Citizenship and the Common Law

 

Citizen. 4177 polites (pol-ee'-tace); from 4172; a townsman: -- 4172 polis (pol'-is); probably from the same as 4171, or perhaps from 4183; a town (properly, with walls, of greater or less size): KJV-- city.

 

Luke 15:15. And he went and joined himself to a citizen of that country; and he sent him into his fields to feed swine.

Luke 19:14. But his citizens hated him, and sent a message after him, saying, We will not have this man to reign over us.

Acts 21:39. But Paul said, I am a man which am a Jew of Tarsus, a city in Cilicia, a citizen of no mean city: and, I beseech thee, suffer me to speak unto the people.

 

Under Roman citizenship, there was no allegiance required. Under U.S. citizenship, allegiance is a requirement. see Black's Law Dictionary (3rd Edition) under Citizen.

 

Baal

 

"1167. BAAL. there are several principal meanings. The main idea is 'owner.' Hence, master, lord, possessor, husband, citizen, burgess, inhabitant, and Baal (a Canaanite god). The word can refer to a partner or ally (Gen 14:13). It is used as an idiom to indicate mastery (Jer 37:13) or ownership (Gen 37:13; Prov 22:24; 23:2). Baal, who was also called Haddu or Hadad allegedly gave the sweet rain and revived vegetation each spring. Droughts indicated that he was either dead or temporarily captive. However, when he came back, the fields, flocks, and families flourished. He was also considered to be a war god who consorted with Anat (Astarte). The people were taught to act out a magical ritual of sacred marriage in order to insure the fertility of the earth. Cultic objects on the scene were exaggerated sexual models. The worship of Baal (the sun god) included sexual orgies, with homosexuality (1 Kgs 14:24) and even child sacrifice (Jer 19:5). Because of the pervasive influence of the powerful storm and fertility god, Baal, the names of many people and places contain this word. Baal-zebub (2 Kgs 1:2), 'lord of flies,' was a parody on his name. The sons of Israel fell into the sin of this local cult (Jg 2:1ff.; 6:25). Baal worship became the official state religion of the northern kingdom (1 Kgs 16:31). However Elijah and Elisha demonstrated that fire, rain, food, children, and resurrection were traceable to God, not Baal. The Book of Hosea describes the tantalizing, titillating character of Baal worship. Unfortunately, it even influenced the Southern Kingdom (2 Kgs 11:18; 21:2ff.), eventually resulted in Israel's exile (2 Kgs 17:16)." Zodhiates, Complete Word Study, Old Testament (1994), p. 2306.

 

"A member of a State may be either a citizen, occupying the status entitled 'citizenship,' or he may be a resident alien, occupying the status designated by the title 'residence.' A citizen is a permanent member of the State, owes it allegiance [*"No man can serve two masters.…"] at all times, and is entitled to its permanent protection whether he is at home or abroad. The status of his membership ('citizenship') is distinguished by its permanent and personal nature and may be determined by the place of his birth (jus soli), by the nationality of his parents (jus sanguinis), by his election, or by some form of naturalization [*"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside."--Fourteenth Amendment, section one.]." Smith, Handbook of Elementary Law (1939), pp. 12-13. [Emphasis and insertions added.]

 

"BAALAH. (Heb.)--lady; mistress; possessor; guardian; sorceress; citizenship; a citizen.

"A border town of Judah. Kiriath-jearim is another name for this city (Josh. 15:9).

"Meta. An innate consciousness of authority and ownership in man, a consciousness that pertains to the feminine or affectional nature, the soul (mistress, possessor), and is expressed in the psychic and material to the point of idolatry." Metaphysical Bible Dictionary (1955), p. 87.

 

"BAALATH. (Heb.)--citizens; subjects; possessions; belonging to Baal; mistresses.

"a. A town of the tribe of Dan (Josh. 19:44). b. A town that Solomon re- [*88] built after he married the daughter of the king of Egypt (I Kings 9:18). This latter was perhaps the same place as the previously named town of the tribe of Dan.

"Meta. Baal means lord, master, possessor, and pertains to the attributing of power and authority to the outer world of phenomena instead of recognizing Spirit as the one true source of all existence and of all prosperity and supply. Baalath represents the belief of the spiritually awakened soul in man that his possessions, his privileges, and the good that he enjoys have their source in the outer, the material." Metaphysical Bible Dictionary (1955), pp. 87-88.

 

"PAGAN. heathen. XIV--L. paganus rustic, peasant, citizen, civilian; eccl.) (Christian and Jewish, f. pagus (rural) district, the country, orig. landmark fixed in the earth, [*641] f. *pag-, p g-, as in pangere fix, parallel to *pak- (see PACT); see -AN. The sense 'heathen' (Tertullian) of paganus derived from that of 'civilian' (Tacitus), the Christians calling themselves enrolled soldiers of Christ (members of his militant church) and regarding non-Christians as not of the army so enrolled. Represented earlier (XIII-XVI) by †paien, †payen--OF. paien (mod. paien)=Pr. paien, pagan, Sp., It. pagano; cf. PAYNIM. Hence paganISM. XV." Oxford Dictionary of English Etymology (1966), pp. 640-641.

 

"You have heard some discussion as to the meaning of this term, citizenship of the United States. It has a plain, simple, everyday meaning; and that meaning you may safely take without a definition. It is that unequivocal relation between every American and his country which binds him to allegiance and pledges to him protection." United States v. Darnaud (1855), 25 F.Cas.No. 14,918, p.763.

"A citizen owes his government a duty to attend its courts and give his testimony whenever he is properly summoned." Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375.

"It is not necessary for a person to be a citizen of the United States in order to become a Citizen of a state." Crosse v. Board of Supervisors of Elections of Baltimore City (1966), 243 Md. 555, 221 A.2d 431.

 

Status

 

"Status. Standing, state or condition. Reynolds v. Pennsylvania Oil Co., 150 Cal. 629, 89 P. 610, 612. The legal relation of individual to rest of the community. Duryea v. Duryea, 46 Idaho 512, 269 P. 987, 988. The rights, duties, capacities and incapacities which determine a person to a given class. Campb. Austin 137. A legal personal relationship, not temporary in its nature nor terminable at the mere will of the parties, with which third persons and the state are concerned. Holzer v. Deutsche Reichsbahn Gesellschaft, 159 Misc. 830, 290 N.Y.S. 181, 191. While the term implies relation it is not a mere relation. De La Montanya v. De La Montanya, 112 Cal. 101, 115, 44 P. 345, 348, 32 L.R.A. 82, 53 Am.St.Rep. 165.

It also means estate, because it signifies the condition or circumstances in which one stands with regard to his property. In the Year Books, it was used in this sense; 2 Poll. & Maitl. Hist. E.L. 11." Black's Law Dictionary, 4th Ed. (1968)

 

"Status. The status of a person is his legal position or condition. The term is chiefly applied to persons under a disability, or persons who have some peculiar condition which prevents the general law from applying to them in the same way as it does to ordinary persons. Sweet. See Barney v. Tourtellotte, 138 Mass. 108; De La Montanya v De La Montanya, 112 C. 115, 44 Pac. 345, 32 L.R.A. 82, 53 Am.St.Rep. 165; Dunham v. Dunham, 57 Ill.App. 497.

 

Status. (Lat.). The condition of persons. It also means estate, because it signifies the condition or circumstances in which the owner stands with regard to his property. 2 Bouvier, Inst. n. 1689. Bouvier's Law Dictionary, Fourteenth Ed.

 

There are certain rights and duties, with certain capacities and incapacities to take rights and incur duties, by which persons, as subjects of law, are variously determined to certain classes. The rights, duties, capacities, or incapacities which determine a given person to any of these classes, constitute a condition or status with which the person is invested. Aust. Jur. § 973. (emphasis added). Black's Law Dictionary, 2nd Ed. (1910)

"In order, therefore, in any case, to perceive the application of a rule of law, it must be considered whether the person or the individual, or both, is the possessor of the right. For it may be asserted as absolutely true, that the rights of the man are not recognized by that law which is termed the municipal. It recognizes them only as they grow out of, or are consistent with, his character as a civil person. In other words, this is the distinction between the Common Law and the law of nature. Nor is this a fanciful distinction, inasmuch as the rudest of tribes, as well as the most civilized nations, have always distinguished between the rights and duties of their members, and of those who were not members of the body politic." Theory of the Common Law, James M. Walker, (Boston: Little, Brown and Company, 1852), p. 19. [Thus the Common Law makes a distinction between classes of persons and Citizens.]

Domicile and Residence

 

"A citizen of the United States who has constitutionally renounced his allegiance does not become a subject of a foreign power as long has he remains domiciled within the United States." Talbot .v Jansen (1795), 3 Dall. 133, 1 L.Ed. 540.

 

Citizenship and domicile are synonymous for determining diversity of jurisdiction. Ellis v. Southeast Construction Co., (C.A. 8, 1958) 260 F.2d 280, 281; Marks v. Marks (C.C.D.Tenn 1896) 75 F. 321, 324. Diversity of citizenship must exist both at the time of filing the original complaint and at the time of filing the petition to remove. Gibson v. Bruce (1883), 108 U.S. 561, 2 S.Ct. 873, 27 L.Ed. 825. Any person, sui juris, may make a bona fide change of domicile at any time. Stine v. Moore, (C.A. 5, 1954) 213 F.2d 446, 448. However, one may have only one domicile at a time and once established it persists until a new one is acquired. Desmare v. United States (1877) 93 U.S. 605, 610, 23 L.Ed. 959. Once acquired it is presumed to continue until it is shown to have been changed. Mitchell v. United States (1874) 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584

[ 14,15 ] To acquire a domicile of choice, the law requires the physical presence of a person at the place of domicile claimed, coupled with the intention of making it his present home. When these two facts occur, the change of domicile is instantaneous. Intention to live permanently at the claimed domicile is not required. If a person capable of making a choice honestly regards a place as his present home, the motive prompting him is immaterial. Spurgeon v. Mission State Bank (1945) 151 F.2d 702, 705-706, cert. den. (1946) 327 U.S. 782, 66 S.Ct. 682, 90 L.Ed. 1009; Cooper v. Galbraith, (C.C.D.Pa. 1819) Fed.Cas. No. 3,193. Unanue v. Caribbean Canneries, Inc, et. al. (1971) 323 F. Supp. 63, 67-68.

 

"The responsibilities of state citizenship arise out of the relationship to the state which domicil therein creates." Milliken v. Meyer ( ), 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357.

 

"…though it is difficult to establish a general rule, as to what makes citizenship, yet that the citizenship of a particular state may be changed by a citizen of the United States, without going through the forms and solemnities required in the case of an alien; that, on the principle of the constitution, a citizen of the United States is to be considered more particularly as a citizen of that state in which he has his house and family, is a permanent inhabitant, and is, in short, domiciliated;…" Bingham v. Cabot (1798), 3 Dallas 382.

 

"To be established (a change of domicile) it must be proved. 12 Moore, P.C., supra. Among the circumstances usually relied upon to establish the animus manendi are: declarations of the party; the exercise of political rights; the payment of personal taxes; a house of residence, and a place of business. Phillim., 100; Whart., sec. 62, and post." Warren Mitchell v. United States (1875) 88 U.S. (Wall. 350) 21 L.Ed. 584, 588.

 

"There are three concepts of especial importance in connection with the presence of a person within a state: residence, domicile, and citizenship. Residence implies something more than mere transient visitation. It involves a more or less fixed abode but ignores the intent of continuance or political affiliation. An alien may have residence without domicile or citizenship. One may have more than one residence at a time. Domicile implies civil status. Many civil rights depend upon it-e.g. the course of descent of personal property is governed by the law of the person's domicile at death. Every natural person has a domicile, but only one. His domicile of origin persists until a new one is acquired by choice. A domicile of choice is acquired by the concurrence of physical presence (usually residence) and an intent to make the place his more or less permanent home. No particular length of previous residence is essential, nor need one affirmatively intend always to remain there. But there must be no present intent of going to live elsewhere…. Citizenship implies political status. It may or may not confer suffrage or any other particular incident but it does imply incorporation into the body politic. The requirements vary from state to state. Often they involve much the same qualifications as does domicile. But the two should not be confused." THE NATIONAL LAW LIBRARY, published by Collier, Volume III p. 358 footnote.

 

he who is incorporated into the body of the state, by permanent residence therein, so as to become a member of it, must be a citizen of that state, although born in another. Or, to use the phrase more familiar in the books, a citizen of the United States must be a citizen of that state, in which his domicil is placed. What is permanent residence? This question must, in some cases, depend on a great variety of considerations; and as in all mixed and doubtful questions of fact, each circumstance must be allowed its due weight. Birth alone, undoubtedly, gives a man permanent rights as a citizen; and although those rights, so far as respects suits in the courts of the United States, may be changed by a change of residence, yet, in doubtful cases, birth will always have great influence." Prentiss v. Barton's Executors (1819), 1 Brock 390, 391.

 

"By the general laws of the civilized world, the domicil of the parents at the time of birth, or what is termed the domicil of origin, constitutes the domicil of an infant, and continues, until abandoned, or until the acquisition of a new domicil, in a different place. As it gives political rights, which are not lost by a mere change of domicil, it is recovered by any manifestation of a disposition to resume the native character; perhaps, by a surrender of a new domicil. In fact, it may be considered rather as suspended, than annihilated." Prentiss v. Barton's Executors (1819), 1 Brock 393.

Common Law and Citizenship

 

"Statutes which would deprive a citizen of the rights of person or property without a regular trial, according to the course and usage of common law, would not be the law of the land." Hoke v. Henderson (1833), 4 Dev. 1, 15 N.C. 15, 25 Am.Dec. 677. See also Aycock v. Martin ( ), 37 Ga. 124, 92 Am.D. 56.

 

"[N]othing has been held more fundamental to the supremacy of law than the right of every Citizen to bring the action of government officials to trial in the ordinary courts of the common law. That government officials, on the contrary, should themselves assume to perform the functions of a law court and determine the rights of individuals, as is the case under a system of administrative justice [14th Amendment summary proceedings], has been traditionally felt to be inconsistent with the supremacy of law …In short, every Citizen is entitled, first, to have his rights adjudicated in a regular common law court, and, secondly, to call into question in such a court the legality of any act done by an administrative official." J. Dickinson, Administrative Justice and Supremacy of Law (1927), p. 33, p. 35.

 

"Common right" is right which pertains to Citizen by the common law." Million v. Metropolitan Casualty Insurance Co., 172 N.E. 569.

 

of common right--that is, by the common law, because the common law is the best and most common birthright that the subject hath for the safeguard and defense not only of his goods, lands, and revenues, but of his wife and children. * * * This common law of England is sometimes called 'right', sometimes `common right', and sometimes `communis justitia'." Spring Valley Waterworks v. Schottler, 62 C. 69.

 

Roman Law

 

"Civil law: (a) the Roman law, especially the part that applied to Roman citizenship; (b) the body of law having to do with private rights: it developed from Roman law.

 

"Fictio in the old Roman law was properly a term of pleading and signified a false averment on the part of the plaintiff which the defendant was not allowed to traverse; as that the plaintiff was a Roman citizen, whien in truth he was a foreigner. The object of the fiction was to give the court jurisdiction; Maine, Anc. Law 25.

 

"GOVERNMENTAL AGENTS. Those performing duties of a public character for benefit of all citizens of community. The term includes firemen and policemen. Miller v. City of Albany, 158 Misc. 720, 287 N.Y.S. 889, 891." Black's Law Dictionary (4th ed. 1957 & 1968), p. 825.

 

"Such towns were often more efficient militarily than castles, since the citizens were generally given the right and duty to bear arms. The peasants for centuries had had no such military right or duty (although they could be called up under special circumstances), and knights had had to be paid to perform military service. Citizens, to be sure, had to be supplied with arms, but they were subject to universal military service in defense of the city. In many places where the popular militia of the tribes and villages of the Germanic age had disappeared and the feudal levies wer precarious, the twelfth century feudal monarchs, dukes, counts, and other great lords relied heavily upon urban military obligation for defense of their territories. Thus the English Assize of Arms of 1181 provided that 'all townsmen and all communes of free men' were to bear certain kins of arms--thereby making all citizens soldiers and all cities military units." Berman, War and Revolution (1982), p. 360. [The people in the cities were armed, and later police departments were created and revenue methods developed to support them to disarm the people.]

 

The citizens or inhabitants of a city, not the common council or local legislature, constitute the 'corporation' of the city. 1 Dillon on Municipal Corporations, 3d ed. sec. 40. The corporation as such has no human wants to be supplied. It cannot eat or drink or wear clothing or live in houses. It must as toa ll its property be the representative or trustee of somebody or of some aggregation of persons, and it must, therefore, hold its property for the same use, call that use either public or private. It is ause for the benefit of individuals. A municipal corporation is the trustee of the inhabitants of that corporation, and it holds all its property in a general and substantial, although not in a strictly technical, sense in trust for them. They are the people of the State inhabiting that particular subdivision of its territory, a fluctuating class constantly passing out of the scope of the trust by removal and death and as constantly renewed by fresh accretions of population. The property which a municipal corporation holds is for their use and is held for their benefit. Any of the property held by a city does not belong to the mayor, or to any or all of the members of the common council, nor to the common people as individual property. [Property is res communis.] If any of those functionaries should appropriate the property or its avails to his own use, he would be guilty of embezzlement, and if one of the people not clothed with official station should do the like, he would be guilty of larceny. So we see [*403] that whatever property a municipal corporation holds, it holds it in trust for its inhabitants, in other words, for the public, and the only difference in the trust existing in the case of a public highway or a public square, and other cases, is that in the one case the property can not be taken in execution against the city, while in other cases it may be. The right of the city is less absolute in the one case than in the other, but it owns all the property in the same capacity and character as a corporation, and in trust for the inhabitants thereof. Views similar to these have been heretofore substantially expressed by the late Judge Denio, in speaking for the Court of Appeals of New York in Darlington v. Mayor, 31 N.Y. 164.

"From these considerations we are of opinion that there is no difference in the character of the title by which a municipal corporation holds these two classes of property, but there is simply a difference in the power which such corporation can exercise over its property in the two cases. That difference arises from the peculiar nature of the use of the property, which in the one case requires it to be inalienable [out of commerce] and not liable for the debts of the city, while in the other case it is open both to alienation and to sale under execution. In each case the character or capacity in which the city in fact holds the title is the same." Werlein v. New Orleans (1900), 177 U.S. 390, 401-403.

 

"Civil rights…are not connected with the organization and administration of government. Winnet v. Adams, 71 Neb. 817, 99 N. W. 681. Or as otherwise defined, civil rights are appertaining to a person in virtue of his citizenship in a state or community. Rights capable of being enforced or redressed in a civil action. Also a term applied to certain rights secured to citizens of the United States by the 13th and 14th Amendments to the Constitution and various acts of Congress made in pursuance thereof." State of Iowa v. Railroad Co., C. C. Iowa, 37 F. 498, 3 L.R.A. 554; State v. Powers, 51 N.J.L. 432, 17 A. 969.

 

"Semel civis semper civis--Once a citizen always a citizen." Bouvier's Law Dictionary (1914), "Maxim," p. 2162.

 

"When the Constitution was adopted the people of the United States were the citizens of the several States for whom and for whose posterity the [federal] government was established." Perkins v. Elg (1938), 99 F.2d 410.

 

"The term 'property' as used in the Taking Clause [in the Fifth Article in Amendment] includes the entire 'group of rights inhering in the citizen's [ownership].' United States v. General Motors Corp. (1945), 323 U.S. 373. It is not used in the 'vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law. [Instead, it]…denote[s] the group of rights inhering in the citizen's relation to the physical thing, as the right to possess, use and dispose of it.…The constitutional provision is addressed to every sort of interest the citizen may possess." Donahue, Kauper, and Martin, Property: An Introduction to the Concept and the Institution, p. 267, fn. 1.

 

3" The line of distinction between the privileges and immunities of citizens of the United States and those of citizens of the several States must be traced along the boundary of their respective spheres of action, and the two classes must be as different in their nature as are the functions of their respective governments. A citizen of the United States, as such, has the right to participate in foreign and inter-state commerce, to have the benefit of the postal laws, to make use in common with others of the navigable waters of the United States, and to pass from State to State, and into foreign countries, because over all these subjects the jurisdiction of the United States extends, and they are covered by its laws. Story on Const. 4th ed. § 1937. These, therefore, are among the privileges of citizens of the United States. So every citizen may petition the federal authorities which are set over him, in respect to any matter of public concern; ….

Whatever one may claim as of right under the Constitution and laws of the United States by virtue of his citizenship, is a privilege of a citizenship of the United States.

Cooley's Constitutional Limitations (1883) 5th Ed. at page 491. Protection by "The Law of The Land." (emphasis added.)

 

"An alien is not eligible to an office in this State." Walther v. Rabolt (1866), 30 C. 185, 26 F. 849.

 

"`All political power is inherent in the people,' (Art. I, §2, of the Constitution,) and those who are not of the people can have no share in it. The People are such as are born upon the soil, by whom and for whom in the first place the government was ordained, and such persons of foreign birth as may elect to assume the obligations of a Citizen by complying with the laws of naturalization as enacted by Congress. If they desire to secure political rights they must become Citizens in the mode prescribed. Until then, they can neither vote nor hold office; they can neither choose nor be chosen, for that is the exercise of political power, and, they are not of the People, who alone may exercise this. In the nature of things this must be so, and cannot be otherwise, except by force of some positive law. None such exists. By section 17 of Article I of the Constitution, foreigners who were then or might thereafter become bona fide residents of the State, are vested with the civil rights of native born Citizens as to the possession, enjoyment and inheritance of property; but neither there nor elsewhere are they clothed with a share of the political power which is inherent in the people, or allowed upon any terms other than those of allegiance to participate in the management of public affairs.

"I concur in the judgment." Walther v. Rabolt (1866), 30 C. 185, 26 F. 849. (per J. Sanderson, concurring opinion.) See also Mason's California Constitution (1952 Ed.), p. 15.

 

"The source of the court's adjudicatory power, in the constitutional sense, more properly depends upon the defendant's relation to the forum, as citizen or resident, or upon his conduct or activities in or affecting persons or property within the forum. This is the real issue and the [court]…should…determine whether facts exist that constitutionally support the court's asserted jurisdiction." Gorfinkel, Special Appearance, 5 U. San. Fran. L. Rev. 25 (1970).

 

"The due process requires that relationship between a non-resident defendant and the forum state be such that it is fair and reasonable to require that defendant submit to suit in the state [of the forum]." 16 Cal.Jur.3d 143, §70, citing Corneliuson v. Chaney, 127 Cal.Rptr. 352, 545 P.2d 264; Ruger v. Superior Court of Sacramento County, 118 C.A.3d 427, 173 Cal.Rptr. 302.

 

"'…restricted by the territorial limits of the state in which it is established [that is, by the law of its creation]. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power, and be resisted as mere abuse.' And he goes on to state, at page 333, that for a state court to sustain '…the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance.'" Justice Field, speaking for the majority in Pennoyer v. Neff (1877), 95 U.S. 714, 720.

 

"It was well settled before the Act of 1875 that when the citizenship necessary for the jurisdiction of the courts of the United States appeared on the face of the record, evidence to contradict the record was not admissible, except under a plea in abatement in the nature of a plea to the jurisdiction, and that a plea to the merits was a waiver of such plea to the jurisdiction. Farmington v. Pillsbury [ante, 114], and cases there cited. In its general scope this rule has not been altered by the Act of 1875,…we held in Williams v. Nottawa, 104 U.S. 209, 211, [Bk. 26, L.Ed. 719, 720] that the statute changed the rule so far as to allow the court at any time without plea and without motion, to stop all further proceedings and dismiss the suit the moment a fraud on its jurisdiction was discovered.

"Neither party has the right, however, without pleading at the proper time and in the proper way, to introduce evidence, the only purpose of which is to make out a case for dismissal. The parties cannot call on the court to go behind the averments of citizenship in the record, except by a plea to the jurisdiction or some other appropriate form of proceeding. The case is not to be tried by the parties as if there was a plea to the jurisdiction, when no such pleas has been filed. The evidence must be directed to the issues, and it is only when facts material to the issues show there is no jurisdiction that the court can dismiss the case upon the motion of either party.

"If in the course of a trial it appears by evidence, which is admissible under the pleadings and pertinent to the issues joined, that the suit does not really and substantially involve a dispute of which the court has cognizance, or that the parties have been improperly or collusively made or joined for the purpose of creating a cognizable case, the court may stop all proceedings and dismiss the suit.

"Beyond this, no doubt, if, from any source, the court is led to suspect that its jurisdiction has been imposed upon by the collusion of the parties or in any other way, it may at once of its own motion cause the necessary inquiry to be made, either by having the proper issues joined and tried, or by some other appropriate form of proceeding, and act as justice may require, of its own protection against fraud or imposition." William Hartog v. Henry Memory (1886), 116 U.S. 725, 726.

 

"Allegations of residence within a state are not the equivalent in legal effect of an allegation of citizenship in such state. Realty Holding Company v. Donaldson, 268 U.S. 398, 45 S.Ct. 589, 39 L.Ed. 654;

 

"The State is a person, and possesses as its property one territory. As this one civil person consists of all the citizens, so its property consists of all the individual property of the citizens. It is una persona, unicum patrimonium. This unity of the person and property of the state is expressed by the Common Law maxim, that all lands were originally granted out by the sovereign [Father], and are therefore holden, either mediately or immediately, in fee. In apprehension of law, the [common law] state holds the soil of the whole territory as one estate." Walker's Theory of the Common Law (1849), p. 2. [Emphasis and insertion added.]

 

"Our ancestors, when they came into this new world, claimed the common law as their birthright, and brought it with them, except such parts as were judged inapplicable to their new state and condition. The common law thus claimed was the common law of their native country, as it was amended or altered by English statutes in force at the time of their emigration. Those statutes were never re-enacted in this country, but were considered as incorporated into the common law. Some few other English statutes passed since the emigration were adopted by our courts, and now have the authority of law derived from long practice. To these may be added some ancient usages originating probably from laws passed by the Legislature of the colony of Massachusetts Bay, which were annulled by the [*22] repeal of the first charter, and from the former practice of the colonial courts, accomodated to the habits and manners of the people." Com. v. Knowlton, 2 Mass. 520; 1 Kent Comm. 470.

 

"And so it has been the uniform doctrine in America ever since the settlement of the colonies. The universal principle (and the practice has conformed to it) has been, that the common law is our birthright and inheritance, and that our ancestors brought hither with them, upon the emigration, all of it which was applicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law." 1 Story Const. sect. 157.

 

Franchise and Consent

 

Franchise. A special privilege conferred by the government upon an individual or corporation, and which does not belong to the citizens of the country generally, of common right. It is essential to the character of a franchise that it should be a grant from the sovereign authority, and in this country no franchise can be held which is not derived from a law of the state. In England, a franchise is defined to be a royal privilege in the hands of a subject. In this country, it is a privilege of a public nature, which cannot be exercised without a legislative grant.

Elective Franchise. The right of suffrage; the privilege of voting in public elections. The right of voting at public elections; the privilege of qualified voters to cast their ballots for the candidates they favor at elections authorized by law.

Franchise Tax. A tax on the franchise of a corporation, that is on the right and privilege of carrying on business in the character of a corporation, for the purpose for which it was created, and in the conditions which surround it. Though the value of the franchise, for purposes of taxation, may be measured by the amount of business done, or the amount of earnings or dividends, or by the total value of the capital stock of the corporation in excess of tangible assets, a franchise tax is not a tax on either property, capital, stock, earnings, or dividends.

Black's Law Dictionary, 2nd Ed. (1910)

 

"FRANCHISE. This word has several significations: 1. It is a right reserved to the people by the constitution; hence we say, the elective franchise, to designate the right of the people to elect their officers; 2. It is a certain privilege, conferred by grant from the government, and vested in individuals.

"2. Corporations or bodies politic, are the most usual franchises known to our law. They have been classed among incorporeal hereditaments, perhaps improperly, as they have no inheritable quality.

"3. In England, franchises are very numerous; they are said to be royal privileges in the hands of a subject. Vide 3 Kent, Com. 366; 2 Bouv. Inst. n. 1686; Cruise, Dig. Tit. 27; 2 Bl.Com. 37; 15 Serg. & Rawle, 130; Finch, 164." Bouvier's Law Dictionary (1859), vol. I, p. 545.

 

"Enfranchisement, liberatio, (act of being set free): manumissio (emancipation of a slave): vindicta (the rod or staff also called festuca, which the praetor laid on a slave's head; hence emancipation): civitas or jus civitatis (right of a citizen): assertio (Quint. and Traj. in Pliny, the formal assertion that such a person is a slave or a free man). To obtain enfranchisement from any body, civitatem impetrare ab aliquo." Riddle, English-Latin Lexicon (1849), p. 255.

 

Enfranchisement. The act of making free; giving a franchise or freedom to; investiture with privileges or capacities of freedom, or municipal or political liberty. Admission to the freedom of a city; admission to political rights, and particularly the right of suffrage. Anciently, the acquisition of freedom by a villein from his lord.

The word is now used principally either of the manumission of slaves, (q.v.,) of giving to a borough or other constituency a right to return a member or members to parliament, or the conversion of copyhold into freehold.Black's Law Dictionary, 2nd Ed. (1910)Black's Law Dictionary, 3rd Ed. (1933) Black'sLaw Dictionary, 4th Ed. (1968)

 

"ENFRANCHISE. 1. To invest persons with the right to vote. 2. To free a slave or a servant. See Emancipate. 3. To turn land held by servile tenure into freehold. This is especially applied to copyhold land. It was done either by a formal conveyance to the copyholder by the lord of the manor, or by a special deed releasing the services, which were usually nominal." Radin, Law Dictionary (1955), p. 110.

 

"FRANCHISE (F. franchise, privileged liberty: franc, free.). A royal privilege, or branch of the king's prerogative subsisting in the hands of a subject. [2 Bl. Com. 37; 127 U.S. 40.]

"A special privilege conferred by government upon individuals, and which does not belong to citizens of the country generally, of common right. [Bank of Augusta v. Earle (1839), 13 Pet. 595, Taney, C. J.]

"A generic term covering all rights granted to a corporation by the legislature. Whence 'corporate franchises.'

"A corporate franchise is a legal estate vested in the corporation as soon as it is in esse. Not a mere naked power, but a power coupled with an interest. [Dartmouth College v. Woodward (1819), 4 Wheat. 700, Story, J.; Society for Savings v. Colte (1867), 6 Wall. 606. See also 3 Kent, 458; 73 Ill. 547; 45 Mo. 20; 15 Johns. 387.]

"A privilege conferred by the immediate or antecedent legislation of an act of incorporation, with conditions expressed or necessarily inferential from its language, as to the mannder of its exercise and for its enjoyment. [Woods v. Lawrence County (1861), 1 Black(U.S.) 409, Wayne, J.]

* * *

"A franchise is property and nothing more; it is in- [*474] corporeal property. As such it is liable for debts and subject to the right of eminent domain. [2 Washb. R. P. 24; 1 Redf. Ry. §§ 1, 4, 10, and cases.]" Anderson's Law Dictionary (1893), pp. 473-474.

 

Consent

 

"…no consent can be given which will deprive the consenter of any inalienable rights." American and English Encyclopedia of Law, Desty, Criminal Law §33.

 

"Party cannot be bound by contract that he has not made or authorized." Alexander v. Bosworth (1915), 26 C.A. 589, 599, 147 P.607.

 

Juristic Persons

 

As Private Law governing "Persons"

"Private law recognizes the following classes of juristic persons:

1. The state, or the governing social entity, in its private legal relations. In this respect the dominant entity does not authoritively represent its interests by virtue of its attribute of sovereignty. Its activity here is the same as that of any free Citizen in the state in the satisfaction of private economic necessities. In this activity a state is called the fiscus, or treasury, in contradistinction to the activity in which the state represents the public interests of the community by sovereign law in the governing sense (res publica).

"2. Public communities within the state, which represent public interests; thus, municipalities, parishes, towns, provinces, and similar communities.

"3. Aggregates of persons, such as associations (corporations) arising from joint concurrence or agreement, which have legal interests, in that the law gives them a legal position. According to the conditions of the legal recognition of their juristic personality such corporations (collegia, corpora) are: guilds and industrial fraternities, and those privileged aggregates of persons which are under state supervision (collegia sodalica); for example, the Roman collegia funeraticia, and modern associations for accident, age and health insurance…. These associations under recognition have social objects as opposed to objects of the state or of individuals [eleemosynaries].

"4. Associations for profit (societates quaestuariae), which the law specially invests with the capacity for having rights; thus, share companies, registered associations, and mining companies, in the modern law.

"5. Churches, churchly associations and institutions….

"6. Foundations, that is, complexes of property which are recognized by the law as holders of rights for the accomplishment of certain limited objects piae causae, etc." Gareis' Science of Law, §15. [Note: Items in 6 are not regarded as persons by the common law. With us they are administered by trustees.]

 

the mutual duty of subjects and citizens is not only to honor and to revere their superiors, but to recommend by prayers to the Lord their salvation and prosperity, to submit to their rule, to obey their laws and constitutions, and not to refuse the charges imposed by them: be they taxes, tolls, tributes, and other contributions, or be they offices, civic commissions, and all the like. So that we must not only render ourselves obedient to superiors who rightly and dutifully administer their higher office, but also it is fit to endure those who tyrannically abuse their power, until, through legitimate order, we be freed from their yoke. For, just as a good prince is a testimony of the divine beneficence for maintaining the salvation of men, so a bad and evil prince is a plague of God for chastising the sins of the people. Yet, let this generally be held as certain that to both the power is given by God, and we cannot resist them without our resisting the ordinance of God." John Calvin (1537), Instruction in Faith, quoted in Fosdick, Great Voices of the Reformation (1952), pp. 237-238.



"The crisis of the Western legal tradition is not merely a crisis in legal philosophy, but also a crisis in law itself. Legal philosophers have always debated, and presumably will debate, whether law is founded in reason and morality or whether it is only the will of the political ruler. It is not necessary to resolve that debate in order to conclude that as a matter of historical fact the legal systems of all the nations that are heirs to the Western legal tradition have been rooted in certain beliefs or postulates: that is, the legal systems themselves have presupposed the validity of those beliefs. Today those beliefs or postulates--are rapidly disappearing, its religious roots, its transcendent qualities--are rapidly disappearing, not only from the minds of philosophers, not only from the minds of lawmakers, judges, lawyers, law teachers, and other members of the legal profession, but from the consciousness of the vast majority of citizens, the people as whole; and more than that, they are disappearing from the law itself. The law is becoming more fragmented, more subjective, geared more to expediency and less to morality, concerned more with immediate consequences and less with consistency or continuity. Thus the historical soil of the Western legal tradition is being washed away in the twentieth century, and the tradition itself is threatened with collapse." Berman, Law and Revolution (1983), p. 39.

Ordinances

 

Col 2:14

14 Blotting out the handwriting of ordinances that was against us, which was contrary to us, and took it out of the way, nailing it to his cross;

(KJV)

 

1378 dogma (dog'-mah); from the base of 1380; a law (civil, ceremonial or ecclesiastical):

KJV-- decree, ordinance.

1380 dokeo (dok-eh'-o); a prolonged form of a primary verb, doko (dok'-o) (used only in an alternate in certain tenses; compare the base of 1166) of the same meaning; to think; by implication, to seem (truthfully or uncertainly): KJV-- be accounted, (of own) please (-ure), be of reputation, seem (good), suppose, think, trow.

 

Col 2:20-22

20 Wherefore if ye be dead with Christ from the rudiments of the world, why, as though living in the world, are ye subject to ordinances,

21 (Touch not; taste not; handle not;

22 Which all are to perish with the using;) after the commandments and doctrines of men?

(KJV)

1379 dogmatizo (dog-mat-id'-zo); from 1378; to prescribe by statute, i.e. (reflexively) to submit to ceremonially rule: KJV-- be subject to ordinances.

 

Faith of the Prophets

Heb 11:13-16

13 These all died in faith, not having received the promises, but having seen them afar off, and were persuaded of them, and embraced them, and confessed that they were strangers and pilgrims on the earth.

14 For they that say such things declare plainly that they seek a country.

15 And truly, if they had been mindful of that country from whence they came out, they might have had opportunity to have returned.

16 But now they desire a better country, that is, an heavenly: wherefore God is not ashamed to be called their God: for he hath prepared for them a city.

(KJV)

 

Romans 13

Rom 13:1-4

1 Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God.

2 Whosoever therefore resisteth (498) the power, resisteth (436) the ordinance of God: and they that resist shall receive to themselves damnation.

3 For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:

4 For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.

(KJV)

 

1. Resisteth. 498 antitassomai (an-tee-tas'-som-ahee); from 473 and the middle voice of 5021; to range oneself against, i.e. oppose: KJV-- oppose themselves, resist. Strong's

498. To range in battle against. Thayer's Greek-English lexicon.

498. To set an army in array against, to arrange in battle order. Zodiates

 

2. Resisteth. 436 anthistemi (anth-is'-tay-mee); from 473 and 2476; to stand against, i.e. oppose: KJV-- resist, withstand.

 

Ordanance. 1296 diatage (dee-at-ag-ay'); from 1299; arrangement, i.e. institution: KJV-- instrumentality.

1299 diatasso (dee-at-as'-so); from 1223 and 5021; to arrange thoroughly, i.e. (specially) institute, prescribe, etc.: KJV-- appoint, command, give, (set in) order, ordain.

 

2 Cor 10:3-6

3 For though we walk in the flesh, we do not war after the flesh:

4 (For the weapons of our warfare are not carnal, but mighty through God to the pulling down of strong holds;)

5 Casting down imaginations, and every high thing that exalteth itself against the knowledge of God, and bringing into captivity every thought to the obedience of Christ;

6 And having in a readiness to revenge all disobedience, when your obedience is fulfilled.

(KJV)