Capitis Diminutio
CAPITIS DIMINUTIO. In Roman law. A dimin
ishing or abridgment of personality; a loss or curtailment of a man's status or aggregate of legal attributes and qualifications.
[Black's Law Dictionary, Fourth Edition, p. 264]
Capitis Diminutio Maxim
CAPITIS DIMINUTIO MAXIMA. The highest or most comprehensive loss of status. This occurred when a man's condition was changed from one of freedom to one of bondage, when he became a slave. It swept away with it all rights of citizenship and all family rights.
[Black's Law Dictionary, Fourth Edition, p. 264]
Capitis Diminutio Media
CAPITIS DIMINUTIO MEDIA. A lesser or medi
um loss of status. This occurred where a man lost his rights of citizenship, but without losing his liberty. It carried away also the family rights.
[Black's Law Dictionary, Fourth Edition, p. 264]
Capitis Diminutio Minima
CAPITIS DIMINUTIO MINIMA. The lowest or least comprehensive degree of loss of status. This occurred where a man's family relations alone were changed. It happened upon the arrogation of a person who had been his own master, (sui juris,) or upon the emancipation of one who had been under the patria potestas. It left the rights
of liberty and citizenship unaltered. See Inst. 1, 16, pr.; 1, 2, 3; Dig. 4, 5, 11; Mackeld.Rom.Law, 3 144.
[Black's Law Dictionary, Fourth Edition, pp. 264-265]
"By the constitution of Virginia slaves are
expressly recognized as property, and not at all as
persons having civil rights in any respect whatever.
Art. iv, § 22, 23.
And now, looking to the statute [**12] law of the
state, we find that from the earliest period, so far
as their civil status is concerned, slaves are
always spoken of and treated, in the numerous acts
of the house of burgesses and the general assembly,
as mere property. It is a curious fact, that
there is no statute directly reducing negroes into
slavery. "In 1620 (says Captain Smith) a Dutch ship
of ware brought us 20 niggers" for sale; they were
bought by the colonists; and that was the origin of
African slavery in Virginia. They were first
regarded as personal chattels, were bought and sold,
and held like any other personal estate; were
subject to the payment of debts, and went to the
executor or administrator like any other personalty.
Then, for a long time, in particular cases, such as
descents, &c., they were made real estate, and
passed to the heir at law. 3 Hen. Stat. 333, Oct.
1705; 4 *Hen. Stat. 222, Feb. 1727; 2 Va. 1, 7,
Ibid. 68-70; 2 Hen. & M. 69; 6 Munf. 191, 200. They
continued to be such real estate during the whole
period of the revolution, and down to 1792, when, by
Rev. Code, ch. 103, it was enacted, that "all negro
and mulatto slaves, in all courts of judicature in
this commonwealth, shall be held, taken [**13] and
adjudged to be personal estate." This was re-enacted
by 1 Rev. Code, p. 431, 1819; and by Code of Va. p.
458, 1849, it is summarily said, "Slaves shall be
deemed personal estate."
Looking at these acts, it is safe to say that the
law regards a negro slave, so far as his civil
status is concerned, as purely and absolutely mere
property, to be bought and sold, and pass and
descend as a tract of land, a horse or an ox. From
this it necessarily follows, that the condition of
the negro in slavery is that of absolute civil
incapacity, or rather that of an absolute negation
of civil existence. Being but mere property himself,
he is incapable of owning property of any kind, or
of making any legal contract by which property of
any kind can be acquired or held. Nor can he do any
civil legal act by which the property of others can
be lawfully divested or alienated, or the relations
of property be in any wise legally changed or
affected. In regard to property, and the legal
relations of property, he is emphatically and
absolutely unknown to the law, except as the subject
of property owned by another. And so the courts have
uniformly held. The Supreme court of North Carolina,
in a recent [**14] case, has well expressed the law,
in the southern states, upon this point: "Under our
system of law, a slave can make no contract. In the
nature of things he cannot. He is, in contemplation
of law, not a person for that purpose. He has no
legal capacity to make a contract; he has no legal
mind. He is the property of his master, and all the
proceeds of his labor *belong to his owner. If
property is devised or given to him, the devise or
bequest is void, and the personalty given either
belongs to the giver or becomes the property of the
owner. A slave has no legal status in our courts,
except as a criminal or as a witness in certain
cases.
In the southern states the policy of our laws in
keeping slaves within their proper sphere, has run
through all the legislation of which their acts are
the subject matter." And the court then decided,
that "Contracts made by slaves are void; and if a
slave executes his note or bond, and a free man is
the security upon it, the note or bond is void, and
the security is not liable." Batten v. Faulk, 49
N.C. 233.
In Virginia the statutes are numerous in which the
legal incapacity of slaves to make contracts is
clearly declared or implied, [**15] and the policy
of keeping them in their "proper sphere" of absolute
civil non-entity, distinctly enforced by various
penalties inflicted upon all persons trading or
dealing with them. Oct. 1705, ch. 39, § 15, 3 Hen.
Stat. 450; Nov. 1753, ch. 7, 6 Hen. Stat. 359; 1785,
12 Hen. Stat. 183; 1792, Rev. Code, ch. 103; 1819, 1
Rev. Code, ch. 111; 1849, Code of Va. p. 460. And
this court has expressly decided, in the case of an
executory contract of emancipation, that even upon
the full payment by the slave to the master of the
contract price for his freedom, the slave cannot
enforce a specific execution of the contract. Sawney
v. Carter, 6 Rand. 173.
An application of the foregoing principles and
decisions ought, as it seems to me, to settle this case.
In a bequest to slaves of a mere election [**20] between
freedom and slavery, we have seen that there is no
absolute, but only a conditional emancipation; that the
election of the slaves to become free, is a necessary
condition precedent to the accruing of their freedom;
and therefore, that on their will and pleasure, on their
choice or volition, is made to depend their future legal
status. Recurring then to the direct question to be
decided -- Are slaves endowed with the civil right or
legal capacity to choose between freedom and slavery?
Can they emancipate themselves by their own volition?
Can they divest the property of others in themselves, by
any legal act of their own? But if it has been shown
that the slave has no civil rights whatever; that he has
no civil status; that he can do no legal, civil act;
that he has no legal mind, will or discretion; that he
has absolutely no existence in the eye of the civil
jurisprudence, except as a chattel, the subject of
property, and *the object of the civil rights of others;
with what reason can it be contended that he has the
civil right and legal capacity to divest the property of
others in himself; or to do that great, transcendent act
of supreme civil dignity and sovereign power, the [**21]
transformation of himself from a thing into a person,
from a chattel to a man, clothed with all the high
attributes of a citizen, which attach to his race? And
if his master, the maker of the laws, endowed with all
civil rights and plenary civil capacity, cannot
emancipate him except by deed or will, executed in
solemn form, can he emancipate himself by the simple
expression of his pleasure to be free? Or, on the other
hand, if the law requires (Sess. Acts 1855-6, p. 37)
that in order to enslave himself, if free, a negro must
go through regular prescribed forms in a high court of
justice, with all the safeguards of judicial protection
around him, shall it be said that he can enslave himself
forever, perchance by the mere light volition of a
moment, the utterance of a word, or the nodding of his
head? Where is the legal consistency in such anomalies
and contradictions as these? How can they be reconciled
with the established legal incapacity of the slave, or
with either the spirit or the letter, or the purposes
and policy of the emancipation laws?
Nor is it possible to escape the force of these
views, by saying that in electing to become free, there
is no exercise on the part of [**22] the slave of any
civil right or capacity, but the mere performance of a
condition, which, however unwise or absurd, the testator
had a right to impose as a condition precedent to the
emancipation; for this is but to change the form,
without affecting the substance of the difficulty; which
then only resolves itself into the identical original
enquiry, What civil right or legal capacity has the
slave to perform, or claim to perform, a condition, the
performance of which is to operate his enfranchisement?
*The answer is, that he has no civil rights or legal
capacity at all, and therefore none to perform the
required condition. Change or turn the question as you
may, this fundamental and impregnable obstacle arises,
which no ingenuity can evade, and no fertility of
hypothesis alter or affect. The act of election involves
the exercise of civil rights and legal capacity; and an
emancipation made dependent upon the exercise of civil
rights or legal capacity by the slave, is necessarily
void ab ovo. The event can never happen upon which the
freedom is to accrue; and the case comes clearly within
the principle of the decisions cited and approved in
Taylor v. Cullins, 12 Gratt. 394; which decisions [**23]
themselves are but illustrations of the ancient, general
and cardinal rule in respect to grants or bequests upon
conditions precedent, that, until the condition is
performed, the estate or right cannot vest, and if
impossible to be performed at the time of its creation,
the estate or right can never vest at all, but is
originally void. Co. Litt. 206; 2 Bl. Comm. 157; 1 Lom.
Dig. 273, § 16.
Nor has the master any just ground of complaint
against this result, as tending to abridge his rights in
respect to his slaves. The power to emancipate is not
unlimited. Before the act of 1787, emancipation was
absolutely prohibited, except by consent of the governor
and council first had and obtained. That act authorized
and permitted emancipation in the mode thereby
prescribed, to wit: by deed or will. That act is the law
of this case. It empowers the master to manumit his
slave by deed or will; but it must be his own complete
act; he cannot authorize and empower the slave to
manumit himself or not, according to his will and
pleasure. And so, in principle and substance, this court
has decided; for it has held that "emancipation is the
conjoint act of the master and the law, with which the
[**24] slave has nothing to do." * Wood v. Humphreys, 12
Gratt. 333. And as on the one hand, "he cannot refuse
freedom when conferred upon him" -- (ibid.) -- e
converso, he cannot elect to take or decline it, when it
is left to his option.
But it is said, that though slaves are chattels, and are incapable of forming
any legal contract, or doing other legal civil act, yet that they are not mere
chattels, that they are human, sentient, moral and intellectual beings; that as
such, they are dealt with by the law; and therefore, that they ought to be held
capable of an election between freedom and slavery. And a class of cases has
been cited, at first blush giving countenance to this view. Thus, in Bean v.
Summers, 13 Gratt. 404, cited by Mr. Crump, occurs this remark of Moncure, J.,
delivering the opinion of the court: "Slaves are not only property, but rational
beings; and are generally acquired with reference to their moral and
intellectual qualities." Now it is to be observed in this discussion, that the
true enquiry is, not what is the moral and intellectual character or capacity of
the negro race, or for what qualities or habits slaves are generally acquired or
esteemed, but what is [**25] the relation they sustain to the law of the land?
And by reference to the case cited, it will be seen that the remark of the
judge, above quoted, had no allusion whatever to the civil relations or status
of the slave, but on the contrary referred to his moral and intellectual
qualities as affecting his peculiar value as an article of property. The
question was, whether a court of equity will decree the specific execution of a
contract for the sale or delivery of slaves at the suit of the purchaser,
without any allegation or proof of peculiar value; and in dealing with this
question, the court looked to the character of the slave as an article of
property, and to his moral and intellectual qualities as calculated to engender
sentiments of friendship, affection and esteem on the part of the master towards
*the slave, which might invest the slave with such special and peculiar value,
in the eye of the master, as that adequate compensation for the loss of the
slave could not be had at law in an action for damages. All the South Carolina
decisions cited in the opinion of the court, proceed upon the same ground. See
particularly Young v. Burton, 1 McMul. Eq. 255. And they decide, as the [**26]
Court of appeals decided in this case, that a master may very well attach such a
special and peculiar value to his slave on account of his personal qualities, as
that no jury could give adequate compensation for his loss. The court say:
"Slaves are not only property, but rational beings; and are generally acquired
with reference to their moral and intellectual qualities. Therefore damages at
law, which are measured by the ordinary market value of the subject, will not
generally afford adequate compensation for the breach of a contract for the sale
of slaves. There is at least as much reason for enforcing the specific execution
of such a contract as a contract for the sale of real estate. The only
difference between the two cases seems to be this, that while in the latter
specific execution will always be enforced if the contract be unobjectionable,
and the suit be brought in due time, it will not in the former, if the slaves
were purchased as merchandise, without reference to their peculiar value to the
purchaser, or that the plaintiff is a mere mortgagee or other incumbrancer; in
which case, as the slaves are to be sold at all events, damage at law assessed
according to their market [**27] value, would be adequate compensation." The
reasoning of the court plainly shows that it regarded the slave merely as an
article of property, to which his qualities or habits, or to which peculiar
circumstances might attach a special value, just as special value is attached to
real estate from natural causes; and to argue thence that a negro slave was
adjudged or recognized by that case to *be endowed with the social and civil
attributes of a white man, would be about as logical as to argue that real
estate was adjudged or recognized to be endowed with the same attributes,
because such is its character as property, and such the peculiar associations
and feelings with which it is invested and regarded by mankind, that the law
will enforce the specific execution of a contract for its purchase or sale.
In Boyce v. Anderson, 27 U.S. 150, cited by the same counsel, Judge Marshall
said, "A slave has volition, and has feelings which cannot be entirely
disregarded." But look at the case. It was an action of damages to recover the
value of slaves lost by the negligence of the captain and commandants of a steam
boat, as common carriers. The Supreme court held that the law regulating [**28]
the responsibility of common carriers, did not apply to the case, because the
carrier has not, and could not have, the same control over slaves that he has
over inanimate matter; that in the nature of things a slave resembled a
passenger, and not a package of goods. The same might have been said of an
apprentice, or other person bound to service. And the chief justice, in
delivering the opinion of the court, referred to the fact, that though there are
no slaves in England, there are persons in whose service another has a temporary
interest; but that the responsibility of a carrier, for injury which such person
might sustain, has never been placed on the same principle with his
responsibility for a bale of goods. But surely, in deciding that point, the
English courts had no reference to the civil status of the persons so held to
service; nor did the Supreme court in this case have any reference to the civil
status of the slave. It considered the qualities, habits and character of the
slave, as affecting his character as an article of transportation. "A slave
(says the judge) has volition, and has feelings which cannot be entirely
disregarded. These *properties cannot be overlooked in [**29] conveying him from
place to place. He cannot be stowed away as a common package. Not only does
humanity forbid this proceeding, but it might endanger his life or health.
Consequently, this rigorous mode of treatment cannot be adopted, unless
stipulated for by contract. But left at liberty, he may escape. The carrier has
not and cannot have the same absolute control over him that he has over a common
package," &c. And therefore the carrier was not held to as high a degree of
responsibility in the transportation of slaves, as in the transportation of a
common package. The same principle, it is presumed, would apply, sub modo, to
dogs, cattle, wild animals, &c. over which "the carrier has not and cannot have
the same absolute control as over a common package." It might be good logic, but
it would be bad law, to say that therefore dogs, horses, cattle and animals,
ferae naturae, were recognized, as something more, in legal contemplation, than
mere property. It is alike bad logic and bad law to say that, by this case,
slaves are recognized as any thing more. In the discussion of legal
propositions, nothing is more dangerous than to adduce the incidental remarks,
dicta or allusions of judges, [**30] applicable enough, or excusable, in the
cases in which they occur, to elucidate points of an utterly different character
arising in an utterly different connection, and embracing relations and
consequences to which the judges in the cases cited had no reference, and which
they could not possibly, by any logical association of ideas, have had in mind.
But the learned counsel need not have cited these authorities to prove that
negro slaves have intelligence, feelings and volition. As late indeed as 1782, a
doubt was publicly expressed in the British parliament, as to whether an African
negro has a soul. And many philosophic speculations have been indulged in
*regard to his claim to be considered of the same origin and genus as ourselves.
But common observation teaches that our slaves, in some cases, have a very high
degree of intellect and moral sense, and all of them have, in these latter
times, a strong enough will of their own, which needs no invigoration or
activity from a bestowal upon them of civil rights and legal capacity
incompatible with their condition as slaves. The moral and intellectual
qualities of our slaves, in fact, as in the case of Roman and allother slaves,
[**31] enter largely into the elements of their value; it is because they have
intelligence, a sense of right and wrong, and volition, that they are such
useful instruments, as Aristotle calls them in domestic and social life. And it
is the pride and pleasure of many families in Virginia to cultivate the
intellectual, moral and religious faculties and feelings of their slaves to as
high a degree as circumstances will admit.
But all this has nothing to do with the question under consideration. The
court is not sitting as an ethnological society, to ascertain and determine the
peculiar natural or acquired characteristics of the negro race; nor as a
committee to investigate the elements and extent of the value of slaves. The
enquiry is, What is the legal status of the slave under our laws? Has he any
legal volition, the exercise of which can change his legal condition, or affect
the legal rights of the white race? If so, where is the statute which gives it?
Where is the decision which defines its character and extent, or sanctions the
legality, and prescribes the limits of its exercise? No statute can be found;
and the absence of all authority is sufficiently illustrated by the citation
[**32] of such cases as Summers v. Bean, and Boyce v. Anderson.
A much more plausible argument or illustration might have been drawn from a
more direct and practical source. It might be said that the criminal code of
*Virginia recognizes slaves as responsible beings, and affixes penalties to the
commission of crime by them; and that therefore the law of the land thus admits
them to be endowed with intelligence, free will, and a moral sense -- the same
qualities or capacities which are requisite for rational choice between freedom
and slavery. But even this will not bear examination. For, by recurring to the
true issue, we see that the enquiry is, not as to whether a negro slave can
commit a crime and will be punished for it, but what is his civil status. A
married woman may commit a crime and will be punished for it, though she has no
power to make a contract, and her civil being is absolutely merged in that of
her husband. Her civil relations are very different things from the relation she
sustains to the criminal law. The commission of a crime implies intelligence,
free will, and a moral sense; but these do not fix the civil status, or
necessarily affect it in any manner. Idiots, lunatics [**33] and infants of
tender years have all a fixed civil status, and fixed civil relations to
property. They may inherit or be inherited from. They may be the objects of
devises or bequests, though they cannot devise and bequeath. They may and do
hold thousands of slaves, who, considered as natural persons, are endowed with
some sort of intelligence, free will and moral sense; yet the slaves, though
thus endowed, cannot inherit or be inherited from; they cannot be the objects of
devises or bequests, nor can they devise or bequeath, nor can they hold or
acquire property in any manner of any kind. The civil status, therefore, is one
thing; the criminal status is another and very different thing. The civil status
has reference to property and all its relations; the power of holding it, using
it, controlling it, acquiring it, and parting with it. The criminal status has
reference to the moral relations between man and man. An individual may have a
very high *position in the one scale, and none at all in the other. An idiot may
hold property, but is incapable of committing crime. A slave may commit crime,
but is incapable of holding property. The two things are distinct and different,
and have [**34] no necessary legal or logical connection the one with the other.
In ascertaining the criminal status or capacity of a party charged with crime,
no reference need be had to his civil abilities or disabilities. In ascertaining
the civil status or capacity of a party who attempts to do a legal civil act, no
reference need be had to his responsibilities at the bar of the criminal courts.
We must, therefore, look to the civil jurisprudence for the civil status of the
slave, and to the criminal jurisprudence for his criminal status. And in looking
to the civil jurisprudence for the civil status of the slave, we have seen that
the slave, as such, has no civil capacity or existence whatever.
[Bailey
v. Pointexter's Ex'r, 55 Va. 132 (1858)]
[EDITORIAL: Note from the above that those WITHOUT a
civil status have no STATUTORY property rights, but they
still have constitutional or common law property
rights. Note also that there is NO difference between
the SLAVE described above and the MAN who has no
CONSTITUTIONAL or NATURAL rights. They are one in the
same. If you can only receive or transfer property by
accepting a CIVIL statutory status or worst yet, a
Government ID and Social Security Number, then you are a
SLAVE to the Master who granted those things with legal
strings attached to the grant.]
In
Udny v. Udny, (1869) L.R. 1 H.L.
Sc. 441, the point decided was one of inheritance,
depending upon the question whether the domicile of the
father was in England or in Scotland, he being in either
alternative a British subject. Lord Chancellor Hatherley
said: "The question of naturalization and of allegiance
is distinct from that of domicil." p. 452. Lord
Westbury, in the passage relied on by the counsel for
the United States, began by saying: "The law of England, and of
almost all civilized countries, ascribes to each
individual at his birth two distinct legal states or
conditions: one, by virtue of which he becomes the
subject of some particular country, binding him by the
tie of natural allegiance, and which may be called his
political status; another, by virtue of which he has
ascribed to him the character of a citizen of some
particular country, and as such is possessed of certain
municipal rights, and subject to certain obligations,
which latter character is the civil status or condition
of the individual, and may be quite different from his
political status." And then, while maintaining that the
civil status is universally governed by the single
principle of domicil,
domicilium, the criterion established by
international law for the purpose of determining civil
status, and the basis on which "the personal rights of
the party, that is to say, the law which determines his
majority or minority, his marriage, succession, testacy
or intestacy,
657*657
must depend;" he yet distinctly recognized that a
man's political status, his country, patria,
and his "nationality, that is, natural allegiance," "may
depend on different laws in different countries." pp.
457, 460. He evidently used the word "citizen," not as
equivalent to "subject," but rather to "inhabitant;" and
had no thought of impeaching the established rule that
all persons born under British dominion are natural-born
subjects.
[United States v. Wong Kim Ark, 169
U.S. 649 (1898)]
The several States of the Union are not, it is true,
in every respect independent, many of the rights and
powers which originally belonged to them being now
vested in the government created by the
Constitution. But, except as restrained and limited
by that instrument, they possess and exercise the
authority of independent States, and the principles
of public law to which we have referred are
applicable to them. One of these principles is, that
every State possesses exclusive jurisdiction and
sovereignty over persons and property within its
territory. As a consequence, every State has the
power to determine for itself the civil status and
capacities of its inhabitants; to prescribe the
subjects upon which they may contract, the forms and
solemnities with which their contracts shall be
executed, the rights and obligations arising from
them, and the mode in which their validity shall be
determined and their obligations enforced; and also
to regulate the manner and conditions upon which
property situated within such territory, both
personal and real, may be acquired, enjoyed, and
transferred. The other principle of public
law referred to follows from the one mentioned; that
is, that no State can exercise direct jurisdiction
and authority over persons or property without its
territory. Story, Confl. Laws, c. 2; Wheat. Int.
Law, pt. 2, c. 2. The several States are of equal
dignity and authority, and the independence of one
implies the exclusion of power from all others. And
so it is laid down by jurists, as an elementary
principle, that the laws of one State have no
operation outside of its territory, except so far as
is allowed by comity; and that no tribunal
established by it can extend its process beyond that
territory so as to subject either persons or
property to its decisions. "Any exertion of
authority of this sort beyond this limit," says
Story, "is a mere nullity, and incapable of binding
723*723
such persons or property in any other tribunals."
Story, Confl. Laws, sect. 539.
But as contracts made in one State may be
enforceable only in another State, and property may
be held by non-residents, the exercise of the
jurisdiction which every State is admitted to
possess over persons and property within its own
territory will often affect persons and property
without it. To any influence exerted in this way by
a State affecting persons resident or property
situated elsewhere, no objection can be justly
taken; whilst any direct exertion of authority upon
them, in an attempt to give ex-territorial operation
to its laws, or to enforce an ex-territorial
jurisdiction by its tribunals, would be deemed an
encroachment upon the independence of the State in
which the persons are domiciled or the property is
situated, and be resisted as usurpation.
Thus the State, through its tribunals, may compel
persons domiciled within its limits to execute, in
pursuance of their contracts respecting property
elsewhere situated, instruments in such form and
with such solemnities as to transfer the title, so
far as such formalities can be complied with; and
the exercise of this jurisdiction in no manner
interferes with the supreme control over the
property by the State within which it is situated.
Penn v. Lord Baltimore, 1 Ves. 444;
Massie v. Watts, 6 Cranch, 148;
Watkins v. Holman, 16 Pet. 25;
Corbett v. Nutt, 10 Wall. 464.
So the State, through its tribunals, may subject
property situated within its limits owned by
non-residents to the payment of the demand of its
own citizens against them; and the exercise of this
jurisdiction in no respect infringes upon the
sovereignty of the State where the owners are
domiciled. Every State owes protection to its own
citizens; and, when non-residents deal with them, it
is a legitimate and just exercise of authority to
hold and appropriate any property owned by such
non-residents to satisfy the claims of its citizens.
It is in virtue of the State's jurisdiction over the
property of the non-resident situated within its
limits that its tribunals can inquire into that
non-resident's obligations to its own citizens, and
the inquiry can then be carried only to the extent
necessary to control the disposition of the
property. If the non-resident
724*724
have no property in the State, there is nothing upon
which the tribunals can adjudicate.
[Pennoyer v. Neff, 95 U.S. 714 (
1878)]
Black’s Law Dictionary, Sixth Edition, p. 1025
"Nationality. That quality or
character which arises from the fact of a person's
belonging to a nation or state.
Nationality determines the political status of the
individual, especially with reference to allegiance;
while domicile determines his civil status.
Nationality arises either by birth or by
naturalization. See also Naturalization."
[Black’s Law Dictionary, Sixth Edition, p. 1025]
81:5.5 (906.3) Society thus becomes a co-operative
scheme for securing civil freedom through institutions,
economic freedom through capital and invention, social
liberty through culture, and freedom from violence
through police regulation.
81:5.6 (906.4) Might does not make right, but it does
enforce the commonly recognized rights of each
succeeding generation. The prime mission of government
is the definition of the right, the just and fair
regulation of class differences, and the enforcement of
equality of opportunity under the rules of law. Every
human right is associated with a social duty; group
privilege is an insurance mechanism which unfailingly
demands the full payment of the exacting premiums of
group service. And group rights, as well as those of the
individual, must be protected, including the regulation
of the sex propensity.
81:5.7 (906.5) Liberty subject to group regulation is
the legitimate goal of social evolution. Liberty without
restrictions is the vain and fanciful dream of unstable
and flighty human minds.
81:6.1 (906.6) While biologic evolution has proceeded
ever upward, much of cultural evolution went out from
the Euphrates valley in waves, which successively
weakened as time passed until finally the whole of the
pure-line Adamic posterity had gone forth to enrich the
civilizations of Asia and Europe. The races did not
fully blend, but their civilizations did to a
considerable extent mix. Culture did slowly spread
throughout the world. And this civilization must be
maintained and fostered, for there exist today no new
sources of culture, no Andites to invigorate and
stimulate the slow progress of the evolution of
civilization.
[The Urantia Book, Paper 81: Development of Modern
Civilization]
A Treatise on the Law of Domicil, National,
Quasi-National, and Municipal, M.W. Jacobs, Little,
Brown, and Company, 1887, p. 89
§ 29. Status
It may be laid down that the ,statuts- or, as it is
sometimes called, civil status, in contradistinction
to political status - of a person depends largely,
although not universally, upon domicil. The older
jurists, whose opinions are fully collected by Story
I and Burge, maintained, with few exceptions, the
principle of the ubiquity of status, conferred by
the lex domicilii with little qualification. Lord
Westbury, in Udny v. Udny, thus states the doctrine
broadly: "The civil status is governed by one single
principle, namely, that of domicil, which is the
criterion established by law for the purpose of
determining civil status. For it is on this basis
that the personal rights of the party - that is to
say, the law which determines his majority and
minority, his marriage, succession, testacy, or
intestacy-must depend." Gray, C. J., in the late
Massachusetts case of Ross v. Ross, speaking with
special reference to capacity to inherit, says: "It
is a general principle that the status or condition
of a person, the relation in which he stands to
another person, and by which he is qualified or made
capable to take certain rights in that other's
property, is fixed by the law of the domicil; and
that this status and capacity are to be recognized
and upheld in every other State, so far as they are
not inconsistent with its own laws and policy."
[A Treatise on the Law of Domicil, National,
Quasi-National, and Municipal, M.W. Jacobs,
Little, Brown, and Company, 1887, p. 89]
Woodward v. Woodward, 11 S.W. 892, 87 Tenn. 644 (Tenn.,
1889)
“There are certain general principles which control
the disposition of this case. They are, in the main,
well settled; the difficulty lies in their
application to the particular facts of the case in
hand. It is elementary that "every state
has an undoubted right to determine the status,
or domestic and social condition, of the persons
domiciled within its territory, except in so far as
the powers of the states in this respect are
restrained, or duties and obligations imposed upon
them by the constitution of the United States." Strader v.
Graham, 10 How. 93. Again,
the civil status is governed
universally by one single principle, namely, that of
domicile, which is the criterion established by law
for the purpose of determining the civil status;
for it is on this basis that the personal rights of
a party, — that is to say, the law which determines
his majority or minority, his marriage, succession,
testacy, or intestacy, — must depend. Udny v. Udny,
L. R., 1 H. L. Sc. 457.
[Woodward v. Woodward, 11 S.W. 892, 87 Tenn. 644
(Tenn., 1889)]
United Nations International Covenant on Civil and
Political Rights
United Nations International Covenant on
Civil and Political Rights
Preamble
The States Parties to the present Covenant,
Considering that, in accordance with the principles
proclaimed in the Charter of the United Nations,
recognition of the inherent dignity and of the equal
and inalienable rights of all members of the human
family is the foundation of freedom, justice and
peace in the world,
Recognizing that these rights derive from the
inherent dignity of the human person,
Recognizing that, in accordance with the Universal
Declaration of Human Rights, the ideal of free human
beings enjoying civil and political freedom and
freedom from fear and want can only be achieved if
conditions are created whereby everyone may enjoy
his civil and political rights, as well as his
economic, social and cultural rights,
Considering the obligation of States under the
Charter of the United Nations to promote universal
respect for, and observance of, human rights and
freedoms,
Realizing that the individual, having duties to
other individuals and to the community to which he
belongs, is under a responsibility to strive for the
promotion and observance of the rights recognized in
the present Covenant,
Agree upon the following articles:
Article 1, item 1
All peoples have the right of self-determination. By
virtue of that right they freely determine their
political status and freely pursue
their economic, social and cultural development.
Article 2, Item 1
Each State
Party to the present Covenant undertakes to respect
and to ensure to all individuals within its
territory and subject to its jurisdiction the rights
recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion,
national or social origin, property, birth
or other status.
Article 26
All persons are equal before the law and
are entitled without any discrimination to the equal
protection of the law. In this respect,
the law shall prohibit any discrimination and
guarantee to all persons equal and effective
protection against discrimination on any ground such
as race, colour, sex, language, religion, political
or other opinion, national or social origin,
property, birth or other status.
[United Nations International Covenant on Civil and
Political Rights,
SOURCE:
http://www.hrweb.org/legal/cpr.html]
People ex rel. Campbell v. Dwey, 23 Misc. 267, 50
N.Y.S. 1013, N.Y.Sup. (1898)
At the time, then, of the Texas proceeding, both
mother and child were domiciled in the state of New
York, and it was beyond the power of the Texas court
to regulate the relations between them.
The relation of parent and child is a
civil status.
1 Bish. Mar. & Div. § 16 . “It is plain that every
state has the right to determine the status or
domestic or social condition of persons domiciled
within its territory.” Hunt v. Hunt, 72 N. Y. 217,
227 ; Strader v. Graham, 10 How. 82.
“Every nation may determine the status
of its own domiciled subjects, and any interference
by foreign tribunals would be an officious
intermeddling with a matter in which they have no
concern. The parties cannot consent to the change of
status, and the judgment is not binding in a third
country.” Black, Jur. § 77.
When the Texas proceeding was instituted the
respondent and her child were transiently in that
state, upon a temporary occasion, and with the
intention of returning to their domicile in New
York. “Though a state may have a right to
declare the condition of all persons within
her limits, the right only exists while that person
remains there. She has not the power of giving a
condition or status that will adhere to the person
everywhere, but upon his return to his place of
domicile he will occupy his former position.” Maria v. Kirby, 12 B.Mon.
542, 545,- a case in which the decision is an
adjudication of the precise point in controversy.
It results, therefore, that the Texas
decree is of no effect in this state upon the right
of the respondent to the custody of the child.
The validity of that decree is further impugned for
fatal irregularities in the proceeding, but, its
futility as an estoppel being already apparent, the
discussion need not be prolonged.
The writ is dismissed, and, as the respondent's
fitness for the care and control of the child is not
questioned, it is remanded to her custody.
[People ex rel. Campbell v. Dewey, 23 Misc. 267, 50
N.Y.S. 1013, N.Y.Sup. (1898)]
U. S. v. Grimley, 137 U.S. 147, 11 S.Ct. 54, U.S. (1890)
This case involves a matter of contractual relation
between the parties; and the law of contracts, as
applicable thereto, is worthy of notice.
The government, as contracting party, offers
contract and service. Grimley accepts
such contract, declaring that he possesses all the
qualifications prescribed in the government's offer.
The contract is duly signed. Grimley has
made an untrue statement in regard to his
qualifications.*151
The government makes no objection
because of the untruth. The qualification is one for
the benefit of the government, one of the
contracting parties. Who can take advantage of
Grimley's lack of qualification? Obviously only the
party for whose benefit it was inserted. Such is the
ordinary law of contracts.
Suppose A., an individual, were to offer to enter
into contract with persons of Anglo-Saxon descent,
and B., representing that he is such descent,
accepts the offer and enters into contract; can he
thereafter, A. making no objection, repudiate the
contract on the ground that he is not of Anglo-Saxon
descent? A. has prescribed the terms. He contracts
with B. upon the strength of his representations
that he comes within those terms. Can B. thereafter
plead his disability in avoidance of the contract?
On the other hand, suppose for any reason it could
be contended that the proviso as to age was for the
benefit of the party enlisting, is Grimley in any
better position? The matter of age is merely
incidental, and not of the substance of the
contract. And can a party by false
representations as to such incidental matter obtain
a contract, and thereafter disown and repudiate its
obligations
**55
on the simple ground that the fact in reference to
this incidental matter was contrary to his
representations? May he utter a falsehood to acquire
a contract, and plead the truth to avoid it, when
the matter in respect to which the falsehood is
stated is for his benefit? It must be noted here
that in the present contract is involved no matter
of duress, imposition, ignorance, or intoxication.
Grimley was sober, and of his own volition went to
the recruiting office and enlisted. There was no
compulsion, no solicitation, no misrepresentation.
A man of mature years, he entered freely into the
contract. But in this transaction something more is
involved than the making of a contract, whose breach
exposes to an action for damages.
Enlistment is a contract, but it is one of those
contracts which changes the
status, and where that is changed, no
breach of the contract destroys the new
status or relieves from the obligations which its
existence imposes. Marriage is a contract; but it is
one which creates a
status. Its contract
*152
obligations are mutual faithfulness; but a
breach of those obligations does not destroy the
status or change the relation of the parties to each
other. The parties remain husband and wife no matter
what their conduct to each other,-no matter how
great their disregard of marital obligations. It is
true that courts have power, under the statutes of
most states, to terminate those contract
obligations, and put an end to the marital
relations. But this is never done at the instance of
the wrong-door. The injured party, and the injured
party alone, can obtain relief and a change of
status by judicial action.
So, also, a foreigner by naturalization enters into
new obligations. More than that, he thereby changes
his status; he ceases to be an alien, and becomes a
citizen, and, when that change is once accomplished,
no disloyalty on his part, no breach of the
obligations of citizenship, of itself, destroys his
citizenship. In other words, it is a general rule
accompanying a change of status, that when once
accomplished it is not destroyed by the mere
misconduct of one of the parties, and the guilty
party cannot plead his own wrong as working a
termination and destruction thereof. Especially is
he debarred from pleading the existence of facts
personal to himself, existing before the
change of status , the entrance into new
relations, which would have excused him from
entering into those relations and making the change,
or, if disclosed to the other party, would have led
it to decline admission into the relation, or
consent to the
change. By enlistment the citizen becomes
a soldier. His relations to the state and the public
are changed. He acquires a new
status, with correlative rights and duties; and
although he may violate his contract obligations,
his status as a soldier is
unchanged. He cannot of his own
volition throw off the garments he has once put on,
nor can he, the state not objecting, renounce his
relations and destroy his status on the plea that,
if he had disclosed truthfully the facts, the other
party, the state, would not have entered into the
new relations with him, or permitted him to change
his status. Of course these considerations may not
apply where there is insanity, idiocy, infancy, or
any other disability which, in its nature, disables
a
*153
party from changing his status or entering into new
relations. But where a party is sui juris, without
any disability to enter into the new relations, the
rule generally applies as stated. A naturalized
citizen would not be permitted, as a defense to a
charge of treason, to say that he had acquired his
citizenship through perjury, that he had not been a
resident of the United States for five years, or
within the state or territory where he was
naturalized one year, or that he was not a man of
good moral character, or that he was not attached to
the constitution. No more can an enlisted
soldier avoid a charge of desertion, and escape the
consequences of such act, by proof that he was over
age at the time of enlistment, or that he was not
able-bodied, or that he had been convicted of a
felony, or that before his enlistment he had been a
deserter from the military service of the United
States. These are matters which do not inhere in the
substance of the contract, do not prevent a change
of
status, do not render the
new relations assumed absolutely void; and in the
case of a soldier, these considerations become of
vast public importance. While our
regular army is small compared with those of
European nations, yet its vigor and efficiency are
equally important. An army is not a deliberative
body. It is the executive arm. Its law is that of
obedience. No question can be left open as to the
right to command in the officer, or the duty of
obedience in the soldier. Vigor and efficiency on
the part of the officer, and confidence among the
soldiers in one another, are impaired if any
question be left open as to their attitude to each
other. So, unless there be in the nature
of things some inherent vice in the existence of the
relation, or natural wrong in the manner in which it
was established, public policy requires that it
should not be disturbed. Now, there is
no inherent vice in the military service of a man 40
years of age. The age of 35, as prescribed in the
statute, is one of convenience merely. The
government has the right to the military service of
all its able-bodied citizens; and may, when
emergency arises, justly exact that service from
all. And if, for its own convenience, and with a
view to the selection of the best material, it has
fixed the age at 35, it is a matter
*154
which in any given case it may waive; and it
does not lie in the mouth of any one above that age
on that account alone, to demand release from an
obligation voluntarily assumed, and discharge from a
service voluntarily entered into.
The government, and the government alone, is
the party to the transaction that can raise
objections on that ground. We conclude, therefore,
that the age of the petitioner was no ground for his
discharge.”
[U. S. v. Grimley, 137 U.S. 147, 11 S.Ct. 54, U.S.
(1890)]
In re Meador, 1 Abb.U.S. 317, 16 F.Cas. 1294, D.C.Ga.
(1869)
“And here a thought suggests itself. As the Meadors,
subsequently to the passage of this act of July 20,
1868, applied for and obtained from the government a
license or permit to deal in manufactured tobacco,
snuff and cigars, I am inclined to be of the opinion
that they are, by this their own voluntary act,
precluded from assailing the constitutionality of
this law, or otherwise controverting it.
For the granting of a license or
permit-the yielding of a particular privilege-and
its acceptance by the Meadors, was a contract, in
which it was implied that the provisions of the
statute which governed, or in any way affected their
business, and all other statutes previously passed,
which were in pari materia with those provisions,
should be recognized and obeyed by them. When the
Meadors sought and accepted the privilege, the law
was before them. And can they now impugn its
constitutionality or refuse to obey its provisions
and stipulations, and so exempt themselves from the
consequences of their own acts?”
[In re Meador, 1 Abb.U.S. 317, 16 F.Cas.
1294, D.C.Ga. (1869)]
Roberts v. Roberts, 81 Cal.App.2d. 871 [Civ. No. 15818.
Second Dist., Div. Two. Oct. 17] 1947
[4] In all domestic concerns each state of the
Union is to be deemed an independent sovereignty.
As such, it is its province and its duty to forbid
interference by another state as well as by any
foreign power with the status of its own citizens.
Unless at least one of the spouses is a
resident thereof in good faith, the courts of such
sister state or of such foreign power cannot acquire
jurisdiction to dissolve the marriage of those who
have an established domicile in the state which
resents such interference with matters which disturb
its social serenity or affect the morals of its
inhabitants. [5] Jurisdiction over
divorce proceedings of residents of California by
the courts of a sister state cannot be conferred by
agreement of the litigants. [6] As protector of the
morals of her people it is the duty of a court of
this commonwealth to prevent the dissolution of a
marriage by the decree of a court of another
jurisdiction pursuant to the collusion of the
spouses. If by surrendering its power it evades the
performance of such duty, marriage will ultimately
be considered as a formal device and its dissolution
freed from legal inhibitions. [7] Not only is a
divorce of California [81 Cal.App.2d 880] residents
by a court of another state void because of the
plaintiff's lack of bona fide residence in the
foreign state, but it is void also for lack of the
court's jurisdiction over the State of California.
[8] This state is a party to every
marriage contract of its own residents as well as
the guardian of their morals. Not only
can the litigants by their collusion not confer
jurisdiction upon Nevada courts over themselves but
neither can they confer such jurisdiction over this
state.
[9] It therefore follows that a judgment of divorce
by a court of Nevada without first having pursuant
to its own laws acquired...
[Roberts v. Roberts, 81 Cal.App.2d 871 [Civ. No.
15818. Second Dist., Div. Two. Oct. 17, 1947]
Corrigan v. Secretary of the Army, 211 F.2d. 293 (1954)
Laughlin E. Waters, U.S. Atty., Max F. Deutz, Asst.
U.S. Atty., and Clyde C. Downing, Asst. U.S. Atty.,
Los Angeles, Cal., for appellees.
Before STEPHENS, BONE, and POPE, Circuit Judges.
STEPHENS, Circuit Judge.
Ronald J. Corrigan, Hereinafter called ‘petitioner’,
upon relation of his mother, through a petition for
the issuance of the writ of habeas corpus, seeks his
release from restraint of the United States Army
officers who hold him as a member of the United
States Armed Services. A hearing was had on the
petition, the return thereto and an order to show
cause pursuant to stipulation that the return should
be considered as a traverse and that the proceedings
should have the same force and effect that the
issuance of the writ would have had, had it issued
and had the hearing been held thereon. However,
petitioner was present throughout the proceedings.
The court declined to order petitioner's release and
instead dismissed the petition. Petitioner appealed.
The issue of fact is whether petitioner was ever
inducted into the Service.
On the 15th day of April, 1953, petitioner, having
been regularly processed through the Selective
Service law, 50 U.S.C.A. Appendix, §451 et seq., and
declared a Selectee with the A-1 classification,
was, with about fifty Selectees, taken to a room
around 9:00 A.M. where he was given physical and
psychological examinations and near the middle of
the day, the fifty Selectees were directed to take
places in folding chairs which had been placed out
in the room. The chairs occupied a space about
twelve by eighteen feet in rows twelve inches apart
with a center aisle the width of a chair.
Petitioner was in the rear row.
Captain Earl S. Beydler entered the room and gave
them a short orientation talk and then addressed
them as follows: ‘You are about to be
inducted into the Armed Services of the United
States. In just a moment I will ask you to stand and
I will call off each of your names.
As I call you name I want you to answer ‘present’
and to take one step forward. The step forward will
constitute your induction into the Armed Services
*295
of the United States-into the Army.'FN1
The call was completed and the men were given the
accustomed oath. Petitioner claims that
he did not take a step forward nor did he raise his
hand and take the oath. However, he made no protest
at the time of the ceremony.
It is not contended that either the step forward or
the taking or giving of the oath is required by the
Selective Service Act as necessary to induction. As
said in Billings v. Truesdell, 1944, 321
U.S. 542, 559, 64 S.Ct. 737, 746, 88 L.Ed. 917; ‘a
selectee becomes ‘actually inducted’ within the
meaning of § 11 of the Act
FN2
when in obedience to the order of his board and
after the Army has found him acceptable for service
he undergoes whatever ceremony or requirements of
admission the War Department has prescribed.'
Therefore, since the selectee is subject to civil
authority until the moment of completion of the
induction, at which moment he becomes subject to
military authority, it is highly important that such
moment should be marked with certainty.
See Billings v. Truesdell, 1944,
321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917.
For a time the [voluntary] oath marked the dividing
line between the civilian and military status, but
difficulties and uncertainties arose as to whether,
in fact, the selectee had taken the oath. See our
opinion in Lawrence v. Yost, 9 Cir., 1946, en
banc, 157 F.2d. 44. Thereafter, the regulation
(Army Special Regulation No. 615-180-1, paragraph
23), providing for the step forward, was
promulgated.
[1]
However, one may emerge from a selectee to a soldier
without taking the step forward; that is, by conduct
consistent with the soldier status;FN3
but the fact of the step forward, whether or not it
was taken, is of high importance in this case.
As to that issue of fact, it is claimed by
petitioner that it was impossible for the men, other
than those in the front row, to step forward and the
physical set-up and the testimony practically
demonstrate the truth of the claim. The inducting
Captain testified in answer to a question as to
space, ‘There is space, not much.’ ‘Q. You mean he
could shuffle? A. Correct.’
At no time does the inducting Captain
claim that he saw petitioner take the step forward.
As to the procedure, he testified on direct
examination that when he calls a name at induction
ceremonies, ‘I wait for a response, * * * or if they
are near the front of the room where I can see them,
I see if they step forward.’ Afterward, he would
call the next name. ‘Q. Did you at any time look to
see if a man had taken a step forward? A. I look up
each time I call a name. Q. What do you look for
when you look up? A. For movement, for a
man stepping forward. * * * Q. On that
day did you see any man fail to step forward after
his name was called by you? A. No.’ On
re-cross-examination, Captain Beydler was asked,
‘Can you tell us that you recall whether or not you
saw this petitioner move forward on April 15- after
you called his name?’ The Captain answered, ‘No, I
cannot.’
Petitioner testified that his mother and grandmother
belonged to Jehovah's Witnesses; on
re-cross-examination petitioner was asked, ‘Were you
a member of the enlisted reserves in the Army of the
United States?’ To which he replied in the
affirmative. The record does not reveal how long or
under what circumstances he was in such service. On
*296
cross-examination, petitioner was asked, ‘When
did you become a conscientious objector?’ Petitioner
answered, ‘While sitting in the room. I just
thought. The material together, I would say, filled
my mind, and this is one thing I wanted to do. * * *
Q. When your name was called did you take a step
forward? A. No.’ He also testified that some of the
selectees shuffled their feet or didn't move when
their names were called.
Petitioner on cross-examination was asked, ‘When was
the first time that you advised anybody in the Army
that you were a conscientious objector? * * * A.
After the ceremony. The Court: What do you mean
‘after the ceremony’? The Witness: Well, after the
ceremony was over, I thought- well, there
isn't much use in making a scene, and I just walked
outside and told the Captain in charge. * * * I told
him I did not take (the) oath or step forward. * * *
He says, ‘No. You are in the Army.’ * * * Q. Isn't
it a fact that when you saw Captain Beydler, after
leaving the induction room that you told him you had
changed your mind, that you were now a conscientious
objector? A. I didn't say ‘I changed my mind’, No,
sir. * * * I said ‘I am’.'
Sergeant Frias, the chief coordinator at
the induction station, testified that petitioner
approached him on the floor of the induction room
saying he was a conscientious objector.
The Sergeant asked him if he had just been inducted
and he answered ‘Yes', to which the Sergeant
responded, ‘I said, ‘It is too late. I can't do
anything for you’.'
After that, according to petitioner's testimony, he
made three telephone calls and then told a Sergeant,
‘I am going home’.
Petitioner further testified, ‘I had some friends
and I went over to see and talked with them. * * * I
went over to another friend's and stayed all night.
* * * I stayed another day and then I went on home.’
Petitioner did not respond to the call to board the
bus for the railroad station the next morning,
whereupon he was noted as an ‘absentee’.
Petitioner was forceably taken from his home by
military personnel, put in the Post stockade at Camp
Irwin, and then transported to Camp Roberts a few
weeks thereafter.
The court asked the witness, ‘Have you been with
that training company (at Camp Roberts) since? The
Witness: No. That was a Thursday, and then Friday
morning they took me to the orderly room and to the
company commander and I refused the company
commander(‘s suggestion that I submit to training).
* * * That was about 5:10. I went back to the M.P.
lock-up at Camp Roberts. I stayed there until Sunday
morning. Sunday morning- The Court: Yesterday? The
Witness: Yes, yesterday at 10:45. And then I stayed
at this M.P. lock-up Sunday and then here today. * *
* The Court: Did you ever tell the Colonel that, as
long as you did not have to bear arms, you would be
willing to undergo training? A. I told him I would
not accept any training.’
[2]
[3]
We are of the opinion that the unnecessarily crowded
set-up in the induction room made it physically
impossible for the inducting officer to have seen
whether petitioner took the step forward and that it
was in fact impossible for petitioner to take a step
forward. Therefore, we think, the court's finding on
this factual issue was in error. The
evidence reveals no act after the induction
ceremonies from which it could be found that
petitioner had in fact acquiesced in induction,FN4
but on the contrary his conduct is entirely
consistent with his claim that he did not submit to
induction, and is not consistent with any theory of
acquiescence. However, the court made no finding on
the subject of acquiescence.
[4]
We hold that the evidence does not support the
conclusion of the trial court that petitioner was
inducted into the Armed Services of the United
States.
*297
The judgment is reversed and remanded with
instructions to order petitioner's release from the
custody of the Army officers.
Reversed and remanded.
FN1. The quotation is from the affidavit of
Captain Earl S. Beydler which was attached to the
return and made a part thereof. The affidavit was
stipulated as the Captain's evidence in chief. The
procedure followed by the Captain was exactly in
accord with Army Special Regulations 615-180-1,
paragraph 23, issued by the Department of the Army
April 10, 1953.
FN2. Selective Training and Service Act of
1940, 54 Stat. 894, 50 U.S.C.A.Appendix, § 311; now
50 U.S.C.A.App. § 462, Selective Service Act of
1948, 62 Stat. 604, 622.
FN3. Mayborn v. Heflebower, 5 Cir.,
1945, 145 F.2d. 864; Sanford v. Callan, 5 Cir.,
1945, 148 F.2d. 376; cf.
Cox v. Wedemeyer, 9 Cir., 1951,
192 F.2d. 920, 923-924.
FN4. See footnote 3, supra.
[Corrigan v. Secretary of the Army, 211 F.2d. 293
(1954)
http://famguardian.org/Subjects/Military/Draft/CorriganVSecretaryOfArmy-211-F.2d-293-1954.pdf]
Federal Declaratory Judgment Act, 28 U.S.C. §2201(a)
United States Code
TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
PART VI - PARTICULAR PROCEEDINGS
CHAPTER 151 - DECLARATORY JUDGMENTS
Sec. 2201. Creation of remedy
(a) In a case of actual controversy
within its jurisdiction,
except with respect to Federal taxes
other than actions brought under section 7428 of the
Internal Revenue Code of 1986, a
proceeding under section 505 or 1146 of title 11, or
in any civil action involving an antidumping or
countervailing duty proceeding regarding a class or
kind of merchandise of a free trade area country (as
defined in section 516A(f)(10) of the Tariff Act of
1930), as determined by the administering authority,
any court of the United States, upon the filing of
an appropriate pleading, may declare the rights and
other legal relations of any interested party
seeking such declaration, whether or
not further relief is or could be sought. Any such
declaration shall have the force and effect of a
final judgment or decree and shall be reviewable as
such.
Rowen v. U.S., 05-3766MMC. (N.D.Cal. 11/02/2005)
Specifically, Rowen seeks a declaratory judgment
against the United States of America with respect to
"whether or not the plaintiff is a taxpayer pursuant
to, and/or under 26 U.S.C. §7701(a)(14) ." (See
Compl. at 2.) This Court lacks
jurisdiction to issue a declaratory judgment "with
respect to Federal taxes other than actions brought
under section 7428 of the Internal Revenue Code of
1986," a code section that is not at issue in the
instant action. See 28 U.S.C. §2201; see also Hughes
v. United States, 953 F.2d. 531, 536-537 (9th Cir.
1991) (affirming dismissal of claim for
declaratory relief under § 2201 where claim
concerned question of tax liability). Accordingly,
defendant's motion to dismiss is hereby GRANTED, and
the instant action is hereby DISMISSED.
[Rowen
v. U.S., 05-3766MMC. (N.D.Cal. 11/02/2005)]
Economy Plumbing & Heating v. U.S., 470 F.2d. 585 (1972)
“Revenue Laws relate to taxpayers
[instrumentalities, officers, employees, and elected
officials of the national Government] and not to
non-taxpayers [non-citizen nationals domiciled
within the exclusive jurisdiction of a state of the
Union and not subject to the exclusive jurisdiction
of the national Government]. The latter are
without their scope. No procedures are
prescribed for non-taxpayers and no attempt is made
to annul any of their Rights or Remedies in due
course of law.”
[Economy Plumbing & Heating v. U.S., 470 F.2d. 585
(1972)]
Black's Law Dictionary, Fourth Edition, pp 1123-1124
MARRIAGE. Marriage, as distinguished from the
agreement to marry and from the act of becoming
married, is the
civil status, condition, or relation of
one man and one woman united in law for life, for
the discharge to each other and the community of the
duties legally incumbent on
those whose association is founded on the
distinction of sex. 1 Bish.Mar. & Div. 1 3; Collins
v. Hoag & Rollins, 121 Neb. 716, 238 N.W. 351, 355;
Allen v. Allen, 73 Conn. 54, 46 A. 242, 49 L.R.A.
142.
A contract, according to the form prescribed by law,
by which a man and woman, capable of entering into
such contract, mutually engage with
each other to live their whole lives together in the
state of union which ought to exist between a
husband and wife. Shelf. Mar. & Div. 1; Seuss v.
Schukat, 358 Ill. 27, 192 N.E. 668, 671, 95 A.L.R.
1461.
The word also signifies the act, ceremony, or formal
proceeding by which persons take each other for
husband and wife. Davis v. Davis, 119
Conn. 194, 175 A. 574, 575. In old English law,
marriage is used in the sense of "maritagium," (q.
v.,) or the feudal right enjoyed by the lord or
guardian in chivalry of disposing of his ward in
marriage.
[Black's Law Dictionary, Fourth Edition, pp
1123-1124]
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