« SebelumnyaLanjutkan »
this case because it arose under the treaty of May 8, 1871, between the United States and Great Britain. The court says:
“In Clark v. Clark, where the contest was between the bankrupt and his assignee, touching a fund in the Treasury, derived from a foreign Government, the Secretary, though not a party, was enjoined from paying it over until the rights of the contestants were settled in the suit then pending.” But suppose, as has been suggested, that the money was in the British exchequer, at the seat of the home Government, still the conrt below acquired jurisdiction of the parties and had an important duty to perform." And again, in the same opinion:
“Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal.” (See Phelps v. McDonald, '99 United States, pp. 306, 307, and 308.)
The couverse proposition is just as true. Who can deny that in every proceeding in rem, provided the subject matter of the controversy is within the jurisdiction of the coort, it does not matter whether the parties are or are not before the court. But the courts have gone further.
In 1871 there were moneys belonging to the French Government-personal property - deposited with a certain banking house in England, and there were parties who clained to recover certain sams from the French Government. They applied for an injunction to Vice-Chancellor Malin, then bolding the equity court of England, to restrain the said bankers from paying to the French Government the moneys deposited with them, which moneys were within the jurisdiction of the court. Here no personal service could be obtained, since no subpæna could be served on the ambassador of France at London; nevertheless the court held that it had jurisdiction over the fund without personal process had on the defendant, and a temporary injunction was granted.
So the two propositions submitted by the counsel for the United States are pot supported by the just-above-stated decisions-one by the Supreme Court of the United Staies, the other by the vice-chancellor of Englavd. This view of the case I, therefore, earnestly submit to the Commission: First, the jurisdiction over the subjectmatter may exist independently of the jurisdiction over the person, and a claim to a chose in action may be decided bere, even it the party was not subject to the jurisdiction of tbis Commission.
Let us look at another side of this same subject-that of a Frenchman deceased since the rime of the injury suffered. Rule 1 of this Commission says: “If a claimant be dead, his executor or adıninistrator or the legal representatives of the estate must appear, unless it be shown," &c. So the Commission, under its own rules, recognizes that a claim of a deceased Frencbman is before the Commission. Thus an American. born citizen, appointed administrator by a court, is recognized under your rules.
At the saine time I may refer this Commission to the precedents created by the British Claims Commission under quite identical articles. "I find that administrators presenting themselves with letters of administration granted by a county judge were recognized, and as such they represented the estate-no matter who might have been the parties interested in the estate, either as creditors, as heirs, legatees, &c. And here I wish to refer, also, to the words used by the Alabama Court of Claims, where the Hon. Davis was, I believe, secretary. It was held by that Commission “that, owing to the peculiar circumstances of these claims, they should not be allowed to perish through a strict adherence to the technical rules of courts of law.” And further: "The court, by the presiding judge, stated its opinion, early in its session, that letters of administration or letters testamentary granted in any State of the United States would give authority to sue in this court.”
I will take the liberty to come back to the proceedings of the British and American Commission, and I will do so in borrowing the very words used by Mr. Carlisle in his brief in opposition to the demurrer interposed by the United States :
“Where a British subject bas died, and his property has not been administered, no ove conld make the claim but an administrator representing the British right of the deceased owner, and claiming in his stead. That this Commission should refuse to make him an award, because it does not affirmatively appear that living British subjects are interested in procuring such award, would be manifestly unjust and unreasonable." (See Howard's Report, pp. 329-330.)
After the case was fully argued the Commission decided to overrule those demur. rers, “the majority of the commissioners being of opinion that where the claim is prosecated by an administrator, in respect of injury to property of an intestate who was exclusively a British subject, and the beneficiaries are British subjects as well as American citizens, the claim may be prosecuted for their benefit.” (See same volume as cited above, page 18.)
In the case at bar, if this claimant, after suffering damages, had assigned his claim to a Frenchuan, there is no doubt that the assignee, under your rules, would have a standing here, and that he might claim damages. Again, if this claimant bad died before he became naturalized in the United States, an administrator could have come here and prosecnted the claim. And again, in case claimant had died a baukript before he changed his nationality, there is no doubt, under the jnrisprudence established by the British Claims Commissiou, that his assignee in bankruptcy or the receiver appointed by a court of equity would bave a standing before you. This is all I wish to present now to the Commission on the question of the representation of a deceased person, his interest or estate
I come now to another branch of the case. The counsel for the United States has said in his brief (p. 6) that there was no case of a siinilar character before the British and American Claims Commission (or that no claim answering the description of that of Perché was acted upon by the Commission), and in support of his views he qnotes certain circular letters written by the British agent, Mr. Henry Howard, in regard to the conditions to be complied with before claims were presented. This covers pages 6,7, and 8 of the last brief on behalf of the United States. I beg to be excused from reading said letters, since the papers are before the Commission. The reason that decided Mr. Howard to issue such instructions is very plain. Mr. Howard could not do otherwise than to exclude British subjects naturalized in the United States. The British Government was bound by treaty stipulations. The treaty stipulation I am referring to bears the date of May 5, 1871. It is found in the naturalization treaty between the United States and England.
Indeed, just prior to the organization of the Commission organized under the treaty of Wasbington, a treaty of naturalization had been signed by the two countries, in which the conditions of naturalization were clearly defined. This accounts for Mr. Howard's instructions. The same would have been trne in the case of a Commission with Germany, the same with Austria, the same with Italy, with Belgium, and some other countries that I might name. But France has no treaty of naturalization with the United States. It never has had any, and to understand and decide who is a French citizen and how French citizenship is lost, one has to fall back upon the muvicipal laws of France.
I will state first this proposition : That except under what is called "the general principles of 1789," there is no positive enactment anywhere permitting a French citizen to leave his country and to be naturalized abroad. The second proposition is this: That in case a Frenchman leaves his country and goes abroad, and becomes naturalized in a foreign country, his right to do so may have been implicitly recognized by the laws of France, but it is written in no legislative act of an affirmative character.
In the act of 27th of July, 1868, the United States declared positively that an American citizen had the right to go abroad and change his nationality. But there is no such a legislation in France. There are only the provisions of the Civil Code, whose negative character you will notice. Article 17 says:
“French citizenship shall be lost-first, by naturalization in a foreign country; second, by acceptance withont authorization of the King of a public office conferred by a foreign Government; third, and lastly, by a commercial establishment in a foreign country without intent to return."
Such is the article, and now I come back to its first provision. A Frenchman goes abroad. There he becomes naturalized, but it is not ipso facto that he loses his citizenship in regard to the country of his origin. I think that the United States connsel will not be able to find anywhere any provision in the laws of France declaring that when a Frenchman has been naturalized abroad, the very fact that he was so naturalized is conclusive upon his country of orgin. The Civil Code says merely that such a Frenchman has lost his nationality; but by whom is this loss to be ascertained ! The Code says nothing about it.
Whenever questions of that kind have arisen during the last fifteen years, and I may perhaps speak of them with some degree of positiveness, so far as the French Republic and the United States are concerned, the Goverument of the United States has applied to the Government of France to decide whether Mr. So-and-so who held a certificate of naturalization in the United States had ipso facto ceased to be a French citizen, and the Emperor himself, in all his power, always declined to accede to that demand. Why? Because there is only one authority in France which has jurisdiction over the matter; that is the French courts. Take, by way of illustration, the case of a Frenchman who came to this country and was naturalized here, and who returns to France. Before that man was naturalized in the United States, he was not protected by the statute of limitations, so far as military duty at home was concerned. Suppose that that man returned to France after he changed his nationality, and that he was arrested--cases after cases of that description are before me here and wbenever the United States minister to France bas called the attention of the Imperial or Republican Government to those questions, what has been the answer! There has always been but one, viz: We are going to test the case before the courts. So the Frenchman who claims to have been naturalized in the United States is imprisoned by the order of the Secretary of War, for instance, and thereupon the case is referred to the courts. The courts, on presentation to them of the certificate of naturalization abroad, decide that the citizen of French origin has lost his citizenship for the reason that he was naturalized abroad, and it is only when that point is decided by a competent court that the Government of France recognizes the newlyacquired nationality of its native-born citizen.
I wish to read a few lines from General Dix's correspondence on that point. I read from United States Diplomatic Correspondence of 1868, part 1, pages 444, 445:
“It is proper to add, that in all cases when a Frenchman has been conscripted, and stands on record as having failed to comply with the requirements of military service, a judicial inquiry takes place. His passport does not exempt him from arrest and detention ; but the Government always allows bim to go at large on engaging to appear at the time and place appointed for the examination. The first examination is by a civil tribunal. If he is found to be a citizen of the United States, he is exempted from military service. He is then brought before a council of war, which decides whether he has been delinquent, and, if so, whether his delinquency is removed by prescription."
In the same volume there is a case of that kind stated on page 453:
“On being advised officially of these facts by the Marquis de Moustier, I sent him a copy certified under the seal of the legation, of Brailly's certificate of naturalization, and he was promptly released. The Imperial Government only asked that he should satisfy the established form of proceeding by going before a civil tribnnal with his certificate and passport, and show that he bad been naturalized as a citizen of the United States."
So the case of Brailly comes just in support of the general statement made by General Dis.
I have before me all the papers relating to naturalization, expatriation, &c., prepared at the request of the President of the United States. I am able to say that my statement is supported by the opinion of an advocate of the court of appeals of Paris, who is the counsel of the British embassy there; that opinion is printed in this book. Mr. Treitt refers to other cases besides that of Brailly, and finally he lays down the general doctrine in the following way:
" If the person seeking to avoid the performance of military duty pleads naturalization in a foreign country, the court-martial defers the enforcement of the penalty and grants the accused a delay, that he may be enabled to prove his foreign citizenship in the conrts.
"If he obtains a judgment declaring that he has lost his French citizenship, the court-martial acquits him, but only when his naturalization took place three years before. If this is not the case, the judges enforce the penalty provided for the offense. In fact, the avoidance of military service is an offense which no mere lapse of time can cancel; it lasts until the military service is rendered. Now, the jurisprudence of courts-martial says that the offense no longer exists when the offender has become paturalized in a foreigu country ; thenceforward the offender who has been paturalized more than three years incurs no penalty.” (See U. S. Diplomatic Correspondence for 1873, p. 1280.).
The principle which underlies this whole subject is, that no military power can be prevented from enforcing its claim to military service, unless a civil court has held that the Frenchman naturalized abroad is duly naturalized there,
There are certain civil rights which belong to Frenchmen alone-they are few in ber, but there are some. For instance (at least it was so for a great many years), that of holding and owning shares of the Bank of France, which was exclusively reserved to Frenchmen by legislative enactments. At galie time Frenchmen are exempt from furnishing the cautio judicatum solvi under article 16 of the Civil Code ; and again, they enjoy some privileges which relate to contracts between Frenchmen and aliens. If I renieinber rightly, a case arose where a Frenchman was naturalized abroad and came back to sue on a contract, and thereupon this questiou came up brfore the court: Is be an alien or a French citizen! The court held, on the very threshold of the proceedings, that they had to pass upon the question of citizenship.
And now comes a decree about which some words ought to be said here. It is the decree of the 26th of August, 1811, which has never been repealed. Under that decree it is provided that " no French citizen can be naturalized in a foreigu country without our authorization."
This article stands to-day in full force. It is not always applied, but sometimes it is.
I come now to the last branch of the case, about which I wish to submit some remarks to this honorable Commission. If it comes to this—that the personal status of the French citizen must be established at the time of presenting his claim-I have to refer the counsel for the United States to two decisions, both of great weight. The former is a decision of the King's Bench in England; the latter is a decision by the American and British Commission of 1853. In the case of Wilson v. Marryatt, 8 Term Reports, 31, the question was as to the legality of a trading voyage to the East Indies, which was the subject of a policy of insurance to one Collet, who conducted the voyage. That trade was then forbidden to British subjects, but was open to American citizens by the treaty of 1794 between Great Britain and the United States. Collet was a British-born subject and an adopted citizen of the United States, and the question was as to whether or not he was entitled, under the treaty, in his character as an American citizen, to a right from which he was excluded by a statute as a British subject. Here is a case where the same man is at the same time a British subject owing perpetual allegiance to England and an American citizen. The case was argued three times before the court of the King's Bench, and at last the court held that Collet, being within the description of the treaty of 1794 by virtue of his American citizenship, he conld not be excluded on account of his British nationality. The case was carried to the Exchequer Chamber, and there the judgment was affirmed.
The second case is that of Uhde & Co. v. Great Britain, decided in the Commission of 1853. I will take the liberty to read from the opinion of the honorable umpire of that Commission :
“However good the claim of Messrs. Uhde & Co., as conquered Mexicans, against the United States, by the interpretation of the law of nations as given by the decisions of the courts of Great Britain, may be, the claim onght to be excluded from this Counuission. The Government of the United States have, however, entertained the claim in the correspondence between the diplomatic agents of the two countries, and for this reason we hold that it should be considered and settled without further delay.”
As the case is somewhat extended, I will state it in a few words. Here is a British en bject who, under the laws of war, is to be regarded as a Mexican, and, nevertheless, his former character as British subject is held to be sufficient to secure for him an award by the honorable umpire of that Commission.
And now, in somming up, I wish to say that in regard to the citizenship of the right reverend archbishop of New Orleans, when the case was presented to the agent of Frauce, then Mr. Lanen, be submitted the question to me to know whether I thought that the case should be presented. I answered in the affirmative, for the reason that so far as the French Government is concerned, and inasmuch as French courts have not decided to the contrary, that gentleman is as yet a citizen of France.
Ou the other hand, there is the great question of eqnity. This claimant cannot find anywhere else a remedy; and France, that to a certain extent represents him as yet, cannot do otherwise than to give him the opportunity to present himself before this honorable Commission, where he will obtain justice.
At the same session the counsel for the United States made the following argument in conclusion:
As I may not be able to make my remarks clearly understood by all the members of the Commission, what I may say will be reported and placed in the hands of the Commission in print.
First of all, I am obliged to Mr. de Chambrun for the admission he makes at the close of his argument, that the agent, Mr. Lanen, at the very outset was so much in doubt as to whether this case came within the jurisdiction of the Commission under the treaty, that the question was the subject of conterence between the agent and the counsel of the French Goverument. Next, I trust that the counsel for the Government of the French Republic will not take it amiss if I say, in the beginning, that I feel at liberty to omit any attempt to answer some portion of his remarks and argument, as I cannot bring myself to feel that they are pertinent to the issue before the Commission. I shall now state the views which are entertained by the counsel for the United States upon the question of jurisdiction as affecting nationality, or, rather, upon the question of nationality as affecting jurisdiction, and relatiog not only to this case, bint to some other cases which are to be presented to the Commission.
We do not deny the right of an administrator, though an American citizen, to appear before this Commission iv behalf of a clainant, or the estate of a claimant deceased, provided that the beneficiaries of the claim are themselves French citizens and were such whey the claim arose. If they are not so nationalized we deny the right of an administrator to appear, not because he is administrator, but because the beneficiaries themselves, if other than French citizens, would bave no right to stand before this tribunal. We claim that an administrator can have just those rights which his constituency would be entitled to enjoy if the constituency itself could appear. Therefore we admit the right of an administrator to appear, provided his constituency comes within the scope of the treaty, but not otherwise. This is a question, however, which is a little broader than it presents itself upon the demurrer in this case, and I may add that a demurrer bas already been filed in another case, where the party claiming alleges that she is now a citizen or subject of the German Empire, having been in the city of Strasburg when the cession of Alsace took place, and did not avail herself of the privilege of the treaty, by which she might have retained her citizenship in France.
In fine, we deny the right of a claimant to appear personally before this Commission or by a representative, unless the claimant was a French citizen when the loss was incurred, nor unless his citizenship in France has remained undisturbed until the moment of the presentation of the claim before the Commission.
The question of citizenship has been a disturbing one in this country from the beginning, and this honorable Commission will understand, upon the suggestion, that the views entertained in the United States have not conformed to European ideas concerning citizenship, and also that the difference is due largely to circumstances which I will state. In Great Britain especially, where the feudal system existed for a long time, the relation of the snbject was personal to the king. To some extent, I suppose, that same relation has subsisted in all the European states. In this country the citizen is paranıount. He is the first personage of the State, and from him, considered individually and in the aggregate, all power is derived. The authority that is exercised by the magistrate, by the military or by the civil officer, is that anthority which the citizens have conferred through constitutional processes. In Great Britain it was the theory that power originally resided in the sovereign; that grants were made by the sovereign to the subject, and that in return the subject owed loyalty, obedience, and service to the source of power. Of course, these opposing ideas, operating on one side of the Atlantic in one way and on the other side in another way, have been the sonrce of differences all the while, but in these hundred years there has been great reconciliation and a mavifest tendency to entire unity of ideas and policy.
Passing from this topic for a moment, it seems proper for me to say that the authority of this Commission, I respectfully submit, is not derived from tradition; it is not derived from the habits or usages of countries, either the United States, France, or Great Britain; not dependent upon opinion anywbere, but it is derived exactly and specifically from the treaty, and from nothing else. If there have been decisions under other treaties, or if there have been decisions in the courts which seem to militate against the doctrine which the United States attempts to set up here and undertakes to maintain, those decisions and those views are of po consequence whatever uvless there be some ambiguity of language in this treaty, some phrase which is a phrase of municipal or of international law, and which requires interpretation. In such a case we necessarily go to the municipal law or to the international law to tind the meaning, but unless some of these things exist or occur there is nothing, I respectfully submit, for this Commission to do except to look at the treaty. If it be clear; if it be unambiguous; if it be not open to doubt as to what the intention of the parties was, as that intention has been set forth in the language of the treaty, then there is nothing for the Commission to do except to observe the treaty. Nor is it of the least consequence that there is no other tribunal that can do justice to these claimants, if justice has not been already awarded to them. This is not a tribunal to administer justice generally. It is a tribunal to carry out the provisions of the treaty. Of course there are many wrongs that cannot be remedied by this tribunal. Of course there are many persons wbo think tbat they are restrained of their rights in some way or sbape, but they cannot come here unless they are authorized by the treaty to come here; and it is not of the least consequenceit has been drawn into the discussion in the briefs- but it is not of the least consequence whether there is any court in the United States that can give Perché his claim. It is not of the least consequence whether Cougress has constitutional power to reimburse him, or whether it has the disposition to reimburse him. If it happen that, by virtne of his position as an American citizen, he cannot obtain that indemnity which, if he had preserved his citizenship in France, he might have had, that is bis own affair. My friend, de Chambrun, says that Archbishop Perché could not bold real estate under his office as archbishop without becoming a citizen of the United States. That is not a consideration for this Commission. The archbishop decided that question. It was presented to him whether he would accept citizenship in the United States, with capacity to hold real estate, or wbether he would preserve his citizenship in France and deny himself the capacity to hold real estate. If he took citizenship in the United States he took it with all its advantages and with all its disadvantages. If he chose to surrender citizenship in France, he surendered the advantages and be avoided the disadvantages. He made his choice, and he stands before this Commission to day either as a French citizen or as an American citizen, and it is for this tribunal to say which he is.
I ought to say in passing-although the remark is not exactly pertinent to the case of Perché-that it so happened in our first brief (on page 2) that a remark was made which has been commented upon in the reply of the French counse), and not treated in our rejoinder, and therefore I speak of it. The sentence is this--after quoting from Article II of the treaty in which it is provided that the Commission “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., we say, “The