The word "person" is used in many laws. If you don't know what
the term means, you might think that you are one of these.
American Law and
Procedure, Vol 13, page 137, 1910:
"This word `person' and its scope and bearing in the law,
involving, as it does, legal fictions and also apparently natural
beings, it is difficult to understand; but it is absolutely
necessary to grasp, at whatever cost, a true and proper understanding
to the word in all the phases of its proper use ... A person
is here not a physical or individual person, but the status
or condition with which he is invested... not an individual
or physical person, but the status, condition or character borne
by physical persons... The law of persons is the law of status
Natural (biological) people are not "persons" in most statutes.
26 U.S.C.S. §7701(b): Parties Deemed to be "persons"
26 U.S.C.S. §7701(b): Parties Deemed to be "persons"
2. Parties deemed to be persons
In case in which defendant appealed his conviction for violating 18 USCS § 371, he unsuccessfully argued that New York was not subject to legislative or territorial jurisdiction of United States, and therefore, since he was native-born in New York, he was under no obligation to pay income taxes unless and until United States had conquered or subsumed New York; since defendant was individual, who received income, requirement to file return and pay taxes plainly applied to him regardless of his purported citizenship. United States v Drachenberg, 623 F.3d 122, 106 A.F.T.R.2d (RIA) 6868 (CA2 NY 2010).
Taxpayer’s residence in American Samoa was immaterial to statutory definition of United States person, which would have included him as citizen even if he lived in foreign country. Francisco v Comm'r, 370 F.3d 1228, 361 U.S. App. D.C. 504, 93 A.F.T.R.2d (RIA) 2767 (App DC 2004).
Surety who was in absolute control of funds of its principal and was in charge of making payments to creditors and determining priority of such payments was person liable for tax within meaning of 26 USCS § 7701. Pacific Nat'l Ins. Co. v United States, 270 F. Supp. 165, 20 A.F.T.R.2d (RIA) 5189 (ND Cal 1967).
Defendant’s claim, following his conviction for tax evasion under 26 USCS § 7201, that his status as federal employee removed him from definition of “person,” who may be guilty of felony under § 7201, was without merit, because term “person” as used in tax code had been consistently and plainly defined as any individual, under 26 USCS § 7701(a)(1). United States v. Maggi, 83 A.F.T.R.2d (RIA) 1999-877, 83 A.F.T.R.2d (RIA) 99-877, 1999 U.S. App. LEXIS 2015 (6th Cir. Feb. 5, 1999).
Stay pending appeal of denial of petitioner Tribe’s motions to quash IRS summonses to 3rd parties for records on Tribal accounts was not warranted due to no substantial likelihood of success on merits: tribal sovereign immunity did not bar suits by respondent United States, and “person” in I.R.C. § 7701 included Indian tribes. Miccosukee Tribe of Indians v United States, 108 A.F.T.R.2d (RIA) 7072 (SD Fla 2011).
Unpublished decision: Taxpayer’s argument that penalty assessments did not receive written supervisory approval failed because (1) argument was belied by record, and (2) taxpayer qualified as “person” for purposes of 26 USCS § 6702, 26 USCS §§ 6671(b), 7701(a). Fennel v Comm'r, 114 A.F.T.R.2d (RIA) 5779 (CA11 2014).
Commissioner of Internal Revenue properly sustained levy to collect 26 USCS § 6702(a) penalty, as taxpayer’s amended return was “return” and she was “person” subject to penalty; although 26 USCS § 6671(b) stated that definition of “person” subject to penalty included officer or employee of corporation or member or employee of partnership, definition did not exclude all others; moreover IRC defined “person” in 26 USCS § 7701(a)(1) to include individual, and § 7701(c) stated that word “includes” was not deemed to exclude other things otherwise within meaning of term defined. Crites v. Comm'r, T.C. Memo 2012-267, 104 T.C.M. (CCH) 316, 2012 Tax Ct. Memo LEXIS 265 (T.C. Sept. 17, 2012).
Word “person” so includes corporations existing under state laws that such corporation engaged in manufacture of distilled spirits may give bond and otherwise transact its business with United States in internal revenue matters in its corporate capacity. 15 Op. Att'y Gen. 230 (1877).
Resident of Puerto Rico who organized corporation in Germany and who had acquired United States citizenship at birth by virtue of Immigration and Nationality Act (which conferred citizenship on all persons born in Puerto Rico on or after Jan. 13, 1941) is United States person. 1974-2 C.B. 215, Rev. Rul. 74-375 (1974).
S corporation election might have terminated because alien might have been ineligible shareholder due to residency requirements of § 7701(b)(1)(A) for purposes of § 1361(b)(1)(C); because termination was inadvertent under § 1362(f), entity would be treated as continuing to be S corporation provided that its election was not otherwise terminated. Private Letter Ruling 200751010, 2007 PLR LEXIS 1932.
Frivolous tax returns; citizens of a state. This ruling discusses and refutes the frivolous position taken by some taxpayers that they are not subject to federal income tax, or that their income is excluded from taxation, because either (1) they claim to have rejected or renounced United States citizenship and are citizens exclusively of a state (sometimes characterized as a “natural-born citizen” of a “sovereign state”), or (2) they are not persons as identified by the Internal Revenue Code.
The Internal Revenue Service (Service) is aware that some taxpayers are claiming that they are not subject to federal income tax, or that their income is excluded from taxation, because: 1) the taxpayers have declared that they have rejected or renounced United States citizenship because the taxpayers are citizens exclusively of a State (sometimes characterized as a “natural-born citizen” of a “sovereign state”); or 2) the taxpayers claim they are not persons as identified by the Internal Revenue Code. These taxpayers often furnish Forms W-4, Employee’s Withholding Allowance Certificate, to their employers on which the taxpayers claim excessive withholding allowances or claim complete exemption from withholding. Based on these Forms W-4, federal income taxes are not withheld from wages paid. Alternatively, these taxpayers attempt to avoid their federal income tax liability by submitting a Form 4852, Substitute for Form W-2, Wage and Tax Statement, or Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc., to the Internal Revenue Service with a zero on the line for the amount of wages received. These taxpayers often either fail to file returns, or file returns showing no income and claiming a refund for any withheld income taxes. The Service is also aware that some promoters, including return preparers, market a book, package, kit, or other materials that claim to show taxpayers how they can avoid paying income taxes based on these and other meritless arguments.
This revenue ruling emphasizes to taxpayers, promoters and return preparers that all U.S. citizens and residents are subject to federal income tax. Any argument that a taxpayer’s income is excluded from taxation because: 1) the taxpayer has rejected or renounced United States citizenship because the taxpayer is a citizen exclusively of a State (sometime characterized as a “natural-born citizen” of a “sovereign state”); or 2) the taxpayer is not a person as defined by the Internal Revenue Code and is, therefore, not subject to federal tax, has no merit and is frivolous.
The Service is committed to identifying taxpayers who attempt to avoid their federal tax obligations by taking frivolous positions. The Service will take vigorous enforcement action against these taxpayers and against promoters and return preparers who assist taxpayers in taking these frivolous positions. Frivolous returns and other similar documents submitted to the Service are processed through the Service’s Frivolous Return Program. As part of this program, the Service determines whether taxpayers who have taken frivolous positions have filed all required tax returns; computes the correct amount of tax and interest due; and determines whether civil or criminal penalties should apply. The Service also determines whether civil or criminal penalties should apply to return preparers, promoters and others who assist taxpayers in taking frivolous positions, and recommends whether an injunction should be sought to halt these activities. Other information about frivolous tax positions is available on the Service website at www.irs.gov.
1. Whether a taxpayer may avoid federal income tax liability by maintaining that the taxpayer is not a citizen of the United States and, thus, is not subject to the federal income tax laws.
2. Whether a taxpayer may avoid federal income tax liability by claiming the taxpayer is not a “person” as defined by the Internal Revenue Code and, thus, is not subject to the federal income tax laws.
Taxpayer A claims to be exempt from federal income tax because, as a “sovereign citizen” of Taxpayer A’s state of residence, Taxpayer A is not a citizen or resident of the United States and is not subject to federal tax laws.
Taxpayer B claims that the Fourteenth Amendment, providing “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” applies only to freed slaves and their descendants, and that all other persons are solely citizens of their state of residence.
Taxpayer C claims not to be a United States citizen or a person subject to tax because Taxpayer C has not requested, obtained, or exercised any privilege from an agency of government.
Taxpayer D claims not to be a “person” or a “taxpayer” as defined by the Internal Revenue Code because Taxpayer D is a freeborn and natural individual and not subject to the jurisdiction of the United States.
The taxpayer often furnishes a Form W-4, Employee’s Withholding Allowance Certificate, to the employer on which the taxpayer claims excessive withholding allowances or claims complete exemption from withholding. Based on this Form W-4, federal income taxes are not withheld from wages paid. Alternatively, the taxpayer prepares a Form 4852 (Substitute for Form W-2) showing no wages received.
The taxpayer either fails to file a return, or files a return reporting zero income and claiming a refund for all taxes withheld. The taxpayer then contends the taxpayer is not covered by the federal tax laws and is not subject to federal income tax because the taxpayer is not a citizen of the United States, or the taxpayer is not a person as defined by the Internal Revenue Code.
The Fourteenth Amendment to the United States Constitution defines the basis for United States citizenship, stating that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The Fourteenth Amendment, therefore, establishes simultaneous state and federal citizenship. See United States v. Cruikshank, 92 U.S. 542, 549 (1875) (“The same person may be at the same time a citizen of the United States and a citizen of a State. . . .”); In re Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 74 (1873) (A man “must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union”). The Fourteenth Amendment’s granting of citizenship applies to all persons born or naturalized in the United States, regardless of race. See, e.g., Bell v. State of Maryland, 378 U.S. 226, 249 (1964) (Douglas, J., concurring) (“The Fourteenth Amendment also makes every person who is born here a citizen; and there is no second or third or fourth class of citizenship.”).
Section 7701(a)(9) of the Internal Revenue Code states that “[t]he term ‘United States’ when used in a geographical sense includes only the States and the District of Columbia.” Claims that individuals are not citizens of the United States but are solely citizens of a sovereign state and not subject to federal taxation have been uniformly rejected by the courts. See, e.g., United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993) (“The defendant in this case apparently holds a sincere belief that he is a citizen of the mythical “Indiana State Republic” and for that reason is an alien beyond the jurisdictional reach of federal courts. This belief is, of course, incorrect.”); United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993) (“[We] reject appellants’ contention that they are not citizens of the United States, but rather “Free Citizens of the Republic of Minnesota” and, consequently, not subject to taxation.”); O’Driscoll v. Internal Revenue Service, 1991 U.S. Dist. LEXIS 9829, *5-6 (E.D. Penn. 1991) (“Despite plaintiff’s linguistic gymnastics, he is a citizen of both the United States and Pennsylvania, and liable for federal taxes.”).
Similarly, the individual states are part of the United States and income earned within them is fully subject to United States taxation. See, e.g., Solomon v. Commissioner, T.C. Memo. 1993-509 (responding to argument that all of petitioner’s income was earned outside of the United States, the court held that “petitioner attempts to argue an absurd proposition, essentially that the State of Illinois is not part of the United States.”).
The Internal Revenue Code defines “person” and sets forth which persons are subject to federal taxes. Section 7701(a)(14) defines “taxpayer” as “any person” subject to any internal revenue tax, and section 7701(a)(1) defines “person” to include an individual, trust, estate, partnership, or corporation.
Arguments that an individual is not a “person” within the meaning of the Internal Revenue Code have been uniformly rejected by the courts as have arguments with respect to the term “individual.” See, e.g., United States v. Dawes, 874 F.2d 746, 750-51 (10th Cir. 1989), overruled on other grounds, 895 F.2d 1577 (10th Cir. 1990) (“The contention that appellants are not taxpayers because they are ‘free born, white, preamble, sovereign, natural, individual common law ‘de jure’ citizens of Kansas’ is frivolous. Individuals are ‘persons’ under the Internal Revenue Code and thus subject to 26 U.S.C. § 7203.”); United States v. Studley, 783 F.2d 934, 937 n.3 (9th Cir. 1986) (in holding that an individual is a person under the Internal Revenue Code, the court noted “this argument has been consistently and thoroughly rejected by every branch of the government for decades. Indeed advancement of such utterly meritless arguments is now the basis for serious sanctions imposed on civil litigants who raise them”).
Courts have also uniformly rejected claims that a taxpayer is not a person subject to tax because the taxpayer did not request, obtain, or exercise any privileges of citizenship. See, e.g., Lovell v. United States, 755 F.2d 517, 519 (7th Cir. 1984) (“All individuals, natural or unnatural, must pay federal income tax on their wages, regardless of whether they received any ‘privileges’ from the government”).
1. The Fourteenth Amendment of the United States Constitution establishes simultaneous state and federal citizenship. Therefore, an individual cannot reject citizenship in the United States in favor of state citizenship, or otherwise claim not to be a citizen of the United States for the purpose of avoiding federal tax liability. Furthermore, income earned within a state of the United States by a United States citizen or resident is taxable under federal tax laws. Accordingly, Taxpayer A and Taxpayer B are subject to federal income tax liability because they are citizens of the United States and citizens of the state in which they reside.
2. The term “person” as used by the Internal Revenue Code includes natural persons and individuals. Moreover, a taxpayer need not request, obtain, or exercise a privilege from an agency of the government to be a “person” within the meaning of the Internal Revenue Code. Therefore, Taxpayer C and Taxpayer D are subject to federal income tax liability.
CIVIL AND CRIMINAL PENALTIES
The Service will challenge the claims of individuals who improperly attempt to avoid or evade their federal tax liability. In addition to liability for the tax due plus statutory interest, taxpayers who fail to file valid returns or pay tax based on arguments that they are not citizens or persons as contemplated by the Internal Revenue Code and, thus, are not subject to federal tax face substantial civil and criminal penalties. Potentially applicable civil penalties include: (1) the section 6662 accuracy-related penalties, which are generally equal to 20 percent of the amount of tax the taxpayer should have paid; (2) the section 6663 penalty for civil fraud, which is equal to 75 percent of the amount of tax the taxpayer should have paid; (3) the section 6702(a) penalty of $5,000 for a “frivolous tax return”; (4) the section 6702(b) penalty of $5,000 for submitting a “specified frivolous submission”; (5) the section 6651 additions to tax for failure to file a return, failure to pay the tax owed, and fraudulent failure to file a return; (6) the section 6673 penalty of up to $25,000 if the taxpayer makes frivolous arguments in the United States Tax Court; and (7) the section 6682 penalty of $500 for providing false information with respect to withholding.
Taxpayers relying on these frivolous positions also may face criminal prosecution under: (1) section 7201 for attempting to evade or defeat tax, the penalty for which is a significant fine and imprisonment for up to 5 years; (2) section 7203 for willful failure to file a return, the penalty for which is a significant fine and imprisonment for up to 1 year; (3) section 7206 for making false statements on a return, statement, or other document, the penalty for which is a significant fine and imprisonment for up to 3 years or (4) other provisions of federal law.
Persons, including return preparers, who promote these frivolous positions and those who assist taxpayers in claiming tax benefits based on frivolous positions may face civil and criminal penalties and also may be enjoined by a court pursuant to sections 7407 and 7408. Potential penalties include: (1) a $250 penalty under section 6694 for each return or claim for refund prepared by an income tax return preparer who knew or should have known that the taxpayer’s position was frivolous (or $1,000 for each return or claim for refund if the return preparer’s actions were willful, intentional or reckless); (2) a penalty under section 6700 for promoting abusive tax shelters; (3) a $1,000 penalty under section 6701 for aiding and abetting the understatement of tax; and (4) criminal prosecution under section 7206, for which the penalty is a significant fine and imprisonment for up to 3 years, for assisting or advising about the preparation of a false return, statement or other document under the internal revenue laws.
This revenue ruling was authored by the Office of Associate Chief Counsel (Procedure and Administration), Administrative Provisions and Judicial Practice Division. For further information regarding this revenue ruling, contact that office at (202) 622-7950 (not a toll-free call).
Title 26: Internal Revenue
PART 301—PROCEDURE AND ADMINISTRATION
§ 301.7701-6 Definitions; person, fiduciary.
The term person includes an individual, a corporation, a partnership, a trust or estate, a joint-stock company, an association, or a syndicate, group, pool, joint venture, or other unincorporated organization or group. The term also includes a guardian, committee, trustee, executor, administrator, trustee in bankruptcy, receiver, assignee for the benefit of creditors, conservator, or any person acting in a fiduciary capacity.
26 U.S.C. §7701(a)(1)
TITLE 26 > Subtitle
F > CHAPTER 79 > Sec. 7701.
(a) When used in this
title, where not otherwise distinctly expressed or manifestly incompatible
with the intent thereof -
The term ''person''
shall be construed to mean and include [throughout the Internal Revenue
Code] an individual, a trust, estate, partnership,
association, company or corporation.
26 U.S.C. §7343
TITLE 26 > Subtitle
F > CHAPTER 75 > Subchapter
D > Sec. 7343.
- Definition of term ''person''
The term ''person''
as used in this chapter [Chapter
75] includes an officer or employee of a corporation, or a member
or employee of a partnership, who as such officer, employee, or member
is under a duty to perform the act in respect of which the violation
This is the "person" for the purposes of some of the miscellaneous
penalties under the Internal Revenue Code]
16 U.S.C. §5502
TITLE 16 > CHAPTER
75 > Sec. 5502.
As used in this chapter
(7) The term ''person''
means any individual (whether or not a citizen or national of the United
States), any corporation, partnership, association, or other entity
(whether or not organized or existing under the laws of any State),
and any Federal, State, local, or foreign government or any entity of
any such government.
[Code of Federal Regulations]
[Title 26, Volume 17,
Parts 300 to 499]
[Revised as of April 1, 2000]
From the U.S. Government
Printing Office via GPO Access
TITLE 26--INTERNAL REVENUE
Additions to the Tax
and Additional Amounts--Table of Contents
Sec. 301.6671-1 Rules for application of assessable
(b) Person defined.
For purposes of subchapter
B of chapter
68, the term ``person'' includes
an officer or employee of a corporation, or a member or employee of
a partnership, who as such officer, employee, or member is under a duty
to perform the act in respect of which the violation occurs.
This is the "person" for the purposes of MOST penalties under the ENTIRE
Internal Revenue Code]
Title 26: Internal Revenue
PART 301—PROCEDURE AND ADMINISTRATION
§ 301.7701-6 Definitions; person, fiduciary.
(a) Person. The term person includes an individual,
a corporation, a partnership, a trust or estate, a joint-stock company,
an association, or a syndicate, group, pool, joint venture, or other
unincorporated organization or group. The term also includes a guardian,
committee, trustee, executor, administrator, trustee in bankruptcy,
receiver, assignee for the benefit of creditors, conservator, or
any person acting in a fiduciary capacity.
Black's Law Dictionary,
4th Edition, p 1300
A person is such, not because he is human, but because rights
and duties are ascribed to him. The person is the legal subject
or substance of which the rights and duties are attributes. An individual
human being considered as having such attributes is what lawyers
call a "natural person." Pollock, First Book of Jurispr. 110. Gray,
Nature and Sources of Law, ch. II.
[Black's Law Dictionary, 4th Edition, p 1300]
Black's Law Dictionary,
4th Ed., p 1300
A county is a person in a legal sense, Lancaster Co. v. Trimble,
34 Neb. 752, 52 N.W. 711; but a sovereign is not; In re Fox, 52
N.Y. 535, 11 Am.Rep. 751; U.S. v. Fox 94 U.S. 315, 24 L.Ed. 192
[Black's Law Dictionary, 4th Ed., p 1300]
Spooner v. McConnell,
22 F. 939 @ 943:
"The sovereignty of a state does not reside in the persons who
fill the different departments of its government, but in the People,
from whom the government emanated; and they may change it at their
discretion. Sovereignty, then in this country, abides with the constituency,
and not with the agent; and this remark is true, both in reference
to the federal and state government."
[Spooner v. McConnell, 22 F. 939 @ 943]
Glass v. Sloop Betsey,
3 Dall. (U.S.) 6 (1794):
"... Our government is founded upon compact. Sovereignty was,
and is, in the people"
[Glass v. Sloop Betsey, 3 Dall. (U.S.) 6 (1794)]
Lansing v. Smith, 4 Wend
(N. Y.) 9 (1829), 21 Am.Dec. 89:
"People of a state are entitled to all rights which formerly
belong to the King, by his prerogative."
[Lansing v. Smith, 4 Wend (N. Y.) 9 (1829), 21 Am.Dec. 89]
4 Wheat 402:
"The United States, as a whole, emanates from the people... The
people, in their capacity as sovereigns, made and adopted the Constitution..."
[4 Wheat 402]
"While sovereign powers are delegated to ... the government,
sovereignty itself remains with the people.."
Yick Wo is a powerful anti-discrimination case. You might get
the impression that the legislature can write perfectly legal laws,
yet the laws cannot be enforced contrary to the intent of the people.
It's as if servants do not make rules for their masters. It's as
if the Citizens who created government were their masters. It's
as if civil servants were to obey the higher authority. You are
the higher authority of Romans 13:1. You as ruler are not a terror
to good works per Romans 13:3. Imagine that! Isn't it a shame that
your government was surrendered to those who are a terror to good
works? Isn't it a shame that you enlisted to obey them?
Wo v. Hopkins, 118 U.S. 356 (1886)]
"There is no such thing as a power of inherent sovereignty in
the government of the United States .... In this country sovereignty
resides in the people, and Congress can exercise no power which
they have not, by their Constitution entrusted to it: All else is
v. Greenman: 110 U.S. 421 (1884):]
"In common usage, the term 'person' does not include the sovereign,
and statutes employing the word are ordinarily construed to exclude
[Wilson v. Omaha Indian Tribe 442 U.S. 653, 667 (1979)]
"Since in common usage the term `person' does not include the
sovereign, statutes employing that term are ordinarily construed
to exclude it."
[U.S. v. Cooper, 312 U.S. 600,604, 61 S.Ct. 742 (1941)]
"In common usage, the term `person' does not include the sovereign
and statutes employing it will ordinarily not be construed to do
v. Cooper, 312 U.S. 600,604, 61 S.Ct. 742 (1941)]
U.S. v. General Motors
Corporation, D.C. Ill, 2 F.R.D. 528, 530:
"In common usage the word `person' does not include the sovereign,
and statutes employing the word are generally construed to exclude
[U.S. v. General Motors Corporation, D.C. Ill, 2 F.R.D. 528,
Church of Scientology
v. US Department of Justice (1979) 612 F2d 417 @425:
"the word `person' in legal terminology is perceived as a general
word which normally includes in its scope a variety of entities
other than human beings., see e.g. 1, U.S.C. para 1."
[Church of Scientology v. US Department of Justice (1979) 612
F2d 417 @425]
"In United States,
sovereignty resides in people... the Congress cannot invoke the sovereign
power of the People to override their will as thus declared.",
Black’s Law Dictionary,
Second Edition (A. D.1910), p. 577)
Homo vocabulum est naturae; persona juris civillis. Man
(homo) is a term of nature; person (persona) of civil law.
[Black’s Law Dictionary, Second Edition (A. D.1910), p. 577)]
TITLE 1 > CHAPTER 1 > § 8
§ 8. “Person”, “human
being”, “child”, and “individual” as including born-alive infant
(a) In determining
the meaning of any Act of Congress, or of any ruling, regulation, or
interpretation of the various administrative bureaus and agencies of
the United States, the words “person”, “human being”, “child”, and “individual”,
shall include every infant member of the species homo sapiens who is
born alive at any stage of development.
(b) As used in this
section, the term “born alive”, with respect to a member of the species
homo sapiens, means the complete expulsion or extraction from his or
her mother of that member, at any stage of development, who after such
expulsion or extraction breathes or has a beating heart, pulsation of
the umbilical cord, or definite movement of voluntary muscles, regardless
of whether the umbilical cord has been cut, and regardless of whether
the expulsion or extraction occurs as a result of natural or induced
labor, cesarean section, or induced abortion.
(c) Nothing in this
section shall be construed to affirm, deny, expand, or contract any
legal status or legal right applicable to any member of the species
homo sapiens at any point prior to being “born alive” as defined in
The Theory of the Common Law, James M. Walker, 1852, pp. 17-20
The state is represented in the person of its chief magistrate, who is at the same time a member of it. Thus the king or president possesses two kinds of rights, a university of rights as a corporation [PUBLIC rights], and individual rights [PRIVATE rights] as a man. As the former become more and more confounded with the latter, so government advances towards some form of monarchy. A bishop also is a sole corporation, but the man holding the office has also his individual rights. The word person neither according to its accurate meaning nor in law is identical with man. A man may possess at the same time different classes of rights. On the other hand, two or more men may form only one legal person, and have one estate, as partners or corporators. Upon this difference of rights between the person and the man, the individual and the partner, corporator, tenant in common, and joint tenant, depends the whole law of these several classes. The same person has perfect power of alienation, of forming contracts, of disposing by last will and testament of his individual estate, but not of the corporate, nor of his own share in it, unless such power be expressed or implied in the contract by which the university of rights and duties is created. The same distinction divides all public from private property, and distinguishes the cases in which the corporation or civil person may sue from those in which the individual alone can be the party ; - although there are instances in which the injury complained of may, in reference to the difference of character, be such as to authorize the suit to be instituted either by the civil person or the individual, or by both. Thus, violence to the person may be punished either as a wrong to the state or to the individual.
The true meaning of the word person is also exemplified in the matter of contracts. It is said, generally, that all persons may contract; but that is not true in the sense that all human beings may contract. Thus, a married woman, an infant, a lunatic, cannot contract. Again, a slave of mature age, sound intellect, with the consent of his master, cannot make a contract binding on himself, although as an agent he may bind his master. These matters are important only as they serve clearly to show that the civil person may have rights distinct from those which he possesses as an individual ;- and that his rights or duties as an individual may consequently become opposed to his rights and duties as a civil person. Thus, a partnership of three persons may own, for example, a moiety of a ship, and one of them the other moiety. In case of a difference between them as to its use, the rights of the one as a partner, and his right as an individual owner of another moiety, are directly opposed. In order, therefore, in any case, to perceive the application of a rule of law, it must be considered whether the person or the individual, or both, is the possessor of the right. For it may be asserted as absolutely true, that the rights of the man are not recognized by that law which is termed the municipal. It recognizes them only as they grow out of, or are consistent with, his character as a civil person. In other words, this is the distinction between the Common Law and the law of nature. Nor is this a fanciful distinction, inasmuch as the rudest tribes, as well as the most civilized nations, have always distinguished between the rights and duties of their members, and of those who were not members of the body politic. Even after the philosophical jurists of antiquity had polished and improved the jurisprudence of aristocratic republican Rome by the philosophy of the Portico, Cicero, statesman, philosopher, and jurisconsult, exclaims with indignation against the confusion of rights of person that the age witnessed: " In urbem nostrum est infusa peregrinitas; nunc vero etiam braccatis et transalpinis nationibus ut nullum veteris leporis vestigium appareat."
The Common Law, as well as the Civil, recognizes as a person an unborn child, when it concerns its interests either as to life or property. " Qui in utero est perinde ac si in rebus humanis esset, custoditur, quotiens de commodis ipsius partus queeritur." And both systems provide the same remedies to protect the child and those with whom its birth may interfere. In case of a limitation to the child of which a woman is now pregnant, if twins should be born, the Common Law gives the estate to the first-born; by our law, they would take moieties. Now, as these rights are acquired before the birth of the child or children, there is a double fiction ; not only in considering the unborn as born, but in distinguishing under the Common Law the eldest from the youngest born. Whilst, therefore, the law regards the unborn as born, yet, to transmit the estate, he must be born as a man, alive and capable of living.
The law does not presume the life or death of an individual; when his existence has been established, his death also must be proved. * But the birth of an individual and the commencement of his character as a person do not necessarily concur. Thus, an alien of any age is not a person, in relation to a contract concerning lands, nor in any case is an infant ; so a woman marrying before she attains her legal maturity may die of old age without having become a person. On the other hand, a person may suffer civil death before physical death; totally, where he becomes a monk; partially, as a penalty for the commission of an infamous crime; and perpetually or temporarily, as in case of outlawry. * Where a person has not been heard of for seven years, and under circumstances which contradict the probability of his being alive, a court may consider this sufficient proof of death (Stark. Ev. 4 pl. 457). The presumptions which arise in such cases do not concern the death of the person., but the time of his death, as where several die by one shipwreck or other casualty. On this point the rules are, - 1st. In case of parents and children, that children below the age of puberty died before, and adult children after, their parents. 2d. Persons not being parents and children, and the rights of one being dependent upon the previous death of the other, this precedent condition must be proved. 3d. If a grant is to be delleated by the act of the gramntor, as in case of a don anio inter virun tt uxorem, or a donatio ,ortis causa, the donor is presumed, in the absence of testimony, to have died first. (See Pothier, Obligations, by Evans, Vol. II. p. 300.)
[The Theory of the Common Law, James M. Walker, 1852, pp. 17-20]