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of Maine et Loire, France, the 6th day of January, 1806, and that in the year 1870 he was naturalized, and became thereby an American citizen.
Upon this statement of facts the counsel for the United States demurred to the memorial as not being sufficient under the treaty nor in law for the claimant to have or maintain his claim against the United States.
As this case was a leading case, and as the discussion in the briefs and by oral argument treated not only of the law as applicable to the citizenship of Perché, but as much of the argument was applicable to analogous questions that had been presented and were then pending before the Commission, I introduce the briefs and arguments in the case in full:
Brief by the counsel for the United States.
STATEMENT OF THE CASE.
This claimant states that he was born in France; that up to 1870 he was a French citizen; that he then became a citizen of the United States, and that he has since remained a citizen. The counsel on the part of the United States has demurred to the memorial on the ground that the matters therein stated are “not sufficient, under the treaty, nor in law, for the claimant to have or maintain his claim against the United States," and thus he presents to this honorable Commission the following question, viz: Can a claimant who, at the date of the con. clusion of the treaty establishing this Commission, was a citizen of the United States, and who was such for some time prior to that date, and who has remained such ever since, recover compensation for a loss alleged to have been caused by the authorities of the United States !
The jurisdiction of this Commission is limited by the treaty, and authority is given it to pass on those claims only which are therein described.
The claims against the United States which are described in the treaty are those for certain losses sustained by “corporations, companies, or private individuals, citizens of France"_"des corporations, des compagnies ou de simples particuliers “ citoyens français." (Art. I.)
This claimant is not a citizen of France
a. By the laws of France. It is provided by those laws that “La qualité de français de perdra 1e par la naturalisation acquise en pays étranger.
3. Enfin par tout établissement fait en pays étranger sans esprit de retour." (Code Civil 1. i., t. i., c. ii, De la privation des droits civils, 1 s, 17.)
The naturalization is adınitted, and the naturalization coupled with the long residence of the claimant in this country is conclusive evi. dence that he is here " sans esprit de retour."
b. By the laws of the United States the claimant is a citizen of the United States, and entitled to the rights and privileges of a native. (Revised Statutes of the United States, sec. 2168.)
II. By Article II of the treaty it is provided that the Cominission “ shall be competent and obliged to examine and decide upon all claims of the aforesaid character presented to them by the citizens of either country, except such," &c.
The treaty thus speaks in the present tense, and bars any and every claim unless the person presenting it is, at the time of its presentation, a citizen of the country through whose agency the claim is to be enforced.
By the first article of the treaty it is declared that claimants against the Government of the United States must have been citizens of France at the time when the acts were committed out of which the claim arose, and therefore it appears from these two articles of the treaty, considered together, that the citizenship which existed at the time when the claim arose must have been preserved without interruption until the presentation of the claim before this Commission.
In the case at bar it is not only admitted but declared by the claimant that in the year 1870, having theretofore been a French citizen, he was naturalized under the laws of the United States, and that since that time he has been an American citizen. Therefore he has no legal capacity under the treaty to appear before the Commission as a claimant.
By the principles of international law this claimant is a citizen of the United States, subject to the jurisdiction of that country only, and to the Government of that country only can he look for protection and for redress of any wrongs inflicted by its authority.
Where a person “ by his own act has made himself the subject of a foreign power,
it certainly places him out of the protection of the United States while within the territory of the sovereign to whom he has sworn allegiance. The Charming Betsy, 2 Cranch, 64.)
"" Having once acquired a national character by residence in a foreign country, he ought to be bound by all the consequences of it until he has thrown it off, either by an actual return to his native country, or to that where he was naturalized, or by commencing his removal bona fide." (The Venus, 8 Cranch, 253.)
These are the decisions of the bighest judicial authority in the United States, and they are supported by the opinions of the most eminent publicists.
With regard to the jurisdiction and authority of states over their own proper subjects no donbt can be raised; under the term subject may be included both native and naturalized citizens. (Phillimore, Vol. I, chap. XVII, O CCCXVII.)
It has been said that these rules of law are applicable to naturalized as well as natire citizens. But there is a class which cannot be, strictly speaking, included under either of these denominations, namely, the class of those who have ceased to reside in their native country and bave taken up a permanent abode (domicilium sine animo revertendi) in another;
they are de facto, thongh not de jure, citizens of the country of their domicil. (0 CCCXIX.)
The claimant, however, acknowledges not only that he is a citizen of the United States de facto, but also de jure.
Naturalized foreigners are in a very different position from merely commorant strangers.
Naturalization is usually called a change of nationality. The naturalized person is snpposed, for the purpose of protection and allegiance at least, to be incorporated with the naturalizing country. (CCCXXIII.)
See, also, Story, Conflict of Laws, s. 48, c. iii; ib., s. 540, c. XIV; Felix, 1. i, t. i, s. 2, 342—Du changement' de Nationalité; Heffter, s. 58; Colquhoun's Civil Law, s. 393, vol. i, p. 377; ib., 8. 389, p. 373; Günther, vol. 2, p. 267, and pages 266–311, n. e.; Vattel, 1. i, c. xix, s. 211, et seq.; Cockburn on Nationality, chap. III, sec. 2.
IV. National jurisdiction, like every other jurisdiction, is limited, and the capacity of two or more nations in the exercise of the treaty.making power is limited to the territory which they respectively possess and to the persons owing allegiance to each, respectively. It could not for a moment be claimed that the Republic of France, by the treaty-making power, could exercise jurisdiction over a subject of Great Britain; and for a stronger reason it must be clear that France could not by treaty obtain jurisdiction over a citizen of the United States except by a clear concession of the power on the part of the United States.
It is the primary duty of every Government to protect its own citi. zens, and this duty is a constant denial of a like power in any other Government.
In Janoary, 1880, the Republic of France had no jurisdiction over those persons who, though born within the jurisdiction of France, had voluntarily withdrawn their allegiance from that Government and transferred it to the United States; and therefore it was not competent for the Government of the French Republic to make any provision by treaty or otherwise for the protection of such persons or the enforcement of any of their rights.
If such persons have suffered losses their only remedy is by a direct appeal to the Government of the United States, without the intervention of any other power.
This claimant, therefore, has no right of action against the United States before this Commission, because he is not a citizen of France, but is a citizen of the United States, and therefore the Government of France had not, at the time the treaty was concluded, and it has pot now, any jurisdiction over him or power to treat or act in his behalf.
Brief of counsel for the Republic of France in reply to counsel for the
United States on demurrer interposed by the United States.
STATEMENT OF THE CASE.
At the time of the commission by the United States of the acts complained of the memorialist was a citizen of France, but since these occurrences memorialist has been naturalized as a citizen of the United States; and the question is, Has the Commission jurisdiction, under the treaty, in the premises ?
Counsel for the United States insists that the Commission has not jurisdiction. The undersigned, counsel for the French Republic, contends that the Commission is clothed with jurisdiction by the very terms of the treaty.
The undersigned agrees with the counsel for the United States that "the jurisdiction of this Commission is limited by the treaty, and authority is given it to pass on those claims only which are therein described." (Brief, p. 1.) And the undersigned maintains that if it be established that the demand of the memorialist grew out of and is founded in a claim which is described in the treaty, then there can be no doubt bat that the Commission has jurisdiction, and should consider the claim on its merits.
To ascertain whether or not the Commission has jurisdiction of a case, or claim, reference must be had to the treaty; and the undersigned proceeds at once to the consideration of the treaty.
It will not by denied that the treaty was entered into between the two Governments bona fide ; and its immediate purpose, as appears from the language. I was to give relief and to provide indemnity for a large class of suffifrers—citizens of the respective Governments-on account of injuries to person or property by them sustained within certain jurisdiction (and during a specified period of time. (Article I.)
It becom s important, then, to ascertain what is meant by the expression jurisdiction. “Jurisdiction [says the Supreme Court of the United States (United States v. Arredondo, 6 Peters, 709)) is the power to bear and determine a cause. It is coram judice whenever a case is presented which brings this power into action.” "It [jurisdiction] is the power to hear and determine the subject-matter in controversy between the parties to a suit; to adjudicate or to exercise judicial power over them, the question is whether, on a cause before a court, their action is judicial or extrajudicial, with or without authority of law to render a judgment or decree upon the rights of the parties. If the law confer the power to render a judgment or decree, then the court has jurisdiction.” (Rhode Island v. Massachusetts, 12 Peters, 718; Banton v. Wilson, 4 Texas, 404.)
There are some principles of public law which are universally recog. nized by modern civilized states. O of these is, that international treaties are covenants bona fide, and are, therefore to be equitably and not technically construed. (Phillimore Int. Law, Vol. II, p. 89.) Another is that the covenant or treaty contracted by two or more parties is to be interpreted with reference to the intention of them all conventio sive pactio est duorum vel plurum in idem placitum consensus.” (Ib., p. 92.)
Another is, that good faith clings to the spirit and fraud to the letter of the convention. (Ib., p. 107.)
Under any equitable construction of the provisions of the treaty the Commission must be held to have jurisdiction of the claim now submitted by the memorialist, and for the following reasons:
First. Because the acts complained of were committed by the United States.
Secondly. Because the acts were committed within the jurisdictional territory marked out by the treaty.
Thirdly. Because the acts were committed during the periods fixed by the treaty.
Fourthly. Because the acts complained of were injurious to the person and property of a citizen of France.
All which above averments of facts are contained in the memorial, and are, for the purposes of this demurrer, admitted by the counsel for the United States.
The undersigned, therefore, maintains that an equitable construction of the provisions of the treaty gives the Commission jurisdiction of the claim of memorialists. Any other construction would be technical, and would, to that extent, defeat the purpose and intention of the two contracting powers in the creation of this Commission.
If this claim is not entertained and examined on its merits by the Commission, the memorialist is without remedy and redress, for the reason that there is no tribunal before which the memorialist may pre. sent himself.
In fact, the undersigned has been informed that one of the honorable commissioners (Mr. Commissioner Aldis) very recently sat as the presiding officer of a claims commission, organized by authority of the United States, which decided that a naturalized American citizen could present a claim before the said Commission as an American citizen, on account of acts committed by the United States against his person or property, at a time when claimant was a citizen of France.
The contention of counsel for the United States can only be sustained on the theory or assumption that naturalization is reproactive. But naturalization produces its effects only in the future. (vt oicesco, Etude sur la Naturalisation, pp. 572, 285.)
The answer to what the counsel for the United States says under the second point of his argument (p. 2), as to the meaning of certain expressions in Article II of the treaty, is twofold:
First. That such a construction is technical.
Secondly. That Article II is in the aid of, and has immediate reference to, Article I, and that Article I contains the fundamental provisions of the treaty, and the language of other articles must, in cases of doubt or difficulty, be construed with reference to it.
The counsel for the United States says (page 2): The treaty thus speaks in the present tense, and bars any and every claim unless the person presenting it is at the time of its presentation a citizen of the country through whose agency the claim is to be enforced.
But the Commission cannot fail to detect the fallacy contained in this statement or proposition of the counsel for the United States. Legal representatives certainly, of deceased citizens of either country, and beneficiaries presumably, may present the claims of decedents and of original owners to this Commission. And this, irrespective of the citi. zenship of such legal representatives or beneficiaries. (See Rule 1 of the Commission, p. 1; see Comegy8 v. Vasse, 1 Peters, Supreme Court Reports, pp. 212, 213.)
On the other hand, the language of Article I of the treaty is: * And all claims on the part of corporations, companies, or private individuals, citizens of France, upon the Government of the United States, arising out of acts committed against the persons or property of citizens of France.
This clearly refers to the persons or property of individuals who at the time of the commission of the acts aforesaid were citizens of France.
If all claims that could not be brought within the description indi. cated by counsel for the United States in the paragraph cited are to be barred, the labors of the Commission will be exceedingly light; and again, the palpable intention of the two contracting states will be defeated by a technical construction of the language conveying the grant of powers to the Commission.
The undersigned believes that the Commission will see that cases cited by counsel for the United States (p. 3), to wit, The Charming Betsey and The Venus, bave no application to the case at bar; neither do they contain anything which can be construed as in conflict with the position here taken by the counsel for the French Republic. In those cases the distinction between the national character of property and the nation. ality of persons was recognized and laid down.
Those were cases where the effort had been made to impress a hostile character upon property in certain situations as distinct from the national character of the owner, and vice versa.
There are some propositions of the counsel for the United States which are emphasized under the fourth point of his argument (p. 4) that are