941,377


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I l   U   lUji MITWW1 lImmorYlU ll l=


THE GIFT OF
_'iT''mn' i
_ i.




THE UNIVERSITY OF CHICAGO
Founded by John D. Rockefeller
Aliens Under the Federal Laws of the
United States
A DISSERTATION
SUBMITTED TO THE FACULTY
OF THE
GRADUATE SCHOOL OF ARTS AND LITERATURE
IN CANDIDACY FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY
Department of Political Science
BY
SAMUEL MACCLINTOCK


CHICAGO
ILLINOIS LAW REVIEW
1909




I~~~~~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~




PREFACE
This thesis is an attempt to trace the history of the more important federal laws of the United States affecting aliens. The first
chapter is in the nature of a general introduction, or back-ground,
to the study proper. It shows how citizenship and alienage arise,
and the rights, duties, and disabilities connected with the latter
status. It then outlines the relation between the citizenship of the
federal state and of its constituent commonwealths, in order to
show the jurisdiction of each of these with regard to the subject
considered.
The body of the thesis falls in the chapters which deal with the
federal legislation affecting aliens. Most of this legislation has been
enacted without having aliens, primarily, in mind. For example,
the legislation regarding shipping, patents, public lands, etc., has
had our own citizens in view primarily, and resident foreigners only
incidentally. For this reason it has been found both difficult and
tedious to extract the material from such legislation bearing upon
aliens alone.
No claim is made that all the material has been found. In order
to secure it all it would be necessary to go exhaustively through the total body of legislation having a possible bearing upon aliens, and this
is manifestly impossible when one considers the wide range
of such legislation. When we come to the legislation dealing with
the right of aliens to hold real estate in the territories, we are on more
certain ground, for the territories are under the immediate control
of the national government and Congress has legislated directly with
reference to aliens in such territories.
The final chapter is given to the consideration of treaty rights
-the right to hold property, to the protection of life and property,
and to other rights which may be incident to residence. Then the
exclusion and expulsion of aliens as a right of sovereignty and in
the light of our experience is considered.


197295




I




CONTENTS


I.
ALIENAGE AND CITIZENSHIP.-Position of aliens in ancient and
medieval times. Citizenship the normal relation to the state.
Citizenship dependent on municipal law. The right of expatriation. Rights, duties, and disabilities of aliens. Citizenship in the American colonies and under the federal constitution. The control of suffrage. Restrictions as to office-holding.
II.
FEDERAL LEGISLATION.-Shipping, Patents, Trademarks, Copyrights. Our shipping policy and its British precedents. American registry reserved to American citizens. Our coastwise
trade confined to American vessels. Discriminatory tonnage
dues. Patents granted aliens and citizens alike. Trademark
legislation and conventions. Copyrights at common law and
by reciprocity.
III.
FEDERAL LEGISLATION.-Public Lands; Real Estate in the Territories. Right to purchase open to aliens. Preemption and
homestead rights restricted. Results of our liberal land policy.
Legislation excluding aliens from real estate in territories.
Subsequent modifications of this legislation. Why such legislation will not be attempted again.
IV.
TREATY RIGHTS OF RESIDENT ALIENS.-The treaty making power
of the federal government. Provisions of treaties as to property
rights. Federal legislation protecting aliens. The Japanese
school controversy. Exclusion and expulsion of aliens. Attitude of our government. Congressional legislation on this
subject. Administrative proceedings satisfy the requirements.


5








ALIENS UNDER THE FEDERAL LAWS
OF THE UNITED STATES
BY SAMUEL MACCLINTOCK
I. ALIENAGE AND CITIZENSHIPa
In ancient times a stranger, as such, was generally regarded and
treated as an enemy. During the middle ages both he and his property were at the mercy of the prince in whose country he sojourned.
He was subject to heavy exactions for the privilege of residing in
the country and carrying on trade; he was without personal rights,
and upon death his property escheated to the prince. In modern
civilized states this harsh rule has been so far abrogated that the
property rights of an alien have been assimilated closely to those
of the citizen, and, in some of our states, even political privileges
have been extended them. The rights and privileges which a citizen of one country enjoys while in another are, therefore, interesting historically, as showing how far the world has advanced, and
are of present day worth as indicating the actual status of a foreigner while travelling or sojourning in another land.
CITIzENs.-The normal      relationship  of an individual to the
country and government of his birth is that of citizen, or subject.
The common-law doctrine was that all persons born within the
jurisdiction and allegiance of a country were its natural born subjects, its natives.' The exceptions recognized to this rule were children born to the diplomatic representative of a foreign government,
or an alien enemy in hostile occupation of the place where the child
was born, or upon the public vessels of a foreign power.
The obligation of support and obedience which the citizen or
subject owes his country is expressed by the word allegiance. In
aThis is the first of a series of four papers.  The others will be entitled
respectively: Federal Legislation-Shipping, Patents, Trade Marks, Copyrights; Federal Legislation-Public Lands, Real Estate in the Territories; and
Treaty Rights of Resident Aliens.
1'Citizen' and 'subject' are used in the same sense, the former term being
generally employed in speaking of the members of a republic, the latter of a
monarchy. Professor Moore prefers the term 'nationality' to 'citizenship' "in
order that it might comprehend not only those who may be called 'citizens'
but also all those who, whether they may be called citizens or not, may be called
'nationals.' "  (Int. L. Dig. sec. 372). The term national would, therefore,
designate the status of one not an alien to our government and yet not a full
citizen, as, for example, a Porto Rican. See Col. L. Rev., III., 13.)


7




return for this allegiance on the part of its citizens or subjects the
state owes them protection.
There is no rule of international law by which citizenship is determined. Each nation is the sole proper judge of who are its citizens
or who may become its citizens. Citizenship, then, depends upon
municipal law and denotes within a particular state the possession
of full civil and political rights not dependent on age or sex. Citizenship may arise as result of birth, of naturalization, or of the annexation of territory. If it arises as a result of birth, it may be in
accordance either with the theory of "soil" or of "blood". According
to the theory ex jure soli or loci all persons born in a given terrtiory
are citizens "by right of the soil." Thus, the French law holds all
persons born in France, though of foreign parents, to be French
citizens, unless such persons, relying upon the citizenship of their
parents, renouce allegiance to the country of their birth within a
year after reaching their majority. According to the other theory,
that of ex jure sanguinis, citizenship depends upon blood relationship, or descent. This theory prevails in many countries and has
some times been inaccurately called the doctrine of the law of nations.
According to this theory the political status of the child does not
depend upon the place of birth, but follows the status of the father,
if the child is legitimate, and of the mother, if the child is illegitimate2
It is an inherent right in each independent nation to determine
for itself, and in accordance with its own laws, what persons may
become its citizens and upon what terms. Naturalization is effected,
therefore, only in accordance with the municipal law of the country
to which the foreign born person goes; that is, it is not dependent,
in any way, upon the laws of the applicant's former coantry. If
he is safely beyond the jurisdiction of his former state, it is immaterial whether the applicant did or did not have its permission to
expatriate himself.3  It has been declared that "naturalization is
the act of adopting a foreigner and clothing him with the privileges
of a native citizen. "4 An alien, when duly naturalized, possesses
the privileges and immunities of a native born citizen. In our
country, however, he is ineligible, under the constitution, to the office
of president, or vice-president, and, in some states, to that of governor.
By the common law doctrine natural born subjects owed alle2Vattel, sec. 212-215.
3For. Rel. 1893, 499.
4Boyd v. Nebraska, 143 U. S., 135.


8




giance to the sovereign from which they could not by any act of
their own divest themselves. This was the law at the time when
the colonies separated themselves from the mother country and is
still the rule in some countries, such as Russia and Turkey. The
harshness of this doctrine of natural allegiance was mitigated in
practice long before it was given up in theory. In modern times
the essentially free and voluntary relationship of the individual to
the state is generally recognized in the right to forswear allegiance
to the country of birth and to attach one's self permanently to a
country of adoption, provided one has discharged all his obligations
to the country of his birth.
It is generally considered, however, that a clear legal right to
expatriation does not exist in the absence of a positive rule to this
effect.5 In the United States the right to expatriation has long been
recognized and seems to have been legally declared by the expatriation act of July 27, 1868,6 though the court in Comitis v. Parkerson7
denied that this was the effect of the act. Such a right, however,
has generally been regarded in this country as being "fundamental, '8
and whatever may be the meaning of the act of 1868, expatriation
has been, and is, unhesitatingly allowed in our governmental practice.9
While the right to expatriation has never been expressly granted
in so many words by Great Britain, it has been legally recognized
since the passage of the "Expatriation Act" of 1870.10 France
gives the right to her citizens to change their allegiance and so does
Germany, if made in good faith," for the purpose of founding homes
in foreign lands, and if existing obligations have been fulfilled.
So with the other countries of Europe, with the exception of Russia
and Turkey, where the right to withdraw is held to be a matter of
imperial favor.
ALIENS.-When a citizen of one country takes up his domicile
in a foreign country he is an alien to the land in which he sojourns,
without at the same time, losing his citizenship and its obligation of
allegiance. An alien is, therefore, a foreigner who, though residing
in one country, owes allegiance to another.l2  In Great Britain an
5Cockburn, "Nationality," p. 63.
6Reenacted in sec. 1999 R. S.
756 Fed., 556.
8Whart. Confl. Laws, 85; 8 Op. A.-G. 139; 9 Op. A.-G. 356.
9For. Rel. p. 20,' Dec. 23, 1903, no. 49.
1033 Vict., c. 14.
1'Good faith' means that the person owes no military obligation and is
guilty of no crime.
"Bouvier: L. Diet.; Lyons v. California, 67 Cal., 380.


9




alien is defined as one born out of allegiance to the king; in the United
States, as one born out of the jurisdiction of the United States,
not naturalized in accordance with the constitution and laws of the
United States, or declared to be a citizen by statute.
Owing to the general adoption in recent times of the doctrine
of expatriation, and to the immense development of international
trade, with the consequent cheapening of the means of transportation, the number of aliens found in most countries is vastly greater
than in former years, and the position of aliens before the law is
of consequently greater importance.13
Aliens may be distinugished as alien friends or alien enemies
according to whether the country of their allegiance is at war or
at peace with the country of their domicile. A distinction may also
be drawn between resident aliens, those who are domiciled in a state
to which they are foreigners, and non-resident aliens, those who are
only sojourning in such a state.
RIGHTS OF ALIENS.-The rights which aliens have arise from
the operation of the law of nations or from municipal law. The
fundamental right is that of protection of person and of property.
Formerly, discrimination against aliens in the private laws of
different countries was the general rule. In modern times practice
varies. Some nations favor reciprocity in such matters, as is seen
in the provision of the French Civil Code that "an alien shall enjoy
in France the same civil rights as those granted to French persons
by the treaties of the nation to which such alien belongs."' Other
nations make practically no distinction in their private laws between
natives and aliens.14  Modern nations tend more and more to extend the rights of private law to aliens as fully as these exist for natives. Such equality is demanded by the law of nations so far as
the protection of person and property is concerned. Beyond this
point, however, a state can treat foreigners within its jurisdiction
according to its discretion. Thus it can compel them to register
their names, can exclude them from holding real estate, and from
entering certain trades and professions.
As a subject has, while in a foreign country, only the rights and
privileges accorded by the law of that country and by international
comity, he can call upon the government of his allegiance for its
"3The foreign born population in the United States, as determined at the
twelfth census, numbered 10,460,085. Of this number there were 1,070,126
male aliens of voting age-those who had taken out their first papers not being
included.
"The prohibition of the ownership of vessels in England, and in the United
States, is an exception.


10




protection and intervention only when oppressed or subjected to
an unlawful act by the government under which he is residing.
After his government secures for him the ordinary protection afforded by the law of the land, he is completely subject, in the absence of treaty stipulations, to the municipal law.
DUTIES OF ALIENS.-In return for the protection which is furnished him, the alien owes local and temporary allegiance. During
his residence he is bound equally with natives to obey all general
laws for the peace and safely of the state.15 Such laws as are applicable to the rights and duties of citizens only do not extend to the
alien; but if he becomes involved in disputes with citizens, or with
other resident aliens, or is guilty of an illegal act, he is subject to
the ordinary tribunals."' Thus he may be tried for treason in giving
aid and comfort to the enemies of the country.17
This principle of amenability to the municipal law, being founded
on the dictates of justice and public safety, is universely recognized
and adopted.
Aliens domiciled in a country are liable for both personal and
property taxes and can be compelled, under the same conditions
as citizens, to help maintain public order and safety. They are not,
however, liable to military service in times of peace, because they
are not subject to the personal supremacy of the local state.l8 President Lincoln's proclamation on May 4, 1863, declined to allow the
plea of alienage as an excuse for failure to do military service on the
part of those who had declared their intention to become citizens.
Such persons claimed that their declarations did not conclusively
bind them, and that either by virtue of treaty, or by the law of nations, they were exempt from such service. This claim was not
allowed, but all aliens who did not wish to comply with the President's proclamation were given sixty-five days in which to withdraw
from the country. By the act of February 24, 1864,19 no person of
foreign birth who had voted was to be exempt from enrollment
or draft.
As every state has the right to determine by its own laws who
shall be its citizens, it frequently happens that a person has a dual
nationality; that is, he is under the personal sovereignty of his home
1"2 Kent's Cor. 63; The Exchange v. McFaddon, 7 Cr., 116. Webster's
Works, VI., 526.
"Sec. 563 R. S.; 1 Atk. 51.
17Carlisle v. U. S., 16 Wall 147; U. S. v.Diekelman, 92 U. S., 520; Rahdick,
v. Hutchins, 95 U. S., 210.
183 Op. A.-G. 670.
915 Stat. 6.


11




government to which he continues to owe allegiance, and he is under
the territorial sovereignty of that in which he is domiciled.20  As
such conflicts of jurisdiction cannot be decided by any principle of
international law, a large number of states have recognized the
right of election of nationality upon the person's reaching his majority or within a reasonable time thereafter.21 As a state's supremacy over aliens is territorial and not personal, it has no right to prevent their departure from its shores whenever they wish to leave,
provided they have discharged all their local obligations.
DISABILITY OF ALIENS. —This term is not strictly apposite, inasmuch as, historically, aliens start with having no rights whatever.
Nevertheless, it may be used to show what is still withheld from
them in modern states which have granted them so many privileges.
According to the common law, no one while out of alligiance
to the king could exercise any political rights. In all cases, the voter
had to be either a nativeborn English subject or a naturalized foreigner. Even such naturalized persons, however, could not serve
as members of the House of Commons until the year 1870.22 This
rule of the common law was in force in all the English colonies
upon this continent down to the Declaration of Independence. The
converse held true, namely, that all born in the colonies and consequently within the juurisdiction of the king, were citizens of the
colonies and owed allegiance to the king.
The political disability of aliens, then, extends to voting and
holding office. There is no natural right on the part of a citizen, as
such, to exercise the right of suffrage, much less of an alien. It is
a privilege which may be conferred or withheld, and is practically
always denied to women, minors, and persons non compos mentis,
as well as to aliens. This is because governments are designed primarily for the benefit of their own citizens, and participation in the
political affairs is consequently denied to those who are not full
citizens. Some of our commonwealths, however, have broken away
from this general rule.
The civil disability of aliens relates chiefly to the power to acquire, enjoy, and transmit real property.
2"For an interesting opinion of the attorney general in regard to persons of
American parentage, born and residing abroad, but American citizens under the
act of Feb. 10, 1855, (10 Stat. 604), holding that if, by the laws of the country
of their birth, such children are subjects of its government, it is not competent
to the United States by legislation to interfere with that relation while such persons continue within the territory of that country, see 13 Op. A.-G. 89.
2"1 Oppenheim Int. Law, 372; "The Charming Betsy," 2 Cr. 64.
2233 and 34 Vie. Ch. 13.


12




According to the common law, an alien might acquire title to
land by purchase or devise, that is, by act of the parties. The
title was then divested from the grantor and held by the alien subject to dispossession by the sovereign by means of inquest of office
found, or equivalent action;23 and until such action was taken by the
sovereign, he might dispose of it by conveyance, or devise, notwithstanding his alienage.24 The alien could not, however, acquire title
to real proprety by descent, curtesy, or dower; that is, he could not
acquire by mere operation of law.25  Nor did he possess inheritable
blood so as to be able to transmit such property to a citizen.26 Hence,
in such case, no inquest was necessary to vest title in the state on
the death of the alien intestate or of a citizen intestate leaving
only alien heirs.27
This rule of the common law seems to have grown out of the
feudal conception of the ownership of land. Hansard, in his work
on Aliens, says:28 "Inasmuch as all lands were holden of the king
as the sovereign or lord paramount, an alien could not hold them
without acknowledging allegiance to the king, which such alien,
while his allegiance remained to his former sovereign, could not do.' "2
Thus it is seen that an alien might at common law take an estate in lands by the act of the parties, but that he could not take by
the act of the law. As the title to land must always be vested
somewhere and the defeasible title is good until divested, a resident
alien in possession of land had as much a claim to protection as a
citizen. His title and right to possession could not be disputed by
the vendor or any other person except the Crown, and the Crown
could forfeit the lands only upon inquest of office found or similar
proceeding.30 By descent, however, the alien could not acquire
even a defeasible title and he could confer upon others no better
title than he himself possessed. So neither an alien nor a subject
23Sargent's Bl. 1, 477; Government v. Robertson, 11 Wheat,.332.
24De Franca v. Howard, 21 Fed. 774; Williams v. Wilson, Mart & Cy., 248;
Orr v. Hodgson, 4 Wheat, 403.
251 Bl. Com. 372 Sutliff v. Forgey, 1 Cow., 89.
26Blight v. Rochester, 7 Wheat, 535.
27Fairfax v. Hunter, 7 Cr.,-603; 2 B1. Comm. 249.
28P. 131.
29Sir Frederick Pollock accounts for the origin of the rule by saying that it
arose from the habit of the English Crown of confiscating the estates of Norman
nobles, situated in England, who swore allegiance to the Crown of France after
the separation of Normandy from England. The practice thus started, ripened
with time into a general rule of law. For another interesting accounting for
the rule, see the opinion of Chief Justice Tilghman, in Jackson v. Burns, 3 Binn.
75.
302 B1. Corn. 293.


13




could acquire an indefeasible title from an alien. Alien heirs possessed no inheritable blood and the estate descended to the next
person having inheritable blood as though no such alien issue were
in existence.3  If an alien removed his disability by naturalization
or otherwise before escheat proceedings, his title became absolute,
a complete and indefeasible right against all the world.32
As aliens had no inheritable blood, the alienage of any ancestor
was a bar to the title, though exceptions were made from time to
time that mitigated the harshness of this rule.33  The law was first
modified in 11 and 12 Wm. III., ch. 6, so as to enable the alien to
transmit to such of his heirs as might be natural born subjects of the
realm.  Thereafter the disability of alienage became a bar only
when it was in the heir and not in the ancestor.34   By the act of
Parliament of 187035 the disability to acquire, whether by purchase
or inheritance, and to hold real and personal property was entirely
swept away,and the alien was placed in all respects upon the same
footing as a native born citizen.36
The reason why there is presumed to be an immediate escheat
upon the death of an alien land holder, dying intestate, is because in
the old theory, the law of the land operates only in favor of citizens
and failing to determine who the heirs of an alien are, the law regards
him as having died without legal issue.37 But the law presumes all
residents to be citizens38 and consequently the state must establish
by proof the alienage of the land owner and upon office found must
actually seize the land by its officers to divest the title from the alien.
After forfeiture proceedings the state may release its rights and
make the title absolute in the alien heir by legislative act or by a
subsequent treaty.39 An alien's incapacity to hold the land is removed by naturalization before judgment rendered in proceedings
on an adverse claim to a patent.40
The principles of the English law prevailed in all of the American colonies and continued in all of the subsequently formed states
310rr v. Hodgson, 4 Wheat, 453.
82Governeur v. Robertson, 11 Wheat 332; Manuel v. Wulff, 152 U. S., 506.
a3Callingwood v. Pace, 1 Ventris, 413.
34Levy's Lessees v. McCartee, 6 Pet., 102; Beavan v. Went, 155 Il1., 600.
3533 Vie., ch., 14.
38In one of our commonwealths it has been declared that even a mere declaration of intention to become a citizen had the effect of removing the common law
disability as to the holding of real estate. See Settegast v. Schrimpf, 35 Tex., 323.
37Goodrich v. Russell, 42 N. Y., 177; Crane v. Reeder, 21 Mich., 69.
38State v. Beackno, 6 Blackf, 488.
39Fairfax v. Hunter, 7 Cr., 603; Jackson v. Clarke, 3 Wheat, 1; 43 Cent. L.
J., 221.
"4Manuel v. Wulff, 152 U. S., 505.


14




except Louisiana. The disability of alienage in matters of real property continued, therefore, in force, since the right to hold real estate depends upon the municipal law of our several states, and not
upon the federal law.41  Whatever right aliens had to acquire and
hold real estate carried with it the right to convey, before office
found, to maintain real actions, and the action of trespass.42
The common law disability as to land did not extend to personal
or movable property. Aliens could acquire, hold, and transmit
such property as freely as natives, and could bring suit for the recovery and protection of the property so held.43 They might even
take a mortgage on real estate and come into a court of equity to
have the mortgage foreclosed and the land sold for the payment of
the debt. They might create a perfectly valid trust in personal
property, while as to land such trust could be created only until
office found.44 They might also avail themselves of the doctrine
of equitable conversion.45
Perhaps the reason why personal property stood in such a different relation from that of real property before the common law
was because the former, which now forms so considerable a part
of the wealth of every civilized community, was but lightly regarded
until comparatively recent times. For this reason, alien friends
were allowed to acquire and hold such personal property freely and
without restraint. In modern times, if any danger is to be feared
by the state on account of the ownership of large amounts of property
by aliens, it would seem to be because of the possibility of the control of national funds, and the stocks and bonds of great corporations,
rather than of land..
We now pass to a survey of citizenship and suffrage in the colonies and under the federal constitution.
CITIZENSHIP IN THE COLONIES.-The rule of the common law
that those born out of allegiance to the king could exercise no po —
litical rights has already been stated. This rule was in force generally throughout the American colonies up to the time of the revolution. The only exception known to it in the history of the colonies
was the treatment of the Huguenots in South Carolina.46
41Lynch v. Clarke, 1 Sandf., Ch. 583.
42Hughes v. Edwards, 9 Wheat, 489; Jones v. McMasters, 20 How., 20.
431 Black, 322; 2 Kent, 2; Hughes v. Edwards, 9 Wheat, 489.
441 Lewin on Trusts, 26.
45Dwight on Persons, 132; Craig v. Leslie, 3 Wheat, 553. Thus, a devise of lands to a citizen trustee to receive the rents and profits, and apply them
to the use of an alien cestui, is valid. Marx v. McGlynn, 88 N. Y., 357.
46McKinley, The Suffrage Franchise in the English Colonies, 132.


15




There were comparatively few persons in the colonies of foreign
birth but the necessity for some provision for naturalizing and thereby conferring political rights upon such as were resident therein
was early felt. When foreigners were admitted to the rights of
citizenship during this period they obtained them either as a result
of a treaty, making special provisions for such rights, (as with the
Dutch and Swedes in New York) or by special act of a colonial
legislature (as Maryland, in 1666), or else under the terms of a general
law passed for that purpose. It thus resulted that there was no
uniformity in such matters. Each colony claimed the right to regulate naturalization by its own laws. Some of them expressly excluded aliens from elections or from holding office,47 but this was not
common, and generally the only bar between the foreigner and the
franchise was the force of the common-law precedent. In 1740
Parliament forbade the naturalization of any Catholic aliens in the
colonies, New York and Massachusetts having already done so.48
An act of Parliament of 1746 regarding naturalization prescribed as conditions of citizenship an oath of allegiance, seven
years residence, and the profession of the Protestant faith. In
1776 the home government sent out a circular letter to the governors
of all the royal provinces, forbidding them to give assent to any
law changing the qualifications of electors and elected. It would
seem that, by the close of the colonial period, it was required that
electors should, in addition to being white persons, be "freemen"4"
should have resided in the district a length of time; should be twentyone years of age, of the male sex, of the Protestant religion, and possessed of a given amount of property.50
CITIZENSHIP IN THE STATES AND IN THE NATION.-In our system of government most of the control over aliens, both as to their
political and civil rights, rests with the state govennments. The
obligation of the federal government, except as to the territories
under its control, arises from its position as a member of the family
of nations and from its treaty provisions. Owing to this dual
sovereignty a person can be an alien to the national government
while in possession of at least most of the privileges of state citizenship. For this reason it seems desirable here to review briefly the
47New Hampshire in 1680; Pennsylvania in 1694; North Carolina in 1715;
Delaware in 1734.
48See Miller, Am. Hist. Assoc. 1, 87, 1899.
49In New England this qualification seems to have been equivalent to that
of citizen. Bishop, Elections in American Colonies. 47.
50See McKinley, The Suffrage Franchise in the English Colonies, 473.


16




matter of citizenship as controlled by the state and federal government.
With the birth of the new nation, the allegiance formerly due
the British sovereign became transferred, theoretically, to the new
state. The people residing in the old thirteen colonies became the
people of the United States; those who had been subjects of the monarchy became citizens of the republic. Whoever chose to remain
on the soil by residence accepted protection, and owed allegiance.
It is a question, however, if, in the current thought and practice of
the day, this allegiance was not in reality transferred to the thirteen
sovereign commonwealths.
As anyone born in the dominion of the king was ipso facto the
king's subject, so anyone born on American soil now became a
natural born American citizen. Under the Confederation the power
to regulate naturalization by its own laws which each colony had
claimed remained with the separate states. A committee of the
Continental Congress proposed to Congress in 1776 that "All persons abiding within any of the United Colonies, and deriving protection from the laws of the same, owe allegiance to the said laws,
and are members of such colony."51 The acceptance of this proposal by Congress thus established an inter-citizenship. The committee then went on to declare that from persons making a "visitation or a temporary stay" only a secondary allegiance was due.
In the Articles of Confederation it was provided that "'the free inhabitants of each of these states, paupers, vagabonds, and fugitives
from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several states."
If a person was a resident citizen of one of the colonies at the
time of the severance from the mother country and sanctioned,
expressly or impliedly, the Declaration of Independence, he thereby
became a native of the United States.52 In a Massachusetts case,
it was held that if a person was born in one of the colonies and withdrew, never returning after the Declaration of Independence, he
was nevertheless a subject by birth and owed allegiance to the
state as successor to the king.53 Likewise, in Mcllvane v. Coxe,5'
it was held that an antenatus owed allegiance to the individual
state in which he was born and consequently to the United States,
and that if he withdrew from the country and never returned prior
to the Treaty of Peace, such action did not affect his allegiance.


"Jrs. Cong. June 24, 1776.
52Teare v. White, 4 N. C., 210; Boyd v. Nebraska, 143 U. S., 178.
S3Ainslie v. Martin, 9 Mass., 454.
542 Cr., 280.
17




These cases were substantially overruled in Inglis v. Sailors' Snug
Harbor,55 where the court declared the settled doctrine to be that
a person born here, but who left the country before the Declaration of Independence, and never returned, became an alien, and
unable, consequently, to take land by descent.56
Thus the distinction between citizens and aliens arose with the
begining of our existence as an independent nation. By the treaty
of 1783 Great Britain and the United States, respectively, were entitled to the allegiance of all persons who, at the time of the treaty,
were adhering to their respective governments; those who did not
adhere to a government were aliens to it.57 This arrangement put
an end to the double allegiance growing out of the Revolution.
All the inhabitants had a reasonable period in which to elect between
the new government and the old.58
When the federal constitution was adopted the exclusive jurisdiction of national citizenship passed to the federal government.59
Before 1789 there was no uniform rule of naturalization and the
citizenship was first of all that of a state.60 After Congress had established a uniform rule of naturalization, the states came to require, in their new constitutions, citizenship of the United States
in addition to a period of residence in the states, though for some
553 Pet., 99.
56The principle of the common law that the division of an empire worked
no forfeiture of previously vested rights of property, applied to the lands which
British subjects had acquired prior to the Revolution, made such holdings remain in their British owners unimpaired after the Revolution.
57Kilham v. Ward, 2 Mass., 236.
58Inglis v. The Sailors' Snug Harbor, 3 Pet., 99. According to the American doctrine the antenati ceased to be British subjects at the time of the Declaration; according to the British doctrine, at the Treaty of Peace. Thus, by our
contention, a person born here but who left the country before the Declaration,
and never returned, became thereby an alien.
59In Minor v. Happersett, 21 Wall., 162, it was said: "whoever then, was
one of the people of either of these states when the constitution of the United
States was adopted, became, ipso facto, a citizen, a member of the nation created
by its adoption. He was one of the persons associated together to form the nation, and was consequently one of the original citizens. "
60In a contested election case that came before the first Congress there was
involved the citizenship of one who had gone abroad while a minor and was away
when the Declaration was signed and during the whole course of the war. The
question arose: Was he a citizen of the United States? The constitution of
South Carolina, of the period, was silent as to citizenship but permitted voting
to one who had resided a year in the state and paid a certain tax. In the debate over this case, Mr. Madison declared (An. of C., 1; 404) that as to whether
the contestant was a citizen of the United States depended upon the laws and
constitution of South Carolina so far as these bore upon the point, and upon general principles, so far as these were applicable.


18




time after 1789 they continued, under their naturalization laws, to
admit aliens to citizenship.6s
It is apparent, therefore, that we have a double citizenship,
one pertaining to the state and one to the federal government.
Speaking on this point, Chief Justice Waite said:62 "We have in
our political system, a government of the United States and a government of each of the several states. Each one of these governments
is distinct from the other and each has citizens of its own who owe
it allegiance and whose rights, within its jurisdiction, it must protect.
The same person may be at the same time a citizen of the United
States and a citizen of a state; but his right to citizenship under
one of these governments will be different from those he has under
the other." The point that we have to consider is what privileges
and immunities under the federal government a naturalized citizen
of a state has. Before the adoption of the federal constitution it is
undisputed that each state might confer citizenship upon whom it
chose. This right was limited by the provision in the constitution
conferring upon congress the power "to prescribe a uniform rule
of naturalization,"' that is, a uniform law for the acquisition of citizenship by aliens. If it were in the power of the states to make citizens out of aliens, and by virtue of such citizenship to make them
citizens of the United States, this purpose of the federal government
in conferring the power on Congress would be defeated.63
The federal constitution further provides that "the citizens of
each state shall be entitled to all the privileges and immunities of
citizens in the several states." The question is, what privileges,
if any, this provision extends to non-naturalized aliens who possess
state citizenship. This question was given very thorough consideration in the Dred-Scott case64 where Chief Justice Taney said: "In
discussing this question, we must not confound the right to citizenship within its own limits (state limits) and the rights of citizenship
as a member of the Union. It does by no means follow because he
has all the rights and privileges of a citizen of a state, that he must
be a citizen of the United States. He may have all the rights and
privileges of the citizen of a state, and yet not be entitled to the
rights and privileges of a citizen in any other state. For, previous
to the adoption of the constitution of the United States, every state
"6Ann. of C., 2, 1778-9; State v. Deshler, 25 NJL., 186.
62U. S. v. Cruikshank, 92 U. S., 542.
63See Story, Const. Bk. 3, ch. 16; Kent's Cor., 14th ed., Lecture 25.
6419 How., 393.


19




had the undoubted right to confer on whomsoever it please the
character of citizen, and to endow him with all its rights. But this
character, of course, was confined to the boundary of the state and
gave him no rights or privileges in other states beyond those secured to him by the laws of the nations and the comity of states.
Nor have the several states surrendered the power of conferring these
right and privileges by adopting the constitution of the United States.
Each state may confer them upon an alien, or anyone it thinks proper,
or upon any class or description of persons; yet he will not be a citizen in the sense in which that word is used in the constitution of
the United States, nor entitled to sueassuch in one of its courts,
nor to the privileges and immunities of a citizen in the other states.
The rights which he would acquire would be restricted to the state
which gave them. The constitution has conferred upon Congress
the right to establish a uniform rule of naturalization, and this right
is evidently exclusive, and has always been held by this court to
be so. Consequently no state since the adoption of the constitution can, by naturalizing an alien, invest him with the rights and
privileges secured to a citizen of a state under the federal government, although so far as the state alone is concerned, he would undoubtedly be entitled to the rights of a citizen and clothed with all
the rights and immunities which the constitution and laws of the
state attach to that character."
Judge Curtis, in his able dissenting opinion, did not dispute
the position of the majority of the court on this point of federal
as against state citizenship. He said: "Again, it has been objected
that if the constitution has left to the several states the rightful power
to determine who of their inhabitants shall be citizens of the United
States, the state may make alien citizens. The answer is obvious.
The constitution has left to the states the determination of what
persons, born within their respective limits, shall acquire by birth,
citizenship of the United States. It has not left to them any power
to prescribe any rule for the removal of the disabilities of alienage."'
The learned Justice did maintain, however, in the same case that
"every free person born on the soil of a state, who is a citizen of
that state by force of its constitution, or laws, is also a citizen of
the United States. "5 The opinion of Chief Justice Taney, which
seems to have been the opinion shared by the members of the pro65Justice Swayne, in the Slaughter House cases (16 Wall., 36, 126) declared
that " a citizen of a state is ipso facto a citizen of the United States, " and Justice
Story had also said, "Every citizen of a state is ipso facto a citizen of the United
States."' Const. sec. 1693.


20




fession at that time and since, has already been cited. The majority
of the court in the Slaughter House cases also confirmed the position that the citizenship of the United States and of a state are distinct from each other.
Down to the time of the Fourteenth Amendment there was
still some question as to whether state citizenship entitled one to
the privileges of United States citizenship, as had been urged in the
Dred Scott case. Only two or three cases as to what constituted
United States citizenship had been passed upon directly. The
leading case was that of Lynch v. Clark66 decided in 1844, in the
state of New York. In this state it was held that the common law
was, so to speak, the law of the United States, and, therefore, that
mere birth in this country was sufficient to confer the privilege of
citizenship upon Julia Lynch, though her parents were Birtish subjects on a temporary sojourn in New York.67
By prescribing qualifications for president, senators, and representatives, the constitution recognized United States citizenship.
Nevertheless the uncertainty as to exactly how this citizenship arose
led to the declaration in the Civil Rights Act of 1866 that " All persons born in the United States and not subject to any foreign power,
excluding Indians not taxed, are declared to be citizens of the United
States." This was soon followed by the Fourteenth Amendment
which decared that "All persons born or naturalized in the United
States and subject to the jurisdiction thereof, are citizens of the
United States and of the state wherein they reside."  Owing to the
phraseology used ('subject to the jurisdiction thereof'), there was
at first somedoubt as to whether this provision was intended to be
declaratory of the common-law or of the so-called international-law
doctrine. The generally accepted opinion seems to have been that
birth within the United States, though of alien parents, was sufficient of itself to confer the right of citizenship, though in the Slaughter House cases it had been declared that "The phrase 'subject to
the jurisdiction' was intended to exclude from its operation children
of ministers, consuls, and citizens or subjects of foreign states born
within the United States. "
In the case of United States v. Wong Kim Ark68 decided in 1898,
the Supreme Court set the question at rest. In the course of its long
opinion, reviewing all the cases bearing on the point, the court said:
661 Sandf., Ch. 583.
67See also U. S. v. Rhodes, 1 Abb. (U. S.) 28.
68169 U. S., 649.


21




"The Fourteenth Amendment * * * contemplates two sources of
citizenship and two only: birth and naturalization. Citizenship by
naturalization can only be acquired under the authority and in the
forms of law. But citizenship by birth is established by the mere
fact of birth under the circumstances defined in the constitution.
Every person born in the United States and subject to the jurisdiction thereof, becomes at once a citizen of the United States and
needs no naturalization. ** * )" Since the adoption of this amendment, therefore, the United States citizenship has been placed on
an independent basis by making the conditions upon which it rests
entirely independent of state control. The result of the Fourteenth
Amendment is not only to make such persons described citzens of
the United States but ipso facto of the state wherein they reside
If the residence within a state, which is required in order that one
may become a citizen of the state, need not be confirmed by the state,
it follows that the federal constitution determines who may become
such citizens."
THE CONTROL OF SUFFRAGE.-The provisions in the federal constitution bearing upon aliens are few and mostly indirect. It is
provided that the president and vice-president must be natural
born citizens,69 that a senator must have been a citizen for at least
nine years, and a representative for seven.70 The regulation of elections, including the prescribing of qualifications for suffrage, is left
to the states, except for the provisions which have already been
noted and for the limitations contained in the Fourteenth and Fifteenth Amendments. The second section of the Fourteenth Amendment providing that if any state denies the right to vote to a citizen
of the United States, above the age of twenty-one years, except for
participation in rebellion or other crime, its representation in Congress shall be reduced in proportion to the number of citizens so
disfranchised compared with the whole number of adult male citizens, does not confer the right of suffrage upon any person, nor
affect the power of the states to determine who may vote within their
limits.71 The states, then, controlled the suffrage before the present
national government was established and still retain the power to
do so, free from federal control or supervision, except as noted;
that is, they may determine for themselves the nature of their political privileges and who may exercise them. Thus, for instance,


9Art. II., sec. 1, cl. 4.
70Art. I., sec. 3, cl. 3, and sec. 21 cl. 2.
7110 Cyc. 572; Van Valkenburg v. Brown, 43 Cal., 43.


22




the states determine the qualifications of voters, and are the judges
of such qualifications, as well as the time, place, and manner of holding elections. That one has federal citizenship does not entitle one to
the privileges of state suffrage or qualify him to hold public office.72
It follows, therefore, that a state may grant its potitical privileges
to aliens, if it so wishes.
The provisions of the federal constitution73 do not give Congress
any power to prescribe the qualifications of voters at elections of
members of Congress, but they do give power to regulate the time,
place and manner of conducting such elections, and this power has
been used. This general principle of the state control of suffrage
was not changed by the Fifteenth Amendment, but the power of the
state to withhold the suffrage is there subjected to restriction.
While the states may confer political rights upon those who are
not citizens of the United States,73 such state citizenship does not
necessarily confer the right of suffrage; nor is the right to vote a
necessary incident of citizenship, and when an unnaturalized foreigner is given the right to vote he is not thereby made a citizen,74
tho the courts of Wisconsin and Louisiana have held that a person
who, by the constitution of their states, is an elector is also a citizen thereof, even if not a citizen of the United States.75  On the other
hand, the Circuit Court of Appeals has decided76 that as regards the
jurisdiction of the federal courts, a person who has merely declared
his intention to become a citizen is an alien, although he may have
voted for members of Congress and for state and county officers
conformably with the constitution and laws of the state wherein
he resides.
In the Slaughter House cases it was held that the privileges
and immunities guaranteed to "the citizens of the several states,'
by the Fourteenth Amendment, are those arising out of the fundamental character of the federal government, while the privileges
and immunities of citizens of the states exist rather by the prin72Minor v. Happersett, 21 Wall., 178.
73Art. I., sees. 2, 3, and 4.
73aUnder section 2166 R. S., providing that any alien over the age of twentyone who has been honorably discharged from the army may become a citizen
after one year's residence, without any previous declaration of intention, an
alien who has been so discharged is not entitled to vote unless he has been naturalized, since the statute only exempts him from making the preliminary declaration. Berry v. Hull, 6 N. M., 643.
74Lang v. Randell, 4 Dill., 425; In re Wehlitz, 16 Wis., 443.
75See, in addition to the Wisconsin case supra, State v. Abbott, 41 La., Ann.,
1096.
7656 Fed. Rep., 576.


23




ciples of the common law, than by any positive enactment. As
the fundamental rights referred to in the federal constitution are
civil and not political, each state may regulate for itself and according to its own ideas of public policy the general qualifications for
holding office and for exercising the electoral franchise.  In most of
the states the latter right is restricted to citizens, for aliens, though
residents, are presumed not to be acquainted with.the form      of
government and its policy to such an extent as to enable them to
have a permanent interest in its welfare.77  When a state constitution confers the franchise upon "inhabitants" and "residents,"
these terms have been interpreted as being impliedly limited to such
persons as are citizens.78
As a general rule, found in all representative governments,
only electors can be elected to office; and whatever other qualifications or disqualifications may be specified, every person who is
voted for must at all events possess the qualifications and be free
from the disqualifications which attach to the character of an elector.79 In the case of Walther v. Rabolt,80 Judge Sanderson said:
"If they (aliens) desire to secure political rights, they must cease to
be aliens and become citizens in the mode prescribed. Until then
they cannot vote nor hold office. They can neither choose nor be
chosen, for that is to exercise political power; and they are not of the
people who alone may exercise it."
The political rights of the inhabitants of the territories rest
in the discretion of Congress.81 The policy of Congress has been
to prescribe the qualifications of electors at the first election after
the organization of a territory, and thereafter to allow the legislative assembly of the territory, under certain restrictions and limitations, to regulate and fix the qualifications for the exercise of
the franchise and for holding office. Congress does not thereby
cease to have power to legislate directly on such matters if it chooses
to do so.82 In recent years all the organic acts of the territories
77Cook v. State, 90 Tenn., 407.
78See the Massachusetts Constitution of 1780, Art. II., sec. 2, cl. 1, and the
Opinion of the Justices, 7 Mass., 523, and 122 Mass., 591. Fora contrary holding, see Spragins v. Houghton, 3 Ill., 377; Stewart v. Foster, 2 Binn., 110; McCarthy v. Froelke, 63 Ind., 507.
79Throop, Public Officers, sec. 72.
8~30 Cal., 185.
"Murphy v. Ramsey, 114 U. S., 15; Innis v. Bieton, 2 Idaho, 442.
8aPeople v. State Comrs., 7 Utah, 279; 22 Stat. 30 and 24 Stat. 635.


24




have limited the rights to vote and to hold office to citizens or to
those who have declared their intentions to become citizens.83
We have seen in this chapter that in ancient and mediaeval
times an alien had little or no protection from the laws of the country in which he sojourned, while in modern times most states tend
to give him full civil rights. In England, the common law disability as to holding real estate has been swept away, and in most
of our states the same result has been attained. How it is in the
territories will be shown in subsequent pages.
We have also seen how citizenship arose in the colonies and how,
with the birth of the new federal state, there arose a national as well
as a state citizenship. We have seen that the citizenship of these
two sovereignties is distinct; that the control of the suffrage is left
almost entirely to the states and territories; and finally, that the
states may confer state citizenship and political rights upon aliens.
So may the territories confer, under Congressional authority, the
latter rights.
83The regulation of jury service has likewise been left by Congress to the
territorial legislatures since 1836. It has been held that discrimination on the
part of a territorial law against a person in the matter of jury service on account
of alienage is not prohibited by the Fourteenth Amendment. State v. Ah
Chew, 15 Nev., 50.


25




II. FEDERAL LEGISLATION: SHIPPING, PATENTS, TRADE MARKS
AND COPYRIGHTS
In our federal system of government, the regulation of ordinary
civil and political rights falls within the province of state, not national government. We must, therefore, look to state legislation
and not to national for most of the statutory control exercised over
aliens. Congress has general control over the territories, however,
and has passed legislation in regard to shipping, patents, copyrights,
trade-marks, public lands, and some miscellaneous matters, that
affects aliens whether resident in the states or in the territories.
SHIPPING.-After the War of Independence Great Britain enforced against the United States a modification of her shipping
policy in force with her colonies. The modification was to the disadvantage of the states, however, for while she allowed the products
of her dependencies to be brought directly to this country and the
products of this country to be carried back directly to them, she
required that both operations should be carried on exclusively in
British ships, to the consequent exclusion of American shipping
from the transportation of even American products.'
The federal constitution gives Congress the power " to regulate
commerce with foreign nations, and among the several states, and
with the Indian tribes."  This power is exclusive and paramount.
In accordance with it, Congress has passed many laws regulating
shipping and navigation, and prescribed the conditions under which
vessels might enroll so as to secure the benefits of American registry.
The first act on this subject was that of September 1, 1789,2
for "Registering and Clearing Vessels, Regulating the Coasting
Trade," etc. It provided that only vessels built within the United
States, and belonging wholly to citizens thereof, or, if not built
wholly within the United States, belonging to a citizen on May 16,
1789, and of which the master is a citizen of the United States,
might be registered and deemed to be a vessel of the United States,
This is the second of a series of four papers, the first of which may be found
ante p. 493.
1An. of C., I, 314.
2I. Stat., 55.


26




and entitled to the benefits of such.3  Section 5 of this act of 1789
provided that no ship owned by any citizen of the United States
usually residing in any foreign country should, during the time
the owner continued to reside abroad, be deemed a vessel of the United States and entitled to registry, unless the owner was an agent
or partner in some house consisting of citizens of the United States,
carrying on trade in the said states.4
The provisions of the above act were reenacted in the law of
December 31st, 1792.5 The policy of this legislation was taken from
the British enactments regarding shipping where it had been the
declared policy for a long time, being embodied in 3 and 4 Wm.
IV., chs. 54 and 55, entitled "An Act for the Encouragement of
British Shipping and Navigation." It would seem that there was
practically no discussion with regard to the policy in the early sessions of Congress, the British experience doubtless being accepted
without question in the matter.
By the act of February 18, 1793,6 providing for enrolling and
registering vessels for the coasting trade and fisheries, the requirement is made that the owner and master should be citizens of the
United States.7
By the act of March 27, 1804,8 no ship or vessel was to be entitled to registry as a ship of the United States, if owned by any
person naturalized in the United States and residing for more than
one year in the country from which he originated, or for more than
two years in any foreign country, unless in the capacity of consul
or other public agent of the United States. The provisions of this
act, embodied in section 4133 R. S., were repealed March 3, 1897.
In the case of United States v. Gilles,9 the court declared that
an American vessel did not lose her character as such by the fact that
her master, a native born citizen of the United States, had married
and resided in a foreign country.  In the case of "The Frances,'"~
however, it was held that a naturalized citizen who returned to his
native country for purposes of trade, though intending to return
3The substance of the foregoing is embodied in Section 4131 R. S., as amended
May 28, 1896, while Section 4132 R. S., makes provision for vessels captured
in war, and for vessels the part ownership of which lies in foreigners.
4Repealed March 3, 1897-29 Stat. 687.
51. Stat. 287.
61 Stat. 305.
7 'The Schooner Two Friends," 1 Gall 118. Section 4377 R. S. provides
that if a licensed vessel is transferred in whole or in part to a person who is not
a citizen or resident in the United States, it is subject to forfeiture.
82 Stat., 296.
9Pet., C. C. 159, 1815.
108 Cr., 335.
27




again to his adopted country, but who continued in the former country a year after the breaking out of war, for the puprose of winding
up his business, had gained a domicile in his native country and his
goods were therefore subject to capture and condemnation."1
By the act of March 12, 1812,12 it was provided that a steamboat employed exclusively on a river or bay of the United States,
and owned in whole or in part by an alien resident within the United
States, might be registered the same as if it belonged to a citizen
of the United States. This was reenacted in section 4316 R. S.
During the progress of the Second War with Great Britain, the
act of March 3, 1813,13 provided that after the war only citizens of
the United States, (or persons of color, natives of the United States),
should be employed in the public or private vessels of the United
States. No naturalized citizen was to be employed unless he exhibited a certified copy of the act by which he had been naturalized.
This was not intended to prohibit the employment of foreign seamen in American vessels while these were in foreign ports, in order
to supply a temporary deficiency; and the act was not to apply to
nations which had not made similar discriminations against us.
The act of March 1, 1817,14 restricted the importation of merchandise to vessels of the United States or to such foreign vessels
'S belonged to the citizens or subjects of that country of which the
goods are the products. Likewise, this regulation was not to extend to the vessels of nations which had not adopted similar regulations with regard to us. It was superseded by the act of February
i7, 1898. The act further provided that no merchandise should
be imported from one port of the United States to another in a vessel
belonging in whole or in part to a subject of any foreign power.
This was re-enacted in Sec. 4347 R. S.
The first act relating to tonnage duties was that of July 20,
1789.15 It imposed on ships built within the United States and belonging wholly to citizens thereof, a duty of six cents per ton; on
ships thereafter built in the United States, but belonging wholly
or in part to subjects of foreign powers, thirty cents per ton; on all
other ships, fifty cents per ton; and on foreign ships engaged in the
coasting trade, fifty cents per ton. An additional duty of 50 cents
per ton was levied upon foreign ships under the denomination of
"See The Dos Hermanos, 2 Wheat, 76.
122 Stat. 694.
32 Stat. 809.
143 Stat. 351.
51 Stat. 27, repealed July 20, 1790.


28




"light-money" by the act of March 27, 1804.16  By section 4219
R. S. this is made to apply to American registered ships upon which
any officer is not an American citizen.
When the act of July 20, 1789, came up for discussion in Congress, it was stated that the small discrimination in tonnage duties
was made with the object of partially correcting such inequalities
in our navigation and trade with foreign nations as prevailed."
In the following year (May 10, 1790) it was stated by Mr. Sherman
that the measure had in view two objects-one the building up of
our carrying trade, the other, encouragement of ship-building. At
the same time, the necessity of retaliating against foreign discriminatory duties was pointed out.l8
In the act of 1817 (supra) provision was made for a diminution
of tonnage duties in the coastwise trade when three-fourths of the
crew should be American citizens; and a duty of fifty cents per ton
was levied on vessels of the United States engaged in the foreign
trade, unless two-thirds of the crew should be American citizens.
This provision was repealed by the act of June 28, 1864.19 On
May 31, 1830,20 tonnage duties were abolished on vessels of the United
States of which the officer and two-thirds of the crew should be citizens of the United States, and likewise, on the vessels of such foreign nations as maintained no discriminatory duties against us.
This, likewise, was repealed by the act of June 28, 1864.
Section 4219 R. S. provides a tonnage duty of thirty cents per
ton on vessels built within the United States but belonging to foreign
subjects and on other vessels not of the United States fifty cents
per ton; on all foreign vessels coming from any place to which our
vessels are not ordinarily permitted to enter, two dollars per ton;
and upon vessels not of the United States which should be entered
in one district from another district, having on board goods taken
in one district to be delivered in another, fifty cents per ton. In
addition to these tonnage duties, a tax of thirty cents per ton is
levied or vessels from any foreign place, and any vessel containing
an officer not a citizen of the United States is subject to a further
tax of fifty cents a ton.
Section 4220 R. S. exempts vessels belonging to citizens of the
United States and engaged in coasting or fishing from tonnage taxes
162 Stat. 299.
17An. of C. I., 335a.
"An. of C. II, 1560.
1913 Stat. 201.
204 Stat. 425.
"Act July 14, 1870, 16 Stat. 269.
29




and duties, if such vessels are duly licensed, registered, or enrolled.2'
The acts of June 19, 1886,22 and February 17, 1898,23 prohibit foreign vessels from transporting goods or passengers from one port
of the United States to another either directly or by way of a foreign port.
In lieu of the duties exacted in the foregoing sections, the act
of June 26, 1884,24 imposes a duty of four cents a ton on vessels
from foreign ports on or adjacent to the American continents, and
a duty of six cents on those from any other foreign port. The act
of June 19, 1886,25 provides for the abolition of tonnage taxes and
light-house dues upon terms of reciprocity, and section 4228 R. S.
provides for the suspension of discriminatory duties against the vessels or goods of any foreign nation when the president shall have
been notified that such foreign nation has suspended or abolished
its discriminatory duties against us.26
It has been stated that the policy of the United States, respecting commercial relations with other nations, has always been to offer
to all nations, and to ask from them, entire reciprocity. Congress
has never made discriminating duties except as an inducement to
other nations to modify or repeal their restrictions upon commerce
and navigation.27 
The act of 1864(supra),repealing the act of 1830 which abolished
tonnage dues on vessels of the United States of which the officers
and two-thirds of the crew should be citizens of the United States,
provided, however, "That officers of vessels of the United States:"                'c: "- u ln States. The policy of
shall in all cases be citizens of the  ited States.'   e policy of
such legislation was well brought out in the case of" The Dubuque. '28
Here the court said that the registration laws had for their object,
among other things, the building up and fostering a commerce
purely American.    With this object in view, great importance has
been attached, and justly so, to the provision in regard to the designation of the master and his political status. The owner is required
2224 Stat. 81.
2330 Stat. 248.
2423 Stat. 57.
2524 Stat. 82.
26That statutes on the subject of tonnage duties are subject to modification
by treaty provisions and the reciprocal laws of the countries to which such vessels belong, see U. S. v. Hathaway, 3 Mason 324; and North German Lloyd Co.
v. Hedden, 43 Fed. Rep., 17.
27There is no provision in our laws preventing foreign built vessels from
being purchased, owned, and navigated by citizens of the United States, though
they are not entitled to registry or to enrollment and license as American vessels,
because not built in the United States. —"The Conqueror" 166 U. S., 110
282 Abbott D. C., 1870


30




to make oath as to who is the master and as to his being a citizen
of the United States, and the master himself, if within the district
at the time of application for registry, must himself take oath as
to citizenship.
By the act of April 7, 1874, an alien who had declared his intention and who had been a permanent resident of the United States
for six months prior to the granting of such license might be licensed,
as if already naturalized, to serve as an engineer or pilot upon any
steam vessel of the United States. Thus, as the law stood prior to
the act of June 26, 1884,30 two classes of persons were competent
to receive licenses as engineers or pilots on American vessels, namely,
citizens, and aliens who had declared their intention and had resided
permanently in the United States for six months prior to the granting
of the license. The amendatory act of 1884 did not affect either of
these two classes but made provision for a third class of persons
who might be officers under peculiar circumstances and for brief
periods. That is, it provided that aliens, whom the law excluded
from general and permanent employment on United States vessels,
might be allowed to fill vacancies in the position of officers below
that of master, temporarily and in emergencies.31
The act of May 28, 1896,32 amending R. S. 4131, continues the
requirement of citizen ownership and specifies that all the officers
having charge of a watch, including pilots, shall in all cases be citizens of the United States, either native born or those whose naturalization shall have been fully completed. This requirement was not,
however, to repeal the provision of the act of 1884 regarding temporary vacancies below the grade of master.
A tax on a vessel employing an alien mate, imposed under section 4219 R. S., saying that a "vessel, any officer of which shall not
be a citizen of the United States, shall pay a tax of fifty cents per
ton," should not be remitted because such alien had declared his
intention of becoming a citizen of the United States and had for
more than three years served continuously on board an American
merchant vessel, but had never actually been admitted to citizenship.33 A vessel used exclusively for pleasure is not, however, subject to such duties.34  By the amendatory act of June 19, 1886,35
it was stated that the exemption noted above should not apply to
29Also Adams v. "The Wyoming," 2 N. J. L. J., 275
3023 Stat. 53.
3121 Op. A.-G., 166.
3229 Stat. 188.
3321 Op. A.-G. 412.
3418 Op. A.-G. 564.


31




any yacht built outside of the United States and owned or used by
a citizen of the United States.
Thus it is seen that full citizenship is required in order that one
may be an officer, in permanent employment, on an American vessel.
If a foreign seaman declares his intention and serves three years on
board a merchant vessel subsequent to such declaration, he is to be
deemed a citizen for the purpose of protection as an American citizen.
This is not full citizenship, however, and before he can become an
officer this alien seaman must comply with the conditions necessary
to make him a citizen for all purposes whatsoever.36
PATENTS.-Under the clause of the constitution giving Congress
the power "To promote the progress of science and useful arts by
securing for limited times to authors and inventors the exclusive
right to their respective writings and discoveries," Congress may
grant patents for inventions and may make all laws necessary and
proper for carrying such express grant of power into execution.3
The early patent laws were in imitation, for the most part,
of the system prevailing in Great Britain.38 By the first act passed
on the subject, April 10, 1790,39 patents might be granted to "any
person."   In the next law on the subject, February 21, 1793,40
the right was restricted to persons "being a citizen or citizens of the
United States." In explaining the reason for this restriction it
was stated in the debate in the House that the object was to prevent
foreigners from obtaining patents in this country for inventions
upon which they had already secured patents in Europe, for this
wVouIld preventt AmericanL citizens from obtallig patents for the same
or similar inventions.41 The privilege was again extended by the
law of April 17, 1800,42 which provided "that * * * the rights
and privileges given to citizens of the United States, respecting
patents for new inventions, etcetera, shall be extended to aliens
who, at the time of petitioning, shall have resided for two years
within the United States.'
In the case of Shaw v. Cooper43 the court said: "The counsel
seems to consider this point of great importance, as the plaintiff
was an alien, when the first patent was obtained, but had become
3524 Stat. 81.
3617 Op. A.-G 534; 23 Op. A. G., 403.
37U. S. v. Bell Tel. Co., 128 U. S., 358; U S. v. Duell, 172 U. S., 583.
38An. of C., 2d ses., 855.
391 Stat. 109.
401 Stat. 318.
41An. of C., 2d C. 855.
422 Stat. 37.
437 Pet., 292.
32




naturalized before the date of the second; and consequently, that
this right under the second patent cannot be governed by the law
applicable to aliens. As the inquiry on this head is, whether the
second patent has relation to the first, it is not necessary to look
into the laws to ascertain the respective rights of aliens and citizens
on this subject. In regard to the right of the patentee to surrender
a defective patent, and take out a new one, there can be no difference
between a citizen and an alien. * * * It would seem, from
the above provisions, that citizens and aliens, as to patent rights,
are placed, substantially, upon the same ground."
The next important modification of the law was made by the
act of July 13, 1832,44 by which the provisions of the act of 1800
were extended "to every alien who at the time of petitioning for
a patent shall be resident in the United States, and shall have declared his intention according to law to become a citizen thereof."
In explaining this measure, Mr. Taylor stated in the House on January 6, 1832,45 that the first patent law, that of 1790, extented the
same privilege to aliens as to citizens,following in this respect the
British precedent. By the act of 1793 these privileges were restricted
to citizens; by that of 1800 they were extended to aliens who had
resided two years in this country, on their making oath or affirmation
that such invention or discovery had not before been made in this
or any other country, in this respect making a difference between
the alien and citizen, the latter being required to swear only that
he was the first inventor. Since the passage of this law of 1793,
at least seventeen acts had been passed dispensing with the provision requiring two years residence and authorizing the issuing of patents where the petitioner was a resident here at the time of his application. To make such repeated private acts unnecessary was the
object, Mr. Taylor stated, of the bill that the presented. It authorized the issuing of patents where the applicant was at the time a
resident of the United States, had complied with the naturalization
laws by declaring his intention to become a citizen, and had further
complied with the act of 1793 by swearing that his invention or discovery had not been made before in this or any other country.
The act of July 4, 1836,46 discriminated against aliens in the
matter of fees. A citizen, or one who had declared his intention to
become such, was required to pay a patent fee of $30; an alien,
if an inhabitant of Great Britain, $500; if of any other country,
444 Stat, 577..                                  * 
45Cong. Deb. 8, 1500.                             ' 
465 Stat., 117.


33




$300. An alien patentee was also compelled to "put, and continue
on sale to the public on reasonable terms the invention or discovery
for which the patent is issued."47 This discrimination in regard to
fees was opposed both in the House and Senate. In the latter,
it was argued that new inventions were desirable for the country,
therefore the patent privilege should be extended to all without
any discrimination.48  In reply to this the argument was advanced
(based on a report from the Secretary of State) that the fees should
be increased so as to discourage the flood of applications for useless
inventions. As to foreigners, it was said that Congress had heretofore legislated for each individual case, but that it was now proposed
to enact a general law applicable to all in the future. As to the
amount of fees exacted of foreigners it was contended that while
high, as compared with those required of citizens, they were not
so high as those prevailing in some foreign countries. (Ibid).
This discrimination in fees was continuously protested against
by alien residents until its repeal March 2, 1861,49 as to those countries which did not discriminate in such matters against us. The
act of 1836 also denied to aliens who had not resided in the United
States one year and made a declaration of their intention to become
citizens, the right to file caveats for the protection of their immatured inventions. This was repealed by the act of July 8, 1870,50
which gives to aliens, who have resided in the United States a year
preceding the filing of a caveat, and have made oath of intention
to become citizens, the same privileges in this respect as are enjoyed by citizens. In the case of Thomas v. Reese51 the commissioner declared: "The law makes no discrimination between citizens and foreigners as applicants in the patent office. * * *
An invention made in the United States by a foreigner stands on
the same footing in the patent office of the United States, as an invention made in the United States by a citizen. An invention made
in a foreign country by a citizen of the United States stands on the
same footing in the patent office as an invention made in a foreign
country by a foreigner.'
47'To put into market" was interpretted to mean to be willing to sell at
a reasonable price.-Tatham v. Lowber, 2 Blatch., 49. In the same case the
court held that an American assignee of an alien inventor is not within the clause
of the act of 1836 requiring the patentee, if an alien at the time the patent was
granted, to put and continue on sale the invention for which the patent issued;
that clause applied only to an alien patentee.
48Mr. Dickerson, Cong. Deb., VI., 378.
4,.12 $tat. 246.
's::   45t tt., 203; 4902 R. S.
'147 Pat. Off. Gaz., 1880.


34




This was reaffirmed in Ex Party Nagel52 where it was again said:
"The law makes no distinction between citizens and foreigners in
the patent office; but it makes a wide distinction between inventions
made in the United States and those made in a foreign country,
whether made by citizens of the United States or by foreigners."
Section 4892 R. S. requires that the applicant for a patent
shall state of what country he is a citizen. In Child v. Adams53
it was held that a false oath as to citizenship renders the patent
void; but in Tonduer v. Chamberset54 the court said: "At any
rate, the citizenship of the applicant for a patent is no longer a matter
of any real importance (that is, since the act of 1870), and a mistake
touching the same is harmless."5
It looks almost like excessive liberality to grant foreigners the
benefits of our patent laws upon the same basis as citizens without
any discrimination in fees or other exactions, and without the foreigner being compelled in any way to obtain the protection of his
home government by treaty stipulations, or otherwise. Commenting upon the extreme liberality of our laws, it has been said: "A
single restriction which has sometimes been regarded as a discrimination against the alien exists in the patent laws of the United
States. It is that provision of the statute whereby the term of a
patent for an invention which has been previously patented abroad
is made to expire with the expiration of the foreign patent, or if
there be more than one, with the term of that having the shortest
time to run. This, however, is not in fact a discrimination against
a foreigner, since it applies equally to the citizen, and has been made
effective by the courts to terminate the patent rights of citizens.
It amounts to the claim by the United States, on behalf of her own
people, that the invention shall become the property of the public
here when permitted to become so elsewhere. This is undoubtedly
just in theory, and the same provision is found in the patent laws
of nearly every American nation."56
TRADEMARKS.-Alien friends are entitled, under the laws and
the constitution, to the same protection of their rights as are citizens. Judge Woodbury says:57 "Comity and courtesy are due to
5217 Off. Gaz., 198.
531 Fish. Pat. Cas., 189.
5437 Fed. Rep., 333.
55That a foreign patentee may take out an American patent unless his invention has been in public use in this country for two years, see Henry v. Providence Tool Co., 3 Bann. and A, 510; 14 Off. Gaz., 855.
5651st Cong. Sen. Exec. Doc. vol. 8, 57.
57Taylor v. Carpenter, 2 Wood. and M. 1.


35




all alien friends, rather than imposition and pillage. To take their
marks and use them as and for our own, and to their damage, is
like praying on a visitor, or inhospitably plundering a ship on shore."'
The entire legislation of Congress in regard to trade marks
originated as recently as July 8, 1870, in "An Act to Revise, Consolidate, and Amend the Statutes Relating to Copyrights.' 58 This
statute provided for the registration in the patent office of any device in the nature of a trademark to which any person has, by use,
established an exclusive right, or which the person so registering
intends to appropriate to his exclusive use; and it makes a wrongful
use of a trade mark so registered by any other persons, without
honest permission, a cause of action in a civil suit for damages59
An act supplementary to the above was passed Aug. 14, 187660
"to punish the counterfeiters of trademark goods and the sale or
dealing in counterfeit or trademark goods.' This act provided for
the punishment by fine and imprisonment of the fraudulent use,
sale, and counterfeiting of trademarks registered in pursuance of
the statutes of the United States.  It will be noticed that this penal
act of 1876 refers only to trademarks registered "pursuant to the
statutes of the United States. " The right to property in trademarks
and the civil remedies for their protection exists at common law and
does not depend upon the act of Congress for their enforcement.
In our system of government this property in trademarks rests on
the laws of the different states and, like the great body of rights,
both of person and of property, depends on the laws of the states
for its security and protection.
When, therefore, the validity of the general act of 1870 and of
the penal act of 1876 were questioned in the "Trademark Cases"61
the court declared that a trademark was neither a patent nor a copyright, and that Congress had no power to pass such a statute as to
an ordinary trademark existing by common law rights. The court
said: "It is therefore, manifest that no such distinction is found
in the act, but that its strong purpose was to establish a uniform
system of trademark legislation for the benefit of those who had
already used a trademark, or who wished to adopt one in the future,
5816 Stat. 198.
59Mr. Browne, in his work on "Trademarks" (2d ed., p. 28), says that the
promoters of this act had very little knowledge of the principles of the common
law and not the slightest regard for the constitution; that they did not perceive
what part of the constitution was applicable to the measure. " By a very great
blunder it was classed with inventions and authorship and sandwiched in between
patent law and copyright law in the same chapter."
6~19 Stat., 141.
61100 U. S., 82, 1879.


36




without regard to the character of the trade to which it was to be
applied or the residence of the owner, with a solitary exception that
those who reside in foreign countries which extended no such privileges to us were excluded from them here." Then continuing the
court said: "If that act (the act of 1870) is unconstitutional, so
that the registration under it confers no lawful right, then the criminal enactment (that of 1876) intended to protect that right, falls
with it. "
It would seem that this act of 1876 was not intended to be declared unconstitutional of itself, and it was virtually reenacted by
Congress in passing the supplement to the Revised Statutes on June
7, 1880. The present registration act is that of March 3, 1881.62
It is drawn under the commerce clause of the constitution-the only
one that is sufficiently broad to make its constitutionality beyond
question. That an act, on this subject, to be constitutional must
not interfere in any way with the domestic commerce of a state
was pointed out by the court (supra) in these words: "When,
therefore, Congress undertakes to enact a law which can only be
valid as a regulation of commerce, it is reasonable to expect to find
on the face of the law, or from its essential nature, that it is a regulation of commerce with foreign nations or among the several states,
or with the Indian tribes. If not so limited, it is in excess of the powers of Congress."
The act provides that the owners of trademarks used in commerce with foreign nations, if such owners shall be domiciled in the
United States, or located in a foreign country which affords similar
privileges to citizens of the United States, may register their trademarks.63 Jurisdiction of all cases arising under this act is given
to the federal courts irrespective of the citizenship of the party.64
As soon as the general act of 1881 became a law, the penal act of
1876 immediately came into full vigor and operation again. Under
this law of 1881, citizenship is not requisite to the obtaining of the
privileges of trademark registry. In Taylor v. Carpenter65 the
court says: "First, it is suggested that the plaintiffs are aliens.
Be it so. But in the courts of the United States, under the constitution and laws, they are entitled, being alien friends, to the same
protection of their rights as citizens. * * * There is no difference between the case of a citizen and that of an alien friend where
6221 Stat., 502.
63Sec. 4937 R. S.
"17 App. Cas. D. C., 478.
653 Story, 458.


37




his rights are openly violated. * * * So far as the subject matter of this suit is concerned, there is no difference between citizens
and aliens." Again, in the case of La Croix v. May,66 the court
said: "The fact that the complainant is an alien does not affect
his right of property in a trademark; but that fact, as it establishes
the requisite diversity of citizenship, between the parties to confer
jurisdiction upon this court, is indispensable to the cause of action
alleged. The act of Congress fortifies the common law right to a
trademark by conferring the statutory title upon the owner; but as
was said of a former act, property in trademarks does not derive
its existence from an act of Congress."
While it is a general rule that "there is no difference between
citizens and aliens" as to the right of acquiring a trademark, it
has been held that a foreigner has no common law right to a trademark in the United States, as against a citizen who has adopted
a similar mark in good faith before the alien has sold any goods in
this country.67  In the case of Coffeen v. Brunton,68 the court said:
" It has been stated by Judge Story that where one of our own citizens fraudulently uses the mark of a foreigner to recommend an
article of domestic manufacture, he is liable to an action. In this
respect there is no difference between a citizen and an alien."  Blt
a trademark acquired in this country will not support an action fol
acts committed wholly in a foreign country, for this would be to
extend the laws of this country beyond its borders.'9 An action will
lie, however, where the right was acquired in this country and the
wrongful transactions emanated from here, though they were carried
out in foreign countries. In such a suit the boundaries of the dealing and not of the countries constitute the limits of investigation.7
Our country has entered into treaties with foreign states, from
time to time, to protect the trademark rights of citizens of the one
country in the other. All such treaties were abrogated in 1887
when the United States entered into an international convention
with various nations for the purpose of regulating this subject.71
This convention providing for the protection of industrial property
contains the following provision: "The subject or citizen of each
of the contracting states shall enjoy in all the other states of the union,
6615 Fed. Rep., 236.
67Richter v. Anchor Remedy, 52 Fed. Rep., 555.
684 McLean, 516.
89Vacuum Oil Co. v Eagle Oil Co. 122 Fed. Rep., 105.
70Wyckoff v. Howe Scale Co., 110 Fed. Rep., 520.
7l"Trademark Rec., Aug. 16, 1893; 26 Stat. 1376; 39 Pat. Off. Gaz., 960;
Hopkins "Unfair Trade," 374.


38




so far as concerns the commercial marks and the advantages that
the respective laws accord to citizens, the same protection as the
latter and the same legal recourse against all infringements of their
rights, if they comply with the formalities and conditions imposed
on subjects or citizens by the domestice legislation of each state."
The courts take judicial notice of treaties between this government and foreign governments, and therefore, a citizen of a foreign
government can sue here to protect his duly registered trademark
without alleging such treaty rights.72  Such treaties secure to the
alien, however, only such treatment as our own citizens receive 73
COPYRIGHTS.-Before the existence of the present federal
government all but one of the original states had enacted laws to
secure the rights of authors. There also existed at common law,
a complete property in unpublished works, and there is no principle,
independent of a statute, by which the same protection would not
also include published works.74
As a general statement, then, an author's property in an unpublished work stands upon the same basis as any other kind of property. For this reason, the common law protection extends to the
intellectual production of an alien as well as a citizen. In Palmerv. DeWitt,75 the court says: "The alienage of the author is no obstacle to him or his assignee in proceeding in our courts for a violation, or to prevent a violation of his rights of property in his unpublished works." A monopoly of such property, however, is
secured only as a result of legislative enactment. Such enactments
are embodied in our copyright laws.
From the time the first federal statute on the subject was enacted,
May 31, 1790,76 until 1904, twenty-five public and nine private acts
were enacted relating to copyrights. The purpose of these copyright laws, from the time when the first act confined the benefits to
"citizens of the United States or residents therein," down to the
enactment of the international copyright act of 1891, was to encourage native talent and to protect American authors and artists only.77
The phrase "or resident therein" has been interpreted to mean
a permanent inhabitant; temporary residence has not been deemed
sufficient. The filing of a declaration of intention to become a citizen was also held not to be sufficient to make a transient visitor
72La Croix Fils v. Sarrazin, 15 Fed. Rep., 489.
73See 74 Fed. Rep., 222.
74Drone on Copyrights, p. 47.
7547 N. Y., 532.
761 Stat., 124.
'7uenqling v. Schile, 12 Fed. Rep., 97.


39




such a citizen.78  In the case of Yuengling v. Schile (supra) the plaintiff took out a copyright on a print, as proprietor, he being a citizen
of the United States, the print having been designed by an alien
in Europe and printed there. Yuengling had no title derived from
the author. He could not, therefore, lawfully obtain a copyright
for the print under our statutes.79 The author not being a citizen
or resident of the United States, could not obtain a copyright as
author, and therefore could not as proprietor.
There is nothing in our laws to prevent one, securing a copyright, from assigning it to an alien under an agreement made either
before or after the composing of the work.80 The assignee of a nonresident alien author, inventor, or designer, is entitled, however,
to United States copyright only under the provisions of the international copyright act. But the assignor may assign to a nonresident foreigner. In the case of Black v. The Allen Co.,81 it was
said: "It will not, probably, be seriously denied that a citizen of
the United States, who is the owner of a copyright, can assign the
whole of such copyright to a foreigner."
Almost from the beginning of our national history, the policy
of extending the benefits of our copyright laws to authors and inventors of foreign countries, at least upon terms of reciprocity, had
been advocated. The first serious proposal to that effect seems to
have been made when Henry Clay, in 1837, after presenting an address to Congress from a number of distinguished British authors,
asking for such protcetion, said in the Senate:82 "The signers of this
address may, with more confidence, indulge the hope of the passage
of a law which they solicit, from the consideration that according
to the liberality of the British practice, the securing of copyright
is not restricted to British subjects, but is equally enjoyed by foreigners, and I understand that there are instances of American
authors who have availed themselves of it."' About the same time,
a petition signed by many American authors was presented to Congress asking for a change in the copyright laws such as would insure
to authors a safer interest in their property, and would lay the ground
"for a future international law of copyright between the Old World
and the New.' "ss
The Clay report was presented to the Senate on the 16th of
78Carey v. Collier, Fed. Cas. No. 2400
792952 R. S.
8~Corte v. Evans, 27 Fed. Rep., 861.
8142 Fed. Rep., 618.
82Cong. Deb. XIII., 670.
83Cong. Deb. XIII., pt. 2, 248, App.


40




February, 1837.84 "We should be all shocked if the law tolerated
the least invasion of the rights of property in the case of the merchandise (imported), while those which justly belong to the works
of authors are exposed to daily violation, without the possibility
of their invoking the aid of the laws.' The committee then urged
that the same principle of protection which had been extended in
the case of patents to foreigners should also be extended in the case
of copyrights. "In relation to the subjects of Great Britain and
France, it will be but a measure of reciprocal justice; for, in both of
those countries, our authors may enjoy that protection of their
laws for literary property which is denied to their subjects here."
The bill brought in by the committee limited its benefits to the subjects of Great Britain and France. ''But, in principle, the committee
perceived no objection to considering the republic of letters as one
great commonwealth and adopting a system of protection for literary
property which should be common to all parts of it." The bill
recommended by the Clay committee was ordered to be printed
but no further action was taken regarding it.
From the time Clay introduced his measure until the law of
1891 was passed, many petitions and resolutions were presented
to Congress and at least nineteen bills were introduced looking to
the enactment of an international copyright law. President Harrison, in his message to Congress of December 3, 1889, said: "The
subject of an international copyright has been frequently commended
to the attention of Congress by my predecessors. The enactment
of such a law would be eminently wise and just." And again in
the message of December 1, 1890, there was a paragraph favoring
"legislation affording just copyright protection to foreign authors
on a footing of reciprocal advantage for our authors abroad.'
About the same time, Charles Dudley Warner and many other
American authors besought Congress to enact an international
copyright law. Mr. Warner submitted a report on the subject to
Congress, October 30,, 1889, in which it was said:85 "But the most
glaring relic of ancient times of ignorance and exclusiveness, when
governments little considered the broad principles of universal
justice, is copyright laws which protect only the owner or resident
in a country and permit its citizens to appropriate to their own
profit in their factories the property of aliens. The origin of such
legislation must have been in times when men thought it no part
of their duty to protect strangers and foreigners."
8424th Cong. 2 sess. S. R. No. 179.
85Sen. Exec. Doc., vol. 8, No., 57.


41




Favorable action was not taken by Congress until the year
1891. The debates which took place in that year were full and informing. In these debates but little reference is made to the resident alien; the effects of foreign competition, or the protection which
would be afforded American auth rs in foreign countries is chiefly
considered.86 Mr. Breckinridge,87 (after arguing that there was no
reason why the product of one's brain should be allowed to be filched
from him any more than his material property is) said: "It is not
a question of reciprocity, it is a question of the decalogue. Shall
we give the foreigner that protection of his property, as to his brain,
that we do to every other form of property that the foreigner brings
to us?"  And Mr. Farquhar, also of the House, remarked88: "Now,
this bill is thoroughly reciprocal. No individual belonging to any
nation can derive any benefit from this law unless that nation stands
on the same honest platform of returning worth for worth. It is
in the widest line of reciprocity. *  *  *  It is cheap literature,
good literature, and honest dealing nation by nation and man by
man." Against the bill, Mr. Coke said, in the Senate89 that it was
urged by a few authors, as against the interest of the reading millions;
that it would raise the price of all copyrighted works; and that it
was the yielding of our market to the English manufacturers. It
was also stated in the House, by Mr. Peters,90 that there was no demand from the masses of the reading public for any legislation of
this character and that the principle involved in such legislation
was quasi-special, and therefore objectionable.
Th bill wVas inally enacted into law oil t he  3 of March, 
_L llebill VVUIZ 1  I  Li O'd of March, 1 99 9
to take effect July 1, 1895 and, though frequently amended, stands
today substantially the same as in its original forms. The act stipulated that its provisions should apply to a citizen or subject of a
foreign state or nation, if that foreign state or nation permitted a
citizen of the United States the benefit of copyright on a similar
basis to that of its own citizen; or if such foreign state or nation is
a party to an international agreement which provides for reciprocity
in the granting of copyrights, by the terms of which agreement the
United States may at its pleasure become a party.
The commissioner of labor made a report to the Senate in 1901,92
86Cong. Rec. XXII., pt., 3, 2384.
87Cong. Rec., XXII., 57.
88Op. cit.
89Cong. Rec., XXII., pt. 3, 2383.
90Cong. Rec.. XXII., pt. 1, 56.
9126 Stat., 1106.
9256th Cong. V., S. R. No. 87


42




on the workings of the act of 1891. He found that while some objections were urged to the law, especially by publishers, the concensus of opinion seemed to be that the measure was a distinct
success. The criticism has been well made, however, that a foreign
author had to bring out his work here at the same time that he published it at home. As it was often impossible for him to tell in advance whether his work would sell here in sufficient quantity to justify an American edition, but few foreign authors, except the English, have derived any benefit from the copyright law. There has
been some agitation, consequently, in favor of its repeal or amendment. The difficulty could be obviated, however, by granting a
reasonable time, during which the foreign author might bring out
his American edition, after the first publication of his work at home.
In concluding this chapter, then, we see that our policy with
regard to shipping has followed closely British precedents. Our
laws confine American registry to ships built, owned, and officered
by American citizens. Our coast-wise trade is reserved exclusively
to our own vessels. Tonnage taxes have been discriminatory but
provision has been made for their abolition upon terms of reciprocity.
The legislation regarding patents, following British precedents,
made no discrimination against aliens at first. Then followed a
period in which the privileges of our patent laws were confined to
citizens, or to those who had declared their intentions to become
citizens, and in which aliens were discriminated against in the matter of fees. Such legislation was finally swept away and the alien
put, in regard to patent rights, upon the same footing as citizens.
As to trademarks, alien friends have always been entitled to the
protection of their property in these, as they exist in the states at
common law, and therefore irrespective of any legislation. Federal
legislation, in regard to trademarks, dates from 1870, and secures the
citizen or resident alien, engaged in interstate or foreign commerce,
a protection for his property in trademarks. An international convention was entered into in 1887 for the purpose of regulating the
trademark rights of citizens of one country while in another.
There is a common law property also in both published and
unpublished works of authorship, and an alien is protected in this
as in any other property. Copyright laws were enacted to secure a
monopoly of such property and to confine their benefits to citizens
and permanent inhabitants of this country. In 1891 an international
copyright act was passed, extending the benefits of our copyright
laws to aliens upon terms of reciprocity.


43




III. FEDERAL LEGISLATION: PUBLIC LANDS; REAL ESTATE IN THE
TERRITORIES
The most important federal legislation affecting resident aliens
has been that concerning the right to acquire public lands and to
hold real estate in the territories.
PUBLIC LANDS.-The constitution gives Congress plenary power
to make rules and regulations for the disposal of the public land
of the United States. The federal government not only has the
right of eminent domain, as to such land, but the fee and the prime
disposal of the soil.
In the beginning of our national existence we had a sparse population and a vast expanse of public lands. The government looked
most kindly to the coming of foreigners, the settlement of the frontier, and the rapid increase in population.' Under the circumstances
it is not surprising that the public lands were disposed of to settlers
upon terms of unheard of liberality, and that in this policy no discrimination was made against those who desired to build their homes
and live here, and yet who had not ceased to be subjects of foreign
sovereigns.
THE RIGHT TO PURCHASE.-In the acts offering the public lands
for sale no requirement has been made of citizenship, or even of declaration of intentions. Such lands have been offered on the same
terms to all irrespective of their allegiance, It was stated in the
House, on January 20, 1790,2 that a certain applicant for the purchase
of public lands was an alien and, therefore, might not, as the laws
were generally understood, hold real estate, except as a trustee.
Reply was made to this that according to the common law which
had been adopted in the several states an alien might not, it was
true, hold real estate, but, "be it remembered that we have not
adopted the common law, and therefore are free from its restraints."'
It seems to have been generally thought desirable, at this time, to
This is the third of four papers. The first and second may be found in
Vol. III., pp. 493 and 565.
'Referring to the provision of the Ordinance of 1787 regulating property
Joseph S. Wilson, a commissioner of the general land office, said: "This statute
struck the keynote of our liberal system of land law, not only in the states formed
out of the public domain but also in the older states."
2Ann. of Cong. I, 1068.
44




admit foreigners to the public lands upon the same terms as citizens
in order to induce immigration.3
That the liberal land policy was appreciated and taken advantage of by immigrants, as its advocates had predicted would be true,
may be seen from the following statement which appeared in the
"Emigrant's Directory"4 published in Liverpool in 1820   *   *  *
"'the mode adopted by Congress for their disposal (that of the public
land) is a matter of great public interest, not only to the present
citizens of the United States, but to the world at large; for all the
inhabitants of the earth may avail themselves of whatever advantages may result from it. By the benevolent policy of the general
government, the right hand of fellowship is held out to all mankind.
Whoever arrives in the country for permanent settlement can become
a citizen within five years after his arrival and be entitled to partake
in all the blessings that this chosen country and its excellent institutions can afford.' 
PRE-EMPTION.-The policy of disposing of the public lands by
sale was that first instituted by the government, but this policy came
in time to be supplanted and overshadowed first by the pre-emption
and then by the homestead systems under which the public land
might be secured upon more favorable conditions.
The first general pre-emption law was passed by Congress on
the 29th of May, 1830.6 Under this and the pre-emption law of
1836, citizenship or a declaration of citizenship was not required,
but they afterwards came to be required in the first general and permanent pre-emption act, that of September 4, 1841.7 The words
"Every settler or occupant of the public lands," in a pre-emption
statute, were held to be sufficiently broad to embrace aliens as well
as citizens. In administering such a statute the land department
made no discrimination, and even extended the right to free negroes
when the laws of the state in which they claimed pre-emption allowed them to buy lands.8
3In an article on "Alienage" in the Law Mag. II., 39, 1843, it is stated that
the permission to hold land untrammelled by restraints was the policy pursued
by our government because no foreigner would presumably purchase real estate
without intending to cultivate and improve it.
4P.p 99-100.
5In Courtney v. Turner, 12 Nev., 345, the court declared what was the settled
practice when it said: " An alien will be protected in the possession of the public
land the same as a citizen. Neither can hold as against the government title."
64 Stat., 420.
75 Stat., 453. See statement by Mr. Anderson, in the Senate. Cong. Globe,
26th Congress, 45 App.
8Wynn v. Morris, 16 Ark., 414. Appeal dismissed 20 How., 3.


45




Attorney-General Butler gave an opinions on April 18, 1836,
as to the rights of aliens under the pre-emption acts of 1830 and 1834,
in the following words: "In reply to your inquiry I have the honor
to state that I find nothing in either of these acts to limit their operation to citizens of the United States. The words "Every settler or
occupant of the public lands" are sufficiently broad and comprehensive to include aliens; and as it must have been known to Congress
that the public lands were, in many cases, in the possession of per —
sons not actually citizens of the United States, it is not to be believed that they would have used these general terms had they designed to confine the benefit of these laws to citizens merely. Aliens,
if actual settlers, were within the policy of these laws; and though
as a general rule, they cannot hold land against the state, yet, according to the land laws of most (if not all) of the American states,
they may take lands by grant and may hold the same till divested
by forfeiture, on office found, or by death and escheat. The words
of the law being sufficiently general to embrace all persons capable
of taking and holding lands under letters patent from the United
States, as against them, and aliens having this capacity, I am of
the opinion that your question must be answered in the affirmative. "
During the debate on the pre-emption act of the year 1838, Mr.
Merrick, in the Senate, moved the amendment "that the benefits
of pre-emption be confined to citizens of the United States, excluding unnaturalized foreigners or those who had declared their intention to become citizens."'~ In defending his motion Mr. Merrick
said: "The amendment I have offered proposes so to modify the
bill as to limit the grant of this bounty to our own citizens; to exclude from the immense advantages of this law and this policy
(for remember, it is avowed on the other side that this is to be the
settled policy of the government, and all other similar laws are to
be passed continuously hereafter), all aliens who are neither native
nor naturalized citizens of the Union. Between the native and
naturalized citizen, I propose to make no distinction in this respect;
but I desire, while you are about to deal out the property of the
American citizens in bounties and gratuities, that you should confine your liberality in disposing of your means to your own people. "
Mr. Walker opposed the amendment not only because it would
exclude aliens who had been driven by oppression to seek a shelter
in this land, but also because it would exclude that desirable class
of immigrants who leave their old homes voluntarily and seek new
93 Op. A.G., 91.
"Cong. Globe, XXV., 129 App.


46




homes in the land of their adoption. The amendment was opposed
by others on the ground that it would reverse the long standing
policy of our government, and by Mr. Novell" because, he said,
Congress had no constitutional authority to prescribe the class of
persons who might become the proprietors of lands in the United
States.  "It was for the states themselves to regulate this matter."
Mr. Benton opposed the amendment because it sought to make a
distinction between aliens and citizens in the acquisition of property. He controverted the contention of Mr. Merrick that preemption was a bounty.   "In point of money the pre-emptor pays
about as much as any other purchaser. It is a sale at full price. "
He also declared the fact that an alien was a settler was the best
declaration of his intention to become a citizen.12 Mr. Merrick's
amendment was lost by a vote of twenty-eight to fifteen.
Attorney-General Cushing, making reply on July 28, 1855,13
to a question as to whether aliens could enter lands under the act of
Aug. 4, 1854, said: "Now, the general law, so far as regards the
United States, undoubtedly enabled aliens to purchase the public
lands, subject only as to their tenure to such limitations as the
particular states may enact.
"Originally, an alien, there is no doubt, was also entitled to
enter land by pre-emption, (See Mr. Butler's opinion of April 18,
1836,) but the law now in force gives the right of pre-emption only
to a person being a citizen of the United States, or having filed his
declaration to become a citizen as required by the naturalization
laws.
" Aliens, who have not filed a declaration of intention to become
citizens, are now excluded generally from pre-emption and, of course
from pre-emption under the graduation act.
"But what is there in the act to forbid the alien to purchase
the graduated lands for cash, without pre-emption, and in open competition with all the world, as he may other public lands? I do not
perceive anything.''l4
"Ibid, p. 130.
"2That pre-emption was a bouuty-a bounty which extended to all settlers
and occupants of the public domain-was declared by the court in Wilcox v.
Jackson, (13 Pet., 498); that it was not a free grant, see "The Land Question
in the United States," p. 163, by Dr. Sato.
Mr. Webster also opposed the amendment (ibid, p. 133) "because such a
limitation has been altogether unknown in our general system of land sales,
and to introduce it here, where we are acting on rights already acquired, would
be both invidious and unjust."
137 Op. A.-G., 351.
14The graduation act of Aug. 4, 1854, was an enlargement of the principles
of the preemption act by lowering the price to actual settlers and cultivators
of lands that had been in the market for ten years or more.
47




This quotation from the opinion of Attorney-General Cushing
shows that the California court, in People v. Folsom,l5 had in mind
the earlier pre-emption laws and not the later, when it said: * * *
"and to this extent a system of pre-emption has been adopted
in all the territories and new states in which there is no discrimination between foreigners and native citizens. Foreigners can hold
property in all the territories, and may inherit in the absence of legislation on the subject."16
HOMESTEADS.-The question of granting the public lands to
actual settlers as homesteads, that is without the payment required
under the pre-emption laws, had been frequently proposed in the
thirties and forties and became a political question in 1852. The
Free-soil Democratic party declared in their convention of that year:
'That the public land of the United States belongs to the people
and should not be sold to individuals nor granted to corporations,
but should be held as a sacred trust for the benefit of the people and
should be granted in limited quantities, free of cost, to landless
settlers. " The Democratic party of the same year had the following resolutions in their platform: "Resolved, That the liberal principles embodied by Jefferson in the Declaration of Independence and
sanctioned in the constitution, which make ours a land of liberty
and the asylum of the oppressed of every nation, have ever been
cardinal principles in the Democratic faith; and every attempt to
abridge the privilege of becoming citizens and the owners of the soil
among us ought to be resisted with the same spirit that swept the
Alien and Sedition laws from our statute books."
The homestead idea did not prevail, however, at this time.
In opposition to the proposed measure, Mr. Sutherland declared in
the House on the 22d of April, 1852,17 that if the measure sought the
public welfare, it ought to grant the lands to foreigners on the same
terms as to citizens, and thus encourage foreigners to come and
add to the common wealth of the nation by their labor. Two years
later Mr. Weller said in the Senate:18  There is not a single senator
on this floor who believes, or will undertake to say, that it is dangerous to public liberty to allow foreigners to buy your public land
at $1.25 per acre; but the very moment you propose to give them
land; the very moment you propose to place them upon an equality
with your own countrymen and enable them, at the expiration of
155 Cal. 373, 1855.
"See also Geofray v. Riggs,133 U. S., 272.
7Cong Globe, XXV., 730
"Cong. Globe, XXIX., 1092.


48




five years, to acquire a title from the government, that very moment
it is affirmed they become dangerous."
It was not proposed in this measure to give the land to aliens
but to allow them to enter upon it and to acquire title after they
had been naturalized. In the conference bill which finally passed
Congress on June 19, 1860, it was provided that any person, not a
citizen of the United States but, who, at the time of filing his application, had filed a declaration of intention and who should have become a citizen before the issuing of the patent, should be entitled
to the benefits of the homestead act.
President Buchanan returned the bill to the Senate on June
23, with his veto, stating that it confined its privileges to citizens
of the United States who are heads of families but extended these
privileges to every person of foreign birth residing in the country
who had declared his intention to become a citizen, though he may
not have been the head of a family. His reasons for vetoing the
measure were as follows: "We ought ever to maintain the most
perfect equality between native and naturalized citizens. They are
equal and ought always to remain equal before the law. Our laws
welcome foreigners to our shores, and their rights will ever be respected. While these are the sentiments on which I have acted through
life, it is not, in my opinion, expedient to proclaim to all the nations
of the earth that whoever shall arrive in this country from a foreign
shore and declare his intention to become a citizen, shall receive a
farm. * * * The bill makes a distinction in favor of such persons over native and naturalized citizens. When applied to such
citizens, it is confined to such as are heads of families; but when applicable to persons of foreign birth recently arrived on our shores,
there is no such restriction. Such persons need not be at the heads
of families provided they have filed a declaration of intention to become citizens. Perhaps this distinction was an inadvertence; but
it is, nevertheless, a part of the bill."
In the bill which finally became law, receiving the president's
approval May 20, 1862,19 the wording is changed so that any person
who is the head of a family, or who has arrived at the age of twentyone years and is a citizen of the United States, or who shall have declared his intention to become such, is entitled to the benefits of the
act. Full citizenship is required in such cases before the final title
can be obtained. In Re Krogstadt20 the Secretary of the Interior
ruled that an alien having made homestead entry and having sub1912 Stat., 392; R. S. 2289.
204 Land Dec., 564.


49




sequently filed his intention to become a citizen will not have the
right to purchase defeated on account of the alienage at the time of
the entry, in the absence of an adverse claim. That is, naturalization has a retroactive effect so as to be deemed a waiver of all liability
to forfeiture and a confirmation of title. Again, it was held in Bogan
v. Edinburgh Am. Land Co.,21 that "In the absence of any adverse
claim, the sale of land under section 2301 of the R. S. to one who
has declared his intention to become a citizen is a waiver of any objection on the part of the United States that the purchaser was an
alien when he made his application under section 2289, and the Commissioner of the General Land Office cannot subsequently retract
that waiver and forfeit the right to the land on account of that objection."
MINERAL LANDS.-By the act of July 26, 1866,22 it is declared
"That the mineral lands of the public domain, both surveyed and
unsurveyed, are hereby declared to be free and open to exploration
and occupation by all citizens of the United States, and those who
have declared their intention to become citizens."  In the act of
May 10, 1872,23 the wording is slightly changed so as to read the
lands are open to "occupation and purchase" by citizens and those
who have declared their intention. The House bill had provided
that "any person" might take up a mining claim, but in the Senate
this was changed to read, as finally embodied in the act,' "any citizen of the United States or person who has declared his intention to
become such. " The act also provides that " nothing herein contained shall be construed to prevent alienation of the title conveyed
by a patent for a mining claim to any person whatever. " This provision enables aliens to acquire the highest title by purchase, and to
be protected in the enjoyment of such property by the guarantees
of the Fourteenth Amendment.
By this act of 1872, the location by an alien and all the rights
following from such location are voidable, not void, and are free
from attack by any one except the government. In the case of
Manuel v. Wulff24 the court said  * * * "as Alfred Manuel was
a citizen, if his location was valid, his claim passed to his grantee,
(an alien) not by operation of law, but by virtue of his conveyance,
and that the incapacity of the latter to take and hold by reason of
alienage was, under the circumstances, open to question by the gov2163 Fed. Rep., 192.
2214 Stat., 86.
2317 Stat., 91; R. S., 2319.
24152 U. S., 505.
50




ernment only." That an alien's right to mineral claims is good
against all the world except the sovereign power is also stated in
McKinney Creek Min. Co. v. Alaska etc., Co.,25 and Billings v. Aspen
Min. Co.26 In the Manuel v. Wulff case (supra) the court further
held that a deed of a mining claim by a qualified locator to an alien
operates as a transfer of the claim to the grantee, subject to question in regard to the citizenship by the government only; and that
if one party, who is an alien at the outset, becomes a citizen during
the proceeding and before judgment, his disability under section 2319
R. S. to take title is thereby. removed.
An interesting attempt was made by a territorial legislature
to preclude aliens from holding mineral lands. The Organic Act of
the Montana Territory of May 26, 1864,27 provided that the territorial legislature should pass no law interfering with the primary
disposal of the soil. After this followed the congressional legislation in regard to mineral lands, contained in the act of May 10,
1872, indicated above. In spite of this action on the part of Congress,
the territorial legislature passed an act "to provide for the forfeiture
to the Territory of placer mines held by aliens.'"28 The validity of
this territorial statute was tested in the case of Territory v. Lee29
The defendant in the case, an alien and subject of the Chinese empire,
had purchased a placer mine from a citizen. Thus, the case involved
both the organic act and the act of 1872, as well as the territorial
statute.
The court held, on the general principles of the common law,
that alienage is a disability which can be taken advantage of only
by the sovereign power; the real property purchased by an alien
does not vest in the government until office found. Until then, the
alien is seized and may defend his property as a citizen; and "as to
sales and transfers of real estate by or to aliens, they stand upon the
same footing as sales or transfers made by citizens, subject only
to the right of the sovereign power of the government to institute
proceedings to cause a forfeiture."  The court further held that the
territory of Montana did not possess the inherent sovereign power
necessary to enable it to cause the forfeiture to itself of the property
of aliens, situated within its territorial limits, for the title to this
property still remained in the United States, subject only to a pos25183 U. S., 563.
2652 Fed. Rep., 251.
2713 Stat, 85.
28Cod. Stats., 593.
292 Mont., 124, 1874.


51




sessory easement acquired by the alien through purchase.30     Congress did not prohibit citizens, who rightfully acquired possessory
title, from selling and transferring the same to aliens; but if an alien
took title to such lands, the government could cause them to be forfeited. The act of 1872 excluded only aliens who had not declared
their intention to become citizens from entering upon such lands.
It followed that the attempt on the part of the territorial legislature
to forfeit the lands acquired by aliens under the provisions of the
act of Congress was null and void.3'
REAL ESTATE IN THE TERRITORIES.-So far, the relation of
aliens to public lands has been considered irrespective of whether
those lands lay in states, in territories, or in the unorganized domain.
It is now proposed to consider the real estate within the territories
only. Congress has always retained the primary disposal of the soil
in newly created states, and it has plenary power over all such matters in the territories.32  In the absence of prohibitory legislation
on the subject, there has been nothing to prevent foreigners from
acquiring and inheriting real property in the territories, because the
United States has no common law of its own, and the territories,
as to such property, are not sovereign.33
There have been several strong anti-alien movements in our
country. The first of these was that which culminated in the passage
of the Alien and Sedition Laws at the close of the eighteenth century.34
The second of these movements came in the forties and early fifties.
By this time the immigration from the Old World had become large
and was from a somewhat less desirable class than previously.
Already the feeling was growing that the public lands and public
offices should be held for native born Americans. By 1852 the
Know-Nothing party had come into prominence, and in 1856 it ap30Knowles, J., dissented from this proposition 'and stated that such forfeiture had been exacted by territories as well as states
31The right of an alien to inherit a mining claim located upon government
land is, as against every one but the United States, determined by the laws of
the state in which the mine is located. Lohman v. Helmer, 104 Fed. Rep., 178.
An alien who is honorably discharged from the army or navy occupies the
status of one who has declared his intention to become a citizen, under section
2166 R. S. Stickley v. Hill, 122 Utah, 257.
32National Bank v. County of Yankton, 101 U. S., 129.
33In addition to the citations already made see Wheaton v. Peters, 8 Pet.,
657; Dawson v. Shaver, 1 Black., 205. It is a general principle that if a state
grants an alien a warranty title he is enabled to transmit the property by descent
even to non-resident alien heirs (Etheridge v. Malempre, 18 Ala., 565; Goodell v.
Jackson, 20 Johns., 693); but if the patent issues from a ministerial officer, upon
ordinary purchase, it is subject to escheat, as in the case of purchase from a
citizen. (Government v. Robertson, 11 Wheat, 332)
34See page 181.


52




peared as a regular national political organization. Millard Filmore
was nominated for the presidency on a platform which called for a
change in the naturalization laws, such as would require a continuous
residence of twenty-one years, for the reservation of all government
employment to native born citizens and for exclusion from participation in the suffrage within any state or territory of those who had
not become fully naturalized under the laws and constitution of the
United States. In the election which followed, Filmore received
874,504 popular votes out of 4,053,967. Even this large vote probably failed to show the full force of the nativistic movement which,
however, soon afterwards went to pieces under pressure of theburning
questions leading up to the war.35 The third of these widespread
anti-alien movements was that of the eighties, centering around the
question of holding real estate. It is desired here to trace this latter movement which culminated in an act of Congress in 1887 prohibiting aliens from holding real estate in the territories.36
After the Civil War there set in, particularly with the beginning
of the era of transcontinental railroad building, an enormous influx
of immigrants, both from Europe and from China. At first these
newcomers were received with open arms, but by the later seventies
a decided reaction in sentiment towards them had set in.  This was
manifested in hostile legislation on the part of the coast states and
their municipal governments, and in mob violence directed on several occasions against the Chinese, while in the eastern states it
became customary to ascribe the prevailing political corruption and
municipal failure to the mercenary alien vote. During this period
wealthy Europeans were buying up large quantities of land in the
western states and territories for ranching, farming, and mining purposes. This excited in the minds of many people grave apprehensions, and as the better grade of public lands was giving out rapidly,
American citizens saw with envy lands that formerly would have
been open to them for settlement either lawfully or unlawfully in
the hands of foreigners. So there set in a widespread movement
to exclude aliens from the holding of real estate in both the states
and territories.
This anti-alien movement was partly economic and partly political in its character. After it had spent itself, it became popular,
in certain political quarters, to ascribe it to the Populists as if they


35See the Forum, XIV., 608, Jan., 1893.
36It does not fall within the scope of this work to treat of this movement as
it arose in the states and territories; only the federal legislation on the subject
is dealt with.


53




alone had been responsible for it. While its strength was undoubtedly greatest in the Populists' strongholds and while that party endorsed the movement against alien landlordism in many of the state
and territorial conventions, it was not confined to the Populists'
party by any means. Thus, in the Democratic convention of 188437
we find the following reference to the movement: "It (the Republican Party) professes a policy of reserving the public lands for small
holdings by actual settlers; it has given away the people's heritage
till now a few railroads and non-resident aliens, individual and corporate, possess a larger area than that of all our farms between the
two seas."  The declaration of the Democratic Convention of that
year read * * * "and that no more grants of land shall be
made to corporations or be allowed to fall into the ownership of alien
absentees.'" The Republican Convention of the same year declared38
that the party was opposed to "the acquisition of large tracts of
these lands by corporations, or individuals, especially where such
holdings are in the hands of non-residents or aliens, and we will
endeavor to obtain such legislation as will tend to correct this evil."
References were also made in the platforms of both of the leading parties in 1888, and the platform of the "American Convention"
of that year contained the following plank: "Resolved, That the
soil of America should belong to Americans; that no alien non-resident should be permitted to own real estate in the United States;
and that the realty possession of the resident alien should be limited
in value and area." The Greenback platform of the same year,
also contained the demand " that the alien ownership of lands, individual or corporate, shall be prohibited. "3
As an illustration of how this movement manifested itself in
state legislation passing reference will be made to what was often
spoken of as "Scullyism" in Illinois, although this legislation followed, in point of time, that of Congress. Scully, a British subject,
came to this country in the sixties and purchased large tracts of land
in Illinois and surrounding states, obtaining most of it at $1.25 an
acre. His total possessions were said to amount to over 200,000
acres. He managed his lands somewhat on the feudal plan, charging all he could get as rental and requiring the tenants to make
whatever improvements they desired at their own expense. Because
of his large holdings, his introduction of the feudal spirit in his dealings with his tenants, his foreign citizenship and prolonged residence


37Hopkins "Political Parties in the United States," 362.
38Ibidl 375.
3Ibid, 377.


54




abroad, Scully came to be known popularly as "Lord Scully."40
When the movement against alien landlordism first struck the
Illinois legislature, Scully is said to have laughed at it and to have
declared that if any hostile measures should pass they would be
promptly thrown out by the courts. Afterwards a vigorous fight
was put up to defeat the measure introduced, but the bill passed and
became law in June, 1887. It prohibited aliens from acquiring real
estate in Illinois by "descent, device, purchase, or otherwise," but
granted resident aliens who had declared their intention to become
citizens six years within which to dispose of such property. Scully,
after the passage of this act, rather than sell his possessions, became
a naturalized citizen.41
It is proposed now to take somewhat in detail the congressional
legislation bearing upon the aliens' right to hold real estate in the
territories and in the District of Columbia. While the measure to
prohibit alien ownership of real estate in the territories did not become law until 1887, various bills looking to that end were introduced
in Congress early in the eighties. Thus, on December 11, 1883, Mr.
McAdoo introduced a bill in the House to prevent aliens, other than
bona fide settlers, from owning land in the territories of the United
States. The matter came up again on March 11, 1884. Mr. Holman, on that occasion, had this to say:42 "Time will develop the
great landed estates which your land grant system has rendered possible, even if that was not its original purpose, and will call down upon
it the execration of mankind. " He then submitted a list of foreign
land holdings taken from the San Francisco Daily Examiner, showing that over 20,000,000 acres were so held by foreigners, practically
all of it within the land grant region.
Mr. Van Wyck took up the matter in the Senate on May 2,
1884,43 and quoted a letter from a New York-Edinburgh firm which
stated that it had placed more than $25,000,000 of Scotch capital
alone in western cattle ranches; that some of their companies owned
twenty times as much as thirty square miles of such land; and expressing fear and opposition to Senator Edmund's bill limiting
foreign holdings to thirty square miles. A few days later Mr. Plumb
stated in the Senate in reference to the conference bill,44 that it was
not by any means a perfect measure, it was not of as wide scope as
40See the N. Y. Times, Aug. 26, 1996.
41See the Chicago Daily Tribune, May 21 to June 16, 1887; 49th Cong., 1st
-sess. H. R. Vol. VII., No 1951; the North American Rev., Jan. and April, 1886.
42Cong. Rec., XV., pt. 6, 16 App.
43Ibid, 3690.
44Cong. Rec., XV., pt. 6, 4017.
55




he should prefer to have it, but that it was a beginning in the right
direction. "It is an affirmation of the principle that the burdens
of American citizenship shall go along with its benefits, and that
whoever desires the protection of the American flag, of American
institutions, and American law in regard to his property shall assume the burden of American citizenship as well." On June 19,
of the same year, Mr Hopkins had this to say in the House:45
" While the Democrats are laboring to wrest from the corporations
unduly favored by the Republicans, the vast areas of lands illegally
held, because unearned, distinguished Republicans have stood in
the breach opposing the effort. And yet, the national convention
of that party hypocritically declares in favor of the forfeitures of
the very grants which in their profligacy, they made.' Mr. Parker
declared in the House about the same time:46 "Our country is
becoming the pasture land, the cattle field, and sheep-walk, of foreign land owners; we are furnishing outlying lands for foreigners of
wealth whose interests are antagonistic to our own. This is monopoly
in its most hurtful form and outside influence in its impertinent assumption. No true American can consider it without a feeling of
aggravation and hostility. "
Mr. Oates, for the Committee on Public Lands, reported to the
House on January 20, 1885, as follows:47 "This alien non-resident
ownership will, in the course of time, lead to a system of landlordism
incompatible with the best interests and free institutions of the
United States."  Referring to the bill which his committee recommended, Mr. Oates said: "Perhaps objection may be made to the
bill on the ground that its tendency will be to drive foreign corporations from this country. If it were, we are not quite sure that any
permanent harm would result therefrom to anyone on this continent.
The mortgages and land bonds held by aliens would not be materially
impaired by the law proposed. They are deeds of trust and can be
foreclosed and the land sold in default of payment by an alien holder
as well as by a citizen. Neither can, according to law, buy at his
own sale, because of the conflict of interest with duties, unless it is
so stipulated in the contract; and this being known, can have no
other effect upon future foreign investors in this class of securities
than to make them a little more careful and not to rely upon the
prospect of ultimate ownership of the land mortgaged.""
45Cong. Rec XV., pt. 6, 307 App.
46Ibid, 375.
4748th Cong., 2 ses., H. R. I., No. 2308.
48As to the number of foreigners who settled upon the public lands, Mr.
Hopkins stated in the House (Cng. Rec. XVI., pt. 3, 152 App.) that fully one

56




As the territories were immediately affected by this proposed
legislation, it is of interest to know what attitude their delegates
in Congress took in regard to these measures proposing to limit
alien land holdings. Mr. Carey, from Wyoming, remarked in the
House, June 28, 1886,49 "I need but say that the native born population (in the territories) bears the ratio of at least seven to one
to those of foreign birth, and that the number of the latter class
who do not hasten to become good and patriotic citizens of the republic is too trifling to take into account. " While favoring the proposed legislation, he nevertheless wished no aspersions cast upon the
inhabitants of the territories, either native born or foreign. A few
days later, Mr. Toole of Montana said, in the House,50 that he objected
to the pending measure because it included mineral lands as well
as agricultural. This was not wise, he thought, because mineral
lands had to look to European capital for their development. The
delegates generally, however, reflected the wishes of their constituents in the matter that aliens should be excluded from holding land.
Mr. Plumb, speaking in the Senate of the policy embodied in
the measure, declared5l that policy to be to exclude persons not citizens of the United States, or who had not declared their intention
to become such, from holding real estate within the jurisdiction of
the United States, because such persons "owe no permanent obligation to our government and therefore ought not to receive the
privileges which governments have generally reserved to their own
citizens. The House Committee reported out the bill on July 31,
188652 saying that the rapid absorption of the public domain by nonresident aliens furnished occasion for much anxiety to the people;
that the public lands were fast being exhausted, the larger part of
what remained being either arid or difficult of access. What did
remain, the committee thought, should be preserved from the encroachment of aliens whose birth and education created in them
sentiments inimical to the country. The measure proposed by this
House Committee was drastic. It did not recognize any treaty
obligations, in the matter, nor the right of any one to hold property
which might come to him by devise or inheritance. Mr. Call, in the
third of all the foreigners who arrive in the country did so. See further the report of the Committee on Public Lands, 49th Cong., 1st ses., H. R., VII., No.
1951.
49Cong. Rec. XVII., pt. 8, 240 App.
50Ibid., 321.
5Cong. Rec. XVII., pt. 8, 7955
5249 Cong., 1st ses., H. R Vol. II., No. 3455.


57




Senate on August 4, 1886,53 called attention to the fact that the question as to what extent aliens should be allowed to own real estate
in the territories, and of establishing, so far as Congress can, a policy
for the states, was one of grave importance in connection with the
amount of capital and property invested by American citizens in
real estate in foreign countries, as well as by the citizens and subjects of foreign countries residing here. He asserted that the table
purporting to show the amount of land held by foreigners in the
territory was incorrect and that the amount of such holdings had
been greatly exaggerated. While the bill applied to a limited area
only of the United States, its passage was expected to be followed
by similar measures in the several states acting within their own jurisdiction.53a
The act which finally became law on March 3, 1887,54 provided
"That it shall be unlawful for any person or personsnot citizens of
the United States or who have not lawfully declared their intention
to become citzens, or for any corporation not created by or under
the laws of the United States or of some state or territory to hereafter acquire, hold, or own real estate so hereafter acquired, or any
interest therein in any of the territories of the United States or in
the District of Columbia, except such as may he acquired by inheritance or in good faith in the ordinary course of justice in the collection of debts heretofore created;" provided, however, that nothing
in the act should impair the obligation of treaty rights. Corporations, more than twenty per cent of whose stock was held by aliens,
were prohibited from acquiring or holding real estate in the territories or the District of Columbia. No corporation, except such as
was organized to construct or operate railroads, canals, or turnpikes,
should be allowed to own more than 5000 acres in any territory.
The prohibitions in the act were not to affect existing titles. It
was made the duty of the attorney-general to enforce the forfeiture,
of such lands as were held contrary to the provisions of the act.55
The Daily Financial News of London, in its issue of May 18,
1887, in commenting on this act of Congress and its bearing upon
British investors, had the following to say: "In view of the large
amount of British capital which has been and is being put into
53Cong. Rec. XVII., pt. 8, 7954.
53aThese expectations were, for the most part, doomed not to be realized.
The legislation in Illinois was an exception.
5424 Stat., 476.
55In the case of Johnson v. Elkins (1 App. D. C., 430), the court held that this
act providing that property held contrary to its provisions should be forfeited
to the U. S., was subject to attack only by the United States. The case also
held that the act applied only to titles acquired after its passage


58




United States mines, every question affecting its safety is of vital
importance to the British public. * * * Till recently it (the
control of Congress) was much more loosely exercised than in the
states, and grave abuses arose both in land and in mining speculations. These were not confined to American citizens, but speculating English and Scotchmen played a prominent part in them.
By various devices they acquired vast tracts of country which they
withheld from settlement in order to force up its value and make
a big profit on it at the expense of bona fide settlers. In most cases
it was American citizens who beguiled them into such adventures
but this did not render them any more popular with American citizens who had no share in the plot.
"'It has been evident for some time that the bona fide settler
was working up for an outbreak against dummies generally, and
foreign dummies in particular. * * * Until this serious point
(as to whether mining property was included in the prohibited real
estate) is cleared up, mining speculators should give a wide berth
to the territories of the United States. It is not safe for them to
spend their own money there and it will be wrong in them to ask
money from the public for such a purpose. "
Mr. R. C. Alden56 writing to the Chicago Tribune, on June 4,
1887, concerning the discrimination which the recently enacted law
made against the young and struggling territories and in favor of
the states, had this to say: "The primary intent and motive of
our congressional legislation which culminated in Representative
Payson's bill, passed March 3d last, was sound and wholesome,
namely to prevent any Scully landlordism in our territories; also to
wrest present illegal holdings of vast tracts of land and prevent future holdings thereof by so called "cattle barons."  * * * This
alien law is in its present form a two-edged sword that cuts against
us as well as against a phantom enemy. Phantom, indeed, for how
can alien and foreign capital injure us by investment in our territories under broad, comprehensive, and judicial laws? * * *
Particularly our necessitous and borrowing pioneers in the territories can advantageously divide honors between the comparatively
high rates of interest demanded by American lenders and low rates
which satisfy European lenders. "
The act had been so carelessly drawn that it prohibited the acquisition of land upon which legations or other residences might be
built by the representatives of foreign governments in the District


56This gentleman seems to have been an American promoter of mining property who worked chiefly with European investors.


59




of Columbia. An amendment was passed on March 9, 188857 removing such restrictions.
Shortly after the passage of the act of 1887, an effort was made
to extend its operations so as to prohibit aliens from acquiring title
to or owning a greater interest than a leasehold for five years in any
lands anywhere within the United States,58 that is, the measure proposed to extend the act of 1887 without its exceptions as to inheritance, ordinary cases of collection of debts in good faith, and cases
covered by treaties, to land wherever found, even within the limits
of the several states. The majority of the committee on the Revision of the Laws thought that Congress had the constitutional power
to do this.59  Likewise, the House Committee on the Judiciary reported on the 9th of June, 1890,60 that the United States has the
constitutional power to prohibit alien ownership of land anywhere
within the limits of the United States; it has the sovereign right to
exclude aliens from coming within its jurisdiction and this right
"includes the less one of defining what property rights they may
exercise after they are admitted, and during the continuance of their
alien condit on. * * * We see no reason why the law should be
thus restricted. It ought to be general in its provisions. If Congress
has not the power to extend the law to the states, then we have
the anomaly of persons who owe no allegiance to the United States
buying up and owning all the lands within a state. The argument
which leads to such a conclusion is unsound.' '
The question as to whether the act of 1887 included mines in
its designation of real estate does not seem to have been much considered at the time of the passage of the act. That it did so include
mining property was held by the attorney-general in an opinion
delivered shortly after the passage of the act.6" That most of the
members of the House either did not know that the act of 1887
5725 Stat, 5.
5850th Cong., 1st ses., H R., 4916.
5950th Cong., 1st ses., H. R., Vol,. V., No. 1 81.
6051st Cong., 1st ses., H. R., Vol. VII., No. 2388.
6'That Congress has the power to prohibit alien land-holding within the
states is very doubtful, to say the least. Such property rights have always
fallen within the jurisdiction of the states, and if Congress has such power it
is difficult to see why it might not exercise complete control over all the personal
and property rights which aliens now enjoy pursuant to state laws. By analogy,
the reasoning in the Civil Rights Cases would deny such power to Congress.
If the foreign relations clause is not applicable because the holding of real estate
in our system is a domestic concern for which the federal government is not answerable in any way under the law of nations, nor which is provocation of inporeational comity, it would seem to follow that Congress does not possess the
wtner.
6219 Op. A.-G., 26.


60




would include mining property, or that they did not fully anticipate
the effects of the act, was made evident by the proposals which were
immediately introduced to amend the act so as to exclude such property from its provisions. During the first session of the succeeding
Congress no fewer than seventeen bills were introduced in the two
houses looking to the amendment, repeal, or modification of the law.
On February 8, 1888, Senator Stewart received the unanimous consent of the Senate to consider a bill authorizing the sale of mineral
lands to aliens. He stated that the mineral lands had been well
guarded against monopolies by the former laws and that the foreign
capital which had been invested in developing such property during
the last thirty years had been very beneficial to the country. Foreign capitalists, he said, had probably expended more money here
than they had taken away, for mining is a risky business, one, however, employing a great many people and spending a large amount
of money.
The Committee on Mines and Mining introduced the following
amendment to the laws of 1887:63 "That this act shall not relate
to or in any manner effect the title to mineral lands or mining claims
in the territories of the United States which have been acquired or
held under the mineral laws of the United States, nor to mills or other
reduction works or property used in the production of metals from
said mineral lands or claims; but, as to all such mineral lands, mining claims, mills, reduction works, and other property, the laws of
the United States and of the territories shall be and remain the same
as though this act had not been passed."
Mr. Mitchell stated in the Senate64 that this proposed amendment had been recommended strongly by the present governors of
every one of the territories, with one exception. He tacked on an
amendment to the effect that the Chinese should be excluded forever from such ownership, but was induced to withdraw his amendment in the interest of the principal amendment. Mr. McPherson,
arguing against the amendment, said that if it should pass, foreign
capitalists would come in and purchase large tracts of land possessing
vast mineral wealth and holding them away from the occupancy of
citizens of the United States who desire to prospect for and discover
such mineral wealth. The amendment, he said, would be an abandonment of the principle intended to be embodied in the law of last
year and which had been passed in accordance with the prevailing
sentiment of the country. Mr. Plumb upheld the original act in
350th Cong., 1st ses., S. R., No. 703.
64Cong Rec XIX., pt. 2, 1042.


61




the following words:65 "We have sought not only the investment
of foreign capital in all our enterprises, but the introduction of foreign labor and foreign population. * * * I think, on the whole,
the sentiment of the country is pretty clearly crystallized in the idea
that it is about time to call a halt; at all events, to amend to some extent the invitation which we have heretofore made broad enough
to cover every person of the human kind. This movement to limit
the holdings to real estate in the United States to persons who are
citizens is in the direction of that public sentiment."  Mr. Reagan,
also in opposition to the amendment, after stating that foreigners
had within a few years past come to be the owners of large amounts
of land and that the public sentiment which had arisen against them
was largely on account of such large holdings, then continued:66
"'This sentiment is one that is not at all unnatural. So far as I know,
the general policy of the common and civil law in all countries where
these systems have prevailed has been against the holding of lands
by foreigners.  *    *  It seems to me that the danger of the investment of foreign capital, of foreign influence, and foreign landlordship, is just as great in mining communities as in the agricultural communities in proportion to their extent."
The agitation for the removal of the restriction, as it applied
to mineral lands in the territories, continued unabated. Mr. Carter
stated in the House on April 16, 189067 that "Throughout the territories of the west, where this law was made applicable, the sentiment
in favor of its repeal is universal. Petitions have been sent to Congress and legislators have memorialized this body for years, for the
purpose of inducing Congress to raise from the people of those territories this vast incubus that rests upon their growth and prosperity."  A little later he declared that the committee report at
the time of the passage of the act of 1887, as to the amount of holdings by aliens, did not disclose one acre of land as held by any alien
or foreign corporation in any territory, except one such land grant
held in New Mexico; that is to say, all the large foreign holdings were
in the states.
The Public Lands Committee of the House, in their report to
the Fiftieth Congress, said:68 "Since the passage of the alien act
English capital for investment in mines has been driven from our
country into Mexico, the British colonies, and South Africa, to the
65Ibid., 1079.
66Ibid., 1080.
67Cong. Rec. XXI., pt. 4, 3438.
6850th Cong., 1st ses., H. R., Vol. III., 703.


62




great detriment of the American manufacturer and laborer."  The
Committee on Mines and Mining caused an investigation to be made
in all the territories for the purpose of seeing how the act of 1887
worked. The agent, in his report, said:6  "I have found the universal sentiment throughout the territories to be againstthepresent
alien land law so far as it applies to mines. Without exception everybody favored its speedy repeal in this respect, which action would be
hailed by the people of the territories with delight. * * * The
restriction of twenty per cent ownership has induced aliens to sell
out their interests to the great detriment of the territories, and with
the proceeds thus realized they have invested largely in mines in
the states, where no such discrimination is made against aliens. * * *
The progress of the territories has been materially checked by the
restriction of the use of foreign capital. A large number of enterprises have been abandoned and several mining camps ruined."
In the Senate Committee's report on mines70 it was said: "It is
believed that there is no objection on the part of the people of the
territories to the investment of foreign capital in the mines. On
the contrary they invite it, and the alien land law of 1887, so far
as it restricts the ownership of mines by aliens, is regarded by all
as a great inconvenience and a hindrance to the development of the
territories. While the people of the territories do not object to the
law, so far as it prevents aliens from acquiring title to agricultural
lands, they desire an exception to be made so far as the mines are
concerned. They desire the passage of a law repealing that provision
in the alien land law which affects mineral lands."'
Mr. Holman, in the House, made a vigorous fight against the
proposed amendment.   He said:71 "Ever since the law of 1887 was
enacted parties representing foreign syndicates have been here working to secure the now proposed modification of that law to enable
them to purchase and hold mineral lands." If this amendment
should pass, he said," it will only be a question of time when, under
the pressure of foreign capitalists the whole of the act of 1887 will
give way, and then who shall say to what extent in the coming years
non-resident and alien landlordism will curse this country?"  In
his prediction that this opening wedge would prove the undoing of
the general law on the subject, future events prove that he was
quite correct.
A bill amending the act of 1887 was introduced in the House by
69Ibid.
7050th Cong., 2d ses., S. R., Vol. II., No. 2690.
71Cong. Rec. Vol. XXI., pt. 4, 3439.


63




Mr. Scranton, on Dec. 10, 1896, and became the foundation of the
measure enacted into law the following year. As that law itself
will be discussed in full, it will be unnecessary to take up the provisions of this preliminary bill which failed to pass. This measure is
important, however, on account of the debates which took place
and which show the reasons, more in detail, for the act of 1897.
Mr. Hepburn, discussing this bill in the House on December 10,
1896, had this to say:72 "The Populists' platform has time and time
again declared in opposition to the acquirement of lands in this country by aliens. The territories which, as I understand, are now clamoring for these changes, proposed in this bill, have approved that
platform at the last election. *  * * And yet this bill, I undertake to say, does wipe out practically the provisions of the law as
now existing-prohibiting alien ownership of lands in the territories
-for under the forms of foreclosure provided for in the bill, the provisions of the present law are wiped out.  And so, under the terms
of a seeming loan and a pretended foreclosure, the provisions of the
laws as they now exist prohibiting alien ownership are to be absolutely subverted: and yet these gentlemen who have gone about the
country from year to year declaiming against alien ownership, insisting that that was one of the greatest evils the country suffers
from, are now here acquiescing in undoing all that has been done
heretofore. '
Mr. Catron, a delegate from the territory of New Mexico, said
in reply to these criticisms: " * *  *  that every party in that
territory favors the passage of this bill. And in the platform of
everyone of the parties they endorse the absolute repeal of what is
known as the anti-alien bill, of which this bill is merely an amendment."   "The object of this bill is to enable the people of the territories to get some of the benefits of foreign capital which have been
going to the various states that have refused to adopt legislation of
this character, or who, after having adopted it, have repealed it.
In the territories of New Mexico, Arizona, and Oklahoma, we cannot
get the investment of foreign capital today because no foreigner is
entitled to hold, possess, or own real property; and this bill enables
him to invest his means and to sell the property under a mortgage
he may acquire.  He may buy if he sees proper, but he cannot hold
it for a longer time than ten years, but must make a dispositionon
it.  73
72Cong. Rec. Vol. XIX., pt. 1, 77.
73To much the same effect were statements made by Mr. Bell, of Colorado,
and Mr. Murphy, of Arizona. See also 54th Cong., 2d ses., S. R. Vol. III., No.
1478.


64




As already stated, the main provisions of this bill which came
up for discussion in the House on December 10, 1896, and subsequent
days passed both houses and became the law of March 2, 1897.7
This measure was not intended to displace the act of 1887 but to
amend it in several important particulars. It provided that the
right to hold and dispose of lands in the United States as secured
by treaties should be preserved, so long as those treaties continued
in force. The second section read: "That this act shall not apply
to lands now owned in any of the territories of the United States
by aliens, which were acquired on or before March 3, 1887, so long
as it is held by the then owners, their heirs or legal representatives,
nor to any alien who shall become a bona fide resident of the United
States and any alien who shall become a bona fide resident of the
United States, or shall have declared his intention to become a citizen of the United States in the manner provided by law, shall have
the right to acquire and hold lands in either of the territories of the
United States upon the same terms as citizens of the United States.
"Provided, That if any such resident alien shall cease to be a
bona fide resident of the United States, then such alien shall have
ten years from the time he ceases to be such bona fide resident in
which to alienate such lands.
"This act shall not be construed to prevent any persons not
citizens of the United States from acquiring or holding lots or parcels
of lands in any incorporated or platted city, town, or village, or in
any mine or mining claim, in any of the territories of the United
States. "
The act further provided that aliens should not be prevented
from acquiring lands, or interests therein, by inheritance, or in the
ordinary course of justice in the collection of debts, nor from acquiring liens on real estate, nor from lending money and securing
it upon real estate, nor from enforcing any such lien, nor from acquiring title and holding such real estate, provided that land so acquired should be sold within ten years, or else the same should escheat
to the United States. It was made the duty of the attorney-general
to institute proceedings to cause land held in contravention of the
act to escheat to the United States and be sold on judgment, the proceeds to be held for one year subject to the order of the alien owner
of such lands, if not claimed then, they were to go into the treasury
of the territory. The defendant to the escheat proceedings might
show that he had, at any time before final judgment, conformed to
7429 Stat., 618.


65




the law by becoming a bona fide resident of the United States, or
had declared his intention of becoming a citizen.
It is to be noted that this amendment of 1897 was demanded,
in part, by the people of the territories who had urged the passage
of the original act in 1887. While the act of 1897 contains the same
probibitions as is found in that of 1887, and saves, as does the act
of 1887, rights guaranteed by treaty, it goes much further and provides that the restrictions should not apply to land owned by aliens
in the territories which was acquired on or before March 3, 1887, so
long as it is held by such owners, or their legal representatives.75
This act of 1897 was so liberal in its provisions that it not only allowed
aliens who had declared their intention to become citizens of the
United States the right to acquire and hold lands in the territories,
but also those who should become bona fide residents of the United
States, adding that if any of these should cease to be such residents,
they should have ten years from that time in which to alienate their
lands. Moreover, it provided that the restrictions of the act should
not be construed to prevent aliens from acquiring or holding lots of
land in the cities, towns, or villages of the territories, or in any mine
or mining claim in any territory.
This law not only allows aliens to acquire lands by inheritance
and in the ordinary course of justice in the collection of debts, but
also by lending money and securing the same upon real estate. In
this last mentioned case, it is true such lands are required to be sold
within ten years after title is vested in such aliens, or they are to
escheat to the United States. The act even allows aliens holding
land in contravention of its provisions to convey their title at any
time before the institution of escheat proceedings. Perhaps the
most important provision, and certainly the one which reflects
most credit upon our policy, is that which allows the proceeds of
the sale of an alien's lands, condemned by the courts to be sold, to
remain subject to the orders of the alien for one year. That is, the
treasury of the territory does not obtain the benefit of such confiscation unless the alien or his heirs or legal representatives sleep upon
their rights.
It will thus be seen that, while the act of 1897 purports to maintain the principles contained in that of 1887, it is so liberal in its
provisions and contains so many exceptions as practically to nullify
the principle of the original act. It was distinctly provided, however, that the act of 1887 should remain in force and unchanged so
75See Johnson v. Elkins (1 App. D. C., 430.


66




far as the District of Columbia was concerned. This was due to
the feeling that as the national capital was located within the District it was undesirable to allow aliens to acquire real estate which
might impede in any way the operations of the government, should
it desire to extend its holdings within the said District.76
Many persons, both in and out of Congress, thought however,
that the liberal provisions of the act of 1897 ought with equal force
to be extended to the District of Columbia.77  Frequent bills were
introduced after 1897 with this in view. Mr. Jenkins, for example, in
introducing a measure on the 15th of January, 1900, stated:78 that
the matter had been frequently brought to the attention of the House
by the Commissioners of the District of Columbia. They were of
the belief that two useful purposes would be served by the passage
of this bill, one of which was to bring the present law into accord
with the spirit of the age and allow aliens to hold lands in the District of Columbia; the other was to save much valuable time in Congress."  He then went on to say that almost every week the attention of the Commissioners of the District and consequently of the
House was invited to the claims of parties seeking relief from the
present law; and the attorney-general informs us, he added, that
there has never been a single enforcement of the law of escheat in
the District of Columbia, but that Congress has always been willing
to afford relief to every alien who has asked for it. The bill asked
for, he continued, is practically in accordance with the legislation
now in force in over forty of the states.
On June 19, 1902, Mr. Dillingham, of the House, submitted a
report79 from the Commissioners of the District, strongly recommening the act of 1897 be extended to the District.80 Mr. Babcock stated
to the House81 on the 10th of February 1905 that the original act
had been intended to apply to the territories only in order to prevent acquisition of large tracts of land; it had not been intended
for the District of Columbia at all. The committee having charge of
the affairs of the District had been obliged to report to the House
more than forty individual bills relieving aliens in the District from
76Mr. Wm Alden Smith declared, in the House (Cong. Rec. XXXIII., pt
1, 830), that the land in the District of Columbia was more "sacred" than that
in any state or territory; aliens should not be permitted to own it, he declared,
for they might hold it against the best interest, not only of the District, but possibly of the government itself.
77See 50th Cong., 1st ses., H. R. Vol. I., No. 30.
78Ibid., 826.
79Cong. Rec. Vol. XXXV., pt. 7, 7057.
80See further 57th Cong., 1st ses., S. R., No. 1991.
1lCong. Rec. XXXIX., pt. 3, 2371.


67




the hardships imposed by the act of 1887, for Congress had never
been willing to forfeit the lands held in contravention of that act.
The proposed amendment, he said, was designed to relieve Congress
of the necessity of all these private bills and to place the District of
Columbia on the same footing as the territories.82
The proposal contained in these recommendations became law
on the 23d of February, 1905.83  It amends the act of March 2, 1897,
"so as to extend to aliens the same rights and privileges concerning
the acquisition holding, owning, and disposing of real estate in the
District of Columbia as by that act are conferred upon them in respect
of real estate in the territories of the United States."' Thus, at last,
the District was placed on the same footing as the territories, and in
both the District of Columbia and the territories the old common
law rule as to alien ownership of real estate is, to all practical purposes,
done away with.
It has already been pointed out that aliens were not prohibited
from holding real estate where they had acquired the title before
the passage of the act of 1887, and that the provisions of the act of
1887 did apply to mines.84  Under the provisions of section 2319
R. S., all mining lands in territories belonging to the United States
are open for exploration and purchase to citizens of the United States
and those who have declared their intention to become citizens;
those who have discovered mineral lands and made the location in
accordance with the legal requirements, have exclusive right of
possession.5 The right of a locator can be questioned only by the
United States and only by inquest of office found, or in a proceeding
to which the United States is a party.86 Before escheat proceedings
the alien is permitted to sell lands unlawfully held and to receive
the proceeds of such sale.87
An alien, however, who has not declared his intention to become
a citizen is not qualified to locate a claim and cannot hold such claim
against one who is rightfully entitled to locate it.88 Under section
2322 R. S. locators have full and complete right to convey their
interest,89 and the transfer of a title to an alien can be questioned
only by the government. If an alien becomes naturalized before
82See 58th Cong., 3d ses., H R. Vol. III., No. 4219.
833 Stat., 733.
8419 Op A.-G., 26.
850'Reilly v. Campbell, 116 U. S., 418; Croesus Min. Co. v. Col Land Co.,
19 Fed. Rep., 78; Tibbitts v. Ah Tong, 4 Mont., 536.
86Billings v. Aspen Min. Co, 10 U. S. App., 1.
87Tornanses v. Melsing, 109 Fed. Rep., 710.
88Golden Fleece Co. v. Cable Co., 12 Nev., 312.
"8Ferguson v. Neville, 61 Cal., 356.


68




judgment in a suit brought to test the title, his disability is thereby
removed.90 The occupation and working of a location before the
passage of these statutes conferred no rights upon aliens against the
United States or its grantees.91 Under a former decision that an
alien could not take even a defeasible title, it was held that an alien
could have an interest as cestui que trust in the stock of a mining
corporation without affecting the title of the trustee.92
We thus see by way of summary, that Congress has full power
to dispose of the public domain. It has allowed aliens to purchase
the public lands on the same terms as citizens; it has granted them
pre-emption and homestead rights upon declaration of intention to
become citizens, though in the latter case, full title might not be
acquired until complete citizenship had been attained.
The result of this liberal policy has been the attraction of great
numbers of immigrants from Europe who have settled upon the public lands and in time have generally become American citizens.
Congress has exercised its constitutional power over territories
to exclude aliens from holding real estate therein.  This was done
by the law of 1887. The next year, this act was modified so as to
allow foreign governments to own their legation grounds in Washington; in 1897, it was so changed as practically to repeal its common
law provisions and to place the territories on the same basis, as to
alien land holding, as prevailed before the act of 1887 was passed;
and, finally, in 1905, the District of Columbia was placed on the same
footing, in this matter, as the territories.
Thus, the movement to restrict alien land holding in this country
failed, and in view of the general tendency with regard to the treatment of aliens it is not likely to be attempted again. Some of the
western states, however, may enact such legislation with reference
to particular aliens, like the Japanese.9


"9Manuel v. Wulff, reversing 9 Mont., 279.
91Lee Doon v. Tesh, 68 Cal., 43.
92Princeton Min. Co. v. Butte First National Bank, 7 Mont., 530.
93See an article by the writer in "The World Today," March, 1909, on "The
Anti-Japanese Legislation."


69




IV. RIGHTS OF RESIDENT ALIENS


TREATY PROVISIONS-The federal constitution provides that:
"This constitution and the laws of the United States which have
been made in pursuance thereof; and all treaties made, or which
shall be made, under the authority of the United States, shall be
the supreme law of the land; and the judges in every state shall
be bound thereby, anything in the constitution or laws of any state
to the contrary notwithstanding.' "
It would seem that the treaty-making power of the federal
government is derived not only from the express grant of power
conferred by the constitution, but that it is also an attribute of
sovereignty possessed by every independent government, and that
it consequently extends to every subject which can legitimately
be made the basis of negotiation and contract by sovereign powers.
It can be exercised whenever foreign relations of any kind are established with any other sovereign power for regulating the use, descent,
or possession of property which would otherwise be within the exclusive jurisdiction of the states. The treaty-making power of the
federal government is not confined, therefore, within the limits of
the legislative power of that government; that can be done by
treaty which cannot be d ne by act of Congress.2 Nevertheless, the
power of Congress to legislate is broad enough to carry into effect
the provisions of treaties depending upon such legislation for their
enforcement.' It follows that acts of Congress enforcing treaty
stipulations are constitutional when they would be unconstitutional
as infringing upon the power reserved to the states, if made in the
absence of treaty stipulations.
If the treaty-making power of the federal government is thus
aThis is the last of a series of four papers. See ante p. 27, also Vol. III.,
pp. 493 and 565.
'As the power of the federal government over aliens is vested exclusively
in the political branch of the government, it may be exercised either through
treaties made by the President and the Senate, or through statutes enacted by
Congress. Chan Gun v. U. S., 9 App. Cas. D. C., 290; Ekiu v. U. S., 142 U. S., 651.
2For example, fishing rights within the three mile limit of one of our states
can be so regulated.
3See Amer. L. Reg., Feb., 1907.


70




practically unlimited, it is superior to the constitution and laws of
any individual state and can, protanto, nullify the domestic institutions of a state, thus accomplishing indirectly what could not be
done directly. The provisions in a state constitution or legislation
which in any way conflict with the treaty stipulations must give
way to the latter or to the act of Congress made in pursuance thereof,
even though the provisions relate to matters ordinarily within state
jurisdictions The supreme court has never failed to uphold treaties
as being the supreme law of the land, even though the provisions
extend to the regulation by international agreement of matters
which are otherwise exclusively within the control of the states.
Speaking of this power, Mr. Justice Swayne has well said:5 "If the
national government has not the power to do what is done by such
treaties, it cannot be done at all, for the states are expressly forbidden
to 'enter into any treaty, alliance, or confederation.' It must always be borne in mind that the constitution, laws, and treaties of
the United States are as much a part of the law of every state as its
own local laws and constitution. This is the fundamental principle
in our system  of complex national politics."6
It follows from what has been said that Congress possesses the
power, by means of treaties entered into with foreign nations, to
control the holding by foreigners of property within the limits of
our states. Writing to Aristarchi Bay, on May 19, 1874, Mr. Fish,
Secretary of State, in explaining our practice in regard to such matters. said:
"The estates of decedents are administered upon and settled in the United
States under the laws of the state of which the decedent was a resident at the
time of his death, and on this account, in the absence of any treaty regulations
on the subject, interference in the disposition of such measures as may be prescribed by the laws of the particular state in such cases is not within the province
of the federal authorities."'
This leads us to a study of the treaties that have been entered
into by our government to see to what extent they have controlled
the right of aliens to have, hold, and convey property within the
United States when, on account of their alienage, they would otherwise have been unable to do so.
The first important case involving treaty relations came before
4Watson v. Donnelly, 28 Barb., 653; Gordon v. Kein, I Wash. C. C., 322;
Butler, The Treaty-Making Power, vol. I., sec. 3.
5Hauenstein v. Lynham, 100 U. S., 483.
'It has been frequently held that a treaty made subsequent to an act of
Congress supersedes the latter, if in conflict with it, (Ware v. Hylton, 3 Dall, 199;
Fisher v. Harden, 1 Paine, C. C., 55), and the converse also holds, that an act of
Congress subsequent to a treaty, overrides the latter, and is enforced as the
supreme law of the land. (Taylor v. Martin, 2 Curtis, C. C., 454; Ropes v. Clinch,
8 Blatch, 304; 5 Op. A.-G., 345.)


71




the supreme court in a cause involving the definitive treaty of peace
of 1783 with Great Britain. Art. IV. of that treaty stipulated that
the creditors should meet with no lawful impediment to the recovery
of debts; Art. V., that Congress should recommend to the legislatures of the respective states to provide for the restitution of all
estates, rights, and properties belonging to British subjects which
had been confiscated; and Art. VI., that there should be no further
confiscations.
The point which came before the court in Ware v. Hylton7 in
1796, was whether the provisions of this treaty of 1783 overrode
the state statutes in regard to the collection and confiscation of antebellum debts owed by Americans to British citizens. To the plea
that the debt due by citizens of Virginia to a British subject had
been abrogated by war and confiscated by the state of Virginia as
a war measure, the plaintiff set up in reply the provisions of the
treaty of 1783, and the ratification by the constitution of the United
States, making it the supreme law of the land and therefore paramount to state legislation, whether past or future. This contention
of the plaintiff's was upheld by the court and this cause celebre
then became the leading authority on the subject of treaty-making
power and state enactments for a century to come. The court declared that * * * "a treaty cannot be the supreme law of the
land, if any act of the state legislature can stand in its way. * * *
It is the declared will of the people of the United States that every
treaty, made by the authority of the United States, shall be superior
to the constitution and laws of any particular state. *  *  *."
Commenting upon this case, Mr. Justice Baldwin later said:8
"In Ware v. Hylton it was held that the treaty of peace repealed and nullified
all state laws by its own operation, revived the debt, removed all lawful impediments, and was a supreme law which overruled all state laws on the subject,
to all intents and purposes; and is of equal force and effect as the constitution
itself."
In the Jay treaty of 1794, with Great Britain, Art. IX. provided
that British subjects holding lands in the United States should not
be considered as aliens so far as respects those lands and the remedies
incident thereto. It was necessary that the party should show
that the title to land for which the suit was instituted was in him
or his ancestors when the treaty was made.
The construction of these two treaties (1783 and 1794) came
before the supreme court for adjudication in the celebrated case of
73 Dall., 199.
814 Pet., 353.


72




Fairfax v. Hunter,9 in 1812. Mr. Justice Story who delivered the
opinion of the court, declared that as the possession and seizin of
the property in question had continued up to and after 1794, the
treaty of that year, being the supreme law of the land, confirmed
the title to the alien devisee through whom the plaintiff claimed
and protected his heirs and assigns from forfeiture. He says:
"'It was once in the power of the commonwealth of Virginia, by an inquest of
office or its equivalent, to have vested the estate completely in itself or its grantees.
But it has not so done, and its own inchoate title (and of course the derivative
title, if any, of its grantee) has by the operation of the treaty become ineffectual
and void. It becomes unnecessary to consider the argument as to the effect
of the death of one of the parties during the suit; because, admitting it to be correctly applied in general, the treaty of 1794 completely avoids it."
In the case of Brown v. Sprague,'~ it was held that, although
lands possessed by British subjects in New York under the sixth
article of the treaty of 1783 might be transmitted by descent to a
citizen, they could not, upon the death of such British subject,
previous to the treaty of 1794, pass by descent to an alien born
after July 4th, 1776. But a British subject, holding lands in the
United States and coming within the ninth article of the treaty of
1794, had the right to convey and devise lands to aliens as well as
to citizens."
In the treaty concluded between the United States and Great
Britain March 2, 1899, there is contained the following provision:
"Art. I. Where, on the death of any person holding real property (or property not personal) within the territory of one of the contracting parties, such
real property would, by the laws of the land, pass to a citizen or subject of the
other, were he not disqualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of three years in
which to sell the same, this term to be reasonably prolonged if circumstances
render it necessary, and to withdraw the proceeds thereof, without restraint
or interference, and exempt from any succession, probate, or administrative
duties or charges other than those which may be imposed in like cases upon the
citizens or subjects of the country from which such proceeds may be drawn."
" Art. V. In all that concerns the right of disposing of every kind of property, real or personal, citizens or subjects of each of the high contracting parties
shall, in the dominions of the other, enjoy the rights which are or may be accorded to the citizens or subjects of the most favored nations."
In Blight v. Rochesterl2 it was held that British subjects born
before the Revolution were incapable of inheriting lands in the
United States, except by force of some treaty, and prior to this convention of 1899, the treaties of the United States with Great Britain
contained "no stipulations relative to the tenure of real estate,
except the temporary provision of Art. IX. of the treaty of Novem97 Cr., 603.
105 Den., 545.
"See Watson v. Donnelly, 28 Barb., 653.
17 Wheat., 535.


73




ber 19, 1794.12a  "It has been held, however, that so far as it went,
Art. IX. of the treaty of 1794 was permanent in its nature. "13 The
provision of this treaty of 1899 came before the superior court of Delaware in the case of Dockstader v. Roe,14 in 1903. A citizen of Delaware had died intestate in 1901, seized in fee of certain real estate.
His next of kin were residents and subjects of Great Britain who
claimed an interest in the estate under this convention of 1899.
The defendant claimed the whole of the land under the laws of
Delaware,l5 which declared that it should be no objection to the
next of kin taking land by virtue of the intestate law of the state,
that they were aliens, if at the time of the death of the intestate,
they resided within the United States. In interpreting the treaty
and its effect upon the prior state law, Chief Justice Lore, speaking
for the court, said:
" In applying the ordinary rule of interpretation to the plain purpose and scope
of the treaty, it seems to us that section one of the treaty contemplates the
elimination of the disqualification of alienage in the next of kin, so far as it relates
to the subject matter of this suit, and puts the next of kin on the same footing
as if they were all residents of this state at the time of the death of the intestate.
In our judgment the treaty controls this case, and is paramount to our statute. "
In the treaty with France of 1778, Art. XI. read as follows:
"The subject, people, and inhabitants of the said United States, or any of
them, shall not be reputed aubains in France and consequently shall be exempted
from the droit d' aubains, or other similar duty, under what name soever. They
may by testament, donation, or otherwise, dispose of their goods, movable and
immovable, in favor of such persons, as to them shall seem good, and their heirs
subjects of the said United States, residing whether in France or elsewhere
may succeed them ab intestato, without being obliged to obtain letters of naturalization * * * and the said heirs shall be exempt from all duty called
droit detraction, or other duty of the same kind, saving nevertheless the local
rights or duties as much and as long as similar ones are not established by the
United States, or any of them. The subjects of the most Christian King shall
enjoy, on their part, in all the domains of the said states, an entire and perfect
reciprocity relative to the stipulations contained in the present article, but it
is at the same time agreed that its contents shall not affect the laws made, or that
may be made hereafter in France against emigrations, which shall remain in all
their force and vigor, and the United States, on their part, or any of them, shall
be at liberty to enact such laws relative to that matter as to them shall seem
proper.'
The interpretation of the provisions of this treaty came before
the supreme court in the case of Chirac v. Chirac,"6 in 1817. A
Frenchman had died in Maryland, seized of certain real estate,
which he had acquired after naturalization.   His heirs being French
l2aMr. Porter, Act. Sect. of State, to Messrs. Stryker and Campbell, Aug.
2, 1887.
"1Sutton v Sutton, 1 Russ. and M., 663; Society, etc. v. New Haven, 8 Wheat.,
464; Moore, Intern. L. Dig., IV., 40.
1455 Atl., 341.
"Rev. Code, 1852, amended 1893, c. 81, sec. 1.
"2 Wheat., 259.


74




citizens, the state of Maryland claimed that the lands were subject
to escheat and proceeded to convey them to a natural son of the
deceased who resided within the state. Maryland also passed an
act permitting the lands of a French subject to descend to next of
kin, provided they should be conveyed to a citizen of Maryland
within ten years. The legitimate heirs of Chirac pleaded the treaty
and brought suit against the grantee of the state. Their contention
was upheld by the court, Chief Justice Marshal saying:
"It is unnecessary to inquire into the consequences of this state of things, because we are all of the opinion that the treaty between the United States and
France, ratified in 1778, enables the subjects of France to hold lands in the United
States. The direct object of this stipulation is to give French subjects the rights
of citizens, so far as respects property. * * * The act of Maryland * * *
is a general rule of state policy, prescribing the terms on which French subjects
may take and hold lands. This rule is changed by the treaty. Upon every principle of fair construction, this article gave to the subjects of France a right to
purchase and hold lands in the United States."
This treaty was limited to eight years. As to the effect of the
expiration upon rights which had accrued under it, the Chief Justice
further said:
"The terms of this instrument leave no doubt on this subject. Its whole effect
is immediate, The instant the descent is cast, the right of the party becomes
as complete as it can afterwards be made. The French subject who acquires
lands by descent the day before its expiration has precisely the same rights under
it as he who acquired them the day after its formation. He is seized of the
same estate, and has precisely the same power during life to dispose of it. This
limitation of the compact between the two nations would act upon and change
all its stipulations if it could affect this case. But the court is of opinion that
the treaty had its full effect the instant a right was acquired under it; that it
had nothing further to perform; and that its expiration or continuance afterwards was unimportant."
Commenting upon the treaty, in 1879, Mr. Justice Swayne,
in Hauenstein v. Lynham, 100 U. S., 483,17 had this to say:
" In Chirac v. Chirac, it was held by this court that a treaty with France gave
to her citizens the right to purchase and hold lands in the United States, removed
the incapacity of alienage and placed them in precisely the same situation as
if they had been citizens of this county. The state law was hardly adverted to
and seems not to have been a factor of importance in this view of the case."
Before considering the provisions of the treaties of 1800 and
1853 between the United States and France, reference will be made
to the laws prevailing in the District of Columbia when those treaties
were entered into. An act of Maryland of 1780 modified the common
law so far as to allow a subject of France who had settled in that
state and given assurance of allegiance to it, to devise to French
subjects, who, for that purpose, were to be deemed citizens of the
state. This did not bear upon the point of a subject of France inheriting from any other than a Frenchman domiciled in the state.
The act of 1791, likewise, did not do away with the disability of
7See also Carneal v. Banks, 10 Wheat., 181.


75




foreigners to take real estate within the state by inheritance from
a citizen of the United States.18
Art. VII. of the treaty with France of 1800 contained the following provisions:
"'The citizens and inhabitants of the United States shall be at liberty to dispose
by testament, donation, or otherwise, of their goods, movable and immovable,
holden in the territory of the French Republic in Europe, and the citizen of the
French Republic shall have the same liberty with regard to goods, movable
and immovable, holden in the territory of the United States, in favor of such persons as they shall think proper. The citizens and inhabitants of either of the
two countries who shall be heirs of goods, movable or immovable, in the other,
shall be able to succeed ab intestato, without being obliged to obtain letters of
naturalization and without having the effect of this provision contested or impeded, under any pretext whatever; and the said heirs, whether such by particular title or ab intestato, shall be exempt from any duty whatever in both countries. It is agreed that this article shall in no manner derogate from the laws
which either state may now have in force, or hereafter may enact, to prevent
emigration; and also that in case the laws of either of the two states should restrain strangers from the exercise of the rights of property with respect to real
estate, such real estate may be sold, or otherwise disposed of, to citizens or inhabitants of the country where it may be, and the other nation shall be at liberty
to enact similar laws."
A case involving this treaty arose in the District of Columbia
in 1889 and came before the supreme court in Geoffroy v. Riggs.'
Mr. Justice Field, in interpreting the treaty, said:
"This article, by its terms, suspended during the existence of the treaty, the
provisions of the common law of Maryland, and of the statutes of that state of
1780 and 1891, so far as they prevented citizens of France from taking by inheritance from citizens of the United States, property, real or personal, situated
therein." 
Article VII. of the treaty of 1800 was in force when the act of
Congress, of February 27, 1801, was passed, adopting the laws of
Maryland. The treaty expired by its own limitations in eight years;
and then the statute and common law of Maryland, as adopted by
Congress in 1801, were again in full force until a new treaty was
concluded between the United States and France, February 23,
1853. The seventh article of that treaty reads:
" In all the states of the Union, whose existing laws permit it, so long and to the
same extent as the said laws shall remain in force, Frenchmen shall enjoy the
right of possessing personal and real property by the same title, and in the same
manner as the citizens of the United States. They shall be free to dispose of
it as they please, either gratuitously or for value received, by donation, testament, or otherwise, just as though citizens themselves; and in no case shall they
be subject to taxes on transfer, inheritance, or on any others different from those
paid by the latter, or to taxes which shall not be equally imposed."
"As to the states of the Union, by whose existing laws aliens are not permitted to hold real estate, the President engages to recommend to them the
passage of such laws as may be necessary for the purpose of conferring this right."
This raises the question as to whether the District of Columbia
is one of the "States of the Union," as contemplated by this con"Spratt v. Spratt, 1 Pet., 343.
19133 U. S., 258.


76




vention. The supreme court, in interpreting treaties, has more than
once declared that these should, whenever possible, be liberally
construed, so as to carry out the apparent intention of the parties
to secure equality and reciprocity between them. So interpreting
the treaty, the court held that the District of Columbia was one of
the "'States of the Union," in the sense of the treaty of 1853; and
that the disability of Frenchmen from alienage in disposing and inheriting property, real and personal, is removed, wherever existing
laws permit, as in the District, of aliens holding such property.
The court thought that this construction was supported by the
first section of the act of Congress of March 3, 1887, prohibiting
aliens from holding real estate in the District of Columbia and the
territories. It further said:
"That section declares that it shall be unlawful for any person or persons, not
citizens of the United States, or who have not declared their intention to become
citizens, to thereafter acquire, hold, or own real estate, or any interest therein,
in any of the territories of the United States or in the District of Columbia, except such as may be acquired by inheritance or in good faith in the ordinary
course of justice in the collection of debts previously created. There is here a
plain implication that property in the District of Columbia and in the territories
may be acquired by aliens by inheritance under existing laws; and no property
could be acquired by them in the District by inheritance except by virtue of the
law of Maryland as it existed when adopted by the United States during the existence of the convention of 1800, or under the seventh article of the convention
of 1853.' 20
By the treaty of 1795 between the United States and Spain,
it was provided:
"* * * that the inhabitants of the territory of each party shall, respectively, have free access to the courts of justice of the other; and they shall be permitted to prosecute suits for the recovery of their property, etc., and the proceedings and sentences of the said courts shall be the same as if the contending parties
had been citizens or subjects of the said (same) country."
Several acts of Congress (that of 1798, that of 1804, putting the
territorial government of Louisiana on the same basis as that of
Mississippi, and that of 1805, adopting the Ordinance of 1787, in its
general terms)confirmed the inhabitants of Louisiana in the possession
and protection of their property, while Art. III., of the treaty of
1803 provided that:
"the inhabitants of the ceded territory shall be incorporated in the union of
the United States and admitted, as far as possible, according to the principles
of the federal constitution, to the enjoyment of all the rights, advantages, and
immunities of citizens of the United States; and in the meantime, they shall be
20This treaty of 1853 with France, by which citizens of France are entitled
to acquire, by inheritance or otherwise, real estate in all respects the same as
a citizen of the United States in the states by whose laws aliens are permitted
to hold real estate, made inoperative an act passed by the State of Nebraska
in 1889, prohibiting non-resident aliens from acquiring realty by inheritance,
for, by the laws of Nebraska aliens were permitted to hold realty. (Bahuaud v.
Bize, 105 Fed. Rep., 485.)


77




maintained and protected in the free enjoyment of their liberty, property, and
the religion they profess."
The provisions of these treaties and acts came before the supreme court for adjudication in the case of Pollard's Heirs v. Gaius
Kibbe, in 1840. In this case, Mr. Justice Baldwin said:21
"From the moment of such incorporation (i. e. of the Louisiana territory into
the domain of the United States), the constitution of the United States and its
amendments interposed between the inhabitants and the legislative power of
the United States the same guarantee which any citizen of any other state had
a right to claim for the enjoyment of his property; and every proprietor, alien or
citizen, had the same constitutional right to invoke the protection of the judicial
power of the state or union against the invasion of his rights of person or property
wherever he might be located. * *  *  By the very and sole act of such incorporation, the inhabitants became citizens of the United States, their property
was protected and alien proprietors became entitled to all the rights secured
to them by any treaty between their sovereign and the United States."' (The
Justice then states "that on this state of things the treaty of 1819 had no influence. '")
The treaty.with Spain of July 3, 1902, contained the following
provision:
"Where, on the death of any person holding real property (or property not
personal) within the territories of one of the Contracting Parties, such real estate
would, by the laws of the land, pass to a citizen or subject of the other were he
not disqualified by the laws of the country where such real property is situated,
such citizen or subject shall be allowed a term of three years in which to sell
the same, this term to be reasonably prolonged if circumstances render is necessary, and to withdraw the proceeds thereof without restraint or interference,
and exempt from any succession, probate or administrative duties or charges other
than those which may be imposed in like cases upon the citizens or subjects
of the country from which said proceeds may be drawn.
"The citizens or subjects of each of the Contracting Parties shall have
full power to dispose of their personal property within the territories of the other,
by testament, donation, or otherwise; and their heirs, legatees, and donees,
being citizens or subjects of the other Contracting Party, whether resident or
non-resident, shall succeed to their said personal property, and may take possession thereof either by themselves or by others acting for them, and dispose of the
same at their pleasure, paying such duties only as the citizens or subjects of the
country where the property lies shall be liable to pay in like cases.
"In the event that the United States should grant to citizens or subjects
of a third Power the right to possess and preserve real estate in all the states,
territories, and dominions of the Union, Spanish subjects shall enjoy the same
rights; and, in that case only, reciprocally, the citizens of the United States
shall also enjoy the same rights in Spanish dominions."
In the treaty between the United States and Switzerland,
concluded November 25, 1850, (ratified in 1855), the fifth article
provided as follows:
"The citizens ofeach one of the contracting parties shall have power to dispose of their personal property within the jurisdiction of the other by sale, testament, donation, or in any other manner; and their heirs, whether by testament or ab intestato, or their successors, being citizens of the other party, shall
succeed to the said property or inherit it, and they may take possession thereof
either by themselves or by others acting for them; they may dispose of the same
as they may think proper, paying no other charges than those to which the inhabitants of the country wherein the said property is situated shall be liable to
pay in a similar case. In the absence of such heir, heirs, or other successors,
2114 Pet., 351.


78




the same care shall be taken by the authorities for the preservation of the property
that would be taken for the preservation of the property of a native of the same
country, until the lawful proprietor shall have had time to take measures for
possessing himself of the same.
'The foregoing provisions shall be applicable to real estate situated within
the states of the American Union, or within the cantons of the Swiss confederation, in which foreigners shall be entitled to hold or inherit real estate.
" But in case real estate situated within the territories of one of the contracting parties should fall to a citizen of the other party, who, on account of his being
an alien, could not be permitted to hold such property in the state or in the
canton in which it may be situated, there shall be accorded to the said heir, or
other successors, such terms as the laws of the states or canton will permit to
sell such property; he shall be at liberty at all times to withdraw and export the
proceeds thereof without difficulty, and without paying to the Government
any other charges than those which in a similar case would be paid by an inhabitant of the country in which the real estate may be situated."
When this treaty came before the supreme court of the District
of Columbia,22 the court said:
"The clear intent of this clause of the treaty, therefore, we think is that a citizen of one country may dispose of his property in the other, and that on his
death, his heirs, who may be citizens of the other, shall inherit his personal
property wherever it may be, and the terms " said property'" mean said personal
property without the limitation of being within the jurisdiction of the other
party.
"It will be presently seen, however, that the treaty clearly means to give
the right to inherit where it does not exist already and also where there may be
no right to hold if inheriting it. Therefore, it cannot intend to place the property
in places where there is already a right to hold it by inheritance."
This treaty of 1850 came before the supreme court of the United
States also in Hauenstein v. Lynham,23 in 1879. The point involved
was whether or not a state law, in conflict with a treaty, must give
way. Hauenstein, a citizen of Switzerland, had died in Virginia in
1861, intestate and without issue. The common law prevailed in
Virginia at that time so far as to make aliens incapable of taking
by descent or inheritance. Therefore, for want of an heir capable
under the statutes of the state of inheritingthe lands whereof Hauenstein had died, seized in fee, they were sold by an escheator. Thereupon Hauenstein's next of kin, a citizen of Switzerland, filed a petition to recover the proceeds of the sale. After construing the treaty
and observing that all treaties made under the authority of the United
States are the superior law of the land, the court held that the incapacity of the plaintiff as an alien was so far removed as to entitle
him to recover and sell the lands, and withdraw and export the proceeds thereof; and that his rights thus secured were not barred by
the lapse of time, inasmuch as no statute of Virginia prescribes the
term within which they must be asserted.
By the formation of the German Empire, in 1871, the treaties
formerly entered into between the United States and the independent
221 Mackey, 487.
23100 U. S., 483.


79




German governments, now embraced in the Empire, were not impaired, because the sovereignty of these states is considered not to
have been impaired.24   It follows that in regard to Germans, their
treaty rights are such as proceed from their being subjects of particular German states, not as subjects of the German Empire.
In the treaty entered into with the Hanseatic Republic in 1827,
it was provided that the citizens of each of the contracting parties
should have power to dispose of their personal goods, within the
jurisdiction of the other, by sale, donation, testament, or otherwise;
*  *   *  "and if, in the case of real estate, the said heirs would be
prevented from entering into the possession of the inheritance, on
account of their character of aliens, there shall be granted to them
a term of three years to dispose of the same, as they may think proper,
and to withdraw the proceeds without molestation, and exempt
from all duties of detraction, on the part of the government of the
respective States."
The provisions of this treaty came before the Illinois Supreme
Court, in 1893, in the case of Schultze v. Schultze,25  The deceased
was a citizen of the United States and died seized of land in Illinois,
after the passage of a law by the Illinois legislature in June, 1887,
making non-resident aliens incapable of acquiring land, either by
descent, device, purchase, or otherwise.   His heirs were (in part)
citizens of the Republic of Bremen. Mr. Justice Magruder, interpreting this treaty for the court, said:
"If the language of Art. VII. be given a liberal construction, it may be
held to mean that, where a citizen of the United States dies intestate owning land
and leaving non-resident alien kindred residing in and citizens of Bremen who
would be his heirs but for their alienage, there will be granted to such kindred
the term of three years within which they may dispose of such land and remove
the proceeds  * * * The appellees are therefore entitled, under Art. VII.
of the treaty, to the privilege of selling the interest in the land in controversy
which they would have inherited from the deceased under the laws of Illinois,
but for their alienage, and of removing such proceeds of sale, provided they do
so within three years."
After providing for the disposal of personal estates by will or
otherwise, the treaty entered into between the United States and
Prussia in 1828 continued:
"And where on the death of any person holding real estate within the territories of the one party, such real estate would, by the laws of the land, descend
on a citizen or subject of the other, were he not disqualified by alienage, such
citizen or subject shall be allowed a reasonable time to sell the same, and to
withdraw the proceeds without molestation and exemption from all duties of
detraction, on the part of the government of the respective States."
In May, 1896, the legislature of New York passed a law granting
to aliens the right to hold real property within the state on proof
24Re Thomas, 12 Blatch., 370.
25144 Ill., 290.


80




of reciprocal treatment in the alien's country. Shortly afterwards,
a naturalized citizen of the United States died in New York, leaving
all his real and personal property in that state to a sister, a German
subject, residing in Prussia. As to the relation existing between
the United States and Prussia on this point, the Department of State
said: "The reciprocal right of the citizens or subjects of the one
country to succeed to and take possession under testament, donation, or otherwise, of property situated in the other country, is regulated by Art. XIV. of the treaty of 1828. * * * The laws of
Prussia are understood to permit aliens to acquire both personal and
real property and to possess equal rights with natives as participators in an inheritance. "25a
The treaty between the United States and the German Empire,
made Dec. 11, 1871, shortly after the formation of that empire, contained the following provision:
"In all successions to inheritances, citizens of each of the contracting parties
shall pay in the country of the other such duties only as they would be liable to
pay if they were citizens of a country in which the property is situated or the
judicial administration of the same may be exercised."
This provision, prohibiting discriminating duties on inheritances,
merely recognizes existing rights and does not confer a right of inheritance where it has not been granted by treaty.    The United
States had, at the time, no treaty with Baden, covering this point,
and the treaty with the German Empire, of which Baden, after 1871,
formed a part, conferred no new rights so far as the power to take,
hold, or dispose of land was concerned.
When, therefore, Alexander Wunderle, a naturalized citizen,
died intestate in 1891, seized of land in Illinois, a distributive share
in the estate was claimed by a brother and a sister, subjects of
Baden, whose claim was disputed by the widow, a citizen of the
United States, on the ground that the Illinois law of 1887 regarding
alien ownership of land prohibited any such inheritance as is here
claimed. That act declares that a "non-resident alien * * * shall
not be capable of acquiring title to or taking or holding any lands or
real estate in this state by descent." This case was decided by the
Illinois Supreme Court in 1893.26 The court held that the state statute
was not invalidated by treaties between the United States and foreign
powers, except in regard to citizens of countries who are, by treaty,
given the right of inheriting and holding land in the United States,
and that this was not true of Baden and its subjects. Mr. Justice
Magruder, in concluding the opinion of the court, said:
25aMr. Day, Assist. Sec. of State, to Mr. Kemper, Oct. 21, 1897.
26Wunderle v. Wunderle, 144 Ill., 40.


81




"Inasmuch, therefore, as the appellants cannot inherit from their deceased
brother by reason of their alienage, the interest in the land, which would otherwise have gone to them, descends to the next of kin competent to take under the
statutes of Illinois. We are of the opinion that the appellee must be regarded
as such next of kin. * * * Our conclusion upon the whole case is that the
act of 1887 is a valid law, in the respects herein indicated, except as to those
aliens who are relieved from the effects of its operation by existing treaties between the United States and the countries of which such aliens are citizens or
subjects."
In a treaty between the United States and Sardinia, of November 26, 1838, it is provided that "'Where, on the death of any person
holding real estate within the territories of one of the contracting
parties, such real estate would by the laws of the land descend on
a citizen or subject of the other party, who by reason of alienage
may be incapable of holding it,"' such citizen or subject is "'allowed
a reasonable time to sell such real estate; and to take away the
proceeds without paying any other taxes than those to which the
inhabitants of the country where the real estate is situated are subject in like cases.'  "This provision may be thought to cover the
case of a Sardinian subject, who has become a citizen of the United
States, but whose heirs are Italian subjects and reside in Italy. It
may be argued, however, that the stipulation is only for the benefit
of those aliens who, but for their alienage, would take by the laws
of inheritance, and that it does not embrace those who take in virtue
of an express device. '27 The treaty made with Italy, Feb. 26, 1871,
supersedes that with Sardinia of 1838, and provides that in respect
of real estate the citizens and subjects of the contracting parties
shall be treated as are the subjects of the most favored nations.
It is interesting to note that the opinion was once advanced
in government circles that the federal government did not possess
the right to make a treaty that would interfere with the domestic
institutions obtaining in the different states. Attorney-General
Wirt, writing to the Secretary of State, July 30, 1819, says: "* * *
nor is there any power in the general government, as I can see, to
alter, either by law or treaty, the provisions of the particular States
in this respect.' 28 Somewhat later in Prevost v. Greneau29 the court
said:  " '*     *  it is proper to say that the obligation of the treaty
and its operation in the state depend upon the laws of Louisiana.
The treaty does not claim for the United States the right of controlling
the succession of real or personal property in the state. 30 The
27Moore, Int. L. Dig., IV. 41, quoting from Mr. Fish, Sec. of State, to Count
de Colobiano, in 1870.
281 Op. A.-G. 275.
2919 How. 1.
30About the same time, it may be noted, treaties were being made without
any regard to the states' laws.


82




view here advanced did not receive general approval, however, but
it again came into vogue about 1850, and the treaties of that period
proceed on the principle that the federal government must not interfere with the disposition of land by the states, as witness the treaties (supra) with France in 1850, Brunswick 1854, and Switzerland,
1850 (ratified 1855).
This doctrine was discredited in 1857 in the opinion of Attorney
General Cushing31 who said that "the government of the United
States had constitutional power to enter into treaty stipulations with
foreign states for the purpose of restricting or abolishing the property
disabilities of aliens, or their heirs, in the several states.'" Since that
time it has been accepted as established that the federal government
has power to regulate all matters of an international character
properly the subject of negotiation between our government and
other nations. As late as 1886, however, Secretary Bayard referred
to this matter in the following words:  "Were the question whether
a treaty provision which gives to aliens rights to hold real estate in
the state to come up now for the first time grave doubts might be
entertained as to how far such a treaty would be constitutional.
A treaty is, it is true, the supreme law of the land, but it is nevertheless only a law imposed by the federal government, and subject
to all the limitations of other laws imposed by the same authority.
While internationally binding the United States to the other contracting powers, it may be municipally inoperative because it deals
with matters in the states as to which the federal government has
no power to deal. That a treaty, however, can give to aliens such
rights has been repeatedly affirmed by the Supreme Court of the
United States.' 32
In speaking of the treaty-making power of the federal government as not requiring any state legislation for carrying out its provisions, Butler says:33
'So far reaching is this treaty-making power that the author unhesitatingly
Condemns the policy which has occasionally been adopted by the United States
of avoiding absolute treaty stipulations as to matters within the jurisdiction
of the several states, but at the same time stipulating to urge the States to enact
legislation necessary to obtain the desired results. Such method is not only unnecessary, but is also undignified; in many cases, the results are not only unsatisfactory, no distinct obligations being created, but they are frequently productive
of injustice. A general concession for the benefit of the entire Union and all of
the inhabitants thereof may be lost by the refusal of the legislature or people
of a single state to adopt necessary legislation; in fact, history shows that Art.
VI. of the Constitution, which makes treaties the supreme law of the land, was
undoubtedly framed and inserted in the Constitution for the special purpose of


a88 Op. A.-G., 411.
8'160 M. S., Dom. Let., 441; See also Cent. L. Jour., vol. 43, 216.
33Treaty-Making Power of the United States, sec. 4.


83




preventing exactly that class of treaty stipulations which, under the Confederation, had been tried on several occasions and found wanting in every instance."'
As a summary of the treaty provisions on this point34 we may
divide the European countries with which the United States has
treaties, or has not treaties, in regard to the right to hold real estate,
into three groups:
With the following countries there are no treaties in force:
Baden, Belgium, Denmark, the German Empire,35 Greece, the Netherlands, Norway, Portugal, Sweden.
With the following countries we have treaties of doubtful construction:  France, (the effect of the treaty of 1853 has been noted)
Switzerland (likewise, the effect of the treaty of 1850 has been considered.)
With these countries their citizens are fully protected by treaties:
Great Britain; certain of the German states, as Prussia, Bavaria,
Hesse, Saxony, Wuertemburg, the Republics of Hamburg, Lubeck,
and Bremen, Mecklenburg-Schwerein, and Oldenburg; Italy; Servia;
Russia (Art. X., treaty of 1832);Spain; and Austria Hungary (Art.
X., of the treaty of 1848, grants "'two years which may be reasonably
prolonged according to circumstances. ")
These treaties generally grant to subjects of the foreign power,
who, but for their alienage, would be entitled to acquire the lands
in question, the right, notwithstanding alien disabilities of the lex
rei sitae, to acquire lands in the states and territories and in the
District of Columbia.36 The estates so acquired, though held by the
alien, as if by a citizen, are defeasible, under the condition that the
lands acquired under them must be sold to a person able to hold them,
and within the times provided for in the treaties.37 The power to sell,
provided for in the treaties, is a property right and not a mere personal
privilege.3  If the conditions of the treaty are broken, the lands
will not immediately escheat to the state, but a special proceeding,
corresponding to inquest of office found, is necessary to vest the
title in the state, especially where the treaty gives a reasonable time
in which to sell the land.39 It would seem that where a non-resident
alien owner dies before having sold the land acquired under a treaty,
the provisions of these treaties warrant the conclusion that the lands
34Using the treaties in force April 28, 1904.
35See p. 137.
36Johnson v. Elkins, 1 App. D. C., 430; Jost v. Jost, 1 Mackey, 486.
37Chirac v. Chirac, 2 Wheat., 275; Schutlze v. Schultze, 144 Ill., 290.
38De France v. Howard, 1 Fed. Rep., 776.
39Wunderlee v. Wunderlee, 144 Ill., 40; Society etc. v. New Haven, 8 Wheat.,
492; Slater v. Mason, 15 Pick., 345.


84




descend to his non-resident heirs protected by a similar treaty.40
Under a device to an executor in trust to sell the land and turn over
the proceeds to the alien, the doctrine of conversion will be applied,
thus avoiding the violating of any statute, like that of 1887. The
alien non-resident may thus enforce his rights to the proceeds and
compel a sale by the executor and so avoid all questions of title or
escheat.4'
It would thus seem that great advance has been made over the
former harsh method of treating aliens. The law is now construed
much more favorably as to alien disabilities than during the time
when a low state of commercial intercourse and civilization regarded
all foreigners as barbarians. To exclude a citizen from taking lands
by inheritance merely because he traced descent through deceased
aliens, in accordance with the harsh doctrine of the droit d' aubaine,
seems not to have been founded on any sound principle of public
policy and the principle of "placing the foreigner in regard to all
objects of navigation and commerce upon a footing of equal favor
with the native citizen" is eminently conducive to international
comity, and is winning its way into universal acceptance. The
medieval doctrine that the laws of a state operate only in favor of
citizens should not be permitted to obtain in modern times and
civilized countries. The laws should protect aliens acquiring land
by operation of law and in collecting their debts, as is now the rule
in most of our states and in most of the civilized nations of the world.
To place aliens under such favorable circumstances has been the object of the treaty provisions which we have just been considering.
As to the treaties with China and Japan only a word need be
said. While these treaties have attempted to secure to the subjects
of those empires the same rights in our country as the nations of
Europe have, the working out of this relation has been quite different.
Ever since the large influx of Chinese laborers into the Pacific Coast
states, in the late 60's and 70's, giving rise to an acute Chinese
'question,' the subjects of the celestial Empire, particularly, have
been treated differently from other aliens. Up to 1880, the treaties
between the United States and China provided for reciprocal rights
of emigration, travel, and daily pursuit of business and labor. Thus,
in the treaty of 1868 we find this provision:
"The United States of America and the Empire of China cordially recognize
the inherent and inalienable right of man to change his home and allegiance,
and also the mutual advantage of the free migration and emigration of their


40Manuel v. Wulff, 152 U. S., 506; Maynard v. Waynard, 36 Hun., 227;
Chirac v. Chirac, 2 Wheat., 276.
41Craig v. Leslie, 3 Wheat., 563; Comm. v. Martin, 5 Munf., 117.


85




citizens and subjects respectively from one country to the other for purposes
of curiosity, of trade, or as permanent residents."
Again it was provided that:
"Citizens of the United States, visiting or residing in China, shall enjoy the
same privleges, immunities, or exemptions in respect to travel or residence as
may there be enjoyed by the citizens or subjects of the most favored nations;
and, reciprocally, Chinese subjects visiting or residing in the United States shall
enjoy the same privileges, immunities, and exemptions in respect to travel or
residence as may there be enjoyed by the citizens or subjects of the most favored
nations.''
The Chinese came in such numbers and aroused such antagonism during the seventies that much hostile legislation, some of it
in violation of their treaty rights, was enacted by the states and local
governments affected by the influx. Such legislation, in so far as
it was plainly discriminatory and in violation of the rights secured
to them by existing treaties, was declared unconstitutional whenever
it became before the federal courts. This situation led to a new
treaty with China in 1880, which read:
'Art. I. Whenever, in the opinion of the government of the United States,
the coming of Chinese laborers to the United States, or their residence therein
affects or threatens to affect the interests of that country, or to endanger the good
order of the said country or of any locality within the territory thereof, the
Government of China agrees that the Government of the United States may
regulate, limit, or suspend such coming or residence, but may not absolutely
prohibit it. The limitation or suspension shall be reasonable and shall apply
only to Chinese who may go to the United States as laborers, other classes not
being included in the limitations. Legislation taken in regard to Chinese laborers
will be of such a character only as is necessary to enforce the regulation, limitation, or suspension of immigration, and immigrants shall not be subject to personal maltreatment or abuse.
"Art. II. Chinese subjects, whether proceeding to the United States as
teachers, students, merchants, or from curiosity, together with their body and
household servants, and Chinese laborers who are now in the United States,
shall be allowed to go and come of their own will and accord, and shall be accorded
all the rights, privileges, immunities, and exemptions which are accorded to the
citizens and subjects of the most favored nation.
"Art. III. If Chinese laborers, or Chinese of any other class, now either
permanently or temporarily residing in the territory of the United States, meet
with ill treatment at the hands of any other persons, the Government of the
United States will exert all its power to devise measures for their protection and
to secure to them the same rights, privileges, immunities, and exemptions as
may be enjoyed by the citizens or subjects of the most favored nation, and to
which they are entitled by treaties."
The antagonism and disorder due to the presence of Chinese
laborers42 led to a new treaty in 1894 by which such persons were
absolutely prohibited from coming to the United States for a period
42"References on Chinese Immigration" (1904) by P. C. Griffin, Library
of Congress, is a complete guide to material on this subject. In particular there
may be consulted the Report of the Senate Committee of the California Legislature (1877); 44th Cong., 2d ses., S. R., Nos. 689-1281; 46th Cong., 2 ses., H.
R., No., 572; 48th Cong., 1st ses., Sen. Exec. Doc., Ho. 62; 49th Cong., 1st ses.,
House Exec. Doc., pt. 5, vol. II., 1223, 1284; "Chinese and the Chinese Question," (1888) Whitney


86




of ten years, though its provisions were not to affect the rights of
officials, teachers, students, merchants or travellers to come and
reside as formerly. If neither nation gave notice, the treaty was to
run for a further period of ten years.4 -In the convention of Nov. 22, 1894, between the United States
and Japan, it is provided that:
"The citizens or subjects of each of the two High Contracting Parties shall
have full liberty to enter, travel, or reside in any part of the territory of the other
Contracting Party and shall enjoy full and perfect protection for their person
and property. * * * In whatever relates to rights of residence and travel;
to the possession of goods and effects of any kind; to the succession to personal
estate, by will or otherwise, and the disposal of property of any sort and in any
manner whatever which they may lawfully acquire, the citizens and subjects
of each Contracting Party shall enjoy in the territories of the other the same
privileges, liberties, and rights, and shall be subject to no higher imposts or
charges in these respects than native citizens or subjects of the most favored
nation. '
It is further provided, however,
"that the stipulations contained in this and the preceding Article do not in any
way effect the laws, ordinances, and regulations with regard to trade, the immigration of laborers, police and public security, which are in force or may hereafter be enacted in either of the two countries."
The provisions of this treaty became a matter of concern in
the recent Japanese school question at San Francisco.     The Japanese contended that the rights and privileges of education are incident
to residence and travel, and that the denial of such privileges on
the terms enjoyed by the subjects or citizens of the most favored
nations was contrary to the provisions of the treaty.44
PROTECTION    OF ALIENS.-Having seen what rights existing
treaties gave resident aliens, it is proposed now to consider how the
rights guaranteed are actually secured, and especially what legislation Congress has enacted or has proposed to enact in order to carry
out the treaty provisions. Reference has already been made to
the general rights regarding the protection of person and property
which aliens enjoy under the law of nations. Here our consideration
is limited chiefly to such rights as are granted by treaty.
It is a fundamental principle in international law that a state
is responsible to other states for its actions or non-actions. This
arises out of the duty, correlative to the right which a state has of
controlling its foreign relations. If, therefore, a state enters into a
treaty it becomes responsible for the infractions of that treaty


43By the act of April 29 1902, (33 Stat. 428) all laws in force at that time,
affecting Chinese were continued without limitation of time.
4The points here involved are discussed fully in subsequent pages.


87




throughout its territory and cannot escape liability on the plea
that some local authority has failed to act.45
As the power of our states over aliens is limited by the federal
constitution and treaties, they cannot exclude aliens from entering
their territory, or limit their right to carry on foreign commerce,
nor exclude them from common occupations not requiring special
skill or moral qualifications. "Nor is it, generally speaking, competent for the states to deprive resident aliens of any privilege accorded to foreigners by the comity of nations or to discriminate
against them   when equal treatment is guaranteed by treaty."46
The Fourteenth Amendment is universal in its application and extends its protection to aliens by the provision "'nor shall any state
deprive any person of life, liberty, or property without due process
of law; nor deny to any person within its jurisdiction the equal protection of the laws."47 This amendment thus prohibits state legislation that is discriminatory or partial, either favoring, or being
prejudicial to, particular persons or classes. Equality of protection
implies equal accessibility to the courts and equal exemption with
others of the same class from charges or burden of every kind.48
A state may, however, without violating this provision of the constitution, deny to an alien the right to hold real estate (unless protected by treaty),49 or to sell liquor.50  It may deny to a Mongolian
or Indian the right to testify for or against a white man,51 and deny
to an alien a jury of his own race, provided no discrimination has
been shown against him in the selection of the jury.52
Secs. 1977 and 1979 of the Revised Statutes are a partial enumeration of the rights and immunities guaranteed by the constitution. The first provides that all persons within the jurisdiction of
the United States shall have the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed
by white citizens, and shall be subject to like punishment, pains,
45See Madison to Pinckney, Oct. 25, 1802.
46Freund, "Police Power," sees. 705, 706.
47Yick Wov. Hopkins, 118 U. S., 356.
48In re. Lee Sing, 43 Fed. Rep., 359.
49Fairfield v. Hunter, 7 Cr., 602; Chirac v. Chirac, 2 Wheat., 259.
5~Tragesser v. Gray, 73 Md., 250.
51People v. Brady, 40 Cal, 198.
52In re. Jugiro, 140 U. S., 291.
Speaking of the Fourteenth Amendment, the court in Strauder v. W. Va.,
(100 U S., 303) says: "The Fourteenth Amendment makes no attempt to
enumerate the rights it designs to protect. It speaks in general terms and those
are as comprehensive as possible  Its language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which
is the immunity from inequality of legal protection, either for life, liberty, or
property."


88




penalties, taxes, licenses, and exactions of every kind, and to no
other.53  This secures aliens from discriminating exactions of every
kind.54  Section 1979 provides that every person who, under color
of any statute or authority of any state or territory subjects any
citizen of the United States or other person within the jurisdiction
thereof, to the deprivation of any rights, privileges, or immunities
secured by the constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress.55
Sections 550856 and 5510 provide a criminal procedure corresponding to the civil remedies just mentioned. The former of these
two sections contemplates the punishment of any one who conspires
to injure or intimidate citizens in the exercise of their civil rights.
Section 5510 provides that every person who, under color of any
state or territorial law, deprives any inhabitant of a state or territory
of any right, privilege or immunity secured or protected by the constitution:and laws of the United States, or subjects him to different
punishments "on account of such inhabitant being an alien" shall
be punished by fine, or imprisonment, or both.
In spite of these guarantees and protections contained both in
the federal constitution and statutes, resident aliens have often received treatment at the hands of individuals or of mobs, in different
states, outraging the rights secured to them by these treaties, and thus
causing embarrassment to the government. The latter has always
contended that it was not liable for such outrages, as they were in
violation of the peace and dignity of the individual states within
whose jurisdiction they occurred, and were not, therefore, punishable by the federal government. Evidently, however, there is an
inconsistency between the federal guarantee of treaty rights and its
unwillingness or inability to protect such rights. Foreign governments must, in such matters, look solely to the federal government,
and the acts of mob violence have, on several occasions, given rise
53Act May 31, 1870, 16th Stat. 144.
54Before this statute was passed, laws had been upheld requirng of all aliens
a special license fee for digging in gold mines, (People v. Naglee, 1 Cal., 323),
and exacting of them an inheritance tax. (Mager v. Grima, 8 How., 490.)
55Act, April 20, 1871, 17th Stat., 13.
56Act May 31, 1870, 16th Stat., 141.
In Baldwin v. Franks, (120 U. S., 678) it was held that "citizen" was used
in the restricted sense and did not include aliens; and that an indictment brought
under this section charging certain persons with a conspiracy to deprive Chinese
aliens of the right of residence in California, could not be sustained. While
there was no law covering the offense stated, the court strongly intimated that
Congress had ample power to provide for the punishment of any offense against
rights given to aliens by treaty


89




to just complaint on the part of nations whose subjects have been
injured. In a number of instances, the government has felt compelled to confess to foreign states its inability to furnish the legal
redress needed, and has recognized the equity of the demands made
upon it for satisfaction by providing indemnities for the families
of the afflicted. This was notably true in the case of the Spanish
riots, in 1851, and the Italian, in 1891.
The position of the federal goverment in regard to its treaty
obligations has frequently been a matter for consideration. In
1837, the Attorney-General57 advised the President:
"There can be no doubt under the law of nations and independently of any
treaty stipulation that alien subjects of a state with whom the United States
are at peace, coming within our territory and placing themselves with the consent
of the general state governments under the safeguard of our laws, are entitled
to be protected in their personal rights, in like manner as citizens, and that it
is the duty of the executive of the United States to whom the care of our foreign
relations is committed by the constitution to take all lawful measures for the
promotion of this end. It is obvious, however, from the principles on which
our institutions are founded and the particular structure of our government,
that the capacity of the federal executive in this respect will in most cases be
limited to the mere duty of taking care that such laws as may have been passed
by Congress on the subject be faithfully executed and redress can only be obtained
through the courts of justice, or in fit case, by the special interposition of the
legislature.' 58
The belief has been growing for many years that the federal
government has the power and the duty to provide, by its own legislation, for the carrying out of all its treaty stipulations.59 The matter came up for consideration, and this time in an insistent form,
after the massacre of the Italians at New Orleans in 1891. The
Italian government demanded: "(1) The official assurance of the
federal government that the guilty parties should be brought to
trial; and (2) The recognition, in principle, that an indemnity is
due to the relatives of the victims.' 60 Our government refused to
accede to the demands made upon it (especially as to the first point)
and the Italian ambassador withdrew from Washington. Secretary
Blaine, in explaining the situation to the Italian charge d' affair,
said:  "*   *  *   the government of the United States is utterly
unable to give the assurance which Marquis Rudini has demanded
Even if the National Government had the entire jurisdiction over
the alleged murderers, it could not give assurance to any foreign
power that they should be punished.' "6 Mr. Blaine pointed out
573 Op. A.-G., 253. See also Webster "The Law of Citizenship," p. 289.
58That alien resident should be indemnified, if it can be shown that the mob
could have been suppressed by the exercise of due care, see 2 Whart. Dig., 600;
Snow's Int. Law, 181; An. of Am. Acad., II., 69.
59See President Grant's message to Congress of Dec. 7, 1875.
6~For. Rel. 1891, 676.
"6Ibid., 677.


90




that the United States did not, by the treaty with Italy, become
the insurer of the lives or property of Italian subjects resident here;
that the foreign resident must be content to share the same opportunity for redress that is offered by the law to citizens, and has no
just cause of complaint or right to ask the interposition of his government, if the courts are equally open to him for the redress of his
injuries.
President Harrison, in his message to Congress of December
9th, 1891, referring to the New Orleans affair, spoke of the necessity
of protecting aliens in their treaty rights and recommended such
legislation as would give the courts of the United States iurisdiction, in the following words.
"It would, I believe, be entirely competent for Congress to make ottenses
against the treaty rights of foreigners domiciled in the United States cognizable
in the federal courts. This has not, however, been done, and the federal officers
and courts have no power in such cases to intervene either for the protection of
a foreign citizen or for the punishment of his slayers. It seems to me to follow
in this state of the law, that the officers of the state charged with police and judicial powers in such cases must, in the consideration of international questions,
growing out of such incidents, be regarded in such sense as federal agents as to
make this Government answerable for their acts in cases where it would be answerable if the United States had used its constitutional power to define and punish crimes against treaty rights."
In pursuance of the President's recommendation, the matter
was taken up in Congress and the following resolution was presented
on February 18, 1892 62
"* * * * resolved that so much of the President's annual message, communicated to the present Congress as relates to criminal offenses committed
within the United States, against the treaty rights of foreigners, domiciled
within the United States, be referred to the committee on foreign relations with
instructions to report such provisions of law as will empower the federal courts
to try all such cases involving the cause of international questions, and with
such judicial process as will enable the government of the United States to use
its constitutional power to punish acts against such treaty rights as have been
conferred on foreigners."
The committe to which the resolution was referred reported as
follows:
"If a treaty stipulation be a part of the supreme law of the land, (Art. VI.,
Constitution) it is not only the right but it is the duty of Congress to provide
for its enforcement and for the enjoyment of it by those who are entitled
thereto.''
The committee brought in a bill which was discussed in the Senate, May 9, 1892. It was drafted on the supposition that Congress
had the power to adopt the laws of the several states defining crimes
against personal property, and to make them punishable in the courts
of the United States. Misdemeanors were not included. The bill
provided that where crimes were committed against the person or
property of a citizen of a foreign country, they should constitute
62Cong. Rec., XXIII., pt. 2, 1266.


91




crimes against the peace and dignity of the United States, and instead of being prosecuted in the state courts only, they might be
prosecuted in the federal courts also. The statutes of the states
should define the crime, prescribe the punishment, and furnish the
limitations. That is, the bill provided that crimes which were in
violation of rights secured by treaty might be prosecuted in the courts
of the United States, the same as under existing laws they were punishable in the courts of the states. Thus it is seen that the measure
provided for concurrent jurisdiction.
In the debate which took place in the Senate, Senator Morgan
stated63 that the United States enters into treaty obligations with
foreign powers for the purpose of protecting their citizens within
the limits of our domain. As each one of our states and territories
has a separate criminal code of its own, with jurisdiction over life
and property, the question arises whether we are to resort to the
statutes and courts of the United States to find that protection,
or whether we are to resort to the local courts and statutes. The
settlement of such causes as have arisen out of this conflict of authority has led to confusion and difficulties between our country
and foreign countries and has been the subject of consideration for
many years. In the recent serious trouble with Italy the question
was whether the government of the United States was bound to
protect in its own tribunals the lives of the subjects of that country
who might be domiciled here. In that case the United States was
obliged to say " We have no law which authorizes the government of
the United States or any part of the government of the United States
to interfere for the protection of the lives of your citizens. " Then,
the inquiry instantly arose, "Why did you make the obligation,
why did you enter into the contract, why did you engage to protect
the lives of our citizens when you have not the power to do so?"
Thereupon arose the necessity which this bill attempts to provide
for by adopting the statutes of the states and making them the rule
of action in the federal courts. The bill is limited to the protection
of those rights which are secured to foreigners by treaty. Such
rights cannot be protected in any other way than in the courts of
the United States, unless the supreme power is left to depend entirely upon state action. The Senator went on to say that when the
Italian government demanded of the government of the United
States that it should bring to trial the persons who were accused of
having violated the international law and the treaty of the United
63Cong. Rec. XXIII., pt. 5,14559.


92




States with Italy, the government of the United States had to answer: "We have no jurisdiction in the state of Louisiana at all.
Congress has not provided that the federal courts shall have jurisdiction of cases within the state of Louisiana except in that class
of offenses which pertains to the government of the United States
itself."
The Senator stated that the Secretary of State would have to
pay $25,000 to the families of the men who had been massacred at
New Orleans. This was out of a secret service fund, a fund of
$150,000 that was appropriated annually to allow the President to
smooth over little difficulties. The government of the United States
is in a rather pitiable condition, he said, when its Secretary of State,
without the express authority and sanction of law, is compelled to
resort to secret service funds to keep peace with the foreign government which alleges, and we admit, that its citizens have been maltreated in this country and that proper redress has not been granted
them. Senator Morgan, after quoting the constitutional provision
that 'The judicial power shall extend in all cases, in law and equity,
arising under this constitution, the laws of the United States and
treaties made, or which shall be made, under their authority; * * *
and between a state, or the citizens thereof, and foreign states,
citizens or subjects,' said that the question was whether such jurisdiction could be extended to include crimes. The constitution does
not seem to'confer upon Congress the right to define and punish
crimes against the dignity of one of the states, but there could be
no objection to taking the law provided in the states for the protection of their own people and of foreigners also, together with the
procedure and practice of the state, and make it the law of the United
States for the purpose of protecting the rights of a foreigner guaranteed him by treaty when found within the limits of a particular
state.
Senator Vest, replying to Senator Morgan, and speaking in opposition to the bill64 quoted that clause of the Fourteenth Amendment forbidding any state to deprive any person of life, liberty, or
property, without due process of law, and of denying to any person
within its jurisdiction the equal protection of the laws. By this,
the Senator said, an unnaturalized foreigner has the same rights and
protection as has a citizen of the United States, and Congress should
not enact a statute which would drag a citizen of the United States
away from his home and before a federal tribunal where he would
04Ibid., 4603.


93




have no right to a change of venue and where the court charges
the jury, simply because there have been cases of violence in some
of the states. Senator Turpie said65 that the bill went far beyond
the recommendations of the President, which recommendations he
thought were the most radical ever made by a chief executive of
this country, and proposed the same legislation for the most transient foreigner that the President had recommended on behalf of
domiciled foreigners. As to the statement by the committee in
charge of the bill that they were not going to change the law, Senator
Turpie said that he could not conceive of any change more radical
than to take the construction of the law away from the judges of
the states and put it in the hands of tribunals irresponsible to the
people of the states.66
The chief opposition to this bill in the 52d Congress was not the
lack of power on the part of Congress to legislate, but the feeling
that it was unnecessary to confer such jurisdiction on the United
States courts and, therefore, impolitic to do so, as the prosecution
of such offenses could be safely entrusted to the state courts. For
these reasons, the measure failed to become law.67
On March 23, 1897, the Senate called upon the Secretary of State
to inform it as to the sums of money paid by the United States in
recent years as indemnity to aliens for personal injuries inflicted
or homicides caused by mob violence or illegal arrests; and also to
inform it whether or not efforts had been made to secure the reimbursement by the States of the sums so paid by the United States;
65Ibid., 4604.
66The supreme court had strongly intimated in the case of Baldwin v. Franks
(120 U. S., 678), that Congress possesses the power to provide for the protection
of aliens in the enjoyment of treaty rights, and by analogy, the reasoning in
United States v. Arjona (120 U. S., 479) would support the same conclusion.
In this case the court said: "The national government is * * * made responsible to foreign nations for all violations by the United States of their international obligations, and because of this, Congress is expressly authorized 'to
define and punish  * * * offenses against the Law of Nations."  Consequently, a law which is necessary and proper to afford this protection is one that
Congress may enact because it is one needed to carry into execution a power
conferred by the constitution on the government of the United States exclusively.
There is no authority in the United States to require the passage and enforcement
of such a law by the states. Therefore, the United States must have the power to
pass it and enforce it themselves, or be unable to perform a duty which they may
owe to another nation and which the law of nations has imposed on them as
part of their international obligations. This, however, does not prevent a state
from providing for the punishment of the same thing, for here as in the case of
counterfeiting the coin of the United States, the act may be an offense against
the authority of the state, as well as that of the United States."
67See "The Position of the Federal Government of the United States in
Regard to Crimes Committed Against the Subjects of a Foreign Nation within
the States," by J. L. Chamberlin; also Reports of the Amer. Bar Assoc. for
1891, 1892, and 1893.


94




and if no such efforts had been made to suggest such legislation as
seemed best fitted to secure such reimbursements. The Secretary
replied68 that Congress, on February 24, 1887, had appropriated
$147,748.74 to be paid the Chinese government for the losses sustained
by the Chinese subjects at Rock Spring, Wyoming, September 2,
1875. The act of June 30, 1888, carried with it an appropriation of
$276,619.75 to the Chinese government "as full indemnity for all
losses and injuries sustained by Chinese subjects within the United
States at the hands of residents thereof."   On April 12, 1892, the
Secretary paid the Italian government $24,330.90 on account of the
massacres at New Orleans. 'ihe act of June 30, 1896, provided
$10,000 to be paid to the Italian government for damages done its
subjects in the state of Colorado; $1,000 to Great Britain for injuries to its subjects in Louisiana, and $1,800 for such injuries in
Nevada; and $2,000 to Germany. The Secretary reported that no
attempt had been made to have the federal government reimbursed,
and he himself suggested no procedure.
President McKinley renewed the recommendation for federal
legislation in his message of December, 1899, and frequent efforts
have been made to the same end by his successors, as President
Roosevelt in 1901 and 1906.
In the Senate report of the 56th Congress69 on the anti-alien
outbreaks that had taken place, it is said:
"'In each of these instances it was found impossible, on account of local sentiment, to successfully prosecute the perpetrators of these outrages in the local
courts, and in most instances it was impossible to even institute a prosecution.
In each case the foreign government interested insisted and demanded of the
United States that it should assert its authority and bring the offenders to justice, and seemed incapable of understanding why the United States government
should be powerless to act directly in the premises."
The committee recommended a bill along the lines of the measure already discussed.
The House Committee on the Judiciary, in its report of May 1,
1900,70 had the following to say in regard to the procedure by which
a foreigner presents his claim against this government for alleged
violation of treaty rights:
"At present, there is no method of procedure under the laws of the United
States open toany subject or citizen of a foreign state, claiming of the United
States indemnities for injury to his person or property under a treaty or under
the principles of international law. In default of any better method, claims of
this kind are presented by the ambassador or minister representing the government of the claimant to the Department of State. Discussions usually ensuein some cases prolonged investigatons are had, and finally, if the state department deems advisable as a question of justice or of policy to pay the claim, or
6855th Cong., 1st ses., Sen. Doc., II., No. 17.
6956th Cong., 1st ses., S. R. II., No. 392.


95




a part thereof, a communication is sent to the House recommending an apporpriation for that purpose. The question must then be examined and passed upon
by a committee, upon the report of which action is taken by the House, and afterwards the same course in relation to it is pursued in the Senate."
The committee recommended that such claims be passed upon
first, as to their merit, by the Court of Claims, if the foreign government, of which the claimant is a subject or citizen, allows our subjects to sue it.
In spite of the numerous recommendations of those in charge of
the conduct of our foreign relations for such legislation, Congress
has not seen fit to enact any. One of the most forceful of the recommendations was that of President Roosevelt's of December 4, 1906.
In this he says: ~
"One of the great embarrassments attending the performance of our international obligations is the fact that the statutes of the United States are entirely
inadequate. They fail to give the national government sufficiently ample power
through United States courts and by the use of the army and navy, to protect
aliens in the rights secured to them under solemn treaties which are the law of
the land. I therefore earnestly recommend that the criminal and civil statutes
of the United States be so amended and added to as to enable the president,
acting for the United States government, which is responsible in our international
relations, to enforce the rights of aliens under treaties."
Notwithstanding the answer which our government has always
made to foreign governments, namely, that the only guarantee provided by the treaty stipulations is that aliens residing in this country
should have the same protection under the laws and in the courts
as is provided for our own citizens, this sheltering behind a strictly
technical position places our government in anembarrassing and undignified position. Commenting upon this position, Professor Hyde
has well said:71
"' If our government in sincerity wishes to do exact justice in its relations with
foreign countries; if it desires their esteem and regard, it must be compelled
to fling aside as untenable in law, and as unworthy of an enlightened nation, the
slightest pretense that lack of necessary legislation or of proper machinery of
government is a defense for not fulfilling the functions of government."
So far, the treaty rights discussed have been chiefly those securing the protection of person and property. In the Japanese school
question, which arose in San Francisco in 1905-06, there were involved treaty rights of a different kind. It will be recalled that the
treaty with Japan, of 1894, (p. 147), provided that the citizens of
each country should have full liberty to enter, travel, or reside, in
any part of the territory of the other, but that nothing contained
in the treaty should affect in any way the laws and ordinances and
regulations with regard to police and public security which are in
force or which may hereafter be enacted in either of the two countries.
7~56th Cong., 1st ses., H. R., No. 1176.
71Green Bag, XIX., 47.


96




Such were the rights guaranteed resident Japanese as to travel
and residence and the most favored nation treatment, and such the
restrictions placed upon those rights in favor of the local police power.
The point for consideration is whether the right to residence includes
the right to attend the public schools, and if so, whether upon the
same terms as American white children. The Civil Code of California72 gives the trustees power to "establish separate schools for
Indian children and for children of Mongolian or Ch nese descent.
When such separate schools are established, Indian, Chinese or Mongolian children must not be admitted into any other school." On
May 6, 1905, the Board of Education of San Francisco passed a
resolution to the effect, "That the Board of Education is determined
in its efforts to affect the establishment of separate schools for Chinese and Japanese pupils, not only for the purpose of relieving the
congestion at present prevailing in our schools, but also for the higher
end that our children should not be placed in any position where
their youthful impressions may in any way be effected by association with pupils of the Mongolian race."  And on Oct. 11, it directed
the school principals to send the Oriental children to a separate school.
The school system, under the constitution and statutes of California, provides for school privileges for all resident children, whether
citizen or alien. All such are included in the basis for estimating
the amount to be raised by taxation for school purposes. The fund
for the support of the schools is raised by general taxation upon all
property of resident aliens as well as of citizens; and all children,
whether of aliens or of citizens, are liable to be compelled to attend
the schools. Under the resolution just cited, the children of resident
aliens of all other nationalities were freely admitted to the schools
of the city in the neighborhood of their homes, while the children
of Indians, Japanese, and Chinese were excluded from those schools
and were not only deprived of education unless they consented to
go to the special schools designated, but were subject to be forcibly
compelled to go to that particular school.
The Japanese contended that the treaty right of residence embraced the privilege of attending the public schools, and of doing so
upon the terms granted the most favored nation; and that segregating them into a school located in a distant place and difficult of
access to small children was a practical denial of the privilege.73
The Japanese also contended that segregating their children with


72Sec. 1662.
73This latter contention was practically substantiated by the report of
Secretary Metcalf.


97




Chinese, an excluded race, and with Indians-wards of the nationmakes an invidious social distinction, violating the most favored
nation clause of the treaty.
On the other hand, the school authorities contended that the
rights granted were clearly and specifically enumerated in the treaty
and that the right to free public education is not there included,
and that education is not, in any proper sense of the word, incident
to travel or residence. But even if it is, equality and not identity
of privilege, the Board claimed, was all that could be asked, and this
equality of education was granted. It was pointed out that even in
the case of our own citizens such equality does not prevent the
segregation in the public schools of children of different races.74
It could not be claimed, of course, that an alien had rights superior
to those of a citizen,75 but only that one race might not be accorded
greater advantages than another. The mere fact of segregation
would not therefore, violate any rights of citizens or of aliens. The
local authorities denied "that the federal government had any
control whatever over the schools of this state or any authority
whatever to officially deal with them.  *  *  *  Secretary Metcalf
now here, is not as a United State official entitled to any information
whatever in regard to our schools. What is given is given as a result of courtesy.  *  *  *   If the United States has no authority
over the schools of California, it cannot be clothed with such authority
by any contract of its own with a foreign nation. To suppose otherwise could be to suppose that the President and Senate alone could
under guise of a treaty with a foreign nation, usurp every power now
held by any state government, and even abolish those governments.
If the power of the President and Senate to enact by treaty that
which Congress and the President cannot enact by law exists, it has
no limit. It does not exist. Therefore, whatever engagements the
federal government may have made in Japan with respect to our
schools-if it has made any-are utterly void."76
This rather belated claim of state superiority and local interpretation of treaties was ably answered by Secretary Root, in addressing
the First Annual Meeting of the American Association of International Law, when he said:77
74Lehew v. Brummel, 103 Mo., 546; Roberts v. Boston, 5 Cush., 198; Ward
v. Flood, 48 Cal., 36; King v. Gallagher, 93 N Y., 438.
If it could be shown that the presence of the Japanese children in the schools
engendered friction and led to physicial violence, then the moral welfare and
public security would demand the separation of the two races.
75Twenty-five of the Japanese children were American-born and therefore
American citizens.
76The San Francisco Chronicle, Nov. 6, 1906.
77Am. Jr. Int. L., I., pt. 1, 273.
98




"It was assumed that in making and asserting the validity of the treaty of
1894, the United States was asserting the right to compel the state of California
to admit Japanese children to its schools. No such question was involved.
That treaty did not, by any possible construction, assert the authority of the
United States to compel any state to maintain public schools, or to extend the
privileges of its public schools to Japanese children or to the children of any alien
residents. The treaty did assert the right of the United States by treaty, to
assure to the citizens of a foreign nation residing in American territory equality
of treatment with the citizens of other foreign nations, so that if any state chooses
to extend privileges to alien residents as well as to citizen residents, the state
will be forbidden by the obligation of the treaty to discriminate against the resident citizens of the particular country with which the treaty is made, and will
be forbidden to deny to them the privileges which it grants to the citizens of
other foreign countries. The effect of such a treaty, in respect of education,
is not positive and compulsory; it is negative and prohibitive. It is not a requirement that the state shall furnish education; it is a prohibition against discrimination when the state does choose to furnish education. It leaves every
state free to have public schools or not, as it chooses, but it says to every state
'if you provide a system of education which includes alien children, you must
not exclude these particular alien children'. 78
Secretary Metcalf, who had been sent by the President to California to investigate the conditions arising out of this situation,
reported79 that the Oriental school, on account of its situation, was
not being attended by the Japanese children. He also found that
there had been many assaults made upon Japanese residents and their
property, and that the local authorities had been lax in affording
protection. Concluding his report,the Secretary said that if the police power of San Francisco was not sufficient to meet the situation,
it seemed to him clearly the duty of the federal government to afford
such protection. In President Roosevelt's message to Congress, of
December 18, 1906, he stated that the government had directedlsuit
to be brought to test the constitutionality of the act in question,
but expressed the hope that such suit would not be necessary, and
that as a matter of comity, the citizens of San Francisco would not
refuse to permit young Japanese children to go to the schools. The
President further said that he had directed Secretary Metcalf to
state that if there was any failure to protect the persons and property
of the Japanese, that the entire power of the federal government
within the limits of the constitution would be used to enforce the observance of our treaty, which guaranteed to Japanese residents
everywhere in the union full and perfect protection for their persons
and property.
The Japanese school question, the protection of resident aliens,
and the extent of the treaty-making power came up for discussion
in Congress during the early part of 1907. Commenting upon the


78See also a speech by Rep. Foster, 59th Cong. 2d ses., XLI., 1231.
7959th Cong., 2d ses., Sen. Doc., 117.


99




alleged lack of power in the federal government to protect aliens in
their rights, Representative Sherley said on Jan. 22, 1907:80
"For this nation, then, to be put in the humiliating position of being held responsible by another power for a wrong done upon an alien residing in America
and yet be unable to punish the perpetrators of that wrong would be a matter
of grave concern to us all and place America in a critical position in the eyes of
the world. I plant myself upon this firm proposition, that to the extent that
we can confer a right upon an alien, to that extent the national government that
confers it ought to have the machinery by which it can punish any violation of
that right, and I hope that very shortly this Congress will consider the advisability of passing this or similar legislation."'
Representative Foster contended that whether the treaty-making
power rests in sovereignty or rests in grant, is an immaterial-an
academic question.   In opposition to this view, however, it was
argued, that if the treaty-making power exists as inherent in government, there is no limit to such power-it is co-extensive with sovereignty itself. It would extend to every subject irrespective of the
division of powers among the states and the nation, and among the
different departments of the nation. This understanding of the
treaty-making power would probably strip of its significance the
Tenth Amendment.81
The closing paragraph of the treaty with Japan providing that
nothing contained therein should effect the laws, ordinances, and
regulations with regard to police and public security, then in force
or which either country might thereafter enact, made possible legislation to exclude the Japanese laborers from coming to the country
and a compromise was reached on this basis. The Senate bill relating to immigration was so amended as to give the President
power, whenever he shall have been satisfied that passports, issued
by any foreign government to its citizens, are being used to enable
the holders to come to the continental territory of the United States
to the detriment of labor conditions therein, to refuse to permit such
citizens to enter the continental territory of the United States. It
was objected to this measure that the power thus lodged in the
President might be used as a bludgeon to force a "sovereign" state to
80Cong. Rec. 59th Cong., 2d ses., XLI., pt. 2, 1515.
81The extent of the treaty-making power does not seem to have been discussed
in the Convention of 1787. The Federalist (Nos. 64 and 75) contents itself
with showing that the power was properly lodged. In the Virginia state convention, Patrick Henry opposed the constitution on the ground that this power
was unlimited, but Madison replied that it was limited to objects truly national.
While the supreme court has never declared a treaty to be unconstitutional, it
has been frequently asserted by both the courts and Secretaries of State that there
are limits, of a fundamental character, to this power. Butler, " Treaty-Making
Power," sec. 454; Geofrey v. Riggs, 133 U. S., 258; Amer. Jr. Int. L., I., pt. 2,
665; Speeches by Rep. Hayes, 59th Cong. 2d ses., XLI., 1579; and Rep. Webb,
Ibid., 3132; and Kahn, Ibid., 3229.


100




forego its right to maintain separate schools.82  It was further objected to as being a delegation of legislative power. Its supporters
contended, however, that it gave the President power to put an end
to two-thirds of all the immigration troubles on the Pacific Coast,
and the measure became law on the 20th of February, 1907.83
In conclusion, it may be said that the question whether the
treaty includes the right to attend school as one of the privileges of
residence, has not been passed upon by the courts and is therefor
still open. Our government has always insisted that an alleged
violation of a treaty by a state should first be tested judicially before
being:made the ground for diplomatic intervention, though  such
judicial determination is not binding upon the foreign power. Dr.
Maxey, in a study of the Japanese school question, concludes that the
treaty actually does include school privileges and on terms with
the most favored,84 and Professor Hyde is inclined to the same view.85
That the national goverment has the power to grant such a privilege,
in spite of the reservation of powers to the state governments by
the Tenth Amendment, seems most probable in view of the treaty
making power being national and not merely federal, and in the
light of the courts' interpretations and dicta as to the extent of the
treaty-making power. Whether the action of the San Francisco
School Board was a breach of the treaty or only a proper police measure ceased to be a vital question when the United States and Japan
came to an understanding by which the Japanese children were readmitted to the schools and Japanese laborers excluded from the
country.   Note: See an article by the writer in the March, 1909,
number of "The World Today'' on "The Anti-Japanese Legislation. '
EXCLUSION AND EXPULSION OF ALIENS.-Chitty states86 that
"Alien friends may lawfully come into the country without any
license or protection from the Crown, though it seems that the Crown,
even at common law and by the law of nations * * * possesses
a right to order out of the country or prevent them from coming
into it, whenever his Majesty thinks proper.'"87 In our country the
executive possesses no such inherent power, but Congress does possess and has freely exercised the right to exclude or expell.
82Rep. Williams, 59th. Cong., 2d ses., XLI., 3222.
8334 Stat. 898. As to the effectiveness of the arrangement in keeping out
the Japanese see a speech by Rep. Hayes, of California, in the Cong. Rec., 60th
Cong., 1st ses., p. 7575.
8416 Yale L. Jr. 90; see also Harv. L. Rev., XX., 337.
85Green Bag XIX., 38; see also Chapman v. Toy Long, 4 Sawy., 36.
8Prerogatives of the Crown, 49.
87See Amer. L. Rev., XXXIII., pp. 90, 246.


101




Writers on international law hold that a state, by virtue of its
sovereignty, may exclude or return those whom it does not care to
admit whenever their presence would menace the peace and security
of the state, or when they are liable to become public charges. The
right of a state to order a foreigner to leave its territory immediately
has been criticised by writers as being either an infraction of the socalled rights of asylum, or as an invasion of the imprescriptible
rights of the individual man. The right is maintained, however,
as being essential to the preservation of the ends for which the state
exists.88  Thus, for example, Bonfils says:89
"A state has the right to expel from its territories aliens, individually or collectively, unless treaty provisions stand in the way. * * * In ancient times,
collective expulsion was much practised. In modern times it has been resorted
to only in case of war. Some writers have essayed to enumerate the legitimate
causes of expulsion. The effort is useless. The reasons may be summed up and
condensed in a single word: the public interests of the state. Bluntschli wished
to deny states the right of expulsion, but was obliged to acknowledge that
aliens might be compelled by a simple administrative measure. An arbitrary
expulsion may nevertheless give rise to a diplomatic claim.90
In the Ekiu case9' the court, speaking of our own constitutional
system, said:
"In the United States, this power is vested in the national government to
which the constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the
government and may be exercised either through treaties made by the President and Senate, or through statutes enacted by Congress, upon whom the constitution has conferred power to regulate commerce with foreign nations, including the entrance of ships, the importation of goods, and the bringing of persons
into the ports of the United States; * * *"
This power which the federal constitution gives to the political
branch of the government enables it to expel either particular individuals or classes.  The liberty granted in treaties to come to,
enter, travel, sojourn, or reside in the United States, whether expressly
stated or not, is necessarily understood to be subject to the laws of
the land. An act of Congress, therefore, excluding the members of
any particular race or nation, subsequent to a treaty granting them
the rights of entrance and residence in the country, necessarily takes
precedence over the treaty provision. While our policy with regard
to aliens has been the most liberal possible, yet our laws have long
contained provisions for the exclusion or expulsion of particular
classes of undesirable persons.
ATTITUDE OF OUR GOVERNMENT.-Before taking up the con

8See Darut, De l'Expulsion des Etrangers.
89Manuel du Droit Inter. Public, sec., 442.
90See also Bluntschli Le Droit International Codifie, sec. 868.
9'142 U. S., 651.


102




gressional legislation bearing upon the exclusion or expulsion of
aliens, reference will be made to the position of the executive branch
of our government in insisting upon the right to exercise such power,
and in acquiescing in the exercise of such power by foreign governments.
As far back as 1798 Mr. King, our minister to London, intimated to the government of that country that the deportation of certain Irish agitators to America would not be looked upon with equinimity and was assured by the British government that the contemplated step would not be taken.92 This aspect of the matter was again
brought forward in Mr. Bayard's reply of May 7, 1887, to the British
minister at Washington, when he said:
"The United States could not fail to look with disfavor and concern upon the
sending to this country, by foreign governmental agencies and at the public
cost, of persons not only unlikely to develop qualities of thrift and self-support,
but sent to the United States because it was assumed that they had 'friends'
there able to 'help and support' them. While the mere fact of poverty has
never been regarded as an objection to an immigrant, yet persons whose only
escape from immediately becoming and remaining a charge upon the community
was the expected but entirely contingent voluntary help and support of friends,
were not a desirable acquisition to the population, and their exportation hither
by a foreign government, in order to get rid of their burden of support, could
scarcely be regarded as a friendly act, or in harmony with existing laws"93
Writing to Mr. Mann, an American who had been excluded from
Russia in violation of treaty stipulations, Mr. Everett, Secretary of
State, said, in 1852:94 "What we denied to other powers, we must
disclaim for ourselves; and this government could never give up the
right of excluding foreigners whose presence they might deem a
source of danger to the United States."    Mr. Marcy, Secretary of
State, writing to Mr. Gadsen, minister to Mexico, said in 1855:95
"It is a sovereign right belonging to every independent power to determine
whether it will or will not receive foreigners within its territorial limits as residents and, having granted such permission, it has the same right to determine
whether it will or will not revoke it and send such persons out of the country.
Nations may, and often do, modify or restrict this right by treaty. * * *
As a general principle, governments have the same right to send persons out of
their territories as they have to deliver them up in pursuance of stipulations in
extradition treaties.' 96
While a state may perform the sovereign act of expulsion, it
would seem that it should do so only when the alien's presence is
against the public good; that proof or evidence of this should be given
927 M. S., Desp. Eng., 1798.
93For a later expression of the same views, see Mr. Hay, Sec. of State, to Mr
Wilson, minister to Roumania, July 17, 1902.-For. Rel. 1902, 910.
9441 M. S. Dom. Let. 138.
95M. S., Inst. Mex., XVII., 54.
"9See also Mr. Marcy to Mr. Frye, our minister to Switzerland, in 1856.
M. S. Inst. Switz., I., 79; and Mr. Bayard to Mr. Lathrop,?minister to Russia,
in 1887. M. S. Inst. Russia, XVI., 518.


103




to the party affected, in order that he may overcome, if possible,
the falsity of the accusation; and that he should be given a reasonable
time within which to settle up his business affairs. The only justification for immediate expulsion would seem to be that the presence
of the alien had become so inimical to the public welfare that his
continued residence, though for a limited time, would so endanger
the state that it could not well be granted. And, finally, the grounds
for the expulsion should be communicated to the government of which
the expelled alien is a citizen, for an injury to the citizen is an injury
to his state.97
The following communication from Mr. Gresham, Secretary of
State, to Mr. Smythe, our minister to Haytii, in 1895, embodied the
foregoing principles:'9
"The United States neither excludes nor expels foreigners except in pursuance
of general laws. The provisions of these laws are or may be known in advance
to all persons upon whom they are intended to operate. Ample time is given
for compliance with the laws looking to the expulsion of foreigners and for the
settlement of the business affairs of individuals to be affected by them, and ample
opportunity is afforded them to show that they are not within the operation
of the law.
"There is certainly nothing in the law or practice of this country which
can be cited as a precedent for the arbitrary expulsion of foreigners without
hearing and without cause. The just rule would seem to be that no nation can
single out for expulsion from its territory an individual citizen of a friendly nation without special and sufficient grounds therefore.  And even when such
grounds exist, the expulsion should be effected with as little injury to the individual and his property interests as may be compatible with the safety and
interest of the country which expells him.
"Not only is the right of excluding or expelling obnoxious aliens, as an
attribute of national sovereignty, limited by the general principles of international law, but its exercise becomes further importantly modified by conventional
obligations, such as are found in the existing treaty between the United States and
Hayti, the stipulations of which clearly intend that no citizen of the United
States in Hayti shallbe deprived of liberty or subjected to punishment save by
due process of law."'
An interesting variation from the usual order was contained
in the request of the Turkish government in 1896, that Armenian
revolutionists in the United States who carried on their propaganda
here calculated to promote revolution in Turkey, should be expelled
from the United States.   Mr. Olney, Secretary of State, said to the
Turkish minister, Moustapha Bey:99
"There is no existing statute nor has any ever been enacted here which forbids the entrance into the United States of persons belonging to the category
described, * * * nor any provision for the expulsion of aliens deemed
obnoxious to their own governments from American territory. The only law
restrictive of alien residents ever enacted by Congress is the Alien Act of June
25, 1798, which was passed very soon after the adoption of our present constitution, and which, however, merely authorized the deportation of such aliens
as should be deemed 'dangerous to the peace and safety of the United States."
97See Amer. Jr. Intern. Law, I., pt. 1, 462.
98For. Rel., 1895, II., 801.
99For. Rel. 1896, 926.


104




That act continued in force for two years only from the passing thereof, and consequently expired by its own limitations, June 25, 1800. * * * The present
immigration law of the United States, while forbidding the landing of certain
obnoxious classes of alien convicts and authorizing the deportation within a
limited time of such as should effect unlawful entrance into our territory, expressly exempts from its operations persons 'convicted of political offense'."
CONGRESSIONAL LEGISLATION.-Taking up now the legislation
on this subject, we find that the first exercise of this power on the
part of Congress was in the alien and sedition acts of 1798. The
country at that time was in a very unsettled condition. The disorders attendant upon the Revolution had not yet passed away,
while war with France seemed imminent and with England not
improbable. There was constant abuse of those in office and much
of it was by foreigners. It was believed that many of the alien residents in the country were not converted to the principles of republican government, but were, if not actual agents of the French
government, at least willing to throw in their fortunes with the
Jacobins and Tories against the new republic.
The acts of 1798 distinguish between alien friends and alien
enemies.100 As to the former the act'~0 was limited to two years.
It gave extraordinary power to the President to order all such
aliens as he should deem dangerous to the peace and safety of the
United States, or should have reasonable grounds to suspect were
concerned in any treasonable or secret moves against the government,
to depart from the country within a certain time expressed in the
order. If the alien so notified should afterwards be found in the country without the President's license to remain, he was liable to imprisonment for three years and was prohibited from ever afterwards
being admitted to American citizenship. If he furnished proper
security, the alien might be licensed by the President to remain in
the country. If liable to imprisonment under the act, he might be
forcibly expelled from the country whenever, in the opinion of the
President the public safety required it. If an alien so arrested and
sent out of the country returned voluntarily without permission, he
might be imprisoned so long as the President thought the public
safety required it. The effect of this provision of the act necessarily
conferred upon the President all such power as might be needed
for its enforcement; that is, it gave him practically unlimited power.l02
100At this time there were alien laws against seditious libels in most of the
European nations, and in France an alien had to obtain a license in order to remain in the country.
'1l Stat., 570.
102Lockington v. Smith, 1 Pet. C. C., 466. The order might be issued by the
Secretary of State acting for the President. 7 Op. A.-G., 453.


105




As to alien enemies, the President was given authorityl03 in
time of war or invasion, after having made due proclamation, to
apprehend, restrain, or remove all natives, citizens, denizens, or subjects of the hostile government, on such terms as he might see fit
to impose. He was authorized in any such event to indicate the
conduct to be observed on the part of the United States toward such
aliens, the manner and degree of restraint to which they should be
subject, and in what cases and upon what securities their residence
might be permitted, and to provide for the removal of those who
neglected or refused to depart; and to establish any other regulation
necessary for the public safety. If the alien was not charged with
actual hostility, or other crime against the public safety, he should
be allowed the full time stipulated for by treaty, or if no treaty
existed, such time as might be declared by the President, in which
to remove or dispose of his effects. In this way, the property rights
of those who might be summarily removed were secured.l04  These
provisions regarding alien enemies are in force today as sections
4067, 4068, 4069, and 4070 of the Revised Statutes.
In the debates which took place in Congress over these masures, it was urged, by their opponents, that such power should be
vested in Congress only, for if the power should be given to the President, he might exercise it in such a way as to cause retaliation and
thus our citizens would be expelled from foreign countries and their
property confiscated, at a time when Congress might not deem it
expedient to go to war.105 In support of the measures, it was claimed
that when an enemy authorized hostilities, then was the time to take
up the crowd of spies and inflammatory agents which overspread
the country; that the measures were intended as a diplomatic defense
before any actual war had begun.106 Mr. Gallatin thought that the
power to remove aliens whose continuance in the United States
might be dangerous to the peace and safety of the country belonged
solely to each individual state, "and that the general government
has no power over them and, therefore, that all the provisions in
this bill are perfectly unconstitutional," for power to banish or remove alien enemies had not been delegated to Congress and was,
therefore, reserved to the states.107 He pointed out that after the
1031 Stat., 577.
04That a declaration of war does not, of itself, enact a confiscation of the
property of an enemy was declared in Brown v. U. S., 8 Cr., 127.
~05An. of C., II., 1575.
100Ibid., 1790, 1791.
107Ibid., 1955, 1958.


106




new constitution had been adopted and just prior to the time when
it was to come into operation, Congress passed a resolution recommending to the several states to take measures to prevent the introduction of malefactors into the country from foreign nations. If
Congress had supposed that it possessed the power to make regulations which it recommended to the states, it would have done so
and not have called upon the states to make them. The states accordingly passed laws to this end, said Mr. Gallatin, and Pennsylvania,
at least, had done the same after the constitution went into effect.
Mr. Sewall replied that while the states might admit aliens, it did
not follow that Congress did not have the power to make regulations
respecting their continuance here, nor that Congress did not have
the power to preserve the peace and tranquility of the country,
and might in pursuance of such power order such aliens as it should
deem dangerous to depart from the country.'08
Almost immediately after the passage of the acts, petitions
were sent to Congress to repeal that part which authorizes the
President to remove such aliens as he should deem dangerous.l08a
It was stated that the law had produced great dissatisfaction, though
the acts were never enforced and their constitutionality never came
before the courts. Bassett states'09 that "Many Frenchmen left
the country in anticipation of the law, and we may believe that it
was chiefly planned in terrorem, for in not a single case was it applied."'
Commenting upon the provisions of the alien acts, Mr. Schuler
says:10 "There appeared likewise a vague pretense of invoking
the judicial process by the aid of federal marshals; but the true purpose of these laws was plainly to trust the President'sown discretion, thereby rendering the judicial machinery ancillary to the
executive, and, in fact, marshals were to execute the President's
will without any recourse whatever to the courts.""'
The Sedition Actll2 followed shortly after the Alien Act and was
intended to deal with aliens or citizens who presumed to criticise
the government too severely. This act made it a high misdemeanor
"unlawfully to combine and conspire" in order to oppose the legal
measures of the government, or in order to prevent a federal officer
from executing his duties, or with such purpose ''to commit, advise,
or attempt to procure any insurrection, riot, or unlawful assembly,
08Ibid., 1959.
1OSaAn. of C., III., 2994.
109 'The Federalist System," 259.
"~History of the U. S., 396.
"See the Passenger Cases, 7 How. 513.
1121 Stat., 596.


107




or combination." To publish a false or malicious writing against
the government of the United States, the President or Congress,
with the purpose of stirring up hatred and resistance against them,
or to incite any foreign nation to war against the United States,
was made a misdemeanor punishable by fine, of not more than
$2,000 and imprisonment not longer than two years.
As to the effect of the Sedition Act, it was stated in the House
on the 21st of January, 1801113 after the law had been in effect two
years, that a few printers and a few miserable newspaper scribblers"4
had fallen victims to it, and that it had disgusted a large part of
the American people who had loaded the tables of their representatives in Congress with petitions praying for the repeal of the obnoxious law. The measure was repealed very shortly after that and
nothing like it has been attempted in our history since.
It is an established practice for states at war, or during revolution, to restrict the entrance or exit of strangers within their borders as well as the sojourn of such strangers, however opposed
such regulations are to the policy of freedom in such matters which
generally prevails. Thus, section 2171 R. S., provides that nothing
contained therein should be taken to interfere with the apprehension
and removal, pursuant to law, of any alien enemy at any time previous to actual naturalization. During our civil war we find some
instances of the exercise of this power, By regulation of the department of State of August 19, 1861, it was declared "that no person,
if a foreigner, should be allowed to land in the United States without
a pass-port from his own government, countersigned by a minister
or a consul of the United States." This regulation, being a war
measure, was not confined to aliens but prohibited any person from
leaving the United States except with a passport.
From this time to the act of March 3 1863,115 by which permits
to leave the country were authorized to be given to aliens who had
by their residence become subject to military duty, pass-ports were
issued only to United States citizens; aliens were required to obtain
them from their own governments. By the President's proclamation of May 8, 1863, aliens who had declared their intention to become
citizens of the United States and who, by the act of Congress of that
year, were required to perform military duties, and were also declared
to be entitled to pass-ports and protection, were allowed a period


3An. of C., VI., 919.
a4In all ten persons, Republican editors and printers, were tried and convicted under the Sedition Act, while some others were indicted but not tried.
"12 Stat., 754.


108




of sixty-five days in which to depart from the United States. The
effect of this legislation and proclamation was to allow such persons
to choose between accepting the character of citizens and remaining
here as such, or of retaining their character as aliens and departing
forthwith.
We come now to the legislation of Congress restricting or excluding certain classes of undesirable immigrants. Up to about
1880 the whole idea was that of encouraging immigration. In the
act of March 3, 1875,116 however, the importation into the United
States of criminals and of women for the purposes of prostitution
was forbidden."7  The act of August 3, 1882,118 prohibited the landing of any immigrant convict, lunatic, idiot, or any person unable
to take care of himself without becoming a public charge. In re.
O'Sullivan119 the courts held that, if none of the facts authorizing
the exclusion of an alien were found, such alien might enforce his
right to land by habeas corpus proceedings. Likewise, in many of
the early decisions it was held that where a person detained for deportation as an alien claimed that he was in reality a citizen of the
United States, this allegation of citizenship made it a question for
the courts.'20 The power to exclude aliens extends over those who
have acquired a domicile in the country as well as to those who have
not, and if a resident alien is liable to exclusion under the immigration laws, he may be deported although he has acquired a domicile
here.T21 By the act of February 26, 1885,122 aliens coming under contract to labor were, for the first time, excluded, and the act of February 23, 1887,123 placing the execution of the act of 1885 under the
Secretary of the Treasury, provided that all persons excluded by
that act should be sent back to the country from which they had
come.
By the act of March 3, 1891,124 the list of excluded aliens was extended so as to cover not only those included in the act of 1882,
but also persons suffering from dangerous diseases, polygamists, and
those whose passage had been paid and who had no visible means
of support. For the first time provision was made for the return of
1618 Stat., 477.
17See Report Indust. Corn., XV., 771, 794. In United States v. Johnson,
(7 Fed. Rep., 453) it was held that these provisions were applicable to immigrants from all countries alike.
1122 Stat., 214.
931 Fed. Rep., 447.
"2Gee Foak Sing v. U. S., 49 Fed. Rep., 146; In re. Moses, 83 Fed. Rep., 995.
'Fong Yue Ting v. U. S., 149 U. S., 698; In re. Ota, 96 Fed. Rep., 487.
12223 Stat., 332.
12426 Stat. 1084


109




all debarred aliens and for the return within one year after landing
of all aliens who had entered unlawfully, or who had become public
charges from causes arising prior to landing. Under this act of
1891, an order of deportation by an inspection officer, subject to
the administrative review provided for, is such due process of law
as to the alien as is required by the Fourteenth Amendment.'25
The courts still had the power, however, to pass upon the question
as to whether the petitioner was an lien or not.'26 In the sundrycivil appropriations act of August 18, 1894,127 it was provided that
"In every case where an alien is excluded from admission to the
United States under any law or treaty now existing or hereafter
made, the decision of the appropiate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless
reversed on appeal to the Secretary of the Treasury. '128 Thus the
courts were excluded entirely from determining whether a person
was an alien or not. The act of 1894 was contested in the Ju Toy
case,129 decided in 1905. The effect of that decision was to hold
that unless the United State admits that the immigrant is a citizen,
the decision of the proper administrative officers as to the facts and
as to the jurisdiction is final.
By the act of March 3, 1903,130 the following classes of immigrants, in addition to those provided for by the act of 1891, were
excluded: Epileptics;professional beggars; "anarchists, or persons,
who believe in or advocate the overthrow by violence of the government of the United States or of all governments or of all forms of
law, or the assassination of public officers;" and those who have
within a year been deported for violation of the contract labor law.
The Secretary of the Treasury was given the power to deport any
alien found in the country in violation of the law at any time within
three years after his arrival.131 As to the right to land, the decision
125Ekiu v. U. S., 142 U. S., 651; Yamataya v. Fisher. 189 U. S.. 86; U. S.
v. Ju Toy, 198 U. S., 253.
16Re. Simone, 108 Fed. Rep., 942.
12728 Stat., 390.
128The immigration acts were made applicable to aliens who had acquired
a domicile here and had afterwards gone abroad and then attempted to reenter
the country.-Lem Moon Sing v. U. S., 158 U. S., 358. The provisions of this
act of 1894 did not apply, however, to aliens unlawfully in the country and
arrested for deportation.-Chan Gun v. U. S., 9 App. D. C., 290.
129198 U. S., 253.
13032 Stat. 1214.
131This provision was repeated in the act of 1907, and on March 31, 1908,
the Secretary issued a sweeping order to all commissioners of immigration and
inspectors to confer with the police in their respective jurisdictions with a view
to "securing the cooperation of the police and detective forces in an effort to
rid the country of alien anarchists and criminals falling within the law relating
to deportation. "


110




of the Secretary of the Treasury, on appeal, was made final. So,
an immigrant may be excluded by administrative process only, but
a resident alien, while on trial, may not be denied the right to judicial proceedings.l32
In the act of February 20, 1907,133 providing that any girl or
woman brought to the country for the purpose of prostitution, or
who should become a prostitute within three years, might be deported
within that length of time, there is also contained the provision
that whoever holds, keeps, maintains, supports, or harbors such alien
woman in any place for the purpose of prostitution within three
years after she shall have entered the United States, shall be deemed
guilty of a felony. This is extraordinary legislation and the results
of the cases arising under it will be looked forward to with interest.
Not only is a woman who may become a prostitute nearly three
years after her arrival in the country, liable to deportation, and thus
to a penalty not placed upon citizens, and this in spite of the fact
that she may in the meantime have become an American citizen
by marriage and may have children who are American citizens, but
any one who has aided her within that period in her delinquency
is to be deemed guilty of a felony. Note.-Since the above was
written, the Supreme Court has remanded to the U. S. District Court
of northern Illinois a case of harboring alien women for questionable
purposes. The unconstitutionality of this part of the act of 1907,
makes necessary, in order to secure conviction, to prove that the
importation has been for immoral purposes. This places the matter
just where it was before the act of 1907 was passed and makes conviction very difficult to secure. Justice Brewer, in delivering the
opinion referred to above, intimated that the matterunderconsideration was one falling within the jurisdiction of the state courts
as a part of the police power. In spite of these objections to the
measure, the constitutionality of acts of deportation does not
seem to have been generally questioned since the decision in Turner
v. Williams (1903).34 In this case the right to deport an alien
anarchist was contested as being in contravention of the First,
Fifth, and Sixth Amendments. (i. e., the clauses relating to freedom
of religion, due process, and trial by jury). In this case, Mr. Justice
Fuller, speaking for the court, said:
" Repeated decisions in this court have determined that Congress has the power
to exclude aliens from the United States; to prescribe the terms and conditions


132Wong Wing v. U. S., 163 U. S., 228; Freund, "Police Power," sec. 704.
13334 Stat., 898.
134194 U. S., 279.


ll




on which they may come in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive officers; that the deportation of an alien who is found to be here in violation of law is not a deprivation of
liberty without due process of law, and that the provisions of the constistution
securing the right of trial by jury have no application.
"Whether rested on the accepted principle of international law that every
sovereign nation has the power, as inherent in sovereignty and essential to selfpreservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe; or on the power to regulate commerce with foreignnations, which includes
the entrance of ships, the importation of goods, and the bringing of persons
into the ports of the United States, the act before us is not open to constitutional
objection."
SUMMARY AS TO THECHINESE. —A final word may be said regarding the acts and decisions relating to the Chinese in particular.
The Chinese immigrants, almost exclusively from the coolie class,
came in such numbers'35 that, as has already been pointed out, the
feeling against them led to attempted exclusion acts on the part of
the coast states during the seventies. While a state may, in the
exercise of its police power, exclude such foreigners as are unquestionably dangerous to the public health and morals, yet it may not discriminate against the citizens of any foreign treaty power as a class.136
In 1880, as already indicated, an agreement was made with
China by which the United States might limit or suspend the immigration of Chinese laborers, and between 1882 and 1892, particularly,
Congress enacted many laws directed to the exclusion and deportation of the Chinese. More than one hundred cases have arisen involving the statutes and the treaties with which the statutes were often in
conflict. No attempt will be made here to consider these cases but
only a brief statement will be made of the situation as it finally
evolved. As to the relation of the statutes to the treaties, the
supreme court always upheld the former, though plainly in violation of treaty rights, throwing the onus upon Congress and plainly
intimating that Congress might be answerable to China for such
violations.  In the first Chinese Exclusion Cases,137 Mr. Justice Field
said:  "Whether a treaty has been violated by our legislature, so
as to be the proper occasion of complaint by the foreign government,
is not a judicial question. To the courts it is simply the case of conflicting laws, the last modifying or superseding the earlier."   In
this case the supreme court upheld the power of Congress to exclude
from the country such aliens as it might deem best to exclude, de

35See 44th Cong., 2d ses., S. R., No. 689.
"3~In re. Ah Fong, Fed. Case, No. 102; Chy Lung v. Freeman, 92 U. S., 275
'37130 U. S., 581.


112




daring that ''the power of the legislative department of the government to exclude aliens from the United States is an incident of sovereignty which cannot be surrendered by the treaty making power.''138
In the Second Chinese Exclusion Cases, decided in 1893,13' the
court considered very fully all the questions involved in the power
of Congress to exclude aliens in general, and also those whose coming
was stipulated for by treaty. The court not only upheld the legislative power to exclude, but also to commit the facts involved to the
execution of executive officers, or to call in the aid of the judiciary
to ascertain the contested facts upon which the alien's right to enter
is made to depend. In this case it was said that "The power to
exclude aliens and the power to expel them rest upon one foundation, are derived from one source, are supported by the same reasons,
and are in truth but parts of one and the same power.''
In the Lem Moon Sing case (supra) decided in 1895, it was held
that an alien who had acquired a commercial domicile in the United
States and who had voluntarily left the country for a temporary
sojourn abroad acquired no right by virtue of such previous domicile
here to reenter the country, in face of the exclusion act passed during
his absence. It was held, however, that the alien denied the right
to land was entitled nevertheless to a writ of habeas corpus, or, if
in the country, to the right to go before the courts before being expelled. While the alien lawfully remains in the country, he is entitled to the benefit of the guarantees oflife, liberty, and property,
as secured by the constitution to all persons of whatever race within
the jurisdiction of the United States. A Chinese alien might not,
therefore, be imprisoned under the act of May 5, 1892, by a commissioner, without a trial by jury.l40
The treaty of 1880 and the various exclusion acts were so interpreted as practically to exclude all immigration other than that
of "officials, teachers, students, merchants, or travelers for curiosity or pleasure.' "4  In 1894 the new treaty secured the status already arrived at, except as to that provision of the act of 1888 which
forbade Chinese laborers who had departed to return to this country.
Mr. Wu, the Chinese minister, at Washington, in a note of November
7, 1898, to the Secretary of State, protested against the interpretation that was being placed upon the treaties and legislation, contending that the object of both was to keep out the laboring class and not
"38For a protest on the part of China at the way the treaties were observed,
see 50th Congress, 1st ses., S. R. II., Doc. 272.
39149 U. S., 698.
~40Wong Wing v. U. S., supra.
1Lee Ah Yin v. U. S., 116 Fed. Rep., 614.


113




to exclude all but the specifically exempted classes. The Secretary
replied that the decisions of the courts and departmental constructions had sometimes borne out the contention of Mr. Wu, but that
the matter had all been recently given careful consideration and the
decision reached that the true intent of the law was to admit only
the specified exempted classes.
In the Sing Tuck case142 decided in 1904, it was held that the
parties might be denied the writ of habeas corpus even though they
claimed United States citizenship because they had not complied
with the preliminary sifting process as required by the law; i. e.,
they had not stated their case fully to the inspector and then appealed
from him to the decision of the Secretary of the Treasury before
coming to the court. It was clearly suggested, however, that if
the alien did comply strictly with the requirements of the statute and
did establish a prima facie case of United States citizenship, that he
would be entitled to have the legality of his detention judicially
determined. Great was the surprise, in the light of this decision,
when the next year in the Ju Toy case the administrative process
was exhausted and yet the writ of habeas corpus was denied on the
ground that no abuse of authority, as vested in the executive officers, was shown. It would seem under this decision that unless
there has been an arbitrary denial of all testimony, the writ of habeas
corpus will not lie, and that a citizen even may be excluded from
the country by ministerial officers, though this has generally been
thought impossible, even by Congress, except as a punishment for
crime.143
The result of the Chinese legislation and decisions is to uphold
the unlimited power of Congress to exclude or to expel from the country such aliens as it may deem advisable, and to commit the finding
of the facts exclusively to executive officers.
We thus conclude that the exclusion and expulsion of aliens
is a general right of sovereignty, one which our government has exercised itself and has acquiesced in when exercised by other powers.
Our legislation on the subject began with the Alien and Sedition
Laws; in recent years, many acts have been passed excluding undesirable classes of immigrants, and providing for the return of those
who have gained an unlawful entrance. In all such cases the decision of the appropriate administrative officer has been made final
and this legislation has been upheld by the courts as fulfilling the
requirement of due process of law.
112128 Fed. Rep., 592.
43Re. Look Tin Sing, 21 Fed. Rep., 905.


114




BIBLIOGRAPHY
Only approximately complete.
BOOKS
BASSETT, J. D., "The Federalist System," New York, 1906.
BLACKSTONE'S "Commentaries," 2 vols., Chicago, 1871.
BLUNTSCHLI, "Le Droit International Codifie," Tr. by Lardy, 5th ed., 1895.
BISHOP, C. F., "History of Elections in American Colonies," New York, 1893.
BONVILS, HENRY, "Manual Le Droit International Public," Tr. by Fanchille,
Paris, 1901.
BOUVIER, "Law Dictionary," Boston, 1880.
BOUTWELL, GEORGE S., "Constitution of the U. S., at the End of the First
Century," Boston, 1895.
BROWNE, WM. H., "Law of Trade-Marks," 2nd ed., Boston, 1898.
BUTLER, CHARLES H., "The Treaty-Making Power of the U. S.," 2 vols.,
New York, 1902.
CALVO, CHARLES, "Le Droit International," 5th ed., Paris, 1896.
CHAMBERLAIN, J. L., "The Position of the Federal Government of the U. S;
in Regard to Crimes Committed against the Subjects of a Foreign Nation
within the States."
CHITTY, JOSEPH, "Prerogatives of the Crown," London, 1820.
COCKBURN, SIR ALEXANDER, "Nationality, or the Law relating to Subjects
and Aliens," London, 1869.
CURTISS, "A Treatise on the Law of Copyright," Boston, 1847.
DARUT, "De 1' Expulsion des Etrangers."
DROVE, E. S., "Copyrights," Boston, 1879.
DWIGHT, EDWARD F., "The Law of Persons and Personal Property," Boston,
1894.
"Emigrants' Directory," Liverpool, 1820.
FREUND, ERNOST, "The Police Power," Chicago, 1904.
HOPKINS, J. L., "Law of Unfair Trade," Chicago, 1900.
HOPKINS, JAMES H., "Political Parties in the U. S., New York, 1900.
KENT, JAMES, "Commentaries on American Law," 14th ed., Boston, 1896.
LEWIN, THOMAS, "The Law of Trusts and Trustees," Phil., 1858.
MEILI, F., "International, Civil and Commercial Law, New York, 1905
McKEE, THOMAS H., "National Conventions and Platforms." Baltimore. 1901.
MCKINLEY, ALBERT E., "The Suffrage Franchise in the English Colonies,"
Phil., 1905.
MOORE, JOHN BASSETT, "A Digest of International Law., "Washington, 1906.
OPPENHEIM, L., "International Law," New York, 1905.
SATO, "The Land Question in the U. S.," Baltimore, 1886.
SCHOULER, JAMES, "History of the U. S., "2nd ed., New York, 1894.
SNOW, FREEMAN, "International Law," Washington, 1895.
STORY, JOSEPH, "Commentaries on the Constitution of the United States,"
5th ed., 1891.
THORPE, FRANCIS W., "A Constitutional History of the American People,"
2 vols., New York, 1898.
THROAP, M. H., "Public Offices," New York, 1892.
VAN DYNE, FREDERICK, "Citizenship of the U. S.," Rochester, 1904.
VATTEL, "Law of Nations," Phil., 1863.
WEBSTER, DANIEL, "Works," Boston, 1851.
WEBSTER, PRENTISS, "A Treatise on the Law of Citizenship in the U. S.," 1891.
WHITNEY, J. D., "Chinese and the Chinese Question," 1888.
WHORTON, FRANCIS, "A Digest of the International Law of the U. S.," 3
vols., Washington, 1886.
WHEATON, HENRY, "Elements of International Law," Boston, 1863.
115




GOVIRNMENT Pi:UBLICATIONS
"Copyright in Congress," 1789, 1904, 1905.
Messages of the Presidents, A Compilation.
Journals of Congress.
"Organic Acts for the Territories of the U. S."
Patent Office Gazette.
"References on Chinese Immigration,'' Griffin, 1904.
Trademark Record, 1893.
Report of the Industrial Commission, XV., 771, 794.
"Report on Citizenship, Expatriation, and Protection Abroad," 1906.
Treaties with Foreign Countries, 1904.
Annals of Congress:
I., 314, 335, 404, 1068.
11., 855, lo60, 1575, 1778, 1791, 1791, 1955, 1958, 1959.
III., 2994.
VI., 919.
Congressional Debates:
VI., 378.
VIII., 1500.
XIII., 670, pt. 2, 248 App.
Congressional Globe:
XXV., 129 App., 730.
XXVI., 45 App.
XXIX, 1092.
Congressional Record:
XV., 307, 4017, 16 App.
XVI., 152 App.
XVII., 240, 7955.
XIX., 77, 1042, 1079.
XXI., 3438.
XXII., 2383, 2384; pt. 3, 5657.
XXIII., 1266, 4559.
XXXIII, 830.
XXXV., 7057.
XXXIX., 2371.
XLI., 1231.
LX., 7575.
LXI., 1515, 1579, 3222, 3229.
Senate Reports, No. 179, 24th Cong., 2nd Ses.
Senate Reports, No. 689, 44th Cong., 2nd ses.
Senate Reports, II., Doc. 272, 50th Cong., 1st ses.
Senate Reports, No. 703, 50th Cong., 1st ses.
Senate Reports, III., No. 2690, 50th Cong., 2nd ses.
Senate Reports, III., No. 1478, 54th Cong., 2nd ses.
Senate Reports, V., No. 87, 56th Cong., 1st ses.
Senate Reports, No. 1991, 57th Cong., 1st ses.
House Reports, I., No. 2308, 48th Cong., 2nd ses.
House Reports, II., No. 3455, 49th Cong., 1st ses.
House Reports, VII., No. 1951, 49th Cong., 1st ses.
House Reports, I., No. 30, 50th Cong., 1st ses.
House Reports, III., No. 703, 50th Cong., 1st ses.
House Reports, No. 4916, 50th Cong., 1st ses.
House Reports, V., No. 1481, 50th Cong., 1st ses.
House Reports, VII., No. 2388, 51st Cong., 1st ses.
House Reports, No. 1176, 56th Cong., 1st ses.
House Reports, III., No. 4912, 58th Cong., 3rd ses.
Senate Executive Documents, VIII., No. 57, 51st Cong.
Senate Executive Documents, II., No. 17, 55th Cong.
Senate Executive Documents, II., No. 392, 56th Cong.
Senate Executive Documents, No. 117, 59th Cong.
116




Opinions of Attorneys-General:
Vol. I., p. 275.
Vol. III., p. 91; 253; 670.
Vol. V., p. 345.
Vol. Vii., p. 351; 453.
Vol. VIII., p. 139, 411.
Vol. IX., p. 356.
Vol. XIII., p. 89.
Vol. XVII., p. 534.
Vol. XVIII., p. 564.
Vol. XIX., p. 26.
Vol. XXI., p. 166; 412.
Vol. XXIII., p. 403.
Foreign Relations, 1891, 676-677.
Foreign Relations, 1893, 499.
Foreign Relations, 1895, 801.
Foreign Relations, 1896, 926.
Foreign Relations, 1902, 910.
7 M. S., Desp. Eng., 1798.
41 M. S., Dom. Let., 138.
160 M. S. Dom. Let., 441.
M. S., Insts. Mex., XVII., 54.
M. S. Insts. Switz. I., 79.
M. S., Insts. Russia, XVI., 518.
STATUTES
Statutes at Large, I., 55, 27, 109, 124, 289, 305, 318, 570, 577, 596; II., 37, 296,
694, 809; III., 351; IV., 420, 425, 577; V., 117, 453; X., 604; XII., 246,
392; 754; XIII., 85, 201; XIV., 86; XV., 6; XVI., 141, 144, 198, 203; XVII.,
13, 91; XVIII., 477; XIX., 141; XXI., 502; XXII., 30, 214; XXIII., 53,
57, 332; XXIV., 81, 82, 414, 476, 635; XXV., 45; XXVI., 1084, 1106, 1376;
XXVIII., 390; XXIX., 188, 618, 687; XXX., 248; XXXII., 1214; XXXIII.,
428, 733; XXXIV., 898.
JOURNALS AND NEWSPAPERS
THE AMERICAN JOURNAL OF INTERNATIONAL LAW, 1907. pt. 1, 273, 462; pt. 2, 665.
THE AMERICAN LAW REGISTER, 1900, vol., 39.
THE AMERICAN LAW REVIEW, 1899, vol., 33.
ANNALS AMERICAN ACADEMY, vol., 2, 69.
AMERICAN HISTORICAL ASSOCIATION, vol., I., 87.
LAW MAGAZINE, vol., 2, 39.
CENTRAL LAW JOURNAL, 40 and 43.
COLUMBIA LAW REVIEW, III., 13.
REPORTS OF THE AMERICAN BAR ASSOCIATION, 1891, 1892, 1893.
GREEN BAG, 19, 38, 47.
YALE LAW JOURNAL, 16, 90.
HARVARD LAW REVIEW, 20, 337.
THE FEDERALIST, Nos., 64, 75.
NORTH AMERICAN REVIEW, Jan., Apr., 1886.
FORUM, XIV., 608.
FINANCIAL DAILY NEWS, May 18, 1887.
CHICAGO DAILY TRIBUNE, June 4, 1887.
SAN FRANCISCO CHRONICLE, Nov., 6, 1906.
DECISIONS OF THE COURTS
AINSLIE V. MARTIN, 9 Mass., 454.
BOYD v. NEB., 143 U. S., 135.
BLIGHT V. ROCHESTER, 7 Wheat., 535.
BEAVAN V. WENT, 155 Ill., 600.
BERRY V. HULL, 6 N. M., 643.
THE DUBUQUE, 2 Abb.
BLOCK V. ALLEN Co., 42 Fed. Rep., 618.
BOGAN V. LAND CO., 63 Fed. Rep., 192.
BILLINGS V. ASPEN MIN. Co., 52 Fed. Rep., 251.
117




BROWN V. SPRAGUE, 5 Den., 545.
BAHNOD V. BIZE, 105 Fed. Rep., 485.
BALDWIN V. FRANKS, 120 U. S., 678.
BROWN V. U. S., 8 Cr., 127.
CHINESE EXCLUSION CASES, 130 U. S., 581.
CHINESE EXCLUSION CASES, 149 U. S., 698.
COMITIES V. PARKERSON, 56 Fed., 556.
CARLISLE V. U. S., 16 Wall., 147.
THE CHARMING BETSY, 2 Cr., 64.
COLLINGWOOD V. PACE, 1 Ventris, 413.
CRANE V. REEDER, 21 Mich., 69.
CRAIG V. LESLIE, 3 Wheat., 553.
COOK V. STATE, 90 Tenn., 407.
THE CONQUEROR. 166 U. S., 110.
CHIED V. ADAMS, 1 Fish Pat. Cos., 189.
CAFFEEN V. BUNTON, 4 McL, 516.
LA CROIX FILS V. SANAZIN, 15 Fed. Rep., 489.
CAREY V. COLLIER, Fed. Cos. No. 2400.
CORTE V. EVANS, 27 Fed. Rep., 861.
COURTNEY V. TURNER, 12 Nev., 345.
CROESUS MIN. Co. V. COL. LAND CO., 19 Fed. Rep., 76.
CHAN GUN V. U. S., 9 App. Cas. D. C., 290.
CHIRAC V. CHIRAC, 2 Wheat., 259.
CARNEAL V. BANKS, 10 Wheat., 181.
COMM. V. MARTIN, 5 Munf., 117.
CHAPMAN V. TOY LONG, 4 Sawy., 36.
CHY LUNG V. FREEMAN, 92 U. S., 275.
LA CROIX V. MAY, 15 Fed. Rep., 236.
DE FRANCA V. HOWARD, 21 Fed., 774.
DRED-SCOTT CASE, 19 How., 393.
DAS HERMANOS, 2 Wheat., 76.
DAWSON V. SHAVER, 1 Blocf., 205.
DOCKSTADER V. ROE, 55 Atl., 341.
THE EXCHANGE V. MCFADDON, 7 Cr., 116.
ETHERIDGE V. MALEMPRE, 18 Ala,. 565.
EKIU V. U. S., 142 U. S., 651.
FAIRFAX V. HUNTER, 7 Cr., 603.
THE Two FIENDS, 1 Gall., 118.
THE FRANCES, 8 Cr., 335.
FERGUSON V. NEVILLE, 61 Cal., 356.
FISHER V. HARDEN, 1 Paine, C. C., 55.
FONG YUE TING, V. U. S., 149 U. S., 698.
IN RE. AH FONG, Fed. Cas. No., 102.
GOVERNEUR V. ROBERTSON, 11 Wheat., 332.
GOODRICH V. RUSSELL, 42 N. Y., 177.
GEOFRAY V. RIGGS, 133 U. S., 272.
GOODELL V. JACKSON, 20 Johns., 693.
GOLDEN FLEECE Co. V. CABLE Co., 12 Nev., 312.
GORDON V. KEIN, 1 Wash. C. C., 322.
GEE FOOK SING V. U. S., 49 Fed. Rep., 146.
HUGHES V. EDWARDS, 9 Wheat., 489.
HENRY V. TOOL Co., 3 Bann. & A., 501.
HAUENSTEIN V. LYNHAM, 100 U. S., 483.
INGLIS V. SAILOR'S SNUG HARBOR, 3 Pet., 99.
INNIS V. BOLTON, 2 Idaho, 442.
JACKSON V. BURNS, 3 Binn., 75.
JACKSON V. CLARKE, 3 Wheat., 1.
JONES V. MCMASTERS, 20 How., 20.
JOHNSON V. ELKINS, 1 App. D. C., 430.
JosT v. JOST, 1 Mackey., 486.
IN RE. JUGIRO, 140 U. S., 291.
KILHAM V. WARD, 2 Mass., 236.
KING V. GALLAGHER, 93 N. Y., 438.
LYONS V. CAL., 67 Cal., 380.
118




LEVY'S LESSEES v. MCCARTEE, 6 Pet., 102.
LYNCH V. CLARKE, 1 Sandf. Cd., 583.
LANG V. RANDELL, 4 Dill., 425.
LOHMAN V. HELMER, 104 Fed. Rep., 178.
LEE DOON V. TESH, 68 Cal., 43.
IN RE. LEE SING, 43 Fed. Rep., 359.
LEHEW v. BRUMMEL, 103 Mo., 546.
LOCKINGTON V. SMITH, I Pet. C. C., 466.
LEM MOON SING V. U. S., 158 U. S., 538.
LEE AH YIN V. U. S., 116 Fed. Rep., 614.
RE. LOOK TIN SING, 21 Fed. Rep., 905.
MANUEL V. WUESI, 152 U. S., 506.
MARX V. MCGLYNN, 88 N. Y., 357.
MCILVANE V. CoxE, 2 Cr., 280.
MINOR V. HAPPERSETT, 21 Wall., 162.
MCCARTHY V. FROELKE, 63 Ind., 507.
MCKINNEY CREEK MIN. Co. V. ALASKA, ETC., Co., 183 U. S., 563.
MURPHY V. RAMSEY, 114 U. S., 15.
MAYNARD V. MAYNARD, 36 Hun., 227.
MAGER V. GRIMA, 8 How., 490.
IN RE. MOSES, 83 Fed. Rep., 995.
N. G. LLOYD Co. v. HEDDEN, 43 Fed. Rep., 17.
NAT'L BANK V. YANKTON, 101 U. S., 129.
Ex. Parte NAGEL, 17 Off. Gaz., 198.
ORR V. HODGSON, 4 Wheat, 453.
OP. JUSTICES, 7 Mass., 523; 122 Mass., 591.
O'REILLY V. CAMPBELL, 116 U. S., 418.
IH RE. O'SULLIVAN, 31 Fed. Rep., 447.
IN RE OTA, 96 FED. REP., 487.
PALMER V. DEWITT, 47 N. Y., 532.
PEOPLE V. FOLSOM, 5 Cal., 373.
PRINCETON MIN. Co. v. BUTTE NAT'L BANK, 7 Mont., 530.
PEOPLE V. STATE COMR'S., 7 Utah, 279.
POLLARD'S HEIRS V. KIBBE, 14 Pet., 351.
PREVOST V. GRENEAU, 19 How., 1.
PEOPLE V. BRADY, 40 Cal., 198.
PEOPLE v. NAGLEE, 1 Cal., 323.
The Passenger Cases, 7 How., 513.
RADICH V. HUTCHINS, 95 U. S., 210.
RICHTER V. ANCHOR REMEDY, 52 Fed. Rep., 555.
ROPES v. CLINCH, 8 Blatch., 304.
ROBERTS V. BOOTON, 5 Cush., 198.
SUTLIFF V. FORGEY, 1 Cow., 89.
SETTEGAST V. SCHRIMPF, 35 Tex., 323.
STATE V. BLACKNO, 6 Blockf., 488.
STATE V. DESHLER, 25 N. J. L., 186.
SLAUGHTER HOUSE CASES, 16 Wall., 36.
STATE V. ABBOTT, 41 La. Ann., 1096
SPRAGINS V. HOUGHTON, 3 Ill., 377.
STEWART V. FOSTER, 2 Binn., 110
SHAW V. COOPER, 7 Pet., 292.
STICKLEY V. HILL, 122 Utah, 257.
STATE V. AH CHEW, 15 Nev., 50.
SUTTON V. SUTTON, 1 Russ. & M., 663.
SOCIETY V. NEW HAVEN, 8 Wheat., 464.
SPRATT V. SPRATT, 1 Pet., 343.
SCHULTZE V. SCHULTZE, 33 N. E., 201.
SLATER V. MASON, 15 Pick., 345.
STRANDER V. W. VA., 100 U. S, 303.
RE SIMONE, 108 Fed. Rep., 942.
SING TUCK CASE, 128 Fed. Rep., 592.
TATHAM V. LOWBER, 2 Blatch., 49.
THOMAS V REESE, 17 Pat. Off. Gaz., 1880.
TONDUER V. CHAMBERSETT, 37 Fed. Rep., 333.
119




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