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that her husband, in whose right she claimed to appear, died at Strasburg the 1st day of March, 1871, and before the ratification of the treaty, it followed that the said Henriette Levy was still a resident of Strasburg, within the territory ceded by the treaty of May 10, 1871. Inasmuch as there was no allegation that she ever availed herself of the privilege conferred by the second article of the treaty, it was a reasonable presumption that she was then a citizen or subject of the German Empire, and, being such, it followed that she had no standing before the Commission. The decision of the Commission in tbe case of Archbishop Perché was referred to in support of the position, and the counsel for the United States thereupon moved that the memorialist should be required to amend her memorial, and state whether she had availed herself of the provision of the treaty of May 10, 1871, and that, in default thereof, the case should be dismissed.
The special counsel for the memorialist maintained that the case was not analogous to that of Archbishop Perché, inasmuch as in that case the claimant had voluntarily renounced his allegiance to France and become a citizen of the United States, while Jacob Levy, the husband of Henriette Levy, was born in France, lived in France, and died a citizen of France. It was further contended that, inasmuch as Jacob Lery was a citizen of France when the loss was sustained, and continued to be a citizen of France during his life, the claim was by a citizen of France, and that the Commission should take and maintain jurisdiction. In support of this position the first, second, and fourth articles of the treaty were quoted. The attention of the Commission was also called to the seventh article of the treaty of February 23, 1853, between France and the United States, in which it is provided that
Frenchmen shall enjoy the right of possessing personal and real property by the same title and in the same manner as the citizens of the United States. They shall be free to dispose of it as they may please, either gratuitously or for value received, by donation, testament, or otherwise, just as those citizens themselves; and in no case shall they be subjected to taxes on transfer, iuheritance, or any others different from those paid by the latter."
It was claimed that any change in the nationality of the country of their nativity could not affect the rights acquired by the heirs of Jacob Levy, while the country was an integral part of France, and they were citizens thereof; that the repeal of a law, or change of a treaty, or a cession of territorial domain subsequent to the date when the right of inheritance attached, could not affect any right acquired under the treaty, or such law or cession of territory. Several authorities were cited in the brief in support of these positions, and especially the decision of the Supreme Court of the United States in the case of Dawson's Lessee vs. Godfrey (4 Cranch, 321). It was also claimed by the counsel for the memorialist that the nationality of the father was that of his minor children ; that neither the mother nor guardian could change it during their minority; that when the minors arrived at the age of discretion or majority they had the right to elect whether they would join the country to which their father owed allegiance at the date of his death, and that until that period arrived they continued citizens of France. The cession of Alsace, it was alleged, did not affect in any particular the private rights of the citizens to property or claims for injuries committed prior to the cession.
The counsel for the United States, in reply to the position taken by the counsel for Levy, that there was no analogy between the case of Perché and the case at bar, maintained that the question for the Commission to consider was one solely of the fact of citizenship, and that
the motive, or reason, or the attending circumstances in the case of a change of nationality ought not to be considered, and could have no weight properly; that, assuming the position of the counsel for Levy to be a tenable one, it was true that she had the option tendered to her by treaty of 1871, and she was then called upon to make her choice, either to remain in Germany and become a subject of the German Em. pire, or to accept the privileges of the treaty and retain her citizenship in France. She chose to remain in the German Empire, and thus vol. untarily she fixed permanently her character as a subject of the Ger. man Government.
The Commission sustained the demurrer in these words: The Commission, in this case, judges well. founded and admits the demurrer interposed by the agent of the United States to the claim or memorial. In its opinion, it is beyond doubt that the claimant and ber children, being natives of Alsace, and having always resided there, and not having made choice of the French nationality during the interim granted by the treaty of May the 10th, 1871 (which applied to persons of full age as well as to minors), are included in the collective naturalization, real as well as personal, which resulted to that country in consequence of its aunexation to the German Empire, sanctioned by that treaty. And as German subjects, which they have become, they cannot in any manner hare recourse to a Commission created solely for the settlement of certain claims of French or American citizens.
The French nationality of Jacob Levy, whose rights the claimant and her children bave inheritd , cannot be included in this inberitance. Possessed by him alone, it does not satisfy the requirement of the convention, which demands French nationality in those who actually present themselves before the Commission.
Benjamin Weil and Marx Levy never having been French, the rights which they transferred to Jacob Levy cannot, a fortiori, be takeu into consideration, nor can they render any better the legal condition of the claimant and her children.
For these reasons the Commission sustains the demurrer of the United States counsel and declares the claim outside its jurisdiction.
The judgment of the Commission sustaining the demurrer was dated the 25th of June, 1881. The 20th of September, 1881, the claimant, by her attorney, filed an amendment to the memorial, in which she declared that she and her minor children were residents of and citizens of France, and that her post office address at that time was in Paris, France. Documentary evidence was also filed showing that the said Henriette Levy had made application to the authorities of France, and that she was reinstated as a French subject the 3d of June, 1882.
The counsel for the United States claimed that the amendment was in effect an admission that Henriette Levy and her minor children were citizens of Germany at the time the treaty was ratified, and that citizenship in France acquired after the date of the treaty could not give jurisdiction to the Commission over parties so acquiring citizenship. The case was dismissed finally for want of jurisdiction.
ARTHUR LEVY v. THE UNITED STATES, No. 359.
In the case of Arthur Levy against the United States, No. 359, the memorialist represented that Marguerite Cleoptine Decuir was the owner of certain personal property specified, of the value of $13,345; that said property was taken by Captain Hopkins, of the Kansas Cavalry, at Morganza, Pointe Coupée Parish, State of Louisiana, and that the receipts given for the same were lost during the war. It was also stated further that said Marguerite Cleoptine Decuir was the wife of said Arthur Levy; that she died the 11th day of August, 1870; that her heirs were her husband, the said Arthur Levy, and three children, two of whom were minors at the date of the memorial. It appeared from the memorial that the said Arthur Levy was admitted to citizenship in the United
States in the year 1874, four years after the death of his wife. It appeared also that at the date of his naturalization all his children were minors, and thereupon the counsel for the United States filed a demurrer asking that the claim be dismissed, on the ground that the naturalization of the said Arthur Levy, in 1874, had transferred the citizenship of his minor children from France to the United States. In support of the deinurrer the counsel referred to section 2172 of the Revised Statutes and to the opinion of the Supreme Court of the United States in the case of Campbell v. Gordon (6 Cranch, 176), in which the doctrine was maintained that minor children of naturalized persons, by the naturalization of the parents, became citizens of the United States.
Upon a motion of the counsel for the French Republic the argument upon the demurrer was postponed until the testimony iu behalf of the claimant had been taken. The testimony failed to show that the chil. dren who were minors when the father became a citizen of the United States had made a declaration within a year after arriving at majority of their intention to become citizens of France. The counsel for the United States claimed that they had accepted citizenship in the United States, and that, as to the child who was yet a minor, he followed the condition of his father.
The special counsel for the claimant contended in reply that the law of the United States in these words, “that the children of persons duly naturalized under any laws of the United States, being under the age of twenty one years at the time of their parents naturalization, shall, if dwelling therein, be considered as citizens of the United States," was directory and not mandatory, and that if it had been the purpose to confer citizenship upon minor children, born before the naturalization of their parents, the act would have declared positively that such children were citizens of the United States. Inasmuch, therefore, as the act stated that such children would be considered citizens of the United States, it was discretionary with their parents or legal representatives, during their minority, to exercise such privilege if the interest of the minors required it, but, if this privilege were not taken advantage of during their minority, the children would retain their status as foreign subjects and as such would be entitled to all the rights and privileges of such subjects when they reached their majority. It was averred by the counsel for the claimant that the father did not consider them citizens of the United States, and that they had never taken advantage of the provisions of the act of Congress, nor in any matter enjoyed the privilege of that act to be considered citizens of the United States.
The claim was disallowed, but the question of jurisdiction was not disposed of by the Commission.
DAVID KUHNAGEL 0. THE UNITED STATES, No. 438.
The memorialist in this case represented that in the month of May, 1864, the Army of the United States under Major-General Banks seized and appropriated to the use of the Government a cottage-house, bakery, and movable property of various kinds, all of the value of $4,538. He also set forth in his memorial that on the 16th day of October, A. D. 1872, he went before the parish judge of the parish of Rapides, State of Louisiana, and took an oath to support the Constitution of the United States, renounced his allegiance to the Republic of France, and that a decree was pronounced by said court fully naturalizing him as a citizen of the United States of America." He averred, however, that he had since learned that the petition on which said proceedings were
had contained matters and things which were not true, and which were not known to the petitioner at the time, and were not authorized by bim; that said petition was not read over to him, as he well remembers, and that said matters and things set forth in said petition were unknown to the petitioner until the 7th day of May, A. D. 1881. He added that he distinctly remembers taking the oath aforesaid in open court. He then proceeded to say in his memorial:
The matters and things stated in said petition which are not true and which were not authorized by your petitioner are as follows, viz: “The date of his birth, as stated in said petition, October 18, 1834; that your petitioner came to the United States of America with the bona fide intention of becoming a citizen of the United States; that he had resided in the United States since 1855; that he was a minor when he came to the United States.” And your petitioner avers that he never made any declaration of his intention to become a citizen of the United States at any time or in any mander, save and except as hereiubefore stated, and that no proceeding was ever instituted by him before the 16th day of October, 1872, as hereinbefore stated; that he had never voted before that time or sought to exercise the rights of an American citizen in any way, but had always claimed to be a citizen of France.
The record in the case showed that by a decree of the court in and for the parish of Rapides, Louisiana, dated October 16, 1872, the said Kuhnagel was naturalized and authorized to exercise all the rights and privileges of an American citizen. Upon that fact, as disclosed by the record, the counsel for the United States filed a demurrer, alleging that said Kuhnagel was a citizen of the United States at the time the treaty of the 15th of January, 1880, was ratified.
In reply the counsel for the memorialist introduced a decree, dated April 12, A. D. 1882, made by one Aristides Barbin, judge of the twelfth district court, Rapides Parish, State of Louisiana, in a case entitled "In re David Kuhnagel, No. 2701.” In this decree it was stated that, The decree made and passed in the late parish court on the 16th day of October, 1872, in canse No.825, was made and passed by the court in mistake of the real facts, and that the court was misled by material mistakes inadvertently made in the petition, and that the said David Kuhnagel was and is not in any way responsible for such mistakes; and being also further of opinion that the said David Kuhnagel is not a citizen of the United States, and has not hitherto, and never was admitted to be. come a citizen of the United States according to law: It is therefore, this 12th day of April, A. D. 1882, by the court adjudged, ordered, and decreed that the said decree of the late parish court of the 16th day of October, 1872, in cause No. 825, be, and the same is hereby, wholly annulled, vacated, and set aside.
On the issue thus framed the counsel for the United States maintained that it was not competent for the judge of the district court of Rapides Parish to annul or vacate or set aside a decree of that court, by which David Kuhnagel had been admitted to citizenship in the United States. The counsel claimed that an examination of the Revised Statutes (sections 2165 to 2174, inclusive) showed that the power conferred upon certain specified courts to admit aliens to citizenship was a limited authority, defined by statute, and could be exercised only in conformity to the statutes; that authority was not anywhere given to any court to annul a certificate of naturalization theretofore granted, and that such certificates could only be attacked collaterally in cases involving the rights of claimants to citizenship whenever a contest should arise. It was maintained further by him that the Supreme Court, in the cases of Campbell v. Gordon (6 Cranch, 176) and Starke v. Ches. Ins. Co. (7 Cranch, 420), had held that the Supreme Court could not go behind the certificate and inquire whether the court which granted it observed the requirements of the statute as to the antecedent proceed. ings. He also invoked, as a well-settled rule of practice, recognized by the common law of Great Britain, that a court has jurisdiction over a judgment, order, or decree which affects the rights of parties only during the term at which the judgment, or order, or decree may have been made, and that when the roll is made up and signed, or the term of the court is concluded, there is no power remaining in that court or in its successor to amend, alter, or annul any such order, decree, or judgment, but that errors could be corrected only by appeal or by a review under statute authority.
In reply it was contended that the right of the claimant to file his petition was sustained by Adams' Equity, 419; Daniel's Ch., 1584, and the cases there cited. Those cases supported the doctrine that where a decree bas been obtained by fraud the court will restore the parties to their former situation, whatever their rights may be. Reference was made also to the case of Evans r. Bacon (99 Mass., 213) and Plymouth v. Russell (7 Allen, 438.) The authority of Mr. Justice Field was also quoted, who said in the case of The United States r. Castero (5 Sawyer, C. C., 628) :
The doctrine that the jurisdiction of the court over a cause after final decree ceased with the term in which the decree is rendered, is intended to protect parties from disturbance and litigation after the merits of their cases have been fully heard and determined. It was not intended to protect them in decrees entered by mistake any more than in decrees entered by imposition or fraud upon the court.
The case of Campbell v. Cannon, decided by Judge Hunter, third judicial district court of Utab, was cited; also the authority of Mr. Secretary Fish, who said in the Kastellan cases, reported in “Foreign Relations, 1875, No. 252, Part 1,” as follows:
I have the honor to inform you that under the circumstances, and in the case you state, certificates of naturalization, valid on their face and founded on a decree of a competent court, cannot be questioned except through judicial proceedings instituted for the purpose, in which the correctness of the facts formerly passed upon may properly be adjudicated, and that it is not within the province of the political department of the Government to anticipate what would be the result of a judicial inquiry into the question.
The counsel for the United States, in answer and in further support of the points made by him, said:
The rule in courts of law is that a decree or a judgment or an order made at a given term is not subject to alteration or revision at any subsequent term of the same court, except in cases where special authority by statute has been given. On this principle and rule of practice rest all the statutes of the various States, by which a party may have a review of a case even after execution has been issued for the enforcement of a judgment. In those cases, however, the proceeding is not by motion, but by a writ of review, supported by affidavits usually, and by a declaration. It is, in fact, a new suit relating to the same subject-matter, and the authority to institute it depends entirely upon the provisions of the statute under which the suit is commenced ; and common law courts have no other authority in regard to their own decrees, orders, or judgments after the close of the term at which the decree, order, or judgment may have been announced. Courts of chancery are also alike powerless to anyol a final decree made when the term of the court has expired. It is true, however, that by the rules of equity and the practice of equity courts, whenever a suffering party wishes to annul or avoid a final decree that has been made at a term of a court already ended he can obtain what is equivalent to a review by the preparation of a new bill, in which the grounds for the rehearing must be fully set forth and supported by the oath of the complainant. The court may then proceed to a reconsiderative of the subject matter. The proceeding, however, is a new suit, and every step takon must be in conformity to the rules of the court. A motion made at a term of an equity court to set aside a final decree made at a former term of the court cannot be entertained. In the opinion of the counsel for the United States no such motion has ever been made and entertained in any equity court of the United States. The court in which Kuhoagel was naturalized was a court of law, and the jurisdiction which it was then exercising was conferred upon it by a statute of the United States. As the agent of the United States Government, it had no equity power what
When it had passed upon the application of Kuhnagel to be admitted to citizenship, and had made the decree, it had no other power remaining except the