I found this at http://www.groups.yahoo.com/group/posterityclub
Subject: Administrative Summons/ traffic ticket

Court or Tribunal

Behold! Newsletter, July 1989
Copy Right: July 1989
by Randy L. Geiszler, email: behold@teleport.com

Recently I have been doing some research on the nature and character of Administrative Summons enforcement proceedings. The administrative summons is what is sometimes referred to as a "pocket summons." It is issued by an agent of the Internal Revenue Service, which is the most common, or an agent of some other agency, on statutory authority, without intervention of a court of Article III judicial authority.

The process (administrative summons) is a form of civil process prescribed by statute in certain cases relative to the statutory authority of the agent issuing same. If it were criminal process it would fall in the class of "blank warrants" which once prevailed in England. See Bouvier's Law Dictionary, 8th Ed., Vol. 2, p. 641, title, "WARRANT," on blank warrants.

Issuing blank warrants was considered a reprehensible practice and "In the year 1763, (just prior to the American Revolution) the legality of these general warrants was brought before the King's Bench for solemn decision; and they were adjudged to be illegal, and void for uncertainty." Story's Commentaries on the Constitution, Vol. 3, ss. 1895 (1833).

 But, because in most cases the administrative summons' are a form of civil process, they do not fall within the injunction of the Fourth Article in amendment to the united States Constitution, which limits the conditions under which "warrants" (a form of criminal process) are allowed to be issued. This fact, among others, is what allows the judge or magistrate in an administrative summons enforcement proceeding, to avoid application of the limitations of the Fourth Article in amendment, to the due process clause of the Fifth Article in amendment. For a contrary opinion, see Boyd v. U.S., 116 U.S 616, 6 SCt 524, 29 LEd 746, which will be explained later.

 The administrative summons, beyond being civil process, is a strictly internal form of process used by Congress and the executive, when empowered by Congress, to control the internal affairs of government. The process lies in what might be called a fourth jurisdiction in the Constitution. A jurisdiction that appears judicial on the surface, but actually is a legislative jurisdiction. A jurisdiction which appears to vest Article III courts with power of adjudication, but which, in reality, only vest judges or magistrates with a legislative power, outside the court, directly under the statute authorizing the enforcement proceeding, to enforce the summons in the jurisdiction of a "tribunal" - not a "court."

 This internal statutory legislative jurisdiction came to light in the supreme Court a long time ago in the case of Martin v. Mott, 12 Wheat, (25 U.S.) 19, 6 L.Ed. 537 (1827), and had been initiated earlier in the circuit court in 1792. Mott, being a "white Citizen of the State of New York," was called to serve in the militia in a war between the united States and England and Ireland. He refused service in the militia for which he was tried by a Court Martial. Mott sued out a writ of error in the supreme Court of the United States where the Court held that the jurisdiction exercised in requisitioning him (Mott) into service of the militia, was solely an executive jurisdiction vested in the President by the Constitution. As a consequence, the Court further held, that it had no jurisdiction to revise the findings of the Court Martial, because the court was not a judicial body. In bringing this decision the Court made it clear that the governing of the militia or the requisition of Citizens into the militia, and the question of the necessity to requisition, were not matters confided in the Judiciary under the Constitution, Article III. Therefore, the Court Martial, although called a court, was not a part of the judiciary established under Article III, but instead was a tribunal established under the executive by authority of a declaration from Congress and statutes enacted by Congress. As an implied consequence of the fact that there can be no war without declaration by Congress, the Court Martial in actuality is a legislative court, since the power of the President to call up the militia shouldn't take affect except upon such declaration of war from Congress. On top of which, any court or tribunal established is usually established by congressional enactment whether under Article III or some other article of the Constitution.

In U.S. v. Ferriera, 13 How. (54 U.S.) 40 (1851), the supreme Court again gave recognition to a special legislative jurisdiction, outside the judicial power of Article III; only this time it appeared to be vested in the District Court of the U.S. The case involved the treaty power of Congress, which could be said to have a peculiar similarity to the power to declare war since both relate to the international law powers vested in Congress by the Constitution. In addition, the facts were similar, in that, the power in question was determined to be exclusively legislative. Congress, by two acts passed in 1823 and 1824, (3 Stat. 768 and 6 Stat. 560) directed the judge of the Territorial Court of Florida to receive, examine, and adjudge all cases of claims for losses (under a treaty of 1819, between the United States and Spain), and report his decisions, if in favor of the claimants, together with the evidence upon which they were founded, to the Secretary of the Treasury, who, on being satisfied that the same was just and equitable, within the provisions of the treaty, should pay the amount thereof; and by an act of 1849, (9 Stat. 788) Congress directed the judge of the District Court of the United States for the Northern District of Florida, to receive and adjudicate certain claims in the same manner directed by the preceding acts.

Justice Taney, writing for the Court, after noting  "This purports to be an appeal from the District Court of the United States for the Northern District of Florida" relates this, in the Court's opinion, about the special jurisdiction exercised by the district court judge in that case:

 "Undoubtedly Congress was bound to provide such a tribunal as the treaty described. But if they failed to fulfill that promise, it is a question between the United States and Spain. The tribunal created to adjust the claims cannot change the mode of proceeding or the character in which the law authorizes it to act, under any opinion it may entertain, that a different mode of proceeding, or a tribunal of different character, would better comport with the provisions of the treaty. If it acts at all, it acts under the authority of the law and must obey the law.

 "The territorial judges therefore, in adjusting these claims derived their authority altogether from the laws above mentioned; and their decisions can be entitled to no higher respect or authority than these laws gave them. They are referred by the act of 1823, to the treaty for the description of the injury which the law requires them to adjust; but not to enlarge the power which the law confers, nor to change the character in which the law authorizes them to act.

 "The law of 1823, therefore, and not the stipulations of the treaty, furnishes the rule for the proceeding of the territorial judges, and determines their character. And it is manifest that this power to decide upon the validity of these claims, is not conferred on them as a judicial function, to be exercised in the ordinary forms of a court of justice. For there is to be no suit; no parties in the legal acceptance of the term, are to be made -no process to issue; and no one is authorized to appear on behalf of the United States, or to summon witnesses in the case. The proceeding is altogether ex parte; and all that the judge is required to do is to receive the claim when the party presents it, and to adjust it upon such evidence as he may have before him, or be able himself to obtain. But neither the evidence, nor his award, are to be filed in the court in which he presides, nor recorded there; but he is required to transmit, both the decision and the evidence upon which he decided, to the Secretary of the Treasury; and the claim is to be paid if the Secretary thinks it just and equitable, but not otherwise. It is to be a debt from the United States upon the decision of the Secretary, but not upon that of the judge.

 "It is too evident for argument on the subject, that such a tribunal is not a judicial one, and that the act of Congress did not intend to make it one. The authority conferred on the respective judges was nothing more than that of a commissioner to adjust certain claims against the United States; and the office of judges, and their respective jurisdictions, are referred to in the law, merely as a designation of the powers to whom the authority is confided, and the territorial limits to which it extends. The decision is not the judgment of a court of justice. It is the award of a commissioner. The act of 1834 calls it an award. And an appeal to this court from such a decision, by such an authority from the judgment of a court of record, would be an anomaly in the history of jurisprudence. An appeal might as well have been taken from the awards of the board of commissioners, under the Mexican treaty, which were recently sitting in this city.

 "Nor can we see any ground for objection to the power of revision and control given to the Secretary of the Treasury. When the United States consent to submit an adjustment of claims against them to any tribunal, they have a right to prescribe the conditions on which they will pay. And they had a right therefore to make the approval of the award by the Secretary of the Treasury, one of the conditions upon which they would agree to be liable. No claim, therefore, is due from the United States until it is sanctioned by him; and his decision against the claimant for the whole or a part of a claim as allowed by the judge is final and conclusive. It cannot afterwards be disturbed by an appeal to this or any other court, or in any other way, without authority of an act of Congress.

 "It is said, however, on the part of the claimant, that the treaty requires that the injured parties should have an opportunity of establishing their claims by a process of law; that process of law means a judicial proceeding in a court of justice; and that the right of supervision given to the Secretary over the decision of the district Judge, is therefore a violation of the treaty.

 "The court think differently; and that the government of this country is not liable to the reproach of having broken its faith with Spain. The tribunals established are subsequently the same with those usually created, where one nation agrees by treaty to pay debts or damages which may be found to be due to the citizens of another country. This treaty meant nothing more than the tribunal and mode of proceeding ordinarily established on such occasions; and well known and well understood when treaty obligations of this description are undertaken. But if it were admitted to be otherwise, it is a question between Spain and that department of government which is charged with our foreign relations; and with which the judicial branch has no concern. Certainly the tribunal which acts under the law of Congress, and derives all its authority from it, cannot call in question the validity of its provisions, nor claim absolute and final power for its decisions, when the law by virtue of which the decisions are made, declares that they shall not be final, but subordinate to that of the Secretary of the Treasury, and subject to his reversal.

 "And if the judicial branch of the government had the right to look into the construction of the treaty in this respect, and was of opinion that it required a judicial proceeding; and that the power given to the Secretary was void as in violation of the treaty, it would hardly strengthen the case of the claimant on his appeal. For the proceedings before the judge are as little judicial in their character as that before the Secretary. And if his decisions are void on that account, the decisions of the judge are open to the same objections; and neither the principal nor interest, nor any part of this claim could be paid at the Treasury. For if the tribunal is unauthorized, the awards are of no value.

 "The powers conferred by these acts of Congress upon the judge as well as the Secretary, are, it is true, judicial in their nature. For judgment and discretion must be exercised by both of them. But it is nothing more than the power ordinarily given by law to a commissioner appointed to adjust claims to lands or money under a treaty; or special powers to inquire into or decide any other particular class of controversies in which the public or individuals may be concerned. A power of this description may constitutionally be conferred on a Secretary as well as on a commissioner. But is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States.

 "The proceeding we are now considering, did not take place before one of the territorial judges, but before a District Judge of the United States. But that circumstance can make no difference. For the act of 1849 authorizes him to receive and adjudicate the claims of the persons mentioned in the law, under the act of 1834; and provides that these claims may be settled by the Treasury, as other cases under the said act. It conferred on the District Judge, therefore, the same power, and the same character, and imposed on him the same duty that had been conferred and imposed on the territorial judges before Florida became a State.

 "It would seem, indeed, in this case, that the District Judge acted under the erroneous opinion that he was exercising judicial power strictly speaking under the Constitution, and has given these proceedings as much of the form of proceedings in a court of justice as was practicable. A petition in form is filed by the claimant; and the judge states in his opinion that the District Attorney appeared for the United States, and argued the case, and prayed an appeal. But, the acts of Congress require no petition. The claimant had nothing to do, but to present his claim to the judge with the vouchers and evidence to support it. The District Attorney had no right to enter an appearance for the United States, so as to make them a party to the proceedings, and to authorize a judgment against them. It was no doubt his duty as a public officer, if he knew of any evidence against the claim, or of any objection to the evidence produced by the claimant, to bring it before the judge, in order that he must consider it, and report it to the Secretary. But the acts of Congress certainly do not authorize him to convert a proceeding before a commissioner into a judicial one, nor to bring an appeal from his award before this court.

 "The question as to the character in which a judge acts in a case of this description, is not a new one. It arose as long ago as 1792, in Hayburn's case, reported in 2 Dall., 409.

 "The judges in the New York Circuit, composed of Chief Justice Jay, Justice Cushing, and Duane, District Judge, held that the power could not be exercised by them as a court. But in consideration of the meritorious and benevolent object of the law, they agreed to construe the power as conferred on them individually as commissioners, and to adjourn the court over from time to time, so as to enable them to perform the duty in the character of commissioners, and out of court.

 "The judges of the Pennsylvania Circuit, consisting of Wilson and Blair, Justices of the Supreme Court, and Peters, District Judge, refused to execute it altogether, upon the ground that it was conferred on them as a court, and was not a judicial power when subject to the revision of the Secretary of War and Congress.

 "The judges of the Circuit Court of North Carolina, composed of Irdell, Justice of the Supreme Court, and Sitgreaves, District Judge, were of the opinion that the court could not execute it as a judicial power; and held it under advisement whether they might not construe the act as an appointment of the judges personally as commissioners, and perform the duty in the character of com missioners out of court, as had been agreed on by the judges of the New York Circuit.

 "These opinions, it appears by the report in 2 Dall., were all communicated to the President, and the motion for a mandamus in Hayburn's case, at the next term of the Supreme Court, would seem to have been made merely for the purpose of having it judicially determined in this court, whether the judges, under that law, were authorized to act in the character of commissioners. For every judge of the court, except Thomas Johnson, whose opinion is not given, had formally expressed his opinion in writing, that the duty imposed, when the decision was subject to the revision of a Secretary and of Congress, could not be executed by the courts as a judicial power; and the only question upon which there appears to have been any difference of opinion, was whether it might not be construed as conferring the power on the judges personally as commissioners. And if it would bear that construction, there seems to have been no doubt, at that time, but that they might constitutionally exercise it, and the Secretary constitutionally revise their decisions. The law, however, was repealed at the next session of the legislature, and a different way provided for the relief of the petitioners; and the question as to the construction of the law was not decided in the Supreme Court. But the repeal of the act clearly shows that the President and Congress acquiesced in the correctness of the decision, that it was not a judicial power.

 "The law is the same in principle with the one we are now considering, with this difference only, that the act of 1792 imposed the duty on the court eonomine, and not personally on the judges. In the case before us it is imposed upon the judge, and it appears in the note to the case of Hayburn, that a majority of the judges of the Supreme Court were of opinion that if the law of 1792 had conferred the power on the judges, they would have held that it was given to them personally by that description; and would have performed the duty as commissioners, subject to the revision and control of the Secretary and Congress, as provided in the law. Nor have Justices Wilson, Blair, and Peters, District Judges, dissented from this opinion. Their communication to the President is silent upon this point. But the opinions of all the judges embrace distinctly and positively the provisions of the law now before us, and declare that, under such law, the power was not judicial within the grant of the Constitution, and could not be exercised as such.

 "Independently of these objections, we are at some loss to understand how this case could legally be transmitted to this court, and certified as the transcript of a record in the District Court. According to the directions of the act of Congress, the decision of the judge and the evidence on which it is founded, ought to have been transmitted to the Secretary of the Treasury. They are not to remain in the District Court, nor to be recorded there. They legally belong to the office of the Secretary of the Treasury, and not to the court; and a copy from the clerk of the latter would not be evidence in any court of justice. There is no record of the proceedings in the District Court of which a transcript can legally be made and certified; and consequently there is no transcript now before us that we can recognize as evidence of any proceeding or judgment in that court.

 "A question might arise whether commissioners appointed to adjust these claims, are not officers of the United States within the meaning of the Constitution. The duties to be performed are entirely alien to the legitimate functions of a judge or court of justice, and have no analogy to the general or special powers ordinarily and legally conferred on judges or courts to secure the due administration of the laws. And, if they are to be regarded as officers, holding offices under the government, the power of appointment is in the President, by and with the advice and consent of the senate; and Congress could not by law, designate the persons to fill these offices. And if this be the construction of the Constitution, then as the judge designated could not act in a judicial character as a court, nor as a commissioner, because he was not appointed by the President, every thing that has been done under the acts of 1823, and 1834, and 1849, would be void, and the payments heretofore made might be recovered back by the United States. But this question has not been made; nor does it arise in the case. It could arise only in a suit by the United States to recover back the money. And as the case does not present it, and the parties interested are not before the court, and these laws have for so many years been acted on as valid and constitutional we do not think it proper to express an opinion on it. In the case at bar, the power of the judge to decide in the first instance, is assumed on both sides, and the controversy has turned upon the power of the Secretary to revise it; and it is in this respect of the case, that it has been considered by the court, in the foregoing opinion.

 "The appeal must be dismissed for want of jurisdiction." U.S. v. Ferriera, 13 How. (54 U.S.) 40, 14 L.Ed. 42.

The final statement of the Ferriera court ignores the fact that naming the district court judges in a statute passed by Congress and signed by the President are consent to confirmation of all persons on the bench, persons who had already been vested with higher powers when made judges of an Article III court, the names of whom were already known to Congress, the President and the law in their original appointment.

In U.S. v. Ferriera, supra, the question of whether the supreme Court of the United States had jurisdiction of the case turned entirely on the character in which the judge heard the case and on the mode in which he proceeded and came to a judgment, in what purported to be the District Court of the United States.

When Chief Justice Taney spoke of the "mode" of the proceedings, he was referring to whether the judge proceeded in a legislative mode, out of court, strictly under the sole authority of statute, or whether he (the district judge) proceeded in a judicial mode, as defined in, and authorized by, Article III of the Constitution. When Chief Justice Taney referred to the character in which the district judge heard the case, he was referring to whether the district judge sat in the character of a commissioner, such as is normal on a board of commissioners vested with only statutory authority, or whether the district judge acted in the Article III judicial character under appointment to the bench of the District Court of the United States.

Two questions are covered, which together completely disclose the legislative jurisdiction in which the cause was brought. The two questions are, one: In what mode is the judge sitting in the proceedings?; and, two: In what character is he presiding over the proceedings? These two questions alone, when put forth by one who understands them, could entirely disclose the legislative proceedings, in a legislative tribunal, as not being authorized within the judicial power of Article III.

In the past we have, at times, asked the wrong questions, which allowed the judge to avoid the issues. Asking whether the court is an Article III court and whether the judge is an Article III judge will not bring the answers we need. These questions are irrelevant, since legislative proceedings are neither held in the court (mode) or before the judge in a judicial character. There fore, the judge could tell you that the court was established under Article III and that he was placed in office under Article III without disclosing that he isn't proceeding in that mode or character in the proceedings that are immediately before him.

It is easy to understand how confusing this situation between courts and tribunals really is. In U.S. v. Ferriera, supra, even the district court judge thought that he was acting in the judicial mode and character when he really was only acting as a commissioner of a tribunal. That district judge heard the case on a petition filed with his court, or so he thought, he probably heard the case in his regular district court courtroom, he probably recorded the proceedings on the district court record, with assistance of the clerk of the court, and every petition, motion, order, and any other paperwork associated with the cause were probably written under the name and title of the district court; yet the proceedings were not held, legally, in court, nor heard by a judge of the court.

It is just as confusing for the litigant, if not more confusing, especially when the opposing party, and maybe even the court, actively try to hide the mode and character of the proceedings from him. Imagine, you are served with paperwork, an administrative summons, and later a petition for enforcement and an order to show cause bearing the name of the United States District Court, signed by a judge or (commissioner) magistrate of the United States District Court, issued on the petition or complaint of the plaintiff, which petition or complaint is entitled with the name of the United States District Court; proceedings are had in a courtroom in the United States District Court building; a judge or magistrate of the United States District Court hears all matters related to the proceedings; all the documents from the petition or complaint on down are filed with the Clerk of the United States District Court; and, the final order on the proceedings is issued under the name of the United States District Court, signed by a magistrate or judge thereof. What are you to think, except that a judge heard the case in court like any other "judicial" proceeding. Yet, when we make this assumption, we cannot correctly challenge the jurisdiction of the tribunal and the commissioner, who pretend to be a court and a judge, because we proceed based on an erroneous premise from the beginning. The old saying, "You cannot see the forest for the trees," comes to mind.

Note the opinion in U.S. v. Ferriera, supra, says that these proceedings were held "out of court." Burn this into your mind, because you will find that it is a very important point in this discussion. Also note what was said about the statute naming district court judges in a particular district to hear the claims in U.S. v. Ferriera. The use of the terms district court judges in the statute merely designates what persons will hear the cause. It doesn't necessarily mean that these judges will hold the proceed ings in the character of "district judge." Using the judge's title is a generic way of citing what class of persons will hold the proceedings under the statute. The statute could as easily have named each judge personally by name and included his successor in office, and would have meant the same thing even if it never used the judge's title of office in the description. Thus, the term "district judge" is an official designation, used to describe a personal commission.

Naming the court in which the statutory tribunal is to hear the proceedings is similarly designed. Each district court of the United States has jurisdiction in a given geographical venue, that is, can hear cases and controversies arising out of a certain land mass or area, e.g. territory. So, when Congress sets up a statutory tribunal, they merely use the name of the district court to describe the exact same geographical area. Congress could have, just as easily, taken the existing description of the district court's venue, word for word, and assigned it to the tribunal in the statute creating it, instead of using the name of the district court for the description.

So, where legislative courts are concerned, we can see, even when the exact terminology is used in reference to the District Court of the United States and its judges, as is used in reference to legislative tribunals and their commissioners, its counterpart, the tribunal and its commissioners exercise a distinct and separate legislative jurisdiction and legislative venue, outside that of the actual district court and its district judges.

As a special note, keep in mind that where Article I proceedings, such as those distinguished in U.S. v. Ferreira, are concerned, state boundaries are inconsequential and have no effect upon the venue or the proceedings, since state boundaries are of no consequence to the internal, or exclusive, legislative power of Congress. Therefore, the removal of state boundaries from many of the state constitutions may not have been legally necessary, as a venue consideration, to the validity of Article I proceedings, but, rather, the boundaries have been removed to assure that questions could not arise that might expose the exclusive legislative jurisdiction exercised in Article I proceedings.

Because the Hayburn case, reported in 2 Dallas 409, is the first case of this type coming before the judiciary, in 1792, even though it was never finally adjudicated in the supreme Court of the United States, the actual opinions of the circuit court in that case, in which Justices of the supreme Court participated at the circuit level, are important to our understanding the court v. tribunal question.

Here is what the judges and justices said in the Hayburn case:

 "The circuit court for the district of New York (consisting of Jay, Chief Justice, Cushing, Justice, and Duane, District Judge) proceeded, on the 5th of April, 1791, to take into consideration the act of congress entitled, 'An act to provide for the settlement of the claims of widows and orphans barred by the limitations heretofore established, and to regulate the claims to invalid pensions;' and were, thereupon, unanimously, of the opinion and agreed,

 "'That by the constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on either. That neither the legislative nor the executive branches, can constitutionally assign to the judicial any duties, but such as are properly judicial, and to be performed in a judicial manner.'

 "'That the duties assigned to the circuit, by this act, are not of that description, and that the act itself does not appear to contemplate them as such; inasmuch as it subjects the decisions of these courts, made pursuant to those duties, first to the consideration and suspension of the secretary at war, and then to the revision of the legislature; whereas, by the constitution, neither the secretary at war, nor any other executive officer, nor even the legislature, are authorized to sit as a court of errors on the judicial acts or opinions of this court.'

 "'As, therefore, the business assigned to this court, by the act, is not judicial, nor directed to be performed judicially, the act can only be considered as appointing commissioners for the purposes mentioned in it, by official instead of personal description. That the judges of this court regard themselves as being the commissioners designated by the act, and therefore, as being at liberty to accept or decline that office. That as the objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of congress; and as the judges desire to manifest, on all proper occasions, and in every proper manner, their high respect for the national legislature, they will exe cute this act in the capacity of commissioners.'

 "'That as the legislature have a right to extend the session of this court for any term, which they may think proper by law to assign, the term of five days, as directed by this act, ought to be punctually observed. That the judges of this court will, as usual, during the session thereof, adjourn the court from day to day, or other short periods, as circumstances may render proper, and that they will, regularly, between the adjournments, proceed, as commissioners, to execute the business of this act in the same court room, or chamber.'

 "The circuit court for the district of Pennsylvania (consisting of Wilson and Blair, Justices, and Peters, District Judge) made the following representation, in a letter jointly addressed to the president of the United States, on the 18th of April 1792.

 "'To you it officially belongs to take care that the laws' of the United States 'be faithfully executed.' Before you, there fore, we think it our duty to lay the sentiments, which, on a late painful occasion, governed us with regard to an act passed by the legislature of the Union.

 "'The people of the United States have vested in congress all legislative powers granted in the constitution. They vested in one supreme court, and in such inferior courts as the congress shall establish, 'the judicial power of the United States.' It is worth of remark, that in congress the whole legislative power of the United States is not vested. Any important part of that power was exercised by the people themselves, when they 'ordained and established the constitution.' This constitution is 'the supreme law of the land.' This supreme law 'all judicial officers of the United States are bound, by oath or affirmation, to support.'

 "'It is a principle important to freedom, that in government, the judicial should be distinct from, and independent of, the legislative department. To this important principle, the people of the United States, in forming their constitution, have manifested the highest regard. They have placed their judicial power, not in congress, but in 'courts.' They have ordained that the 'judges of those court shall hold their offices during good behavior,' and that 'during their continuance in office, their salaries shall not be diminished.'

 "'Congress have lately passed an act, to regulate, 'the claims to invalid pensions.' Upon due consideration, we have been unanimously of opinion, that under this act, the circuit court held for the Pennsylvania district could not proceed.'

 "'1st. Because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the constitution in the courts of the United States; the circuit court must, consequently, have proceeded without constitutional authority. 2d. Because if, upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controlled by the legislature, and by an officer in the executive department. Such revision and control we deemed radically inconsistent with the independence of that judicial power which is vested in the courts; and consequently, with that important principle which is so strictly observed by the constitution of the United States.

 "'These, Sir, are the reasons of our conduct. Be assured that, though it became necessary, it was far from being pleasant. To be obliged to act contrary either to the obvious directions of congress, or to a constitutional principle, in our judgment equally obvious, excited feelings in us, we hope never to experience again.'

 "The circuit court for the district of North Carolina (consisting of Irdell, Justice, and Sitgreaves, District Judge) made the following representation, in a letter jointly addressed to the President of the United States, on the 8th of June 1792.

 "'We, the judges now attending at the circuit court of the United States for the district of North Carolina, conceive it our duty to lay before you some important observations which have occurred to us in the consideration of an act of congress lately passed, entitled, 'An act to provide for the settlement of the claims of widows and orphans, barred by the limitations heretofore established, and to regulate the claims to invalid pensions.'

 "'We beg leave to premise, that it is as much our inclination, as it is our duty, to receive with all possible respect every act of the legislature, and that we never can find our selves in a more painful situation, than to be obliged to object to the execution of any, more especially, to the execution of one founded on the purest principles of humanity and justice, which the act in question undoubtedly is. But, however lamentable a difference in opinion really may be, or with whatever difficulty we may have formed an opinion, we are under the indispensable necessity of acting according to the best of our own judgment, after duly weighing every consideration that can occur to us; which we have done on the present occasion.'

 "'The extreme importance of the case, and our desire of being explicit, beyond the danger of being misunderstood, will, we hope, justify us in stating our observations in a systematic manner. We therefore, Sir, submit to you the following:

 "'1. That the legislative, executive and judicial departments are each formed in a separate and independent manner; and that the ultimate basis of each is the constitution only, within the limits of which each department can alone justify any act of authority.

 "'2. That the legislative, among other important powers, unquestionably possesses that of establishing courts in such a manner as to their wisdom shall appear best, limited by the terms of the constitution only; and to whatever extent that power may be exercised, or however severe the duty may think proper to require, the judges, when appointed in virtue of any such establishment, owe implicit and unreserved obedience to it.

 "'3. That, at the same time, such courts cannot be warrant ed, as we conceive, by virtue of that part of the constitution delegated judicial power, for the exercise of which any act of the legislature is provided, in exercising (even under the authority of another) any power not in its nature judicial, or if judicial, not provided for upon the terms the constitution requires.

 "'4. That whatever doubt may be suggested, whether the power in question is properly of a judicial nature, yet, inasmuch as the decision of the court is not made final, but may be at least suspended in its operation, by the secretary at war, if he shall have cause to suspect imposition or mistake; this subjects the decision of the court to a mode of revision, which we consider to be unwarranted by the constitution; for though congress may certainly establish, in instances not yet provided for, courts of appellate jurisdiction, yet such courts must consist of judges appointed in the manner the constitution requires, and holding their offices by no other tenure than that of their good behavior, by which tenure the office of secretary at war is not held. And we beg leave to add, with all due deference, that no decision of any court of the United States can, under any circumstances, in our opinion, agreeable to the constitution, be liable to a revision, or even suspension, by the legislature itself, in whom no judicial power of any kind appears to be vested, but the important one relative to impeachments.

 "'These, Sir, are our reasons for being of opinion, as we are at present, that this circuit court cannot be justified in the execution of that part of the act, which requires it to examine and report an opinion on the unfortunate cases of officers and soldiers disabled in the service of the United States. The part of the court to sit five days, for the purpose of receiving applications from such persons, we shall deem it our duty to comply with; for, whether, in our opinion, such purpose can or can not be answered, it is, as we conceive, our indispensable duty to keep open any court of which we have the honor to be judges, as long as congress shall direct.

 "'The high respect we entertain for the legislature, our feelings, as men, for person whose situation requires the earliest, as well as the most effectual relief, and our sincere desire to promote, whether officially or otherwise, the just and benevolent views of congress, so conspicuous on the present as well as on many other occasions, have induced us to respect, whether we would be justified in acting, under this act, personally, in the character of commissioners, during the session of a court; and could we be satisfied that we had authority to do so, we would cheerfully devote such part of our time as might be necessary for the performance of the service. But we confess we have great doubts on this head. The power appears to be given to the court only, and not to the judges of it; and as the secretary at war has not a discretion, in all instances, but only in those where he has cause to suspect imposition or mistake, to withhold a person recommended by the court from being named on the pension list, it would be necessary for us to be well persuaded we possessed such an authority, before we exercised a power, which might be a means of drawing out of the public treasury as affectually as an express appropriation by law. We do not mean, however, to preclude ourselves from a very deliberate consideration, whether we can be warranted in executing the purposes of the act in that manner, in case an application should be made.

 "'No application has yet been made to the court, or to ourselves individually, and therefore, we have had some doubts as to the propriety of giving an opinion in a case which has not yet come regularly and judicially before us. None can be more sensible than we are of the necessity of judges being, in general, extremely cautious in not intimating an opinion, in any case, extra-judicially, because we well know how liable the best minds are, notwithstanding their utmost care, to a bias, which may arise from a preconceived opinion, even unguardedly, much more, deliberately, given; but in the present instance, as many unfortunate and meritorious individuals, whom congress have justly thought proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one, we determined, at all events, to make our sentiments known as early as possible, considering this as a case which must be deemed an exception to the general rule, upon every principle of humanity and justice; resolving, however, that so far as we are concerned, individually, in case an application should be made, we will most attentively hear it; and if we can be convinced this opinion is a wrong one, we shall not hesitate to act accordingly, being so far from the weakness of supposing that there is any reproach in having committed an error, to which the greatest and best men are sometimes liable, as we should be, from so low a sense of duty, as we think it would not be the highest and most deserved reproach that could be bestowed on any men (much more on judges) that they were capable, from any motive, of preserving against conviction in apparently maintaining any opinion which they really thought erroneous.' " Hayburns Case, 2 Dall. (2 U.S.) 409-414 (1792).

Getting back to U.S. v. Ferriera, Justice Taney reveals a great deal about the statutory legal principles, in tribunal proceedings, and there can be no doubt that this kind of statutory jurisdiction exists and has been exercised, or that it could be shrouded in the disguise of institutions and offices created originally under Article III of the Constitution. The question remains: Is there such a jurisdiction where income taxes are concerned? and, Is there any way of proving it? With what you've already seen, you're already halfway there; we merely need to link things together a little further.

In 1855, just four years after U.S. v. Ferriera, the supreme Court of the United States heard the case of Murray's Lessee et al., v. Hoboken Land and Improvement Co., 18 How. (59 U.S.) 272, 15 L.Ed. 372. That case arose out of the act of May 15, 1820 (3 Stat. 592). The main question was, whether the issuing, by the solicitor of the Treasury, of what was denominated in the statute a warrant of distress, against a defaulting collector of revenue, was in conflict with the Constitution. The court held the law was valid, and not inconsistent with the Constitution. The decision was placed mainly on the ground that the ancient common law of England recognized a summary remedy for the recovery of debts due to the government, which case cited Martin v. Mott, and U.S. v. Ferriera, previously discussed, as authority, to explain the relationship a collector of the revenue bore to the United States government, and the legitimate means by which the government could collect debts incurred by the collector for revenue not transferred to the Treasury. Re Meador, Fed. Case No. 9,375, 16 Fed. Cas. 1294, 1299. Don't forget, this case, Murray's Lessee v. Hoboken, was heard before any income tax was ever imposed by Congress.

Justice Curtis, for the court, says this about the relationship the collector bears to the government, or, rather, the jurisdiction that encompasses that relationship:

 "That the auditing of the accounts of a receiver of public monies may be, in an enlarged sense, a judicial act, must be admitted. So are all those administrative duties the performance of which involves an inquiry into the existence of facts and the application of them torules of law. In this sense the act of the President in calling out the militia under the act of 1795, 12 Wheat. 19, or of a commissioner who makes a certificate for the extradition of a criminal, under a treaty, is judicial. But it is not sufficient to bring such matters under the judicial power, that they involve the exercise of judgment upon law and fact. United States v. Ferriera, 13 How. 40. It is necessary to go further, and show that not only the adjustment of the balances due from accounting officers may be, but from their nature must be, controversies to which the United States is a party, within the meaning of the second section of the third article of the constitution. We do not doubt the power of congress to provide by law that such a question shall form the subject-matter of a suit in which the judicial power can be exerted. The act of 1820 makes such a provision for reviewing the decision of the accounting officers of the treasury. But, until reviewed, it is final and binding; and the question is, whether its subject-matter is necessarily, and without regard to the consent of congress, a judicial controversy. And we are of opinion it is not.

 "Among the legislative powers of Congress are the powers 'to lay and collect taxes, duties, imposts, and excises; to pay the debts, and provide for the common defence and welfare of the United States, to raise and support armies; to provide and maintain a navy, and to make all laws which may be necessary and proper for carrying into execution those powers.' What officers should be appointed to collect the revenue thus authorized to be raised, and to disburse it in payment of the debts of the United States; what duties should be required of them; when and how, and to whom should they account, and what security should they furnish, and to what remedies they should be subjected to enforce the proper discharge of their duties, congress was to determine. In the exercise of their powers, they have required collector of customs to be appointed; made it incumbent on them to account, from time to time, with certain officers of the treasury department, and to furnish sureties, by bond, for the payment of all balances of the public money which may become due from them. And by the act of 1820, now in question, they have undertaken to provide summary means to compel these officers - and in case of their default, their sureties - to pay such balances of the public money as may be in their hands.

 "The power to collect and disburse revenue, and to make all laws which shall be necessary and proper for carrying that power into effect, includes all known and appropriate means of effectually collecting and disbursing that revenue, unless some such means should be forbidden in some other part of the constitution. The power has not been exhausted by the receipt of the money by the collector. Its purpose is to raise money and use it in payment of the debts of the government; and, whoever may have possession of the public money, until it is actually disbursed, the power to use those known and appropriate means to secure its due application continues.

 "As we have already shown, the means provided by the act of 1820 do not differ in principle from those employed in England from remote antiquity - and in many of the States, so far as we know without objection - for this purpose, at the time the constitution was formed. It may be added, that probably there are few governments which do or can permit their claims for public taxes, either on the citizen or the officer employed for their collection or disbursement, to become subjects of judicial controversy, according to the course of the law of the land. Imperative necessity has forced a distinction between such claims and all others, which has sometimes been carried out by summary methods of proceeding, and sometimes by systems of fines and penalties, but always in some way observed and yielded to.

 "It is true that in England all these proceedings were had in what is denominated the court of exchequer, in which Lord Cook says, 4 Inst. 115, the barons are the sovereign auditors of the kingdom. But the barons exercised in person no judicial power in auditing accounts, and it is necessary to remember that the exchequer includes two distinct organizations, one of which has charge of the revenue of the crown, and the other has long been in fact, and now is for all purposes, one of the judicial courts of the kingdom, whose proceedings are and have been as distinct, in most respects, from those of the revenue side of the exchequer, as the proceedings of the circuit court of this district are form those of the treasury; and it would be an unwarrantable assumption to conclude that, because the accounts of receivers of revenue were settled in what was denominated the court of exchequer, they were judicial controversies between the king and his subjects, according to the ordinary course of the common law or equity. The fact, as we have already seen, was otherwise.

 "It was strongly urged by the plaintiff's counsel, that though the government might have the rightful power to provide a summary remedy for the recovery of its public dues, aside from an exercise of the judicial power, yet it had not done so in this instance. That it had enabled the debtor to apply to the judicial power, and having thus brought the subject-matter under its cognizance, it was not for the government to say that the subject-matter was not within the judicial power. That if it were not in its nature a judicial controversy, congress could not make it such, nor give jurisdiction over it to the district courts. In short, the argument is, that if this were not, in its nature, a judicial controversy, congress could not have conferred on the district court power to determine it upon a bill filed by the collector. If it be such a controversy, then it is subject to the judicial power alone; and the fact that congress has enabled the district court to pass upon it, is conclusive evidence that it is a judicial controversy.

 "We cannot admit the correctness of the last position. If we were of opinion that this subject-matter cannot be the subject of judicial controversy, and that, it cannot be made a subject of judicial cognizance, the consequence would be, that the attempt to bring it under the jurisdiction of a court of the United States would be ineffectual. But the previous proceedings of the executive department would not necessarily be affected thereby. They might be final, instead of being the subject of judicial review.

 "But the argument leaves out of view an essential element in the case, and also assumes something which cannot be admitted.

 "It assumes that the entire subject-matter is or is not, in every mode of presentation, a judicial controversy, essentially, and in its own nature, aside from the will of congress to permit it to be so; and it leaves out of view the fact that the United States is a party.

 "It is necessary to take into view some settled rules.

 "Though, generally, both public and private wrongs are redressed through judicial action, there are more summary extra judicial remedies for both. An instance of extra-judicial redress of a private wrong is, the recapture of goods by their lawful owner; of a public wrong, by a private person, is the abatement of a public nuisance; and the recover of public dues by a summary process of distress, issued by some public officer authorized by law, is an instance of redress of a particular kind of public wrong, by the act of the public through its authorized agents. There is, however, an important distinction between these. Though a private person may take his property, or abate a nuisance, he is directly responsible for his acts to the proper judicial tribunals. His authority to do these acts depends not merely on the law, sufficient to constitute that authority; and he may be required, by an action at law, to prove those facts; but a public agent, who acts pursuant to the command of a legal precept, can justify his act by the production of such precept. He cannot be made responsible in a judicial tribunal for obeying the lawful command of the government; and the government itself, which gave the command, cannot be sued without its own consent.

 "At the same time there can be no doubt that the mere question, whether the collector of the custom is indebted to the United States, may be one of judicial cognizance. It is competent for the United States to sue any of its debtors in a court of law. It is equally clear that the United States may consent to be sued, and may yield this consent upon such terms and under such restrictions as it may think just. Though both the marshall and the government are exempt from suit, for anything done by the former in obedience to legal process, still, congress may provide by law, that both, or either, shall, in a particular class of cases, and under such restrictions as they may think proper to impose, come into a court of law or equity and abide by its determination. The United States may thus place the government upon the same ground which is occupied by private persons who proceed to take extra-judicial remedies for their wrongs, and they may do so to such extent, and with such restrictions, as may be thought fit.

 "When, therefore, the act of 1820 enacts, that after the levy of the distress warrant has been begun, the collector may bring before a district court the question, whether he is indebted as recited in the warrant, it simply waives privilege which belongs to the government, and consents to make the legality of its future proceedings dependent on the judgment of the court; as we have already stated in case of a private person, every fact upon which the legality of the extra-judicial remedy depends may be drawn into question by a suit against him. The United States consents that this fact of indebtedness may be drawn in question by a suit against them. Though they might have withheld their consent, we think that, by granting it, nothing which may be a subject of judicial cognizance is brought before the court.

 "To avoid misconstruction upon so grave a subject, we think it proper to state that we do not consider congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination. At the same time there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper. Equitable claims to land by inhabitants of ceded territories form a striking instance of such a class of cases; and as it depends upon the will of congress whether a remedy in the courts shall be allowed at all in such cases, they may regulate it and prescribe such rules of determination as they may think just and needful. Thus it has been repeatedly decided in this class of cases, that upon their trial the acts of the executive officers, done under authority of congress, were conclusive, either upon particular facts involved in the inquiry or upon the whole title. Foley v. Harrison, 15 How. 433; Burgess v. Gray, 16 How. 48; -----v. The Minnesota Mining Company at the present term.

 "It is true, also, that even in a suit between private persons to try a question of private right, the action of the executive power, upon a matter committed to its determination by the Constitution and laws, is conclusive. Luther v. Borden, 7 How. 1; Doe v. Braden, 15 How. 635.

 "To apply these principles to the case before us, we say that, though a suit may be brought against the marshall for seizing property under such a warrant of distress, and he may be put to show his justification; yet the action of the executive power in issuing the warrant, pursuant to the act of 1820, passed under the powers to collect and disburse the revenue granted by the constitution, is conclusive evidence of the facts recited in it, and of the authority to make the levy; that though no suit can be brought against the United States without the consent of congress, yet congress may consent to have a suit brought, to try the question whether the collector be indebted, that being a