v. Costle,

564 F.2d 583, 586

(D.C.Cir. 1977),
—————————————————————–
http://openjurist.org/564/f2d/583/national-association-of-regional-councils-v-m-costle-u-s
—————————————————————–
https://casetext.com/case/national-assn-of-regional-councils-v-costle
—————————————————————–
http://elr.info/litigation/%5Bfield_article_volume-raw%5D/20737/national-assn-regional-councils-v-costle
_____________________________________________
that

Court

elucidated this principle by stating:
………………………………………………..
“Government agencies

may only enter into

obligations to pay money

if they have been

granted such authority

by

Congress
—————————————————————–
Amounts so

authorized

by

Congress

are termed collectively

‘budget authority’

and can be

subdivided

into

three conceptually distinct categories —

appropriations,

contract authority,

and

borrowing authority
——————————————————————
Appropriations permit an

agency

to

incur obligations

and to

make payments

on

obligations
——————————————————————
Contract authority

is

legislative authorization

for an

agency

to

create obligations

in advance

of an

appropriation
——————————————————————
It

requires

a

subsequent appropriation

or

some other source of funds

before the

obligation incurred

may actually be

liquidated

by the

outlay of monies
——————————————————————
Borrowing authority

permits an

agency

to

spend debt receipts”
——————————————————————
Thus, it is quite apparent that in order for the

federal government

to

incur debt,

it

must adopt legislation

authorizing

a

specific amount

of

federal obligations

to be

incurred
——————————————————————
It is easy to

demonstrate

the

operation

of

this provision

of the

Constitution

and its

application

to

government contracts
——————————————————————
Suppose the

feds

desired to build a

new courthouse

at a

cost of $200 million
——————————————————————
An

agency

in charge

of such a

project

could theoretically

“contract”

with a

construction company

to build this structure
——————————————————————
However, until

Congress

actually appropriates money

to

pay for construction,

there is no contract
——————————————————————
Even if the

contractor

in this example

incurred lots of costs

preparing to build this courthouse

which ultimately does not get built

because of

lack of funds,

he has no claim against Uncle Sam

for

breach of contract
——————————————————————
The

same principle

applies

to

every other government contractor,

whether

aerospace,

military,

et cet.
——————————————————————
Government contracts

are unique

and different

from

private sector contracts

due to this

constitutional limitation

upon the

power to contract
——————————————————————
Is

Social Security

a

contract?
——————————————————————
A

private insurance policy

is clearly a

contract

because the

policyholder

makes a

promise

to

pay money

to the

insurance company,

which in turn

agrees to likewise pay the policyholder

if certain contingencies arise
——————————————————————
These

“promise to pay”

elements

are essential

for a

contract,

but they simply

are not present

with

Social Security
——————————————————————
First,

Social Security

“payments”

are not premium payments,

but are

taxes instead
——————————————————————
Secondly,

there is no corresponding

and

enforceable

“promise to pay”

from the

Social Security Administration

to its

“beneficiaries”
——————————————————————
As noted above,

government contracts

are

very special

and

require

an

appropriation from Congress

before

money can be expended

and a

contract made
——————————————————————
Regarding

Social Security,

the only

“beneficiaries”

who have

any claim

against the

public treasury

are those for whom

Congress

has already made an

appropriation,

which can last no longer than a year
——————————————————————
The rest of the

Social Security claimants in America

have no enforceable claim on public funds,

and all they possess is a

“political promise,”

upon which

Congress

can renege at any moment
——————————————————————
If

Congress

decided tomorrow

to cut off all

Social Security benefits,

nobody

would have any claim for payment
——————————————————————
Thus,

Social Security

has never been

and

is not now

a

contract
——————————————————————
See
_____________________________________________
Fleming v. Nestor,

363 U.S. 603, 610,

80 S.Ct. 1367

(1960)
—————————————————————–
https://supreme.justia.com/cases/federal/us/363/603/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=363&invol=603
—————————————————————–
http://www.ssa.gov/history/nestor.html
—————————————————————–
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1591&context=facpubs&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Fcse%3Fcx%3Dpartner-pub-5347803559129172%253A5886277248%26ie%3DISO-8859-1%26q%3DFlemming%2Bv.%2BNestor%2B363%2BU.S.%2B603%2B1960%26sa%3DSearch#search=%22Flemming%20v.%20Nestor%20363%20U.S.%20603%201960%22
—————————————————————–
http://www.supremelaw.org/authors/mcdonald/vol1-8.htm
—————————————————————–
http://www.cato.org/publications/commentary/is-there-right-social-security
—————————————————————–
http://www.intellectualtakeout.org/library/primary-sources/flemming-v-nestor-1960
_____________________________________________
(“It is apparent that the

noncontractual interest

of an

employee

covered by the Act

cannot be soundly analogized

to that of the

holder

of an

annuity,

whose

right

to

benefits

is

bottomed

on

his contractual premium payments”);
_____________________________________________
Richardson v. Belcher,

404 U.S. 78, 80,

92 S.Ct. 254, 257

(1971)
—————————————————————–
https://supreme.justia.com/cases/federal/us/404/78/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=404&invol=78
—————————————————————–
https://bulk.resource.org/courts.gov/c/US/404/404.US.78.70-53.html
_____________________________________________
(“The fact that

social security benefits

are

financed

in part by

taxes

on an

employee’s wages

does not in itself

limit

the

power of Congress

to fix the levels of

benefits

under the Act

or the conditions

upon which they may be paid”);
_____________________________________________
Califano v. Goldfarb,

430 U.S. 199, 210,

97 S.Ct. 1021, 1028

(1977)
—————————————————————–
https://supreme.justia.com/cases/federal/us/430/199/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=430&invol=199
—————————————————————–
http://www.law.cornell.edu/supremecourt/text/430/199
—————————————————————–
http://www.oyez.org/cases/1970-1979/1976/1976_75_699
_____________________________________________
(Brennan J.) (plurality opinion)

(“Congress

has

wide latitude

to

create classifications

that

allocate non-contractual benefits

under a

social welfare program”);

and
_____________________________________________
United States Railroad Retirement Board v. Fritz,

449 U.S. 166, 174,

101 S.Ct. 453, 459

(1980)
—————————————————————–
https://supreme.justia.com/cases/federal/us/449/166/case.html
—————————————————————–
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=449&invol=166
—————————————————————–
https://bulk.resource.org/courts.gov/c/US/449/449.US.166.79-870.html
—————————————————————–
http://www.law.cornell.edu/supremecourt/text/449/166
_____________________________________________
(“railroad benefits,

like

social security benefits,

are

not contractual

and

may be altered

or

even eliminated at any time”)
………………………………………………..
In

1953,

a

subcommittee

of the

House Ways and Means Committee

conducted hearings

for the

express purpose

of

settling the question

of whether

social security

was

contractual in nature;

see
………………………………………………..
Hearings

of

November 27, 1953

entitled

The Legal Status of OASI Benefits,”

(Part 6)
………………………………………………..
The

witness

at the

hearing

was

Dr. Arthur J. Altmeyer,

who held several offices in the

Roosevelt administration
………………………………………………..
He was a

member

of the

first Social Security Board,

and by

1946

became the

Social Security Commissioner,

retiring

in

1953
………………………………………………..
During this

hearing,

various parties stated that

social security

was not a contract:
………………………………………………..
At page 918:
………………………………………………..
“Mr. Altmeyer:

* * * There is no individual contract

between the

beneficiary

and the

Government
………………………………………………..
“Mr. Dingell:

Congress

knew that,

did it not?
………………………………………………..
“Mr. Altmeyer:

Yes,

of course

I am sure it did

* * *
………………………………………………..
“Chairman Curtis:

The

individual * * * has no contract?

Is that your position?
………………………………………………..
“Mr. Altmeyer:

That is right
………………………………………………..
“Chairman Curtis:

And

he has no insurance contract?
………………………………………………..
“Mr. Altmeyer:

That is right”
………………………………………………..
At page 937:
………………………………………………..
“Chairman Curtis:

We came to an

agreement

on one of our

major premises,

that

this was no insurance contract,

and

the words did not come from me
………………………………………………..
They were

volunteered

by

Mr. Altmeyer”
………………………………………………..
At page 968:
………………………………………………..
“Mr. Winn:

* * * Mr. Altmeyer,

there being no contractual obligation

between the

Government

and the

worker,

it follows,

does it not,

that the

benefit payments

under

title II

of the

Social Security Act

are

merely statutory benefits

which

Congress

may

withdraw

or

alter

at any time?”
………………………………………………..
At page 969:
………………………………………………..
“Mr. Winn (reading):

‘These are

gratuities,

not based on contract * * *
………………………………………………..
Moreover, the

act

creates no contractual obligation

with respect to the

payment of benefits
………………………………………………..
This

Court

has pointed out the difference

between

insurance

which

creates vested rights,

and

pensions

and

other gratuities,

involving

no contractual obligations,

in

Lynch v. United States,

(292 U.S. 571, 576-577)”
………………………………………………..
At page 994:
………………………………………………..
“Mr. Altmeyer:

I have answered your question, sir
………………………………………………..
If you will refer to

section 1101,

you will find,

as you

read into the record,

that

there are no vested rights,

that

Congress may create different rights * * *”
………………………………………………..
At page 996:
………………………………………………..
“Mr. Winn:

We have also established

that

there is no insurance contract

between the

Government

and the

worker

within a

covered wage

whereby the

rights

and

obligations

of a

party

are set;

that is correct,

is it not?
………………………………………………..
“Mr. Altmeyer:

No
………………………………………………..
You did not establish that
………………………………………………..
That has been

self-evident

since the law was passed in 1935”
………………………………………………..
At pages 1013-14

(the Chair’s concluding remarks):
………………………………………………..
“Chairman Curtis:

Mr. Altmeyer,

it is

apparent

that the

people of the country

have no insurance contract
………………………………………………..
That

does not mean

that

I do not want to do my full part

to

do justice to them

and to

carry out

and

make good

on the

moral commitment

that has been made to them
………………………………………………..
Yet,

notwithstanding the fact

that

they had no insurance contract,

it remains true

that the agency

under your direction

repeatedly in public statements,

by pamphlets,

radio addresses,

and

by other means,

told the people of the country

that

they had insurance
………………………………………………..
I think

a number of people

were misled by that”
………………………………………………..
The position asserted by

Mercier

that

social security

is a

contract,

visible

or

invisible,

thus

does not manifest itself

in the

decisions

of

federal courts
………………………………………………..
See also
_____________________________________________
McLughlin v. CIR,

832 F.2d 986, 987

(7th Cir. 1987)
—————————————————————–
http://openjurist.org/832/f2d/986/mclaughlin-v-commissioner-of-internal-revenue
—————————————————————–
http://famguardian.org/publishedauthors/LawReviews/WiscLawRvw/UsurpOctJurAuth.htm
—————————————————————–
http://www.justice.gov/tax/CooperMemo.pdf
_____________________________________________
(“The

notion

that the

federal income tax

is contractual

or

otherwise consensual in nature

is not only utterly without foundation

but…

has been repeatedly rejected

by the

courts”);
………………………………………………..
and
_____________________________________________
United States v. Drefke,

707 F.2d 978, 981

(8th Cir. 1983)
—————————————————————–
http://www.irs.gov/Tax-Professionals/The-Truth-About-Frivolous-Tax-Arguments-Section-I-A-to-C
—————————————————————–
http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Anti-Tax-Law-Evasion-Schemes-Law-and-Arguments-Section-I
—————————————————————–
http://www.justice.gov/tax/CooperMemo.pdf
—————————————————————–
http://www.fraudsandscams.com/voluntary_compliance.htm
—————————————————————–
http://www.taxprophet.com/tax_scams_articles/QFTPArguments.pdf
—————————————————————–
http://devvyconklin.tripod.com/fakery.html
_____________________________________________
Contentions that

driver licenses

are

contracts

are baseless;
………………………………………………..
see
_____________________________________________
Hershey v. Commonwealth Dep’t. of Transportation,

669 A.2d 517, 520

(Pa.Cmwlth. 1996);
_____________________________________________
and
_____________________________________________
State v. Gibson,

697 P.2d 1216

(Idaho 1985)
—————————————————————–
http://archive.adl.org/mwd/sussman.doc
_____________________________________________
Mercier

also had a

chapter

of his

work

making some

vague contention

about

admiralty
………………………………………………..
There are lots of

phony admiralty arguments

being

promoted

in the

freedom movement,

all

asserting essentially

an

argument

that

admiralty

has invaded

“inland”,

and

“everything is admiralty”
………………………………………………..
I address that groundless argument here
——————————————————————
http://home.hiwaay.net/%7Ebecraft/AdmiraltyJuris.html
_________________________________________________
Mercier

also made snide remarks that the

money argument

relating to

gold,

silver

and

Federal Reserve Notes

that is

popular

with many

is baseless,

but I demonstrate otherwise here
——————————————————————
http://home.hiwaay.net/%7Ebecraft/MONEYbrief.html
_________________________________________________
There are lots of other flaws in

Mercier’s legal argument

about

Invisible Contracts,

but

I will not address them here
………………………………………………..
What is important is that

Phil Marsh

started an

organization

named the

Pilot Connection Society

back at the

end of the 1980s,

and the

central legal argument

that he

promoted

was

based entirely

on

Invisible Contracts
………………………………………………..
Mercier’s

“book”

advocated

that a

citizen

should give

King government

a

wide variety

of

notices

rescinding

the

“Invisible Contracts”,

and

Marsh’s organization

did precisely this

for hundreds of people
………………………………………………..
Marsh

was

prosecuted

and

convicted

and

his appeal appears below:
………………………………………………..
UNITED STATES v. MARSH, 144 F.3d 1229 (9th Cir. 1998)
——————————————————————
http://www.google.com/cse?cx=partner-pub-5347803559129172%3A5886277248&ie=ISO-8859-1&q=UNITED+STATES+v.+MARSH+144+F.3d+122+9th+Circuit++1998&sa=Search#gsc.tab=0&gsc.q=UNITED%20STATES%20v.%20MARSH%20144%20F.3d%201229%201998
——————————————————————
http://law.justia.com/cases/federal/appellate-courts/F3/144/1229/589561/
………………………………………………..
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PHILLIP MARSH,

Defendant-Appellant
………………………………………………..
OPINION

NOONAN, Circuit Judge:
………………………………………………..
Phillip Marsh and his five co-defendants appeal their convictions of conspiring to defraud the United States by impeding the collection of federal income taxes and their convictions of related crimes
………………………………………………..
They also appeal their sentences, which, as to Phillip Marsh total a term of imprisonment of 17 1/2 years, as to his wife Marlene a term of 14 years, and as to the other defendants lesser but still substantial periods of prison
………………………………………………..
FACTS AND PROCEEDINGS
………………………………………………..
Phillip Marsh was the founder in 1990 of

The Pilot Connection Society,

often self-identified by its acronym

TPCS
………………………………………………..
Marsh’s enterprise offered its customers the elusive and enchanting prospect of

untaxing themselves
………………………………………………..
The verb

“untax”

entered the language in

political conflict

in

England

over a

formidable tariff

on

foreign grain

and denoted

political action

by the

government
………………………………………………..
(“Who will untax our bread?”

E. Elliott,

Corn-Law Rhymes,

1833)
………………………………………………..
“Untax,”

as used in the present context,

means

freeing oneself from any legal obligation

to pay any

income tax,

federal

or

state
………………………………………………..
To achieve this exceptional state,

TPCS

offered an

“Untax Package”
………………………………………………..
The package

included

Phillip Marsh’s

The Compleat Patriot,

the Constitution of the United States,

Psalm 91,

and

a photograph of Phillip and his wife suitable for framing
………………………………………………..
It also included

“Very basic untax documents and their instructions”
………………………………………………..
Among them were a form letter to be sent to the

District Director of the Internal Revenue Service

stating that the quondam taxpayer had recently found out that the director had been

“attempting to extort money”

from him and demanding that he

justify his jurisdiction

by a

certified copy

of the

director’s designation of authority

from the

Secretary of the Treasury
………………………………………………..
The letter was not to be xeroxed and was to be handwritten because
………………………………………………..
“[i]t takes 3 to 5 times as long to read hand written material as it does to read typed material — anything to slow the IRS down!”
………………………………………………..
Another form letter, to be similarly copied by hand, informed the

the district director

that the

taxpayer

was not a person

under the

director’s jurisdiction
………………………………………………..
The Untax Package

included

another form by which the

taxpayer

revoked

income tax returns

previously signed by him

and

“cancelled”

his signature

on such returns
………………………………………………..
This form was to be retyped by the

taxpayer,

eliminating the

Pilot Connection letterhead,

and to be notarized
………………………………………………..
The

theory

of the

revocation

and

cancellation,

as explained in the

Untax Package,

was that the

IRS

would use

earlier returns

to prove

that the

taxpayer

was aware

of

his obligation

to

file

and

pay
………………………………………………..
The

revocation

and

cancellation

would, so the

Untax Package

suggested,

eliminate this easy evidence of the

taxpayer’s willfulness

in now refusing to file and pay
………………………………………………..
The reason that the

taxpayer

could so readily remove himself from the

taxpaying rolls

was, according to

TPCS,

that

“income tax is voluntary”
………………………………………………..
(SER 32)

If you didn’t want to pay it,

you didn’t have to
………………………………………………..
TPCS

also advised its members

to resort to

“alternative banking,”

that is,

to pay everything by

cash

or

postal money order,

or

to join something called the

National Commodity and Barter Association

and use

“warehouse banking,”

or to have some trusted associate open an account for one in the associate’s name, or to establish, with TPCS’s help, an

“offshore trust”
………………………………………………..
The reason for adopting one of these

alternative styles

of

money management

was that if you

opened a checking or savings account

you agreed

“that the money belongs to the bank from that moment on,”

with the implication that the

bank

would surrender the money

on levy

by the

IRS

(SER 36)
………………………………………………..
Members

were provided with

forms,

to be

recopied

and

notarized,

of

revocation

of

bank signature cards

(SER 35)
………………………………………………..
Another practical precaution the

TPCS member

was advised to take, in order to assure that

his emancipation

from

taxation

was effective,

was to

file W-4s

with his employers

claiming as many exemptions

as he had thousands of dollars of

income
………………………………………………..
For example,

if he earned $30,000,

he was to

file a W-4

claiming 30 exemptions
………………………………………………..
The member was assured by

TPCS

that there was

no limit

to the number of exemptions

he could lawfully claim

(SER 342)
………………………………………………..
No mention was made of

any duty

to have a reason

for

claiming an exemption
………………………………………………..
Untax Packages,

the contents sometimes different in unessential detail,

were sold by

TPCS

for a price that varied for the occasion
………………………………………………..
At the start the price was over $6,000.

(SER 8)
………………………………………………..
The price announced in

January 1993

was

“$2,100 or 10% of your existing tax problem (if any), whichever is higher.”

(SER 380)
………………………………………………..
As of

January 31, 1990,

TPCS

had only three purchasers

of the

Untax Package
………………………………………………..
By

December 31, 1993,

TPCS

recorded 3,848 purchasers

and

income from them of

$7,638,625.

(SER 19)
………………………………………………..
TPCS

had ordinary members who did not purchase the

Untax Package

but who did pay $45 for membership
………………………………………………..
By the end of 1993 there were 12,617 in this category

(SER 19)
………………………………………………..
They received

TPCS’s magazine,

The Connector
………………………………………………..
The magazine carried the subtitle

“The Voice of Freedom”

and ran a facsimile of an

American flag

as its logo
………………………………………………..
Its pages repeated at their foot the mantra of the Society,

“Income Tax Is Voluntary!”
………………………………………………..
The Connector

informed its readers that there was

no law

making anyone liable

for

income tax
………………………………………………..
TPCS

had a cadre superior to that of mere members, constituted by those admitted to the status of

Associate Member
………………………………………………..
An

Associate Member

had the right

to sell the publications

of

TPCS
………………………………………………..
He paid

$10,000

to acquire the franchise and the

confidential instructions

on marketing that accompanied the franchise
………………………………………………..
By

December 31, 1993,

there were

730 persons

who had been admitted to this

advanced status
………………………………………………..
Apparently some associates got a discount, for the total paid by them recorded in the Society’s book was

$5,281,010.

(SER 19)
………………………………………………..
Phillip Marsh

conceived the idea of

TPCS
………………………………………………..
His wife Marlene joined him in marketing it
………………………………………………..
Together they traveled the

United States

soliciting the purchase of memberships and

Untax Packages

and speaking at

seminars

and

conferences

intended to promote

TPCS
………………………………………………..
Marlene’s daughter,

Jill Spencer,

was an

Associate Member

and the

office manager,

in the latter capacity opening and distributing mail sent to

TPCS,

logging cash received and responding to some customer complaints
………………………………………………..
Her husband

Darrell

was also an

Associate Member
………………………………………………..
He became

TPCS’s

General Manager,

overseeing staff and publications,

revising the

Untax Package,

and writing in his own name in

The Connector,

to explain why paying

income tax

was optional
………………………………………………..
A family operation,

TPCS

was aided by

Joseph Coltrane, alias John Campion,

and by

Douglas Carpa
………………………………………………..
Coltrane

was the

National Coordinator

of the

TPCS sales force
………………………………………………..
Carpa

was not a TPCS member

but from approximately

May 1991

to

June 1992

assisted the marketing of memberships in

TPCS

by putting together trusts in which

TPCS members

might hope to hide their assets from the

IRS
………………………………………………..
He offered his drafts of

trust instruments

only to those who purchased the

Untax Package
………………………………………………..
He assured

members

that

his trusts

were

“old and cold”

and would work to cure even pre-existing problems with the

IRS

because the

trusts

would be predated to a time

before an

IRS lien
………………………………………………..
In its publications

TPCS

asserted that it was

not a tax protester movement,

that it

did not deny the constitutionality

of the

Internal Revenue Code,

and that

it did not maintain

that

Congress lacked the power

to

tax income
………………………………………………..
TPCS

simply taught that

Congress

had not exerted that power

and that the

IRS

was

“a private corporation”

engaged in lawless efforts to extract money from Americans not obliged to pay
………………………………………………..
TPCS

characterized its own teachings as

educational

and added that they were the

exercise of free speech,

protected by the

First Amendment

from prosecution
………………………………………………..
TPCS

was aware that the

IRS

challenged its view of the law,

an awareness reinforced by the rejection that

TPCS’s Untax Package

received when put into practice by members
………………………………………………..
The

IRS

by

1991

was aware of

TPCS

and alert to its raison d’etre
………………………………………………..
In

February 1992

an

affidavit

filed by

IRS Special Agent Diane Messer

characterized

TPCS

as an

“illegal tax protester organization”

and sought a

search warrant

authorizing the seizure of documents pertaining to

TPCS

and to

Phillip and Marlene Marsh
………………………………………………..
The search was to be carried out at the Marshes’ home, which they used as the Society’s headquarters
………………………………………………..
Pursuant to the

warrant,

a comprehensive seizure

was made of the

correspondence,

computers,

and

file cabinets

of the

Society
………………………………………………..
Apparently as a response to the search, on

August 12, 1992,

in

Stockton, California,

Phillip and Marlene Marsh

and

Jill Spencer

signed two papers

alleging

that

certain persons

were

indebted to them

in the amount of

$350,000 each and seeking to place a

commercial lien

on the

property

of the

debtors
………………………………………………..
These persons were

Agent Messer

and

three other IRS agents

involved in the search;

the

United States Magistrates

who had authorized the search;

three United States attorneys

in the

Eastern District of California

and

one United States attorney

in the

Northern District;

Lawrence Karlton,

Senior District Judge

of the

Eastern District;

and

California Superior Court Judge

Jeremy Fogel
………………………………………………..
The liens were filed in

Nevada

and

Washington
………………………………………………..
A year later, in

February 1993,

a

second affidavit

executed by

Agent Messer

asserted that

TPCS

was

“so permeated with involvement with illegal activities”

that a comprehensive search could not separate the few innocent items

“from the vast amount of material which will be relevant evidence of the criminal violations”
………………………………………………..
The Marshes then moved from

California

to

Colorado

and from their home there continued their enterprise under the name the

Liberty Foundation
………………………………………………..
A

third affidavit

executed by

Messer

led to the

comprehensive search

of the

Colorado office

in

December 1993
………………………………………………..
A

grand jury

had already, on

November 29, 1993,

indicted the defendants for

conspiracy to defraud the United States
………………………………………………..
The defendants moved unsuccessfully to suppress the material seized by the government from their files
………………………………………………..
Phillip Marsh

sought with equal unsuccess to introduce a report by a psychiatrist who evaluated him and found him to suffer from delusions; the psychiatrist’s proffered testimony was excluded in limine on the government’s motion
………………………………………………..
Trial followed in the district court for Northern California running slightly over three months, from

August 29, 1994

to

November 30, 1994
………………………………………………..
The jury was unable to agree on the principal counts
………………………………………………..
The

United States

obtained a

superseding indictment

charging all six defendants

with

conspiracy to defraud

the

United States

by

obstructing the lawful functions

of the

IRS,

in particular by their operation and promotion of

TPCS

and the

Untax Package
………………………………………………..
The two Marshes and the two Spencers were personally charged with

tax evasion

and

failure to file a return
………………………………………………..
The indictment also charged all defendants except Carpa with numerous counts of

mail fraud

in the sale of the

Untax Package

to over 3,000 persons
………………………………………………..
The two Marshes and Jill Spencer were charged with

endeavoring to impede the administration of the tax laws

by filing the

commercial liens

in

Nevada

and

Washington

against the

government officials

named in them
………………………………………………..
The

government

announced in its

Status Conference Statement

that it intended to introduce

“as much of its evidence as possible through `summary witnesses'”
………………………………………………..
The defendants filed a

joint motion in limine

opposing this procedure:

“it appears that the government intends to avoid cross-examination of the alleged mail fraud victims by hearsay summaries”
………………………………………………..
The

government

had proposed that

IRS agents

read excerpts from the

TPCS files
………………………………………………..
The defendants objected that the material from

TPCS files — complaint letters from persons saying that they had been deceived by TPCS — fell within no exception to the hearsay rule
………………………………………………..
The defendants asserted that the procedure would violate their

Sixth Amendment right

to confront their accusers
………………………………………………..
Citing

Coy v. Iowa,

487 U.S. 1012

(1988),
——————————————————————
U.S. Supreme Court
No. 86-6757
APPEAL FROM THE SUPREME COURT OF IOWA
——————————————————————
https://supreme.justia.com/cases/federal/us/487/1012/case.html
————
APPEAL FROM THE SUPREME COURT OF IOWA No. 86-6757
Iowa District Court for Clinton
County
——————————————————————
http://laws.findlaw.com/us/487/1012.html
——————————————————————
http://www.oyez.org/cases/1980-1989/1987/1987_86_6757
_________________________________________________
where the

Supreme Court

held it

unconstitutional

to place a screen shielding the accusers from the defendant,

the defendants here said:

“Agent Durrette would be the screen between the defendants and their alleged victims”
………………………………………………..
A hearing was held the following week before the judge who had presided at the first trial in order to schedule the time allowed for trial
………………………………………………..
The court expressed dissatisfaction with the amount of time

“wasted”

by both sides in the first trial
………………………………………………..
The court stated that the jury had heard the details of the untaxing scheme

“ad nauseam.”
………………………………………………..
The government argued that the first jury had been

“affected by the government’s inability to present the case in a way that educated them as to what our theory of the case was, what our evidence meant, during the presentation of the evidence.”
………………………………………………..
The court asked,

“What stopped you?”
………………………………………………..
The government replied that the court had stopped it from having a witness read from the material seized in the searches
………………………………………………..
The government went on to say that it had to prove the defendants’ state of mind as to both the mail fraud counts and the tax evasion counts
………………………………………………..
The court:

“It seems to me that is proved by the quality of the evidence as opposed to the quantity of the evidence.”
………………………………………………..
The court went on to say:

“I thought the victims were a disaster for the government . . . .

[T]he victims were particularly unsympathetic

They were people who were already in serious trouble with the Internal Revenue Service, were essentially tax cheats themselves; and were put on the witness stand with the representation that they were somehow victimized by the defendants . . . . And I’m convinced that your case ran aground with that first group of witnesses.”
………………………………………………..
The district court never formally ruled on the defendants’ in limine motion to exclude the complaint letters; the government concluded that it had a green light
………………………………………………..
On

November 9,

the government offered

Agent Durrette

to summarize material taken from the files of TPCS
………………………………………………..
The defendants stipulated that the material came from the files — the government would not have to prove where each piece of correspondence came from
………………………………………………..
The court described the stipulation
………………………………………………..
It was

“that these TPCS client file documents would simply be stipulated as to their admission into evidence without the necessity of putting a witness on the stand to lay any foundation as to these documents

And the stipulation would be that these documents were found in one or the other of the facilities associated with the Pilot Connection Society.”
………………………………………………..
The government answered, “Yes.”
………………………………………………..
Agreeing, the defendants again vigorously objected to the government’s presentation of the files through testimony about their contents by Durrette
………………………………………………..
The government replied that proof of the defendants’ state of mind was

“the heart and soul”

of its case
………………………………………………..
Durrette took the stand
………………………………………………..
The government had prepared an extensive file of material taken from TPCS with duplicates of a number of letters to be given as handouts to the jury
………………………………………………..
The material consisted substantially in statements of government officials as to what the income tax law was, statements of other persons including officers of the Church of Jesus Christ of Latter Day Saints on the obligation to pay income taxes, and letters from purchasers of the Untax Package complaining that the Package did not work or, worse, that they had been fraudulently induced to buy it
………………………………………………..
The defendants objected repeatedly to the procedure — to Durrette’s reading of views on the law as argument by the government, to Durrette’s reading of selected passages from the correspondence as not summarizing but highlighting, and to the reading of the complaints as violative of the Confrontation Clause
………………………………………………..
Every objection was overruled by the trial court
………………………………………………..
The second trial was two months shorter than the first
………………………………………………..
On

December 13, 1995

the jury found all six defendants guilty of violating

18 U.S.C. § 371
——————————————————————
http://www.law.cornell.edu/uscode/text/18/371
_________________________________________________
by conspiring to defraud the

United States

in the collection of income taxes
………………………………………………..
Phillip and Marlene Marsh and Jill Spencer were convicted of two counts of violation of

26 U.S.C. § 7212(a)
——————————————————————
http://www.law.cornell.edu/uscode/text/26/7212
_________________________________________________
by corruptly endeavoring to obstruct the administration of the income tax laws by filing the liens
………………………………………………..
Both the Marshes and both the Spencers were convicted of violating

26 U.S.C. § 7201
——————————————————————
http://www.law.cornell.edu/uscode/text/26/7201
_________________________________________________
by tax evasion and violating

26 U.S.C. § 7203
——————————————————————
http://www.law.cornell.edu/uscode/text/26/7203
_________________________________________________
by failing to file tax returns
………………………………………………..
Both Marshes were acquitted of ten counts of mail fraud and convicted of ten counts of mail fraud in violation of

18 U.S.C. § 1341
——————————————————————
http://www.law.cornell.edu/uscode/text/18/1341
………………………………………………..
Both Spencers were similarly acquitted, Darrell of five, Jill of nine counts, and similarly convicted of nine mail fraud counts; and Coltrane was convicted of six mail fraud counts
………………………………………………..
The court denied

Rule 29 motions,

including motions by the Marshes and Jill Spencer to dismiss the obstruction charges on the ground of lack of venue
………………………………………………..
On

June 26, 1996

the court pronounced sentence
………………………………………………..
Phillip Marsh was sentenced to 5 years imprisonment for conspiracy to defraud the United States; 5 years imprisonment for each of his ten mail fraud convictions; 5 years imprisonment on each of two convictions of tax evasion; 3 years imprisonment for each his two endeavors to impede the administration of the tax laws; and 1 year imprisonment for each conviction of willful failure to file tax returns
………………………………………………..
The sentences for conspiracy, tax evasion and 9 of the 10 mail fraud counts were to be served concurrently with each other
………………………………………………..
The 3 year sentences for the endeavor to impede were to be were to be served consecutively to the other counts and to each other
………………………………………………..
The 1 year sentences for the two failures to file counts served consecutively to each other and the other counts
………………………………………………..
The sentence on the two tax evasion counts and two failure to file counts totals 7 years
………………………………………………..
The 5 year sentence for the tenth mail fraud charge was to be served consecutively to the extent necessary to produce a total sentence of 17 1/2 years
………………………………………………..
Marlene Marsh was sentenced to 5 years imprisonment for conspiracy to defraud the United States; 5 years each for the 10 mail fraud counts, 5 years each for the two tax evasion counts, 3 years on each of the 2 counts of endeavor to impede, 1 year on each of the 2 convictions of willful failure to file
………………………………………………..
The 3 year sentences for endeavor to impede were to be served concurrently with each other and consecutively to the other sentences, the 1 year sentences for failure to file were to be served consecutively to each other and to the other sentences, and the 5 years for the two tax evasion counts and 10 mail counts were to be served concurrently to each other and consecutively to the other sentences to the extent necessary to produce a total sentence of 14 years
………………………………………………..
The sentence on the two tax evasion counts and two failure to file counts totals 7 years
………………………………………………..
Darrell Spencer was sentenced to 5 years imprisonment for conspiracy to defraud the United States, 5 years on each of 9 mail fraud convictions, 5 years on each of 2 tax evasion convictions, and 1 year on each of 2 failure to file convictions
………………………………………………..
The sentence for conspiracy, the 2 tax evasion sentences, and 8 of the 9 mail fraud sentences were to be served concurrently, as were the sentences for failure to file
………………………………………………..
The sentence on the two tax evasion counts and two failure to file counts totals 5 years
………………………………………………..
The ninth mail fraud sentence was to be served consecutively to the other sentences to the extent necessary to produce a total of 7 1/4 years
………………………………………………..
Jill Spencer was sentenced to 5 years of imprisonment for conspiracy to defraud the United States, 5 years on each of 9 mail fraud convictions, 5 years on each of 2 tax evasion convictions, 1 year on each of 2 failure to file convictions, and 3 years on each of 2 convictions to impede
………………………………………………..
The sentences for conspiracy, tax evasion and the 9 mail fraud counts were to be served concurrently, as were the sentences for failure to file
………………………………………………..
The sentence on the two tax evasion counts and the two failure to file counts totals 5 years
………………………………………………..
The two 3 year sentences for corrupt endeavor to impede were to be served concurrently to each other but consecutively to the other sentences to the extent necessary to produce a total sentence of 7 1/4 years
………………………………………………..
Coltrane was sentenced to 5 years for a conspiracy to defraud the United States and 1/4 year imprisonment on one count of mail fraud, the sentences on the other counts of mail fraud to be served concurrently
………………………………………………..
Carpa was sentenced to 4 3/4 years on conviction of conspiracy to defraud the United States
………………………………………………..
The defendants appeal
………………………………………………..
ANALYSIS
………………………………………………..
All defendants contend that they were denied the right to confront the witnesses against them when Agent Durrette read to the jury excerpts from material found in the defendants’ files
………………………………………………..
The following are from the excerpts read aloud to the jury by Agent Durrette:

(The excerpts are exact, but not given in full; the authorships and dates are as read)
………………………………………………..
1. “Some

so-called tax protesters

are

making speeches

and

offering seminars

around the country

at which

serious misrepresentations

about the

tax laws

are

being presented

to the

public

as

fact”

Fact Sheet
………………………………………………..
2. “Indeed, it is strange how the mind justifies things

For example, the way you

justify `untaxing’ people

by

blatantly misrepresenting the truth

about

your so-called `untaxing’ program

for the

sole purpose

of

lining your pockets

with

unsuspecting victim’s hard earned money

while

you sit idly by and watch

the

Franchise Tax Board

and

Internal Revenue Service

come in and

steal everything they have — knowing full well

that

this will be the outcome”

Letter from

Shawn O’Connor,

7/6/92
………………………………………………..
3. “Why would I sent you a

check

for

$8,745

when

you have not

got the lien off my home?”

Letter from

Curtis Howard

5/29/91
………………………………………………..
4. “To date, the

Pilot Connection System

has not given any relief

and

has only compounded my tax problems

On the basis of fraud,

I herewith

demand the return

of my

$2,000 plus $499.”

Letter,

6/3/91
………………………………………………..
5. “[The

failure to succeed

in

not paying taxes]

makes our statement,

`stop paying taxes permanently and legally’

far from being the truth”

Letter from

Hugh Bodey

7/6/91
………………………………………………..
6. “You

did not `untax me legally and permanently’

as promised — and,

I am confident,

that and

if and when I have to go to court,

you would drop me

as you have others

that I am hearing about”

Letter from

Hugh Bodey,

8/10/91
………………………………………………..
7. “The

program

was

sold to me

under,

what I now consider

false pretenses

In fact,

I would go so far as to say

it was out and outright

fraud”

Letter from

Roger Hawks,

8/12/91
………………………………………………..
8. “Due to the

facts

provided to us by you,

some of which we now know

to be

out and out lies,

we signed on with your

organization”

Letter from

Arthur and Donna Fuller,

8/15/91
………………………………………………..
9. “Bob Kane [a lawyer]

told

our company attorney

(see memo)

that I had a

zero percent chance

of

ever eventually winning

against the

IRS”

Letter

8/16/91
………………………………………………..
10. “Despite all the

Pilot Connection’s

and

Greg Galaski’s

efforts,

I was

given two options

by a

federal judge:

I could

comply with the court’s order in person

or

at the IRS office,

or

I could comply

from the

adult detention center

in

downtown Los Angeles”

“I am asking nothing of the

Pilot Connection

now,

Darrell,

because

I don’t believe in it anymore

The only thing I have asked

is that

Don Held

make good on his promise

to

give me back

the

money I paid him

if the

untax program didn’t work”

Letter from

Dan Barwick,

8/3/91
………………………………………………..
11. “When I joined the

Connection

I thought they had found that

simple key

to

avoid taxes

and a

`voluntary’

part of the

IRS system,

if people qualified

As it appears now

it doesn’t work

so

I have decided

to look for work elsewhere”

Letter from

Ogden Kraut,

8/15/91
………………………………………………..
12. “When I joined the

Pilot Connection,

I believed what I was

told

and

being naive

about

patriot issues

didn’t have

the

knowledge

to

spot defects and lies

in your program”

Letter,

10/14/91
………………………………………………..
13. “I am in a situation now

that

I have no income

and

I had to borrow

the

$4,000

that

I paid

to the

Pilot Connection

and

I’ve received nothing

but broken promises and lies”

Letter,

11/1/91
………………………………………………..
14. “When I first became involved

with your group

I believed what you were saying

was true and factual

But the longer I used the

Pilot Connection’s system

the more it becomes evident

the

system does not work”

“You have been dishonest

in your allegations

and

letter process

and

I feel

that

I cannot do business with

anyone

or

any company

or

group

that is deceitful”

“You have

fraudulently taken money from me

and at this time

I wish to have all monies

returned to me”

Letter,

11/29/91,
………………………………………………..
15. “I cannot sell a bill of goods

to someone

that

I can’t even deliver

for

myself and my wife

We did not have a problem

when we started this program,

but

we seem to be developing one

and

my wife is really scared,

because

she is afraid of going to jail

and

losing her job

where she has 26 years service

and has

only 4 years to go

before retirement”

Letter from

Darrell Hoover,

12/18/91
………………………………………………..
16. “We have found,

in doing further research,

at the law library,

that

your organization

is

teaching incorrect principles

dealing with

some very serious legal matters”

Letter from

Robert and Leah Aycock,

12/18/91
………………………………………………..
17. “I don’t think

you realize

the

sad situations

a lot of us are in

You talk a good line over the phone,

but

where’s the beef?”

Letter to

Pilot Connection/Phil Marsh
………………………………………………..
18. “We have done everything

in the pamphlet

plus every step

Jim Caler said

and still problems

Federal and state

has

attached both of our wages again,

but

this time

the

interest and penalties

are even higher . . .

Take us off

the

Pilot Connection”

Letter,

1/22/92
………………………………………………..
19. “This is

our letter of resignation

due

to the

fact

that I believe

your material and system

of

removing people

from

state and federal taxes

is fraudulent”

Letter,

3/2/92
………………………………………………..
20. “I paid you

$15,000

to take care of

my liens and levies

and

I expect to see this accomplished

I have become very insecure

with the

lack of performance”

Letter,

2/5/92
………………………………………………..
21. “Now I don’t know what I have to do

I still have

a lien against me

They still

did not remove the lien”

Letter,

2/25/92
………………………………………………..
22. “Everything we have been told

has been wrong

and

we no longer

have any confidence

with you

and

your organization”

Letter

5/16/92
………………………………………………..
23. “I learned

that

the rest of your stupid arguments

are

`frivolous’ arguments

I call them

`stupid’

because

the courts

are

getting pissed off

They told us [patriots]

over and over

that these are

frivolous arguments

that

they don’t want to hear any more

They take the attitude,

and rightly so,

that

we are wasting their time,

and

the taxpayers’ money,

with arguments

that

have repeatedly lost

They have no patience

with people

using

these stupid arguments”

Letter from

Roy Buchanan
………………………………………………..
24. “I am writing

to

express my disappointment

in

your `untaxing’ program . . . .

I also followed

your lien and levy procedures,

but

to no avail

I still have

a

tax lien on file

and

levy notices

still follow me”

Letter from

Les Johnson

8/11/92
………………………………………………..
25. “[My attorney said]

that

the package

was

not legally sound

for me”

Letter from

Michael Hutton

9/9/92
………………………………………………..
26. “According to this

final notice,

I do not believe

that I have

been untaxed

by the

Pilot Connection”

Letter

dated 9/28/92
………………………………………………..
27. Your untax program

costs me

$1,100

and

was absolutely worthless . . . .

Thanks a lot

for

wasting my hard-earned

retirement savings”

Letter from

David Mayo
………………………………………………..
28. “Upon further

investigation and study

I have found

your information

to be

incomplete and misleading

The damage done

as a result

of

placing my hope and trust in you

has

created a complexity

of

criminal violations

that

could cost me my

family,

home,

business

and, most importantly,

my personal freedom”

Letter from

Ina Gregory

10/1/92
………………………………………………..
29. “He inferred that the

IRS

does not pay attention to the

notice of revocation

and

other strategies used

by the

Pilot Connection

That I might end up paying

the

IRS

and the

P.C.,

that the

Pilot Connection

was a scam

and

Phil

is mainly out to get

people’s money”

Letter

10/28/92
………………………………………………..
30. “What kind of people are you anyway?

You take my money

and

your organization

does not perform

what you promise

and

then become abusive

and

threatening to me? . . .

I also want my

$3,500

back A.S.A.P.”

Letter

dated November 1992
………………………………………………..
31. “I have talked at length

with people in my town

about all that I read

in your book

And most of the response

I have gotten is — `sure,

I know someone honest tried this

and

they are serving time in Leavenworth'”

Letter

11/1/92
………………………………………………..
32. “Pilot Connection Society

has

made false claims

to its

untaxed members,

which

has misled them

and

also places them

and

their families

in

jeopardy

of

being convicted

of

tax evasion”

Letter

dated 11/18/92
………………………………………………..
33. “They levied my wages anyway

What kind of bull is this?

I would like my

$1,500 refunded

How can you folks

in

good conscience

keep on with this crap?

Like I said,

I do

want a refund

Because

you did nothing at all to earn

the

$1,500

It

seems to be a big joke”

Letter from

Chris Yost
………………………………………………..
34. “This letter will serve

as

my formal resignation

from the

Pilot Connection Society;

effective upon receipt

My decision

to

enter into an agreement

with

your organization

was based on

misrepresentations

made by

you

and

your employees

The

assistance

and

services

I was led to believe

I would receive

was never provided

I have witnesses

and

proof of this fraud”

Letter from

Ed Maxim
………………………………………………..
35. “In today’s trial,

the

judge

looked at the

P.C. material I had included

in my brief. . . .

The judge ridiculed it;

said that

all of those types of approaches

had long since

been tried

and

rejected”

Letter from

Albert Baxter

12/8/92
………………………………………………..
36. “You

have claimed

to

have `untaxed’

in excess

of

17,000

people

of which surely

1 percent

would have received

the

letters

from the

IRS . . . .

I am not asking for even

1 percent

of

documented proof

of

these letters

but

only of 1/2 percent

of

documented proof

which would be

85 letters

(I don’t even believe

that

you can provide

10 percent

of that)”

Letter

1/13/93
………………………………………………..
37. “We trusted

Liberty Foundation (Pilot Connection)

only

to realize

that our

3 and a half year battle

with the

IRS

was

all for nothing

It disrupted our lives

During wage garnishments

we

had no money

Try explaining

to the

children

why there won’t be

any Christmas

Sob stories to you,

real life to us

We lost a lot

of

money

by trusting

in the

Liberty Foundation

Worse than that,

we lost our liberty,

the very thing your company offers”

Letter

11/3/93
………………………………………………..
The government

argues vigorously

that

this mass of accusations

was admissible

because

the jury was instructed

that

the accusations were admitted

not for the truth of the statements

but to show

the

state of mind of the defendants

That was certainly

the

government’s rationale

The difficulty

with

the government’s position

is that

the jury was not instructed

to

limit its consideration

to the

defendants’ state of mind

In its brief on appeal

the

government points

to

a statement of the court

made on

November 20

in reference to

a document then read to the jury

This instruction

has

no apparent relevance

to

the documents read to the jury

on

November 9

An examination

of

the record

on

November 9

shows that,

after being reminded

of

the defendants’ in limine motion,

the trial court

told the government

to proceed

At this time,

at the start

of

Durrette’s reading,

the jury

was

given no instruction whatsoever

as

to its purpose or limits
………………………………………………..
Both the

prosecution

and

defense

counsel

stated that they had

“cautionary instructions”

to offer

The government

said its

was

the instruction

that

the court

had given during

the

initial jury instructions

The court,

in fact,

gave no instruction,

so we

are

uncertain what was offered

on

November 9

However,

we have reviewed

the

preliminary jury instructions

to see

if they did contain relevant cautionary words

The

most relevant

of

these instructions

are

as follows:
………………………………………………..
Evidence

may

be introduced

for

the limited purpose

of

establishing

that

the defendants were aware

of

materials that expressed opinions

in conflict

with

those expressed

by the

Pilot Connection Society

regarding

the success

of

a tax-related program

marketed by the tax — by the

Pilot Connection Society

Before you may consider

any such evidence

against a particular defendant,

you must find

that

the defendant knew

of

the existence

of

these materials

or

their contents

(Tr. 11/2/95, vol. 2, at 143)
………………………………………………..
An intent to defraud

may

be demonstrated

by

the scheme itself

Similarly,

the defendant’s knowledge

of

a false statement

or

his

or

her

reckless indifference

to

the truth

or

falsity

of

that statement

can demonstrate

an

intent to defraud

(Id. at 149)
………………………………………………..
In determining

whether or not

the

government proves

that

a defendant acted

with

an intent to defraud

and

to obtain

money

or

property

by

means

of

false promises

or

statements

or

whether defendant acted in good faith,

you must consider all

of

the evidence

in

the case bearing on defendant’s statement

(Id. at 150)
………………………………………………..
None

of

these instructions limit

the

jury’s consideration

of

material

from

the files

for

the truth

of

what is contained in them
………………………………………………..
The

first time

that

the court

told

the jury

why

the documents

were

being read — sometime into the reading — the court said,

“And it’s clear

from

the court’s instructions

to

the jury — and,

ladies and gentlemen,

if any of you

have

any questions,

please let me know

But

it’s clear

that

the documents themselves

are

the evidence

And they

are

being introduced

to

show what documents

were

at the various locations

at

the various times

that

the witness testified about”

A little later in response

to

another objection

from

the defendants,

the court said:

“This is a document

in

the files

of the

Pilot Connection Society

found

on the date indicated,

and

that’s what the document

is

being offered for

Again,

is there any question

that

any juror has

that

that is the evidence

which

is being offered?”

Neither of these instructions

tells the jury

not to consider

the

truth of the matters read
………………………………………………..
The

first time

an instruction

on

the defendants’ state of mind

was given

was in reference

not to accusations against TPCS

but

to an objection

to

Durrette reading

from

an IRS tax manual

found in the files:

“The court is permitting

the government to argue cases

that

have been overruled

as

a matter of law

and

citing legal principles

that

are no longer valid

as if that’s notice of anything,

and

to that I most strenuously object

and

move to strike”

The

court responded:

“Well,

the objection is overruled

This is clear

this

is an IRS tax manual

The

exact current status

of

the propositions

of

law referred to in the manual

are

not issues

for

the jury to decide

They

are not necessarily part

of

the instructions

What this is being offered for

is

a document

that

was in the files

at

the place

and

at the time indicated

by

Mr. Durrette

And

that bears on it being offered

with respect

to

the intent issues

in

this case vis-a-vis

the

present defendants

But

we are not here to argue the law”

(Tr. 11/9/95 at 78-79)

This instruction only indicates

the purpose

of

the reading of material

on

the tax laws
………………………………………………..
To the next objection by defendants

the court said:

“Counsel,

I have been very patient this morning

Perhaps

that’s

a change in my attitude,

but

I am beginning to lose patience

You

have made a number of objections

to

this evidence

I have ruled on these

It’s clear

what

the evidence is being offered for

The jury

has

been repeatedly instructed on this

The jury

has

been told

that

what they are receiving

are

excerpts of documents

that

are being admitted into evidence,

and

for illustrative purposes

Ms. Teters

and

the witness

are

going through

and

pointing out certain things

that

the government

contends are of significance

Now,

it’s quite clear

what

is going on,

and

it need not be a process

that

is periodically punctuated

by

speechifying by lawyers

Your objections are preserved,

and

so there isn’t any need

for

undue interruption

and

prolongation of this process”
………………………………………………..
The

first time

any instruction

regarding

complaint letters

or

similar materials

was given

was

much later

in

Durrette’s testimony

when

he read

from

a Clarion Ledger,

Jackson, Mississippi,

editorial

dated March 28, 1990,

which stated:

“Tax protesters

become

a part

of

the con job

that

is played

on

the American people”

Counsel

for

the defendants objected:

“I am at a loss

as

to exactly what these editorial comments

are

providing notice of

except

the opinion

of

someone who wrote an editorial”

The court responded:

“This is simply being offered

for

the state of mind

of

the defendants”

(Id. at 111-12)

Much later

in

Durette’s reading,

a

letter

of

Rudy and Gloria Medina

resigning from TPCS

was

read

followed

by

a complaint letter

dated September 3, 1991

The defense again objected

to

these letters as hearsay

The court stated again:

“Well,

as we

discussed in the past,

this

is being offered

for

the state of mind

of

the defendants”

(Id. at 185)
………………………………………………..
It is apparent

from

this review

that

on three occasions

the jury

was told

that

particular documents

being read

related

to the defendants’

“intent”

or the defendants’

“state of mind”

At no time

was

the jury instructed

that

they were not to consider

the accusations

as conveying truth

about the facts alleged in them

At no point

was

the jury told

that

these were limiting instructions

which

confined the way

they must look at the evidence
………………………………………………..
In the

first of the rulings

that

responded to defense objections,

twice repeated,

the court

told the jury merely

that

the documents being read

had

been found at TPCS headquarters

The court assumed

that

instructing the jury

that

what was being established

by

the reading

was

that the documents were found

at TPCS headquarters

operated as a restraint

on

the jury’s use of the documents

But

for all the jury was instructed,

it could do whatever it wanted

with

what was found at TPCS headquarters
………………………………………………..
If these accusations

were

to be admitted,

it

was incumbent

on

the court

to

give clear instruction

to

the jury

distinguishing

what they could treat

as

showing the knowledge of defendants

and

what they could not treat

as evidence of crime

Aside from

the three brief

and

particular references cited above,

no instructions at all

were

given on this vital point

The

three brief references

were

entirely insufficient

to clarify a concept

that

even for lawyers

is not an easy one — the difference between

taking a statement for its truth value

and

limiting it simply

to

the effect

of

the statement

on

the mind

of

the person exposed to it

Even to

a person trained in the law

it takes a mental effort

of

some magnitude

to

hear a letter strongly manifesting

the mind of the letter-writer

as

to the truth of events

the letter-writer says

have happened

and

to distinguish

between

the asserted truth

and

the effect of the communication

on

the mind of the recipient

of the letter

There are cases

in which such letters

have

been admitted to show

the knowledge of the recipient,

See e.g.

United States v. Lasky,

600 F.2d 765, 769

(9th Cir. 1979);
——————————————————————
http://openjurist.org/600/f2d/765/united-states-v-lasky
_________________________________________________
United States v. Farkas,

935 F.2d 962, 965

(8th Cir. 1991),
——————————————————————
http://openjurist.org/935/f2d/962/united-states-v-farkas
_________________________________________________
but always

with

a clear instruction

that

the letters should not be considered

for

the truth

of

the matters contained therein

Without such limitation

the accusations act

as testimony against the defendants
………………………………………………..
The instructions

ultimately given

the jury

as it retired

did not cure the omission

The jury

was told

that

only defendants who

knew

or

“should have known”

of

the documents

should be charged

with notice

of

their contents

This instruction

in no way limited

the jury

in

considering the truth

of

the contents

The jury

was also told

that

it should observe

any limiting instructions

that

had been given

in

the course of the trial

No instructions

had been given

telling the jury

that

it could not take the truth

of

the 37 accusations enumerated above

into account
………………………………………………..
The government

does not argue

that

the defendants

waived their Confrontation Clause objection

by

not raising it again

when

the final instructions were prepared

The defendants

were

not obliged to object again

when they had made

their in limine motion

and

formally presented

it

to the court

which disregarded it

and

which rebuked the defendants

with some asperity

when

they raised the objection again

during Durrette’s testimony

The defendants

did not have

to

perform a vain act
………………………………………………..
As Durrette

read material into the record

unlimited in its bearing,

abundant hearsay

was presented

to

the jury

The right secured

to

the defendants

by

the Sixth Amendment

was violated

The right

to

cross-examine one’s accusers

is fundamental

in our system of justice

Olden v. Kentucky,

488 U.S. 227, 231

(1988)
——————————————————————
https://supreme.justia.com/cases/federal/us/488/227/
——————————————————————
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=488&invol=227
——————————————————————
http://www.invispress.com/law/evidence/olden.html
_________________________________________________
Cross-examination

is

“the principal means

by

which the believability

of

a witness

and

the truth

of

his testimony

are tested”

Davis v. Alaska,

415 U.S. 308, 316

(1974)
——————————————————————
https://supreme.justia.com/cases/federal/us/415/308/
——————————————————————
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=415&invol=308
——————————————————————
http://uscivilliberties.org/cases/3673-davis-v-alaska-415-us-308-1974.html
——————————————————————
http://www.casebriefs.com/blog/law/criminal-procedure/criminal-procedure-keyed-to-israel/the-trial/davis-v-alaska/
………………………………………………..
When a

constitutional right

is violated

by

trial rulings,

we are bound

to

determine whether the error

was harmless

beyond a reasonable doubt

Chapman v. California,

386 U.S. 18, 24

(1967)
——————————————————————
https://supreme.justia.com/cases/federal/us/386/18/case.html
——————————————————————
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=386&invol=18
——————————————————————
http://www.casebriefs.com/blog/law/criminal-procedure/criminal-procedure-keyed-to-saltzburg/post-conviction-challenges/chapman-v-california-2/
——————————————————————
http://legal-dictionary.thefreedictionary.com/_/dict.aspx?rd=1&word=Harmless+error+rule
_________________________________________________
The government

here

had a strong case

based on the contents

of

the Untax Packages

that

the defendants put together

and

promoted

The defendants

had

a not very plausible defense

that TPCS

was

an educational enterprise

exercising its right

to

free speech

If that defense

was to have any chance

of

creating a reasonable doubt

in

the jurors’ minds,

the jurors had to credit

the defendants with honesty

The

hearsay accusations

destroyed that chance

Taken as true,

as the jury was allowed to take them,

the accusations

established

that

the defendants were

hypocrites,

liars,

callous exploiters of their victims,

operators of a major scam
………………………………………………..
The

37 accusations

were

overwhelming evidence

of

the scheme

of

mail fraud

charged

in

the indictment

and

exemplified

in

the particular mail fraud counts

The

three live witnesses

to

mail fraud

that

the government produced

were

David Anderson,

who

admitted to having embezzled taxes

he withheld from his employees

before he had any contact

with TPCS;

Debbie Long,

whose disillusionment

with TPCS

came

when the State of California

levied on her wages;

and

Clifford Koeper,

who

believed that Untax Package

did not work

but

became an Associate Member

of

TPCS

and sold

the Untax Package

to

two others

The burden

of

the government’s mail fraud case

was

carried largely

by

the accusations

read into the record

When

the government

on appeal

states there was

“ample evidence

the TPCS members

did not get

what they paid for,”

(Appellee Br. at 46)

(italics in original),

and that

“there is

no better proof

of

the fact

that

TPCS members

did not get what they paid for

than

the testimony

of

the victims,”

(Id. at 47),

the government

does not cite the testimony

of

Anderson,

Longer,

and

Koeper,

but

appears to invoke

all the accusations

that

become part

of

what the jury had before it
………………………………………………..
The evidence

proving the existence

of

a scheme

to

commit mail fraud

was

linked to the evidence

proving the conspiracy

to

defraud the United States

Count One

of

the indictment

listed

the fraudulent recruitment

of

taxpayers

by

TPCS

as

overt acts

carrying out the conspiracy

Addressing the jury

in closing arguments,

the government specifically urged

that

the defendants’ deceitful recruiting

of

TPCS members

was proof

of

the conspiracy

to

defraud the United States

(“they lie

as to

how many people

have been successfully untaxed,

they lie

as to

the numbers of people in the organization,

and

the effectiveness

of

their methods”)

The government

immediately added:

“The instructions

that

the judge

has

given you

are

that you need only find

that

one overt act,

as listed

in

the indictment,

was committed in furtherance

of

the conspiracy that’s alleged there”
………………………………………………..
The

accusations of fraud

on

the TPCS members

proved,

or

could have been taken by the jury as proving,

both

the mail fraud counts

and

the conspiracy count

It is difficult for us

to determine

beyond a reasonable doubt

that

they did not function in this way

When you hear

that

defendants have told

out-and-out lies,

run a scam,

and

used false pretenses,

and

you are not limited

how

you can use this evidence,

it would be entirely natural

to

credit the accusations so vigorously advanced

as true

In confirmation

of

this conclusion

is

the difference

in

the outcome

of

the two trials

When the

government

had to produce

a number of live witnesses

who were themselves tax cheats,

the jury hung

With these inconvenient witnesses eliminated,

the jury convicted

The palpable difference

in result

makes likely

that

the change of evidence

to

the presentation of hearsay

tipped the scales

We cannot say

beyond a reasonable doubt

that

the violations

of

the Confrontation Clause

did not produce result

The convictions

of

the Marshes,

the Spencers

and

Coltrane

of

mail fraud

and

of conspiracy to defraud the United States

must be set aside
………………………………………………..
Carpa presents a different case

The jury was explicitly instructed

not to consider against him

the letters

read from the files

The jury

is presumed

to have obeyed this instruction

However,

the letters

went very far

to show

that

TPCS

was

a criminal conspiracy,

and

the existence

of

this conspiracy

had to be proved

in order

to

make Carpa a conspirator

The reversal

of

the convictions

of the

Marshes,

Spencers,

and

Coltrane

for conspiracy

leaves Carpa

without other convicted conspirators

and

with proof of his part

in

a conspiracy dependent

on

the evidence showing

TPCS

to be a conspiracy

Under these circumstances,

Carpa’s conviction of conspiracy

must also be reversed
………………………………………………..
The Commercial Liens

The filing

of

baseless liens

to

harass government officials

has

become a standard tax protestor ploy

The liens

are easy to file

and

not easy to remove

No judge

or

other officer

of the

government

would like to have them filed

on

his

or

her

property

They bear the mark of malice,

as they do in the case

where they appear

as

a mean response

to

a lawfully authorized search

Nonetheless,

the crime

can be punished only

in accordance with law
………………………………………………..
The indictment

charged

that

the Marshes

“did corruptly endeavor

to

intimidate

and

impede”

certain officers of the United States

by

the filing

of

the liens

in

Nevada

and

Washington

The officers

were located

in the

Eastern

and

Northern

Districts of California

None were in

Nevada

or

Washington

The liens

were

mailed for filing

from

the Eastern District of California

The question

was put to the jury

whether

venue for the crime

could be found

in

the Northern District

The jury’s verdict

of guilty

so found

The affected defendants

challenge the finding
………………………………………………..
The government’s argument

is

that an effect of the filing

of

the liens

was an impact

on

the IRS officers

in

San Jose, California,

who

were conducting a criminal investigation

of

the defendants

The government invokes

United States v. Angotti,

105 F.3d 539

(9th Cir. 1997)
——————————————————————
http://law.justia.com/cases/federal/appellate-courts/F3/105/539/599178/
_________________________________________________
(venue

for

the prosecution

of

the crime

of

making a false statement

in violation

of

18 U.S.C. § 1014

lies

where

the crime is completed

by

the statement having effect)

The problem

with Angotti

as analogy

is

that the crime

of

endeavoring to impede the IRS

is complete

when the endeavor is made

The government

did not have to show

that

its agents

abandoned their investigation

or

even that the agents were anxious

about the effect

of

the liens

on their credit

No effect need be proved

The filing

of

the lien

is

the crime

The government

itself presented

this exact description

of

the crime

to

the jury

in

its closing argument:
………………………………………………..
“All you have to find

is

that there was an attempt

Because that’s

what a corrupt endeavor is”

(Tr. 12/8/95 at 11)

The jury

could not find

that

any step to complete the crime

was taken

in

the Northern District of California

when

the criminal deeds

had already been committed

Venue

as

required

by

the Sixth Amendment

was lacking

The convictions

on

these counts

must be set aside
………………………………………………..
Waivers

Two issues

now raised

by

the defendants

were waived at trial

On the face

of

the indictments

the venue

of

the tax counts

was wrong:

the

Marshes

and

Spencers

had

been residents

of

the Eastern District of California,

but

they were being tried

in

the Northern District

The defendants

said not a word

about the venue

until they were convicted

They now contend

that the

government

might have proved

some act

in

the Northern District

that

would have related

to

the tax courts

and

justified the venue;

they could not know

till

the trial was over

The defendants

waited too long

They cannot sandbag

the government

after the verdict

is in

United States v. Powell,

498 F.2d 890, 891-92

(9th Cir. 1974)
——————————————————————
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00231.htm
——————————————————————
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00666.htm
——————————————————————
http://www.irs.gov/pub/irs-utl/tax_crimes_handbook.pdf
………………………………………………..
Phillip Marsh

earnestly urges

that

the exclusion

of

the evidence

of

his psychological state

was error

in

the light of our en banc decision

in

United States v. Morales,

108 F.3d 1031

(9th Cir. 1997),

——————————————————————
http://swansonmcnamara.com/wp-content/uploads/2012/04/Experts-I-Morales-article.pdf
——————————————————————
http://swansonmcnamara.com/wp-content/uploads/2012/04/Experts-II-article.pdf
_________________________________________________

which he characterizes as establishing a new constitutional rule that should be applied retroactively

Griffith v. Kentucky,

479 U.S. 314

(1987)

——————————————————————
https://supreme.justia.com/cases/federal/us/479/314/case.html
——————————————————————
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=479&invol=314
——————————————————————
http://www.oyez.org/cases/1980-1989/1986/1986_85_5221
——————————————————————
http://en.m.wikipedia.org/wiki/Griffith_v._Kentucky
_________________________________________________

Morales

did not announce

new constitutional doctrine

but

applied the Federal Rules of Evidence

Marsh cannot benefit

from the case retroactively

He waived his right

to

introduce the psychiatrist’s testimony

by

not seeking to introduce it

in

the second trial

We find no plain error

………………………………………………..

Other issues raised by the defendants

need not be considered

in view of our ruling

on

the principal counts

………………………………………………..

SUMMARY

………………………………………………..

The convictions

of

all six defendants

of

violation

of

18 U.S.C. § 371

——————————————————————
http://www.law.cornell.edu/uscode/text/18/371
_________________________________________________

are REVERSED

The convictions

of

the Marshes

and

Jill Spencer

of

endeavoring

to

obstruct the administration of the tax laws

are REVERSED

The convictions

of

the Marshes

and

the Spencers

and

Coltrane

of

mail fraud

are REVERSED

The convictions

of

the Marshes

and

the Spencers

of

failure to file

and to

tax evasion

and

the sentences

for

these offenses

are AFFIRMED

_____________________________________________

Lowell (Larry) H. Becraft, Jr.

—————————————————————–

http://fly.hiwaay.net/~becraft/deadissues.htm

_____________________________________________

Articles

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Government by Permanent Emergency: The Forgotten History of the New Deal Constitution (Suffolk University Law Review 33 Suffolk U. L. Rev. 259) Roger I. Roots (2000)

Tags

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Government by Permanent Emergency: The Forgotten History of the New Deal Constitution (Suffolk University Law Review 33 Suffolk U. L. Rev. 259) Roger I. Roots (2000)imagehttp://www.constitution.org/lrev/roots/gov_perm_emer.doc
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Executive Orders and National Emergencies: How Presidents Have Come toRun the Countryby Usurping Legislative Power (by William J. Olson and Alan Woll) No. 358 October 28, 1999
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Executive Orders and National Emergencies: How Presidents Have Come to “Run the Country” by Usurping Legislative Power (by William J. Olson and Alan Woll) No. 358 October 28, 1999

Tags

, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

_____________________________________________
Executive Orders and National Emergencies: How Presidents Have Come toRun the Countryby Usurping Legislative Power (by William J. Olson and Alan Woll) No. 358 October 28, 1999imagehttp://www.cato.org/sites/cato.org/files/pubs/pdf/pa358.pdf
_____________________________________________
Government by Permanent Emergency: The Forgotten History of the New Deal Constitution (Suffolk University Law Review 33 Suffolk U. L. Rev. 259) Roger I. Roots (2000)
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_____________________________________________
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1099-OID

Tags

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_____________________________________________
http://home.hiwaay.net/%7Ebecraft/1099OID.html
_____________________________________________
The Kennedy 1099-OID Program

(Updated 7-27-2010)
………………………………………………..
SEE
_________________________________________________
What is this 1099-OID? (Original Issue Discount)
——————————————————————
http://stopthepirates.blogspot.com/2012/06/what-is-this-1099-oid.html?m=1
_________________________________________________
1099 OID (Original Issue Discount)
——————————————————————
http://stopthepirates.blogspot.com/2014/03/1099-oid.html?m=1
_________________________________________________
Back in

January, 2008,

both

Tom Cryer

and

I

heard about the

promotion

of the

1099-OID

argument

by

Dr. Sam Kennedy
………………………………………………..
We immediately wondered

“who is ‘Dr. Sam Kennedy’”?
………………………………………………..
Both of us still would like to know who he is:
_____________________________________________
Is Dr Sam Kennedy A White Ant?
—————————————————————–
http://loveforlife.com.au/content/08/08/13/dr-sam-kennedy-white-ant-fraud-scamster
_____________________________________________
Nu Moorish Science Temple
—————————————————————–
http://mstofaecofkmirno9.blogspot.com/2009/10/response-on-nana-aka-lisas.html?m=1
………………………………………………..
Blog not found

Sorry, the blog you were looking for does not exist

However, the name mstofaecofkmirno9 is available to register!
_____________________________________________
What shocked both

Tom

and

me

was the

promotion

of the

1099-OID

argument
………………………………………………..
This

argument

is nothing but another

extension

of the

flaky ideas

of that

car-thief,

Roger Elvick
………………………………………………..
Here is

Tom’s explanation

of this

1099-OID

process

that was contained in one of his e-mails:
………………………………………………..
What about the

1099 OID,

then?
………………………………………………..
Is there any

basis in law

for the

claim

that a

1099 OID form

can be

used

as a

form of payment

or

offset for a debt?
………………………………………………..
Let me take you on a

lawyer’s investigation,

the way we

research

any

question

to

determine

whether there is any

basis

for a

proposition
………………………………………………..
Let’s start out by remembering that the

federal system

is a

civil law system
………………………………………………..
If

Congress

didn’t

enact it

then it isn’t

law
………………………………………………..
So, let’s search the

U.S.C.

and the

Statutes at Large

for

1099 OID
………………………………………………..
Our result?
………………………………………………..
Zip

Nada

Nichts
………………………………………………..
Not one single reference to

1099 OID,

much less

legal authorization

to use it to

offset

or

pay a debt with
………………………………………………..
What, then, about

regulations?
………………………………………………..
The

Treasurer

has the

authority

to

promulgate regulations

and

designate forms

and maybe some other

cabinet department

can dovetail off the

Treasury regs,

so let’s

search

the

CFR,

all of it, for

1099 OID
………………………………………………..
We get

two hits

and

two hits only:
………………………………………………..
26 CFR 1.6049-1
_____________________________________________
› Title 26 › Chapter I › Subchapter A › Part 1 › Section 1.6049-1

26 CFR 1.6049-1 – Returns of information as to interest paid in calendar years before 1983 and original issue discount includible in gross income for calendar years before 1983
—————————————————————–
http://www.law.cornell.edu/cfr/text/26/1.6049-1
—————————————————————–
http://www.gpo.gov/fdsys/pkg/CFR-2012-title26-vol13/pdf/CFR-2012-title26-vol13-chapI.pdf
_____________________________________________
and
………………………………………………..
26 CFR 1.6049-3
_____________________________________________
CFR › Title 26 › Chapter I › Subchapter A › Part 1 › Section 1.6049-3

26 CFR 1.6049-3 – Statements to recipients of interest payments and holders of obligations to which there is attributed original issue discount in calendar years before 1983
—————————————————————–
http://www.law.cornell.edu/cfr/text/26/1.6049-3
—————————————————————–
http://www.gpo.gov/fdsys/pkg/CFR-2012-title26-vol13/pdf/CFR-2012-title26-vol13-chapI.pdf
_____________________________________________
(see attached)
………………………………………………..
These

regulations

designate

the

1099 OID form

as the

proper form

for a

corporation

to use in

reporting discounted interest

on an

original issue discount

debenture,

bond,

etc.
………………………………………………..
Its use is

limited

to

corporations

and

corporations only
………………………………………………..
I’m not a

corporation,

I’m a

corpus,

a

living,

breathing

and

real human being,

a

body,

not an

embodiment

by

charter of the state
………………………………………………..
So

1099 OIDs

have nothing to do with

me

unless a

corporation

issues one to

me

because I am the

holder

of an

original issue discount

bond

as specified in the

two regulations
………………………………………………..
Once you read the

two regulations

you can see exactly what a

1099 OID

really is
………………………………………………..
It is a way for

corporations

to tattle on

bond holders

for

interest

they

never received

as they don’t receive it
………………………………………………..
Confusing?
………………………………………………..
The

1099 OID

applies to

corporate issues

of

bonds,

debentures,

notes

or

other evidences of indebtedness

that are

issued

at a

discount

instead of issued for

face value
………………………………………………..
When a

company

borrows money

by

issuing bonds

it can do it a number of different ways
………………………………………………..
One, it can

sell

a

bond

at

face value

and

pay interest

on a

monthly,

quarterly

or

annual

basis

until the

bond

is

redeemed

for

face value

plus any

additional interest

accrued

since the

last payment
………………………………………………..
Another way, though, is to

issue the bond

for less than its

face value,

discounting

the

interest

from the

sale price

instead of

paying

it out during the

life

of the

bond
………………………………………………..
The

bond

starts out at the

sale price

and

grows up

to its

face value

during its

term
………………………………………………..
A

good example

that most of us are

familiar with

is a

U.S. Savings Bond
………………………………………………..
When you

purchase

a

$100 savings bond

you don’t

pay

$100

for it

You pay a good bit less
………………………………………………..
Those

bonds

are

sold

for an

amount

which, when

interest

is

added

over the

ten year period,

would have a

future value

of

$100

at

ten years

(or whatever the life of the bond is)
………………………………………………..
Although

interest

on

U.S. Savings Bonds

is

exempt,

interest

from

corporate bonds

is

not exempt
………………………………………………..
So, when that

unpaid interest,

which was, instead,

discounted

from the

face value

at

time of issue,

accrues,

increasing

the

redemption value

of the

bond

by some

increment

each

year,

the

government

wants it’s

cut now,

not at maturity
………………………………………………..
So it requires

corporations

who have any

original issue discount

method of interest

payment

to report that

accrued value

or

interest

as

earnings

even though it was

never actually paid

or

received
………………………………………………..
The

form

to

use

for that is a

1099 OID

(original issue discount)
………………………………………………..
If the

bond

were

sold

at

face value

and

interest

actually

paid out

each

year,

then they would have to

report that,

too,

but on a

different version of 1099
………………………………………………..
But what isn’t in those

two sections

is any way anyone other than a

corporation

can issue a

1099 OID

and what else isn’t in there is any way to use a

1099 OID

as a

form of payment

or

offset of a debt
………………………………………………..
It’s tedious reading and you’ll probably drop off to sleep a few times before you get to the end, but it isn’t there
………………………………………………..
So now we know there is no basis for using a

1099 OID

for

payment

or

offset

in the

statutory law

and we know there is

no basis

in

federal regulations,

either
………………………………………………..
So far there is

no basis found,

making the notion . . . well . . . baseless
………………………………………………..
What, then, about

case law?
………………………………………………..
Where the

law is silent,

where there is a

hiatus in the law,

the

courts

can resort to

equity
………………………………………………..
So at least theoretically the

courts

could recognize a

1099 OID

as a

form of payment
………………………………………………..
What do the

courts

have to say?
………………………………………………..
Well, let’s do a

search

of

all federal courts

for

1099 OID

and see what we get, and lo and behold and harken all ye within hail!!!
………………………………………………..
We get

four whole hits
………………………………………………..
Four cases

dealing

with the

1099 OID

(see attached)
………………………………………………..
Let’s roll our sleeves up and dig in
………………………………………………..
The first one is a

bankruptcy court ruling,

Harrison
………………………………………………..
I don’t subscribe to

bankruptcy cases

because I don’t do those, so we don’t have the full text of the

case
………………………………………………..
But the

summary

let’s us know that the

1099 OID,

along with the

$3 million

Registered-Discharging and Indemnity Bond

drawn on Harrison’s

account

with the

Department of Treasury

was not

accepted for value

and that

Mr. Harrison

has been moved from the

waiting for a discharge in bankruptcy line

to the

waiting for his cell assignment line
………………………………………………..
Nope, no help there
………………………………………………..
The

second case,

Neal,

is really entertaining
………………………………………………..
Mr. and Mrs. Neal

and their

conglomeration

of

trusts

and

foundations

were

defendants

in a

federal foreclosure action
………………………………………………..
The

Neals

sent

notice

of a

” bonded promissory note ”

purporting to

evidence

a

loan

to the

court,

the

attorney for the government

and the

clerk of court

in the

amount

of

$50,000,000

(I thought it was $25,000,000–wait, Mr. AND Mrs., so it’s $25,000,000 each!)

accompanied by a

2008 1099 OID

showing

$50,000,000

withheld

from the

loan proceeds

for

taxes
………………………………………………..
We

loaned

you

$50,000,000

but we’ve

withheld

100%

of the

proceeds

of the

loan,

which

isn’t taxable,

for

taxes
………………………………………………..
(I wonder if they paid in the withheld funds, and if they didn’t . . . whooee!

They’re in some Dutch, now!)
………………………………………………..
But wait, it gets better
………………………………………………..
The

court

also received by mail a

notice

from a

notary

(who was stupid enough to put her name on the document)

notifying the

court

of its

non-performance

on the

bonded promissory note
………………………………………………..
This is definitely some

alternative law

if I’ve ever seen it
………………………………………………..
Remember, a

1099 OID

is

issued

by the

BORROWER,

the

corporation

issuing

the

bond,

etc.,

to the

LENDER,

but in this

case

two people,

not

corporations,

are

claiming

to be the

LENDER

and

issuing

the

1099 OID

to the

purported BORROWER
………………………………………………..
Alternative, indeed
………………………………………………..
But the

court

didn’t order

payment

of the

note
………………………………………………..
Instead it

referred

the

matter

to the

DOJ

for

prosecution

for

mail fraud,

tax fraud

and

obstruction
………………………………………………..
The

Neals

(and their notary)

don’t need to worry about the

foreclosure

because they probably won’t need that

house

for some time, anyway
………………………………………………..
I think we can count this

case

as not providing any

legal basis

for similar use of the

1099 OID
………………………………………………..
Now, the

third,

Mr. Martineau,

was already in

jail,

so at least he didn’t have to pack
………………………………………………..
He

filed

a

civil rights action,

pro se,

and

attempted

to

pay

the

filing fee

with a

1099 OID
………………………………………………..
Didn’t work there, either
………………………………………………..
Still no basis
………………………………………………..
How about the

fourth case,

Microdot?
………………………………………………..
Well, that one deals with a

corporation

that

issued debentures

in

exchange for stock

but at an

original issue discount
………………………………………………..
This

case

doesn’t deal with the

“alternative”

application

of the

form,

so

no basis here,

either
………………………………………………..
Now, we’ve exhausted all

law
………………………………………………..
The

Code,

the

Statutes at Large,

all

regulations

and

case law
………………………………………………..
There is

no basis

for the use of a

form 1099 OID

by anyone other than a

corporation

issuing bonds

and such at

original issue discount
………………………………………………..
And there is

no legal basis

for anyone,

not even a

corporation,

using a

1099 OID

as a

form of payment
………………………………………………..
If there were any

legal basis

we would have found it
………………………………………………..
These folks have the inane idea that they can

invent law

(which is convenient, since they want to claim some proprietary interest in their ” discovery “)
………………………………………………..
Law

isn’t invented,

it’s enacted,

and none of us can merely

issue proclamations,

making

new law,

although if that were true it would allow for some pretty interesting arguments
………………………………………………..
This reminds me of the series M.A.S.H. where Hawkeye and his buddy played a game called

” Triple Cranko ”
………………………………………………..
It was played with a

chess board,

chess pieces,

checkers

and a

deck of cards

and there were

no rules
………………………………………………..
Someone with some

comic talent

could probably build a

pretty funny skit

involving a couple of

lawyers

arguing before a

judge,

all three just making up

laws

as they go
………………………………………………..
As for the other component, the

” $25,000,000 bonded promissory note “,

stop and think about that for a minute
………………………………………………..
In the

current myth

the

note

is

issued

by the

debtor

but purports to

evidence

a

debt owed

by the

creditor,

who never signed it
………………………………………………..
” Well, you want me to

pay

my

car note?
………………………………………………..
Check this out, sucker!!
………………………………………………..
I’m writing a

note

for

twice that amount

from the

bank

to

me!
………………………………………………..
Now give me

my change

and make it

snappy

or I’ll write another

note

for

triple

what I

owe

the

bank”
………………………………………………..
Double Cranko

at the very least
………………………………………………..
I can’t

write

and

issue a note

that makes anyone

liable

but

me
………………………………………………..
And who is

bonding it?
………………………………………………..
If this

note

is

bonded

there is an

insurance company

or

bank

that is

certifying

that it has the

money

to

pay the note off

and if the

note

is

dishonored

it will turn that

money

over to the

creditor
………………………………………………..
Who bonds these notes?
………………………………………………..
A

bond,

a

promise to pay the debt

or

meet the obligation of another

must be in writing
………………………………………………..
Where is the

writing?
………………………………………………..
Where is the

bond?
………………………………………………..
Who signed it?
………………………………………………..
Where is the

money

backing it up?
………………………………………………..
All of this is as bogus as it gets
………………………………………………..
The saddest part, though, is that

people

are eating it up and it’s

getting them in trouble
………………………………………………..
Hope this sheds at least some light
………………………………………………..
Both

Tom

and

I

immediately tried to

warn people

that following the

Dr. Sam Kennedy

program

was a good way to

“break into jail”
………………………………………………..
Of course,

promoters

of

scams

defend themselves

with

defamation

of their

accusers
………………………………………………..
But now, the

chickens are coming home to roost
………………………………………………..
In

September, 2009,

I heard about the

case

of

Seth Sundberg,

a

man

from

California

who had used the

1099-OID

process
………………………………………………..
A

criminal complaint

was

filed

against him by the

feds

on

September, 1, 2009
………………………………………………..
He was

arrested

and

denied bond
………………………………………………..
An

indictment

was later

returned

against him,

and he

filed

the

following pleadings,

among others:
_____________________________________________
Docket sheetimageimageimageimageimageimageimageimageimageimageimageimagehttp://home.hiwaay.net/%7Ebecraft/Sunddocketsheet.pdf
_____________________________________________
Sundberg Indictmentimage

image

image

image

image

image

image

image

image
http://home.hiwaay.net/%7Ebecraft/SundbergIndictment.pdf
_____________________________________________
Doc. 35
image

image

image

image

image

image

image

image

image

image
http://home.hiwaay.net/%7Ebecraft/Doc35.pdf
_____________________________________________
Doc. 37image

image

image

image

image

image

image

image

image

image

image

image

image

image

image

image

image

imagehttp://home.hiwaay.net/%7Ebecraft/Doc37.pdf
_____________________________________________
Doc. 40image

image

image

image

image

image

image

image

image

image

image

image

imagehttp://home.hiwaay.net/%7Ebecraft/Doc40.pdf
_____________________________________________
Doc. 41image

imagehttp://home.hiwaay.net/%7Ebecraft/Doc41.pdf
_____________________________________________
Doc. 42image

image

image

image

image

image

image

image

image

image

imagehttp://home.hiwaay.net/%7Ebecraft/Doc42.pdf
_____________________________________________
In

January,

Sundberg

plead guilty
………………………………………………..
He has

filed

the following

since then:
_____________________________________________
Doc. 56image

image

image

image

image

imagehttp://home.hiwaay.net/%7Ebecraft/Doc56.pdf
_____________________________________________
Doc. 58image

image

image

image

image

imagehttp://home.hiwaay.net/%7Ebecraft/Doc58.pdf
_____________________________________________
Doc. 60image

image

image

image

imagehttp://home.hiwaay.net/%7Ebecraft/Doc60.pdf
_____________________________________________
Doc 63image

image

image

image

image

image

image

image

imagehttp://home.hiwaay.net/%7Ebecraft/Doc63Acceptance.pdf
_____________________________________________
Doc. 62image

image

image

image

image

image

imagehttp://home.hiwaay.net/%7Ebecraft/Doc62.pdf
_____________________________________________
Doc. 64image

image

image

image

image

image

image

image

image

image

image

imagehttp://home.hiwaay.net/%7Ebecraft/Doc64.pdf
_____________________________________________
The

prosecution’s sentencing brief

is

Doc. 64;

it asked that

Sundberg

be

jailed

for

71 months
………………………………………………..
On

July 22, 2010,

Sundberg

was
_____________________________________________
sentenced to 71 months,imagehttp://home.hiwaay.net/%7Ebecraft/Doc71sentence.pdf
_____________________________________________
given a

100,000 bux fine,

and

ordered

to

pay restitution

of

almost 2.5 million
………………………………………………..
These

gurus

work for the

prosecution

and have a

better track record

than the

prosecutors:

they have a

100% conviction rate
………………………………………………..
Furthermore, a

man

named

Armstrong

from

Colorado

followed the

advice

of

Dr. Sam Kennedy

and submitted

1099-OID tax returns

to get

huge refunds
………………………………………………..
The

U.S. Attorney

in response

filed

a
_____________________________________________
criminal complaintimage

image

image

image

image

image

image

image

image

image

image

image

image

image

image

image

image

image

image

image

image

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imagehttp://home.hiwaay.net/%7Ebecraft/armstrongcomplaint.pdf
_____________________________________________
against him

followed by an
_____________________________________________
indictmentimage

image

image

image

image

image

image

image

image

image

imagehttp://home.hiwaay.net/%7Ebecraft/Armstrongindictment.pdf
_____________________________________________
Please read these documents
………………………………………………..
If there is a

trial,

the

defense

should be

Dr. Sam Kennedy lied to me
………………………………………………..
The

DoJ

has

filed

and

posted

on its

website

certain

civil complaints

filed

against

return preparers

who were using this

process:
_____________________________________________
Complaint against Teresa Martyimage

image

image

image

image

image

image

image

image

image

image

image

imagehttp://www.justice.gov/tax/TMarty_Complaint_Temp_Case_Num.pdf
_____________________________________________
Complaint against McIntyreimage

image

image

image

image

image

image

image

image

image

image

image

image

image

image

image

imagehttp://www.justice.gov/sites/default/files/opa/legacy/2009/09/28/usa-v-nyla-mcintyre.pdf
_____________________________________________
Here are some

Department of Justice
_____________________________________________
news releases
—————————————————————–
http://www.justice.gov/opa/pr/government-files-seven-lawsuits-nationwide-block-alleged-scheme-involving-fraudulent-tax
_____________________________________________
about

civil

and

criminal prosecutions

of

people

who used the

Dr. Kennedy

1099-OID

program
………………………………………………..
Here is another
_____________________________________________
indictmentimage

image

image

image

image

image

image

image

image

image

image

image

image

image

image

imagehttp://home.hiwaay.net/%7Ebecraft/BrekkeIndictment.pdf
_____________________________________________
for using the

1099-OID

process
………………………………………………..
The

gurus

who

promoted

this

garbage

need to be

impaled
………………………………………………..
Please, stay away from any

1099-OID

scheme,

redemption process,

etc.
………………………………………………..
These insane ideas created by

guru/crackpots

will get

you

into trouble
_____________________________________________
Lowell (Larry) H. Becraft, Jr.
Huntsville, Alabama
—————————————————————–
http://fly.hiwaay.net/~becraft/deadissues.htm
_____________________________________________
Articles
—————————————————————–
https://wikipediaint.wordpress.com/about
_____________________________________________

FreedomClubUSA

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_____________________________________________
FreedomClubUSA: A Scam
—————————————————————–
http://home.hiwaay.net/%7Ebecraft/FreedomClubUSA.html
_____________________________________________
There is an

organization

named

FreedomClubUSA

that claims to use various

“patriot”

developed processes like

“UCC”

so its

members

can obtain

“non-judicial”

claims against other parties that can be sold to some

big international bank
………………………………………………..
Members

spend lots of

money

to secure these

“non-judicial”

judgments for millions of bux
………………………………………………..
They then wait around for the big, off-shore meeting in the

Bahamas

where that

big, international bank

will meet with the

members

and pay them

multi-millions

for those

“non-judicial”

judgments
………………………………………………..
I learned about this

organization

3 years ago,

a time when it was

alleged

that these

multi-millions

in

claims

would soon be

paid
………………………………………………..
It did not happen then and will never happen because this is a

scam
………………………………………………..
This is an

organization

that uses

patriotism

and

“patriot”

arguments

for the purpose of

fleecing people
………………………………………………..
Do some Internet web searches using the terms

“FreedomClubUSA”

and

“Scam”

and some results will be the following:
* * * * *
Hello everyone,

I just want to warm people about this website

I put this in the news section because I believe that it relates to Zeitgeist members

I was looking for a way to get money to support the TZM and TVP

I have some knowledge on the law were not suppose to know about such as the strawman the FED etc. so I was looking for a way to use this information to my advantage

And what do i come across?

Freedom Club USA

When I first got on the website i figured it was a scam like all others but then I dived into the website’s information and it seemed pretty legit

Actually after about an hour of reading it had me convinced that I could turn debt into cash!

It all seemed way to good to be true so I came down from the clouds and google’d

“Freedom Club USA scam?”

and sure enough there are many ex-members very pissed because they put thousands of dollars into their memberships with no

“rewards”

or

“gain”

in the end

Not only did they put their money and time into this but their trust and feelings into it

If you don’t understand that please go check out the website
………………………………………………..
http://www.FreedomClubUSA.com
………………………………………………..
They make it look VERY convincing which is all the more despicable

They have Mon-wednesday night calls where they act all nice and pretend like they truly want to help people be

“free”

and

“healthy”

and it makes me sick to listen to them blatantly lie to good and honest people trying to stop foreclosures on their homes or get out of debt

I probably would have joined and wasted thousands of dollars if it wasn’t for the people who shared their experiences so I wanted to share mine with everyone here

God this really pisses me off that people take advantage of other people like this

We really are a fucked up species for sure

Anyway, I hoped I helped
Peace
TJG
* * * * *
Submitted:

Friday, February 15, 2008

Last posting:

Saturday, December 27, 2008

Freedom Club USA

has advertised over a 3 year period to be an educational club, with information covering multiple topics ranging from political and financial, to new age and alternative health

As part of the education, they offer a membership into the club for a $300 fee, which opens up a special section of the website with additional articles, as well as the ability to participate on a

“members-only”

call held every Tuesday night

The backbone of the club lies on an

Administrative Remedy (AR)

program they claim is able to convert bank debt and IRS bills into tax pre-paid cash

This is supposedly accomplished by writing letters to the lending institution demanding evidence of the alleged debt

After the three letter process is complete, the club notary claims to have a valid and legal judgement against the institution, which they brag is 100% successful

Following the obtainment of the judgement, the club claims to have a process that can pay for the value of the judgement by creating an unlimited amount of

“e-credits”

on a computer

The payment element of the process is what the club claims they are working on since the inception of their development team

Although the process sounds exciting, there are pieces of information that the victim is not aware of when purchasing an AR

The first piece is that the founder, Tom Lawler, has been claiming for nearly 2.5 years that funding is immenent

There have been many many instances where he has said they are putting the final pieces together, and it never comes to fruition

The second piece is that the club has been reported to various law enforcement agencies, including the FBI, the Secretary of State, the Attorney General, the FTC, etc.

The third piece is that the head of the development team, George Lake III, is a diagnosed schitzophrenic

The relevance of this fact is that he is the one who is putting together the computers to create the money, as well as creating a private UCC

(called a GL UCC)

that is filed against the bank or IRS

The last piece is that Going through an

Administrative Remedy Process

is legal, but it is expensive and cannot be used at an international or local level as identified in a verbal opinion provided by one of the directors of finance at the Swiss Bank in London, two judges, attorneys and others with legal expertise who have reviewed a completed set of AR documents

All of the GL UCC filings are irrelevant and they are NEVER filed with the Secretary of State on behalf of the filer

This is a major fraud perpetrated against the club member
………………………………………………..
(source: http://www.freedomcrowsnest.org/forum/viewtopic.php?t=48598)
………………………………………………..
They do however gladly accept payments for this process, at a cost of $3000 per AR, during this pre-launch period

The club

(which includes the directors and consultants)

have maintained a conduct of never accepting responsibility for any result that has emerged from their actions

Members have been through divorces, foreclosures, one member is literally living out of their car, and one case where a member is now in a mental-ward

Although these members cried out to the club for help, the club has responded with a

“we’re not responsible”

attitude

Restitution in this matter could be done two ways:

1. Pay the AR’s in a timely manner

Giving a new excuse every week, continually claiming the club is on the brink of funding only diminishes any credibility the club has left

(and I suspect thats not alot),

and moves it into the realm of scam

or

2. Close the doors and do not continue to promote false hope to unsuspecting victims

Signed,

An Angry Member
New York, New York
U.S.A.
* * * * *
Note: this link goes to Scams.com where you will find 41 long pages of complaints against FreedomClubUSA

this bunch has been around for a while I think

I’m pretty sure it’s the same group or some offshoot of . there are some other inquiries about a freedomclub usa on this forum from almost a year ago

They spent a couple of years charging $2500 memberships in their club

They claimed they had an in with off shore banks who could monetize admiralty law judgments via off banks for third world countries that could use the cash, something like that

I remember it was some ridiculous rate of return like for a $500,000 mortage you the client would receive tens of millions of $$$

They never delivered anything for their club members, they promised they would deliver the cash to you inside 45 days from the time they go you your admiralty law judgment
………………………………………………..
[url=http://]http://freedomclubusa.com/faq
* * * * *
http://freedomclubusa.com/faq
………………………………………………..
Submitted:

Friday, March 21, 2008

Posted:

Friday, March 21, 2008

I’ve been a member of Freedom Club USA for over a year now, and have been nothing but dissapointed at them

I paid $3000 for an AR process because my consultant led me to believe that Freedom Club had a process that could convert my debt into millions of dollars

He said they just needed a few more things and they would be ready to payout

Its been over a year, and all they have to say is they thought they were there, we didn’t realize how big this was, its imminent

(its been imminent for years),

etc.

This is a friendly warning to fellow readers

If you spend $3000 on an AR, all your going to get for it is a status update

An update does not pay the bills, money does

Others have challenged the founder, Tom Lawler, on this issue

He ends up terminating their agreement, keeps the $3000, and threatens to sue if they speak out

(this has been well documented)

Finally, I have to say some things about your founder that may not be pleasant

Tom has a call on Wednesday night where he shares his spiritual beliefs

He has admitted to believing in reincarnation, and reads books on New Age

He has spoken to spirits on open, public calls via a dowsing crystal, and quotes authors who say they have spoken to spirits

He has even acknowledged Lucifer as a misunderstood being, saying he was made to be the scapegoat by the church

He believes that Buddah, Ghandi, Muhammed, and Jesus were people with a higher consciousness

He has even said that Jesus’ message was that he didn’t come here to save you, but he came to tell you how to save yourself

He has said all these things on open, public calls, and whats worse is that your consultants honestly believe him and pagan rituals

That is what your getting into when you join this club

Anonymous
Orlando, Florida

U.S.A.
****************
_____________________________________________
FreedomClubUSA
Freedom Club USA
http://www.freedomclubusa.com/
Freedom Club USA
The Truth Will Set You Free
Truth. Awakening. Education. Action
—————————————————————–
http://www.freedomclubusa.com/
_____________________________________________
Freedom Club USA – Home
freedomclubusa.com/home
—————————————————————–
http://www.freedomclubusa.com/home
_____________________________________________
Intro to FCUSA
freedomclubusa.com/intro_to_fcusa
—————————————————————–
http://www.freedomclubusa.com/intro_to_fcusa
_____________________________________________
Club News
freedomclubusa.com/club_news
—————————————————————–
http://freedomclubusa.com/club_news
_____________________________________________
Newsletter
freedomclubusa.com/newsletter
—————————————————————–
http://freedomclubusa.com/newsletter
_____________________________________________
Special Update
freedomclubusa.com/special_update
—————————————————————–
http://freedomclubusa.com/special_update
_____________________________________________
Funding Status
freedomclubusa.com/funding_status
—————————————————————–
http://freedomclubusa.com/funding_status
_____________________________________________
Recorded Calls
freedomclubusa.com/recorded_calls
—————————————————————–
http://freedomclubusa.com/recorded_calls
_____________________________________________
About Freedom Club USA – Truth Sets Us Free
Freedom Club USA (FCUSA)
http://www.truthsetsusfree.com/aboutFCUSA.htm
—————————————————————–
http://www.truthsetsusfree.com/aboutFCUSA.htm
_____________________________________________
Freedom Club USA
—————————————————————–
https://freedomclubusa.net/
_____________________________________________
Freedomclubusa.org
freedomclubusa.org/
—————————————————————–
http://freedomclubusa.org/
_____________________________________________
FreedomClubUSA | FreedomClub CANADA
Freedom Club USA
—————————————————————–
http://canadafcusa.wordpress.com/freedom-club-usa/
_____________________________________________
Freedom Club USA – Scam.com
Sep 30, 2014 – 5 posts – ‎3 authors
Ten of so devout believers left, drinking the expired KOOL AID from Freedom ” Club” USA
—————————————————————–
http://www.scam.com/showthread.php?s=2cead53b337ba88dfb7936730c29550d&p=1796467#post1796467
_____________________________________________
SEC Complaint
https://www.sec.gov/litigation/complaints/2014/comp23054.pdf
File Format: PDF/Adobe Acrobat
Jul 31, 2014 … company, Freedom Foundation USA LLC dba Freedom Club USA. (“Freedom Foundation”) (collectively “defendants”) have been offering and
—————————————————————–
https://www.sec.gov/litigation/complaints/2014/comp23054.pdf
_____________________________________________

—————————————————————–
http://glassrhizome.wordpress.com/2013/01/15/freedom-club-usa-as-a-pyramid-scheme
_____________________________________________
Freedom Club USA:
A Warning
—————————————————————–
http://glassrhizome.wordpress.com/
_____________________________________________
Ripoff Report | Freedom Club Usa Complaint Review Internet:
625294
Jan 4, 2013 – Freedom Club Usa Complaint Review:
Freedom Club Usa Freedom Foundation Usa Administrative Remedy Scam
—————————————————————–
http://www.ripoffreport.com/r/Freedom-Club-Usa/internet/Freedom-Club-Usa-Freedom-Foundation-Usa-Administrative-Remedy-Scam-Internet-625294
_____________________________________________
Freedom Club USA Offers Debt Settlement Help and Universal
getoutofdebt.org › Debt Articles
Oct 3, 2012 – Freedom Club USA seems to be pitching the same old tired strawman, UCC, it’s not real debt message
—————————————————————–
https://getoutofdebt.org/46342/freedom-club-usa-offers-debt-settlement-help-and-extraterrestrial-awareness
_____________________________________________
Freedom Club USA – “Will the Truth Set Us Free?” | Margie Casey
Aug 7, 2009 – It appears Freedom Club USA is contacting developers to host a ‘conference’ at their property
—————————————————————–
http://margiecasey.wordpress.com/2009/08/07/freedom-club-usa-will-the-truth-set-us-free/
_____________________________________________
Parent Time:
Freedom Club USA
Jul 16, 2009 – Freedom Club USA (FCUSA) is a scam
—————————————————————–
http://parenthotline.blogspot.com/2009/07/freedom-club-usa.html?m=1
_____________________________________________
Anybody here a member of Freedom Club USA? – Godlike Productions
Dec 12, 2007 – 11 posts
You want to know more about Freedom Club USA?
Go here and join the discussion:
—————————————————————–
http://www.godlikeproductions.com/forum1/message474023/pg1
_____________________________________________
Is Freedom Club USA Legit?
FCUSA Review | Terrence Tillman
Urgent -Don’t Join Freedom Club USA FCUSA Before Reading This
—————————————————————–
http://terrencetillman.com/freedom-club-usa-review/
_____________________________________________
Freedom Club USA (@Ambassador2816) | Twitter
https://twitter.com/Ambassador2816
The latest Tweets from Freedom Club USA
(@Ambassador2816)
Robert Lewis,
President of World Management
—————————————————————–
https://mobile.twitter.com/Ambassador2816
_____________________________________________
When Freedom Meets Light
BlogTalkRadio – ‎Channel Panel
co-host Tom of FreedomClubUSA
—————————————————————–
http://www.blogtalkradio.com/channelpanel/2014/06/05/when-freedom-meets-light-father-god-sananda-co-host-tom-of-freedomclubusa
_____________________________________________
Lowell (Larry) H. Becraft, Jr.
Huntsville, Alabama
—————————————————————–
http://fly.hiwaay.net/~becraft/deadissues.htm
_____________________________________________
Articles
—————————————————————–
https://wikipediaint.wordpress.com/about
_____________________________________________

Victor Varjabedian “Cracking the Code” PENHALLOW v. DOANE’S, 3 U.S. 54 (1795)

Tags

, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

image_____________________________________________
http://fly.hiwaay.net/~becraft/deadissues.htm
_____________________________________________
http://loveforlife.com.au/content/11/01/31/cracking-code-third-edition-dealing-ucc-financing-statement-copyright-notice-admini
_____________________________________________
POLICY DOCUMENT:
U.C.C. REDEMPTION
—————————————————————–
http://sedm.org/Forms/08-PolicyDocs/ucc.pdf
_____________________________________________
POLICY DOCUMENT:
UCC REDEMPTION
Last revised:
5/19/2008
—————————————————————–
https://www.1215.org/lawnotes/work-in-progress/redemption-critique.pdf
_____________________________________________
Here is an example of false information promoted by gurus

A man named

Victor Varjabedian

wrote several years ago a book entitled

“Cracking the Code”

Therein, he asserted that the case of

“Penhallow v. Doane’s Administrators,

3 U.S. 54;

1 L. Ed. 57;

3 Dall. 54″

_____________________________________________
https://supreme.justia.com/cases/federal/us/3/54/case.html
_____________________________________________
stated as follows:

“Inasmuch as every government is an artificial person, an abstraction, and a creature of the mind only, a government can interface only with other artificial persons

The imaginary – having neither actuality nor substance – is foreclosed from creating and attaining parity with the tangible

The legal manifestation of this that no government, as well as any law, agency, aspect, court, etc. therefor can concern itself with anything other than corporate, artificial persons and the contracts between them”

I have posted this case here

http://home.hiwaay.net/%7Ebecraft/Penhallowcase.html

Please download this case, run

“search”

and learn that the above

“quote”

appears nowhere in the case

_____________________________________________
PENHALLOW v. DOANE’S, 3 U.S. 54 (1795)

PENHALLOW, et al. versus DOANE’S Administrators

FEBRUARY TERM, 1795

THIS was a

Writ of Error,

directed to the

Circuit Court

for the

District of New-Hampshire

The case was argued from the

6th

to the

17th

of

February;

the

Attorney General

of the

United States,

(Bradford)

and

Ingersoll,

being

Counsel for the Plaintiffs in error;

and

Dexter, Tilghman and Lewis,

being

Counsel for the Defendants in error

The Case, reduced to an

historical narrative,

by

Judge Paterson,

in delivering his

opinion,

exhibits these features:

“This cause has been much obscured by the irregularity of the
pleadings, which present a medley of procedure, partly according
to the common, and partly according to the civil, law

We must endeavour to extract a state of the case from the Record,
Documents, and Acts, which have been exhibited

It appears, that on the

25th

of

November, 1775

(1 Jour. Congress, 259 )

Congress

passed a series of

Resolutions

respecting captures

These

Resolutions

are as follow:

“Whereas it appears from undoubted information, that many

vessels, which had cleared at the respective Custom-houses

in these Colonies, agreeable to the regulations established by

Acts of the British Parliament, have, in a lawless manner,

without even the semblance of just authority, been seized by

his Majesty’s ships of war, and carried into the harbour of

Boston, and other ports, where they have been rifled of their

cargoes, by order of his Majesty’s naval and military officers,

there commanding, without the said vessels having been proceeded

against by any form of trial, and without the charge of

having offended against any law

“And whereas orders have been issued in his Majesty’s

name, to the commanders of his ships of war, to proceed as

in the case of actual rebellion against such of the sea-port

towns and places being accessible to the king’s ships, in

which any troops shall be raised or military works erected,
………………………………………………..
Page 55
………………………………………………..

under colour of which said orders, the commanders of his majesty’s

said ships of war have already burned and destroyed

the flourishing and populous town of Falmouth, and have

fired upon and much injured several other towns within the

United Colonies, and dispersed at a late season of the year,

hundreds of helpless women and children, with a savage hope,

that those may perish under the approaching rigours of the

season, who may chance to escape destruction from fire and

sword, a mode of warfare long exploded amongst civilized

nations

“And whereas the good people of these colonies, sensibly

affected by the destruction of their property and other
unprovoked

injuries, have at last determined to prevent as much

as possible a repetition thereof, and to procure some reparation

for the same, by fitting out armed vessels and ships of

force

In the execution of which commendable designs it is

possible, that those who have not been instrumental in the

unwarrantable violences above mentioned may suffer, unless

some laws be made to regulate, and tribunals erected competent

to determine the propriety of captures

Therefore resolved,

“1. That all such ships of war, frigates, sloops, cutters,

and armed vessels as are or shall be employed in the present

cruel and unjust war, against the United Colonies, and shall

fall into the hands of, or be taken by, the inhabitants thereof,

be seized and forfeited to and for the purposes herein after

mentioned

“2. Resolved, That all transport vessels in the same service,

having on board any troops, arms, ammunition, cloathing,

provisions, military or naval stores of what kind soever, and

all vessels to whomsoever belonging, that shall be employed

in carrying provisions or other necessaries to the British army

or armies, or navy, that now are, or shall hereafter be within

any of the United Colonies, or any goods, wares, or merchandize

for the use of such fleet or army, shall be liable to

seizure, and with their cargoes shall be confiscated

“3. That no master or commander of any vessel shall be entitled

to cruize for, or make prize of any vessel or cargo, before

he shall have obtained a commission from the Congress,

or from such person or persons as shall be for that purpose appointed,

in some one of the United Colonies

“4. That it be and is hereby recommended to the several

legislatures in the United Colonies, as soon as possible, to

erect Courts of Justice, or give jurisdiction to the courts now

in being, for the purpose of determining concerning the captures

to be made as aforesaid, and to provide that all trials in
………………………………………………..
Page 56
………………………………………………..

such case be had by a Jury under such qualifications, as to

the respective legislatures shall seem expedient,

“5. That all prosecutions shall be commenced in the court of

that Colony, in which the captures shall be made, but if no

such court be at that time erected in the said colony, or if

the capture be made on open sea, then the prosecution shall
“be
in the court of such Colony as the captor may find most

convenient; provided that nothing contained in this resolution

shall be construed so as to enable the captor to remove

his prize from any Colony competent to determine concerning

the seizure, after he shall have carried the vessel so seized

within any harbor of the same

“6. That in all cases an appeal shall be allowed to the Congress,

or such person or persons as they shall appoint for the

trial of appeals, provided the appeal be demanded within five

days after definitive sentence, and such appeal be lodged with

the secretary of Congress within forty days afterwards, and

provided the party appealing shall give security to prosecute

the said appeal to effect, and in case of the death of the secretary

during the recess of Congress, then the said appeal to be

lodged in Congress within twenty days after the meeting

thereof

“7. That when any vessel or vessels, shall be fitted out, at

the expence of any private person or persons, then the captures

made, shall be to the use of the owner or owners of the

said vessel or vessels; that where the vessels employed in the

capture shall be fitted out at the expence of any of the United

Colonies, then one third of the prize taken shall be to

the use of the captors, and the remaining two thirds to the

use of the said Colony, and where the vessels so employed,

shall be fitted out at the continental charge, then one third

shall go to the captors, and the remaining two thirds, to the

use of the United Colonies; provided nevertheless, that if

the capture be a vessel of war, then the captors shall be entitled

to one half of the value, and the remainder shall go to

the colony or continent as the case may be, the necessary

charges of condemnation of all
prizes being deducted before

distribution made”

That, on the

23d March, 1776;

Congress

resolved

that the

inhabitants

of these

colonies

be permitted to fit out

armed vessels,

to cruise on the

enemies

of the

United Colonies

That, on the

2d April, 1776,

Congress

agreed on the form of a

commission

to

commanders

of

private ships of war;

that the

commission

run in the name of the

Delegates

of the

United Colonies

of

New-Hampshire,

&c. and was signed by the

President

of

Congress

That, on the

3d July, 1776,

the

Legislature

of

New-Hampshire,
………………………………………………..
Page 57
………………………………………………..
passed

an

act

for the

trial

of

captures;

of which the

part material

in the

present controversy,

is as follows: —

“And be it further enacted,

That there shall be

erected

and

constantly held

in the

town

of

Portsmouth,

or some

town

or

place adjacent,

in the

county of Rockingham,

a

court of justice,

by the name of the

Court Maritime,

by such

able

and

discreet

person,

as shall be

appointed

and

commissioned,

by the

Council

and

Assembly,

for that purpose,

whose

business

it shall be to

take cognizance,

and

try

the

justice

of any

capture

or
captures,

of any

vessel

or

vessels,

that have been,

may

or

shall

be taken,

by any

person

or

persons

whomsoever,

and brought into this

colony,

or any

recaptures,

that

have

or

shall

be

taken

and

brought thereinto

“And be it further enacted,

That any

person

or

persons

who have been,

or shall be

concerned

in the

taking

and

bringing

into this

colony,

any

vessel

or

vessels

employed

or

offending,

or being the

property

as aforesaid,

shall jointly,

or either of them by themselves,

or by their

attornies,

or

agents,

within twenty days

after being possessed

of the same in this

Colony,

file before the said

Judge,

a

libel

in

writing,

therein giving a

full

and

ample

account

of the

time,

manner,

and

cause

of the

taking

such

vessel

or

vessels

But in case of any such

vessel

or

vessels,

already brought in as aforesaid,

then such

libel

shall be

filed

within

twenty days next

after the

passing

of this

act,

and at the

time

of

filing

such

libel,

shall also be

filed,

all papers on board such

vessel

or

vessels,

to the intent, that the

Jury

may have the

benefit

of the

evidence,

therefrom arising

And the

judge

shall as soon as may be,

appoint a

day

to

try

by a

jury,

the

justice

of the

capture

of such

vessel

or

vessels,

with their

apurtenances

and

cargoes;

and he is hereby

authorized

and

empowered

to

try

the same

And the same

judge

shall cause a

notification

thereof,

and the

name,

if known,

and

description

of the

vessel,

so brought in,

with the

day

set for the

trial

thereon,

to be

advertised

in some

newspapers printed

in the said

Colony

(if any such paper there be)

twenty days

before the

time

of the

trial,

and for want of such

paper,

then to cause the same

notification

to be affixed on the doors of the

Town-House,

in said

Portsmouth,

to the intent that the

owner

of such

vessel,

or

any persons

concerned,

may appear

and

shew cause

(if any they have)

why such

vessel,

with her

cargo

and

appurtenances,

should not be

condemned

as aforesaid

And the said

Judge

shall,

seven days

before the

day

set

and

appointed

for the

trial

of such

vessel,

or

vessels,

issue his

warrant to any

constable

or

constables

within the

county

aforesaid,

commanding them,

or either of them,

to assemble

the

inhabitants

of their

towns

respectively,

and to draw out of the

box,

in manner provided for

drawing jurors,

to

serve

at the

Superior

Page 58

Court of Judicature,

so many

good

and

lawful

men

as the said

Judge

shall order,

not less than

twelve,

nor exceeding

twenty-four;

and the

constable

or

constables

shall, as soon as may be,

give any

person

or

persons,

so drawn to

serve

on the

jury

in said

Court,

due notice

thereof,

and shall make

due return

of

his doings therein

to the said

Judge,

at

or

before

the

day

set

and

appointed

for the

trial

And the said

jurors

shall be held to

serve

on the

trial

of all such

vessels

as shall have been

libelled

before the said

Judge,

and the

time

of their

trial,

published,

at the

time

said

jurors

are

drawn,

unless the

Judge

shall see

cause

to

discharge them,

or either of them

before;

and if

seven

of the

jurors

shall appear

and there shall not be enough
to

compleat

the

number

of

twelve

(which shall be a pannel)

or if there shall be a

legal challenge,

to any of them,

so that there shall be

seven,

and not a

pannel,

it

shall

and

may

be

lawful

for the

Judge,

to

order

his

clerk,

the

sheriff,

or

other proper

officer,

attending said

court,

to fill up the

jury

with

good

and

lawful

men

present;

and the said

jury

when so filled up,

and

impannelled,

shall be

sworn

to return a

true verdict,

on any

bill,

claim,

or

memorial

which shall be committed to them

according to

law,

and

evidence;

and if the

jury

shall

find,

that any

vessel

or

vessels,

against which a

bill

or

libel

is

committed to them have been

offending,

used,

employed

or

improved

as aforesaid,

or are the

property

of any

inhabitants

of

Great-Britain

as aforesaid,

they shall

return

their

verdict

thereof to the said

Judge,

and he shall thereupon

condemn

such

vessel

or

vessels,

with their

cargoes,

and

appurtenances,

and

shall

order them

to be

disposed

of,

as by

law

is

provided:

and if the

jury

shall return a

special verdict,

therein

setting forth certain

facts,

relative to such

vessel

or

vessels

(a bill against which is committed to them)

and it shall

appear

to the said

Judge,

by said

verdict,

that such

vessel

or

vessels,

have been

infesting

the

sea coast

of

America,

or

navigation

thereof,

or that such

vessels

have been

employed,

used,

improved,

or

offending,

or are the

property

of any

inhabitant,

or

inhabitants

of

Great-Britain,

as aforesaid,

he, the said

Judge,

shall

condemn

such

vessel

or

vessels,

and

decree them to be

sold,

with their

cargoes,

and

appurtenances,

at

public vendue;

and shall also

order

the

charges

of said

trial

and

condemnation,

to be

paid

out of the

money

which such

vessel

and

cargo,

with her

appurtenances,

shall

sell

for to the

officers

of the

court,

according to the

table of fees,

last established by

law

of this

Colony,

and shall

order

the

residue

thereof to be

delivered

to the

captors,

their

agents,

or

attornies,

for the

use

and

benefit

of such

captors,

and others concerned therein:

and if

two

or

more

vessels

(the commanders whereof, shall be properly commissioned)

shall jointly take such

vessel,

the

money

which she and her

cargo

shall sell for

(after payment of charges as aforesaid)

shall
………………………………………………..
Page 59
………………………………………………..
be

divided

between the

captors

in proportion to their

men

And the said

Judge

is hereby

authorized

to make out his

precept,

under his

hand

and

seal,

directed to the

sheriff

of the

county

aforesaid

(or if thereto requested by the captors or agents to any other person to be appointed by the said Judge)

to

sell

such

vessel

and

appurtenances,

and

cargo,

at

public vendue,

and such

sheriff

or other

person

after

deducting

his own

charges

for the same,

to

pay

and

deliver

the

residue,

according to the

decree

of the said

Judge

“And be it

enacted

by the

authority

aforesaid,

That any

person

or

persons,

claiming the whole,

or any

part

or

share,

either as

owner

or

captor

of any such

vessel,

or

vessels,

against which a

libel

is so

filed,

may jointly,

or by themselves,

or by their

attornies

or

agents,

five days

before the

day

set

and

appointed

for the

trial

of such

vessel

or

vessels,

file

their

claim

before the said

Judge;

which

claim

shall be

committed

to the

jury,

with the

libel,

which is

first filed,

and the

jury

shall thereupon

determine

and

return

their

verdict,

of what

part

or

share

such

claimant

or

claimants,

shall have of the

capture,

or

captures;

and every

person

or

persons

who shall

neglect

to

file

his

or

their

claim

in the manner

as aforesaid,

shall be

forever barred

therefrom

“And be it further

enacted

by the

authority

aforesaid,

That every

vessel,

which shall be

taken

and

brought

into this

Colony,

by the

armed vessels

of any of the

United Colonies of America,

and shall be

condemned

as aforesaid,

the

proceeds

of such

vessels

and

cargoes,

shall go and be,

one third part to the use of the

captors,

and the other two thirds,

to the use of the

colony,

at whose

charge,

such

armed vessel

was

fitted out

“And where any

vessel

or

vessels

shall be

taken

by the

fleet

and

army

of the

United Colonies,

and

brought

into this

colony,

and

condemned

as aforesaid,

the said

Judge

shall

distribute

and

dispose

of the said

vessels,

and

cargoes,

according to the

resolves

and

orders

of the

American Congress

“Andwhereas, the honorable

Continental Congress

have

recommended,

that in

certain cases

an

appeal

should be

granted

from the

court

aforesaid

“Be it therefore

enacted,

That from all

judgments,

or

decrees,

hereafter to be

given

in the said

court maritime,

on the

capture

of any

vessel,

appurtenances

or

cargoes,

where such

vessel

is

taken,

or shall be

taken

by any

armed vessel,

fitted out at the

charge

of the

United Colonies,

an

appeal

shall be

allowed

to the

Continental Congress,

or to such

person

or

persons,

as they already have,

or shall hereafter

appoint,

for the

trials

of

appeals,

provided the

appeal

be

demanded

within

five days,

after

definitive sentence given,

and such

appeal

shall be

lodged
………………………………………………..
Page 60
………………………………………………..
with the

Secretary

of the

Congress,

within

forty days

afterwards;

and

provided

the

party appealing,

shall give

security

to

prosecute

said

appeal

with effect;

and in case of the

death

of the

Secretary,

during the

recess

of the

Congress,

the said

appeal

shall be

lodged

in

Congress,

within

twenty days,

after the next

meeting

thereof;

and that from the

judgment,

decrees,

or

sentence

of the said

court,

on the

capture

of any

vessel,

or

cargo

which

have been

or

shall hereafter be

brought

into this

colony,

by any

person

or

persons,

excepting those who are in the

service

of the

United Colonies,

an

appeal

shall be

allowed

to the

superior court

of

Judicature,

which shall next be

held

in the

county

aforesaid

“And whereas no

provision

has been

made

by any of the said

resolves

for an

appeal

from the

sentence

or

decree

of the said

Judge,

where the

caption

of any such

vessel

or

vessels

may be

made

by a

vessel

in the

service

of the

United Colonies,

and of any particular

colony,

or

person

together:

“Therefore be it

enacted

by the

authority

aforesaid:

That in such

cases,

the

appeal

shall be

allowed

to the then next

superior Court

as aforesaid:

Provided the

Appellant

shall enter into

bonds

with sufficient

sureties

to

prosecute

his

appeal

with

effect

And such

superior Court,

to which the

appeal

shall be,

shall take

cognizance

thereof,

in the same

manner

as if the

appeal

was from the

inferior Court of Common Pleas,

and shall

condemn

or

acquit,

such

vessel

or

vessels,

their

cargoes,

and

appurtenances,

and in the

sale,

and

disposition

of them,

proceed according to this

act

And the

Appellant

shall

pay

the

court,

and

jury,

such

fees

as are

allowed

by

law

in

civil actions”

That, on the

30th January, 1777,

Congress

resolved,

that a

standing committee,

to

consist

of

five members,

be

appointed,

to

hear

and

determine

upon

Appeals

brought against

sentences passed

on

libels

in the

courts of Admiralty

in the

respective states

That

Joshua Stackpole,

a

citizen of New-Hampshire,

commander

of the

armed brigantine

called the

M’Clary,

acting

under the

commission

and

authority

of

Congress,

did, in the

month

of

October, 1777,

on the

high seas,

capture

the

brigantine

Susanna,

as

lawful prize

That

John Penhallow,

Joshua Wentworth,

Ammi R. Cutter,

Nathaniel Folsom,

Samuel Sherburne,

Thomos Martin,

Moses Woodward,

Niel M’Intire,

George Turner,

Richard Champney,

and

Robert Furness,

all

citizens of New-Hampshire,

were

owners

of the

brigantine

M’Clary

That

George Wentworth

was

agent

for the

captors

That, on the

11th November 1777,

a

libel

was

exhibited

to the

Maritime Court

as

New Hampshire,

in the names of

John
………………………………………………..
Page 61
………………………………………………..
Penhallow

and

Jacob Treadwell,

in behalf of the

owners

of the

M’Clary,

and of

George Wentworth,

agent

for the

captors,

against the

Susanna,

and her

cargo;

to which

claims

were put in by

Elisha Doane,

Isaiah Doane,

and

James Shepherd,

citizens of Massachusetts

That, on the

16th December, 1777,

a

trial

was

had

before the said

court,

when the

Jury

found a

verdict

in

favor

of the

Libellants;

whereupon

judgment

was

rendered,

that the

Susanna,

her

cargo,

&c.

should be

forfeited,

and

deemed

lawful prize,

and the same were thereby

ordered

to be

distributed

according to

law

That an

appeal

to

Congress

was,

in

due time,

demanded,

but

refused

by the said

court,

because it was

contrary

to the

law

of the

State

That then the said

Claimants

prayed

an

appeal

to the

superior Court

of

New Hampshire,

which was

granted

That, on the

first Tuesday

of

September, 1778,

the

superior Court

of

New Hampshire,

proceeded

to the

trial

of the said

appeal,

when the

Jury

found in

favour

of the

Libellants;

that thereupon the

court

gave

judgment,

that the

Susanna,

with her

goods,

claimed

by

Elisha Doane,

Isaiah Doane,

and

James Shepherd,

were

forfeited

to the

Libellants,

and the same were

ordered

to be

sold

at

public vendue,

for their

use

and

benefit,

and that the

proceeds

thereof,

after

deducting

the

costs

of

suit,

and

charges of sale,

be

paid

to

John Penhallow

and

Jacob Treadwell,

agents

for the

owners,

and to

George Wentworth,

agent

for the

captors,

to be by them

paid

and

distributed

according to

law

That the

claimants

did,

in

due time,

demand

an

appeal

from the said

sentence

to

Congress,

and did also

tender sufficient

security

or

caution

to

prosecute

the said

appeal

to effect,

and that the same was

lodged

in

Congress,

within

forty days

after the

definitive sentence

was

pronounced

in the

superior court

of

New Hampshire

That, on the

ninth

of

October, 1778,

a

petition

from

Elisha Doane

was read in

Congress,

accompanied

with the

proceedings

of a

Court of Admiralty

for the

State of New Hampshire,

on the

libel,

Treadwell

and

Penha low,

versus

brig Susanna,

&c.

praying,

that he may be

allowed

an

appeal

to

Congress;

whereupon it was

ordered,

that the same be referred to the

committee on appeals

Fourth Journal of Congress, 586

That, on the

26th June, 1779,

the

commissioners of appeal,

or the

Court of Commissioners,

gave their

opinion,

that they had

jurisdiction

of the

cause

That the

articles of confederation

bear date

the

9th July, 1778,

and were

ratified

by

all the states

on the

1st March, 1781
………………………………………………..
Page 62
………………………………………………..
That, by these

articles,

the

United States

were

vested

with the

sole

and

exclusive

power

of

establishing courts

for

receiving

and

determining

finally appeals

in

all cases

of

capture

That such a

court

was

established,

by the style of

“The

“Court of Appeals in cases of capture”

By the

commission,

the

Judges

were


to hear, try, and determine all appeals from

the Courts of Admiralty in the States respectively, in cases

of capture”

6th Journal of Congress, 14, 21, 75

That, on the

24th May, 1780,

Congress

resolved,

“That

all matters

respecting appeals

in

cases

of

capture,

now

depending

before

Congress,

or the

Commissioners of Appeals,

consisting of

Members of Congress,

be

referred

to the

newly erected

Court of Appeals,

to be there

adjudged

and

determined

according to

law”

That in the

month

of

September, 1783,

the

Court of Appeals,

before whom

appeared

the

parties

by their

advocates,

did, after a

full hearing

and

solemn argument,

finally

adjudge

and

decree,

that the

sentences

or

decrees

passed

by the

inferior

and

superior

Courts of Judicature

of

New Hampshire,

so far as the same respected

Elisha Doane,

Isaiah Doane,

and

James Shepherd,

should be

revoked,

reversed,

and

annulled,

and that the

property,

specified in their

claims,

should be

restored,

and that the

parties

each

pay

their own

costs

on the said

appeal

Here the

cause rested

till the

adoption

of the

existing

Constitution of the United States;

except an

ineffectual struggle

before

Congress,

on the part of

New Hampshire,

and an

unavailing experiment,

at

common law,

to

obtain

redress

on the

part

of the

Appellants

After the

organization

of the

judiciary

under

the

present government,

the

representatives

of

Elisha Doane,

who was one of the

Appellants,

exhibited

a

libel

in the

District Court

of

New Hampshire,

which was

legally transferred

to the

Circuit Court,

against

John Penhallow,

Joshua Wentworth,

Ammi R. Cutter,

Nathaniel Folsom,

Samuel Sherburne,

Thomas Martin,

Moses Woodward,

Niel M’Intire,

George Turner,

Richard Champley,

Robert Furness,

&

George Wentworth

This

libel,

after setting forth the

proceedings

in the

different courts,

states,

that the

brigantine Susanna,

with her

tackle,

furniture,

apparel

and

cargo,

and also the

monies

arising from the

sales

thereof, came, after the

capture,

to the

hands

and

possession

of

Joshua Wentworth,

and

George Wentworth,

whereby they became

liable

for the same,

together with the

captors

and

owners

That after the

death

of

Elisha Doane,

letters

of

administration

of the

personal estate

of the said

Elisha

were

granted

to

Anna Doane,

his widow,

and

Isaiah Doane,

and that the

widow

afterwards intermarried with

David Stoddard Greenough

The

Libellants

pray process

against

the

refpondents
………………………………………………..
Page 63
………………………………………………..
to

shew cause,

why the

decree

of the

Court of Appeals

should not be carried into

execution,

and they also

pray,

that

right

and

justice

may be done in the

premises

and that they may

recover

such

damages

as they have

sustained

by reason of the

taking

of the

Susanna

The

Respondents,

protesting,

that they never were

owners

of the

M’Clary,

2nd

that they have none of the

effects

of the

Susanna,

nor her

cargo

in their

possession,

say, that the

Susanna

was in the

custody

of the

Marshal,

and, upon the

final decree

of the

superior Court

of

New Hampshire,

fold for the

benefit

of the

owners

and

mariners

of the

M’Clary,

and

distributed

among them according to

law;

that the

decision

of the said

court

was

final;

that no other

court

ever had,

or hath,

or ever can have

power

to

revoke,

reverse

and

annul

the said

decree,

and, in a

subsequent part

of the

pleadings,

that the

District Court

of

New Hampshire

hath no

authority

to carry the

decree

of the

Court of Appeals

into

execution,

or to give

damages

To this sort of

plea

and

answer,

neither

and yet

both,

the

Libellants reply,

that the

matters contained

in their

libel

are

just

and

true,

and that they are

ready

to

verify

and

prove

the same;

that the

matters

and

things

alleged

by the

Respondents

are

false

and

untrue;

that the

Court of Commissioners,

and

Court of Appeals

were

duly constituted,

and had

jurisdiction

of the

subject-matter;

that no other

Court

hath

or

can have

authority

to

draw into question

the

legality

of their

decisions,

and that the

District Court

of

New Hampshire

bath

jurisdiction

I have

extracted

and

consolidated

the

material parts

of the

libel,

plea,

answer,

replication,

rejoinder,

sur-rejoinder,

&c.

if they may be so termed,

without detailing the

allegations

of the

parties

as they

arise

in the

course of procedure

Upon these

pleadings

the

parties

went to a

hearing

before the

Circuit Court

of

New Hampshire,

which,

after

full consideration,

decreed,

that the

Respondents

should

pay

to the

Libellants

their

damages

and

costs,

occasioned

by their

not complying

with the

decree

of the

Court of Appeals;

the

quantum

of which to be

ascertained

by

Commissioners

This

interlocutory sentence

was

pronounced

the

24th October, 1793

The

Commissioners

reported,

that the

Lusanna,

her

cargo,

&c.

were, on the

2d October, 1778,

being the

assumed time

of

sale,

worth £. 5,895 14 10

That they

calculated

thereon

16 years

interest,

viz. from the

2d. October 1778,

to

2d. October 1794,

amounting

to 5,659 17 4
________________
£. 11,555 12 2
………………………………………………..
Page 64
………………………………………………..
On this

report

being

affirmed,

the

Circuit Court

pronounced

their

definitive sentence

on the

24th October, 1794,

that the

Libellants

recover

against the

Respondents

the

sum

of

38,518

dollars

and

69 cents,

damages,

and

154 dollars,

and

30 cents.

costs

The

Respondents,

conceiving themselves

aggrieved,

have

removed

the

cause

before this

court

for

revision”

The

Record

being

returned,

the

Plaintiff in error

on the

2d February 1798,

assigned

the

following errors:

“To the

Chief Justice

and the

Associate Justices

of the

Supreme Court of the United States,

to be

holden

at the

City of Philadelphia,

on the

first Monday

of

February

in the

year

of our

Lord

one thousand seven hundred

and

ninety-five,

John Penhallow,

Joshua Wentworth,

Ammi Ruhammah Cutter,

Nathaniel Fulsom,

Samuel Sherburne,

Sen. Thomas Martin,

Moses Woodward,

Neal M’Intire,

George Turner,

Richard Champney,

Robert Furness,

and

George Wentworth,

Plaintiffs in error,

against

David Stoddart Grenough,

and

Anna

his

wife,

and

Isaiah Doane,

Administrators

of the

estate of Elisha Doane,

deceased,

Defendants

“HUMBLY SHEW,

That in the

Record

and

Process

aforesaid,

hereto annexed,

and in

passing

the

final Decree,

it is

manifestly erred

in this, viz

That whereas it was

decreed

in

favour

of the said

David Stoddart Grenough,

and

Anna

his

wife,

and

Isaiah Doane,

the said

decree

ought to have been in

favour

of the said

John Penhallow,

and

others,

the

Plaintiffs: — and for other and

further Errors,

they

assign

the following, viz

“Firstly

That by said

decree

it was

ordered,

that the said

John Penhallow

and

others,

Plaintiffs,

be

condemned

in

damages

for their not

performing

a

certain decree

of a

Court

claiming

Appellate jurisdiction

in

prize causes,

held

in the

City of Philadelphia,

on the

seventeenth day

of

September,

Anno Domini,

1783,

when, in

fact,

the said last mentioned

Court

had

no jurisdiction power,

or

authority

whatever,

by

law,

to

make

and

pass

the said

decree;

and that the said

decree

was

illegal

and a

nullity

“Secondly

That there is also

manifest Error

in this, viz

That if the said last mentioned

Court

had at the

time

of their

passing

said

decree,

Appellate jurisdiction

of said

cause,

yet said

decree

was altogether

erroneous

and

impossible

to be

performed

or

executed,

because,

(as by the said Greenough’s and
others own shewing, in their libel aforesaid)

the said

Elisha Doane

was,

at the

time

of

making

and

passing

the said

decree,

viz. on the

seventeenth day

of

September,

Anno Domini 1783,

and long before that

time,

dead;

when, by the same

decree,

it is

ordered

that

restoration

of said

property

be

made

to said

Elisha Doane

“Thirdly

There is also

manifest error

in this, viz

That said

cause

was not

brought

before

Congress,

or the

Commissioners
………………………………………………..
Page 65
………………………………………………..
by them

appointed,

to

hear

and

try appeals

in

prize causes,

according

to the

Resolve

of

Congress,

but

repugnant thereto,

viz.

by way of

complaint,

and that no

appeal

from the said

decree

of said

Court of New-Hampshire,

was

allowed

by the same

Court,

or by

Congress

Fourthly

There is also

manifest error

in this, viz

That in and by the said

libel

upon which the

decree

aforesaid in said

Circuit Court

is

made,

damages

for not

performing

the

decree

of said

Court of Appeals,

are not

prayed for — wherefore,

the said

Circuit Court

ought not to have

decreed

or

condemned

the

Plaintiffs

in

damages

as is done by said

final decree

Fifthly

There is also

manifest error

in this, viz

That said

final decree

of said

Circuit Court,

was not

made

upon a

due trial

and

examination

of the

merits

of the

capture

of the said

Brigantine Susanna,

her

tackle,

apparel

and

furniture,

and of the

goods,

wares,

and

merchandizes,

and of the

evidences

or

proofs

which might have been

adduced

by the

Plaintiffs in error

if such

trial

had been had

But the

decree

of the

Court of Appeals

was

received

and

admitted

as the only

evidence

of the

right of claim

of the said

Grenough

and

others,

the

libellants,

to the said

Brigantine,

her

tackle,

apparel

and

furniture,

and of the said

goods,

wares

and

merchandizes,

condemned,

and of the

illegality

of the

capture

and

condemnation

aforementioned in said

libel,

which is

contrary

to the

usage

and

customs

of

Admiralty,

Maritime

and

Prize Courts,

and altogether

unwarranted

by

law

Sixthly

There is

manifest error

also, in this, viz. — That by
the

shewing

of the said

Libellants,

the

monies arising

from the

sale

of said

brigantine

and

cargo,

&c.

were

paid

to the said

Joshua Wentworth

and

George Wentworth

as

agents,

to be

distributed

according to law,

viz:

one half

to the

owners

of the said

privateer,

M’Clary,

and the

other

to the

captors,

viz. to the

officers

and

seamen

on

board,

which were

distributed accordingly

Whereas in fact by said

final decree,

they the

Plaintiffs in error,

and

Joshua

and

George

as

agents,

and the

other Plaintiffs

as

owners,

are made

liable,

and

condemned

in

full damages

for the

whole value

of said

brigantine,

her

tackle,

apparel,

and

furniture,

and of said

goods,

wares

and

merchandizes,

which is altogether

illegal

Seventhly

There is also

manifest error

in this, viz. — That it doth not

appear

by the

copy

of the

record

of said

Court of Appeals,

filed

and

used

in this

cause,

how the same

cause,

in which that

court decreed

as aforesaid,

came before said

court,

or was

legally instituted,

or had

day therein,

at the

time

of

passing

said

decree

Eighthly

There is

manifest error

in this, also, viz. — That said

Circuit Court,

in

passing

said

final decree,

and in all the
………………………………………………..
Page 66
………………………………………………..
proceedings

in the same,

acted

and

proceeded

as a

Court of Admiralty,

when as such,

they, by

law,

had no

jurisdiction

of said

cause,

and could not

legally

take cognizance

thereof

WHEREFORE, for

these

and

other errors

in the

record

and

process,

and

final decree

aforesaid,

of the said

Circuit Court,

the said

Plaintiffs in error,

pray,

That the

final decree

aforesaid,

of the said

Circuit Court,

may be

reversed,

annulled,

and

held

to be altogether

void,

and they

restored

to all

things

which they have

lost

JOHN S. SHERBURNE

The

Defendants

replied

in nullo est erratum;

and thereupon

issue

was

joined

For the

Plaintiffs in error,

the

arguments

were of the following

purport

I. ERROR

This is a

question

between

citizens of the United States;

a citizen of one State

being

a citizen of every State

Const. Art. s.

Questions

between

subjects

of

different States,

belong entirely to the

law of nations

3 Bl. Com. 69

but between

citizens of the same State,

the

municipal law,

even in

questions

of

prize

during

a

war,

is of

supereminent control

1 Wood. 137. 2 Wood. 3 Wood. 454. Hen. Bl. Rep. 4 T. Rep.
3 Atk. 195. Parke 166. 180. 3 Bro. 304

But this

appeal

was never properly before the

Congressional Court of Appeals

Doane

petitioned

Congress,

and

Congress

referred the

petition

to the

Committee of Appeals

6 Vol. Journ. Cong. 133, 167

In the

case

of the

Sandwich Packet,

a

committee

was

appointed,

and upon their

report,

Congress

allowed

the

appeal

Regularly, in the present instance, the

appeal

ought to have been allowed by the

court below,

and the

record lodged

with the

Secretary of Congress;

or there should, at least,

appeal a special allowance

of the

appeal

by

Congress,

as in the

case

of the

Sandwich Packet,

and not a mere

reference

to a

committee

The

court of New Hampshire,

in fact,

refused

to allow the

appeal;

and the

appearance

of the

party

in the

Congressional Court of Appeals,

could not

cure

any defect,

as he there

pleaded directly

to the

jurisdiction,

and

notice signifies nothing against a

compulsory judgment

The

legal,

customary,

modes

to

compel

the

return

of a

record,

by

certiorari,

and a

writ of diminution,

&c.

might have been resorted to

3 Bac. Abr. 204. Conset on courts. 187

There was no

privity

between the

Court of Appeals

and the

Circuit Court;

and an

inferior Court

cannot execute

the

decrees

of a

superior Court

1 Sid. 418. 1 Vent. 32. 6 Vin. 373. pl.
2. Esp. 87. 1 Lev. 243. Raym. 473. Doug. 580. Cowp. 176.

But had the

Congressional Court of Appeals

jurisdiction

in this

case?

That

court

is

extinct;

and may now be

considered

in the light of a

foreign court;

and the

decres

of

foreign courts

are regarded on
………………………………………………..
Page 67
………………………………………………..
a footing of

reciprocity

Whether, then, the

Congressional Court of Appeals,

was, in this instance, a

court of the last resort,

is the gift of the

controversy;

and we

contend

that it was not,

but that the

superior Court of New Hampshire,

was, by the

law

of the

State,

the

Court of the last resort

On an

appeal,

or on a

writ of error,

like this, in the

nature of an appeal,

the

Plaintiff in error

may use every

defence

which he could have

urged below;

and the

authorities evince

that the

competency

of the

court

giving the

judgment

may be

enquired into

1 Bac. Abr. 630. Doug. 5. 3 Term Rep. 29. 130. 132. 269. Carth. Parke on
Ins. 11 State Trials, 222. 232. 2 Dom. 676 Ayl. 72. 3

Whether the

Congressional Court

had any

jurisdiction

at all, must

depend

on a

comparison

between the

resolves

of

Congress

of

November 1775,

and the

law

of

New Hampshire,

of

July 1776;

and to

solve

that

difficulty,

three subordinate questions

may be

discussed; — 1st

Had

Congress

exclusive jurisdiction

of

prize causes

in

Nov. 1775? — 2d

Are their

resolutions

on that

subject

mandatory

and

absolute;

or

recommendatory — and 3d

Did they necessarily

imply,

and

authorise,

a

revision of facts,

which had already been

established

by the

verdict

of a

Jury. —

1. Had

Congress

exclusive jurisdiction

of

prize causes

in

Nov. 1775?

If

New Hampshire

had any

original right

to take

cognizance

of

prize causes,

the

Plaintiff in error

must prevail;

for, in such

case,

the

jurisdiction

would be, at least,

concurrent

with that

claimed

by

Congress

But, wherever an

alliance

is not

corporate,

but

confederate,

the

sovereignty

resides in each

State

Federalist, p. Adams’ Def. 162. 3

And in the

histories

of

Holland

and of

Germany

the

rule

will be

illustrated

and

confirmed

1 Montesq. 263. 7 Vol.
Encyclopœdia, 709. Chesterfield’s Works, 1 vol. Sir William
Temple, 114. Adams’ Def. 362

Now, the

State

retained all the

powers

which she did not

expressly surrender

to the

Union;

a

State

cannot cease

to be

sovereign

without its own

act;

nor can

sovereignty

be

asserted

but upon a

clear title

7 Journ. Cong. p. 49, &c.

Congress

had only the

power

to

recommend

certain acts

to the

States,

they had no

absolute right

to

enforce

a

performance,

nor to

inflict

a

penalty

for

disobedience

Whatever

power

Congress

possessed

must have been

derived

from the

People

If

Congress

had a

right

of

erecting

Courts of Appeals

from

New Hampshire,

it must be in consequence of an

authority

derived

from

New Hampshire; — all the other

twelve States

could not give it:

Nor had

Congress

the

exclusive power of war;

as a

retrospective view

of the

revolutionary occurrences

will

demonstrate

The

Colonies,

totally independent of each other

before the

war,

became

distinct,

independent,

States,

when they threw off their

allegiance

to the

British crown,

and

Congress

was no longer a

Convention of Agents for Colonies,

but of

Ambassadors

from
………………………………………………..
Page 68
………………………………………………..
sovereign States

Adams’ Def. 1 vol. 362. 3. 4

In that

character

they were

uniformly considered

by

Congress;

and on the

24th

of

June, 1776,

[2 Vol. Journ. Cong. 229]

when that

body

recommends passing

laws

on the

subject

of

treason,

the

crime

is

declared

to be

committed

against

the

colonies,

individually,

and

not against

the

confederation

The

powers

of the

first Congress

of

1774,

were, indeed, only those of

consultation,

to

project

the

proper measures

for

obtaining

a

redress of grievances:

they were,

in effect,

a

counsel of advice

Their

credentials,

as well as the

opinions

of

writers,

manifest

the

truth

of this

assertion

1 Ramsay’s Hist. 143. 1 Journ. Cong. 17. 54. 55

The

second Congress

sat on the same

authority;

with the same

latitude

to

obtain

a

redress of grievances;

but, all the

credentials

of the

members

bear date

before the news

of the

battle

of

Lexington;

(19 April 1775)

those from

Pennsylvania,

New-Jersey,

and

Virginia,

merely

authorise

a

meeting

in

Congress;

and none of the

rest

hold out the idea of

war,

though those from

Massachusetts

seem to have

given

the

greatest latitude

1 Journ Cong. 56. 3 Vol Cong. 14

It appears clearly, then, that

Congress

at those

stages

of the

Revolution,

possessed

no

positive powers,

by

express delegation

When, however, the

war

afterwards came on,

Congress

seized

on such

powers

as the

necessity

of the

case required

to be

exercised:

but still, the

validity

of those

powers

depends on

subsequent ratifications,

or

universal acquiescence;

and if

New-Hampshire

has ever

ratified

the

assumption

of a

right

to

hold appeals

in all cases

of

capture

as

prize,

we

abandon

the

cause

But in a

variety of instances,

it is

manifest,

that, although some of the

assumed powers

of

Congress

were

confirmed,

others were

denied

and

repelled

Thus, the

power

of

embargo

was

desired

by

Congress,

but

never conceded

by the

states

4 Journ. Cong. 575. 321. 331;

and in

Pennsylvania,

it was even thought

necessary

to

pass

a

law

to

indemnify,

all

persons,

who

acted

under the

authority

of the

resolutions

of

Congress,

&c.

2 Vol. Dall. Edit. 111

Still, however, it is

conceded,

that

Congress,

from the

necessity

of the

case,

and a

general acquiescence,

might raise an army,

and

direct the military operations of the war;

though even in that respect,

it is questionable,

whether

Massachusetts

would have

consented

to the

Congressional appointment

of a

commander in chief,

had

General Ward

been successful at

Bunker’s Hill

But the

States,

by their

acquiescence

in this

exercise

of the

rights

of

war,

on the part of

Congress,

did not convey an

exclusive power

to the

Federal head,

nor

divest themselves

of their

individual authority

to

wage war,

issue letters of marque,

&c.

War

is that

state

in which a

nation

prosecutes its rights

by

force

Vatt. b. 3. c. 1. s. 1

Now, the

fact

is, that the

New-England
………………………………………………..
Page 69
………………………………………………..
colonies

had first made

war,

according to this

definition;

and at their

instance

the other

colonies

afterwards

joined them

1 Ramsay’s Hist. 192

New-Hampshire,

accordingly,

voted 2000 men for the service

Ib. 395;

established post-offices;

and

vested

a

committee of safety

with

powers equal

to those of a

dictator

Ib. 395

Connecticut,

likewise,

made war

on her own

individual authority;

Ticonderoga

was taken by

Allen;

and

Arnold

made a

prize

of a

vessel

on

Lake Champlaine

Gord. Hist. 349

1 Vol. Journ. Cong. 81

At this period the

States

must have been

possessed

of

individual sovereignty;

for, the

sovereign power alone

can raise troops

Vatt. b. 2. c. 2. s. 7;

and both

Massachusetts

and

Connecticutt

had actually

fitted

cut

and

armed vessels

to

cruize

against the

enemy

in

October, 1775,

(South-Carolina soon following the example)

whereas the

resolution

of

Congress

respecting prizes,

did not

pass

till the

succeeding month

Gord. Hist. 428. Ramsay’s Hist. 224

Could the

resolutions

of

Congress

at that

time

take away the

jurisdiction

of

New-Hampshire,

without her own

consent?

and the

articles of confederation,

at a later period,

expressly reserved

to the

respective states,

the

right

of

issuing

letters of marque,

&c.

after a

declaration of war

by the

United States

By considering the

circumstances

under which

Congress

exercised other powers,

we may be

furnished

with some

analogies

in support of our doctrine,

respecting the

power claimed,

as an

incident of war,

to

hold appeals

in all cases of capture

Congress

were

allowed

to

issue money;

but they could not guard it from

counterfeit,

nor make it a

legal tender;

nor effectually bind the

States

to

redeem it;

though all these

incidents

were

essential

to

support

the

credit

and

currency

of the

money

Congress

assumed the power

of

regulating the post-office;

but they could

impose no penalties

for a

breach of their resolution

on the

subject

Congress received Ambassadors,

and other public ministers;

but when the

immunity

of the

French minister’s house

was

violated,

the

State of Pennsylvania

only could

punish

the

offender

Dall. Rep. De Longchamp’s case

Congress

made

treaties,

but they could

make

no

law

to

enforce

an

observance of them

Even for effectuating their

resolutions,

relative to

admiralty jurisdiction,

Congress

were

obliged to address themselves

by

recommendation to the states,

individually;

5 Journ. Cong. 215;

and

New-Hampshire

passed a law,

granting

to

Congress

the

power

that was

requested,

in the case of

foreigners only,

with an

allowance

of only a

day

for making the

appeal

In that

law

Congress acquiesced,

Ib. 459

till the dispute arose

in this very case

9 Journ. Cong. 45. 87. 97. 98. Dall. Rep. 71

This

distinction

has been

taken

in

Pennsylvania,

that on the

evacuation

of

Philadelphia,

all

puplic military property

belonged

to

Congress,

and

all private property

to the

State

To
………………………………………………..
Page 70
………………………………………………..
manifest,

if possible,

more forcibly the

participation

of the

individual states,

in the

power

assumed

and

exercised

by

Congress,

we find that the very

commissions

issued

by

Congress,

were countersigned

by the

Governors

of the

respective states

By the

law

of

New-Hampshire,

passed

in

July 1776,

a

power

was

given

to the

Executive

to

issue letters of marque,

&c.

and the

act

of

countersigning

the

congressional commissions

was

equivalent

to the

exercise

of that

power

In the

instructions

to

privateers,

it is,

likewise observable,

that

Congress

authorise

the

captors

to

proceed

to

libel

and

condemn

their

prizes

“in any

court

erected

for the

trial

of

maritime affairs,

in any of these

colonies”

2 Journ. Cong. 106. 116. 118

But surely, it is

possible

for a

state,

to

delegate

the

power

of

issuing letters of marque,

&c.

and yet

retain

a

jurisdiction

over

prizes

brought

into her

ports;

or,

reversing the proposition,

to give up that

jurisdiction,

and yet

retain the power

of

issuing letters of marque

A

court of appeal

is not a

necessary incident

of

sovereignty

If there be a

court

judging

by the

law of nations,

no

complaint

can be

made

by

foreign powers;

the rest

depends

on

municipal law

4 T. Rep. 382. 3 Atk. 401. Coll. Jurid.

It has been

questioned,

indeed, whether any

court

can

decide

on the

legality

of a

prize,

which has been

captured

under the

authority

of a

different power,

from that by which the

court

was

constituted:

but in the

case

of a

confederated sovereignty,

each

member

of the

confederation

may, undoubtedly, give

power

to the

others

to

decide

on

prizes

taken

under its

separate authority

Thus, likewise, it appears that

France

established courts

in the

West-Indies,

to

determine

the

legality

of

prizes

taken

by

American vessels,

although no

article

of the

treaty

provided

for such an

establishment

5 Journ. Cong. 440

In other

treaties,

however, the

case

is

expressly provided for,

and the

judicatures

of the

place,

into which the

prize,

taken

by either of the

contracting parties,

shall have been

conducted,

may decide

on the

legality

of the

captures,

according

to the

laws

and

regulations

of the

States,

to which the

captors belong

Prussian Treaty. Art. 21. s. 4

Dutch Treaty. Art. 5

Swedish Treaty, Art. 18. s. 4

But the

language

of the

articles of confederation

demonstrates

the

political independence,

and

separate authority,

of the

States:

“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”

Art. 3

If, indeed, the

States

had not,

individually,

all the

powers

of

sovereignty,

how could they

transfer

such

powers,

or any of them,

to

Congress?

Does not

Congress

itself,

by the

appointment

of a

committee

to

draft

the

articles of confederation;

and by its

earnest solicitation,

that

the several states

would ratify
………………………………………………..
Page 71
………………………………………………..
the

instrument;

evince a sense of its own

political impotence,

and of the

plenitude

of the

State authorities?

But, after all, it must be

considered

that

Doane,

the

Defendant in error,

waved

the

appeal

to

Congress,

by carrying his

case

into the

Supreme Court of New-Hampshire,

instead of

applying immediately

for

relief

to

Congress,

when the

inferior State Court

refused

to

grant

an

appeal

to the

congressional court of appeals;

and the

Supreme Court of Massachusetts

has

determined

in an

action

of

Trover

between the same

parties,

that the

court of appeals

had no

jurisdiction

in this cause

Sit finis litium

2. The second subordinate question is — Are the

Resolutions

of

Congress,

respecting

prize causes,

mandatory

and

absolute;

or

only recommendatory?

In

spirit

and in

terms

they are no more than

recommendatory;

such as the

State

might at pleasure,

either carry into effect,

or

reject

The

State,

which

erected

the

Court of Admiralty,

possessed

the

power,

likewise, to

regulate

the

Appellate jurisdiction

from its

decrees

Thus, the

act

of

Pennsylvania

modelled

the

Appellate power

in a

special manner,

as to the

time

of

appealing;

and

denied

the

appeal

altogether,

as to

facts

found by the

verdict

of a

jury

The

Supreme Court of New-Hampshire

was in

existence

long before the

Resolutions

of

Congress

were

passed;

and there is no

presence

for

Congress

to

claim

a

controuling,

or

appellate, power,

upon the

judgments,

or

decrees,

there

pronounced;

though

Congress

might

recommend

a

particular mode

of

proceeding

as

convenient

and

advantageous

As far as

respected Foreigners,

New-Hampshire

concurred

in the

opinion

of

Congress;

but

rejected it in cases,

like the present,

between citizens

3. The third subordinate question is — Whether the

Resolutions

of

Congress,

necessarily imply

and

authorise

a

revision of facts,

which had already been

established

by the

verdict of a jury?

The

fair construction

of the

Resolution

of

Congress

is, that there shall be an

appeal

on

points of law

appearing on the record

The

appeal

from a

jury

is not known here,

though it is familiar in

New-England;

but even in

New-England,

the

appeal

is always from

one jury

to

another jury,

and a

jury

may, in some measure,

proceed on their own knowledge

3 Bl. Com. 330. 367

In the

case

of the

Sloop Active

(2 Vol. p.)

the

Chief Justice

(M’KEAN)

was

decisively

of

opinion,

that an

appeal

did not

lie

from the

Admiralty

of the

State

to the

Congressional Court of Appeals,

as to

facts

found

by a

Jury:

and, in the same

case,

the

General Assembly

expressed

the same

opinion,

by their

instructions

to the

Delegates in Congress

Journals, 31st o January, 1780

After a

jury Trial,

facts

cannot be

re-examined

on a

writ of Error

3 Bl. Com. 330. 367
………………………………………………..
Page 72
………………………………………………..
II. ERROR

It appears on the

record

that

Doane

was

dead

when the

judgment

was

given:

for, the

libel

itself sets forth the

commitment

of

administration

to

his representatives

before

judgment;

and, although that may not be

conclusive,

it is

strong evidence

of

his death,

upon which the

court

will decide the

fact

Pr. Reg. ch. 1. p. 264. 3 & 4 Wood. 377. 2 Bac. 204. 4 Vin. 429. T. Raym. 463

It has been said, that even if

Doane

were

dead,

it was no

abatement,

being in a

civil law court

1 Cha. Ca. 122:

but the

case referred to,

as an

authority,

was merely a

bill of review,

which is not

stricti juris,

and

was dismissed

Besides, the

person

who

filed

that

bill

had no

privity,

and was not

entitled to it;

and even if he had, the

exception

might have been error,

notwithstanding the

dismissal

of the

bill

It is likewise said, that

death

was no

abatement

in an

ecclesiastical court

Lev.;

but it is

evident

from the

authority cited,

that the

party representing

the

deceased,

must come into

court

before

judgment

can go against him

3 Huberus, 582

The most that can

reasonably

be urged is,

that the

decree

was good,

so far as it

pronounced

the

captured ship

to be

free;

but it was

void,

so far as it made any

order

upon

Doane

to do any particular act

See 3 T. Rep. 323

The

Circuit Court

(which has been called a court of review)

was, in

fact,

only the

Court of Appeals

continued;

but

Doane’s administrators

were never called upon,

and, therefore,

could not be

obliged

to go into that

court

The

ground

of the

opinion

of the

Circuit Court

is, that

damages

shall be recovered

for not

restoring

the

property

to

Doane;

who, being then

dead,

the

restitution

was

impossible

Besides,

letters of administration

were only

taken out

in

Massachusetts,

which would not

operate

in

New Hampshire,

where alone,

if any where,

the

debt was valid

Lovelace on wills

III. ERROR

The

argument

in

support

of this

error

has been

anticipated

in

discussing

the

first error assigned

IV. ERROR

Damages

were not

asked

by the

Libellant

in the

Circuit Court

The

libel prays,

indeed, that the

decree

of the

Court of Appeals

might be

carried into effect;

that

damages

might be given

for the

illegal capture

of the

ship;

and that

general relief

might be granted;

but it does not

pray

for

damages

on

account

of the

non-performance

of the

decree

of the

Court of Appeals

A

judgment

which

gives damages,

where they

ought not to be given,

is erroneous:

as where the

damages

are laid at 100l

in the

declaration,

and the

judgment

is

rendered

for

200l

No

damages

are to be

allowed

on

reversal

Lee on capt. 241

There ought to have been an

account

of the

value

of the

thing

to be

restored,

by the

decree

of the

Court of Appeals;

and as that

court

gave no damages

for the

unlawful taking

of the

vessel,

no other court

had power

to give
………………………………………………..
Page 73
………………………………………………..
them

Nor, indeed, ought any

damages

to

have been given,

as the

order

for

restitution

was not

directed

to the

Respondents

Besides the

damages

are

given against

the

Defendants jointly,

whereas

each should have been

charged severally

with the

sum

which came into his hands;

3 T. Rep. 371. Cowp. 506. 4 Vin. 444. 7 Vin. 252

And it does not even

appear

that they had

notice

of the

decree

of the

Court of Appeals,

though it is

stated

on the

record

that

they were heard

by their

advocates

sometime before it was

pronounced

A

monition

should have

issued;

and the

superior court

should have

inhibited

the

court of New Hampshire

from

proceeding

on their

judgment:

otherwise, if that

court

did so

proceed,

and

under their order

the

vessel

was sold

and the

money

paid away,

the

persons

who

paid it

are

not responsible

3 T. Rep. 125

An

agent

paying over trust money

without notice of appeal,

is excused

4 Burr. 1985. Cowp. 565. 2 Ld. Ray. 1210

And the

Admiralty

only compels agents

to

account

for the

money

actually in their hands

H. Bl. 476. 483. 3. T. Rep. 323. 326. 7.343. 4 T. Rep. 382. 393. 1 Bl. Rep.
315

In the

Admiralty

a number of

persons

are

joined,

in order to

prevent

a

multiplicity of suits:

but, substantially,

each person

stands on his own separate ground,

and a

mode

is

established

for

assessing several damages

Doug. 579[fn*]

V. ERROR

That the

court below

did not examine

into the

merits,

cannot be deemed error,

if they had no

jurisdiction

to

meddle

with the

subject

at all

This

assignment of error,

therefore,

cannot be maintained

VI. ERROR

The

argument

on this,

was anticipated in the

discussion

of the

4th error assigned

VII. ERROR

The

argument

on this,

was anticipated in the

discussion

of the

first error assigned

VIII. ERROR

The

fate

of this

error

was

submitted,

without remark,

to the

opinion

of the

court

For the

defendant in error,

the

answers

were of the

following tenor

I. ERROR: — The

objection

that the

appeal

was not properly before

the

Congressional Court,

ought not at this stage

to be

sustained,

since the

party appeared there,

and

pleaded

to the

jurisdiction;

and the

court

took cognizance

of the

cause

The

court

ad quem,

and not the

court

a quo,

the

proceeding

is

brought,

must determine

whether the

appeal lay

A certified
………………………………………………..
Page 74
………………………………………………..
copy

of the

decree

of the

Court of New Hampshire

was lodged

with

Congress;

and the

case

was treated

in the same way that

Congress

(who were not bound down to particular forms)

treated other similar cases

Nor can it

injure

the

Defendant in error,

that he took his

first appeal

to the

superior Court of New Hampshire;

for, that

State

had certainly a right

to

establish

different Courts of Appeal,

provided

the

last resort

was made to

Congress

But an

appeal

was

tendered

and

refused;

and a

certiorari

only

lies

to

Courts of Record,

which was not the

case

with the

inferior Court of New Hampshire

The

act

of

Congress

directs

a

removal

by

writ of error

in all cases

and therefore

takes away

all objections

not appearing

on the

record

Nor is it

effectual

to say, that an

inferior court

cannot execute

the

judgment

of a

superior Court;

for, we had no

remedy

at

common law;

the

question

of

prize

or

no prize

being solely

of

Admiralty jurisdiction

Dall. Rep.:

the

only remedy

was in the

District Court of New Hampshire

It has even been

contended,

that a

Court of Admiralty of England

may grant execution

on a

judgment

in

Friezland

against an

Englishman

6 Vin. 513. pl. 12. 1
Lev. 267. 1 Vent. 32. Godb. 260

and a

Court of Admiralty

may proceed

to

give effect

to its own

sentence

upon a

new libel

being

filed

4 T. Rep. 385

We

contend

then, that

Congress

had

jurisdiction

to

determine

the

appeal

as well before,

as after,

the

ratification

of the

articles of confederation: — before the

ratification,

from the

nature

and

necessity

of the

case;

and after the

ratification

from the

force

of the

compact

Congress

was chosen by the

representatives

of the

people;

and when

war commenced,

it could not have been

prosecuted,

without vesting

that body

with a

jurisdiction,

which, should

pervade

the whole

continent

A

formal compact

is not

essential

to the

institution

of a

government

Every

nation

that

governs itself,

under what form soever,

without any

dependence

on a

foreign power,

is a

sovereign state

In every

society

there must be a

sovereignty

1 Dall. Rep. 46, 57. Vatt. B. 1. ch. 1. s. 4

The powers

of

war

form

an

inherent characteristic

of

national sovereignty;

and,

it is

not denied,

that

Congress

possessed those powers

As, therefore, the

decision

of the

question,

whether prize,

or

no prize,

is a

part

of the

power

and

law

of

war,

Doug. 585. 6

and must be

governed

by the

law of nations,

3 Bl. Com. 68, 69. 2
Wood. 139. 4 Term Rep. 394, 400, 401,

it follows, as a

necessary consequence,

that if

Congress

possessed

the

whole power

of

war,

it

possessed

all the parts; — the

incidents,

as well as the

principal jurisdiction

Under this

impression,

Congress

recommended

the

institution

of

prize courts

in the

several States;

but

reserved

to itself

the

right

of

appeal;

and its

journals

are

filled

with the

exercise

of

powers

derived

from the

same source,

and having
………………………………………………..
Page 75
………………………………………………..
no greater pretensions to validity

On the

2d May, 1775,

the

militia

are

directed

to be

trained

for

defence

On the

1st June,

Congress

declare

that they stand on the

defensive

merely, and the

invasion

of

Canada

by any of the

Colonies

is

objected

to

On the

14th June,

an

army

is

directed

to be

raised

On

15th June,

a

General

is

appointed

On the

6th July,

war

is, in effect,

declared

On the

7th November,

the

articles of war,

inflicting death

in certain cases,

were

passed

On the

25th Nov.

the

resolutions

concerning prizes

were

adopted

On the

28th November,

rules

and

orders

were

established

for the

government

of the

navy

On the

5th December

provision

was

made

for

salvage

in the

case

of

re-captured vessels

On the

13th December

a

fleet

was

established

On

20th December

it was

declared

that the

law of nations

should

regulate

the

proceedings

in

prize causes

On

22d December,

the

Naval Committee act

On

26th Dec.

the

United Colonies

are

pledged

for the

redemption

of the

paper money

On the

23d March

and

24th July,

1776,

the

equipment

of

privateers

is

authorised

On

2d

and

3d

April,

the

form

of a

commission

for

privateers

is

settled

On the

4th July,

Independence is declared

On

26th Aug.

half pay

was

allowed

to

disabled officers

On

5th September,

it was

resolved

that

propositions

for

peace

should only be

made

to

Congress

On the

9th September,

a

committee

is

appointed

on an

appeal

in the

case

of the

schooner Thistle,

and the

stile

of the

confederation

was

changed

from

“United Colonies”

to

“United States”

On

16th September,

additional battalions were raised

On

20th September,

a new set of

articles of war

were

substituted

instead of the former

On the

21st October,

the

oath

to be

taken

by

officers

in the

Continental service

was

prescribed

On

30th January

and

8th May,

1777,

a

standing committee

was

appointed,

to

hear

and

determine

appeals

On

31st January,

a

decree

of a

committee

was

set aside

on an

appeal

On

8th May,

a

new commission

for

privateers

was

settled

On the

14th October,

Congress

resolved

to

retaliate

by

condemning

as

prize,

the

enemy’s vessels,

brought in

by their own mariners

On the

6th February, 1778,

Congress

formed

a

treaty of alliance

with

France

On

9th July, 1778,

the

articles of confederation

were

ratified

and

signed

by

all the states,

except

New-Jersey,

Delaware,

and

Maryland

On

27th July, 1778,

new members

were

added

to the

committee of appeals

On

14 January, 1779,

Congress

resolved

that they would

not conclude

a

truce

or

treaty

with

Great-Britain,

without the

consent

of

France

On the

6th

of

March,

the

objection

to the

appellate jurisdiction

of

Congress,

as to

facts found

by a

jury,

was

urged

by

Pennsylvania

in the

case

of the

sloop Active

On

15th Jan.

1780,

and

24th May,

a

court of appeals

in the

case

of

captures

was

instituted

On

21st January

and

30th March,

1784,

the

proceedings

in the

case

of the

Susanna,

came
………………………………………………..
Page 76
………………………………………………..
before

Congress

On

24th May, 1780,

the

stile

of the

court of appeals

was

settled

On

26th June, 1786,

a

court of review

was

instituted

After so

extensive

a

display

of

power

and

jurisdiction,

it is

absurd

to

oppose theory

to

practice,

and to

reason

in the

abstract,

instead of

adopting

the

evidence

of

facts

But on

principle

as well as

practice,

the

old commissioners of appeals

had

jurisdiction

Congress

had an

imperfect sovereignty

previous

to the

declaration of independence;

and the

articles of confederation

are only a

definement

of

rights,

before

vague

and

uncertain

The

acts

of

Congress

were either

performed

by

virtue

of

delegated powers,

or of

subsequent ratifications,

and the

acquiescence

of the

state legislatures

and the

people

On the

declaration of independence,

a

new body politic

was

created;

Congress

was the

organ

of the

declaration;

but it was the

act

of the

people,

not of the

state legislatures,

which were likewise

nothing more

than organs

of the

people

Having, therefore, a

national sovereignty,

extending to

all the powers

of

war

and

peace,

including, as a

necessary incident,

the

right

to

judge of captures,

the

commissioners of appeals

were

lawfully instituted;

and it is

absurd

to say that both the

Federal

and

State

governments

held sovereignty

in the

same points,

nor can the

jurisdiction

of the

court of appeals

that

succeeded

the

commissioners

be now

questioned

There would, indeed, be no end of

disputes,

if the

judgments

of a

Supreme Court,

on the

point

of

jurisdiction,

could be enquired into

Lee on Cap. 242. Collec. Jurid. 153. 139. 3 Bl. Com. 411. 57. 1 Bac. Abr 524

That

point

was

lawfully

before the

court of appeals;

and the

court of appeals,

when they made their

decree,

in

1783,

were clearly the

supreme court of admiralty

under the

consederation

The

court of appeals

took the cause up,

as it had been left by the

commissioners of appeals;

and not on a

new appeal

from

New-Hampshire;

they, therefore,

virtually decided,

that the

commissioners of appeals

had

jurisdiction

If, then, this

court

may now

enquire

into the

judgment

of the

court of appeals,

every

district court in the Union

may do the same;

and the

controversy

would never be at rest

The

individual States

had no

right

to

erect courts of prize,

but under the

authority

of

Congress,

who

derived

their

authority

from the

whole people of America,

as one united body

Was it not considered,

during the war,

by every man,

that Congress

were thus vested

with this and

all the other rights of war

and

peace,

and not the individual states?

Why, else, was it necessary

by a

special resolution

of

Congress,

(4 April, 1777)

to give

validity

to

captures

made

by

privateers

bearing commissions

issued

by the

governor of North-Carolina,

previously to the

4th

of

April, 1777?

And on what other

principle
………………………………………………..
Page 77
………………………………………………..
could that

resolution

be

“transmitted to each of the

United States,

as a

law

in any

prize cause,

which may be

depending

or

instituted

in any of the

courts

therein, and to

secure

the

condemnation

of

vessels

taken

under such

commissions?”

The very

privateer

that

made

the

capture

in

question,

was

commissioned

by

Congress;

and the

usual bond

was

given

by her

owners

to the

President of Congress:

Could, then, a

privateer

acting

under the

commission

of

Congress,

be

deemed

to

act

under any other

authority;

or be

governed

by any other

laws

than those which

Congress

had

prescribed?

Had

New-Hampshire

a

right

to

erect courts

for the

condemnation

of

prizes

made

by

vessels

commissioned

by

Congress,

unless by the

authority

of

Congress,

and upon the

terms

of their

resolutions?

It is

urged,

however, that this is a

case

between citizens of the same country;

and, therefore, not within the

general principle:

But we

answer,

that

a citizen of Massachusetts

is

a foreigner

with regard to

New-Hampshire

The

law

of

New-Hampshire,

respecting

admiralty matters,

passed

in

1776,

long before the

articles of confederation

were

ratified;

and ’till those

articles

were

ratified,

there is

no colour

to

alledge,

that the

citizens of one state,

were

citizens of all the rest

But, if

Congress

had a

jurisdiction co-extensive

with the

object,

they are alone

competent

to

modify

or

limit

its

exercise:

and, when they

reserved

to

themselves

the

appeal

in

all cases,

it is clear that they intended an

appeal

should

lie

as well in

cases

between citizens,

as in

cases

between citizens

and

foreigners; — from the

verdict

of a

jury

on

matters

of

fact,

as well as from the

judgment

of the

court

in

matters

of

law

Nor can the

municipal law

of a

state,

govern

the

question

of

prize,

or

no prize,

even between citizens;

though it may

regulate

the

distribution

of

prize money,

for, in that respect,

none but the

citizens of the state

can be interested

In the

case

of the

sloop Active,

all the states

but

Pennsylvania

voted originally

that the

decision

should be

according

to the

law of nations,

and not

according

to the

municipal law of the state;

and although in the

year

1784,

fix of the states

voted

in

support

of a

different opinion;

yet, it must be

recollected

that the

hearing

was then

ex parte;

Congress

were

evidently influenced

by an

apprehension

of the

consequence

of

enforcing

the

decree

of the

court of appeals

in that

case

against

the

State of Pennsylvania,

as they have been in this

case

against

the

State of New-Hampshire;

and the

whole proceeding

was

marked

and

discoloured

with want of

candor

II. ERROR: — The

death

of

Doane,

under the

circumstances

that

appear

on the

record,

and the

law

and

practice

of the

court

did not

abate

the

appeal

Every

intendment

will be

made

to

support

a

judgment

1 Wils. 2. 2 Stra. 1180

Regularly, indeed,
………………………………………………..
Page 78
………………………………………………..
a

suit abates

by the

death

of the

party;

but the

law

is not invariably so,

where the

party dying

is

immaterial

to the

cause

1 Eq. Abr. 1

The

proceeding

in the

present case

was

in rem

and, therefore, the

life

of the

party

was not material

Ayliff

The

court

refused

to

examine

into an

abatement

by

death,

in a

bill of review

for that

purpose,

the

decree

being

made

twenty years before

1 Cha. Ca. 122

Nor is there any

abatement

by

death

of

parties

in a

spiritual court

2 Roll. Rep. 18. 2 Lev. 6

And this being a

court of civil law,

the

principle

equally applies

The

present record states

that the

appellant

and

appellee

appeared

by their

advocates;

and if any

error

in this respect

occurred

in the

court of appeals,

a

court of review

was

established

by

Congress,

who might have

examined

and

corrected

it;

there is no

court

that has now a

jurisdiction

to do so;

though the

error,

if it

existed,

should have been

assigned,

and

relied on,

in the

Circuit Court

for the

district

of

New-Hampshire

But, after all, the

court

may

reject

that part

of the

libel,

which

states

the

administration

to have been

committed,

prior

to the

time

of

pronouncing

the

judgment

of the

Court of Appeals

2 Vin. 404. pl. 4 (bis.) pl. 5. pl. 7. pl. 9. pl. 11

It is not said by the

record

that

Doane

was then

dead,

but merely that

administration

had been

granted

on his

estate,

which is only

evidence

of his

death

On this point

also were

cited Brook

Tit. Judgment 113. Sal. 8. pl. 21.
Salk. 33. pl. 6 Carth. 118

III. ERROR: — The

argument

in

opposition

to this

assignment

of

errors,

has been

anticipated

in

discussing

the

first Error

IV. ERROR: — That the

Circuit Court

gave

damages,

whereas the

judgment

of the

Court of Appeals

was for

restitution,

is not a

valid objection

If the

Court of Appeals

had

attached

the

party,

damages

must have been

paid

before he would have been

discharged: — damages

are the

substance

of the

whole proceeding

Nor is it

exceptionable,

that

damages

are not

expressly prayed for

by the

libel;

since that is

necessarily included

in the

prayer

for

general relief

V. ERROR: — That the

Circuit Court

did not

enquire

into the

merits

of the

original decree,

is surely no

legal objection

There were no

merits

out of the

record,

brought before the

court

If any

facts

had been

offered

and

rejected,

a

bill of exceptions

might have been taken

Nor can this

court

enquire

into the

facts

The

law

gives an

appeal

from the

District

to the

Circuit Court;

but a

writ of error

only lies

from the

Circuit Court

to the

Supreme Court

On a

writ of Error,

no

extrinsic fact

can be

enquired into;

and the

diversity

of the

process proves,

that it was the

intent

of the

Legislature

to

preclude

such an

enquiry
………………………………………………..
Page 79
………………………………………………..
VI. ERROR: — The

damages,

it is

contended,

ought to have been

several

and

distributive,

according

to the

actual receipt

of the

different parties;

and it is

said

that a mere

agent

ought not to be made

responsible,

after he has

bona fide paid over

the

money;

but the

injury

was

done

by the

joint act

of the

original Libellants;

Wentworth’s

paying away

the

money

which he had

received

as

agent,

is

denied

and

traversed

in the

replication;

he must have had

full notice

of the

appeal,

and, therefore,

acted

at his own

peril

If, however, the

judgment

of the

Circuit Court

should be

deemed erroneous

in the

mode

of

decreeing damages,

this

court

will

correct it,

and

give

such a

judgment

as the

court below

ought to have

done

On this

point

the following

authorities

were

cited:

Doug. 577. 1 Dall. Rep. 95

VII. ERROR: — The

answer

to this

assignment of error

was

anticipated

in the

course

of the

preceding answers

VIII. ERROR: — That the

Circuit Court

had

jurisdiction

as a

Court of Admiralty,

has been

decided

in the

case

of

Glass et al v. the sloop Betsey [fn*]

[fn*] Page 73

PATERSON, Justice: — If the

damages

were

improperly given,

jointly,

by the

Circuit Court,

can this

court

rectify

the

error,

or

direct

the

Circuit Court

to do it?

Bradford: — This

Court

cannot do it,

because they are not

possessed

of

evidence

to

shew

in what

proportions

the

damages

ought to be

paid

by the

Respondents

[fn*]
………………………………………………..
Page 79
………………………………………………..
See ant. p. 4

On the

24th

of

Feb. 1795,

the

Judges

delivered their

opinions seriatim

PATERSON, Justice:

This

cause

has been much

obscured

by the

irregularity

of the

pleadings,

which present a medley of

procedure,

partly according to the

common,

and partly according to the

civil, law

We must

endeavour

to

extract

a

state

of the

case

from the

Record,

Documents,

and

Acts,

which have been

exhibited

[Here the Judge delivered the historical narrative of the cause, with which this report is introduced, and then proceeded as follows:]

PATERSON, Justice.

I have been particular in stating the

case,

and giving an

historical narrative

of the

transaction,

in order that the

grounds

of

decision

may be

fully understood

The

pleadings

consist of a heap of

materials,

thrown together in an

irregular manner,

and,

if

examined

by the

strict rules

of

common law,

cannot stand the

test

of

legal criticism

We are, however, to view the

proceedings

as before a

Court of Admiralty,

which is

not governed

by the

rigid principles

of

common law

Order

and

systematic arrangement

are no small beauties

in

juridical proceedings;

and,

whatever may be

said

to the

contrary,

it will,

on

fair investigation,

appear,

that

good pleading

is

founded

on

sound logic,

and

good sense

In the

discussion

of the

cause,

several questions

have been

agitated;

some of which,

involving

constitutional points,

are of

great importance

The

jurisdiction

of the

Commissioners of Appeals

has been

questioned
………………………………………………..
Page 80
………………………………………………..
The

jurisdiction

of the

Court of Appeals

has been

questioned

These

jurisdictions

turning on the

competency

of

Congress,

it has been

questioned,

whether that

body

had

authority

to

institute

such

tribunals

And, lastly, the

jurisdiction

of the

District Court of New Hampshire

has been

questioned

In every step we take, the

point

of

jurisdiction

meets us

I. The

question

first in order,

is, whether the

Commissioners of Appeals

had

jurisdiction,

or, in other words, whether

Congress,

before the

ratification

of the

articles of confederation,

had

authority

to

institute

such a

tribunal,

with

appellate jurisdiction

in

cases

of

prize?

Much has been

said

respecting the

powers

of

Congress

On this

part

of the

subject

the

counsel

on

both sides

displayed great

ingenuity,

and

erudition,

and that too in a

stile

of

eloquence

equal to the

magnitude

of the

question

The

powers

of

Congress

were

revolutionary

in their

nature,

arising out of

events,

adequate to every

national emergency,

and

co-extensive

with the

object

to be

attained

Congress

was the

general,

supreme,

and

controuling council

of the

nation,

the

centre of union,

the

centre of force,

and the

sun

of the

political system

To

determine

what their

powers

were,

we must

enquire

what

powers

they

exercised

Congress

raised armies,

fitted out a navy,

and

prescribed rules

for their

government:

Congress

conducted all

military operations

both by

land

and

sea:

Congress

emitted bills of credit,

received

and

sent

ambassadors,

and

made treaties:

Congress

commissioned privateers

to

cruize against

the

enemy,

directed

what

vessels

should be

liable

to

capture,

and

prescribed rules

for the

distribution

of

prizes

These

high acts

of

sovereignty

were

submitted

to,

acquiesced in,

and

approved of,

by the

people of America

In

Congress

were

vested,

because by

Congress

were

exercised

with the

approbation

of the

people,

the

rights

and

powers

of

war

and

peace

In every

government,

whether it consists of

many states,

or

of a few,

or

whether it be of a

federal

or

consolidated

nature,

there must be a

supreme power

or

will;

the

rights

of

war

and

peace

are

component parts

of this

supremacy,

and

incidental thereto

is the

question

of

prize

The

question

of

prize

grows out of the

nature

of the

thing

If it be

asked,

in whom,

during our

revolution war,

was

lodged,

and by

whom

was

exercised

this

supreme authority?

No one will hesitate

for an answer

It was lodged in,

and exercised by,

Congress;

it was there,

or no where;

the

states individually

did not,

and,

with safety,

could not exercise it

Disastrous

would have been the

issue

of the

contest,

if the

States,

separately,

had

exercised

the

powers of war

For, in such

case,

there would have been as many

supreme
………………………………………………..
Page 81
………………………………………………..
wills

as there were

states,

and as many

wars

as there were

wills

Happily, however, for

America,

this was not the

case;

there was but

one war,

and

one sovereign will

to

conduct it

The danger

being

imminent,

and

common,

it became

necessary

for the

people

or

colonies

to

coalesce

and

act in concert,

in order to

divert,

or

break,

the

violence

of the

gathering storm;

they

accordingly grew

into

union,

and

formed

one great political body,

of which

Congress

was the

directing principle

and

soul

As to

war

and

peace,

and their

necessary incidents,

Congress,

by the

unanimous voice

of the

people,

exercised exclusive jurisdiction,

and stood,

like Jove,

amidst the deities of old,

paramount,

and

supreme

The truth is, that the States, individually, were not known nor
recognized as sovereign, by foreign nations, nor are they now; the States collectively, under Congress, as the connecting point, or head, were acknowledged by foreign powers as sovereign, particularly in that acceptation of the term, which is applicable to all great national concerns, and in the exercise of which other sovereigns would be more immediately interested; such, for instance, as the rights of war and peace, of making treaties, and
sending and receiving ambassadors

Besides, every body must be
amenable to the authority under which he acts

If he accept from Congress a commission to cruize against the enemy, he must be responsible to them for his conduct

If, under colour of such commission, he had violated the law of nations, Congress would have been called upon to make atonement and redress

The persons who exercise the right or authority of commissioning privateers, must, of course, have the right or authority of examining into
the conduct of the officer acting under such commission, and of
confirming or annulling his transactions and deeds

In the present case, the Captain of the M’Clary obtained his commission from Congress; under that commission he cruised on the high seas, and captured the Susanna; and for the legality of that capture he must ultimately be responsible to Congress, or their constituted authority

This results from the nature of the
thing; and, besides, was expressly stipulated on the part of Congress

The authority exercised by Congress in granting commissions to privateers, was approved and ratified by the several colonies or states, because they received and filled up
the commissions and bonds, and returned the latter to Congress — New-Hampshire did so, as well as the rest

Another circumstance, worthy of notice, is the conduct of New-Hampshire, by her Delegate in Congress, in the case of the sloop Active

Acts of Congress,

6th March, 1779. — By this decision,

New-Hampshire

concurred in binding the other states

Did she not also bind herself?

Before the

articles of confederation

were

ratified,

or even

formed,

a

league

of some kind

subsisted
………………………………………………..
Page 82
………………………………………………..
among the

states;

and, whether that

league

originated in

compact,

or a sort of

tacit consent,

resulting from their situation, the exigencies of the times, and the nature of the warfare, or from all combined, is utterly immaterial

The

States,

when in

Congress,

stood on the floor of

equality;

and, until otherwise stipulated, the majority of them must controul

In such a

confederacy,

for a

state

to bind others, and not, in similar cases, be bound herself, is a

solecism

Still, however, it is contended, that

New-Hampshire

was not bound, nor

Congress sovereign

as to war and peace, and their incidents, because they resisted this

supremacy

in the case of the

Susanna

But I am, notwithstanding, of opinion, that

New-Hampshire

was bound, and

Congress supreme,

for the reasons already assigned, and that the continued to be bound, because she continued in the

confederacy

As long as she continued to be one of the

federal states,

it must have been on

equal terms

If the would not submit to the exercise of the act of

sovereignty

contended for by

Congress,

and the other

states,

she should have withdrawn herself from the

confederacy

In the

Resolutions

of

Congress

of the

6th

of

March, 1779,

is

contained

a

course of reasoning,

which, in my

opinion,

is

cogent

and

conclusive

5 Jour. Cong. 86, 87, 88, 89, 90

“The

committee,

consisting of

Mr. Floyd,

Mr. Ellery,

and

Mr. Burke,

to whom was

referred

the

report of the committee

on

appeals

of

January 19th, 1779,

having, in pursuance of the
instructions to them given, examined into the causes of the refusal of the

Judge

of the

Court of Admiralty

for the

State of Pennsylvania,

to carry into execution the decree of the

Court

or

committee of appeals,

report,

“That on a libel in the

court of admiralty

for the

state of Pennsylvania

in the case of the

sleep Active,

the jury found a verdict in the following words, viz.

“one fourth of the nett proceeds of the

sloop Active

and her cargo to the first claimants, three fourths of the nett proceeds of the said

sloop

and her cargo to the libellant and the second claimant, as per agreement between them; which verdict was confirmed by the

judge

of the

court,

and sentence passed thereon

From this sentence or judgment and verdict, an appeal was lodged with the

secretary of Congress,

and referred to the

committee appointed

by

Congress

“to hear and determine finally upon all appeals brought to

Congress,”

from the

Courts of Admiralty

of the

several States:

“That the said

committee,

after solemn argument and full hearing of the parties by their advocates, and taking time to consider thereof, proceeded to the publication of their definitive sentence or decree, thereby reversing the sentence of the

Court of Admiralty,

making a new decree, and ordering process to
………………………………………………..
Page 83
………………………………………………..
issue out of the

Court of Admiralty

for the

state of Pennsylvania

to carry this their decree into execution:

“That the

judge

of the

Court of Admiralty

refused to carry into execution the decree of the said committee on appeals, and has assigned as the reason of his refusal, that an act of the Legislature of the said State has declared, that the finding of a jury shall establish the facts in all trials in the

Courts of Admiralty,

without re-examination or appeal, and that an appeal is permitted only from the decree of the

judge:

“That having examined the said act, which is entitled,

“an act for establishing a

Court of Admiralty,”

passed

at a

session

which

commenced

on the

4th

of

August, 1778,

the

committee

find the

following words,

viz.

“the finding of a

jury

shall establish the

facts,

without

re-examination,

or

appeal,”

and in the seventh section of the same act the following words, viz.

“in all cases of captures an appeal from the decree of the

Judge of Admiralty of this State,

shall be allowed to the

Continental Congress,

or such person or persons as they may from time to time appoint for
hearing and trying

appeals”

“That although

Congress,

by their

resolution

of

November 25th, 1775,

recommended it to the

several legislatures,

to

erect courts

for the purpose of determining concerning captures, and to provide that all trials in such cases be had by a jury, yet it is provided, that in all cases an appeal shall be allowed to

Congress,

or to such person or persons as they shall appoint for the trial of

appeals:”

whereupon,

“Resolved, That

Congress,

or such person or persons as they appoint, to hear and determine appeals from the

courts of Admiralty,

have necessarily the

power

to examine as well into decisions on facts as decisions on the law, and to decree finally thereon, and that no finding of a jury in any

court of Admiralty,

or court for determining the legality of captures on the high seas, can or ought to destroy the right of appeal, and the

re-examination

of the

facts

reserved to

Congress:

“That no act of any one

state

can or ought to destroy the right of appeals to

Congress,

in the sense above declared:

“That

Congress

is by these

United States,

invested with the

supreme sovereign power

of

war

and

peace:

“That the power of executing the

law of nations

is essential to the

sovereign supreme power

of

war

and

peace:

“That the legality of all captures on the high seas must be determined by the

law of nations:

“That the authority ultimately and finally to decide on all matters and questions touching the

law of nations,

does reside and is vested in the

sovereign supreme power

of

war

and

peace:
………………………………………………..
Page 84
………………………………………………..
“That a controul by appeal is necessary, in order to compel a
just and uniform execution of the

law of nations

“That the said controul must extend as well over the decisions of juries, as judges, in courts for determining the legality of captures on the sea; otherwise the juries would be possessed of the ultimate supreme power of executing the

law of nations

in all cases of captures, and might, at any time, exercise the same in such manner, as to prevent a possibility of being controuled; a construction which involves many inconveniences and absurdities, destroys an essential part of the power of war and peace entrusted to

Congress,

and would disable the

Congress of the United States,

from giving satisfaction to

foreign nations

complaining of a violation of neutralities, of treaties, or other
breaches of the

law of nations,

and would enable a jury, in any
one

state,

to involve the

United States

in hostilities; a construction, which for these and many other reasons, is inadmissible:

“That this power of controuling by appeal, the

several admiralty jurisdictions of the States,

has hitherto been exercised by

Congress,

by the medium of a

committee

of their own

members:

“Resolved, That the committee before whom was determined the
appeal from the

court of Admiralty

for the

State of Pennsylvania,

in the case of the

sloop Active,

was

duly

constituted

and

authorised

to determine the same:”

The yeas and nays being taken, it appears that the

States

of

New-Hampshire,

Massachusetts-Bay,

Rhode-Island,

Connecticut,

New-York,

Maryland,

Virginia,

North-Carolina,

South-Carolina,

and

Georgia,

voted unanimously in the affirmative:

the

State of Pennsylvania

unanimously in the negative;

and

Mr. Witherspoon,

who was alone from

New-Jersey,

voted also in the negative

The Congress then voted as follows, viz.

“Resolved, That the said committee had

competent jurisdiction

to make thereon a

final decree,

and therefore their

decree

ought to be carried into execution”

The yeas and nays being taken on this resolution, it appears, that

New-Hampshire,

Massachusetts-Bay,

Rhode-Island,

Connecticut,

New-York,

Maryland,

Virginia,

North-Carolina,

South-Carolina,

and

Georgia,

voted unanimously in the affirmative;

Pennsylvania

unanimously in the negative;

and

Mr. Witherspoon,

who was alone from

New-Jersey,

voted on this occasion in the affirmative

The Congress then resolved as follows, viz.

“Resolved, That the

General Assembly

of the

State of Pennsylvania,

be requested to appoint a

committee,

to confer with a

committee of Congress,

on the

subject

of the

proceedings
………………………………………………..
Page 85
………………………………………………..
relative to the

sloop Active,

and the objections made to the execution of the decree of the

committee on appeals,

to the end that proper measures may be adopted for removing the said obstacles; and that a committee of three be appointed to hold the said conference, with the

committee

of the

General Assembly

of

Pennsylvania:

“The members chosen,

Mr. Paca,

Mr. Burke,

and

Mr. R.H. Lee”

I shall close this head of discourse with observing, that it is with diffidence I have ventured to give an opinion on a questien so novel and intricate, and respecting which, men,
eminent for their talents, their literary attainments, and skill in

jurisprudence,

have been divided in sentiment

The opinion, however, which has been given, is the result of conviction; if wrong, it is the error of the head, and as such will carry its
apology with it

II. Whether, after the

articles of consederation

were

ratified,

the

Court of Appeals

had

jurisdiction

of the

subject matter?

However problematical the opinion, which has been delivered on the preceding point, may be, I apprehend, that little doubt or
difficulty can arise on the present question

By the

9th article of the Consederation,

the

United States,

in Congress assembled,

are vested, among other things, with the

sole

and

exclusive power

of

establishing rules

for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes, taken by

land

or

naval

forces

in the

service

of the

United States,

shall be divided or appropriated; of granting letters of marque and
reprisal in times of peace; appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finally, appeals in all cases of captures

The

Court of Appeals,

in

September 1783,

decided upon the point of

jurisdiction

either directly, or incidentally; for,
after a full hearing, they decreed that the sentences passed by the

Superior

and

Inferior

Courts

of

New-Hampshire

should be reversed and annulled, and the property be restored

This decree being made by a

court,

constitutionally established,

of

competent authority,

and the

highest jurisdiction,

is conclusive and final

It cannot be opened and investigated; for, neither this

court,

nor any other, can, in a collateral way, review the proceedings of a tribunal, which had

jurisdiction

of the

subject-matter

The

Court of Appeals

was competent to the decision; they have adjudicated as well on the

jurisdiction

as the merits of the cause, and we must suppose that they have acted properly

This also is an answer as to irregularities, if any there were, which
may have taken place in the proceedings
………………………………………………..
Page 86
………………………………………………..
before the

Court of Appeals,

or in the mode of removing the cause
before them

This

court

cannot take notice of irregularities in the proceedings, or error in the decision, of the

Court of Appeals

The question is at rest; it ought not to be again disturbed

III. Whether the

District Court of New-Hampshire

had

jurisdiction;

or, in other words, whether the libel exhibited before that court, was the

proper remedy,

or mode of carrying into execution, either specifically, or by way of damages, the decree of the

Court of Appeals?

On this point I entertain no doubts

Recurrence to facts will answer the question

The existence of the

Court of Appeals

terminated with the

old government;

this also was the case with the subordinate

Court of Admiralty

in the

State of New-Hampshire

The property was not restored to the libellants, nor were they compensated in damages; of course the decree in their favour remains unsatisfied

They had no

remedy

at

common law;

they had none in

equity;

the only forum competent to give

redress

is the

District Court of New-Hampshire,

because it has

admiralty jurisdiction

There they applied, and, in my opinion, with great propriety

Judges may die, and courts be at an end; but justice still lives, and, though she may sleep for a while, will eventually awake, and must be satisfied

Having discussed the preliminary questions relative to

jurisdiction,

we shall now consider the proceedings in the

Circuit Court of New-Hampshire

And here the first question is, whether by the death of

Elisha Doane,

before the judgment rendered in the

court of appeals,

that judgment is not avoided?

The death of Doane does not appear on the record of the proceedings before the

court of appeals;

it is in evidence from the certificate of the judge of probates, which is annexed to the record transmitted from the

Circuit Court of New-Hampshire

Many answers have been given to this question; some of which are
cogent as well as plausible

On this subject, it will be sufficient to observe, that admitting the death of Doane, and that it can be taken notice of in this

court,

it is unavailing, because the proceedings in a

court of admiralty

are

in rem

The sentence of a

court of admiralty,

or of appeal in questions of prize,

binds all the world,

as to every thing contained in it,

because

all the world are parties to it

The sentence, so far as it goes, is

conclusive

to

all persons

The most formidable objections have been levelled against the
damages

1. It is said, that the damages ought not to have been given,
because they were not prayed

The answer to this objection
………………………………………………..
Page 87
………………………………………………..
is satisfactory — the prayer is for

general relief,

and therefore

sufficient

2. If any damages ought to be given, yet none ought to have
been awarded against

George Wentworth,

because he was an

agent,

and paid the money over under the decree of the

Court of New Hampshire

If any

Agent

pay over, after notice, he pays wrongfully, and shall not be excused

In this case

George Wentworth

was a party to the suit, he appeared as one of the Libellants, and must be

liable

to all the

legal consequences

resulting from such a situation

As a party, he was before the

court,

and

privy to the appeal,

which was made in due season

The appeal did, from the moment it was made, suspend the execution of the decree, and that whether it was received or not;

[fn*]

especially in cases like the present, where

George Wentworth

was a party to the suit, before the

court,

and had notice of its having been tendered or made

In such a predicament, he ought not to have paid over; but should
have awaited the ultimate decision of the

Court of Appeals

If he paid, it was at his peril; he took the risk upon himself, and in case of undue payment, became

liable

It has been said, that an inhibition should have been issued, and that without it the appeal did not suspend the execution of the decree

The writ of inhibition is a proper and necessary writ, not because it suspends the effect of the decree, for that is already done by the appeal; but because it enables the

court

of

appellate jurisdiction,

in case of disobedience,

to punish the

inferior court

as being in contempt

The appeal has not this effect, because it is the act of the party, and not of the

superior court

A monition, it is said, ought to have been addressed to the Appellees to enforce their appearance before the

Court of appellate jurisdiction

The answer is, that

George Wentworth,

as well as the others, did appear both before the

Court of Commissioners

and the

Court of Appeals

If a defect, and inquirable into by this

court,

it is cured by appearance

In short,

George Wentworth

was a party to the suit, present in

court,

and had notice of the appeal

If, in such a situation, he undertook to distribute the proceeds, it was at his own risk: and in case of reversal, he made himself

liable

I have doubts how far the

court below

could inquire into the

question

of

agency and payment over, especially as the payment is said to have been made, previously to the argument before the

Court of Appeals,

or even the

Court of Commissioners

The decree is for restoration

If the

Court of Appeals

had issued process to carry their definitive sentence into effect, or
………………………………………………..
Page 88
………………………………………………..
had directed the

Maritime Courts of New Hampshire

to have done so, would it, in the instance of

George Wentworth,

have been a

legal justification

to have said, that he had delivered the property, or paid its proceeds, to the captors?

Besides, whatever could have been brought forward, by way of defence, in the

Court of Appeals,

ought there to have been urged and relied upon; and if the party has omitted to do so, he has slipt his opportunity, and is precluded from taking advantage thereof in future

I know, that a distinction is made between

foreign

and

domestic

judgments;

that the latter are conclusive,

whereas the former are liable to investigation

Be it so

But is the principle, upon which this distinction is founded, applicable to
decrees, on questions of prize, in the

highest Court of Admiralty,

which, in such cases, is guided by the

law of Nations,

and not

municipal regulations?

If it is, it must be under very
special circumstances

3. It is objected, that the damages awarded are joint; whereas they ought to have been several

This objection is a found one

But as the facts are spread on the record, it is in the power of the

court

to sever the damages, and so to apportion them as to effectuate substantial justice

The damages should have pursued
and been admeasured by the original decree, which directed, that one moiety of the proceeds should be paid to the owners, and the other to the captors

George Wentworth

received a moiety only; he is

liable

for that, and no more

4. Another objection is, that interest has been calculated from a wrong period, to wit, from the

2d October, 1778;

and therefore the decree of the

Circuit Court

is erroneous

The

Court of Appeals

pronounced their definitive sentence in

September 1783;

by which the judgments of the

inferior

and

superior

Courts of New Hampshire

were reversed, and restoration decreed; they also directed, that the parties should pay their own costs

I am of opinion, that interest should have been computed from the day, on which the definitive sentence of the

Court of Appeals

was pronounced

Of this there can be no doubt with respect to

John Penhallow

and the

owners

Some doubts, however, have been entertained on this point with regard to

George Wentworth

But for the reasons, which have been
assigned, he must be considered in the same situation as the others

Arguments, deducible from the hardship of the case, have been
advanced and insisted upon

It is hard, that

George Wentworth,

who was an

agent,

should be made personally responsible

It is cruel, that

George Wentworth

should be cut down by the collision of conflicting

jurisdictions

But motives of commiseration, from whatever source they flow, must not
………………………………………………..
Page 89
………………………………………………..
mingle in the

administration of justice

Judges,

in the exercise of their

functions,

have frequent occasions to exclaim,

“durum valde durum, sed sic lex est”

To conclude, the sum of — — — £.5,895 14 10

appears, on the

record,

to be the

aggregate value

of the

Susanna,

her

cargo,

&c.

On this

sum

interest

should be

calculated

from

17th September, 1783,

till

24th October, 1794,

which will amount to — — — 3,920 13 4
_____________
Making in the whole — — — — £.9,816 8 2

Equal to

32,721 dollars

and

36 cents

The one moiety whereof, being

16,360 dollars

and

68 cents,

I am of opinion, should be
paid by

John Penhallow

and the

owners,

and the other moiety by

George Wentworth

The costs in the

courts below

should be divided in the same manner

I am also of opinion, that the parties should bear their respective costs, which have arisen on the prosecution of the

appeal

in this

court

[fn*] Page 87

2 Dom. 686

IREDELL, Justice

This case, which is of so much novelty and importance, has been argued at the bar with very great ability on both sides

I have listened with the most respectful attention to every thing
that has been said upon it, and the opinion, which I am now to deliver, is the result of the best consideration which I have been able to bestow on the subject

The order in which it has appeared to me most convenient to arrange the different heads of enquiry is as follows:

1. Whether either of the decrees of

June, 1779,

or

September, 1783,

was originally valid?

2. If either of them was so, whether it was a decree which the

District Court of New Hampshire,

or the

Circuit Court of New Hampshire,

acting specially in this cause for the legal reason alledged, had authority to enforce, either by decreeing a
specific execution, or awarding damages for a non-performance of
it?

3. Whether, if the

District

or

Circuit Court

had such an

authority,

it has been executed properly in this instance, under all the circumstances of the case?

4. Whether, in case the

Libellants

were entitled to a

decree

in their favour, but it shall appear that the decree has been erroneous in respect to the relief given, either in the whole or in part, this

court

can rectify the decree, or order it to be rectified by the

court below,

or must affirm or reverse in the whole?

Under the first head it will be proper previously to consider if either of the decrees was final and conclusive, because if that point should be decided in the affirmative, it will render
………………………………………………..
Page 90
………………………………………………..
unnecessary a decision of many important questions that otherwise
arise in this cause

This previous point, however, cannot be decided on satisfactory principles, without in some measure tracing the origin of the

general powers

of

Congress,

from the time of the earliest exercise of their authority, to the period when definite and express powers were solemnly and formally given to them by the

articles of confederation

I shall therefore make a few preliminary observations on this subject, though I by no means think it material to go into a full detail

Under the

British government,

and before the opposition to the measures of the

Parliament of Great Britain

became necessary,

each

Province in America

composed

(as I conceive)

a

body politic,

and the

several Provinces

were no otherwise

connected with each other, than as being subject to the same

common sovereign

Each

Province

had a

distinct legislature,

a

distinct executive

(subordinate to the king)

a

distinct judiciary

and in particular the claim as to

taxation,

which began the

contest,

extended to a

separate claim

of each

province

to raise

taxes

within itself;

no

power

then existed,

or was

claimed,

for any

joint authority

on behalf of all the

Provinces

to

tax

the

whole

There were some disputes as to

boundaries,

whether certain

lands

were within the

bounds

of one

Province

or another,

but

nobody denied

that where the

boundaries

of any one

Province

could be

ascertained,

all the

permanent inhabitants

within those

boundaries

were

members

of the

body politic,

and

subject

to all the

laws

of it

When

acts

were

passed

by the

Parliament of Great Britain

which were thought

unconstitutional

and

unjust,

and when every hope of

redress

by separate applications appeared
desperate,

then was

conceived

the

noble idea,

which laid the

foundation

of the

present independence

and

happiness

of this

country,

(though independence was not then in contemplation)

of

forming

a

common council

to

consult

for the

common welfare

of the

whole,

so far as an

opposition

to the

measures

of

Great Britain

was

concerned

In order to

compose

this

common council

each

Province

chose for itself,

in its own way,

and by its own

authority,

without any

previous concerted plan of the whole,

deputies

to

attend

at a

general meeting

to be held in this

city

Some

appointed

by their

Assemblies;

others by

Conventions;

some perhaps in

other modes;

but, in whatever way the

appointment

was

made,

it was

notoriously done

with the

hearty consent

and

approbation

of the

great body

of the

people

in each

Province,

and therefore the

appointment

was

unexceptionable

to all those who thought the

opposition just,

and a

union

of the

whole

in the

measures

of

opposition necessary

Each

Province

even

appointed

as many

or

as few

deputies

as it pleased,

at its own discretion,

which was not objected to,

because the

Members of Congress

did not
………………………………………………..
Page 91
………………………………………………..
vote individually,

but the

votes given

in

Congress

were by

Provinces,

as they afterwards were

(subsequent to the declaration
of Independence, and until the present constitution of the
United States was formed)

by

States

The

powers

of

Congress

at first were indeed little more than
advisory;

but, in proportion as the danger increased, their powers were gradually enlarged, either by express grant, or by implication arising from a kind of indefinite authority, suited
to the unknown exigencies that might arise

That an undefined authority is dangerous, and ought to be entrusted as cautiously as possible, every man must admit, and none could take more pains, than

Congress

for a long time did, to get their authority regularly defined by a

ratification

of the

articles of confederation

But that previously thereto they did exercise, with the acquiescence of the

States,

high powers of what I may, perhaps, with propriety for distinction, call

external sovereignty,

is unquestionable

Among numerous instances that
might be given of this,

(and which were recited very minutely at the bar)

were the treaties of France in 1778, which no friend to his country at the time questioned in point of authority, nor has been capable of reflecting upon since without gratitude and
satisfaction

Whether among these powers comprehended within their general authority, was that of instituting courts for the trial of all prize causes, was a great and awful question; a
question that demanded deep consideration, and not perhaps
susceptible of an easy decision

That in point of prudence and
propriety it was a power most sit for

Congress

to exercise, I have no doubt

I think all prize causes whatsoever ought to belong to the

national sovereignty

They are to be determined by
the

law of nations

A

prize court

is, in effect, a

court of all the nations in the world,

because all persons,

in every part of the world,

are concluded by its sentences, in cases clearly coming within its

jurisdiction

Even in the case of

citizen

and

citizen

I do not think it a proper subject for mere

municipal regulation,

because as was observed at the bar,

a citizen

may make a

colourable claim,

which the

court

may not be able to detect, and yet a

foreigner

be fatally injured by it

In case of a bona fide claim, it may appear to be good by the proofs
offered to the

court,

but another person living at a distance may have a superior claim, which he has no opportunity to exhibit

It is true a general monition issues,

and this is considered notice
to all the world,

but though this be the construction of the

law

from the necessity of the case, it would be absurd to infer in fact that

all the world had actual notice,

and therefore no superior claimant to the one before the

court

could possibly exist

The

court,

therefore, can never know with certainty whether

citizens

only are interested in the enquiry

But the words
………………………………………………..
Page 92
………………………………………………..
“citizen and citizen”

in this case are very ill applied to the parties in question, they not having been

citizens of the same State,

the captors having been

citizens of New Hampshire,

and the claimant

a citizen of Massachusetts-Bay

It never was considered that before the actual signature of the

articles of confederation

a citizen of one State

was to any one purpose

a citizen of another

He was to all substantial purposes as a

Foreigner

to their

forensic jurisprudence

If rigorous law had been enforced, perhaps he might have been deemed an

alien,

without an express provision of the

State

to save him

And as an unjust decision upon the

law of nations,

in the case of a

Foreigner

to all the States,

might, if redress had not been given, have ultimately led to a

foreign war,

an unjust decision on the same

law in one State,

to the

prejudice

of

a citizen of another State,

might have ultimately led, if redress had not been given, to a

civil war,

an evil much the more dreadful of the two

I have made these observations merely as to the propriety that
this power should have been

delegated,

and therefore to shew that if it was assumed without adequate authority, it was not an arbitrary and unnatural assumption of a power, that ought exclusively to belong to a single

State;

but by no means with a view to argue, that because it was proper to be given, therefore it was actually given, a position which, as it would lead to dangerous and inadmissible consequences, cannot be the ground of a legitimate argument

Some of the arguments at the bar, if pushed to an extreme, would tend to establish, that Congress had unlimited power to act at their discretion, so far as the purposes of the war might require; and it was even said, that the Jus Belli never was in any one of the States, and therefore it could not be delegated by
any State to Congress

My principles on this subject are totally different from those which were the foundation of this opinion,
and as it is a point of no small importance, and I find on this
occasion, as I have formerly done on others, considerable mistakes

(as I conceive)

by very able men, owing to a
misapprehension of terms, I will endeavour to state my own
principles on the subject with so much clearness, that whether my
opinion be right or wrong, it may at least be understood what the
opinion really is

If Congress, previous to the articles of confederation, possessed any authority, it was an authority, as I have shewn, derived from the people of each Province in the first instance

When the obnoxious acts of Parliament passed, if the people in
each Province had chosen to resist separately, they undoubtedly had equal right to do so, as to join in general measures of resistance with the people of the other Provinces, however unwise and destructive such a policy might, and undoubtedly
………………………………………………..
Page 93
………………………………………………..
would have been

If they had pursued this separate system, and afterwards the people of each Province had resolved that such
Province should be a free and independent State, the State from
that moment would have become possessed of all the powers of
sovereignty internal and external,

(viz. the exclusive right of providing for their own government, and regulating their intercourse with foreign nations)

as completely as any one of the
ancient Kingdoms or Republics of the world, which never yet had formed, or thought of forming, any sort of Federal union whatever

A distinction was taken at the bar between a state and the people of the state

It is a distinction I am not capable of comprehending

By a State forming a Republic

(speaking of it as a moral person)

I do not mean the Legislature of the State, the Executive of the State, or the Judiciary, but all the citizens which compose that State, and
are, if I may so express myself, integral parts of it; all together forming a body politic

The great distinction between
Monarchies and Republics

(at least our Republics)

in general is, that in the former the monarch is considered as the sovereign, and each individual of his nation as subject to him, though in
some countries with many important special limitations:

This, I say, is generally the case, for it has not been so universally

But in a Republic, all the citizens, as such, are equal, and no citizen can rightfully exercise any authority over another, but in virtue of a power constitutionally given by the whole
community, and such authority when exercised, is in effect an act of the whole community which forms such body politic

In such governments, therefore, the sovereignty resides in the great body
of the people, but it resides in them not as so many distinct individuals, but in their politic capacity only

Thus A.B.C. and D. citizens of Pennsylvania, and as such, together with all the citizens of Pennsylvania, share in the sovereignty of the
State

Suppose a State to consist exactly of the number of 100,000 citizens, and it were practicable for all of them to
assemble at one time and in one place, and that 99,999 did actually assemble:

The State would not be in fact assembled

Why?

Because the state in fact is composed of all the citizens, not
of a part only, however large that part may be, and one is wanting

In the same manner as 99l. is not a hundred, because one pound is wanting to complete the full sum

But as such exactness in human affairs cannot take place, as the world would be at an end, or involved in universal massacre and confusion, if entire unanimity from every society was required; as the assembling in
large numbers, if practicable as to the actual meeting of all the citizens, or even a considerable part of them, could be productive of no rational result, because there could be no
general debate, no consultation of the whole, nor
………………………………………………..
Page 94
………………………………………………..
of consequence a determination grounded on reason and reflexion,
and a deliberate view of all the circumstances necessary to be
taken into consideration, mankind have long practised (except
where special exceptions have been solemnly adopted) upon the
principle, that the majority shall bind the whole, and in large
countries, at least, that representatives shall be chosen to act
on the part of the whole. But when they do so, they decide for
the whole, and not for themselves only. Thus, when the
legislature of any state passes a bill by a majority, competent
to bind the whole, it is an act of the whole Assembly, not of the
majority merely. So when this court gives a judgment by the
opinion of a majority, it is the judgment, in a legal sense, of
the whole court. So I conceive, when any law is passed in any
state, in pursuance of constitutional authority, it is a law of
the whole state acting in its legislative capacity; as are, also,
executive and judiciary acts constitutionally authorised, acts of
the whole state in its executive or judiciary capacity, and not
the personal acts alone of the individuals, composing those
branches of government. The same principles apply as to
legislative, executive, or judicial acts of the United States,
which are acts of the people of the United States, in those
respective capacities, as the former are of the people of a
single state. These principles have long been familiar in regard
to the exercise of a constitutional power as to treaties. These
are deemed the treaties of the two nations, not of the persons
only, whole authority was actually employed in their formation.
There is not one principle that I can imagine which gives such an
effect as to treaties, that has not such an operation on any
other legitimate act of government, all powers being equally
derived from the same fountain, all held equally in trust, and
all, when rightfully exercised, equally binding upon those from
whom the authority was derived.

I conclude, therefore, that every particle of authority which
originally resided either in Congress, or in any branch of the
state governments, was derived from the people who were permanent
inhabitants of each province in the first instance, and
afterwards became citizens of each state; that this authority was
conveyed by each body politic separately, and not by all the
people in the several provinces, or states, jointly, and of
course, that no authority could be conveyed to the whole, but
that which previously was possessed by the several parts; that
the distinction between a state and the people of a state has
in this respect no foundation, each expression in substance
meaning the same thing; consequently, that one ground of argument
at the bar, tending to shew the superior sovereignty of Congress,
in the instance in question, was not tenable, and therefore that
upon that ground the exercise of the authority in question can
not be supported.
Page 95

I have already, however, stated my opinion, that from the
nature of our political situation, it was highly reasonable and
proper that Congress should be possessed of such an authority,
and this is a consideration of no small weight to induce an
inference, that they actually possessed it when their powers were
so indifinite, and when it seems to have been the sense of all
the states, that Congress should possess all the incidents to
external sovereignty, or, in other words, the power of war and
peace, so far as other nations were concerned, though the states
in some particulars differed, as to the construction of the
general powers given for that purpose. Two principles appear to
me to be clear. 1. The authority was not possessed by Congress,
unless given by all the states. 2. If once given, no state could,
by any act of its own, disavow and recall the authority
previously given, without withdrawing from the confederation. In
the case of the Active, ten states out of twelve recognized the
authority, New-Hampshire voting in support of it. This was in
1779, long after the act of New-Hampshire was passed, which has
given occasion to the controversy in this cause, and in the same
year when the second act of New-Hampshire was passed, which
allowed an appeal to Congress in cases (as the act expressed it)
“wherein any subject or “subjects of any foreign nation or state,
in amity with this “and the United States of America, should
in due form of law, “claim the whole, or any part of the vessel
and cargo in dispute.” The resolution of Congress was dated the
6th March, 1779; the act of New-Hampshire in November
following. The vote of the delegates of New-Hampshire, in the
case of the Active, would not, indeed, be equivalent to a clear
grant of the power, but it is a respectable support of the
construction contended for by the defendants in error. It has
been properly observed, that a court cannot by its own decision,
give itself jurisdiction where it had none before; but if courts
are so constituted that one is necessarily superior to another,
the decision of the superior must, to be sure, prevail. This,
perhaps, is not conclusive as to the court of commissioners,
because it cannot be decided whether it was in fact the superior
court in respect to New-Hampshire, without deciding whether it
was constitutionally so in virtue of power from all the states.
This point it would be now necessary for this court to decide, if
it were not for the decision of the court of appeals in 1783, a
court of acknowledged prize jurisdiction, established in virtue
of express authority from all the states (New-Hampshire
included) and made a court in the last resort as to all prize
causes, or in other words (as expressed in the article of
confederation itself) in all cases of captures. And the
decision of this court on the subject of the two contending
jurisdictions, I
Page 96
consider to be final and conclusive, for the following reasons.

1. At the time the decision was given, it was the only court
of final appellate jurisdiction, as to cases of captures, in the
United States. It seems therefore to follow necessarily, that
upon all questions of capture their decision should be final
and conclusive, as much as the decision of this Court upon a writ
of error from the Circuit Court, or any other branch of its
jurisdiction, would be so.

2. To the suggestion at the bar, that the Court of appeals
could have no retrospect, several answers, I conceive, may be
given.

1. It is taking for granted the very point in dispute, that
this decision was retrospective. If Congress possessed this
authority before, and the articles of Confederation amounted only
to a solemn confirmation of it, it was in no manner
retrospective. It was in effect a continuance of the same court
acting under an express, instead (as before) of acting under an
implied authority, and allowing the full benefit of an appeal
regularly prayed, and rightfully enforced by the superior
tribunal, after an unwarranted dissallowance by the inferior.

2. Whether the article in the confederation giving authority
to this court as a superior tribunal in all cases of capture,
did authorise them to receive appeals in cases circumstanced like
this, was a point for them to decide; since it was a question
arising in a case of capture, of all which cases (without any
exception) they were constituted judges in the last resort. The
merits of their decision we surely cannot now enquire into, but
their authority to decide, not being limited, there was no
method, by applying to any other court, of correcting any error
they might commit, if in reality they should have committed any.

3. Whether their decision was right or wrong, yet nobody can
deny that the jurisdiction of the commissioners was at least
doubtful; of course the Court of Appeals found a case then
depending in the former court of the commissioners, after a
preliminary, but not a final, determination, for such I consider
it to have been. It was therefore a cause then sub judice, and
it being a case of capture and a question of appeal, no other
court on earth, but that, in my opinion, could decide it. And no
objection can be urged in this case against the authority of such
a decision, or the propriety of its being final, but such as may
be urged against all courts in the last resort, with respect to
the merits of whose decisions there may be eternal disputes, but
such disputes would be productive of eternal war, if some court
had not authority to settle such questions for ever.

I, therefore, have not the smallest doubt, that the decision
of
Page 97
the court in 1783, was final and conclusive as to the parties to
the decree. And this point appears to me so plain, that I think
it useless to take notice of any authorities quoted on either
fide, in relation to it, none of them, I conceive, in any manner
contravening the conclusive quality of such decrees upon the
principles I have stated, and some of them clearly, and beyond
all question, supporting it.

The decree of September, 1783, being by me thus deemed final
and conclusive, the next enquiry is,

Whether it was a decree which the District Court of
New-Hampshire, or the Circuit Court of New-Hampshire acting
specially in this cause for the legal reason alleged, had
authority to enforce, either by decreeing a specific execution,
or awarding damages for a non-performance of it?

Upon this branch of the subject a few words will be
sufficient. The District Court, by the act of Congress, hath the
whole original jurisdiction in admiralty and maritime causes.
Whatever doubt might otherwise have arisen, the decision of this
court upon the writ of error from Maryland, last February,
fully established, that this includes a prize jurisdiction, as
well as other cases of a maritime nature. I was not present when
the decision was given; had I been so, I probably should have
concurred in it, because the words, “all civil causes of
admiralty and maritime jurisdiction,” evidently include all
maritime causes, whether peculiarly of admiralty jurisdiction or
not; because a question of prize on the high seas is clearly of
a maritime nature, and therefore the English distinction
between an instance (which is strictly an admiralty) court, and
a prize court, does not apply to this case; more especially as
the District Court having as large authority given to it in all
maritime causes of a civil nature, as the constitution itself
prescribes. If that court does not possess such an authority, no
court can be instituted with powers adequate to that purpose, so
that under the present constitution, there could be no prize
jurisdiction at all; and the very tenure of all the judges (which
is for good behaviour) naturally excludes the idea of a temporary
and occasional establishment of any courts whatsoever. I mention
these reasons, not because the authority of the case receives any
additional sanction from my opinion, but because I was desirous
to take so favourable an opportunity of expressing my concurrence
in a decision of so much importance.[fn*]

It was clearly shewn at the bar, that a Court of Admiralty in
one nation, can carry into effect the determination of the Court
of Admiralty of another. A Court of Prize being equally grounded
on the law of nations as a Court of Admiralty, and proceeding
also, as that does, on the principles of the civil law,
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must, in common reason, have the same authority. I think it was
rightly observe