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liability of the claimant's property to seizure or destraction by the Federal Army. It is difficult to lay down a general rule applicable in all cases to the rights of an invading army, nor, in this particular case, is that necessary.
The statements contained in the memorial are, for the purposes of this argument, to be assumed to be true. One of the statements in the memorial is, that part of the claimant's property was taken possession of by the Federal Army without any military necessity, convenience, provocation, or inducement, and plundered, and that part was wantonly destroyed.
Supposing this to be true, we are not prepared to say that some liability might not be established against the United States Government.
The demurrer is, therefore, disallowed; but the United States Government will be at liberty, if they think fit, to take issue upon the facts alleged in the memorial.
In the case of James Crutchett vs. The United States, No. 4, a claim for property taken and appropriated by the United States in the District of Columbia, the memorial showed the claimant at the time of the alleged injuries, and for many years previous, domiciled at Washington.
A demurrer was interposed specifying, among other grounds, that the claimant, being so domiciled within the United States, was not entitled to the standing of a British subject within the treaty.
The case was submitted on this point upon the authorities cited in Barclay's case, as above noted, and the demurrer was overruled.
The decisions of the commission in these and other similar cases established the doctrine that, so far as relates to the question of jurisdiction, the national character of the party is to be determined by his paramount allegiance, where that is not double, irrespective of the fact of domicile.
In the case of George Adlam vs. The United States, No. 40, it appeared from the memorial, in addition to the fact of domicile within the insurrectionary States, that the claimant had taken the preliminary steps toward naturalization under the statutes of the United States, by filing his declaration on oath of his intention to become a citizen of the United States, and to renounce all allegiance to Her Britannic Majesty, the sovereign of his nativity.
The counsel for the United States on demurrer claimed that such oath, added to the fact of domicile, established the national character of the claimant as a citizen of the United States within international law, and barred him from any standing as a British subject under the treaty. The demurrer was overruled.
In the case of Joseph Gribble vs. The United States, No. 116, the proofs on the part of the defense showed that the claimant, who had filed his declaration of intention, under the naturalization act, before the presentation of his memorial, had subsequently, and pending his claim before the commission, completed his naturalization, and was at the time of the submission of his cause a citizen of the United States. His claim was disallowed on the merits; but the undersigned is advised that the commission was unanimous in the opinion that his naturalization had deprived him of a standing before the commission as a British subject.
In the case of John W. Sharpe vs. The United States, No. 92, the claimant's proofs showed that he had exercised rights of citizenship of the United States, by voting, prior to the presentation of his memorial.
The counsel for the United States contended, first, that such acts constituted an estoppel against the claim of the claimant to a standing as a British subject under the treaty; and, second, that if strictly and technically there was no estoppel, such acts were to be regarded as very strong evidence of the fact of naturalization, and sufficient to overcome the claimant's own denial on oath of such naturalization.
An award was made in favor of the claimant, Mr. Commissioner Frazer dissenting; and the objection on the part of the United States was thus overruled.
In the case of Robert Eakin vs. The United States, No. 118, the proofs showed that the claimant had, in 1857, in the State of Mississippi, exercised acts of citizenship of the United States by holding an office, which, under the laws of Mississippi, could only lawfully be held by a citizen of the United States; and that he had, in 1862, the State of Mississippi being then in rebellion against the United States, Held a like office, which, by the then laws of Mississippi, could only be held by a citizen of the Confederate States.
The counsel for the United States contended that the claimant was, by each of these acts, debarred from a standing as a British subject. The claim was disallowed without a separate and distinct decision of this question; but the undersigned is advised that a majority, at least, of the commission were of opinion that such holding of office under the rebel government was of itself a violation of neutrality, and debarred the claimant from a standing before the commission.
In the case of the executors of Robert S. C. A. Alexander vs. The United States, No. 45, the memorial showed the claimants' testator to have been born in the United States in 1819, but alleged him to have been the son of Robert Alexander, a native of Scotland, and a natural-born subject of the British Crown. It also alleged that the testator had always held and claimed himself to be a liege subject of the British Crown, and that he had always been so held and regarded by all others. That in his early youth he had returned to Scotland, and there for many years held office in the commission of the peace and other posts of trust under the British Crown. That during the war his residence was partly in Scotland and partly in Kentucky, he having died in Kentucky in December, 1867. The claim was for the occupation of and injuries to lands and real estate of the testator in Kentucky by United States troops during the war.
On demurrer it was contended, on the part of the United States, that the claimants had no standing before the commission in the right of their testator as a British subject; that, although by the law of Great Britain he was a British subject, he was also by the laws of the United
States a citizen of those States; and that, in such a case of double or conflicting allegiance, the claimant was not to be regarded as a subject of Great Britain within the meaning of the treaty.
The counsel for the United States cited the Revised Statutes of Kentucky, vol. 1, p. 238, c. 15, art. 1, sec. 1, as establishing the fact of citizenship under the law of Kentucky; and also Drummond's case, 2 Knapp's P. C. Rep., 295.
The commission held the claimants not entitled to a standing, and dismissed the case, Mr. Commissioner Gurney dissenting.
Mr. Commissioner Frazer read a written opinion, as follows:
The testator was by British law a British subject, but he was also by the law of the United States an American citizen, by reason of his birth in Kentucky; and he was not capable of divesting himself of his American nationality by mere volition and residence from time to time in Scotland and holding office there.
Being, then, a subject of both governments, was he a British subject within the meaning of the treaty? The practice of nations in such cases is believed to be by their sovereign to leave the person who has embarrassed himself by assuming a double allegiance to the protection which he may find provided for him by the municipal laws of that other sovereign to whom he thus also owes allegiance. To treat his grievances against that other sovereign as subjects of international concern, would be to claim a jurisdiction paramount to that of the other nation of which he is also a subject. Complications would inevitably result, for no government would recognize the right of another to interfere thus in behalf of one whom it regarded as a subject of its own. It has certainly not been the practice of the British government to interfere in such cases; and it is not easy to believe that either government meant to provide for them by this treaty. In Drummond's case the terms of the treaty were quite as comprehensive as those of this treaty; and yet it was there held that the claimant was not within the treaty, not being within its intention. This was held even after it was ascertained that he was not a French subject, he having merely evinced his intention to regard himself as a French subject.
I am advised that in this opinion the presiding commissioner concurred.
In the case of Joseph Fry Mogridge vs. The United States, No. 345, the same principle was applied by a majority of the commission under a like state of circumstances, except that the memorial in effect alleged the claimant to have been born in Pennsylvania of native-born British subjects, never domiciled within the United States, but on a visit there at the time of his birth, and who returned to England within a few weeks thereafter, where the claimant remained during his minority. He was domiciled in the United States at the time of the alleged inju ries-the taking and destruction of his property.
His claim was dismissed in like manner.
In the case of Joseph W. Scott vs. The United States, No. 226, for damages for wrongful imprisonment, and for appropriation and destruction of property, the proofs showed that the claimant was born in the British province of New Brunswick in 1813. His father, Daniel Scott, was born in the then province of Maine, in March, 1768, and continued to reside in Maine after the recognition of the independence of the colonies by
Great Britain, and after he became of age, which was in March, 1789. The time of Daniel Scott's removal to New Brunswick was left somewhat uncertain, ranging from December, 1789, to 1794.
On the part of the United States it was claimed that Daniel Scott, the father, having been a citizen of the United States, the claimant, Joseph W. Scott, was by the naturalization laws of 1802 (2 Stat. at L., 155, § 4) also a citizen of the United States, and was debarred from a standing before the commission within the principle held by the commission in the case of Alexander.
At the time of the alleged injuries, and for many years previous, he was domiciled in the State of Florida, one of the insurrectionary States. The counsel for the United States cited the first article of the treaty of peace between the United States and Great Britain, concluded September 3, 1783, (8 Stat. at L., 80, 81,) and the cases of Inglis vs. The Sailors' Snug Harbor, 3 Peters, 99; Shanks vs. Dupont, id., 244; Doe vs. Acklan, 2 B. & C., 779; and Marryatt vs. Wilson, 1 B. & P., 430.
On the part of the claimant it was contended that Daniel Scott, being a minor at the time of the conclusion of the treaty of peace between Great Britain and the United States, was entitled, within a reasonable time after attaining his majority, to elect to which government he would adhere, and that he did make such election within such reasonable time by his removal to New Brunswick.
Claimant's counsel cited the cases of Jephson vs. Riera, 3 Knapp's P C. R., and Count Wall's case, id.
An award was made in favor of the claimant, Mr. Commissioner Frazer dissenting. No written opinions were read. I am advised that the decision proceeded upon the ground that Daniel Scott's removal to New Brunswick constituted an election, within a reasonable time, to adhere to his British allegiance.
In the cases of Elizabeth L. H. Bowie vs. The United States, No. 320, Martha M. Calderwood vs. same, No. 360, Martha M. Tooraen vs. same, No. 184, and others, it was held that the national character of a married woman is governed by that of her husband in all cases, irrespective of domicile; and that on the death of the husband the national character of the widow acquired by marriage remains unchanged. From this conclusion Mr. Commissioner Frazer dissented, in the case of a widow of American origin who had always remained domiciled within the United States, holding that in such case, upon the death of her British husband, her original national character reverted.
In the case of Mrs. Bowie, No. 320, the claimant was by birth a British subject, but was at the time of the alleged injuries the widow of a citizen of the United States, and domiciled in the insurrectionary State of Virginia, and before the filing of her memorial had again intermarried with a citizen of the United States, who was still living and there domiciled. Her claim was disallowed, all the commissioners agreeing.
In the case of Mrs. Calderwood, No. 360, claimant was a native-born citizen of the United States, had intermarried with a British subject who was since deceased, and had always been domiciled in the State of Louisiana. The commission, on demurrer, held her a British subject, Mr. Commissioner Frazer dissenting.
In the case of Mrs. Tooraen, No. 184, claimant was by birth a British subject, her husband at the time of marriage being a subject of Sweden, but naturalized as a citizen of the United States subsequent to the marriage. Claimant and her husband were both domiciled from the time of marriage within the United States. Her claim was unanimously dismissed.
In the case of Jane L. Brand, No. 180, which was a claim for alleged wrougful imprisonment and appropriation of the claimant's property at New Orleans, it appeared that claimant, a native of Ireland, had been for several years domiciled in New Orleans. She there married in 1838 a citizen of the United States, who died in 1849, and she had since remained his widow and continued domiciled in New Orleans. Her memorial alleged that, though married to an American citizen, “she never in any manner adopted his nationality;" that after his death she uniformly claimed the character of a British subject; and that in August, 1862, before the commission of the acts complained of, or a part of them, she had made proof of her character as a British subject before the British consul at New Orleans, and been duly registered as such. On the part of the claimant it was contended that at the time of the claimant's marriage and of the death of her husband, and up to the pas sage of the act of the United States Congress of 10th February, 1855, (10 Stat. at L., 604,) the claimant was not by the laws of the United States a citizen of those States, the act of 1855 being the first to give such status to an alien-born woman by her marriage to a citizen of the United States. That up to the conclusion of the naturalization convention of 13th May, 1870, between the United States and Great Britain, (16 Stat. at L., 775,) and the supplemental convention of 23d February, 1871, between the same nations, (17 id., 841,) no provision existed for the manner in which a British subject who had married a citizen of the United States should, upon becoming a widow, reclaim her original nationality. That the universal custom among nations, founded upon international comity, if not upon international law, allowed such widow to choose whether she would retain the nationality of her deceased husband or return to that of her birth. That Mrs. Brand, by always claiming, after her husband's death, the condition of a British subject, and by registering herself as such in the consulate at New Orleans in 1862, had done all that was necessary to enable her to re-assume her original national character; and that it was not necessary for her to avail her. self of the provisions of the conventions of 1870 and 1871 in order to