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 j LIBRARY OF CONGRESS, 
 
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 UNITED STATES OF AMEEIOA. 
 
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 THE CITIZEN IN RELATION TO THE STATE 
 
 A PAPER 
 
 tEAD BEFORE THE 
 
 AMERICAN BAR ASSOCIATION, 
 
 AT THE 
 
 SEVENTH ANNUAL MEETING, 
 
 HELD AT 
 
 SARATOGA SPRINGS, NEW YORK, 
 August 20th, 1884, 
 
 ALEXANDER PORTER MORSE, 
 
 OF WASHINGTON, D. C. 
 
 WASHINGTON, D. C. 
 
 W. H. MORRISON, LAW BOOKSELLER, 
 
 Publisher, Importer, and Stationer. 
 
 1884. 
 
 C-£^fcu~) 
 
it. ' ' —Encyclopedia 
 
 an Individual, accused of having h 
 lay shape its defence against fhe charge with 
 or to the law. — (Phillimore, International Lc 
 Id., page 64.) 
 
THE CITIZEN IN RELATION TO THE STATE. 
 
 Jurists have considered Man in a threefold view: as an animal, 
 (that is, a sensitive creature,) as a being endowed with reason, and 
 as a member of a particular society. Hence the divisions of law 
 to which he has been subject: ist, the Law of Nature; 2d, the 
 Law of Nations; 3d, the Civil or Municipal Law. It is particu- 
 larly in his political relation that I propose briefly to consider the 
 individual in this paper. And this consideration suggests ap- 
 propriately some reference — (1) to the State, (2) to State organi- 
 zation and function, (3) to States in their international relations, 
 and (4) to the citizen in relation to the State. It has been thought 
 that a presentation of one or two aspects of the subject in this 
 order might prove suggestive, if not profitable, at this time, when 
 much of the literature and discussion of the period gives evidence 
 of the entertainment by not a few persons of somewhat vague 
 and confused ideas in respect to the rights and duties of citizen- 
 ship, and in regard to the purposes and limitations of govern- 
 ment. 
 
 I. 
 
 The first and controlling principle in respect to States is the 
 natural and indestructible equality of States. A recognition of 
 this principle is universal in the policy of modern States; and in one 
 sphere of intellectual exertion it finds expression in the axiom — 
 "On the field of diplomacy Switzerland and Russia meet as 
 equals. ' ' A philosophic writer calls it the supreme principle of 
 modern international law. The polity of the ancients was founded 
 upon the inequality of Nations. Up to this date modern polity 
 has been a combination of ancient maxims and principles of 
 Christianity. 
 
 Independence is said to be one of the essential marks of a State. 
 And while it is true that a State must be independent of external 
 control in domestic concerns, more prominence has in modern 
 times been given to the ethical element, and the conception of the 
 interdependence of States has been substituted for that of their 
 independence. As primitive man when he entered into the com- 
 munity yielded something of absolute independence in return for 
 
2 THE CITIZEN IN RELATION TO THE STATE. 
 
 certain guarantees which were deemed compensatory, so a State, 
 when it enters or is received into the commonwealth of States, 
 surrenders absolute independence in exchange for advantages 
 which are supposed to be correspondent. Equality and reci- 
 procity thus become fundamental conditions in determining the 
 obligations of States. Even statesmen are prone to forget that 
 there is a necessary connection and correspondence between in- 
 ternational rights and international liabilities. 
 
 There are certain constituent elements and properties which are 
 involved in the idea of a State, and these are held to be essential 
 to its constitution and existence. They are people, territory, 
 union, law, order, government, sovereignty, independence, auton- 
 omy, and stability. But first in importance and appropriate 
 relation are people, union, order. 
 
 The most satisfactory definition of a State which has come 
 under my observation is furnished by the father of modern public 
 law. All succeeding attempts to describe a State have been either 
 amplifications or variations of this definition. li A State," says 
 Grotius, " is a complete or self-sufficient body of free persons united 
 together for the common benefit to e?ijoy peaceably their own rights 
 and to do right to foreigners." This statement of the raison d' etre 
 of a State is/as exact as it is terse. It contains all the essential 
 elements of which political wisdom and morality in this relation 
 are composed. It should be engraved upon the seal of every State ; 
 and it deserves to be borne in constant mind by statesmen. It 
 will be convenient, however, for the purposes in view, to present 
 other and later definitions which indicate the growth, develop- 
 ment, and current appreciation of the State function. 
 
 A contemporary writer says: 
 
 ' 'A State is not a mere abstraction, an ideal being standing 
 between earth and heaven, superior to the entire body of citizens, 
 invested with mysterious power derived one knows not whence, 
 incapable of doing wrong, inaccessible to a sense either of mercy 
 or of justice, and irresponsible to any one for its acts. It is in 
 our time-honored Anglo-Saxon theory of government a thing 
 of flesh and blood, made up of the chosen men of the community, 
 intrusted for the time being with the duties of making laws for the 
 common good, and of executing them ; of devising all necessary 
 means for securing the peace, prosperity, and happiness of the 
 entire body of citizens." 
 
 "A State," says Johnston, "is a separate community of human 
 beings associated in natural and jural relations, dwelling in its own 
 
THE CITIZEN IN RELATION TO THE STATE. 3 
 
 proper territory under an organized civil Government, self-existent, 
 autonomous, and sovereign. 
 
 " The first conception in this definition of the State looks to the 
 persons who compose it; they are the members of the body politic. 
 Collectively, they are the people, which term includes every indi- 
 vidual belonging to the State, and is sometimes used to express 
 the idea of the State. 
 
 " This ' ccetus multitudinis ' is, however, from the nature of things, 
 incapable of giving expression to its will, except through an or- 
 gan sanctioned by prescription and general consent. It is chaotic, 
 inarticulate, and inoperative, except through the intermediation 
 of the body of its citizens. Among other attributes of the State 
 and its sovereignty is that of determining the conditions and quali- 
 fications which shall entitle individuals generally within her ter- 
 ritory or under her jurisdiction to natural protection." * 
 
 Within narrower limits the State exercises the further right to 
 say who shall be deemed ' ' citizens " or " subjects,' ' with reference 
 to the enjoyment of certain privileges and immunities not ex- 
 tended to the masses of the population. 
 
 These latter, however, under many systems of Government con- 
 stituting a large majority of the populace, are entitled to National 
 protection in return for the allegiance which they yield to the 
 State. The first class is composed of the individuals in the com- 
 munity who are invested by the actual government with full 
 political privileges as well as civil ox social rights; while the second 
 class comprises those who enjoy civil or social rights only, but 
 are not invested with political privileges or powers. In a word, 
 the one class enjoys absolute, the other relative rights. I am con- 
 strained, in the absence of a more exact expression in our language, 
 to make use of the term ' ' political ' ' as ordinarily employed 
 in discussions of the subject in hand. 
 
 II. 
 
 Among political privileges or powers may be enumerated the 
 right to vote and to hold office; among civil (social) rights is the 
 right to protection and security to person and property under the 
 fundamental law of the society of which individuals happen to be 
 members. 
 
 The difference between fundamental rights and those created 
 by and chargeable to positive law is familiar to the profession. 
 
 *A Theory of the State. 
 
4 THE CITIZEN IN RELATION TO THE STATE. 
 
 Absolute and material rights are those which adhere to persons 
 merely in a state of nature.* It will be seen that the enjoyment 
 of the highest and most valuable privileges or powers of citizen- 
 ship are practically much qualified and restricted. They are 
 under the control of and are regulated by the actual positive law, 
 which represents the sovereignty of the State; whereas the enjoy- 
 ment of the customary rights which pertain to the masses of the 
 population under the fundamental law are practically unqualified 
 and unrestricted. 
 
 In addition to protection to life, liberty, and property, the class 
 which exercises political privileges in a community participates 
 in the governing power, either by themselves or their represent- 
 atives. 
 
 The class which enjoys civil (social) rights is equally entitled 
 to complete protection to life, liberty, and property; but the 
 individuals composing it cannot exercise political privileges or 
 powers under any claim founded simply upon civil (social) rights. 
 
 The distinction between citizens proper, that is, the constit- 
 uent members of the political sovereignty, and stibjects of that 
 sovereignty, who are not therefore citizens within the Aristotelian 
 meaning of the term, is recognized in the best authorities of the 
 public law. 
 
 This restriction of political power in the hands of a limited 
 and designated class had been early pointed out and insisted 
 upon by Aristotle, who demonstrated that political power does 
 not flow from any abstract rights in individuals, but from a just 
 and enlightened sense of expediency in each particular case, 
 having in view the safety of the State and the best interest 
 
 OF THE COMMUNITY. 
 
 The inquiry how far the State may go in endeavoring to attain 
 this latter end is a question which the statesman and social econ- 
 omist encounters at every turn and stage in the study of the pub- 
 lic life of the nation or community to which his attention happens 
 to be momentarily directed; and it can only be intelligently and 
 prudently resolved after consideration of the experiences of other 
 States, and in the light of the traditions and history of the par- 
 ticular State with reference to its fundamental law and constitu- 
 tion.! 
 
 * Blair v. Ridgely, 4 Missouri, 63. 
 
 t Mr. Attorney-General Bates, when discussing the question of citizenship as re- 
 sultant from birth within the United States, drew the distinction sharply 
 poioers and rights. (Opinions of Attorneys-General, Vol. X, pp. 393, 394, 399.) 
 
THE CITIZEN IN RELATION TO THE STATE. 5 
 
 At Rome, as at Athens, the inhabitants were classified by 
 clearly-defined grades and distinctions. The superior order con- 
 sisted of those who were in the full enjoyment of all the political 
 powers, as well as the natural rights of citizens. The inferior 
 order was made up of the proletariat classes, who were excluded 
 from suffrage and other privileges, and whose natural rights even 
 were greatly curtailed. Between these two divisions were other 
 orders representing a majority of the people, whose rights were 
 variously graduated and qualified by the laws. But the first 
 principal division of persons in Roman law under the Republic 
 was into citizens and not citizens. When mention was made of 
 Roman citizens, the reference was to those who were in the full 
 enjoyment of political rights 'and powers. And when Aristotle 
 indicates the essential and determining characteristics of citizen- 
 ship, he is to be understood as referring only to those members of 
 the community who enjoy political rights and powers. 
 
 The status of a Roman citizen was composed of three con- 
 stituent members, without which it never existed— -freedom, city, 
 and family. St. Paul' s case has been cited as a leading case in 
 Roman jurisprudence in the matter of the Jus Romanum* 
 
 By Roman civil law the child, until majority was attained, re- 
 mained under complete subjection of the family, and during the 
 time of minority did not bear any political relation to the State, 
 except such as he was entitled to by virtue of parentage and 
 membership of the family. 
 
 Tracing early Teutonic institutions, Mr. Stubbs points out that 
 young men were, until admitted to the use of arms, members of 
 the family only — not members of the State. When they came 
 to the years of discretion, and the voice of the Nation permitted 
 it, they were formally invested with a spear and shield either by 
 .father or kinsman in the assembled council. f 
 
 III. 
 
 "In modern days, in civilized days," says Bagehot, [Physics 
 and Politics,] "men's choice determines nearly all they do; but 
 in early times that choice scarcely determined anything. The 
 
 * "In so far as there is any analogy between Roman and American citizenship, it is 
 strictly applicable to us. * * * It establishes the great protective rights of the 
 citizen, but, like our own National Constitution, it is silent about his powers. It pro- 
 tected Paul against oppression and outrage, but said nothing about his right of suf- 
 frage or his eligibility to office." (Opinions of Attorneys-General, Vol. X, pp. 393, 394.) 
 
 t Constitutional History of England. 
 
6 THE CITIZEN IN RELATION TO THE STATE. 
 
 guiding rule was the law of status. Everybody was born to a 
 place in the community; in that place he had to stay; in that place 
 he found certain duties which he had to fulfill, and which were 
 all he needed to think of. The net of custom caught men in dis- 
 tinct spots, and kept each where he stood." 
 
 In another connection Sir Henry Maine has pointed to the drift 
 from status to co?itract, and from the family to the individual. 
 Following the same line of thought, a contemporary American 
 writer says : 
 
 ' ' The old conception of the State has gone, for the individual 
 is no longer lost in the State, but has become the special object 
 of its solicitude, if not the very end for which it exists." 
 
 In no direction has this freedom of individual choice been more 
 strikingly illustrated than in its relation to the transfer of alle- 
 giance from native to adopted State, and from State to State, 
 practically at the will of the individual, and generally without 
 limitation. The claim to an allegiance which is inalienable will 
 hardly again be asserted by any free State; but if asserted, it will 
 not be heeded by the dominant States. The right of expatriation 
 is to-day well-nigh universally conceded, and citizenship (Na- 
 tional character) has become a quality and character which de- 
 pends upon contract rather than upon status. The parties to the 
 contract (which may be express or implied) are the individual 
 and the State. The National character which results from 
 origin continues until legally changed; and the onus of proving 
 such change usually rests upon the party alleging it. Natural- 
 ization, it has been said, is the rule of modern States. Now-a- 
 days, among the majority of States, citizenship is derived from 
 personal, and not from local, origin. In other words, the child 
 is born to the citizenship of the parents ; and his National char- 
 acter no longer depends upon the accident of birth in some 
 particular locality. 
 
 Of the two principal tests of citizenship — the place of birth and 
 the nationality of the father — neither is at present adopted with- 
 out qualification by British, French, or American law. The laws 
 of these countries exhibit, in fact, different combinations of the 
 two, Great Britain and the United States laying chief stress on the 
 place of birth, while in France the father's nationality determines, 
 though not absolutely and in all cases, that of the child; and this 
 
THE CITIZEN IN RELATION TO THE STATE. 7 
 
 latter theory has found acceptance among other European Na- 
 tions.* 
 
 ' ' Few words, ' ' says a contemporary critic, ' ' are used more 
 confusedly than ' citizenship.' Originally it signified the rights 
 of the burghers of a free city as against the King or military lord 
 of the land. At the present day it means, when strictly and 
 properly used, merely membership of the Nation or State, and 
 does not imply that the individual styled ' citizen ' shares politi- 
 cal power, is one of those eligible to office, or may claim to vote. ' ' 
 
 "The phrase, 'a citizen of the United States,' without addi- 
 tion or qualification, means neither more nor less than a member 
 of the Nation." f 
 
 "Citizenship, in its narrow sense, confers the imprescriptible 
 right to speak for the community — to act as its authoritative expo- 
 nent. It is the true voice of the people (vox populz), and is 
 ascertained by the general co?isent, as manifested in the funda- 
 mental law and in the history of the commonwealth. It varies in 
 different countries, and in the same country at different epochs. 
 It may be recognized by the written law, or merely by usage and 
 tradition. In England it is vested in the body of freeholders; 
 in the United States and France, in the adult male citizen ; in 
 constitutional governments it utters itself through the suffrage; 
 in others, through the power of public opinion. But the State 
 exists by virtue of the people who compose it; no people, no State. 
 Hence it ought to be for the people." % 
 
 Confusion must inevitably follow, if the distinction between 
 political status and personal or property rights is not borne in 
 mind. It is true, however, that many personal rights result 
 directly from political status. 
 
 Under the Revised Code of Italy, which has recently gone into 
 operation, suffrage is conferred upon all who can read and write. 
 The English County Franchise Bill, which has passed the House 
 
 * Report of Commission, &c, Papers on Expatriation, Naturalization, and Change of 
 Allegiance : Washington, 1873. 
 
 t " In most instances, within my knowledge, in which the matter of citizenship has 
 been discussed, the argument has not turned upon the existence and the intrinsic quali- 
 ties of citizenship itself, but upon the claim of some right or privilege as belonging to 
 and inhering in the character of citizen. In this way we are easily led into errors both 
 of fact and principle. We see individuals, who are known to be citizens, in the actual 
 enjoyment of certain rights and privileges, and in the actual enjoyment of certain 
 powers, social and political, and we inconsiderately, and without any regard to legal 
 and logical consequences, attribute to those individuals, and to all of their class, the 
 enjoyment of those rights and privileges and the exercise of ihose powers as incidents 
 to their citizenship and belonging to them only in their quality of citizens." * * * 
 (Opinions of Attorneys-General, vol. X, pp. 383, 384, 388.) 
 
 X William Preston Johnston, "A Theory of the State." 
 
8 THE CITIZEN IN RELATION TO THE STATE. 
 
 of Commons during the present session of Parliament, and which 
 may become a law before the next annual recess, will add two 
 million to the number of voters in England. The result of the 
 adoption of this measure will probably make England more 
 democratic than the United States. The methods by which 
 its passage through Parliament has been urged are naturally 
 criticised by the opposition as dangerous in tendency. And it is 
 argued that, in its effects, it threatens England with the most 
 obnoxious of all forms of legislative power — a single assembly. 
 
 IV. 
 
 Whatever may have been the rule or usage in other times, or 
 under other systems of government, the answer of one State to 
 the demand of another State for indemnity and satisfaction on 
 account of injuries to her citizen or subject, that the individual 
 has been treated no differently than her own citizens or subjects, 
 is not now-a-days accepted as satisfactory. It is no doubt true 
 that whoever comes voluntarily into a country subjects himself to 
 the laws of that country, and therein, to all remedies directed by 
 those laws on his particular engagements. This is undoubtedly 
 correct as a general proposition. It is, however, qualified by 
 that principle of modern international law which insists that alien 
 friends commorant in foreign territory shall be entitled to and 
 shall receive protection to life, liberty, and property, independent 
 of local custom, usage, or prejudice that is agreeable to the law 
 of nations or treaty stipulations, and which is compatible with 
 the safety of the State. Before this latter exigency all demands 
 must yield. Salus reipublicce suprema lex. This insistance by 
 the State on behalf of the citizen in foreign territory is not based 
 entirely upon selfish or narrow motives, but upon considerations 
 of public policy and principles of international jurisprudence, 
 which it is the interest of all States to maintain. Public policy 
 suggests that the presence of every alien friend in a territory 
 represents just so much material wealth or physical skill and in- 
 dustry added to the resources of the State. International law 
 insists upon the adoption of a comity or rule which admits and 
 applies the personal statute whenever circumstances arise which 
 suggest that it ought to become operative. This does not imply, 
 however, that the law of the State of the citizen injured is to be ap- 
 plied to the individual by the offending State, although in Asiatic 
 countries such a concession has been made to the United States 
 
THE CITIZEN IN RELATION TO THE STATE. 9 
 
 and European Governments. In cases where international law 
 may not be sufficiently determinate or explicit, it is the practice 
 of modern States to enter into conventions and treaties with a 
 view to indemnity for past injuries and to secure guarantees for the 
 future. It has been said that the origin of the right which one 
 Nation has to adopt as its own claim and to demand indemnity 
 from another Nation for the injury done to an individual, is that 
 the individual, being a member of the body politic, and a repre- 
 sentative/>r<? tanto of his Nation, the latter receives an injury when- 
 ever the person or property of such individual suffers wrong or 
 injustice. When the acts of a State in respect to an alien have 
 become so flagrant and grave and unusual as to assume an inter- 
 national character, they pass from the jurisdiction of municipal 
 law, and must be resolved in accordance with international princi- 
 ples, or by reference to treaty stipulations, or to usage. When 
 the law of nations is silent, resort is had to the Roman civil law, 
 as containing the soundest and purest code for the adjustment of 
 conflicts of law.* 
 
 A distinction has been drawn by publicists f between domiciled 
 persons and visitors in or passengers through a foreign country, 
 in respect to the extent to which the protectorate over the alien 
 by his State is warranted. " The foreign domicile does not, 
 indeed, necessarily take away this rule, ' ' says Phillimore, ' ' but 
 it renders the invocation of it less reasonable and the execution of 
 it more difficult. " But the manifest inconvenience of distinguishing 
 between a com?norant and domiciled alien in a commercial age, 
 when intercommunication and foreign residence is the rule rather 
 than the exception, must be obvious. And however well founded 
 in principle and ethics the distinction may be regarded, or how- 
 ever plausible as an equity formula, it utterly fails to furnish a 
 convenient or practical rule for decision. The citizenship (National 
 character) of individuals may be readily determined. The contro- 
 
 * Grotius, I, ii, eh. xxv; Heffter, sees. 6, 59, 60; Vattel, I, ii, vi. 
 
 "It has been said that every individual who enters a foreign territory binds him- 
 self, by a tacit contract, to obey the laws enacted in it for the maintenance of the good 
 order and tranquillity of the realm. The converse of the proposition is equally true. 
 Foreigners, whom a State has once admitted unconditionally into its territories, are 
 entitled not only to freedom from injury, but to the execution of justice in respect to 
 their transactions with the subjects of that State. No country has a right to set, as it 
 were, a snare for foreigners ; therefore conditions hostile to their interests, or different 
 from general visage, must be specified beforehand."— Phillimore, International Law, 
 vol. 2, pp. 3-7, 3d edition. 
 
 t Grotius, I, iii, ch. 2, sec. 7; Phillimore, International Law, Vol. II, pp. 3-7, 3d 
 edition. 
 
IO THE CITIZEN IN RELATION TO THE STATE. 
 
 versy as to domicile is difficult, as well as technical and artificial, 
 and usually provokes conflict and confusion. It may be admitted 
 that the principle upon which the distinction between the measure 
 of protection which a State is justified in extending to a commorant 
 and to a domiciled alien rests, has, from time to time, found ex- 
 pression and sanction in text-books, in the opinions of law officers, 
 and in the communications of Cabinet Ministers. But the adjudi- 
 cations of the most recent international tribunals for the settlement 
 of alien claims have not, as a rule, regarded this distinction. These 
 tribunals have usually been satisfied with proof of National charac- 
 ter (citizenship) and the observance of neutrality while in foreign 
 territory, and have not been disposed to attach much weight to 
 the character of residence, whether long-continued or of short 
 duration. * There can be no question but that the principle gen- 
 erally sanctioned by these commissions is more convenient to the 
 individual than to the State ; but it seems to correspond better 
 with the needs of a commercial age, when a large floating popu- 
 lation exists in most places, whose continuance depends upon the 
 course taken by their private affairs. f 
 
 The alien who enters a foreign State is under the protection 
 of the laws of nations. % Under many conditions and circum- 
 stances, andisy the usage of modern States, the alien can only be 
 said to be subject to the jurisdiction of the State when in foreign 
 territory in a much-qualified sense. || And the fiction of extrater- 
 ritoriality is practically extended to include a large class of aliens 
 (private citizens), in addition to foreign ambassadors, ministers, 
 and diplomatic representatives. In a word, for purposes of pro- 
 tection in his political relation, the personal statute is held to follow 
 the alien wherever he may go on a lawful errand. And in every 
 controversy between the State of an alien and a foreign State 
 which gives rise to an international demand for indemnity, the 
 extent of international liability must be measured by reference to 
 the law of nations, to private international law, and to the usage 
 of States. § An American author insists that the obligation to treat 
 
 *U. S. and Mexican Claims Commission, July 4th, 1868; U. S. and British Claims 
 Commission, May, 1871 ; French and American Claims Commission, January 15th, 1880. 
 
 f Hall, International Law, p. 188. 
 
 % Martens, Law of Nations, p. 226. 
 
 H Hall, International Law, pp. 42, 45. 
 
 § "States in the eye of international law thus absorb the citizens which constitute 
 them. International law knows nothing of the individual members of States in their 
 citizen capacity. Personal or private rights, as we have already seen, and as I shall 
 again take occasion to explain, i\re juris gentium, and are internationally recognized ; 
 but citizen or public rights— the rights which are defined and measured by the public 
 laws of separate States — are juris gentis, and are wholly and exclusively municipal." 
 (Lorimer, Institutes of the Law of Nations, vol. II, pp. 1*30, 132.) 
 
THE CITIZEN IN RELATION TO THE STATE. II 
 
 aliens with humanity, and to protect them when once admitted 
 into a country, depends not on their belonging to a certain polit- 
 ical community which has a function to defend its members, nor 
 wholly on treaty, but on the essential right of human nature. * 
 
 Other writers suggest that the claim of a State to exercise a 
 protectorate over her citizens when in foreign territory may be 
 admitted ex comitate gentium, but say it may also be denied 
 ex justitia gentium whenever it is deemed injurious to the 
 interests of such foreign nations, or subversive of their own policy 
 or institutions.f The concessions or relaxations of sovereign 
 rights which it has become customary for civilized nations to 
 make have given rise to a body of usage of considerable bulk 
 called private international law. \ The protection of the alien 
 and alien property in foreign territory is now-a-days, and by a 
 majority of States, assured and guaranteed by specific provisions 
 in treaty stipulations or by well-ascertained usage ; and this 
 usually without reference to length of residence, character, or 
 occupation. Under all circumstances, however, the maintenance 
 of neutrality is assumed and is properly insisted on. || 
 
 The claim occasionally made, that every State is not only sov- 
 ereign in its jurisdiction, but that it of right may exercise abso- 
 lute power over all persons found within its territory, without 
 rendering such State liable for acts of injustice and wrong, is de- 
 nied by usage, repudiated by the action of dominant States, and 
 is inconsistent with the principles of modern international law. 
 It is, in a word, negatived by a principle now generally accepted 
 and recognized by the expression ' ' interdependence of States.' ' 
 The recognition of the presence of the ethical element in modern 
 international jurisprudence is the distinguishing feature of modern 
 public law. States are subjects of international law, just as citi- 
 zens are the subjects of municipal or national law. § 
 
 VI. 
 
 The result of an examination of the cases which have recently 
 been passed upon by international tribunals, to whom alien 
 
 * Woolsey, International Law. 
 
 t Story on Conflict of Laws, 8th edition, pp. 754, 755. 
 
 % Hall, International Law, pp. 44, 45. 
 
 || "And as of rights so of duties. The citizen as such has no international obligations 
 or responsibilities. His obligations are to his own State, and are the counterpart of the 
 rights which he has to its protection. But against other States it is through his State 
 alone that he can assert his rights ; and it is his State that is responsible for his 
 actions." (Lorimer, Institutes of the Law of Nations, vol. II, pp. 130-132.) 
 
 § Lorimer, Institutes of the Law of Nations, vol. I, p. 47; Hall, International Law, 
 p. 36. 
 
12 THE CITIZEN IN RELATION TO THE STATE. 
 
 claims have been submitted for injuries to the person or property, 
 as well as recent diplomatic correspondence between States on 
 the subject, seems to sanction what has been herein stated, and 
 to establish the following general rules or usage, by which States, 
 if they would avoid international complications, must be gov- 
 erned in their dealings with aliens who are within their territory, 
 or whose property is within the jurisdiction of the foreign State: 
 
 First. — In Respect to the Person and the Personal 
 Property of the Alien. 
 
 a. The State is not justified in arbitrarily arresting and im- 
 prisoning an alien, and under an assumed warrant of extraordi- 
 nary circumstances, or by virtue of improvised municipal statutes, 
 holding him, without reasonably prompt arraignment or trial by 
 the ordinary courts of the land. And for the unusual, arbitrary, 
 or cruel treatment of an alien the State is always liable to make 
 reparation. 
 
 B. The alien is not subject to laws of conscription. Nor is- 
 his personal property liable to arbitrary seizure. But in 
 contingencies — such as his interference or participation in the 
 political concerns of the country — he may be apprehended, and 
 required to leave the territory of the State. 
 
 c. It is the right of the State to expel or banish, after proper 
 notice or warning, a turbulent or obnoxious or suspected alien, 
 without subjecting herself to liability, pecuniary or otherwise. 
 The State is, however, under obligation to answer the demand 
 by the aggrieved State, and account for the harsh or extrajudi- 
 cial punishment or deprivation of liberty of the citizen. * 
 
 Secondly. — In Respect to the Real Property of the 
 
 Alien. 
 
 The ground for interference should be very clear. The realty 
 is of course subject to the laws of the country where situate; but 
 in cases where, under extraordinary circumstances, there has 
 been a denial of justice, from National prejudice or other cause, 
 real or assumed, the State of the injured citizen is justified in a 
 
 * Message of the President to House of Representatives, Forty-seventh Congress, 
 First Session, Ex. Doc. 155, part 3, nnd accompanying papers; United States and Mexi- 
 can Claims Commission, July 4th, 1868; British and American Claims Commission, 
 May 1st, 1870; Spanish Claims Commission, February, 1871; French and American 
 Claims Commission, January 15th, 1880. 
 
THE CITIZEN IN RELATION TO THE STATE. 1 3 
 
 demand for indemnity.* The exemption of the person and the 
 personal property of the alien from arbitrary interference stands, 
 as has been heretofore indicated, upon altogether higher and 
 different grounds. 
 
 VII. 
 
 It would be a serious omission not to make some reference, 
 however brief it of necessity must be, to the altered conditions 
 in respect to citizenship in the United States, as a result of the 
 adoption of recent amendments to the Federal Constitution, 01 
 various acts of Congress to enforce their provisions, and ot 
 decisions of the Supreme Court of the United States in cases 
 originating thereunder. Notwithstanding radical changes in the 
 direction of the unification of the political character, the dual 
 citizenship (of the State and of the Federal Government), as 
 determining jurisdiction, has been held by the court of last resort 
 to continue for many purposes; and it thus leaves the always diffi- 
 cult question of the relation of the State to the Federal Govern- 
 ment in matters of citizenship, under many aspects, a continuing 
 subject of controversy, with which the courts are daily concerned. 
 
 The American use of the term citizen has been criticised as 
 indistinct by an English publicist f who cannot understand how 
 there can be a citizenship of a particular State as distinct from a 
 citizenship of the United States. The truth is, the dividing line 
 is not easily distinguishable. It is believed, however, that dual 
 citizenship was recognized in Roman jurisprudence ; that is, 
 citizenship in the metropolitan city and citizenship in a muni- 
 cipality of the State, which were distinct and independent char- 
 acters. Some years since an American commentator J observed 
 that it was difficult to say, after the title of citizenship was estab- 
 lished, what were the rights which it conferred in the United 
 States. And a late Attorney- General || has said that eighty years 
 of practical enjoyment of citizenship, under the Constitution, 
 had not sufficed to teach us either the exact meaning of the word 
 or the constituent elements of the thing we prize so highly. The 
 Supreme Court has pointed out some of the rights of a citizen of 
 the United States as distinct from the rights of a citizen of a 
 particular State. § The court did not, however, attempt to 
 
 * Howard's Report, British and American Claims (May 8, 1871), pp. 285, 286. 
 
 t Westlake, Int. Law, p. 25. 
 
 % Lawrence's Wheaton's Int. Law, appendix, p. 903. 
 
 || Opinions, vol. X, p. 388. 
 
 § Slaughter-House Cases, 16 Wall., 36 ; Crandall v. Nevada, 6 Wall., 36- 
 
14 THE CITIZEN IN RELATION TO THE STATE. 
 
 enumerate or to define all the rights and powers that recent 
 amendments and Congressional enactments had conferred upon 
 individuals in their character as citizens of the United States. 
 These rights, as has been heretofore demonstrated, are of a dual 
 and distinct character, and are distinguishable into political and 
 civil rights. The distinction is rendered the more artificial, 
 for the reason that, under the law and usage which is almost uni- 
 versal, the former are derived primarily from the particular State, 
 but are guaranteed by the United States. 
 
 In three notable cases,* the court, while indicating some of the 
 rights of a citizen of the United States which are distinct from 
 the rights of a citizen of a State, lays down important limitations 
 and restrictions; and distinguishes, for jurisdictional purposes, the 
 political rights and personal privileges of a citizen of a State from 
 those of a citizen of the United States. The conclusions of a ma- 
 jority of the court in other and later cases, however, which 
 have been discussed elsewhere, under the title ' ' The Seven Con- 
 stitutional Cases," indicate, in some manner, the great reach and 
 scope of provisions of these amendments, in an opposite direc- 
 tion, under varying and complicated circumstances, f 
 
 A case of much interest is now on the docket of the Supreme 
 Court of the United States, which involves a discussion of the 
 scope of the first section of the Fourteenth Amendment. % The 
 case has been once heard, on allowance of a motion to advance; 
 and after argument it was by order of the court restored to its 
 place on the docket to be reargued when it is reached in its turn. 
 The principal argument by counsel on behalf of the railroad 
 company was directed to the point that corporations were com- 
 prehended in the term "person" as used in that section; and 
 that the citizenship of the corporation justified them in invoking 
 the jurisdiction of the Federal courts to prevent the abridgment 
 
 * Crandall v. Nevada, 6 Wall., 361 ; The Slaughter-House Cases, 16 Wall., 36 ; Cruik- 
 shank's Case, 92 U. S., 542. 
 
 t Tennessee v. Davis, 100 U. S.. p. 258; Strauder v. Virginia, Id., p. 303; Virginia v. 
 Rives, Id., p. 314 ; Ex-parte Virginia, Id., p. 340 ; Ex-parte Seibold, Id., p. 400 ; Neal v. 
 State of Delaware, 103 U. S., p. 370; Washington Law Reporter, Vol. IX, p. 385. 
 
 "The Constitution nowhere attempts to declare or define the privileges and immuni 
 ties of citizens of the United States. The Supreme Court shrank from the effort in the 
 Slaughter-House Cases. But they ventured to suggest some which owed their exist- 
 ence to the Federal Government, its national character, its constitution, or its laws.' 
 (Dauphin v. Key, MacArthur and Mackey's Reports, Supreme Court of the District of 
 Columbia, p. 208.) 
 
 J County of San Mateo o. Southern Pacific Railroad, (U. S. District Court of Cali- 
 fornia.) 
 
7 
 
 THE CITIZEN IN RELATION TO THE STATE. 15 
 
 by the State of California of their privileges and immunities, 
 by deprivation of property without due process of law, and by a 
 denial within its jurisdiction of the equal protection of the laws. 
 When this cause was under argument, counsel for the railroad 
 corporation was asked from the bench whether their contention 
 was that the first clause of the first section related to artificial 
 persons. The reply was that that clause was an after-thought; 
 that it was a political consideration that the Senate suggested to 
 the House after the main body of private rights had been dis- 
 posed of by the House of Representatives.* It is to be observed 
 that the second clause of the section under consideration seems 
 to draw a distinction between "citizens" and "persons." 
 
 It is a curious fact that until the adoption of the Fourteenth 
 Amendment and the passage of the act of Congress of April 
 9th, 1866, commonly referred to as the "Civil Rights Act," 
 the word " citizen" had never been defined in any constitutional 
 provision, in any act of Congress, or in any authoritative form. 
 
 Some of the discussions in and out of court do not always seem 
 to bear sufficiently in mind that under many aspects the later 
 amendments must be regarded as so many repealing acts of pro- 
 visions contained in earlier amendments in respect to the restric- 
 tions on Federal power. The purpose of the earlier amendments 
 was to restrict Federal power; the intention of the later amend- 
 ments is to restrict State and to extend Federal jurisdiction. 
 The precise extent to which this has been done must be de- 
 termined by the courts; and controversies over the question are 
 naturally a fruitful source of litigation. It will hardly be denied 
 that as a result of recent amendments, and of Congressional en- 
 actments to carry their provisions into effect, the Constitution 
 has undergone fundamental transformation since the late civil 
 war. The contention on the one side is, that this change has in 
 fact revolutionized the whole structure and plan of a composite 
 yjiijtdmiuiti, and that we have at last the energetic government 
 of Hamilton. The insistance on the other side is that these changes 
 were, indeed, radical, but not revolutionary; and that the system 
 of Federal and State Governments which the fathers founded still 
 remains. The present Federal Constitution, however, is a complex 
 and complicated instrument; and it will remain such until the earlier 
 
 * One of the resolutions submitted in the House of Representatives embodied some- 
 what the idea that is expressed in section 1 of article 14 of the amendments. It was in 
 these words, viz. : "All National and State laws shall be equally applicable to every 
 citizen : and no discrimination shall be made on account of race and color." 
 
16 THE CITIZEN IN RELATION TO THE STATE. 
 
 and inconsistent amendments are stricken out or remodelled. It 
 shows the scars as well as the fruits of a great controversy which 
 was finally determined by the arbitrament of the sword. To 
 systematize and harmonize it as a whole will furnish work for a 
 Constitutional Convention. The actual situation has been mean- 
 while embarrassed by natural causes. But it has been further 
 aggravated by much discordant legislation in the direction prin- 
 cipally of acts for the removal of suits from State to Federal courts 
 under conditions which have been too generally availed of to 
 sanction fraud and fraudulent devices. The remedy is a repeal or 
 modification of the obnoxious provisions in the several statutes. 
 In the meantime the courts are embarrassed, and are not infre- 
 quently driven to resolve intricate questions by reference to 
 the esoteric principle, which will have great weight with judi- 
 cial minds under a stress of circumstances ; particularly when con- 
 stitutional provisions are under consideration. If the Constitu- 
 tion, in its present shape, is a veritable Mosaic, what must be said 
 of those appalling volumes — the statute books of the United 
 States ? Have they any parallel except in classic story ? Does 
 not the habitual practice of legislators in the construction of stat- 
 utory law recall the fable of the Sibylline leaves ? * If the above 
 is a fair statement of the condition of the Constitution and of the 
 statutory laws, is there not' sore need of a Constitutional Conven- 
 tion, and of a Commission to revise and harmonize the law of the 
 land? In the meanwhile, is it to be wondered that the decisions, of 
 the highest courts are conflicting ; and that, on the gravest issues, 
 the Court of last resort not infrequently reaches a decision by a 
 bare majority ? 
 
 VIII. 
 
 It has been said that ' ' the growth of the English Constitution 
 is the resultant of three- forces, whose reciprocal influences are 
 constant, subtle, and intricate. These are the national character, 
 the external history, and the institutions of the people. " f May not 
 
 *"The mysterious Sibyl (Deiphobe) has a habit of jotting down her responses in 
 verse upon the leaves of trees — each verse apparently on a separate leaf — and then 
 piling them one upon another in her cave. When the doors fly open, the gust of wind 
 whirls the leaves here and there in all directions ; and the ambiguities which are proper 
 to all oracles are considerably increased in the process of rearranging the several leaves 
 into anything like coherent order— the Sibyl herself disdaining all further interference. 
 So that many of her clients go away without having received any intelligible answer 
 at all, and from that time forth 'hate the very name of the Sibyl.' " 
 
 fStubb's Constitutional History, Preface. 
 
THE CITIZEN IN RELATION TO THE STATE. 17 
 
 the same be asserted in respect to the development of the Federal 
 Constitution ? And are the forces which work in co-ordination in 
 a free country very different, whether the State government de- 
 velops under a written or an unwritten constitution ? 
 
 If it is a grave duty which devolves upon every citizen to see 
 that no harm comes to the Republic, what must be the measure of 
 obligation resting upon the profession in this relation ? We are 
 accounted and are accredited ministers and officers in the temple 
 of justice erected by the State. Many are permitted reverently 
 to keep watch and ward over the Constitution and the laws; while 
 the more favored are called to sit in judgment. We rightly claim 
 for the profession great dignity and honor by reason of this priv- 
 ilege and preferment. And we may not decline a large measure 
 of responsibility in the affairs of State, as well as in the adminis- 
 tration of law. It seems to be the habit in some quarters to de- 
 preciate and minimize the efforts and labors of this organization. 
 But surely an association whose object is " to advance the science 
 of jurisprudence, promote the administration of justice and uni- 
 formity of legislation throughout the Union, uphold the honor 
 of the profession of the law, and encourage cordial intercourse 
 among the members of the American Bar," must be of value to its 
 members and of advantage to the community. 
 
 No one will, I believe, deny that the opportunities and respon- 
 sibilities of the profession in the United States to-day are corre- 
 spondingly great. We are living in a great formative period of 
 constitutional history; possibly as important and far-reaching as 
 that remarkable epoch which was embraced in the judicial life of 
 the great Chief Justice, to whose memory and honor the Bar of 
 the country and Congress have recently unveiled an imposing 
 statue at the Federal Capital. 
 
 If I am asked, in this connection, " What is the immediate 
 duty and relation of the profession to the State, and what its 
 peculiar office?" I answer, as is the practice of the profession, by 
 referring to the authorities. Savigny describes modern law as 
 composed of two elements — the one element being a part of the 
 National life itself, and the other element being the product of the 
 lawyer's craft. The first he names the political and the last the 
 technical element.* 
 
 An American publicist, f a member of this association, whose 
 
 * Austin, Jurisprudence. 
 
 t David Dudley Field, International Code. 
 
 3 
 
1 8 THE CITIZEN IN RELATION TO THE STATE. 
 
 labors in the highest walks of the profession have been the subject 
 of approval and endorsement in Europe and America, has recently 
 asked and answered the question, "What is the duty of the 
 lawyer? " — 
 
 " It is his duty, first, to know the law; next, to apply it, and 
 always to make it subserve the purpose for which it was designed — 
 that is, to keep the peace, do justice, and thus promote human 
 happiness. If it fails to accomplish these ends, if it works badly 
 in any respect, it is his duty, more than that of other men, to help 
 make it better. Why, it may be asked, is the lawyer, more than 
 another citizen, bound to improve the law ? Because he knows 
 it more completely, sees with greater clearness the points of fric- 
 tion, and has the means of correcting and improving it more at 
 his command than the unprofessional citizen. He is in fact a 
 minister of the law, set apart of his own seeking for that very 
 purpose, and his duty follows his relation." 
 
 Another authority says: 
 
 ' ' The law is regarded and administered by lawyers from many 
 points of view. Among these we think that there is at least one 
 point of view which is essential to the healthy tone and the use- 
 fulness of the profession. It is the creative point of view. 
 It is the inquiry, What laws do the people need from both legis- 
 latures and judges? It is not the question of mere theorists or 
 doctrinaires. They can neither answer nor understand such a 
 question, because they do not study the people in common life. 
 Nor is it the bid of demagogues. They ask, not what the people 
 need, but what does our party depend on ?" * 
 
 There exists too generally a misconception as to the obligation 
 which is incident to the relation between lawyer and client, which 
 is productive of great evil and scandal. This misconception has 
 unfortunately received the sanction of some great names. Fidelity 
 to the client and the client's interest is one thing; participation in the 
 crime of his client, by poisoning the fountain-springs of Justice, or 
 outraging law and decency within the very precincts of the tem- 
 ple, is something very different. The lawyer owes much' to his 
 client, but he owes more to himself and to the State. It will be 
 remembered that ^Eneas, when journeying through the land of 
 shadows, was shown the prison cells reserved for the betrayer of 
 trust, the faithless patron: 
 
 ' 'Hie, quibus invisifratres, dum vita manebat, 
 Pzdsatusve parens, etfraus innexa clienti." 
 
 Lord Cockburn's qualification and restriction on Lord Brough- 
 
 * C. E. Grinnell, in American Law Review. 
 
THE CITIZEN IN RELATION TO THE STATE. 19 
 
 am's well-known overstatement of the duties of an advocate 
 commands the approbation of the profession. In his eloge of 
 Erskine, the late Chief Justice of England thus described the 
 character of his subject: 
 
 "He wielded the arms of the warrior, not [the weapons] of the 
 assassin; he strove to accomplish the interests of his client per 
 fas and not per nefas, and sought to reconcile the interest he was 
 bound to maintain and the duty it was incumbent upon him to 
 discharge with the stern and immutable interests of truth and 
 justice." 
 
 IX. 
 
 From the following reference to a diplomatic episode, which 
 is taken from the Madrid letter of a correspondent of a daily 
 New York journal of recent date,* it will be seen that the United 
 States is sometimes overreached in international contentions with 
 States whose power or skill she may occasionally seem to de- 
 preciate. But it does not often happen, as in this instance, that 
 she is the victim of the temerity or pusillanimity of her own citi- 
 zens and representatives. 
 
 ' ' When the Spanish- American Commission in Washington 
 came to a deadlock on the question of citizenship, of course 
 negotiations were opened between the two Governments. Spain 
 maintained her right to go behind the naturalization papers. 
 The United States stood firmly for the contrary. No progress 
 was made in the negotiation. Mr. Webster came to the rescue. 
 He was trusted implicitly by the Spanish Foreign Office. The 
 Spanish Minister at Washington was instructed to follow the 
 directions of Mr. Webster. That clever and experienced lawyer 
 drafted an article for the proposed treaty on the subject of citizen- 
 ship. He also instructed the Spanish Minister to adhere in all 
 his conferences with Secretary Frelinghuysen to a certain set of 
 phrases. He had an apt pupil. Mr. Frelinghuysen accepted 
 Mr. Webster's proposed article, and a treaty or additional article 
 was agreed upon. The Spanish-American Commission recon- 
 vened, and in due time the question of citizenship was reached. 
 The new article had to be construed, very much to the amaze- 
 ment of the American Secretary of State. The majority of the 
 Commission held that Mr. Wedster's language did not mean what 
 it was supposed to mean. 
 
 The incident thus briefly referred to involves a question in pri- 
 vate international jurisprudence of wide reach, and possesses an 
 
 *New York Times, July 19th, 1884. 
 
 Note.— That portion of the statement of the Madrid correspondent which^appears in 
 
20 THE CITIZEN IN RELATION TO THE STATE. 
 
 importance much beyond that which momentarily attaches to the 
 individual or pecuniary interests immediately affected by the final 
 decision of the Arbitrators. This decision violates a principle of 
 interpretation in jurisprudence which was supposed to be immut- 
 able, and reverses a long-standing rule of evidence in respect to 
 the burden of proof. And the principle which it seeks to estab- 
 lish affects not one individual, nor a few individuals, but every 
 naturalized citizen that is or is to be. It concerns not alone Spain 
 and the United States, but every State which makes claim to 
 civilization and honesty. It is far-reaching; and unless disavowed 
 and repudiated, will be disastrous in its effects. It attempts to 
 commit the representatives of the United States to a position in 
 respect to naturalized citizens which they cannot consistently 
 assume, unless they turn their backs upon American traditions, 
 reverse a uniform policy, disregard the declarations of repeated 
 Executive proclamations, and repudiate successive acts of Con- 
 gress. But more than this: the conclusion of the Arbitrators is 
 in flagrant violation of the specific declaration of principles agreed 
 upon by the two States, whose agents the Arbitrators were. The 
 controversy promises to be memorable in the history of the dip- 
 lomatic relations of the United States; and a brief statement of 
 the circumstances which gave rise to the discussion may be of 
 general interest to the profession. 
 
 The declaration of principles contained in the additional article 
 referred to, which was announced at a session of the Commission 
 held December 14th, 1882, was in the language following: 
 
 ' ' That the principles mentioned in the instruction of the Sec- 
 retary of State to the Advocate for the United States, dated the 
 25th September, 1882, are concurred in, and the following rules 
 have been adopted by them [the Arbitrators], viz . : When an 
 allegation of naturalization is traversed, and the allegation is es- 
 tablished prima facie by the production of a certificate of natu- 
 ralization, or by other competent and sufficient proof, the allega- 
 tion can only be impeached by showing that the court which 
 granted the judgment of naturalization was without jurisdiction, 
 or by showing, in conformity with the adjudications of the courts 
 of the United States on similar matters, that fraud, consisting of 
 intentional and dishonest misrepresentation or suppression of 
 material facts by the party obtaining the judgment, was practiced 
 upon it, or that the naturalization was granted in violation of a 
 treaty stipulation or of a rule of international law ; and that nat- 
 uralization invests the individual with the rights of a citizen of 
 his adopted country in the country of origin or elsewhere not 
 less than in the country of adoption. 
 
 
THE CITIZEN IN RELATION TO THE STATE. 21 
 
 "And the Arbitrators added that they would transmit these 
 rules in due form to the Umpire, that he may be guided by them 
 in the cases not yet decided by him." 
 
 The original Agreement of February nth, 1 871, under which the 
 Arbitrators between Spain and the United States were appointed, 
 contained a clause to this effect : 
 
 " Nevertheless, in any case heard by the Arbitrators, the 
 Spanish Government may traverse the allegation of American 
 citizenship ; and thereupon competent and stifficient proof thereof 
 will be required. ' ' 
 
 Upon this clause the Advocates on the part of Spain, in all the 
 preliminary contentions, had rested their arguments, but they 
 had been successively overruled by the previous Umpires. 
 
 At this juncture a number of cases in which the jurisdiction of 
 the Commission depended on the question of citizenship by nat- 
 uralization, which had been suspended awaiting the decision of 
 the two Governments, remained — some in the hands of the Arbi- 
 trators and others in the hands of the Umpire.* A few days 
 only of the life of the Commission remained. The two Arbitrators 
 then took up the very cases which had led to the adoption by 
 their Governments of the declaration of the principles which 
 should guide them as to naturalization; and the Arbitrator on the 
 part of the United States, virtually repudiating the decision of 
 the two Governments, proceeded to enter into an examination of 
 the evidence before him to ascertain — not whether the judgment 
 of naturalization was shown to be tainted with fraud ; not whether 
 it was shown to have been obtained in violation of controlling 
 adjudications of the courts of the United States ; not whether the 
 record before the Commission showed that the court which had 
 admitted the applicant to citizenship had been misled, by false 
 swearing or otherwise, as to any fact material to be then consid- 
 ered, and which was necessarily passed upon in the judgment of 
 naturalization, but whether that court, in applying the law to 
 the facts, had not itself fallen into error as to what constitutes 
 residence within the intent of our act of Congress ; and whether 
 the residence of the applicant within the United States had indeed 
 been continuous and uninterrupted — not according to any defini- 
 
 * Before the Umpire : Christobal Madan v. Spain, No. 45; and other cases. Before 
 the Arbitrators: J. J. Rodriguez and Randolph Coyle, Administrators of Ramon 
 Fernandez Criado y Gomez, v. Spain, No. 29; J. M. Mestre, Executor of Jose Garcia 
 Angarica, v. Spain, No. 17 ; and other cases. (Law Library, Department of State, Wash- 
 ington.) 
 
22 THE CITIZEN IN RELATION TO THE STATE. 
 
 tion ever heretofore applied to such cases in the particular court, 
 or in any other court deciding such questions, but according 
 to a singular misconception or superficial reading of a half 
 definition of domicile recently devised and apologized for 
 by its English author {Dicey) when discussing the law of 
 Domicile "as a branch of the law of England" — which 
 excludes entirely the element of intention, and would make 
 one's residence for any given period within any jurisdiction 
 depend merely upon the question whether he had been physic- 
 ally there present for the greater part of that period ; and 
 by which definition one would be a resident within the juris- 
 diction for and during the entire month of 'July (for instance) if 
 there physically present only on the first day of the month and 
 on each alternate day designated by an odd number ; and yet 
 would not be a resident there during any one of the fifteen alternate 
 days of that month designated by an even member if he were on 
 those days physically absent. Such a definition of residence is 
 of course absurd in any case where the term is employed in the 
 sense in which it appears in our act of Congress now under con- 
 sideration. It would re-enact the provision which in 1848 {act 
 of June 24th, 184.8) was by Congress deliberately stricken out of 
 a previous statute (act of March 3d, 1813), and which had required 
 that the applicant for naturalization should not have been absent 
 from the United States at any time during the probationary 
 period of five years ; for any interruption of the continuity of the 
 residence intended by the act, whether for a month ox for a minute 
 only, destroys the usefulness of residence during the memaindor of 
 # k»t! pi ' obationai ' y 1 puiud, and necessitates another period of resi- 
 dence for five years, dating from the renewal of residence after the 
 interruption, before the applicant can be naturalized. 
 
 By that method of inquisition into the records of naturalization, 
 the Arbitrator of the United States deliberately overruled the 
 courts which had adjudged the claimants to be citizens of the 
 United States, and, reaching a conclusion not only adverse to the 
 claimants, but in opposition to the oft-repeated declarations of 
 principles by his own Government, and in direct violation of the 
 spirit, if not the letter, of the act of July 27th, 1868;* and con- 
 trary to the specific declaration of principles announced at the 
 session of the Commission held December 14th, 1882, arbitrarily 
 refused to accept the judgments of naturalization as sufficient, but 
 
 ♦Revised Statutes of the United States, sections 1,999, 2,000. 
 
 X A-i/'l&iri,'!/ £Zs£ld££<?£y ^tV^te^'y, 
 
THE CITIZEN IN RELATION TO THE STATE. 23 
 
 dismissed the claims for want of jurisdiction in the Commission 
 to make awards to the claimants, for that he chose not to con- 
 sider them citizens of the United States. The process of reason- 
 ing by which that result was reached is as remarkable as the result 
 itself. It was not only necessary for the Arbitrator on the part 
 of the United States to introduce a new test of American citizen- 
 ship, but he was forced to set aside all presumptions of law, and to 
 reverse the doctrines and overrule the decisions of authoritative 
 courts, as well as to disregard the precedents of this Commission 
 itself as to what constitutes fraud and what is sufficient proof of 
 citizenship in cases arising under the Agreement. The Arbitrator 
 on the part of Spain, although, in the first instance, he would 
 hardly, in the presence of the declaration of principles assented 
 to by his Government, have gone as far as his American colleague 
 had traveled, concurred in the decision of dismissal. 
 
 Meanwhile the Umpire,* before whom several claims of other 
 claimants, the jurisdiction of which turned on citizenship by natu- 
 ralization under circumstances to all intents and purposes similar, 
 recognized the American citizenship of claimants, saying he con- 
 sidered himself obliged to do so z>z view of the declaration of prin- 
 ciples subscribed and submitted by the two Governments for the 
 guidance of Arbitrators and Umpire; and large awards were 
 thereafter actually made in favor of such claimants by the Umpire, f 
 Of course neither the United States, with their record in respect to 
 the equal protection of naturalized and native citizens clear and 
 uninterrupted, nor the claimants, whose treatment was so unusual 
 and unequal, could be satisfied with this remarkable issue of the 
 naturalization question. The matter is a present subject of con- 
 troversy between the diplomatic representatives of the United . 
 States and those of Spain, upon the issue of which, as is mysteri- 
 ously given out in semi-official circles, will depend the fate of 
 Cuba; and it is gravely hinted that Bismarck holds the issue in 
 his keeping. 
 
 The above presents the serious aspect of this most recent inci- 
 dent in the practice of International Commissions. 
 
 The amusing feature of this episode is that, while the contro- 
 versy was in progress, Spain, or some representative or advocate 
 
 * Count Lewenhaupt, Envoy Extraordinary and Minister Plenipotentiary from Swe- 
 den to the United States. 
 
 f Cristobal Madan v. Spain (No. 45) ; Felix G-ovin y Pinto v. Spain (No. 9) ; Manuel 
 Antonio Montejo v. Spain (No. 113); John C- Rojms v. Spain (No. 63). ( Laxo Library, 
 Department of State, Washington.) 
 
24 THE CITIZEN IN RELATION TO THE STATE. 
 
 of Spain in the United States, who appears at that time to have 
 had facile control of the editorial columns of certain New York 
 daily newspapers,* contributed learned articles on the naturaliza- 
 tion question in relation to the jurisdiction and functions of Inter- 
 national Commissions, which were skillfully designed to prepare 
 the way for the reception of the new doctrine of citizenship by 
 naturalization thus sought to be introduced into private interna- 
 tional jurisprudence. 
 
 *New York Herald, June 10th, 1881; May 4th, 1881; May 4th, 1882; July 22d, 1882. 
 New York World, April 30th, 1881; May 22d, 1881; December 13th, 1881; December 22d, 
 1882. 
 
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