Omaha Daily Bee Newspaper, May 16, 1891, Page 10

10 JUSTICE MAXWELL'S OFINION ¢ In the Now Oslebrated Oise of Thayer Against Bogd, ALIENS AND THE ENABLING ACT. The Judge Holds That All Who Were Residents of the Territory Be- came Citizens on Its Admis- wion to the Union. Leave was given the relator to filo an in- formation in his own behalf in an action of quo warranto, to dete tinue in the office of governor of the state of Nebraska from tho first Thursday after the first Tuesday fn January 1801, for the period of two yoars upon the aileged ground that the de- fendant was not a citizen of the Unitea States for two years prior to the election i November, 1800, and therefore not eligible 10 the office of governor of the state, The court in making the order, allowing tho relator to file his information, qualified it s0as to permit the lieutenant governor to intervene, should the court on the final de- termination of the case, find that the defeudant was not eligible to the oftice and it would thus become 1 ary to determine wno should succeed him, whether the relator or the lieu tenant governor. Here was appended a review of the de fendant's answer and praycr of dismis<al and for such other relicf as might bo just and proper. The relator demurred to the answer upon the h grounds the fac wed therein are not sufficient to constitute adefense to the in formation In the argument on the demurrer tho - de. fendant contends that the remedy by contest is exclusive and therefore the court has no Jurisdiction, In State vs Harlow, 15 O. S. 108, the su preme court of Ohio in construing the consti tution ot that state and a statute, pursuance thereof in regard to contests held, that tho remedy provided by statute was ex- clusive, and therefore an information in QUO WARRANTO WOULD NOT LIE, A fow other cases to the same effect may be found We areof the opinion, howey our constitution, the remedy by contest is not exclusive, and therefore that an information, in & proper case, may bo maintained, It will be observed that 1t is alleged in the answer that tho ‘“relator fully surrende abandoned and removed from said co and has not since in any manner direetly or indi rectly occupied or possossed the same or as- sumed or pretended to assumo to perform any of the function cof but wholly sur- rendered the same.” 1t is fact weil known that about January 20, 1801, in order 10 PREVENT SCANDAL injurious to the good name of tho state baving bwo persons endeavoring governer thercof, the court, justice, stated to the relator that (iovernor Boyd was the acting governor, to be recog- nized s such untit the determination of this suit, and that tho relator would lose nothing by quietly leaving tho building, and in case it should eventually be found that he was en- ttled to the ofice his right would be respect- ed and enforced. 1t does not_appear, however, from the al- egations the precise date at which it is al- loged the relator surrendered the office, ete. For aught that appears it may have been after the promise heretofore spoken of. Neither are the allegations as to abandon- ment of the duties of the ofico as explicit as thoy should be. This is subject to amend- ment if such amendment were nocessary in tho case. ‘T'he allegations as to the failure to file the bond and take the oath required by statute within ten days from the Sth day of January, 1801, are not, necossury to be considered in this connection and will not be aiscussed. ‘The allegation of the detendant “on infor- mation and belief that prior to October, 1554, his father did in fact complete his naturaliza: tion in strict accordance with the acts of con- gress known as the naturalization laws so as to admit and constitute him a full citizen of the United States thereunder,” in the opin- fon of the writer 1s sufficient on demurrer to show that the father of the defendant before the defendant was of the age of twenty-one years had comploted his naturalization, so that thereby the defendant became a citizen of the United States It was unuecessary to allogo this fact upon Information and beiief, as all that the law re- ulres in vorifying the answer is to stato tho ‘wots as he believes them to bo, Tha allegations that follow in regard to Joseph Boyd having exercised the of citizouship are simply to show after the year 1S54 ho regarded himself as being a cltizon of the United States, and entitled to the exerciso of tho clective franchise, and he was so regarded by his na\ hibors, 3 The further allegation also in effect that in consequence of a new registry law taking of- fect he was unable to register and therefore to vote, and was compolled to take out his second paper although he had previously be- come a citizen of the United States, is of the same naturo, These allegations being admitted by the de- murrer would seem to be sufiicient if proved to constitute a defense to the action, If the relator desires a more definite state- ment, ho should have filed a motion for that purpose. Wo must remember that the son had no porsonal knowledge of the naturalization of his father, but was informed by him that he had been naturalized, and hence that the DEFENDANT WAS A CITIZEN of the United States, Under such elrcum- stances greater latitude should be allowed in Elomlmun»un where the pavty himself had een the actor in the case, My associates, however, deem the alloga- tlons too uncertain, and hence I acquieses in their views. This defect, however, conld, if necessary, bo roadily cured by positive alle- gations. It is contended on behalf of the defend- ant that e became a citizen of tho United States by virtuo of the soveral acts of con- gross admitting the state of Nobraska into the union. I must confess that when the proposition was presented, ana_without an passed 1 r, thatunder by to act as through its chief sxamitation of tho question, it did not seem 10 possess tho importance which it now assumes. The act organizing fhe territory of braska was approved on May 0, 1554 provisions of the act aro excoadingly liberal, and evidontly intended to invite pormanent sottlers into the territory. Tho territory at that time comprisod substantially what has sin boeen formed into five statos On April 1%, 1804, congross passed an act to enable the people of Nebraska to form a con- stitution and state government and for the admission of such state mto tho union on an equal footing with the original states, Seotion | of the act provides “that the in- habitants of that portion of the tervitory of Nebraska including the boundaries herein- after designated be and they are hereby authorized to form for themselves a constitu- tion and state government with the name aforesaid, which state, whon <o formed, shall be admitted into the union @ hercinafter pro- vided." Upon the foundation of tha aud ratification of the same, in the mannor provided in the mot, tho president was Buthorized to issue his’ proclamation declar- ing the state admitted into tho unfon on an equal footing with the original states In pursuance of this act, a constitutional convention was elocted ana met in the city of Omnhaon July 4, 184, X The tory contained at that time not to exceed 10,000 people. It had furnished more than twe rughments of volunteors, who woro then in thoe flold. The war bad out off or impeded to a gat extent the only means of | commuuication with the commorvial marts of the country, viz: the Missouri river, honce thoro was a stagnation of business, and the territory was not increasing 1o pop- A ation to any extont, Y Those things were felt by every member of the convention, and it was the general nion of the members, and the general sen- ment of tho people of the territory, that here waa not suflicient Epullnon 10 Justif; ho formation of the state government, n‘ mine his right to con- | constitution | TllE OMAHA DAILY that It a constitution was framed and sob- mitted to the people, it would be overwhelm- | ingly defeated The conventi 1, therafore, organized by ¢4 e | election of tho father of the' present lleute n- | | ant wovernor, as president, and other officers, | and 1y & unanimous voto adjourned sine dic | Two years later, however, with the close of | tho war, the building of the Union Paeific railway, and the flow of immigration into the territory, a desire was felt to form a state governmont, and thereupon the legislature prepared a constitution and submftted it to | the people of the state at an election held on i .lmm 180 { Tho preamble to this constitution is ns fol. We, the poople of Nebraska, eratoful Almighty God for our freedom, in order to are its blessings, form & more perfect gov- ernment, insure domestic tranguility and pro- mote the general welfare, do establish this | luu\llmlmn | It witl be observed that in the first section | of the enabline act, the inhubitants of what | is now the state of Nebraska, were anthor- | ized to form for themselves a constitution and state government which in the preamble they assert that they do form, ADOPTION OF THEE CONSTITUTION. This constitution was adopted by a small majority, and the first state lagislature met at the city of Omaha on July 4, 156, and after organizing proceeded to clect senators for the state, one of whom was the relator in this case. There was a strong opposition in the legis- lature to the organization of state govern ment, and in the house, consisting of thirty nine members, but twenty were in favor of, while nineteen were opposed to such orgar ization, and in tho senate, consisting of teen mem bers, seven were in favor and opposed to state government As the of 1564 had not peen accepted at the time thercin provided, it became necos- sary for congress to pass an additional act admitting the state into the union, thir- six The first section of that act is as foliow Whereas, On Mareh 21, A, DL 1854 conzress passed annet to enable the people of Ne . | Ka to form a constitution and state govern- ment, and offere | to qdinit said state w hen so formed nto the union upon complinnee with Wicrens. [t appears — that 'the sald e v pted & constitution, which upon due cxamination is found o contorin 1o the provisions, and comply with the conditions of sald uct, and to be republi- can in 118 form of government, and thut the; ow sk for nduiission [nto the union: there fore, be it v representative te, in cong ol and st £ Nebraska have acted by the senate and house of of tie United States of Amer s assembled, that the cons + government which the formed for thems:ly nd the suie Is hereby accepted, ratifier confirmed, and that the s 0 of Nebr shall be, and is hereby 1 tobe o1 the Unifed States of Aerien, and iy drmitted into the unfon upr fng with the originul states in whitsoover.” Congross thus eonstrued the word “peoplo” as a syponym with the word “inhabitants,” 1t will bo observed that the act admitting Nebraska into the uuion contans provisions which are exceedingly comprehensiv The constitution and state government is hercby accepted, ratified and econ- firmed and tho said state of Nebruska shall be and is hereby * * * “admitted into the union upon an equal footing with the original states in all respects whatsoevor.'’ I have been unable to find as strong languaze in an act admitting any other state into the union, and the language is much stronger than that admitting the state of as to which reference will hereafter be It is necessary now to inquire how were admitted 1ato tho all respects ) made, the original states union. The preamble to the constitution of the United States declares taat *We, the people of tho United States, 1 order to form a m perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and socure the blessing of liberty to ourselves and our posterity, do ordain_and establish this constitution ' for tne United States of Amorica.” In Minor vs. Happersott wall, 165 167 the supreme court of the Ubited States in very clear language points out WO WERE CITIZENS of the United States at the formation of the fodoral government. It s said “There can- not bo a naticn without a people. The very idoa of & politieal community, such as a nation is, implics an_association of persons for the promotion of their genoral welfare, ch one of the persons associated becomes o iber of the nation formed by the associa- He owes it allegiance and 1s entitled to its protection, Allegiance and protection are, in this con- nection, recipros obligntions. 'The ono is a compensation for the other, allegiance for protection and protection for allogiance. For convenience it has been found noces- sary to give a name to this membership, The object is to designate by a title the person and the relation he bears to the nation. For this purpose the word “subjoct,” ‘inhabi- tant’” and *‘citizen’ have been uséd, and the choice betweon them is sometimes made to depend upon the form of government. Citi- zen is now more commonly em. ployed, however, and as it has been considered 'botter suited to the description of one llving under a republican government, it was adopted by nearly all the states upon their separation from Gréat Brit- ain, and was afterivards adoptea in the arti- cles of fedorat and in the constitution of the United States. When used in this sense it is understood to convey the idea of mem- bership of & nation, and nothing more, T'o determine then,who were citizens of the United States before the adoption of the amendment it is ni to ascertain what persons originally associated themselves to. gether to form tho nation, and what were afterwards admitted to membership, Lookiug at the constitution itself we find that 1t was ordained and established by “the people of the United States,” and then gomg urther back we find that these were the people of the several states that had before dissolved the political bands which connected thom with Great Britain and assumed a separate and equal station among tho powers of the earth, aud that had by articles of con- federation uhd perpotual union,in which they took the name of ‘‘the United States of Ameriea” entered into a firm ieague of friend- ship with each other for their common de- fense, the security of their liberties and their mutual and general welfare, binding them- selves to assist each other against all force offerad to or attack made unon them, or any of them, on account of religion, sovereignty, trade or any other pretense whatever, Whoover, then, was one of the people of cither of those statos whon tho constitution of the United States was adepted, became ipso facto a citizen— & member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was consequently one of its original citizens, As to this there has nover beon a doubt. Disputes have arisen as to whether or not cortain persons or certain classes of versons were part of the peopla at the time, but neveras to their citizenship if they wore. The same doctrine had previously been announced in McLlvaine vs. Coxe's Lossee, 4 Cranch 214, and _other cases, and,is stated by Kent 2 Comm. pp. 1-2. In United States vs. Laverty et al. in the district court of the United States 3 Martin 743, which seems to have avisen during the Inst war with Great Britain, where certain persons arrested as alion onemles claimed to be citizens of the United States, by virtue of the admission of the state of Louisiana into the union, it is said: *It is well known, that some of these persons have been discharged by one of the judges of the state, but as the marshal and many others are serfously im- pressed with a bolief that they are not citi zens, but alions, iv_has beon deemea proper to obtain the opinion of the judgeof the United States.” It is contended by the attorney of United States, that CONGRESS ALONE TIAS POWER 0 pass laws on the subject of the naturaliza- the tion of foreigners, aud that, by the constitu- | tion, it 1s declared thut the rulo for thew ad- mission must be uniform. On the other hand itis said that congress Las the power to admit new states [nto the union; that this DOWCE 15 10t mnconslstent with nor Fepugnant | to the other; that tho first rule well applics | where incividual application is made for ad- mission, but it fs not vestyictive of the other | power to admit ntonce great bodies. of men, | ox new states, int o the federal nnion Tho power to admit new states, is express] given by the third seetion of the fourth art]’ cle of the constitution; it has beeu frequentl s excrcisod; and on April 80, 1812, Louisiana was adwiited fnto the union, upon the same footing with tho original stats, | In what manner has this powor_been exer- elsed in respoot to other states] On April 40, | 155, the nhabitants of the enstern division of the territory northwest of Ohio wore au- thorized to form for tnemselves n vonsti- tution and stato overament; this was done, and they wore afterward admitted into tho Unlon. 1SroTious to taelr admission the peo- plo of the country wope goveraed by what i .-nmmmn“urmm m Ohio ordinance; that i tho population cons! gwuumal ( tho United States and partly of foreigaers, may be collected from the provisions of that | instrument for their government; that a | zreat body of aliens rosided among them is kuown to’ many. It is declared that possess- ing o freohold of fifty s of land, havi been a citizen of one of tho states, and be a resident in thedistrict, or the like freehoid, and two years' residence, shall bo necessary to qualify a man as an elector Here there are two deseriptions of persons, 1. Citizens of the United States, with a freehold aud actual residence, and (?) persons not citizens, with a freehold and two years' residence, Were they not all equally inhabitantst Aud, in the act of admission is there any distine: tion made! The inhabit then, who were authorized to form a state government for themselves, must have been all the real in- | habitants of the country, citizens or foreign- | ers, and after the admission of the state into | the union must | s, have equally participated fn all its advantages, because if a party only wero entitled to its benefit, all the fuhabit ants had not formed a government for them selves, Can we, for an instant, beli that a wise, just and liberal covernment like that of the United States, would invite any por- tion of peaple, who were enjoying self-gov- crument in a considerable degree, to place themselves in a situation where they would be entirely deprivea of it I can have uo doudt that all the inhabi- | tants of tne state of Ohio were admitted citi- zens of that state by their admission into the union, Lot us then examine and discover (if possi- ble) any differonce between the case of that stato and this, Louisiana, it is suid, was nd- | mittod under the treaty of Paris, by which | it is stipulated that the inhabitants” shall be | incorporated_into the union of the United | States and admitted as soon as possib | cording to the principles of the federal con- | stitution to the cnj uts of tho r | advantages and immunities of citizens of the | United States, It is contended by some th the word “inhabitints” used in the act of February, 1511, applics solely to those who were intinbitants in 1503, Ou February 11, 1511, congress passed an act “enabling the people of the territory of Orleans to_fol st government,” commences by declaving the “iuhabitant of all that part of that country ceded under the name of Louisiang, shall bo authorized to form for themsclyes a'state government; it then goes on and describes two_classes of in- habitants; first, citizens of the United States and all persons having in other respects the lewal qualifications 10 vote for rey tives in the weneral assembly. Those quali- fications ave tho same as those of Ohio, two years residence and a frechold for those who wre ot citizeus, We nero find no distinction botwveen the old whabitant and the new, tho 1 who has been here two years and has fifty acros of Iand, lot him bo w citizon or alion, is authorized 1o join in making n con- stitution for ali the inhabitants of Louisiana, The law then evidently does not mean merely “the inhabitants at the date of the treaty,” and it will be found that the only quesfion in this case is whether congress had a right to mclude any others than citizens in theie act of admission 1 have already shown that thoy have ercised this right heretofore: that in case of the state of Ohio it was not disput and it does not become us at this question it 1 shall now cox ox- the time to der some of the arguments that have been urged by the district attorney and bis colleagues. Although an attempt was made Lo aistinguish between the TWO CLASSES OF INIARITANTS (not originally citizens of the United States), yet in truth, theic arguments go as well to exclude the first as the last cluss, It is con- tended that the only modo by which an alien can become naturalized is by a compli- anco with the uniform rule; that this is the only constitutional mode; that the expression wn the treaty that “the inhabitants shall be admitted according to the princinles of the constitution,” means according to the uai- form rule required by the constitution. I s0, the creoles of Louisiana are not_citizens vet, for not one of them has complied with that law. But one of the gentiemen has ob- served, here is a treaty and treaties are par- amount. 1 cau never subseribo to the doc- trine that treaties can do away with any part of the coustitution. I will go as far as anyone in supporting and observivg them in anything not repuenant 1 it. If then the uniform system be the only constitutional one any other must be unconstitutional and though introduced by treaty s void. If this were the only constitutional mode, I should tremble for the fate of the Louisianians;s but fortunately for them and for others, it'is not the only one. The expression under the treaty is that they shall be admitted according to_the principles of the constitution: that is, with the consent of congress, which shall be’ obtained as soon as sible, and it has been since given. By this construction every part is reconcilod, und if congress, in its liberality, included’ others who have since settled in the country, it had a right to do so. It Is said that the law respecting alien en- emies declares. that they shall oe apprehend- ed, unless actually naturalized; and it is contended that the only actual naturalization is by the uniform rule. This does not follow; if it did there is scarcely a creole who, 1n’ case of & war with France or Spain, would not be subjet to its penalties, for noncof them have compliod “’ho government has a right, by or by the admission of a new state, to lize, und such naturalization is equal to the other. The same question aroso_in Desbols casa 2 Martin's reports, 185, and the same conclusion is reached. THE WORD “INHABITANTS," In construing the meaning of the word “in- habitants” it is said,p. 182: **The act of con- gress authorizing the formation of the con- stitution of this state, 10 laws United States, 332, was almost litorally copied from that whioh authorized that of the state of Olio, 6 laws United States 120, In the first section of the latter the ‘inhabitants’ of the easteru division of the territory northwost of the river Ohio are authorized to form for them- solves a stato constitution. In the fourth section the persons entitled to voto for mem- bers of the convention aro described, first all male citizens of the United States; next, all other persons having, ete, “Thie word ‘inhabitants’ in the first section of this act must be taken lato sensu, it can- not be restrained so as to_include citizens of the United States only; for other persons are afterwards called uon to vote. There not any treaty or other instrument which may be said to control it. Every attompt, to restrict it must proceed ou principles abso- lutely arbitrary. If the word is to be taken lato sensu in the act passed in favor of the people of one territory, is theve any reason to say that we are to restrain it in another act passed for similar purposes in favor of the people of another territory (' The casds above cited are referred to With approval by tho attorney general of the United States in volumo 13 of ofticial opinions, . 307, whoalso cites Wheaton's International laws by Daw renve, p. 80 and cases cite The only case we have found holding n support of the proposition a con- trary doctrine is State vs. Primrose, 5 Ala. 540, Tn that case one of the grand jurors which found an indictment was a native of Treland and settled in Louistana in 1811, and thireo years lator returned to Mobile, Aln, The court Liolds in offect that he was not within the tecwms of the et of congress ad- witting Louisiana into the union, The most favorablo view that can be taken of the caso is that the opinion was writton off hand and without any previous ivestigation of the questions involved, On the main point not a single authority is cltod nor aro the principles discussed pon which otnor courts have placed construc- tion upon the word “inhabitants.” At the closo of the opinion the judge frank- ly says that he had not seen the decisions of the Louisiana courts and thereforo those cases had no influence on the judgment of the court, So far as wo have observod aftor & very careful examination, the doctrina of that case has not beon approved in o single in- stace. In American Insurance Co, vs. Canter, 1 Pegors 52, the supreme court of the United Statfs said: “On the 2d of February, 1819, Spain ceded Klorida to the United States. 10 sixth article of the teaaty of cession, contams tho following provision: ‘T'he in habitants of'the territories, which jis Cath- olic majesty cedes to the United States by this treaty shall be incorporated in the union of the United States, as s00n s may be con- sistent with the priuciples of the federal constitution; and admitted to the enjoy- ment of the privileges, rights and im- munities of the citizons of the United States.' This treaty 1s the law of the land and ad mits the inhabitants of Florida to the enjoy- mont of the privileges, rights and immunitios of the citizens of the United States." There are other decisions of the supreme court of the United States afirming tais doc- trine and the same rule is recognized by cou- gress in coutested elections. La the report of the cowmittee ou electious BEE: | people of Texas, w SATURDAY, MAY 16, 1891 'WELVE PAGES. 1o the caso of Mr. Levy, delogate from the territory of Florida contested election cases two,session Thirty-eight, congress Forty-one, it is said *‘the fourth section of the act of con. gross of April 14, 1802, socures to the infant CHILDREN OF PEISONS NATURALIZED, the benelit of their parents' naturalization, provided such children were at the time liv- lug in the United States, It matters not whether the naturalization be effected by the act of congress, by treaty or ‘by the admis. sion of new states,' the provision is alike ap- plicable, The condition of the parent is im- pressed upon the child.' This right exists under the war and treaty making powers of the government and the right to_control the territory and property of the United States and admit new states into the union, There are three modes, therefore, by which citizenship may be mcquired. First, birth Second, proceedings in a court of record T'hird, by treaty or act of congress admitting new states, The third proposition will be more fully tllustrated by a refarence to the admission of the state of Texas into the union On March 1, 1845, & resolution was adopted by congress as follows: *“That congress doth consent that the territory properly included within and rightfully belonging to the re public of Texas, may be erected into a new state, to be called the stato of Texas, with a republican form of government, to be adopted by the people of said republic, by deputivs in convention assemblod, with the consent of the existing goverament, in ordor that the same may be adwmitted as one of the states of this union.” Fifth U, S, Statutes at large, In pursuance of this rw«u\ull:m President Jones of Texas catled a delegation conventio of sixty-one members, who et July 4, 1543, ratified tho proposition made by " congress, prepared a coustitution for Texas as a state in the union and submitted the same to the b approved it. TING TEXAS, AD tn December foll was adopted by congress as follows: “Be it resolved by the senato and house of repre: sentatives of the United States of America congress assembled, that the state of Tex wing a joint resolution shall be one, and is heveby declared one, of the United Swates of America, and admitted into the uniou on a1 cqual footing with the origi It w 1 states in all respects whatsoever 1 he observed that the provedings ad mitting Texas into tho union were somewhat similar although not as full, comprehonsive and complete as the act admitting Nebraska. Under the act admitting Texas the inhabi- tants of Texas after declaration of indepena- ence became at once citizens of the United State In Cryer vs Andrews, 11 Texas 183, the su- preme court of Texas says: *“When the con- gress of the United Statss under tho authoy ity to admit new states, recives a foreign tion into tho eonfe . the laws of theso respective nations, in relution to naturaliza- tion of individual tigrants. have no applica tion to the respective citizons of each. By the very act of union, the citizons of each | come citizens of the government or govern- ments formed by this union The position which has been sometimes broached that the citizens of Texas must sub- wit tothe laws of nataralization, before they can become citizens of the Uuited States, is quite preposterous, No such doctrine was ever admitted or apolied to the citizens or in habitants of Loufsiana or Florida-—countries acquired by purchuse (2 Martin, 158, 3 Mar- tin, 7). Much lcss is it applicable to the citizens of a state, which, by voluntary treaty or legislation, becomes incorporated into tho United States. And if the citizens of Texas cannot be deprived of their franchises as citi zens of the United Statos, neither can citi- ans of the latter be stripped of the immuni- ties and privileges pertaining to the citizens of this stat, In Barrett vs, L. Kelly, 81 Texas, 481, the question was again before the supreine court of that state, and it is said when the annex- ation to the United States took place in 1545, becawe a part and parcel of tha United s, and none of tho citizons of the United were alien to Texas, and the citiz of Texas would bo i their'own country from the St. Lawrence to the zulf of Mexico. Other cases sustaining the same views can be found, but by reason of the great length to which 'this opinion has been extended, must be omitted. In effect the union of the nine original states naturalized them,which is but another name for naturalization: and where tho act for the admission of a new state authorizes the “inhabitants” ‘thercof or “‘people’ therein to form a state government and the uew state so formed - is ~admitted into the union on an equal footing with the orig states in all respects whatsosver,” the c ditions are preciscly the same as those on which the original fiine formed the union, and the other membets of the original thi teen came into the-union. Had Nebraska been one of the oviginal nine states, every iphabitunt of the state would by thie union have become a citizen of the United States, It was “admitted into the union upon an efqual footing with the original states in all Tespects whatsoever. " Broader or more comprehensive language could not boused, and its meaning cannot. be | restricted without doing violence to the words employed [n the third articls of the treaty of Paris of April 130, 1503, by which the territory of Lousiaut was acquired, it is provided “the inhabitants of the ceded territory shall ve incorporated in the union of the United States, and admitted as soon as possible, ac. cording to the principles of the federal con- stitution, to the enjoyment of all the rights, advantages and immunities of citizeus of the United States: and in the meantime they shall be maintainod and protected in the freo enjoyment of their liberty, property and re- adjoining, and § per cont of the procoods of the sale of all public lands lying within the stato aftor deducting the expenses incident 1o the same,” Thero was also an appropri- Ation to pay the exponsés of the couvention, Similar offers have boen made to all other states except Toxas, It has nover boen the policy of congress to force a territory to ac eepta stato government. Iu all cases the admission of the state has beon on the volun- tary application and consent of the people of such state, Judging the future by the past the people of a territory might preserve their territorial chartor to the end of time and there would be no attempt on_the part of the United States to coerce them into the union ‘The enabling act admitting a state is in the the nature of a treaty with the inhabitants of such state, Now, in the case of Texas y. The language of the 1845, for tho admission: of “Congress doth cousent that the properly included within and right- onging to the repuBflic of Texas may bo érected into a new state to be called the stato of Toxas with a republican form of go! ernment to be adopted by the peoplo of said republio by deputies in convention assembled with tho consent of tho existing government in order that the same may be admitted as one of the states of this union.”” Then foi- lows certain conditions which wers accopted by the state of Toxas, All white inhabitants of the state of Te: at the time of its declaration of independe were held to be citizens of that republic, and this by the mere force of the declaration of thre was no treaty. act of March 1, Texas is independence. Now, if a citizen of Texas, by the mere admission of that state into the union, became ipso facto a citizen of the United States, why does not the same apply to the admission of a territory ¢ FORBIGN STATES AND TERRITORIES It may be snid that a foreign state occupies adifferent position from_that of a territor belonging to the United Stat If so, h cr, the differ to be in favor of the inhabitants of the terri tory. They have grown up under the foster ing care of the government, and their senti nee won'd seem monts and sympathies are favorable and friendly to it This is illustrated by the very large number of volunteors that were fur: nished by every western state. In case of the admission of a state like ontaining a considerable mixed and yopulation, there coutd not be, from .m...-.\r the case, tho same loyalty to rovernment us in the y of s, In reason, therofor vy citizen of the territory, when it ad mitted into the union, became ipso facto & citizen of the United States In tho one case the enabling act is ad dressed to the state, and 1n the other to the people of tho territory. The propositions are the me in substance in both, and the result of the accoptance of same in both cases, viz, admission as # state an_equal footing with tho orig s, Suppose the United States should propose to the people of Manitoba 1o be ad- mitted as a state and they should accept the proposition and thereupon be admitted as a state of the uzon on an equal footing with the original states, would not every citizen of that colony thereby become a eitizen of the United States! it the propositions the upon INTERNATIONAL 1AW, as understood in England, has never bean adopted 1 this country. In Second Opinions of the attorney generals, it is said: “W take our knowledge of international law not from the municipal code of England,but from natural reason and justice, from writers of known wisdom, and™ the practice of civilizad nations.’ A MICHIGAN CAST Tn conclusion 1 desire to call a the case of The Attorne City of Dotroit. 44, N. W Priorto the admission ‘of Michigan into the union, considerable difficulty had avisen between that territory aud the stato of Ohio in regard to the northern bovndary of Onio and the southern boundary of the territory of Michigan. The militia seem to have been called _out on both sides, although wiser counsels prevailed and there was no actual hostilities. Michigan, however, did not avail itself of the enabling act which was thought to favor the state of Obio by giving it the disputed territory, hence no attempt was made to_or- ganize under the evabling act, but the legisla- ture of the territory passed an act n pursuance of which “a constitution was adopted, senators elected aud a representative in congress. One of tho provisions of this constitution was that each male inhabitant residing in the state on the 2ith day of June, 1835, should be entitied to vote at such election. Iu the case cited 1t was held that a rogistration act which failed to provide for this class of voters was unconstitutional and void. In the examination of the debates re- lating to the admission of that state the boundary question seems to have been apro- minent feature and absorbed the attention of the m>mbers more particularly from Obio and Indiana, some of whom claimed the state was attempting to break imto the union There is considerable discussion in regard to the provision of the constitution above re ferred to but it seemed to have been general ly acquiesced in and the bill finally ~ passed both houses by a very large majority. The writer has spent considerable time in the cousideration of the case and has ex- amimed every case,nro and con,bearing upor the question, and is forced to the belief th the detendant is a citizen. Tn any event the principal question pre- sented by the answer—the ohe which con- trols this decision is, in the opinion of the writer, a pure question of law arising unaer the laws of the United States, and must ultimately bo determined by the United States supreme court, and the decision of this court is at the most butastep in the tention to General vs The ligion which they profess,’” This stipulation couta not have beou in- tended to be restricted to the comparatively small number of inhabitants then occunying the territory which now forms the state of Louisiana, as the land ceded was an empire in extent,’ and has since formed a very large number of states. The stipulation, therefore, was in_effect thaton the admission of each state into the union, all the bona-fide inhabitants thereof should thereupon be entitled to enjoy *all the vights, advantages and immunities of citizens of the United States.” The admission of a state into the union pactukes of the nature of a treaty with the inhabitants that in consideration of their forming state government they shall enjoy certuin rights, privileges and immunities, 1t may be said to be to some extent a join derof the law-making and treaty-making powers of the government. Both parties derive benefit from the acces- sion of the new state and it is a matter of public history that congress has bec ingly liberal in the benefits confor the new states of the nation. Con no doubt impose other conditions upon t inhabitants of a stato seoking admission into tho union, but it is sufficient to say that it has not done so in this case. It is contonded on behalf of the attornoys for the relator that because no cases can bo found sustain- ing their view of the law, except the Ala- bama one, that, toerefore, the quostion nas never arisen, or if so been decided adversely 10 the defendant. In this, however TIEY ARE MISTAKEN The Louistana cases which were decided in the carly history of the governmont, oue of then by a judge of the United States court, have been followed apparently without ques: tion, and ave cited with approval by the at- torney general of the United States. But in this cnse, it is not necessary to go to the ex- tent of the cases cited. The answer alleges that Joseph Boyd, tho father of the defendant, in the yoar I, and long prior to the ime that the defendant reachod his majority, declared his intention to become a citizen of the United States. Had he vesided in this state at the time of the udoption of the first constitution he would have been a lezal voter therein, and express- ly authorized by the enabling act to vote for any oficer to ba elected by the stato of Ne- sk, The maxim of the law is ‘“patus sequitur patrem.” That is “the children foliow th condition of their father.’ 2 Bouv. Lu Dict. (14th Ed.) 147, Thiis is the rule in_regard to froemon, al- though @ different rule exists in tho case of animals and slaves. 1 Bouv. Instituto Note 167-502. 2 Bouv. Law Dict. 147 BOYD WAS A CITIZEN, The son, therefore, Was {n the same condi- tion when'he becawe of age as his father, and was u citizen of the: territory of Nebraska. Congress passea gnenabling ‘act for the ter ritory to admit g ceptain portion of it us o state sbould the Inhabitauts be so inclined In effect congrods said to the future state that in additlon to' representative on the scn- ate and a member-baving full power in the bouse “'we will doaate to you severfty-two sections of land for auniversity, two sections in each township for the support of common twenty tions of land for erection ? public buildings at the o spriugs in the capital the state, ali salt twelve in number with six sections of lan state not uxu««llng progress of the case. This is NOT A POLITICAL QUESTION, Thero must be one place where a party can assort his rights: where no inquiry will bo made as to his political opinions; where no extrancous matter will be permitted to in- tervene to his projudico. - That placo 1s o court of justice. Here the rich and poor, high and low, stand upon_an equality, and the court looks not at the hitigant but to his vignis as shown by the vecord und fearlessly declares the law. Tn my view the ansy states a combvlete defense to the action. 1 have not discussed the rights of the relator to bring the action as the case has not reached astage where sucn a discussion is necossary When that point 15 reached I will mako a fiill examination of the laws in relation thereto, and if after such examination the relator's right to the offico should be clear, my duty to render judgment in his favor woula be cheer. fully performed ONE ENJ()YS Both the method and results when Syrup of Figs is taken; it is plcusnnt and re'mslnng to the taste, and acts ienl]y yet promptly on the Kidneys, iver and Bowels, cleanses the sys- tem effectunlly, dispels colds, head- aches and fevers and cures habitual, constipation. Syrup of Figs is the” only remedy of its kind' ever pro- duced, pleasing to the taste and ac- cepwhle to the stomach, prompt in its action and truly beneficial in its effects, prepared only from the most healthy and agreeable substances, its many excellent qualities commend it to all and have made it the most gulnr remedy known. yrup of Figs is for eale in 60c and 81 bottles hy all leading drug gists. Any reliable druggist who may not have it on hand will pro- cure it promptly for any one who wishes to try it. Do not accept any substitute. CALIFORNIA FI& SYRUP CO. SAN FRANCISCO, CAL, bovisviue, kv, NEW YORK, N.V. Liebig COMPANY’S ficlont quant ened iy broth mudo'f blue thus It 1 DON'T YOU | BEGGS' BLOOD PURIFIER AND BLOOD MAKER Is not pleasant to take, as it is com- posed of all the medicinal qualitios thatgo to mako new and rich blood without compelling the consumer ta pay $1 A BOTTLE FOR ONE-THIRD SYRUP which can be bought any where for thirty-five cents a gallon, as all sur- aparillas are, BEGGS' BLOOD PURI¢IER and BLOOD MAKER i composed of pure medicing, and al- lows the purchaser to add syrup BE DECEIVED INTO BUYING CHEAP IMI= TATIONS CLAIMING TO BE JUST AS GOOD AS 8. 8.8, If they had merlt, they would not claim to be &s good as something e SWIFT'S SPECIFIC, 8. 8. 8, 18 RECOGNIZED A8 THE STANDARD, THAT IS WHY THE COUNTRY 18 F1LOODED WITH IMITATIONS OF 1T Books on Blood and Skin dise: s frea THE SWIFT SPECIFIC CO. ATLANTA, GA. | which Is advisol when given to A S children. § EXTRACT CF BEEF " 1t your drugszist does not P It nceept no ‘IN DARKEST AFRICA, b 108Nt AR Mo “Chitomso B S wad { they will forward, expross | | tio for $1_orsix for & L oups had to be propared in suf PIUDL ; Nopay till cured DR J BYSPHEND, Lebanos. 0 10% L0 SOFVe 1L cHPLULY L 0ach Wouk One M . Dr.OWEN’S puid, ong bote “By Honry M. Stanley. e Lo con nAny's Extract was of the chole | With Double Wire Suspensory. PATENTED AUG. 16, 1687, IMPROVED IT‘LY 29, 1800, GOLD MERAL, FAKLS, 1545, The most pop- ular sweet Chocolate in DR. OWI! ‘r:/‘i\ ELECTRO-GAL- the marlet. It [ FANIC BODY ' s DAL AND ue is nutritious | maticComplaints Wz Lumbago. Ge and palatable; | ™ v J 5, Discatas. “Nerv a particular | T, TR N enses caused by Youth, Age, Mar- Life Suspesory. SENT ‘T0 RFSPONSINLE PARTIES FOR CER- TAIN COMPLAINTS ON 30 DAYS' TRIAL. Also an Electric Truss and Belt Combined. Send 8o, postage for PREE illustrated book, 20 pnges, which will bo sent you (nplain sealed envel ope. ‘Mention thig paper. Address Owen Electiic Belt & Appliance Co., 806 N. Broadway, St. Louls, Mo. favorite with | children,anda mostexcellent article for fam- ily use. Served as a drink or eaten as Confectionery, it is a delicious Chocolate. The genuine is stamped upon the wrapper, 8. German, Dorchester, Mass. ndiscretions in ried or Siugle Sold by crocéii -evcrywhere. . W. Baker & Co., Dorchester, Mass. e ey HUMPHREYS' i LB AL LB AR R A = D, 11V ATITEYS SPECIYICS Are sciontifically and °i‘-2‘}f“l'.§'..r‘£§‘.'.’{‘.‘.".‘." o with Bucos A?.’f}?‘,’f: 4 et e et Sl o B e MONEY, Gerorruncraton, e o bikon e Wermr Sy Wil CAMPBELL’S Plasth et ity o CTER S arhum Voo VARNISH STAINS. ::'.‘.': iy Toothinche, Facenciio 1L 1n the ouly article that hias over been protuced ‘...n..."xrp Siok Headnche, v ay whicli housekeoper can satisfctorily ro-stain 1 y Tilious Stom: and varnish with oNg application and with ONECOAT rnunud or Painful all kinds of Household Furniture nnd Interior Wood 15 "‘l’f‘lrm ”"""x\'n'r‘.’f" X eriods v Work, In CIERIG WALNCT, MATOGANY, | 11 e x‘n‘.".l'i " Eryainelas, Eruptions. oy SavI ML BROSK kIR en "“‘I m, m"‘""“‘""‘“ e Lupand sold in HALF PINT CANS at 30 ct<, and In # Bl ,,\;;:,g:,l;;;;""q, i tioad van o S 0 SVl W 1 1?‘ !‘.'.;‘J.‘:‘.".'“t;.'.':.‘f!.':, 88 | DI Cory Wholonate agent. o U7 M 27 b P r Debility o & T W e 2 , Wetting Bed. .. ;-. § ik, Wepki VAL . 88 Ag}“fifl,fi_gfi ‘,!"'3%/53‘. o (8 ly bound I elath and oM, Toafied” free. ., 00, of Druggists or by mail. Sa. HUMPHREYS' MEDICINE CO, etanp. DR, R. SOHIPFHANN Oer William and John Streets, New York. { BEEIAN Some I P Phenu‘mfl () CURES - Children 4 Golds in the 5 a Hoad ) iy G rowing » by one sopien g % Too Fast ¢ Ty 8 become listless, fretful, without ener- -l time; 7 ; thin and weak, But you can for- 3 H tify them and build them up, by the 5 17} use of % v o t OTT’S p o 2 500 par Bottle, - EH u Ls‘ n " L) Mudiing Go. Omaka. OF PURE COD LIVER OiL AND S v T~y T HYPOPHOSPHITES ASHBURN ¢ N OFHM;“-; ang aoaas 6ultars, Mandolins& Zithers They will take readily, for it is al- in volume and quality of tone ary most as paiatable as milk. And it LA A CR should be remembered that AS A PRE- g danigia Deautifa ly i "'.'i'u.’u"' VENTIVE OR CURE OF COUGHS OR COLDS, i T B IN BOTH THE 0D AND YOUNS, 1T m‘ ( LYON & HEALY. CHIGAGO, = | I AC =] Indies. Sold in England for e Cxandrinn Drug (.. 1110 Farham St Omihy PINK [t | ol e i s o W i1 MOOKE & 10, WANTED. i 4 chester's Knglish Diamond Hr r;' f cloonaIn an THE PINLESS ENNYROYAL PILLS R A 0 i 3t o A POSITIVE andpermanent C ea. ¥ fier 11 v i’n‘.:::olg:?. :fia“:?"’w R?"‘?“":"E“fl LY 1o “'Price, one dollar. Ses signatire o wnave | STHL For Bale By All Drugkists. A o D & ) ‘\ ©° NS &y : 4 BUT Y REFUSE P e > SUBSTITUTES. ‘V@(‘\OQ’OQ'Q CENUINE HAS Q" S O Y @Y BurF wRAPPER g & A DO AROUND BOTTLE, MADE ONLY BY POND'S EXTRACT CO., 76 FIFTH AVE, NEW YORK