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charge is not sufficient to raise inference of malice.
proof on part of the defense was, inter alia, that the ash was below 48 per cent strength; that it was not marketable, but valueless and useless, not being in fact the article it was sold for. The court below refused to entertain the offer, and ordered judgment on the ground that the defendant had shown neither an express warranty nor fraudulent representation, and that nothing short of this could prevent the plaintiff's recovery. In this case, like that in hand, there was neither inspection of the goods nor opportunity for such inspection, so that they are in all particulars similar. A like case is that of Warren v. Philadelphia Coal Company, 2 Nor. 437, in which Mr. Justice Woodward affirms that there is no rule more firmly imbedded in our jurisprudence than that which governs the rights of vendors and purchasers in an ordinary contract of sale of personal property. 'In such a contract the vendor is subject to no implication of a warranty of the quality of the article sold.' He also adds: "The doctrine of the common law, as it was settled in Chandelor v. Lopus, Cro. Jac. 4, has been constantly and uniformly applied.' The same doctrine is held by Mr. Justice Mercur, in Whitaker v. Eastwick, 25 P. F. S. 229, and also in Eagan v. Call, 10 Casey, 236. As has been said, this is the common law doctrine and is found in the case of Chandelor v. Lopus, in which case the declaration set forth that the defendant, a goldsmith, having skill in precious stones, 'had a stone which he affirmed to Lopus to be a bezoar stone, and sold it to him for a hundred pounds; ubi reverâ, it was not a bezoar stone.' Under the pleadings judgment was given for the plaintiff in the King's Bench, but was reversed in the Exchequer Chamber on the ground that the bare affirmation that the stone was a bezoar, without warranty, was no cause of action. This is perhaps an extreme case, for here the article was not even in specie what it was sold for, nevertheless, as we have seen, it was literally followed in Wetherill v. Neilson, supra, as it was in Seixas v. Woods, 2 Caines, 48, and the latter was followed in New York in Holden v. Dakin, 4 Johns. 421. We understand, indeed, that both in England and New York there has been to some extent a departure from the rulings of the above cited cases, but in Pennsylvania there has been a steady adherence to the common law doctrine without any greater qualification than that found in Borrekins v. Bevan, 3 Rawle, 37, where it was held that the goods sold must be the same in kind as those mentioned in the contract of sale.' Turnkey and Sterrett, JJ., dissenting.
In Ryan v. Ulmer, Pennsylvania Supreme Court, January, 1885, 16 Week. Notes Cas. 121, it was held that where there is no knowledge on the part of the vendor of goods of their defective quality, although no opportunity of inspecting them is given the vendee, the sale itself raises no implied warranty of quality or even of merchantability on which the vendee can sue if the goods prove worthless. This was on a sale of pork. The court said: "The case of Wetherill v. Neilson, 8 Har. 448, is directly in point, and would have to be overruled were we to sustain the court below. There the bill of sale was of '35 casks of soda ash, 48 per cent.' The offer of
In Griffith v. Charlotte, C. & A. R. R. Co., Supreme Court of South Carolina, April 22, 1885, 19 Rep. 697, where an administrator sued a railroad company for running its trains over the corpse of the intestate, which had been placed on its track, thereby mutilating the remains and destroying the apparel, and a silver watch on the body,— held, that the administrator had no property in the corpse, and therefore could not maintain the action as to
the body, but that he could as to the apparel and
diligently through the common law reports of Eng-
so holding. McLane v. Elder, Brev. MSS. Rep., 2
ment of the Circuit Court be affirmed." See Weld
IMPORTANT INSTRUCTIONS IN RELATION TO try within its own territorial jurisdiction, and may con-
The correct rule I apprehend to be that the children born abroad of parents domiciled in the United States partake of their father's domicil, and children born abroad of citizens of the United States partake of their father's citizenship. The possession of these rights continues until the infant arrives at the age of twenty-one, at which age he is entitled to make election as to what nationality and domicile he will accept, which election must be regarded as final. It is true that such children, like all other citizens of the United States
residing in a foreigu land, may be regarded as bound to render the duty of local obedience. But with the above limitation as to election they are no more subject to the domiciliary municipal laws of such foreign land, or clothed with its nationality, than are any other citizens of the United States temporarily residing abroad. As will be seen by authorities in an
exhibit attached hereto, these views are sustained not only by rulings of our own and English courts, but by the opinions of leading jurists who are experts in this branch of law.
The following correspondence will explain the reason of the changes recently made by the Secretary of State in the diplomatic instructions in reference to the law of citizenship, domicile and marriage:
LAW BUREAU, May 4, 1885.
SIR: I beg to call your attention to two sections in
"158. Passports are to be issued only to citizens of the United States, and are to be numbered, commenc
ing with number 1, and so continuing consecutively
until the end of the incumbent's term of office. To
The same position is taken in our Diplomatic In-
The lines italicised in the above section do not, I think, state the law with sufficient accuracy. It may be conceded that a mere declaration of intention does not create citizenship of the United States.*
On the other hand, such a declaration, coupled with domicil (i. e., residence accepted as a final abode), may give the declarant, as was held by Mr. Marcy in the Koszta case, a claim on our government for protection, when the declarant, on the high seas, or on the territory of a neutral power, is seized by the sovereign of his original allegiance in such a way as to prevent him from perfecting his allegiance to his sovereign of election. And a person merely domiciled in the United States, even without declaration of intention, is, as will be shown by the Exhibits hereto attached, entitled to protection from our government in all matters concerning his civil as distinguished from his political rights.
The other section to which I desire to call attention
is the following:
173. It is provided by law that persons born out of the limits and jurisdiction of the United States, whose fathers were, or shall be at the time of their birth, citizens of the United States, shall be deemed and considered to be citizens of the United States, provided that
right of citizenship shall not descend to persons
whose fathers never resided in the United States. Within the sovereignty and jurisdiction of the United States such persons are entitled to all the privileges of citizens; but while the United States may by law fix or declare the conditions constituting citizens of the coun
*NOTE. That the question of the effectiveness of a declaration is still open to doubt may be seen by the following section from the Revised Statutes:
"SEO. 2168. When any alien who has complied with the first condition specified in section twenty-one hundred and sixty-five, dies before he is actually naturalized, the widow and the children of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such upon taking the oaths prescribed (sic) by law."
This section has been applied, as stated by Mr. Everett,in Germany, in granting passports for the protection of widows and children of persons who have declared their intention to become citizens of the United States, but whose naturalization has not been perfected.
It is true that in a letter of Mr. Hoar, when attorney-general, dated June 12, 1869, we have the following statement:
"If therefore by the laws of the country of their birth children of American citizens, born in that country, are subjects of its government, I do not think that it is competent to the United States by any legislation to interfere with that relation, or by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist." 13 Op. Atty.-Genl., 89. See to same effect letter of Mr. Fish, Aug. 25, 1873. (For. Rel. U. S., 1873-4, vol. 2, p. 1192.
So far as this statement bears on the question of passport, in reference to which it was made, I do not propose to discuss it, though even in this limited relation I doubt its accuracy. But I do unreservedly maintain that by the law of nations no legislation of a foreign State can subject either a person domiciled in one of the United States, temporarily residing in such
foreign country, or a child born to him during such temporary residence, to the municipal laws of such foreign country, so as to divest him of his home status, and to impose on him the status of the country in which he is temporarily resident.
The consequences of the latter doctrine are so disastrous that it is hard to believe that it was deliberately intended to have been advanced. Were a person domiciled in one of our States (whether an adult or a minor), subjected to the municipal laws of a foreign country, in which he is temporarily resident, and clothed with its status, he might be placed permauently under the control of a guardian appointed by the authorities of such country; his legitimacy would be subject to its laws; his marriage would be invalid if made such by its laws; by its laws would the succession to his property be determined; by its laws, as one of its subjects, would his property be distributed in case of his death.
For this department, in its consular regulations and diplomatic instructions, to declare otherwise, would not only contravene the rulings of our courts and the opinions of the great body of modern international jurists, but would interpose a serious difficulty in the way of the obtaining, by persons domiciled in one of the United States, the rights abroad to which they are entitled by the law of nations and by the rulings of domestic courts. We will suppose, for instance, that a person domiciled in the United States, but temporarily dent abroad, is subjected to personal taxation, or to other laws determining status in the place of his temporary residence; or that an effort is made to subject his legitimacy, or the legality of his marriage, to the laws of such temporary residence; or to limit his business capacity by such laws, or, on his death, to declare that his estate by such laws is to be distributed. This is contested; and to support this adverse contention, we will suppose that it is said by the authorities of such place of temporary residence; undoubtedly by the law of nations personal status is determined by the place of domicile, but by your consular regulations and diplomatic instructions you preclude yourselves from claiming for persons domiciled in your States this right.' But that such a concession should not be made by this department, I maintain for the following
1. Even supposing the question were one of doubt, it ought not to be decided in this summary way against persons domiciled under our flag.
This leaves the question of status in such cases to the courts, unprejudiced by any utterances from this department. It may be that a distinction now taken in resi-England between civil and political domicil may be hereafter internationally accepted, and that it may consequently be held that while domicile without naturalization imposes a civil status, determining munici pal rights, it does not impose political status conferring political immunities, e. g., relief from military or po. lice duties. But be this as it may, no statement should be permitted to remain in the records of this department sanctioning the view that a person domiciled in the United States is by our action precluded from claiming the municipal rights he is entitled to by the rules of private international law. All of which is respectfully submitted. FRANCIS WHARTON.
2. The case is one belonging to the States, as domicil is incident to residence in a State (or territory, as the case may be), and not to residence in the United States as a whole. A person, for instance, may be domiciled in the State of New York, and thus become enveloped in the municipal law of New York; but except as domiciled in New York, he cannot be domiciled in the United States. Domicil by the law of nations, it must be remembered, is residence within a particular State, with the intention to make it a final abode. It may or may not be coupled with domestic political privileges. Domicil however, and not the possession of political privileges, interuationally determines status.
But while intention to permanently remain is an essential incident of domicile, this is not inconsistent with tomporary absence. It is in relation to persons temporarily absent, and to their children born during such temporary absence, that the rules I have cited bear harshly in denying to them rights to which they are entitled by the law of nations.
the end of the incumbent's term of office. For a diplomatic or consular officer to issue a passport to a person not a citizen of the United States is a peual offense, punishable ou conviction by imprisonment not exceeding one year, or by a fine not exceeding $500, or both. Persons who have merely declared their intention to become citizens are not in the full sense citizens of the United States within the meaning of the law. Provided that nothing herein contained is to be construed as in any way abridging the right of persons domiciled in the United States, but not naturalized therein, to maintain internationally their status of domicile and to claim protection from this government in the maintenance of such status.
"131. It is provided by law that persons born out of the limits and jurisdiction of the United States, whose fathers were or shall be, at the time of their birth, citizens of the United States, shall be deemed and considered to be citizens of the United States, provided that the right of citizenship shall not descend to persons whose fathers never resided in the United States. That in such cases the citizenship of the father descends to the children born to him when abroad, is a generally acknowledged principle of international law."
The suggestion I now make is to substitute for the sections in question the following:
"118. Passports are to be issued only to citizens of the United States, and are to be numbered, commencing with No. 1, and so. continuing consecutively until
DEPARTMENT OF JUSTICE, WASHINGTON, May 22, 1885. Hon. Thomas F. Bayard, Secretary of State:
DEAR SIR: Your letter of the 16th instant, inclosing a report from the Law Bureau of your department in reference to " Regulations for the use of the Consular Service of the United States," has been received, aud the report has been very carefully examined by me with a great deal of interest.
You do not say in your letter that you desire any expression of opinion from me in reference to the matter discussed, or that you wish I should review it in any way, but owing to the importance of the subject, and its very interesting character, I deem it proper to express some views to you in reference to it, hoping that they may be of some service in your fu ture investigatious.
I very heartily concur in the changes suggested by Dr. Wharton in the regulations referred to, and think that they of themselves are very important; more especially so in view of the fact that the opinion of one of my predecessors, referred to by Dr. W. in his report, may possible mislead upon this subject; and the further fact that in the beginning now of a new administration it is highly essential that the true doctrine be laid down, recognized and enforced.
In reference to the first point of change, distinctly set forth in page 4 of Dr. Wharton's report, and in further support of it you will find that Vattel, in his Law of Nations, book 1, ch. 19, p. 101, fully sustains it; and further, iu book 2, ch. 8, p. 173. Our own Supreme
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 United 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 on 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 McЛvaine v. Coxe's Lessee, 4 Cranch, 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. McMaster, 20 id. 8; in White v. Burnley, id. 235; in Mitchell v. United States, 21 Wall. 350; and in Desmare v. United States, 93 U. S. 605; but more recently, and yet with more emphasis if possible, in the case of Lamar v. Micou, 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 reasons 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,
Mr. Marcy, in the Koszta case (Cong. Doc. 33d Cong., 1 8088., 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 the 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 [2d Am. ed.], 176) and may be accepted as true, at least as far as concerns the civil as distinguished from the political rights of domicil. Koszta's case may be explained as follows:
Koszta, by establishing his domicil in the United States, and declaring his intention to become a citizen, severed his relation with his native country, Austria, for all purposes of private international law; but his 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 citizenship, and had certainly a right to be protected 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 uor 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 an Austrian war ship.
The right to protect him by all the power of the United States was as complete 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 Koszta's case, through the violation of Turkish sovereiguty 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. Fœlix, when a subject emigrates with the consent of the government. He had 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 promise must be absolute, in order to prevent his doing politi. ical 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. His 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 entitled by the laws of nations to the protection of the Turkish authorities against his Austrian captors. Had he even been a fugitive prisoner of war, he could not lawfully have been seized on shore, unless treaty had so provided. He 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 disseuted from so far as concerns the position that the passport gave additional strength to Koszta's claim to citizenship, in Hall's Int. Law, p. 200.
EXHIBIT B. Authorities as to domicile of children born abroad to Americans.
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 domicil 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