Eminent Domain – Creating a Law Unto Themselves

EMINENT DOMAIN

CREATING A LAW UNTO THEMSELVES

RE-KINDLING THE AGE OF REASON

“The best way of determining disputes and of investigating truth is by ascending to elementary principles.” Alexander Hamilton

It matters not the cultural background of the citizens of this Nation. Whether they be Native American, Hawaiian, Asian, European, African or of the islands of the sea, the protection of the Constitution does not recognize cultural barriers. The two basic laws that the Constitution protects under the Common Law are first, do what you agree to do, contract and second, do not encroach upon another’s’ rights those being, life, liberty and property.

LET’S MAKE A LAW

In preparation for making this tax law, I would guess that the first question would be — Do we have jurisdiction?

Question number two — Do we have exclusive or limited jurisdiction?

Now if we were in Congress, we would look to the United States Constitution for our jurisdiction. It is the Constitution which defines the “scope” of governmental authority or “sovereignty”.

“The Constitution created a Federal Government of limited powers. . . .” To affirm this Justice O’Connor cites the comments of James Madison;

“The powers delegated by the proposed Constitution to the federal government are few and defined.” (The Federalist, No. 45)  1

Article I, Section 1 states; “All legislative powers herein granted shall be vested in a Congress of the United States, . . .” The “legislative powers” of Congress, according to Article I, Section 1 can be found in the Constitution. Reading further in to Article I, we come to Section 8 which states;

“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; Continuing to itemize the powers of Congress, Section 8 lists;

2.To borrow money on the credit of the United States;

3.To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes;

4.To establish an uniform rule of naturalization, and uniform Laws on the subject of bankruptcies throughout the United States;

5.To coin money, regulate the value thereof, and to foreign coin, and fix the standard of weights and measures;

6.To provide for the punishment of counterfeiting the securities and the current coin of the United States;

7.To establish post offices and post roads;

8.To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

9.To constitute tribunals inferior to the supreme court;

10.To define and punish Piracies and Felonies committed on the high seas, and offense against the law of nations;

11.To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

12.To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

13.To provide and maintain a Navy;

14.To make rules for the government and regulation of the land and naval forces;

15.To provide for calling for the militia to execute the laws of the Union, suppress insurrections and repel invasions;

16.To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the Service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

Going through the previous sixteen “powers” of Congress finally brings us to clause seventeen. The previous “powers” deal with “things,” clause seventeen deals with “land” over which Congress has “exclusive” jurisdiction or authority.

17.To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles squares) as may, by cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards and other needful buildings; — and

18.To make all laws which shall be necessary and proper for the carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or any department or officer thereof.

The key element of directive clause seventeen of Article I, Section 8, is the word “exclusive.” From the legal dictionary prepared by Henry C. Black (Black’s Law Dictionary, 6th ed.) informs us that “exclusive” is “Appertaining to the subject alone, not including, admitting, or pertaining to any others.”

The antonym to “exclusive” legislation would be “concurrent” legislation, meaning that two or more authorities would have jurisdiction over a given thing.

Please note that NONE of the aforementioned powers has anything to do with the internal affairs of the States individually. The power of Congress is limited to the affairs of the States collectively as they interact with each other. For example; collect taxes for the general welfare and common defence of the nation as a whole, no special interests or lobbies; a common credit system for the nation as a whole; regulate commerce with foreign nations and among; a uniform monetary system (gold or silver, not Federal Debt money). You examine each of the seventeen itemized powers granted to Congress by the people, and not one deals with the internal affairs of the States.

This supports the conclusion that the United States Constitution was drafted to establish a government uniting the several States. The Constitution is a definition and limitation of authority on the government, the Constitution was not established to operate on the people. It is this concept of “sovereign emmunity” used so effectively by the Internal Revenue Service. In relation to the Constitution, the people are sovereign, and it is ludicrous to presume that the people would confirm a authority which would or could be used against them and their property.

A land mark case which came down from the Supreme Court under the leadership of Chief Justice John Marshall, elaborated on several key issues;

(1) “This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent . . .”; (2) “If any one proposition could command the universal assent of mankind, we might expect it would be this — that the government of the Union, though limited in its powers, is supreme within sphere of action. This would seem to result necessarily from its nature.”; (3) Though any one State may be willing to control its operations, no State is willing to allow others to control them.; (4) “This constitution, and the laws of the United States, which shall be made in pursuance thereof, . . . Shall be the supreme law of the land”; (5) We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. . . . Let the ends be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”; (6) That the power of taxation is one of vital importance; that it is retained by the States; that it is not abridged by the grant of a similar power to the government of the Union; that it is to be concurrently exercised by the two governments: are truths which have never been denied. But, such is the paramount character of the constitution, that its capacity to withdraw any subject from the action of even this power, is admitted.”

Still quoting from the Chief Justice’s opinion; “This great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the clause has been supposed to depend. These are, 1st. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve. 3rd. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.”

“All subjects over which the sovereign power of a State extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident. (8) The sovereignty of a State extends to every thing which exists by its own authority, or is introduced by its permission. (9) The power to tax involves the power to destroy.”  2

The liberal interpretation of the powers of Congress eventually lead to Roosevelt’s New Deal, the Welfare State, Social Security, etc. Yet the fundamental principles of Marshall’s elaborate discourse set in motion interesting questions especially in discovering the source of State and Federal sovereignty.

Lest we forget, the power to tax is co-existent with sovereignty. It is a power inherent in the ruler, the king or the government. If a “thing” is within the “scope” of government sovereignty, then according to Marshall, that government has the right to tax the “thing.”

In the M’Cullock decision, Marshall stressed the principle that the State of Maryland could not tax the operations of corporation of the United States government on the principle that the corporation’s creation was a result of “all” the people of the Union and is therefore a “creature” and “creation” of the Federal Government. The Federal Government is therefore the “sovereign” and not the State, in this case.

If we can apply these principles to individual State creations, then the power of the Federal Government is prohibited from taxing creations of the State. And . . . . Still further, . . . . Since the State did not create the natural rights of the people, can either the State or the Federal Government claim the status of “sovereign” over the natural rights of the people? Most important, the natural right to property. The answer is self-evident — NO WAY!!!!!!

Neither the State nor the Federal Government, in their “limited” roles as “sovereigns” can tax the people directly. The Federal Government in particular is prohibited from taxing State citizens, either “exclusively or concurrently.”

The “exclusive” jurisdiction then of Congress extends over the territories listed in clause 17 and only these. But what is wrong with the picture when we see all of the government controlled land upon which there are no “forts, magazines, arsenals, dock-yards and other needful buildings.” The “National Forests and Parks” certainly are not the “Seat of the Government of the United States,” yet the United States Congress is exercising “exclusive” jurisdiction over these vast estates.

EXECUTIVE POWER

Article II of the United States Constitution spells out the “executive” authority that the people give to the President of the United States. The executive branch of government has the duty “of carrying the laws into effect and securing their due observance.” (Black’s Law Dictionary) Section 2 outlines the duties of the President;

1.Commander-in-Chief

2.Power to grant reprieves and Pardons for offenses against the United States, except in Cases of Impeachment.

3.Make treaties

4.Appoint ambassadors, other public ministers and consuls, Judges to the Supreme Court

Unless I am mistaken, I don’t see any legislative authority here, yet we have Presidents issuing executive orders which are published in the Federal Register and in many instances have the force and effect of legislation upon the people.

There are agencies of the Executive Branch of Government, one that stands out is our friendly Internal Revenue Service, as they issue regulations that can impose penalties upon the people.

One example which has been imposed upon many is the altering of the individual’s W-4 statement which you complete (in error) with your employer. Look as long as you may, you will never find any legislative authority in a statute passed by Congress that allows the IRS to change or alter a government document or assess a penalty against the individual in the case of the W-4.

EMINENT DOMAIN

One of the major stumbling blocks which stands in the way of free men and women in exercising their rights is this concept of “eminent domain.” This principle gives the government a foundation for all its’ “police powers”: Taxation, license, privilege, traffic and other governmental regulation, control of property, etc. Eminent domain is a right exercised by the “sovereign” over property. As the legal profession is currently defining it, the government, state and federal are the “supreme sovereign.” This particular concept has serious defects as it stands in opposition to the principles of our Constitution.

If the premise is faulty, then all conclusions drawn therefrom are in error.

“There must be a common basis for federal and state eminent domain, and it is found in sovereignty pure and simple.”  3

“That government is a sovereign within its sphere as the States are within theirs. True, its sphere is limited. Certain subjects are committed to it; but its power over those subjects is as full and complete as is the power of the State over the subjects to which their sovereignty extends. . . .

But, if the right of eminent domain exists in the Federal government, it is a right which may be exercised within the States, so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.”  4

GOVERNMENT’S CLAIM TO SOVEREIGNTY

Those of you involved in the Hawaiian Sovereignty struggle imprint this axiom into your mind — the basis for federal and state eminent domain is found in sovereignty — pure and simple!!!

Government’s claim to sovereignty is clearly a presumption. Over the years it has taken the identity of a sovereign by slowly assuming control over the property of this nation. Our State and Federal governments have made us all “merchants” dealing in commerce and therefore subject to the excise tax called an “employment tax” measured by the income received. They have led us into the error of believing that we are “employees” and “employers” in a “legal” relationship which translates into a “master” and “servant” relationship, a relationship under Commercial law.

Remember now, that Commercial law, Law Merchant, Roman Civil Law, — all are governed by Admiralty law. Admiralty law now having been brought back onto the land. We will get into this employee/employer relationship a little later and see how it make us liable for the Employment and Social Security taxes.

To properly understand this concept of “sovereignty” there are questions which come to mind, such as what is a sovereign, where does the sovereign’s authority come from, and what powers do sovereigns hold?

What is a sovereign?

A sovereign is the author of law — the sovereign is not subject to the law, the sovereign is not above the law, but is immune from suit under the law because:

“When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power.  5

There is no higher authority. This is the reason for these “sovereign immunity” statutes passed by Congress which prohibit the citizen from filing suit against the United States or Officer of the government. The fallacy of this thinking is in the mis-conception that the United State is “sovereign.”

Who has claim to sovereign powers?

1. This nation was established as a Christian nation which recognized the Christian God as the Creator of the earth, thus He is the “sovereign” — the ultimate authority — of the earth, in particular this nation.

2. Each individual exercising “God-given” rights and talents creates property over which that individual now becomes sovereign. The master over his own.

3. As the people band together into a society, they create a “government.” The People, collectively, now constitute a “sovereign” and as such can give to government certain “sovereign” powers which they posses and can exercise within the community.

“. . . sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, . . .”

As government is organized, those “things” which it creates now become subject to government authority under the sovereign powers.

All of this lends support to the principle of sovereignty expounded by Supreme Court Chief Justice John Marshall;

“The sovereignty of a state extends to every thing which exists by its own authority, or is introduced by its permission.” 6

Let’s take some “license” with this principle and go further; “Sovereignty extends to every thing which exists by its own authority, or is introduced by its permission.” Can we with justification say this? Can the “first principles” of sovereignty apply to any person or thing that has the capacity to create? — I think we are safe in saying — yes!

By the operation of this law, or axiom; who created the Federal Government? Who created the States? Who created the people? The rule of law now is that the “creation” is “subject” to the “creator.” Or, in each case the creator is the “sovereign.”

To the first question as to WHO created the government, there has been little debate or argument since Justice Marshall’s decision in the M’Cullock case. The State of Maryland argued that since the States created the government the States were in the position of being “sovereign” and could therefore tax the bank created by the United States government.

Justice Marshall authoritively put that concept aside emphasising that it was the people’s government quoting the preamble to the Constitution “We the People, in order to . . . . do establish this Constitution for the United States of America.” There are still pros and cons to that conclusion . . . . the point that is made here is that since the States did not create the federal government, the State of Maryland, could not exercise a “sovereign” power — taxation — against the bank. Maryland is not the “creator” in this instance. BUT! Whether or not Justice Marshall knew it or not; he admitted that the people — you and I — us everyday run-of-the-mill people; we are the “sovereign.”

This same rule of law applies to the relationship between the people and the State. The taxing power of neither the federal nor state governments can not reach the people in their natural enviroment, exercising their natural rights.

The question now becomes what “sovereign” powers can be delegated to this government which the people have created? This question is more effectively answered by showing what powers can not be given to govenment. Ezra Taft Benson, former president of the Church of Jesus Christ of Latter-Day Saints (Mormons), and former Secretary of Agriculture in the Eisenhower Administration discribes this axiom in these terms;

“… The proper function of government, then, is limited to those spheres of activity within which the individual citizen has the right to act. … It cannot claim the power to redistribute money or property nor force reluctant citizens to perform acts of charity against their will. … No individual possesses the power to take another’s wealth or to force others to do good, so no government has the right to do such things either. The creature cannot exceed the creator. . .”

“The individual citizens delegate to the (government) their unquestionable right to (lawful defence). (Government) now does for them only what they had a right to do for themselves — nothing more….

“Suppose (individual) ‘A’ wants another horse for his wagon. He doesn’t have the money to buy one, but since (individual) ‘B’ has an extra horse, he decides that he is entitled to share in his good fortune. Is he entitled to take his neighbor’s horse? Obviously not! If his neighbor wishes to give it or lend it, that is another question. But so long as (individual) ‘B’ wishes to keep his property, (individual) ‘A’ has no claim to it.

If ‘A’ has no power to take ‘B’s property, can he delegate any such power to the (government)? No! Even if everyone in the community desires that ‘B’ give his extra horse to ‘A’, they have no right individually or collectively to force him to do it. They cannot delegate a power they themselves do not have. This important principle was clearly understood and explained by John Lock nearly 300 years ago;

“… nobody can transfer to another more power than he has in himself, and nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another.” John Locke, Two Treatise of Government, Book II.  7

Anyone or any thing that claims the role of a sovereign, does not have unlimited power. On the contrary, of the four classes of sovereignty, (God, man, society, government) only the first can lay claim to total sovereignty. The rest have limited sovereign powers as indicated by John Marshall.

Sovereignty then being expansive in nature, is limited by the “sphere” in which it is created. It expands only as its’ creations expand. Thus as the creations of government expand, so the capacity of the people expand, — the individual — and so on. As the individual expends his labor, his skills, his faculties — his domain is expanded, and he remains the “sovereign” over that domain, not being subject to any outside interference except according to the “law of the land.”

“The creation cannot exceed the creator.”

This being said can we answer, What “things” does government create for which it can claim sovereignty over?

Government creates offices and employ officers to fulfil its’ constitutional obligations as outlined in Article I, Section 8 of the Constitution. These “creations” now become subject to the “sovereign” powers of government. This is why government can tax the wages and salaries of public officials. Public officials hold office at the pleasure of government, or privilege. Privilege occupations are subject to the Income Tax, BECAUSE, the Income Tax is an excise tax, in this case on privilege, and the income is used as a measure of the tax. Lest we forget, the tax is ON privilege and INCOME is only the measure. The tax is not on income.

With this in mind listen to the language of the definition of “employee” as contained in the “Withholding of Income at the Source” (26 Code of Federal Regulations Part 31.3401(c)-1;

(a) The term employee includes every individual performing services in the relationship between him and the person for whom he performs such services is the legal relationship of employer and employee. The term includes officers and employees, whether elected or appointed, of the United States, a State, Territory, Puerto Rico, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one of the foregoing.

AGAIN from the Federal Register, Tuesday, September 7, 1943 (Collection of income tax at source of wages), page 12267:

  1. The term “employee” includes an officer, employee, or elected official of the United States, a State, Territory, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term “employee” also includes an officer of a corporation.
  2. § 404.104 Employee. The term “employee” includes every individual performing services if the relationship between him and the person for whom he performs such services is the legal relationship of employer and employee. THE TERM SPECIFICALLY INCLUDES OFFICERS AND EMPLOYEES WHETHER ELECTED OR APPOINTED, of the United States, . . .

I will come back to this unique and interesting definition later. What about government authority over an individual’s property? Did government create property? Does our property exist by the authority of government?

“Man can live and satisfy his wants only by ceaseless labor; by the ceaseless application of his faculties to natural resources. This process is the origin of property.” 8

Government produces nothing, — it only consumes, therefore, government cannot create property. The Constitution does not give authority to government to compete with the people. As Thomas Jefferson reminds our Congress:

“Our legislators are not sufficiently apprized of the righful limits of their powers; that their office is to declare and enforce only our natural rights and duties, and to take none of them from us. No man has the natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should inforce on him; and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third. When the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded, that on entering into society we give up any natural right. The trial of every law by one of these texts, would lessen much the labors of our legislators, and lighten equally our municipal codes.” 9

“Life, liberty, and property do not exist because men have made laws (government). On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws (government) in the first place.” 10

Federal government ownership in land is limited to the District of Columbia, military properties and the territories, etc. as identified in Article I, Section 8, cl. 17 of the United States Constitution;

“. . . , and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, . . .”

These purchases of property now become subject to the “sovereign” powers of the government. This is also the limit of Federal Legislative Authority (Caha vs. U.S., 152 U.S. 211; 35 U.S. 662, 737; Foley Bros. vs. Filardo, 336 U.S. 281)

Did the government create the land or does the land exist by government’s permission? — NO! What claim do the people have upon the land? None, except that the people received a “stewardship” from the creator of the land — God! (Genesis chapters 1 & 2)

Except as applied to objects which it creates or exist by its’ authority, government’s claim to sovereign powers over lives, liberties, and property of the people is faulty — it cannot, and should not stand. From this point on all conclusions based upon government sovereignty over the property of the people are without foundation.

GOVERNMENT’S CLAIM TO EMINENT DOMAIN . . .

FOUNDATION BUILT ON SAND

As conceived, this conception of ‘eminent domain’ derives its authority from the doctrine of “inherent sovereign power.” That is, the government is blessed with the power of eminent domain because of its creation. (Encyclopedia of United States Supreme Court Reports, p.  750)   Government basis its right to the power of eminent domain as derived from the axiom;

“…, Whenever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.” 11

It is this axiom which gives the concept of eminent domain its life. The government uses the “Necessary and Proper” clause in the Constitution 12, with this axiom to extend its power and control over property. Better known as the “takings”doctrine. 13

To better understand the misrepresentation or “stretching” of this concept, the origin of “eminent domain” should be known. Eminent domain is a “Feudal” concept 14 emanating from socialistic ideals where the King is the “fountain of Law.” In these countries indeed the government is the “sovereign” because the King is the government and;

“All property is held by tenure from the state, and all contracts, are made subject to the right of eminent domain.” 15

There is an interesting word to look up, “tenure:”

“Tenure: In feudal law. The mode or system of holding lands or tenements in subordination to some superior which, in feudal ages, was the leading characteristic of real property.

Tenure is the direct result of feudalism, . . .” 16

It is treason for anyone to teach a doctrine such as this.

Legal writers seem to fall into the same trap. They seek for definitions and examples from feudal societies and then extend the definitions and examples to our constitution — it won’t work. 17 No other government in existence currently or in ages past, can compare with the constitution drafted for this Nation. Keep in mind that this Nation overthrew the feudal control of the British Empire over the land. Its attempt to return must be fought at every turn. The concept of eminent domain is inconsistent with our free republican government.

Supreme Court Justice O’Connor had the right concept of governmental power when she quoted a previous decision United States vs. Butler handed down in 1936;

“Congress exercises its conferred powers subject to the limitations contained in the Constitution. Thus, for example, under the Commerce Clause Congress may regulate publishers engaged in interstate commerce, but Congress is constrained in the exercise of that power by the First Amendment. . . .

. . . Our task would be the same even if one could prove that federalism secured no advantage to anyone. It consists not of devising our preferred system of government, but of understanding and applying the framework set forth in the Constitution. ‘The question is not what power the Federal Government ought to have but what powers in fact have been given by the people.’ (U.S. vs. Butler)” 18

A NEW EXPERIMENT IN GOVERNMENT

The establishment of this new nation has its foundation outlined in the Declaration of Independence, without which the nations formation would be illegal. The Declaration states the reasons for separation, it goes hand in hand with the Constitution. It seems, however, inconsistent that after removing the causes for revolution, we turn around and see they have made there way back into our society.

The principles which founded this nation are laid out in the Declaration of Independence. The Supreme Court, which every once in awhile makes a profound observation, expanded on these principles:

“As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all actions, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the Declaration of Independence, that new evangel of liberty to the people: ‘We hold these truths to be self-evident’ — that is so plain that their truth is recognized upon mere statement — ‘that all men are endowed’ — not by edicts of Emperors, or decrees of Parliament, or acts of Congress, but ‘by their Creator with certain inalienable rights’ — that is, rights which cannot be bartered away, or given away, or taken away except in punishment of crime — ‘and that among these are life, liberty, and the pursuit of happiness, and to secure these’ — not grant them but secure them — ‘governments are instituted among men, deriving their just powers from the consent of the governed.’” 19

As pointed out this foundation is based upon the principle “that all men are endowed by their Creator with certain inalienable rights”, and basically these rights are, the right to; 1) Life; 2) Liberty,and; 3) the pursuit of happiness. The “pursuit of happiness” being defined as the free exercise of one’s labor to acquire property.

To understand the true concept of eminent domain in this republic, it is essential to understand the concept of individual ownership of property and the relationship to our basic rights.

With respect to property, former Supreme Court Justice George Sutherland has put these principles into the proper perspective, when during an address he stated;

“Property, per se, has no rights, but the individual– the man — has three great rights, equally sacred from arbitrary interference; the right to life, the right to liberty, and the right to property. The three rights are so bound together as to be essentially one right. To give man his life, but deny him his liberty, is to take from him all that makes life worth living. To give him liberty but take from him the property which is the fruit and badge of his liberty, is to still leave him a slave.” 20

These then make up the basic fundamentals supporting our rights, a “birth right” inherent to all, property being the foundation. And thus is also laid the foundation for the purpose of government. When government fails to protect these interests — that government loses its purpose for existence.

Of these three great pillars of our natural rights mentioned by Justice Sutherland, property stands out because it represents the “fruit” and “badge” of man’s liberty and labor. By looking at the fruit of our labor (property), what has happened to it, in this case under the guise of eminent domain, we can best judge the condition of our liberty.

PROPERTY — WHO OWNS IT!

It is only right then for us to understand “property,” what it is, and by what means government is taking it away from us. In respect to the origin of property, Frederic Bastiat makes this observation;

“Man can live and satisfy his wants only by ceaseless labor; by the ceaseless application of his faculties to natural resources. This process is the origin of property.” 21

I think that we can all relate to that principle, yet look what our socialized legal department says concerning the origin of property;

“The principle is well established that property is a creature and creation of law.” 22

Talk about getting the cart before the horse! This concept must have been drafted by the IRS and Tax Courts. Some government circles declare that wages, compensation, salaries, etc., are not property. 23 I am not sure how they arrive at that, all that I read tells me that one’s labor, talents, skills, whatever, are one’s property, natural rights derived as a result of our creation. What magical formula is used to change labor, which is property before it is applied, to a non-property item after is beyond me. As before mentioned, property does not exist because men made laws. It is because these rights existed in the beginning which cause men to make laws to protect them. It appears that our legal community would like to educate us in its socialistic concepts of rights by turning them into “privileges.”

It would appear that our government is trying to condition our thinking that we are here as a matter of “privilege” and not by right. In a recent appearence I had in traffic court, the temporary judge, David Fong, presented me with the question, “do you think that the use of our roads is a right or privilege?” My answer was by right! To which Mr. Fong answered, “wrong!” Talk about a prejudice opinion!

Property can take the form of many things. Things that can be seen and also things that can not be seen. The general consensus, and as understood by us laymen, is that essential elements of property are; (1) a valuable right or interest … (2) the exclusive right to possess, enjoy, and dispose of a thing … or … control.  24

Property consists not only in land, cars and the like; also it takes the form of labor, contracts of employment, wages or salaries earned, a trade or calling, and so on.  25 Property, having its origin in man’s application of his faculties to the natural resources, recognizes that the person has the natural right to (1) posses, (2) enjoy, (3) dispose of, and (4) lawfully defend his property. In short, he has control! To hinder or eliminate any of the four, or any other elements of property, is to render the others inoperative and is a violation of the sacred right to property.

“…Any thing which destroys one or more of the elements of property to that extent destroys the property itself.” (CJS Property, section 5, p. 169)

And again, what are the elements of property?

1. The right of possession

2. The right to enjoy

3. The right to dispose

4. The right to defend

The misdirection of the courts in this, as in many areas, are based upon faulty premises. For one, the acceptance that “all property is held by tenure” is contrary to the concept of ownership in property conveyed by courts (CJS 73 on “Property”). Secondly, the “feudal” concept of property went out with the Revolutionary War. The fight for independence liberated the land. All rights of property in land in the United States became ALLODIAL TITLES in Allodial Freehold, under no lord or overlord whatsoever, not even the authority of the colony or state. Allodial meaning;

“Free; not holden of any lord or superior; owned without obligation of vassalage or fealty; the opposite of feudal.” 26

Allodial is used in contradistinction to property held under feudal tenure. Property holds a very special place in our system of maintaining freedom. The concept of eminent domain has a “limited” place in government, limited by the principle declared by Chief Justice Marshall. It does not give government a “blank check” over property as some suggest. The clause in the Constitution dealing with the governments “taking” property from the States, says;

“The Congress shall have power …. to exercise like authority over all places purchased by the consent of the legislatures of the State …” 27

Eminent domain has no place in the relationship of the Federal Government with the States. The Government must receive the permission of the State before it can take possession of land within the States’ borders. There are numerous ways to achieve an end, and to limit that path to just one ‘convenient’ direction, is to limit the individual’s capacity to think and reason. If government can only reach a constitutional goal by violating the liberties and property of the citizens then these leaders have certainly been misplaced. The courts have stated that it is unthinkable that one liberty need be surrendered in order that another one be enjoyed. 28

It is important to remember this when you feel inclined to believe that you own property. These four elements of “property” must be present as they define the individuals’ “control” of his property. It is what government has done to our control, that draws our attention.

Fools, such that we are! Can we accept this relationship of servant to master? Yet we have done that by letting government define the rules and terms of the game. By accepting license (contract) and the laws and regulations that have been passed by government that put us under subjection and by not raising either voice nor arms against them. By our apathy we have chained our lives. By subjecting ourselves to government by way of contract we have indeed put ourselves in bondage.

As established, our government has no sovereign rights over the people or property. To repeat, the purpose of government is to protect the rights, including property rights, of the individual. Yet governments’ control of property is readily observable by forced taxation, the abuse of administrative power that has been unleashed against the citizens of this country. This is exemplified by actions of government against the native American and Native Hawaiian homelands, against individuals, as those related in the December 1991 issue of Reader’s Digest. 29

This “assumed” authority to regulate property is taken under the “police power” and the false assumption of eminent domain. On the face, these have legitimate defenses, yet when applied in a manner as they are today, that is forced compliance (the mafia call it ‘protection’), we become a serf or caretaker for our government. If we fail or refuse to ‘pay the rent’ to our government, they will forcefully remove us from our property and give it to another who did not work it. This action has the negative effect of law.

Say what you will, the government controls the land and enforces its domination by the police powers. Without control of our property, we do not own it. We rent it from our ‘government partner.’ Control is the essential ingredient of ownership and by control, I mean complete control. If government can interfere in the slightest, then the individual’s control of property is violated. Senator Strom Thurmond, made this statement back in 1964;

“Today, human rights in property are being restricted and threatened as never before. Much of this is being done in the name of ‘social justice’ and ‘civil rights.’ What it all adds up to, however, is an attempt to level all men by government regulation and rule. This is so-called economic equality, better known as socialism.” 30

An article in Reader’s Digest by Representative Jimmy Hayes, portrays the plight of several land owners who spent thousands of dollars fighting government bureaucrats in court (EPA and the 1972 Clean Water Act), for the right to control their land and ending up losing, and paying hundreds of thousands of dollars in fines and spending time in prison. 31 If this isn’t a clear violation of property and control of individuals under the false assumption of eminent domain and police powers — and we set by and let it happen! The hypcracy of this government calling other nations on the carpet for human rights violations, when this government is replete with human rights violations.

Property does not exist because of government, nor was it introduced by its permission! If the right does not exist in nature, it cannot be created or removed by majority vote! The power or authority, for government to take another’s’ property, whether it be money or land, or whatever, has never existed, because those who created this government did not posses the right. Therefore;

“The right never existed, and the question whether it has been surrendered, can not arise.” 32

It never hurts to re-emphasize one of the correct principles the court recognized;

“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” 33

Milton Friedman’s analysis … that economic equality is in direct opposition to liberty stands as a foundation principle to efforts of government to impose socialistic programs on us. Redistribution of the country’s wealth by compulsion, no matter how “honorable” the intentions of the government, is unconstitutional. Yet this is the plan that was proposed by the democratic presidential candidate, Bill Clinton (1992) at the convention. Increase the taxes on the wealthy so they pay their “fair share.” Now there is a very ambiguous phrase, “fair share!” Fair share of what? Supporting government waste? Imposing “universal health care” for all the people is a misdirected effort of the Administration and Congress.

Government’s foundation to these abusive powers over property by way of the police powers of taxation and seizure by “right” of eminent domain, are built on sand. The only legitimate claim that government can have is that of the ‘lawful defence’ of rights, property, etc., because these are rights we all hold in common.

In many instances it is difficult to comprehend our status in today’s society. On the one hand we are injected with the view that we are free, yet on the other, government continues to increase its control upon us. It is said that “if you tell the people a lie often enough they will begin to believe it.” We hear what government is saying but what is being imposed upon the American people is at the opposite pole.

Yes, eminent domain is an element of sovereignty, but in respect to property, government, under this Constitution, is not sovereign and property is not feudal. Therefore the conclusions drawn by government are wrong. Historians of the Constitution generally conclude that private property and property rights came before government and was not subject to control by popular majority. 34 There is no factual foundation for government’s claim to eminent domain over the property of the people of this Nation.

Everything that our government “servants” want to do to us in the way of income taxation, property taxation, driver’s license, traffic regulations, the taking of our property, and a host of other “restrictions” are done under this doctrine of eminent domain. It’s time we educated ourselves and told our government servants to hold the line. Don’t give in to forced taxation or government licensing and regulation. As long as you are a responsible individual, there can be no restrictions upon your liberties or property.

Let’s return to the problem of government taking a cut of our labor without due process. For those interested and are tired of the government taxing their employment and for you employers, you also could save considerable in knowing this. The Internal Revernue Service will never tell you, but the condition that makes the “employee” and the “employer” subject to the “employment tax” is the “employee/employer” relationship.

Now you might say — how can we avoid (now avoiding a tax is legal) the tax. You look at the definition of the “employee/employer” relationship as defined by Congress. The definition of employee SPECIFICALLY exempts the individual for the requirements of completing the W-4 Form. Back to the definition disclosed earlier, 26 CFR Part 31 § 3401(c)-1 clearly states:

(a) The term employee includes every individual performing services in the relationship between him and the person for whom he performs such services is the legal relationship of employer and employee. The term includes officers and employees, whether elected or appointed, of the United States, a State, Territory, Puerto Rico, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one of the foregoing.

AGAIN; from the Federal Register, Tuesday, September 7, 1943 (Collection of income tax at source of wages), page 12267:

(c) The term “employee” includes an officer, employee, or elected official of the United States, a State, Territory, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term “employee” also includes an officer of a corporation.

§ 404.104 Employee. The term “employee” includes every individual performing services if the relationship between him and the person for whom he performs such services is the legal relationship of employer and employee. THE TERM SPECIFICALLY INCLUDES OFFICERS AND EMPLOYEES WHETHER ELECTED OR APPOINTED, of the United States, . . .

To understand this definition you need to know that a “Legal relationship” is a relationship created by law, or privilege.  35

According to the definition of “employee” for withholding purposes and in as much as the employee and employer relationship to which we entered into is not a “legal” relationship, but a “lawful” relationship (a relationship that exists as a “natural right”) the requirements of 26 USC 3402 (the imposition of the employment tax), does not apply. In addition, the language of the law specifically applies to: “. . . an officer, employee, or elected official of the United States, a State, Territory, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term “employee” also includes an officer of a corporation.”

The same applies to the Social Security requirements. According to the definition of employee for Social Security purposes, 26 Code of Federal Regulations Part 31.3121(d)-1 states;

WHO ARE EMPLOYEES

(5)(c)“Common law employees. (1) Every individual is an employee if under the usual common law rules the relationship between him and the person for performs services is the legal relationship of employer and employee.”

Check it out!

For those not familiar with Common law relationship will recognize the term “Common law marriages.” What is unique about this type of relationship? The government is not consulted, nor is request made from government to enter into the relationship. The Common law recognizes “legal” relationships because the Common law contemplates the individual’s natural right to contract. If the individual “voluntarily” enters into a contract with the government to work, this is fine. Then the government will require the employer to withhold Social Security taxes, Unemployment Taxes and Federal Taxes. The State also gets into the action with its “resident” tax. Did you know that to live in the State of Hawaii is a PRIVILEGE? Even the native Hawaiians should feel proud that the State of Hawaii is allowing them the remain here as a privilege. How insulting. Check it out! The State tax is imposed upon “residents” and is measured by the income you make as a result of that privilege.

Think about it Americans, the Federal and State Income Taxes are EXCISE taxes. They have to be — and excise taxes are on privilege — because the government gives you permission to live here. Remember Supreme Court Justice Marshall comments on those thing that are subject to taxation under government’s “sovereign” power to tax??? “If the thing exists by its permission.”

The only way government can tax us is by making our natural rights — privileges. Now they can make you get a license for you car, they can make you buy insurance, they can make you get a drivers license, license your private business ——— AND THEY CAN TAX IT!!!

Again the terms “legal” and “lawful” are not synonomous. Legal denotes that the government will allow the act or relationship. When is the last time you went down and asked the government if you could go to work in the private sector?

We have got to work together on this problem, and it is an education problem. Fighting the government’s continued effort to re-educate our thinking. We need a home schooling for our children to counter the dis-information they receive at the government schools. The basic principles of our Constitution and the liberties it is to protect needs to be rekindled in the minds and hearts of our youth. The abuses of government need to be fought on every front at home, in the community, the State and Federal level. Do not give in. Freedom is not free — it must be earned and maintained.

“People who lose hope are easy to control;

those who have control have the power.”

(The Never Ending Story)

NOTES:

1 . Gregory v. Ashcroft, 501 U.S. 452, 457, 458

2. M’Cullock vs. Maryland, 4 Wheaton 316

3. “The Law of Eminent Domain in the United States,” by Carman F. Randolph

Little, Brown, and Co. (1894); p. 3

4. . Kohl v. U.S., 91 U.S. 367, 372

5. Yick Wo vs. Hopkins, 118 U.S. 356, 369-370

6. M’Culloch vs. Maryland, 4 Wheaton 316, (1819), p. 429

7. Taken from an address by Ezra Taft Benson, [former Secretary of Agriculture in the Eisenhower administration] “The Constitution, A Heavenly Banner,” p. 9

8. Frederic Bastiat, The Law

9. Letter from Thomas Jefferson, to Francis W. Gilmer, June 7, 1816,

10. Frederic Bastiat, The Law

11. Charles A. Beard, “The Enduring Federalist”

12. U.S. Constitution, Article I, sec. 8, cl. 18

13. “Constitutional Choices,” Lawrence H. Tribe, chapter 12

14. Black’s Law Dictionary, 6th ed., “Tenure”

15. Encyp. of Supreme Court Decisions, p. 751

16. Black’s Law Dictionary, 6 th ed.

17. See, The Law of Eminent Domain in the United States

18. New York vs. United States, S. Ct., 91-543 [1992]

19. Butchers’ Union Co. vs. Crescent City Co., 111 U.S. 746, at page 757

20. Justice George Sutherland, address to the New York Bar Association, Jan. 21, 1921; See also Lynch v. Household Finance Corp., 405 U.S. 538, at 552

21. Fredric Bastiat, “The Law,” p. 10

22. “Property,” 73 C.J.S., section 7, p. 172

23. “Featherstone vs. Norman,” 70 A.L.R. Annotated, 450

24. Section 73, “Corpus Juris Secundum,” — “Property”

25. “Property,” section 12, pp. 181-182

26. Black’s Law Dictionary, 6th ed., “Allodial;” See also the decision of the Supreme Court of Pennsylvania; Wallace vs. Harmstad, 1863

27. U.S. Constitution, Article I, sec. 8; clause 17 gives the limits to the legislative jurisdiction of the Federal Government.

28. Murdock vs Pennsylvania, 319 U.S. 105

29. Danger! Bureaucrats at Work, Reader’s Digest, Dec. 1991; p. 112-116

30. Quoted by Ezra Taft Benson, “An Enemy Hath Done This,” p. 20

31. “Danger! Bureaucrats at Work,” Reader’s Digest, December 1991, p. 112-116

32. Chief Justice Marshall, Supreme Court decision, “M’Cullock vs. Maryland,” at p. 431

33. Supreme Court decision, “Miranda vs. Arizona,” 384 U.S. 436 at 491. To abrogate, means to abolish, repeal or annul; “Webster’s Dictionary”

34. Charles A. Beard, “The Enduring Federalist”

35. Black’s Law Dictionary

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