Page images

charge is not sufficient to raise inference of malice. proof on part of the defense was, inter alia, that the Lewis v. Chapman, 16 N. Y. 369; Fowles v. Bowen, ash was below 48 per cent strength; that it was not 30 id. 20; Ormsby v. Douglass, 37 id. 477; Hart v. marketable, but valueless and us not being in Gumpach, L. R., 4 P. C. 439 ; 4 Moak Eng. 138, 156; fact the article it was sold for. The court below Laughton v. The Bishop, etc., L. R., 4 P. C. 495; 4 refused to entertain the offer, and ordered judgMoak Eng. 162, 174; Harwood v. Keech, 4 Hun, ment on the ground that the defendant had shown 389.” “The defendant therefore had the right to neither an express warranty nor fraudulent reprehave the jury advised what was required to render sentation, and that nothing short of this could prehis communication to the commissioner a privileged vent the plaintiff's recovery. In this case, like that one; that it was not dependent on the truth of the in hand, there was neither inspection of the goods words spoken, but only on his belief that they were nor opportunity for such inspection, so that they are true and the good faith of the communication. in all particulars similar. A like case is that of This proposition is so well settled that no discussion Warren v. Philadelphic Coal Company, 2 Nor. 437, of it as applied to this case seems necessary.

Hal- in which Mr. Justice Woodward affirms that there stead v. Nelson, 24 Fun, 395; O'Donaghue v. McGov- is no rule more firmly imbedded in our jurispruern, 23 Wend. 26; Bradley v. IIeath, 12 Pick. 163; dence than that which governs the rights of vendors Gassett v. Gilbert, 6 Gray, 94; IIatch v. Lane, 105 and purchasers in an ordinary contract of sale of Mass. 394; Vanderzee v. McGregor, 12 Wend. 545; personal property. “In such a contract the vendor Streety v. Wood, 15 Barb. 105; Whiteley v. Adams, is subject to no implication of a warranty of the 15 C. B. (N. S.) 392; Dawkins v. Lord Paulet, L. quality of the article sold.' IIe also adds: “The R., 5 Q. B. 102. The relation of the defendant to doctrine of the common law, as it was settled in the school district and school enabled him to licem Chundelor v. Lopus, Cro. Jac. 4, has been constantly it his duty to communicate to the officer having the and uniformly applied. The same doctrine is held power and charged with the duty to act upon by Mr. Justice Mercur, in Whituker v. Easturich, 25 charges made against the moral character of the P. F. S. 229, and also in Eugan v.Call, 10 Casey, 236. teacher, and make the result of his examination cf-| As has been said, this is the common law doctrine fectual either to sustain or disqualify the latter to con

and is found in the case of Chanelor v. Lopus, in tinue as such in the district. The welfare of district which case the declaration set forth that the deschools and of school districts requires that the fendant, a goldsmith, having skill in precious honest and fair exercise of this privilege should stones, 'had a stone which he affirmed to Lopus to have protection; and the law, as it should, will con be a bezoar stone, and sold it to him for a hundred demn the act and assord redress when under the pounds; ubi rever, it was not a bezoar stone. Unguise of the privilege the opportunity is taken to der the pleadings judgment was given for the plaintvilify and defame a teacher for purposes selfish and iff in the King's Bench, but was reversed in the malicious. Iarwood v. K’eech, 4 IIun, 389. But when Exchequer Chamber on the ground that the bare the relation to the district of the parties to the com affirmation that the stone was a bezoar, without munication, and their duties, are those before men- warranty, was no cause of action. This is perhaps tioned, the presumption arises that the charges are an extreme case, for here the article was not even made in good faith and with a sense of duty unless in specie what it was sold for, nevertheless, as we circumstances attendant or extrinsic tend to the have seen, it was literally followed in Il’etherill v. contrary, and the burden is on the plaintiff to im- Neilson, supra, as it was in Seiros v. Wools, 2 Caines, pugn by evidence the motives of the party making 48, and the latter was followed in New York in them. Shurtlefi* v. Stevens, 51 Vt. 501; S.C., 31 1m. Iloldon v. Dukin, Johns. 421. We understand, Rep. 698; Brow v. IIutharay, 13 Allen, 239; Thorn | indeed, that both in England and New York there v. Moser, 1 Denio, 493; Taylor v. Iarkins, 16 Ad. has been to some extent a departure from the rul& Ell. (N. S.) 308, 321; Furcles v. Bowen, 30 N. Y. 20; ings of the above cited cases, but in l'ennsylvania Somerville v. Inwkins, 10 ('. B. 583, 590; IIurris v. there has been a stcally adherence to the common Thompson, 13 id. 333."

law doctrine without any greater qualification than

that found in Borrekirs v. Berun, 3 Rawle, 37, In Ryan v. U’liner, Pennsylvania Supreme Court,

where it was held that the goods sold must be the

same in kind as those mentioned in the contract of January, 1885, 16 Week. Notes Cas. 121, it was held that where there is no knowledge on the part of the

sale.” Turnkey and Sterrett, JJ., dissenting. vendor of goods of their defective quality, although no opportunity of inspecting them is given the In Griffith v. Charlotte, C. fit. R. R. Co., Suvendee, the sale itself raises no implied warranty of preme Court of South Carolina, April 22, 1885, 19 quality or even of merchantability on which the Rep. 697, where an administrator sued a railroad vendee can sue is the goods prove worthless. This company for running its trains over the corpse of was on a sale of pork. The court said: “The case the intestate, which had been placed on its track, of Wetherill. v. Neilson, 8 Iar. 448, is directly in thereby mutilating the remains and destroying the point, and would have to be overruled were we to apparel, and a silver watch on the body; held, that sustain the court below. There the bill of sale was the administrator had no property in the corpse, of '35 casks of soda ash, 48 per cent.' The offer of , and therefore could not maintain the action as to

[ocr errors]

the body, but that lie could as to the apparel and diligently through the common law reports of Eng. the watch, The court said: “Can property, either land, and have found no case in which the circuit absolute or qualified, be acquired in a corpse; and courts have been appealed to in matters connected especially as involved in the case under investiga- with the bodies of the dead; on the contrary, their tion, can such property be acquired by the admin- burial, the grave-yards and cemeteries in which istrator of the deceased?” Citing 2 Bl. Com. 429; 4 they are interred, and the religious ceremonies obid. 235; Jacob's Fisher's Dig.; Bish. Crim. L. served, have been left exclusively to ecclesiastical § 792; East P. C. 652; Whart. L. Max. 228. “We congnizance, the civil courts universally holding, have been referred to no case by appellant in con in the language of Lord Coke, that the burial of flict with this doctrine nor have we been able our the cadarer is nullius in bonis.' In some of the selves to find a case or a single expression in any States upon this continent, especially in Rhode text-book which affects it in the slightest degree. Island, in Indiana, in Pennsylvania, and New York, And that this should be so is not surprising. Be- the courts endeavoring to escape from this reproach, cause while it is natural that we should all feel have held in general terms that the corpse belongs, that the remains of ancestors and of loved ones not to the administrator, but to the next of kin, should be tenderly watched, and their decent inter- and that is as far as the cases referred to by appelment carefully guarded, and the mutilation of their lant's counsel seem to go. In Pierce v. Cemetery dead bodies and the disturbance of their sepulchres Co., 10 R. I. 227; S. C., 14 Am. Rep. 667, it was severely punished, and while all laws necessary to held that while a dead body was not property in that end should be passed, and strictly and sternly the strict sense of the common law, it is quasi propenforced, yet even for this purpose, to make such erty over which the relatives of the deceased have venerated remains the absolute property of any one, rights which the courts will protect. In Re Widenin the sense of objective appropriation, would be ing Beekman Street, 4 Bradf. 503, it was held that abhorrent to every impulse and feeling of our “the right to bury the corpse and to preserve its renatures. But can there not be a qualified property mains is a legal right which the courts will protect. in the dead, one which gives control to some one That such right, in the absence of any testamentary with the view to protection, to decent interment, disposition, belongs exclusively to the next of kin.' and to undisturbed repose, while they are dissolv- In Bogert v. Indianapolis, 13 Ind. 135, it was held ing and returning to the dust from which they were that the bodies of the dead belong to the surviving created ? Can it be that there is no legal guardian- relatives in the order of inheritance as property. ship of the dead? And that when the life escapes In Wynkoop v. Wynkoop, 42 Penn. St. 293, it was the body is left, so far as the law is concerned, held that a wife has no right or control over the without protection, even from wanton and malicious body of her husband deceased after burial. The depredations, and that those to whom it was bound disposition of the remains of the deceased belongs in life by the tenderest of ties can invoke the aid of therefore exclusively to his next of kin. That no court in preventing its mutilation, and must they though it was her duty to bury the body, as widow, resort to violence and force for this purpose? If after interment her right ended.' Upon what ausuch be the fact, it is a reproach to our judicial sys- thority or established principle of the common law tem, and one which calls earnestly for legislative these decisions were founded, even to the extent of interposition. And yet such seems to be the facı; legalizing the right of the next of kin, does not at least, the matter is left in great doubt, so far as fully appear; but they afford no support to the our limited examination of the cases, both in this position that the administrator has any control country and in England, amid the press of our whatever, which is the question here. We liave no duties, has enabled us to ascertain. Certainly the case in our own reports upon the subject; certainly administrator has no legal control or authority over no case bearing upon the precise point before us, the dead body of the person upon whose estate he i. e., the rights of the administrator. In the abhas administered. His entire authority is derived sence of all authority, and looking at the act which from the act by virtue of which bis letters have authorizes administration and defines the duties and been granted to him, and that gives him charge powers of administrators, and describes the proponly of the goods and chattels, rights and credits erty which by operation of law becomes theirs, we which were of the deceased. The body of the in are constrained to the conclusion, that so far as this testate belongs to neither of these classes, and there action is founded upon the mutilation of the deis therefore no law for him to take it in charge. ceased by the defendant company, whether acciTrue, he is required to pay is the first of debts the dental, willful, or negligent, it cannot be sustained funeral expenses, but it would be a violent assump-by the plaintiff, and that his honor, the circuit tion to conclude on that account that he becomes judge, was correct in so holding. This however the legal custodian of the remains; or even if he does not apply to the clothes in which the body was should, it could only be so as to the funeral and clad, and the silver watch upon the person; as to burial, because the expenses extend no further; these the administrator was the legal owner, and his they stop at the grave. The question would then appointment, though made after the occurrence, arise, who could legally protect beyond that point, reached to the death, his title commencing at that and in whose behalf could the law be invoked to time. As to these, then, the action was maintainredress an invasion of the toml) ? We have looked able, and we think that his honor was in error in not

80 holding. [cLane v. Elder, Brev. MSS. Rep., 2

The other section to which I desire to call attention Mill, 184; Dealy v. Lance, 2 Speer, 487. But the

is the following:

“173. It is provided by law that persons born out of majority of this court having, in Veetze v. R. Co.,

the limits and jurisdiction of the United States, whose determined that the circuit judge had the power to fathers were, or shall be at the time of their birth, citireview and reverse the findings of fact of the referee, zens of the United States, shall be deemed and considand he having exercised that power in this case, the ered to be citizens of the United States, provided that judgment of this court, therefore, is that the judg- the right of citizenship shall not descend to persons ment of the Circuit Court be affirmed.” See Wela whose father's never resided in the United States.

Within the sovereignty and jurisdiction of the United v. Walker, 130 Mass. 422; S. C., 39 Am. Rep. 465, and

States such persons are entitled to all the privileges of note, 467.

citizens; but while the United States may by law dlar or

declare the conditions constituting citizens of the CounIMPORTANT LYSTRICTIONS IN RELATION TO try within its own territoriul jurisdiction, and may conCITIZENSHIP, DOMICILE ANI)

fer the rights of Imerican citizens everywhere upon pere WARRLAGE.

sons who are not rightlully subject to the authority of

any foreign country or government, it ought not, by unThe following correspondence will explain the rea

dertaking to confer the rights of citizenship upon the son of the changes recently made by tho Secretary of subject of a foreign nation who had not come within our State in the diplomatic instructions in reference to the

territory, to interfere with the just rights of such nation law of citizenship, domicile and marriage:

to the government and control of its own subjects. If

by the laws of the cowitry of their birth children of LAW BUREAU, Míay 4, 1885. American citizens born in such a country are subjects of To the Ilonorable the Secretary of State:

its government, the legislation of the Lnited States will Sir: I beg to call your attention to two sections in not be construeil so (s to interfere with the allegiance our Consular Regulations and in our Diplomatic In

which they owe to the country of their birth while they structions, which call for grave consideration. In our

continue within its territory. If therefore such a person, Consular Regulations we hare the following:

who remained a resident in the country of his or her “158. Passports are to be issued only to citizens of birth, applies for a passport as a citicon of the United the United States, and are to be numbered, commenc

Stutes, such passport will be issued in the qualified ing with number 1, and so continuing consecutively form, shown in form No. 11.” until the end of the incumbent's term of office. To

The correct rule I apprehend to be that the children issuo a passport to a person not a citizen is a penal of

born abroad of parents domiciled in the l'nited States fense, punishablo on conviction by imprisonment not

partake of their father's domicil, and children born exceeding one year, or by a fine not exceeding $500, or

abroad of citizens of the United States partake of their both. Persons who luare merely declared their intention

father's citizenship. The possession of these rights

continues until the infant arrives at the age of twento become citizens are not citizens of the United States within the meaning of the law.

ty-one, at which age ho is entitled to make election as The same position is taken in our Diplomatic In

to what nationality and domicile he will accept, which structions.

election must be regarded as final. It is true that such The lines italicised in the above section do not, I residing in a foreign land, may be regarded as bound

children, like all other citizens of the United States think, state the law with sufficient accuracy. It may be conceded that a mere declaration of intention does

to render the duty of local obedience. But with tho

above limitation as to election they are no more subnot create citizenship of the United States. *

On the other hand, such a declaration, coupled with ject to the domiciliars municipal laws of such foreign domicil (i. 1'., residence accepted as a final abode), land, or clothed with its nationality, than are any may give the declarant, as was held by Mr. Marcy in

other citizens of the United States temporarily retho Koszta caso, a claim on our government for protec- siding abroad. As will be seen by authorities in an tion, when the declarant, on the high seas, or on the

exhibit attached hereto, these views are sustained not territory of a neutral power, is seized by the sovereign only by rulings of our own and English courts, but by of his original allegiance in such a way as to prevent

the opinions of leading jurists who are experts in this

branch of law. him from perfecting his allegiance to his sovereign of election. And a person merely domiciled in the

It is true that in a letter of Mr. lloar, when attorUnited States, eren without declaration of intention, ney-general, dated June 12, 1869, we have the following is, as will be shown by tho Exhibits hereto attached,

statoment: entitled to protection from our government in all mat

“If therefore by the laws of the country of their ters concerning his civil as distinguished from his po

birth children of American citizens, born in that counlitical rights.

try, are subjects of its government, I do not think that

ii is competent to the United States by any legislation * NOTE. That the question of the effectiveness of a to interfero with that relation, or by undertaking to declaration is still open to doubt may be seen by the extend to them the rights of citizens of this country, following section from the Revised Statutes:

to interfere with the allegiance which they may Owe "SEC. 2168. When any alien who has complied with to the country of their birth while they continue the first condition specified in section twenty-one hun- within its territory, or to change the relation to other dred and sixty-five, dies before ho is actually natural- foreign nations which, by reason of their place of ized, tho widow and the children of such alien shall be birth, may at any timo exist." 1:3 Op. Atty.-(enl., $9. considered as citizens of the l'nited States, and shall See to same effect letter of Mr. Fish, Aug. 25, 18733. be entitled to all rights and privileges as such upon (For. Rel. ('. S., 1:573-1, vol. 2, p. 1192. taking tho oaths prescribed (sic) by law."

So far as this statement bears on the question of This section has been applied, as stated by Mr. Er passport, in reference to which it was made, I do not. erett, in Germany, in granting passports for the protec- propose to discuss it, though even in this limited retion of widows and children of persons who hare de- lation I doubt its accuracy. But I do wreservedly clared their intention to beconio citizens of the United maintain that by the law of nations no legislation of a States, but whose naturalization has not been per- foreign State can subject either a person domiciled in fected.

one of the United States, temporarily residing in such

foreign country, or a child born to him during such the end of the incumbent's term of office. For a diptemporary residence, to the municipal laws of such for lomatic or consular officer to issue a passport to a pereign country, so as to divest him of his home stutus, son not a citizen of the United States is a peual offense, and to impose on him the stalus of the country in punishable ou conviction by imprisonment not exwhich he is temporarily resident.

ceeding one year, or by a fine not exceeding $500, or The consequences of the latter doctrine are so disas both. Persons who have merely declared their introus that it is hard to believe that it was deliberately tention to become citizens are not in the full sense citiintended to have been advanced. Were a person domi zens of the United States within the meaving of the ciled in one of our States (whether an adult or a law. Provided that nothing herein contained is to be minor), subjected to the municipal laws of a foreign construed as in any way abridging the right of persons country, in which he is temporarily resident, and domiciled in the United States, but not naturalized clothed with its status, he might be placed perma- therein, to maintain internationally their status of dominently under the control of a guardian appointed by cile and to claim protection from this government in the the authorities of such country; his legitimacy would maintenance of such status. be subject to its laws; his marriage would be invalid “131. It is provided by law that persons born out of if made such by its laws; by its laws would the suc the limits and jurisdiction of the United States, whose cession to his property be determined; by its laws, as fathers were or shall be, at the time of their birth, one of its subjects, would his property be distributed citizens of the United States, shall be deemed and conin case of his death.

sidered to be citizens of the United States, provided For this department, in its consular regulations and that the right of citizenship shall not descend to perdiplomatic instructions, to declare otherwise, would not sons whose fathers never resided in the United States. only contravene the rulings of our courts and the opin- That in such cases the citizenship of the father deions of the great body of modern international jurists, scends to the children born to him when abroad, is a but would interpose a serious difficulty in the way of the generally acknowledged principle of international obtaining, by persons domiciled in one of the United law.” States, the rights abroad to which they are entitled by This leaves the question of status iu such cases to the the law of nations and by the rulings of domestic courts, unprejudiced by any utterances from this deCourts. We will suppose, for instance, that a person partment. It may be that a distinction now taken in domiciled in the United States, but temporarily resi England between civil and political domicil may dent abroad, is subjected to personil taxation, or to be hereafter internationally accepted, and that it may other laws determining status in the place of his tem consequently be held that while domicile without natuporary residence; or that an effort is made to subject ralization imposes a civil status, determining municihis legitimacy, or the legality of his marriage, to the pal rights, it does not impose political status conferring laws of such temporary residenoe; or to limit his busi- | political immunities, e. g., relief from military or po. ness capacity by such laws, or, on his death, to declare | lice duties. But be this as it may, no statement that his estate by such laws is to be distributed. This should be permitted to remain in the records of this is contested; and to support this adverse contention, department sanctioning the view that a person domiwe will suppose that it is said by the authorities of ciled in the United States is by our action precluded such place of tomporary residence; “undoubtedly by from claiming the municipal rights he is entitled to by the law of nations personal status is determined by the the rules of private international law. place of domicile, but by your consular regulations All of which is respectfully submitted. and diplomatic instructions you preclude yourselves

FRANCIS WHARTON. from claiming for persone domiciled in your States this right.” But that such a concession should not be

DEPARTMENT OF JUSTICE, made by this department, I maintain for the following 1. Even supposing the question were one of doubt, it

HIon. Thomas F. Bayard, Secretary of State: ought not to be decided in this summary way against

DEAR SIR: Your letter of the 16th instant, inclosing persons domiciled under our flag.

a report from the Law Bureau of your department in 2. The case is one belonging to the States, as domi reference to “Regulations for the use of the Consular cil is incident to residence in a State (or territory, as Service of the United States," has been received, aud the case may be), and not to residence in the United the report has been very carefully examined by me States as a whole. A person, for instance, may be with a great deal of interest. domiciled in the State of New York, and thus become You do not say in your letter that you desire any enveloped in the municipal law of New York; but expression of opinion from me in reference to the except as domiciled in New York, he cannot be domi matter discussed, or that you wish I should review ciled in the United States. Domicil by the law of it in any way, but owing to the importance of the nations, it must be remembered, is residence within a subject, and its very interesting character, I deem it particular State, with the intention to make it a final proper to express some views to you in reference to it, abode. It may or may not be coupled with domestic hoping that they may be of some service in your fupolitical privileges. Domicil however, and not the ture investigatious. possession of political privileges, internationally deter I very heartily concur in the changes suggested by mines status.

Dr. Wharton in the regulations referred to, and think But while intention to permanently remain is an es that tbey of themselves are very important; more essential incident of onicile, this is not inconsistent pecially so in view of the fact that the opinion of one with tomporary absence. It is in relation to persons of my predecessors, referred to by Dr. W. iu his report, temporarily absent, and to their children born during may possible mislead upon this subject; and the furBuch temporary absence, that the rules I have cited ther fact that in the begimning now of a new adminisbear harshly in denying to them rights to which they tration it is highly essential that the true doctrine be are entitled by the law of nations.

laid down, recognized and enforced. The suggestion I now make is to substitute for the In reference to the first point of chavge, distinctly sections in question the following:

set forth in page 4 of Dr. Whartou's report, and in “118. Passports are to be issued only to citizens of further support of it you will find that Vattel, in his the United States, and are to be numbered, commenc Law of Natious, book 1, ch. 19, p. 101, fully sustains it; iug with No. 1, and so. continuing consecutively until | and further, in book 2, ch. 8, p. 173. Our own Supreme

[ocr errors]


Court has of late years announced the same doctrine, with a clearness and force that cannot be misunderstood. Carlisle v. United States, 16 Wall. 147; and still more recently in the case of Radich v. Hutchins, 95 U. S. 210.

The other change suggested by Dr. Wharton in these regulations as stated in his report, p. 7, touching “the domicile of children of citizens of the Uuited States born abroad,” is based upon principles that are as universally recognized and established as the first change already discussed; and I call your attention to Savigny ou Private International Law, pp. 56-7. Our Supreme Court at a very early date, before the case in 3 Peters referred to by Dr. Wharton recognized this principle, and quoted all the leading authorities then known to the profession in the case of McIlvaine v. Coxe's Lessee, 4 C'ranch, 209 (1808). Again, in the year 1817, in the case of The Dos Hermanos, 2 Wheat. 76; and in 1852, in Ennis v. Smith, 14 How. 400; in Jones v. D[cVuster, 20 id. 8; in Ihite v. Burnley, id. 235; in Mitchell v. United States, 21 Wall. 350; and in Des. mare v. United States, 93 U. S. 605; but more recently, and yet with more emphasis if possible, in the case of Lamar y. Nlicou, 112 id. 452.

I do not think it necessary to go further in adducing authorities upon this proposition. Indeed it is possible that none were needed in addition to those in the report of Dr. Wharton, but for the reasous already given I deemed it advisable to furnish these. If I had been called upon to give an opinion upon these propositions, directly, I should have answered them as the changes in these regulations indicate and propose.

According to the request contained in your letter, I return the report to you. Very truly and sincerely yours,


Attorney-Gencral. EXHIBIT A.

Kosztat Case. Mr. Marcy, in the k'o tu case (Cong. Doc. 33d ('ong., 1 sess., H. R., Ex. Doc. 91), said:

“The right to protect persons having a domicile, though not native born), or naturalized citizens, rests on the firm foundation of justice; and tho claim to be protected is earned by considerations which the protecting power is not at liberty to disregard."

This is adopted without qualification by Mr. Lawrence (Lawrence's Wheaton [24 Am. ed.], 176) and may be accepted as true, at least as far as concerns the civil as distinguished from tho political rights of domicil. Koszta's case may be explained as follows:

Kosztu, by establishing his domicil in the United States, and declaring his intention to become a citizen, severed his relation with his nativo country, Austria, for all purposes of private international law; but bis political allegiance to Austria was not thereby completely annulled, and could not be, under public international law, until he had renounced his Austrian allegiance and become fully clothed with American political citizenship, by the act of naturalization. No renunciation of alien subjection is required by our laws at the time of declaring intention.

But while domiciled in the United States, and after declaration of intention, Koszta had acquired an incomplete nascent status of citizevship, and had certainly a right to be proteoted by the United States in the completion of his purpose to become a full citizen, as against any violent act on the part of Austria.

Had he then voluntarily placed himself again within Austrian jurisdiction, his act in doing so might have been held to extinguish the nascent right to our protection as against Austrian claim to his civil allegiance. But on the high seas, or in the dominions of a third power, the nascent right to protect him in the comple

tion of his United States citizenship, would remain unimpaired.

Under these circumstances, Koszta, while retaining his American domicil, went on a temporary visit to Smyrna, Turkey. This temporary absence from the United States could neither affect his domicil nor interrupt his continuous five years' residence in the United States as a condition precedent to naturalization. His right to perfect his citizenship by such naturalization was not impaired by that absence.

While in Smyrna, in the dominions of a third sovereign power, Koszta was kidnapped by the commander of au Austrian war ship.

The right to protect him by all the power of the United States was as completo in that case as though Koszta had been kidnapped on the high seas, or in the United States. This right was successfully asserted, and the question thus decided once for all.

A subsidiary question arose in Kosztu's case, through the violation of Turkish sovereignty by the Austrian commander; but this need not be discussed in examining the question of American right to protect him.

The status of Koszta is stated by President Woolsey as follows (Int. Law, 981):

"2. Was he an Austrian subject? Austrian nationality ceases, according to what is said in section 66, on the authority of Mr. Felix, when a subject emigrates with the consent of the government. Ile bad more than the consent of his government to his abandonment of his country; he was forced into exile. But to this it might be replied that he had agreed in writing never to return to Turkey, and that the Austrian claim on him would revive on his failing to fulfill this condition. It is indeed questioned by Mr. Marcy whether he engaged never to return; and it might perhaps be said that if such an engagement existed, it related only to return for political purposes.

“But to this Austria might reply, that she could not know what his purposes were, and that the promiso must be absolute, in order to prevent his doing politiical mischief in the neighborhood of Hungary. This however is a point on which our diplomatist preserves silence.

3. What were his relations to the United States ? Not those of a citizen, but of a domiciled stranger. Ilis oath declaring his purpose to become a citizen, and his long stay here, put this out of the question, and his temporary absence could not shake this character off. Moreover he had a passport, certifying to his American nationality. He would therefore be eutitled by the laws of nations to the protection of the Turkish authorities against his Austrian captors. Had he evev been a fugitive prisoner of war, he could not lawfully havo been seized on shore, unless treaty had so provided. Ilo would equally be entitled to all that protection which officials of the United States were authorized to extend to him within Turkish territory.”

This is dissented from so far as concerns the position that the passport gave additional strength to Koszta's claim to citizenship, in lall's Int. Law,

p. 200.

EXHIBIT B. Authorities as to domicile of children born abroad to

almcricans. Mr. Dicey, an authoritative English cotemporary writer and a member of the Institute of International Law, in a treatise on the Law of Domicil, published in London in 1879, thus speaks:

“Every person received at (or as from) birth a dunicil of origin. (1) In the case of a legitimate infant born during his father's life-time, the domicil of origin of the infant is the domicil of the father at the time of his birth. * * The domicil of every de

[ocr errors]
« PreviousContinue »