Dyer vs. Dyer, 2 Cox. 92. Being a presumption merely evidence is admissible to show that it was not intended as an advancement. Stock vs. McAvoy, L. R. 15 Eq. 55. Although this doctrine of implying a resulting trust in favor of the party furnishing the purchase money is abolished in New York, the grantee can declare himself a trustee or convey the property in trust for the plaintiff. Forte vs. Bryant, 47 N. Y. 544. Robbins vs. Robbins, 89 N. Y. 251. One may become a constructive trustee by the wrongful use of another's property. A thief steals money and with it buys a note secured by a mortgage which he sells to one who has notice of the facts, purchaser will hold note in trust for the person from whom the money was stolen. Newton vs. Porter, 69 N. Y. 133. So if trustee appropriates trust funds and invests the same for his own benefit, cestui que trust can claim the benefit of the investment. Lane vs. Drighton, Amb., 409. If, however, the fund appropriated can no longer be traced, and trustee is insolvent, cestui que trust must prove against the estate with the other creditors. Thompson's Appeal, 22 Pa. 16. In the matter of O'Brien, 45 Hun, 184. COLUMBIA LAW TIMES. JANUARY, 1891. No. 4 VOL. IV. CITIZENSHIP AND FRANCHISE. BY M. A. LESSER, A.M., LL.B., of the N. Y. Bar.* Much confusion exists in the popular mind, as an experience of several years as instructor of political science in the New York Evening High School has taught me, concerning the distinction existing between the two terms that give title to this paper, and a desire to promote the ability to distinguish between them-as well as to point out the divers qualifications extant for the latter-has prompted the preparation of this essay. The first tendency of the unthinking is to assume that citizen and voter are controvertible terms. Nothing can be further from the truth. For while, zoologically and logically, it is true that, although all animals are not men, yet all men are animals, in our constitutional lore, on the other hand, neither are all citizens voters, nor even are all voters citizens. It has been forcibly said that "not a vote is cast, from one end of the country to the other, by any person in virtue merely of being a citizen of the United States." A little reflection will suffice to establish *All rights reserved by the author. 1 Pomeroy, Const. Law, & 208. this as almost a truism. Persons under the age of twenty-one are universally known to be not entitled to vote. Yet such persons, born in the United States, or born out of the United States of parents naturalized here during the infant's minority, are clearly citizens.' Women,' whether born here, or born abroad and married to an American citizen, are indisputably citizens; but until very recent years were nowhere entitled to vote.* On the other hand, in a number of states of the union, foreign-born residents (whom the federal naturalization 2 Lynch vs. Clarke, I Sandf. Ch. (N. Y.) 584, 639. In re Look Tin Sing, 21 Fed. Rep. 905 (per Mr. Justice Field, sitting as circuit judge, Sawyer, Sabin, and Hoffman, J.J., concurring), the principle is extended, or rather held applicable, to "a Chinese, born of alien parents within the dominion and jurisdiction of the United States, who resides therein." But it must be a woman, "who might herself be lawfully naturalized" (U. S. Revised Stat., sec. 1994). Hence a Chinese woman, born abroad and here married to a citizen, cannot thereby acquire citizenship. 4 Cf. Minor vs. Happersett, 21 Wall. (U. S.) 4174, where the Supreme Court substantially says: Women and children are persons, and so they always were, and citizens likewise; they are counted in the enumeration, but they are not necessarily voters. act prevents from acquiring citizenship until they have been in the country for five years) are admitted to suffrage within a brief period after their immigration, provided they have previously declared their intention to become citizens when the time is ripe. It may happen, therefore, that a citizen of New York, removing shortly before an election to a state like Minnesota, will be unable to cast a vote in either state-in New York, because he no longer lives there, in Minnesota, because he has not lived there long enough; while, in a close contest (eg. where, as in 1884, a presidential election was decided by a few hundred votes in a single state), the scale may be turned, and the whole economic policy of the government changed, by the suffrages of non-citizen voters in any or all of the dozen states above referred to ! This anomalous condition of affairs finds its explanation in our duplex political system of Federal and State governments, with distinct functions, each. supreme within its sphere of authority-the dominion of the former, generally speaking, comprising and controlling in matters of a national, that of the latter, in matters of a local or individual character. "The people of the United States," to adopt the language of Chief-Justice Chase, "constitute one nation, under one government; and this government, within. the scope of the powers with which it is invested, is supreme. On the other hand, the people of each state compose a state, having its own government, and endowed with all the functions essential to separate and independent existence,"1-i.e. sep 1 Lane County vs. Oregon, 7 Wall., 76; adding that the people, through the federal constitution, established a more perfect union, by substituting a national government, acting with ample power, directly upon the citizens, instead of the con arate and independent existence as a state within the union. For "the states are not nations, either as between themselves or towards foreign nations. They are sovereign within their spheres, but their sovereignty stops short of nationality. Their political status at home and abroad is that of States within the United States."' And, in an earlier case, Mr. Justice Swayne observed that, while the government of the nation and that of the states are independent of each other in their respective spheres of action, "the former is as much a part of the government of the people of each State, and as much entitled to their allegiance and obedience, as their own local governments—' The Constitution of the United States and the laws made in pursuance thereof being, in all cases where they apply, the supreme law of the land.'' The question, therefore, is natural: what provisions does "the supreme law of the land" make as to citizenship and franchise? and the response is somewhat disappointing. Neither the Constitution, as originally adopted, nor any act of Congress, defines citizenship. Chancellor Kent, in his Commentaries, said that "citizens, under our Constitution and laws, means free inhabitants born within the United States, or naturalized under the laws of Congress"; while Mr. Bates, AttorneyGeneral in the first half of Lincoln's administration, was of opinion that "a citizen is a member of the body politic, federate government which acted, with powers greatly restricted, only upon the states." 2 Chief-Justice Waite, in case of N. H. vs. La., also N. Y. vs. La., 108 U. S. 90 (decided 1883). White vs. Hart, 13 Wall. 650. And to the same effect was the language of the Supreme Court in ex parte Siebold (100 U. S. 398, 399), Bradley, J., observing that where the Constitution and laws of the United States conflict with the laws of a state, the former "are of paramount authority and importance." |