will make it clear (a) such conclusion was reached only by a process of construction peculiar to that case (b) due in large measure to local understanding and construction, which of course can have no application here, and (c) the case is an admission that on principle the proposition is unsound.

THE MORTGAGEE QUESTION.

A good many claims are pending in which it is sought to recover damages for injuries done to property of a Spanish subject on which the claimant, an American citizen, held a mortgage or lien of some kind. Some of these are by mortgagees direct, some by holders of bonds secured by mortgage, and others claim to hold liens on crops, principally of growing cane.

It is contended, of course, that if an estate in Cuba owned by an American citizen was injured under such circumstances as justified an award the owner must be allowed the full damages regardless of whether the estate may be mortgaged to Spaniard or American. But it would seem to follow that if an estate in Cuba owned by a Spaniard was injured, as Spain has released the United States from any liability to her subjects, the full amount of the damages were thus released, regardless of whether they may be mortgaged to American or Spaniard. This main question was also complicated with other questions, such as (a) whether the mortgagor was insolvent, (b) whether the mortgaged estate was yet sufficient to pay the debt, and (c) whether the mortgagee was in the actual possession at the time of the injury, etc.

These questions coming to the attention of the Commission in various ways, it was deemed best that a general discussion should be had on them, and accordingly, May 28, 1903, the Commission ordered that in the cases

where the claim for damage or destruction of property is presented in behalf of a mortgagee, pledgee, owner of mortgage bonds, or holder of crop contracts or any other kind of lien, whether on real estate or personal property, printed briefs shall be filed by the claimants on or before September 1, 1903, upon the question of their right to recover as such security holders.

Briefs for the Government must be filed on or before October 1, 1903, and reply briefs for the claimants on or before October 15, 1903.

A good many briefs were filed and the questions were fully argued orally. The Commission, however, held their judgment on the merits in reserve, as appears from the following order, entered February 3, 1904, viz:

The arguments on the demurrers in these cases having disclosed that fundamental differences exist among counsel as to the law of mortgage in force in the island of Cuba during the late insurrection, being foreign municipal law, of which judicial notice is not taken, but which remains to be established, the Commission is of opinion that the decision of the question of the right of mortgagees to recover indemnity for

injuries to the mortgaged property should be postponed until the cases are brought on for final hearing, and to that end such grounds of demurrer as raise this question will be overruled without prejudice.

This decision applies to cases of pledgees, holders of any other kind of lien, and holders of crop contracts. (See Docs. and Ops., p. 481.)

This ruling, while perhaps inevitable, was quite unfortunate for this department, as it made it necessary, in every case where the injured property was mortgaged at the time of such injury, whether owned by an American or Spaniard and whether mortgaged to a Spaniard or American, to develop all the facts, to be prepared to meet such rules as might afterwards be laid down by the Commission on these questions.

CITIZENSHIP.

Under no circumstances has there ever come before any tribunal such an array of cases, involving such a multitude of questions on the subject of American citizenship, as those pending before this Commission. This will clearly appear from the following facts:

Taking out the Maine cases leaves 390 cases which were filed, these claims aggregating over $58,000,000. Of these 390 cases, 16 were filed by corporations. Of the remainder, 290 were filed by alleged naturalized American citizens, leaving but about 80 out of 390 claims that were filed by native-born American citizens, while of these 290 who claim to be naturalized Americans the names indicate that nearly all of them are of Spanish birth, and, as developed by the evidence, at least 9 out of every 10 of them returned to Cuba, from whence they came, almost immediately after taking out citizenship papers, took up their regular and ordinary business there, and have continued it ever since, except as they have been compelled by civil wars to flee from the island and demand protection and damages as American citizens. And not only so, but in many cases the evidence tends so strongly to show either gross misconduct in procuring naturalization, or in the subsequent conduct of the claimant as affecting his claim to American citizenship, that I felt it my duty to submit the facts to the consideration and judgment of the Commission.

Cuban property owners suffered grievous losses during what is known as "The Ten Years' war" in Cuba (from 1868 to 1878), and the awards made by the United States and Spanish Commission of 1871 in favor of American citizens who thus suffered doubtless made a profound impression as to the importance and value of such citizenship. As a consequence, there was for some years after 1868 a deluge of applications by Spaniards residing in Cuba for American citizenship, and in some cases where such a course seemed inadvisable resort was had to the plan of incorporating in the United States, as above shown.

But the facts show that, in many instances, these applicants were not content to reside in the United States in good faith the requisite five years, or even to wait that length of time, but the applicant, coming to the United States for his annual summer vacation as he had done for many years, counted that as residing in the United States, and was generally able to procure someone, very likely a fellow sufferer, as his witness or "voucher," and who was willing to swear to the same thing. The courts very rarely made any effort to penetrate this legal conclusion of the applicant and his witness and to ascertain the real facts, and citizenship papers were issued almost as a matter of course; and not only so, but in many cases this form of alleged residence, it now appears, was kept up for only four, three, or even two years.

Again: A great many Spaniards resident in Cuba, particularly of the wealthier classes, have been in the habit of sending their children, especially their sons, to the United States for their education, taking advantage of the facilities offered in that line in this country. Apprehensive lest these sons, upon their return to Cuba, might be forced to serve the Spanish, or some revolutionary army, and in order that they and any property which their parents might leave them, as well as any they should acquire, might have the valuable pecuniary protection which they had seen flowing so readily and so copiously through the medium of the talisman "American citizen," these same sons were admonished that before returning to their native land (as a fact to permanently reside, establish their homes and business, with no thought or honest purpose or intention of ever residing in the United States), to take out American citizenship papers. In most instances their complete education required at least five years, and as these usually began at the age of from 15 to 17, no preliminary declaration was required in advance. Accordingly the boy and his witness went before some court and made oath that he was 21 and had resided in the United States five years, and papers were issued.

It may be that the laws of the United States permit minors who are, in effect, emancipated, though residing here merely for educational purposes, to treat such residence as sufficient to meet the lax requirements of our naturalization laws, but if so, they should be amended. But if a son comes to this country for educational purposes, remains under control of his parents, who are foreigners residing in their home land, who pay his bills and direct and control his movements, he certainly is and should be incapable of acquiring a residence of his own, and these facts being shown, even under our present laws (this is written without regard to the amendments of 1906), his application for citizenship should be denied.

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These observations are sufficient to call attention to the important questions with which the Commission is called upon to deal. The principal points may be summarized as follows:

(a) May this Commission, in the exercise of its duties in administering international law, look behind and beyond a judgment or order of a domestic tribunal granting citizenship to an alien, with a view to ascertaining whether in good faith and in equity such person is entitled to a standing as claimant before the Commission as a citizen of the United States?

(b) If it may, should the proof it requires be sufficient to set aside the judgment for fraud (remembering that the Commission has no power to set the judgment aside), or should the evidence as a whole be such as to satisfy the Commission that the claimant is not in equity and good faith entitled to a standing before it as such American citizen?

(c) If the proofs show really, beyond a reasonable doubt, that the claimant was not a resident of the United States for more than two, three, or, at most, four years when he obtained his papers, should this be accepted as sufficient to defeat his standing as a claimant?

(d) If a child, born abroad to American citizens, resides abroad when he attains the age of 21, and thereafter continues to reside abroad for a series of years without indicating any purpose or intention of ever coming to the United States to reside, has he elected not to accept American citizenship or is he nevertheless an American citizen? In this connection it is to be observed that many foreign countries have the same law that we have, viz, that a child born in such country is a citizen or subject thereof regardless of the nationality of its parents. (See sec. 1993, Rev. Stat.)

(e) Conversely, if a child, born in this country to foreign parents, who afterwards remove to their own country, taking the child with them, and where they continue to reside as set forth in paragraph (d) above, is such person an American citizen, entitled to a standing before this Commission? (See sec. 1992, Rev. Stat.)

(f) If an American citizen goes abroad and marries a foreign woman, resides in her native country where he is engaged in business for a series of years, and dies there, is his widow ipso an American citizen, or has she a right of election between the United States and her native country; and if so, is such election manifested by thus continuing to reside there for a series of years. (See sec. 1994, Rev. Stats.)

(g) If a woman, an American citizen, marries a foreigner, upon his death, whether a resident here or not, is his nationality absolutely fixed upon her, or has she a right to elect her future nationality?

(h) In any case where there is a right of election of nationality, may such election be shown in any way except by actual removal to and residence in the United States?

(i) May American citizenship be lost by abandonment, as by residence and occupation for a series of years in a foreign country, without any intention of returning to the United States to reside?

(k) In such case is it necessary to show nationality acquired elsewhere before loss of American citizenship can be considered established?

There were many other minor questions considered, but these are the most important ones, and their consideration really comprehends and embraces every phase of the subject of American citizenship.

cases.

CLAIMANTS SLOW TO PROCEED.

The Government has been embarrassed in the defense of pending claims by reason of delay on the part of many claimants in either (1) not pleading issuably under the rules of the Commission, or (2) in not proceeding with the taking of their testimony and the trial of The defense has persistently urged them to proceed, by motion to dismiss and otherwise, and has had a good many cases dismissed because of such failure to proceed. The real reason for this delay has undoubtedly been because of the fact that many of the claimants, being dissatisfied with the rulings of the Commission, both on the general principles laid down and in the disposition of specific cases, and because of the refusal to certify the "Maine cases" to the Supreme Court, as hereinbefore set forth, and which they have probably understood as establishing a general rule on that subject, have been endeavoring to obtain relief through legislative action.

During the past four years they have been very active in efforts to obtain from Congress legislation permitting an appeal, or authorizing a writ of certiorari to issue. During the Fifty-seventh Congress a bill passed the House granting them the right to appeal, which was reported favorably by the Senate Judiciary Committee, but which failed to become a law. In the Fifty-ninth Congress a bill granting the right of review on certiorari in the discretion of the Supreme Court passed the Senate, but failed in the House.

In view of these facts claimants in many cases have made every effort to prevent the trial of their cases, the Government being equally persistent that they should proceed. The Commission doubtless felt that as their rulings had been unsatisfactory to the claimants as well as adverse to them in many cases, they ought not to be too severe with them, and should give them reasonable opportunity to obtain relief from Congress. Most of the cases are of considerable importance, both in the amount of the claims and in the questions involved, and if forced to dismiss their claims they would have no remedy whatever, unless by act of Congress.

While in a certain sense the Commission has the right and power to compel claimants to proceed, yet every lawyer understands that