2 treaty; this is especially the case in regard to citizenship.3 Whether the treaty-making power can annex territory to sult Wharton's Digest of International Law, vol. I, pp. 8., et seq.; for difference between civil and political rights see Murphy vs. Ramsey, U. S. Sup. Ct. 1885, 114 U. S. 15, MATTHEWS, J. 2 Under the decisions already delivered in the Insular Cases, 182 U. S., (§§61a-61h, pp. 117-128, vol. I, and INSULAR CASES APPENDIX at the end of volume I) Congress is not bound by some of the Constitutional limitations in legislating for the territories, notably the uniformity clause in regard to imposts. These decisions however, do not affect the author's contention that when such personal rights are involved, as have been declared by the Supreme Court to rest upon the fundamental principles of our government (see chap. 1, §§ 36-41, pp. 62, et seq., vol. I), the Courts have power to nullify all Congressional action which would interfere with the exercise of such personal rights as under our system of government can, and should be, exercised, and enjoyed, by the inhabitants of any territory which is under the jurisdiction of the United States. Dawson vs. Godfrey, U. S. Supreme Ct. 1808, 4 Cranch, 321, JOHNSON. J. Quere whether a person born in England while Maryland was a colony of Great Britain was an alien or whether he could inherit from a citizen of the United States prior to the treaty of 1794; held that he could not. Calvin's case (English) distinguished. United States vs. Repentigny, U. S. Sup. Ct. 1866, 5 Wallace, 211, NELSON, J. Held in rejecting a claim made by the heirs of a French Canadian family for a tract of 200,000 acres in Michigan granted by the crown of France prior to 1750 (as stated in the syllabus): "1. On a conquest by one nation of another, and the subsequent surrender of the soil and change of sovereignty, those of the former inhabitants who do not remain and become citizens of the victorious sovereign, but, on the contrary, adhere to their old allegiance and continue in the service of the vanquished sovereign, deprive themselves of protection or security to their property except so far as it may be secured by treaty. "2. Hence, where on such a conquest, treaty provided that the former inhabitants who wished to 3 For an exhaustive review of this subject, with extracts from treaties with France for cession of Louisi-adhere in allegiance to their vanana, with Spain for cession of Florida, with Mexico for cessions of 1848 and 1853, with Russia for cession of Alaska, and with Spain for the cessions of 1898, see argument of Attorney General of the United States in Goetze vs. United States, Insular Cases Record, pp. 165-173. Besides authorities on international law and the cases there cited, see also the following: quished sovereign, might sell their property, provided that they sold it to a certain class of persons and within a time named, the property, if not so sold, became abandoned to the conqueror. "3. Where a British Canadian subject has conveyed to a citizen of the United States, lands in what are now the United States, which lands subject holds under a grant the United States and reserve for Congress the right to establish the status of the inhabitants, and the extent of political rights and liberties guaranteed by the Constitution made to a French ancestor by the | citizenship in territory acquired King of France in 1750, before Can- by treaty. ada passed to great Britain under its conquest in 1760, and while it yet was a French province, and embraced that part of what is now the United States containing them, the title is no longer a French, or English, but an American title, held under the laws of the United States, and subject to them. "4. Semble. Where congress authorizes a court to hear a question of title, such as is above described, to which the United States is a party, and in adjudicating it to be governed by the law of nations and of the country from which the title was derived; by principles of natural justice and according to the law of nations and the stipulations of treaties, an objection of mere alienage and consequent incapacity to take or hold, must be regarded as waived." Town vs. De Haven, U. S. Cir. Ct. Oregon, 1878, 5 Sawyer, 146, Fed. Cas. 14,113, Deady, J. McKay vs. Campbell, U. S. Dist. Ct. Oregon, 1871, 2 Sawyer, 118, DEADY, J. In re Sah Quah, Alaska Slavery Case, U. S. Dist. Ct. Alaska, 1886, 31 Fed. Rep. 327, DAWSON, J. Jones vs. McMaster, U. S. Sup. Ct. 1857, 20 Howard, 8, NELSON, J. Questions of alienage of citizens of Texas after the treaty of 1848 were settled in this action. Boyd vs. Nebraska ex rel. Thayer, U. S. Sup. Ct. 1892, 143 U. S. 135, FULLER, CH. J. Extended reference is made to this case on account of the numerous cases cited in the opinion bearing on the question of It was a quo warranto action to test the right of Governor Boyd to the governship of the State of Nebraska, the relator claiming that he was not a citizen of the State and therefore ineligible. It also involved the extent of power of the United States over its territories, and the power of Congress to naturalize all of the inhabitants of a certain territory at once without regard to constitutional provisions in regard to uniformity of naturalization laws. In reversing the lower courts, and deciding that Boyd was to be considered a naturalized citizen of the United States and of the State of Nebraska, the Chief Justice discussed at length numerous instances in which inhabitants of various districts had been naturalized en bloc, and sustained the jurisdiction of Federal Courts on the ground that it was a federal question whether the inhabitants of Nebraska had, or had not, been admitted to citizenship when the territory was admitted as a State; also that such question could be raised in an action of quo warranto. After stating that the lower court had found that Boyd was not a citizen, the opinion says (p. 161): "Arrival at this conclusion involved the denial of a right or privilege under the Constitution and laws of the United States, upon which the determination of whether Boyd was a citizen of the United States or not depended, and jurisdiction to review a decision against such right or privilege nec is one of the questions which must eventually arise under the treaty of 1898 with Spain and be determined by the Su essarily exists in this tribunal. by treaty or by statute are numerMissouri vs. Andriano, 138 U. S. ous." 496. Each State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen, and the title to offices shall be tried, whether in the judicial courts or otherwise. But when the trial is in the courts, it is a case,' and if a defence is interposed under the Constitution or laws of the United States, and is overruled, then, as in any other case decided by the highest court of the State, this court has jurisdiction by writ of error. "We do not understand the contention to involve, directly, a denial of the right of expatriation, which the political departments of this government have always united in asserting, (Lawrence's Wheaton, 925; Whart. Confl. Laws, section 5; 8 Op. Att'y Gen. 139; 9 Op. Att'y Gen. 356; Act of Congress of July 27, 1868, 15 Stat. 223, c. 249; Rev. Stat. section 1999,) but that it is insisted that Boyd was an alien upon the ground that the disabilities of alienage had never been removed, because he had never been naturalized. "Naturalization is the act of adopting a foreigner, and clothing him with the privileges of a native citizen, and relator's position is that such adoption has neither been sought nor obtained by respondent under the acts of Congress in that behalf. The opinion then refers to numerous instances of naturalization both as to Indians and as to foreign countries, and cites numerous cases in which, after the acquisition by the United States of Florida and Louisiana, as well as after the treaty of peace, inhabitants became citizens. Stress is laid on the following cases: United States vs. Ritchie, 17 How. 525, 539; Inglis vs. Trustees, etc., 3 Peters, 99; McIlvaine vs. Coxe, 4 Cranch, 209; Crane vs. Reeder, 25 Michigan, 303; Desbois's Case, 2 Martin, 185; United States vs. Laverty, 3 Martin, 733; Attorney General vs. Detroit, 78 Michigan, 545; American Insurance Co. vs. Canter, 1 Peters, 511; McKinney vs. Saviego, 18 How. 235. (For full titles, etc., see table of cases in vol. I.) The general trend of all these decisions is expressed on page 169, after referring to the finding Committee on Elections of the House of Representatives in the case of David Levy, who had been elected a delegate from the territory of Florida, and whose election was disputed on the ground of noncitizenship and quoting as follows: "It matters nothing whether the naturalization be effected by act of Congress, by treaty or by the admission of new States, the provision is alike applicable... 666 ... "No principle has been more re"Congress in the exercise of the peatedly announced by the judicial power to establish an uniform rule tribunals of the country, and more of naturalization has enacted gen- constantly acted upon, than that eral laws under which individuals the leaning, in questions of citimay be naturalized, but the in- zenship, should always be in favor stances of collective naturalization of the claimant of it,' and that lib preme Court. Up to this time, although several attempts which have been made to raise the issue, there has been no direct decision thereon.5 The cases involving the effect of treaties in general upon individual rights, collated under a previous section, in many instances are applicable to points involving the protection of personal rights under treaties of cession. The allegiance of the inhabitants changes at once to the new sovereign to which they must necessarily occupy the relations of citizens or subjects as the treaty and the subsequent legislation based thereon shall determine. If, however, the treaty contains erality of interpretation should be | XIII of the treaty with Spain of 1898 applied to such a treaty, is well relate to the citizenship of inhabiworthy of perusal. (Contested tants of the ceded territory: 30 U. Elections, 1834, 1835, 2d Session, S. Stat. at L. 1759, et seq.; the 38th Congress, 41.)" treaty is included in full in the TREATIES APPENDIX at the end of this volume. After reviewing a number of cases of collective naturalization, the opinion says, on page 170: 5 Ex parte Baez, U. S. Sup. Ct. 1900, 177 U. S. 378, FULLER, Ch. J. Motion for writ of habeas corpus denied or ground that as the restraint (imprisonment for a very brief period for misdemeaner com "Congress having the power to deal with the people of the Territories in view of the future States to be formed from them, there can be no doubt that in the admission of a State a collective naturaliza-mitted in Porto Rico) would be tion may be effected in accordance with the intention of Congress and the people applying for admission. "Admission on an equal footing with the original States, in all respects whatever, involves equality of constitutional right and power, which cannot thereafterwards be controlled, and it also involves the adoption as citizens of the United States of those whom Congress makes members of the political community, and who are recognized as such in the formation of the new State with the consent of Congress." After discussing the special laws involved and the facts the court held that the governor was a citizen. Mr. Justice FIELD dissented. Articles IX, X, XI, XII and terminated before the motion could possibly be heard and decided. In re Vidal, U. S. Sup. Ct. 1900, 179 U. S. 126, FULLER, Ch. J. Application for leave to file petition for certiorari to review proceedings of military tribunal. Ex parte Ortiz, U. S. Cir. Ct. Minn. 1900, 100 Fed. Rep. 955, LOCHRAN, J. Writ of habeas corpus denied; but see views expressed in opinion as to effect of treaty of cession on private rights; these views must to some extent be obiter as the court declined to grant the writ. 6 See § 376, p. 82, ante. The treaties with France, Mexico and Spain for the cessions heretofore acquired from them, all substantially provided: provisions enabling the inhabitants, or any of them, to retain their allegiance to the former sovereign those who come within the terms of the treaty must comply strictly with the imposed conditions in order to avail of the right to retain their former allegiance. There is frequently a differ"The inhabitants of the ceded is enacted extending the United territory shall be incorporated in the States customs laws and regulaUnion of the United States, and tions to them the existing customs admitted as soon as possible, ac- regulations of the Hawaiian Iscording to the principles of the lands with the United States shall Federal Constitution, to the enjoy-remain unchanged." ment of all the rights, advantages, and immunities of citizens of the United States, and in the meantime Spanish subjects, natives of the they shall be maintained and pro- Peninsula, residing in the territory tected in the free enjoyment of over which Spain by the present their liberty, property and the re-treaty relinquishes or cedes her ligion which they profess." On the other hand the recent treaty with Spain provides: น sovereignty, . . . in case they remain in the territory (they) may preserve their allegiance to the Crown of Spain by making before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance, in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside. The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress." Extract from brief in Insular Cases, see Record, and until legislation p. 256. See the American Passport, compiled by Gaillard Hunt and published by the State Department, 1898, pp. 97, et seq., and Davis' notes to U. S. Treaties and Conventions, edition 1889, pp. 1262, et seq., for reference to citizenship of inhabitants of annexed territory. ATTORNEY GENERAL GRIGGS ON CITIZENSHIP IN CEDED TERRITORY. Questions of citizenship of the inhabitants of the ceded territory were discussed in the Insular Cases recently decided by the Supreme Court. The following extract from the Attorney General's argument shows the position taken by the Executive in regard to this question. No decision of the court was made on this point (Insular Cases Record, pp. 307-312). |