Under the Citizenship Clause of the Fourteenth Amendment, a U.S. citizen cannot lose his or her citizenship unless he or she willingly surrenders it.
(b) The Fourteenth Amendment's provision that "All persons born or naturalized in the United States . . . are citizens of the United States . . ." completely controls the status of citizenship, and prevents the cancellation of petitioner's citizenship. Pp. 387 U. S. 262-268.
take away that citizenship once it has been acquired, petitioner contended that the only way he could lose his citizenship was by his own voluntary renunciation of it. Since the Government took the position that § 401(e) empowers it to terminate citizenship without the citizen's voluntary renunciation, petitioner argued that this section is prohibited by the Constitution. The District Court and the Court of Appeals, rejecting this argument, held that Congress has constitutional authority forcibly to take away citizenship for voting in a foreign country based on its implied power to regulate foreign affairs. Consequently, petitioner was held to have lost his American citizenship regardless of his intention not to give it up. This is precisely what this Court held in Perez v. Brownell, 356 U. S. 44.
citizenship. These cases, as well as many commentators, [Footnote 6] have cast great doubt upon the soundness of Perez. Under these circumstances, we granted certiorari to reconsider it, 385 U.S. 917. In view of the many recent opinions and dissents comprehensively discussing all the issues involved, [Footnote 7] we deem it unnecessary to treat this subject at great length.
"there is nothing in the . . . Fourteenth Amendment to warrant drawing from it a restriction upon the power otherwise possessed by Congress to withdraw citizenship,"
id. at 356 U. S. 58, n. 3, the majority specifically rejected the "notion that the power of Congress to terminate citizenship depends upon the citizen's assent," id. at 356 U. S. 61.
"The introduction of this article declares the opinion . . . that Congress could not declare the acts which should amount to a renunciation of citizenship; otherwise there would have been no necessity for this last resort. When it was settled that Congress could not declare that the acceptance of a pension or an office from a foreign Emperor amounted to a disfranchisement of the citizen, it must surely be conceded that they could not declare that any other act did. The cases to which their powers before this amendment confessedly did not extend are very strong, and induce a belief that Congress could not in any case declare the acts which should cause 'a person to cease to be a citizen.' The want of power in a case like this, where the individual has given the strongest evidence of attachment to a foreign potentate and an entire renunciation of the feelings and principles of an American citizen, certainly establishes the absence of all power to pass a bill like the present one. Although the intention with which it was introduced, and the title of the bill declare that it is to insure and foster the right of the citizen, the direct and inevitable effect of the bill, is an assumption of power by Congress to declare that certain acts when committed shall amount to a renunciation of citizenship."
31 Annals of Cong. 1038-1039 (1818).
"[A]llegiance imports an obligation on the citizen or subject, the correlative right to which resides in the sovereign power: allegiance in this country is not due to Congress, but to the people, with whom the sovereign power is found; it is, therefore, by the people only that any alteration can be made of the existing institutions with respect to allegiance."
essential to our notion of a Constitution, . . . it was this: that, while the employment of the physical force of the country is in the hands of the Legislature, those rules which determine what constitutes the rights of the citizen, shall be a matter of Constitutional provision."
"[The naturalized citizen] becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual."
as to whether prior to the passage of the Fourteenth Amendment Congress had the power to deprive a person against his will of citizenship, once obtained, should have been removed by the unequivocal terms of the Amendment itself. It provides its own constitutional rule in language calculated completely to control the status of citizenship: "All persons born or naturalized in the United States . . . are citizens of the United States. . . ." There is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.
"It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. . . . We desired to put this question of citizenship and the rights of citizens . . . under the civil rights bill beyond the legislative power. . . ."
Cong.Globe, 39th Cong., 1st Sess., 2890, 2896 (1866).
"a party to the act dissolving the tie between the citizen and his country . . . where the statute simply prescribes the manner in which the citizen shall proceed to perpetuate the evidence of his intention, or election, to renounce his citizenship by expatriation."
"the true question is, that not only the right of expatriation, but the whole power of its exercise, rests solely and exclusively in the will of the individual,"
statesman, no intelligent legislator, no sound lawyer has ever maintained any such power in any branch of the Government. The lawless precedents created in the delirium of war . . . of sending men by force into exile, as a punishment for political opinion, were violations of this great law . . . of the Constitution. . . . The men who debated the question in 1818 failed to see the true distinction. . . . They failed to comprehend that it is not the Government, but that it is the individual, who has the right and the only power of expatriation. . . . [I]t belongs and appertains to the citizen, and not to the Government, and it is the evidence of his election to exercise his right, and not the power to control either the election or the right itself, which is the legitimate subject matter of legislation. There has been, and there can be, no legislation under our Constitution to control in any manner the right itself."
"Congress having no power to abridge the rights conferred by the Constitution upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori no act . . . of Congress . . .
can affect citizenship acquired as a birthright, by virtue of the Constitution itself. . . . The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship."
Id. at 169 U. S. 703.
to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power. In some instances, loss of citizenship can mean that a man is left without the protection of citizenship in any country in the world -- as a man without a country. Citizenship in this Nation is a part of a cooperative affair. Its citizenry is the country, and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.
"(e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory."
This provision was reenacted as § 349(a)(5) of the Immigration and Nationality Act of 1952, 66 Stat. 267, 8 U.S.C. § 1481(a)(5).
"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States. . . ."
250 F.Supp. 686; 361 F.2d 102, 105.
Trop v. Dulles, 356 U. S. 86; Nishikawa v. Dulles, 356 U. S. 129.
See, e.g., Agata, Involuntary Expatriation and Schneider v. Rusk, 27 U.Pitt.L.Rev. 1 (1965); Hurst, Can Congress Take Away Citizenship?, 29 Rocky Mt.L.Rev. 62 (1956); Kurland, Foreword: "Equal in Origin and Equal in Title to the Legislative and Executive Branches of the Government," 78 Harv.L.Rev. 143, 169-175 (1964); Comment, 56 Mich.L.Rev. 1142 (1958); Note, Forfeiture of Citizenship Through Congressional Enactments, 21 U.Cin.L.Rev. 59 (1952); 40 Cornell L.Q. 365 (1955); 25 S.Cal.L.Rev.196 (1952). But see, e.g., Comment, The Expatriation Act of 1954, 64 Yale L.J. 1164 (1955).
See Perez v. Brownell, supra, at 356 U. S. 62 (dissenting opinion of THE CHIEF JUSTICE), 356 U. S. 79 (dissenting opinion of MR. JUSTICE DOUGLAS); Trop v. Dulles, supra, at 356 U. S. 91-93 (part I of opinion of Court); Nishikawa v. Dulles, supra, at 356 U. S. 138 (concurring opinion of MR. JUSTICE BLACK).
For a history of the early American view of the right of expatriation, including these congressional proposals, see generally Roche, The Early Development of United States Citizenship (1949); Tsiang, The Question of Expatriation in America Prior to 1907 (1942); Dutcher, The Right of Expatriation, 11 Am.L.Rev. 447 (1877); Roche, The Loss of American Nationality -- The Development of Statutory Expatriation, 99 U.Pa.L.Rev. 25 (1950); Slaymaker, The Right of the American Citizen to Expatriate, 37 Am.L.Rev.191 (1903).
4 Annals of Cong. 1005, 102-1030 (1794); 7 Annals of Cong. 349 et seq. (1797).
See, e.g., 3 U. S. Janson, 3 Dall. 133.
31 Annals of Cong. 495 (1817).
Id. at 1036-1037, 1058 (1818). Although some of the opponents, believing that citizenship was derived from the States, argued that any power to prescribe the mode for its relinquishment rested in the States, they were careful to point out that "the absence of all power from the State Legislatures would not vest it in us." Id. at 1039.
The amendment had been proposed by the 11th Cong., 2d Sess. See The Constitution of the United States of America, S.Doc. No. 39, 88th Cong., 1st Sess., 77-78 (1964).
Id. at 1071. It is interesting to note that the proponents of the bill, such as Congressman Cobb of Georgia, considered it to be "the simple declaration of the manner in which a voluntary act, in the exercise of a natural right, may be performed" and denied that it created or could lead to the creation of "a presumption of relinquishment of the right of citizenship." Id. at 1068.
The dissenting opinion here points to the fact that a Civil War Congress passed two Acts designed to deprive military deserters to the Southern side of the rights of citizenship. Measures of this kind passed in those days of emotional stress and hostility are by no means the most reliable criteria for determining what the Constitution means.
Cong.Globe, 39th Cong., 1st Sess., 2768-2769, 2869, 2890 et seq. (1866). See generally, Flack, Adoption of the Fourteenth Amendment 88-94 (1908).
"So long as a citizen does not expressly dissolve his allegiance and does not swear allegiance to another country his citizenship remains in statu quo, unaltered and unimpaired."
Proposals of Representatives Pruyn of New York (id. at 1130) and Van Trump of Ohio (id. at 1801, 2311).
While Van Trump disagreed with the 1818 opponents as to whether Congress had power to prescribe a means of voluntary renunciation of citizenship, he wholeheartedly agreed with their premise that the right of expatriation belongs to the citizen, not to the Government, and that the Constitution forbids the Government from being party to the act of expatriation. Van Trump simply thought that the opponents of the 1818 proposal failed to recognize that their mutual premise would not be violated by an Act which merely prescribed "how . . . [the rights of citizenship] might be relinquished at the option of the person in whom they were vested." Cong.Globe, 40th Cong., 2d Sess., 1804 (1868).
"It is a subject which, in our opinion, ought not to be legislated upon. . . . [T]his comes within the scope and character of natural rights which no Government has the right to control and which no Government can confer. And wherever this subject is alluded to in the Constitution -- . . . it is in the declaration that Congress shall have no power whatever to legislate upon these matters."
15 Stat. 223, R.S. § 1999.
Some have referred to this part. of the decision as a holding, see, e.g., Hurst, supra, 29 Rocky Mt.L.Rev. at 779; Comment, 56 Mich.L.Rev. at 1153-1154; while others have referred to it as obiter dictum, see, e.g., Roche, supra, 99 U.Pa.L.Rev. at 26-27. Whichever it was, the statement was evidently the result of serious consideration, and is entitled to great weight.
Of course, as THE CHIEF JUSTICE said in his dissent, 356 U.S. at 356 U. S. 66, naturalization unlawfully procured can be set aside. See, e.g., Knauer v. United States, 328 U. S. 654; Baumgartner v. United States, 322 U. S. 665; Schneiderman v. United States, 320 U. S. 118.
purposeful voting in a foreign political election to be such an act.
and the purpose" of the Citizenship Clause of the Fourteenth Amendment; in explanation, the Court offers only the terms of the clause itself, the contention that any other result would be "completely incongruous," and the essentially arcane observation that the "citizenry is the country and the country is its citizenry."
I can find nothing in this extraordinary series of circumventions which permits, still less compels, the imposition of this constitutional constraint upon the authority of Congress. I must respectfully dissent.
restraints that should surround the judicial invalidation of an Act of Congress, even seems to confirm Perez' soundness.
Not much evidence is available from the period prior to the adoption of the Fourteenth Amendment through which the then-prevailing attitudes on these constitutional questions can now be determined. The questions pertinent here were only tangentially debated; controversy centered instead upon the wider issues of whether a citizen might under any circumstances renounce his citizenship, and, if he might, whether that right should be conditioned upon any formal prerequisites. [Footnote 2/3] Even the discussion of these issues was seriously clouded by the widely accepted view that authority to regulate the incidents of citizenship had been retained, at least in part, by the several States. [Footnote 2/4] It should therefore be remembered that the evidence which is now available may not necessarily represent any carefully considered, still less prevailing, viewpoint upon the present issues.
legislation proposed in 1794, 1797, and 1818, and upon an isolated dictum from the opinion of Chief Justice Marshall in Osborn v. Bank of the United States, 9 Wheat. 738. This, as will appear, is entirely inadequate to support the Court's conclusion, particularly in light of other and more pertinent evidence which the Court does not notice.
vote, and no analogous proposal was offered in the Senate. Insofar as this brief exchange is pertinent here, it establishes, at most, that two or more members believed the proposal both constitutional and desirable, and that some larger number determined, for reasons that are utterly obscure, that it should not be adopted.
The Court next relies upon the rejection of proposed legislation in 1797. The bill there at issue would have forbidden the entry of American citizens into the service of any foreign state in time of war; its sixth section included machinery by which a citizen might voluntarily expatriate himself. [Footnote 2/7] The bill contained nothing which would have expatriated unwilling citizens, and the debates do not include any pronouncements relevant to that issue. It is difficult to see how the failure of that bill might be probative here.
"The relation to the State government was the basis of the relation to the General Government, and therefore, as long as a man continues a citizen of a State, he must be considered a citizen of the United States. [Footnote 2/10]"
and undesirable. Pindall of Virginia, for example, asserted that a citizen who employed its provisions would have "motives of idleness or criminality," [Footnote 2/12] and that the bill would thus cause "much evil." [Footnote 2/13] McLane of Delaware feared that citizens would use the bill to escape service in the armed forces in time of war; he warned that the bill would, moreover, weaken "the love of country so necessary to individual happiness and national prosperity." [Footnote 2/14] He even urged that "The commission of treason, and the objects of plunder and spoil, are equally legalized by this bill." [Footnote 2/15] Lowndes of South Carolina cautioned the House that difficulties might again arise with foreign governments over the rights of seamen if the bill were passed. [Footnote 2/16] Given these vigorous and repeated arguments, it is quite impossible to assume, as the Court apparently has, that any substantial portion of the House was motivated wholly, or even in part, by any particular set of constitutional assumptions. These three statements must, instead, be taken as representative only of the beliefs of three members, premised chiefly upon constitutional doctrines which have subsequently been rejected, and expressed in a debate in which the present issues were not directly involved.
here. The central issue before the Court in Osborn was the right of the bank to bring its suit for equitable relief in the courts of the United States. In argument, counsel for Osborn had asserted that, although the bank had been created by the laws of the United States, it did not necessarily follow that any cause involving the bank had arisen under those laws. Counsel urged by analogy that the naturalization of an alien might as readily be said to confer upon the new citizen a right to bring all his actions in the federal courts. Id. at 813-814 [argument of counsel omitted from electronic version]. Not surprisingly, the Court rejected the analogy, and remarked that an act of naturalization "does not proceed to give, to regulate, or to prescribe his capacities," since the Constitution demands that a naturalized citizen must in all respects stand "on the footing of a native." Id. at 22 U. S. 827. The Court plainly meant no more than that counsel's analogy is broken by Congress' inability to offer a naturalized citizen rights or capacities which differ in any particular from those given to a native-born citizen by birth. Mr. Justice Johnson's discussion of the analogy in dissent confirms the Court's purpose. Id. at 22 U. S. 875-876.
"the dominant Jeffersonian view held that citizenship was within the jurisdiction of the states; a statute would thus have been a federal usurpation of state power. [Footnote 2/22]"
1818; the statements from that debate set out in the opinion for the Court were, as I have noted, bottomed on the reasoning that, since allegiance given by an individual to a State could not be dissolved by Congress, a federal statute could not regulate expatriation. It surely follows that this "obscure enterprise" [Footnote 2/23] in 1810, motivated by now discredited constitutional premises, cannot offer any significant guidance for solution of the important issues now before us.
The most pertinent evidence from this period upon these questions has been virtually overlooked by the Court. Twice in the two years immediately prior to its passage of the Fourteenth Amendment, Congress exercised the very authority which the Court now suggests that it should have recognized was entirely lacking. In each case, a bill was debated and adopted by both Houses which included provisions to expatriate unwilling citizens.
"every person who shall hereafter hold or exercise any office . . . in the rebel service . . . is hereby declared not to be a citizen of .the United States. [Footnote 2/24]"
impermissible. [Footnote 2/30] Significantly, however, it was never suggested in either debate that expatriation without a citizen's consent lay beyond Congress' authority. Members of both Houses had apparently examined intensively the section's constitutional validity, and yet had been undisturbed by the matters upon which the Court now relies.
Some doubt, based on the phrase "rights of citizenship," has since been expressed [Footnote 2/31] that § 21 was intended to require any more than disfranchisement, but this is, for several reasons, unconvincing. First, § 21 also explicitly provided that persons subject to its provisions should not thereafter exercise various "rights of citizens"; [Footnote 2/32] if the section had not been intended to cause expatriation, it is difficult to see why these additional provisions would have been thought necessary. Second, the executive authorities of the United States afterwards consistently construed the section as causing expatriation. [Footnote 2/33] Third, the section was apparently understood by various courts to result in expatriation; in particular, Mr. Justice Strong, while a member of the Supreme Court of Pennsylvania, construed the section to cause a "forfeiture of citizenship," Huber v. Reily, 53 Pa. 112, 118, and although this point was not expressly reached, his general understanding of the statute was approved by this Court in Kurtz v. Moffitt, 115 U. S. 487, 115 U. S. 501. Finally, Congress in 1867 approved an exemption from the section's provisions for those who had deserted after the termination of general hostilities, and the statute as adopted specifically described the disability from which exemption was given as a "loss of his citizenship."
It thus appears that Congress had twice, immediately before its passage of the Fourteenth Amendment, unequivocally affirmed its belief that it had authority to expatriate an unwilling citizen.
The pertinent evidence for the period prior to the adoption of the Fourteenth Amendment can therefore be summarized as follows. The Court's conclusion today is supported only by the statements, associated at least in part with a now abandoned view of citizenship, of three individual Congressmen, and by the ambiguous and inapposite dictum from Osborn. Inconsistent with the Court's position are statements from individual Congressmen in 1794, and Congress' passage in 1864 and 1865 of legislation which expressly authorized the expatriation of unwilling citizens. It may be that legislation adopted in the heat of war should be discounted in part by its origins, but, even if this is done, it is surely plain that the Court's conclusion is entirely unwarranted by the available historical evidence for the period prior to the passage of the Fourteenth Amendment. The evidence suggests, to the contrary, that Congress in 1865 understood that it had authority, at least in some circumstances, to deprive a citizen of his nationality.
of Michigan, the sponsor of the Citizenship Clause in the Senate, and of a statement made in a debate in the House of Representatives in 1868 by Van Trump of Ohio. Measured most generously, this evidence would be inadequate to support the important constitutional conclusion presumably drawn in large part from it by the Court; but, as will be shown, other relevant evidence indicates that the Court plainly has mistaken the purposes of the clause's draftsmen.
whom citizenship initially adhered, thus overturning the restrictions both of Dred Scott and of the doctrine of primary state citizenship, while preserving Congress' authority to prescribe the methods and terms of expatriation.
"This amendment [the Citizenship Clause] which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is . . . a citizen of the United States. [Footnote 2/44]"
Howard was a member of the Senate when both bills were passed, and had actively participated in the debates upon the Enrollment Act. [Footnote 2/46] Although his views of the two expatriation measures were not specifically recorded, Howard certainly never expressed to the Senate any doubt either of their wisdom or of their constitutionality. It would be extraordinary if these prominent supporters of the Citizenship Clause could have imagined, as the Court's construction of the clause now demands, that the clause was only "declaratory" of the law "where it now is," and yet that it would entirely withdraw a power twice recently exercised by Congress in their presence.
"I take it for granted that, after a man becomes a citizen of the United States under the Constitution, he cannot cease to be citizen except by expatriation or the commission of some crime by which his citizenship shall be forfeited. [Footnote 2/47]"
"primarily to assail the conduct of the British Government [chiefly for its acts toward naturalized Americans resident in Ireland] and to declare the right of naturalized Americans to renounce their native allegiance; [Footnote 2/52]"
interstitial comments, that they understood Congress to have authority to expatriate unwilling citizens, [Footnote 2/53] but ,in general, both the issues now before the Court and questions of the implications of the Citizenship Clause were virtually untouched in the debates.
Further, the executive authorities of the United States repeatedly acted, in the 40 years following 1868, upon the premise that a citizen might automatically be deemed to have expatriated himself by conduct short of a voluntary renunciation of citizenship; individual citizens were, as the Court indicated in Perez, regularly held on this basis to have lost their citizenship. Interested Members of Congress, and others, could scarcely have been unaware of the practice; as early as 1874, President Grant urged Congress in his Sixth Annual Message to supplement the Act of 1868 with a statutory declaration of the acts by which a citizen might "be deemed to have renounced or to have lost his citizenship." [Footnote 2/60] It was the necessity to provide a more satisfactory basis for this practice that led first to the appointment of the Citizenship Board of 1906, and subsequently to the Nationality Acts of 1907 and 1940. The administrative practice in this period was described by the Court in Perez; it suffices here merely to emphasize that the Court today has not ventured to explain why the Citizenship Clause should, so shortly after its adoption, have been, under the Court's construction, so seriously misunderstood.
as indeed the Court recognizes; the evidence, to the contrary, irresistibly suggests that the draftsmen of the Fourteenth Amendment did not intend, and could not have expected, that the Citizenship Clause would deprive Congress of authority which it had, to their knowledge, only recently twice exercised. The construction demanded by the pertinent historical evidence, and entirely consistent with the clause's terms and purposes, is instead that it declares to whom citizenship, as a consequence either of birth or of naturalization, initially attaches. The clause thus served at the time of its passage both to overturn Dred Scott and to provide a foundation for federal citizenship entirely independent of state citizenship; in this fashion it effectively guaranteed that the Amendment's protection would not subsequently be withheld from those for whom it was principally intended. But nothing in the history, purposes, or language of the clause suggests that it forbids Congress in all circumstances to withdraw the citizenship of an unwilling citizen. To the contrary, it was expected, and should now be understood, to leave Congress at liberty to expatriate a citizen if the expatriation is an appropriate exercise of a power otherwise given to Congress by the Constitution, and if the methods and terms of expatriation adopted by Congress are consistent with the Constitution's other relevant commands.
upon legislative authority. The construction now placed on the Citizenship Clause rests, in the last analysis, simply on the Court's ipse dixit, evincing little more, it is quite apparent, than the present majority's own distaste for the expatriation power.
I believe that Perez was rightly decided, and on its authority would affirm the judgment of the Court of Appeals.
It is appropriate to note at the outset what appears to be a fundamental ambiguity in the opinion for the Court. The Court at one point intimates, but does not expressly declare, that it adopts the reasoning of the dissent of THE CHIEF JUSTICE in Perez. THE CHIEF JUSTICE there acknowledged that "actions in derogation of undivided allegiance to this country" had "long been recognized" to result in expatriation, id. at 356 U. S. 68; he argued, however, that the connection between voting in a foreign political election and abandonment of citizenship was logically insufficient to support a presumption that a citizen had renounced his nationality. Id. at 356 U. S. 76. It is difficult to find any semblance of this reasoning, beyond the momentary reference to the opinion of THE CHIEF JUSTICE, in the approach taken by the Court today; it seems instead to adopt a substantially wider view of the restrictions upon Congress' authority in this area. Whatever the Court's position, it has assumed that voluntariness is here a term of fixed meaning; in fact, of course, it has been employed to describe both a specific intent to renounce citizenship and the uncoerced commission of an act conclusively deemed by law to be a relinquishment of citizenship. Until the Court indicates with greater precision what it means by "assent," today's opinion will surely cause still greater confusion in this area of the law.
It is useful, however, to reiterate the essential facts of this case, for the Court's very summary statement might unfortunately cause confusion about the situation to which § 401(e) was here applied. Petitioner emigrated from the United States to Israel in 1950, and, although the issue was not argued at any stage of these proceedings, it was assumed by the District Court that he "has acquired Israeli citizenship." 250 F.Supp. 686, 687. He voted in the election for the Israeli Knesset in 1951, and, as his Israeli Identification Booklet indicates, in various political elections which followed. Transcript of Record 1-2. In 1960, after 10 years in Israel, petitioner determined to return to the United States, and applied to the United States Consulate in Haifa for a passport. The application was rejected, and a Certificate of Loss of Nationality, based entirely on his participation in the 1951 election, was issued. Petitioner's action for declaratory judgment followed. There is, as the District Court noted, "no claim by the [petitioner] that the deprivation of his American citizenship will render him a stateless person." Ibid.
See generally Tsiang, The Question of Expatriation in America Prior to 1907, 25-70; Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 327-330; Roche, Loss of American Nationality, 4 West.Pol.Q. 268.
Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 329. Although the evidence, which consists principally of a letter to Albert Gallatin, is rather ambiguous, Jefferson apparently believed even that a state expatriation statute could deprive a citizen of his federal citizenship. 1 Writings of Albert Gallatin 301-302 (Adams ed. 1879). His premise was presumably that state citizenship was primary, and that federal citizenship attached only through it. See Tsiang, supra, at 25. Gallatin's own views have been described as essentially "states' rights"; see Roche, Loss of American Nationality, 4 West.Pol.Q. 268, 271.
See 4 Annals of Cong. 1004 et seq.
The discussion and rejection of the amendment are cursorily reported at 4 Annals of Cong. 1028-1030.
The sixth section is set out at 7 Annals of Cong. 349.
The bill is summarized at 31 Annals of Cong. 495.
31 Annals of Cong. 1046.
31 Annals of Cong. 1057.
Ibid. Roche describes the Congressmen upon whom the Court chiefly relies as "the states' rights opposition." Loss of American Nationality, 4 West.Pol.Q. 268, 276.
31 Annals of Cong. 1047.
31 Annals of Cong. 1050.
31 Annals of Cong. 1059.
31 Annals of Cong. 1051.
Similarly, the Court can obtain little support from its invocation of the dictum from the opinion for the Court in United States v. Wong Kim Ark, 169 U. S. 649, 169 U. S. 703. The central issue there was whether a child born of Chinese nationals domiciled in the United States is an American citizen if its birth occurs in this country. The dictum upon which the Court relies, which consists essentially of a reiteration of the dictum from Osborn, can therefore scarcely be considered a reasoned consideration of the issues now before the Court. Moreover, the dictum could conceivably be read to hold only that no power to expatriate an unwilling citizen was conferred either by the Naturalization Clause or by the Fourteenth Amendment; if the dictum means no more, it would, of course, not even reach the holding in Perez. Finally, the dictum must be read in light of the subsequent opinion for the Court, written by Mr. Justice McKenna, in Mackenzie v. Hare, 239 U. S. 299. Despite counsel's invocation of Wong Kim Ark, id. at 302 and 303 [argument of counsel -- omitted], the Court held in Mackenzie that marriage between an American citizen and an alien, unaccompanied by any intention of the citizen to renounce her citizenship, nonetheless permitted Congress to withdraw her nationality. It is immaterial for these purposes that Mrs. Mackenzie's citizenship might, under the statute there, have been restored upon termination of the marital relationship; she did not consent to the loss, even temporarily, of her citizenship, and, under the proposition apparently urged by the Court today, it can therefore scarcely matter that her expatriation was subject to some condition subsequent. It seems that neither Mr. Justice McKenna, who became a member of the Court after the argument but before the decision of Wong Kim Ark, supra, at 169 U. S. 732, nor Mr. Chief Justice White, who joined the Court's opinions in both Wong Kim Ark and Mackenzie, thought that Wong Kim Ark required the result reached by the Court today. Nor, it must be supposed, did the other six members of the Court who joined Mackenzie, despite Wong Kim Ark.
The various revisions of the proposed amendment may be traced through 20 Annals of Cong. 530, 549, 572-573, 635, 671.
Ames, The Proposed Amendments to the Constitution of the United States during the First Century of Its History, 2 Ann.Rep.Am.Hist.Assn. for the Year 1896, 188.
Ames, supra, at 187, speculates that the presence of Jerome Bonaparte in this country some few years earlier might have caused apprehension, and concludes that the amendment was merely an expression of "animosity against foreigners." Id.. at 188.
Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 335.
6 Richardson, Messages and Papers of the Presidents 226.
See, e.g., the comments of Senator Brown of Missouri, Cong.Globe, 38th Cong., 1st Sess., 3460.
Lincoln indicated that, although he was "unprepared" to be "inflexibly committed" to "any single plan of restoration," he was "fully satisfied" with the bill's provisions. 6 Richardson, Messages and Papers of the Presidents 222-223.
Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 343.
13 Stat. 490. It was this provision that, after various recodifications, was held unconstitutional by this Court in Trop v. Dulles, 356 U. S. 86. A majority of the Court did not there hold that the provision was invalid because Congress lacked all power to expatriate an unwilling citizen. In any event, a judgment by this Court 90 years after the Act's passage can scarcely reduce the Act's evidentiary value for determining whether Congress understood in 1865, as the Court now intimates that it did, that it lacked such power.
Cong.Globe, 38th Cong., 2d Sess., 642-643, 1155-1156.
Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 336.
Hearings before House Committee on Immigration and Naturalization on H.R. 6127, 76th Cong., 1st Sess., 38.
See, e.g., the remarks of Senator Hendricks, Cong.Globe, 40th Cong., 1st Sess., 661.
The pertinent events are described in Flack, Adoption of the Fourteenth Amendment 83-94.
Cong.Globe, 39th cong., 1st Sess., 2560.
Wade would have employed the formula "persons born in the United States or naturalized under the laws thereof" to measure the sections protection. Cong.Globe, 39th Cong., 1st Sess., 2768-2769.
81 Cong.Globe, 39th Cong., 1st Sess., 2869. The precise terms of the discussion in the caucus were, and have remained, unknown. For contemporary comment, see Cong.Globe, 39th Cong., 1st Sess., 2939.
Scott v. Sandford, 19 How. 393.
Cong.Globe, 39th Cong., 1st Sess., 2768.
See, e.g., the comments of Senator Johnson of Maryland, Cong.Globe, 39th Cong., 1st Sess., 2893. It was subsequently acknowledged by several members of this Court that a central purpose of the Citizenship Clause was to create an independent basis of federal citizenship, and thus to overturn the doctrine of primary state citizenship. The Slaughter-House Cases, 16 Wall. 36, 83 U. S. 74, 83 U. S. 95, 83 U. S. 112. The background of this issue is traced in tenBroek, The Anti-slavery Origins of the Fourteenth Amendment 71-93.
Cong.Globe, 39th Cong., 1st Sess., 3031. See also Flack, The Adoption of the Fourteenth Amendment 93. In the same fashion, tenBroek, supra, at 215-217, concludes that the whole of § 1 was "declaratory and confirmatory." Id. at 217.
Cong.Globe, 39th Cong., 1st Sess., 2890. See also the statement of Congressman Baker, Cong.Globe, 39th Cong., 1st Sess., App. 255, 256. Similarly, two months after the Amendment's passage through Congress, Senator Lane of Indiana remarked that the clause was "simply a re-affirmation" of the declaratory citizenship section of the Civil Rights Bill. Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? 2 Stan.L.Rev. 5, 74.
Senator Henderson participated in the debates upon the Enrollment Act and expressed no doubts about the constitutionality of § 21, Cong.Globe, 38th Cong., 2d Sess., 641, but the final vote upon the measure in the Senate was not recorded. Cong.Globe, 38th Cong., 2d Sess., 643.
See, e.g., Cong.Globe, 38th Cong., 2d Sess., 632.
Cong.Globe, 39th Cong., 1st Sess., 2895.
"prominent feature of the first [section] is, that it settles definitely the right of citizenship in the several States, . . . thereby depriving them in the future of all discretionary power over the subject within their respective limits, and with reference to their State Governments proper."
Ga.Sen. J. 6 (1866). See also the message of Governor Cox to the Ohio Legislature, Fairman, supra, 2 Stan.L.Rev. at 96, and the message of Governor Fletcher to the Missouri Legislature, Mo.Sen.J. 14 (1867). In combination, this evidence again suggests that the Citizenship Clause was expected merely to declare to whom citizenship initially attaches, and to overturn the doctrine of primary state citizenship.
Senator Hendricks, for example, lamented its unfairness, declared that its presence was an "embarrassment" to the country, and asserted that it "is not required any longer." Cong.Globe, 40th Cong., 1st Sess., 660-661.
Similarly, in 1885, this Court construed § 21 without any apparent indication that the section was, or had ever been thought to be, beyond Congress' authority. Kurtz v. Moffitt, 115 U. S. 487, 115 U. S. 501-502.
Tsiang, supra, n. 3, at 95. President Johnson emphasized in his Third Annual Message the difficulties which were then prevalent. 6 Richardson, Messages and Papers of the Presidents 558, 580-581.
Tsiang, supra, at 95. See also 3 Moore, Digest of International Law 579-580.
See, e.g., Cong.Globe, 40th Cong., 2d Sess., 968, 1129-1131.
Van Trump's proposal contained nothing which would have expatriated any unwilling citizen, see Cong.Globe, 40th Cong., 2d Sess., 1801; its ultimate failure therefore cannot, despite the Court's apparent suggestion, help to establish that the House supposed that legislation similar to that at issue here was impermissible under the Constitution.
Cong.Globe, 40th Cong., 2d Sess., 1800-1805.
It should be noted that Van Trump, far from a "framer" of the Amendment, had not even been a member of the Congress which adopted it. Biographical Directory of the American Congress 1774-1961, H.R.Doc. No. 442, 85th Cong., 2d Sess., 1750.
As General Banks, the Chairman of the House Committee on Foreign Affairs, carefully emphasized, the debates were intended simply to produce a declaration of the obligation of the United States to compel other countries "to consider the rights of our citizens and to bring the matter to negotiation and settlement"; the bill's proponents stood "for that and nothing more." Cong.Globe, 40th Cong., 2d Sess., 2315.
The first such treaty was that with the North German Union, concluded February 22, 1868, and ratified by the Senate on March 26, 1868. 2 Malloy, Treaties, Conventions, International Acts, Protocols and Agreements between the United States and other Powers 1298. Similar treaties were reached in 1868 with Bavaria, Baden, Belgium, Hesse, and Wurttemberg; a treaty was reached in 1869 with Norway and Sweden. An analogous treaty was made with Mexico in 1868, but, significantly, it permitted rebuttal of the presumption of renunciation of citizenship. See generally Tsiang, supra, at 88.
The relevance of these treaties was certainly not overlooked in the debates in the Senate upon the Act of 1868. See, e.g., Cong.Globe, 40th Cong., 2d Sess., 4205, 4211, 4329, 4331. Senator Howard attacked the treaties, but employed none of the reasons which might be suggested by the opinion for the Court today. Id. at 4211.
7 Richardson, Messages and Papers of the Presidents 284, 291. See further Borchard, Diplomatic Protection of Citizens Abroad §§ 319, 324, 325.


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CIVIL ACTION commenced in the Superior Court Department on June 1, 1981.
The case was heard by Hallisey, J., on motion for summary judgment.
Jacqueline Lillard Allen, Assistant Corporation Counsel, for the defendants.
WARNER, J. The defendant city of Boston (city) appeals from the entry in the Superior Court of summary judgment for the plaintiff, Boston Licensing Board (licensing board). The licensing board's complaint requests injunctive and declaratory relief to require the city to appropriate the funds which the board determined were necessary to pay its expenses. At issue is the proper construction of the special statute which created the licensing board, St. 1906, c. 291, particularly the provisions of Sections 2 and 3, pertaining to the financing of the licensing board. There is no dispute concerning any material fact. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974).
At least since 1956, the licensing board has submitted annual budgets to the mayor of the city which have been funded by appropriations made by the city council, following recommendations of the mayor, in accordance with statutory appropriations procedures. [Note 2] See St. 1909, c. 486, Section 3, as amended through St. 1974, c. 276, Section 53. In February of 1981 the licensing board approved a budget for the 1982 fiscal year in the amount of $247,035. The licensing board then submitted a budget request in this amount to the city, calling it a "budget requisition . . . in accordance with the procedure outlined in Chapter 291 of the acts of 1906 as amended." In response, the mayor first advised the licensing board that he would recommend to the city council an appropriation of $124,000. [Note 3] The mayor's final recommendation, made after this action was filed, was for an appropriation of $239,000. In April of 1981, the city advised the licensing board (and all city departments) that no further expenditures (other than for utility expenses) would be approved during the 1981 fiscal year "unless of an emergency nature" and with prior written approval.
office employees and legal assistance [Note 4] as it may deem necessary; the expenses therefor and all incidental expenses incurred by the board in the performance of its duties and the exercise of its powers shall be paid by said city upon requisition of the board. Such requisition need not be submitted as a part of a budget to the mayor, but shall be paid by the city without further review or change."
The licensing board argues that this declaration is dictated by the provisions of St. 1906, c. 291, Section 1, which provides in part that "[t]he governor, with the advice and consent of the council, shall appoint from the two principal political parties three citizens of Boston . . . who shall constitute a licensing board for said city . . .. One member of said board shall be designated by the governor as chairman." The requirement that the three appointments be made "with the advice and consent of the council" was repealed by St. 1964, c. 740. Opinion of the Justices, 374 Mass. 864, 868 (1978). Statute 1906, c. 291, Section 1, as so altered by St. 1964, c. 740, also gives the Governor the power to remove any licensing board member "for such cause as he shall deem sufficient."
quoting from Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513 (1975). In so construing a statute, we may examine it "in connection with [its] development, [its] progression through the legislative body, the history of the times, prior legislation . . . and in the light of the Constitution and of the common law." Commonwealth v. Welosky, 276 Mass. 398, 401 (1931).
We look first to the language of St. 1906, c. 291, Sections 2 & 3: "Such salaries shall be paid . . . by the city," and the board's expenses "shall be paid by said city upon requisition of the board" (emphasis supplied). The motion judge considered this language to be "clear and unambiguous." "The word `shall' is ordinarily interpreted as having a mandatory or imperative obligation." Hashimi v. Kalil, 388 Mass. 607, 609 (1983). In its context, the use of "shall" in the 1906 act indicates that the Legislature intended to prevent the exercise of discretion on the city's part. See Bloom v. Worcester, 363 Mass. 136, 156 n.15 (1973). Ordinarily, where "the words of the statute are clear and unambiguous and . . . given their ordinary meaning . . . yield a workable and logical result, there is no need to resort to extrinsic aids in interpreting the statute." Hashimi v. Kalil, supra at 610. However, in view of the age of the 1906 act, the possibility of ambiguity in the term "requisition," and the city's argument that the statute is not workable unless the constraints of the appropriation process of the city are superimposed, we do not rely exclusively on the language of the statute.
3. In addition, there are clear indications that the 1906 act and its predecessor, St. 1885, c. 323, were passed with the intention of separating the authority of the licensing board from that of the mayor and city council of Boston. It is necessary to do some tracing here. Most of the duties given to the licensing board under the 1906 act were formerly handled for a time by the board of police of the city. Welch v. O'Meara, 195 Mass. 541, 543 (1907). St. 1885, c. 323, Section 2. St. 1906, c. 291, Section 4. The board of police was established by St. 1885, c. 323, Section 1, to replace the board of police commissioners, which was created by St. 1878, c. 244, Section 1.
The 1878 act gave the board of police commissioners "the powers and duties conferred upon the board of license commissioners, appointed under the provisions of [St. 1875, c. 99, Section 20]." St. 1878, c. 244, Section 2.
Section 1 of the 1878 act empowered the mayor of Boston to appoint "three able and discreet persons to constitute a board of police commissioners in said city." Section 3 of that act stated, "The compensation of the commissioners and the officers of each grade shall be fixed from time to time by ordinances of the city council." Although there was no explicit provision for other expenses of the board, the 1878 act clearly made the board subject to the authority of the mayor and city council. Statute 1885, c. 323, Section 1, took the appointing authority from the mayor and gave it to the Governor "with the advice and consent of the council." Section 4 specified the salaries of the board members, "which shall be paid monthly from the treasury of the city of Boston." This section also required the city to provide suitable facilities for the board and provided: "All expenses for the maintenance of buildings, the pay of the police and all incidental expenses incurred in the administration of the said police shall be paid by the city of Boston upon the requisition of said board."
McKenney v. Commission on Judicial Conduct, 377 Mass. 790, 799 (1979).
the moral sense of the people of this city and of this commonwealth against the open, shameless, persistent, defiant violation of law in this city." [Note 13] Speech of Mr. Charles Carleton Coffin, of Boston, in the House of Representatives, May 14, 1885. Both men made clear their views that the 1885 bill was an attempt to have the police commissioners "derive[ ] their authority from a different source." [Note 14] Testimony of Hon. Augustus P. Martin, supra at 5. Speech of Mr. Charles Carleton Coffin, supra.
In light of this background, there can be little doubt that the Legislature intended the 1885 act to divest the city of all control and authority over the board of police and place it in the hands of the Governor. It would have been inconsistent with this intent to have left the city with any voice in determining the appropriations for the board. Control of the purse strings may well be the ultimate control. See note 3, supra. We think it clear that the Legislature intended the word "requisition" in the 1885 act to mean a demand for payment with which the city had to comply.
appointed by the governor." The next and most recent amendment, St. 1953, c. 473, Section 1, rewrote the section which deals with city departments and agencies and provides: "[No] by-law or ordinance made under this section [shall] affect in any way . . . any board or officer appointed by the governor." This restriction pertains to powers granted in "this section," whereas the former restriction pertained to powers granted in "this act." There is nothing in the 1953 amendment or in other amendments to the 1909 act which indicates a legislative intent to give to the city more power over boards and officers appointed by the Governor than was given it in the 1909 act. Without a clear indication of intent to change the prior law, we assume that the prior law remains in effect. See Roberge's Case, 330 Mass. 506, 509 (1953); Ferullo's Case, 331 Mass. 635, 637 (1954); Town Crier, Inc. v. Chief of Police of Weston, 361 Mass. 682, 686 (1972).
The city's reliance on Police Commr. of Boston v. Boston, 343 Mass. 480 (1962), is misplaced. In that case the court held that the police commissioner of the city, despite the provisions of St. 1906, c. 291, Sections 7 and 8, was subject to the provisions of St. 1909, c. 486, Section 30, with respect to the invitation of bids by advertisement for contracts for work to be performed in police buildings. The court noted: "[I]t is difficult to see in what way the commissioner's authority is circumscribed [by Section 30]. All that is required by Section 30 is that the commissioner invite bids by advertisement in the City Record. There is not even a requirement that the contract be awarded to the lowest responsible bidder." Id. at 483-484 (citations omitted). There was no question raised in the case as to the power of the commissioner to requisition payment (under St. 1906, c. 291, Section 8) for contracts properly awarded.
7. The city argues, weakly, that the "long standing practice" of the licensing board in following the city's budget procedure (see note 2, supra) should be given weight in interpreting the statutes in question. See International Bhd. of Elec. Wkrs. v. Western Mass. Elec. Co., 15 Mass. App. Ct. 25, 28 (1982), and cases cited. There is nothing in the record to indicate the practice during the first fifty years under St. 1906, c. 291. The record is inconclusive as to whether the city had formally adopted, since 1956, the position that the licensing board was legally subject to the budget and appropriation process, or whether that process was followed and acquiesced in (if it was) as a result of practical considerations. In any event, our holding that St. 1906, c. 291, is plain and unambiguous precludes reliance on any contrary interpretation by the city. International Bhd. of Elec. Wkrs., supra.
[Note 1] Mayor of the city of Boston.
[Note 2] In each year since 1956, the mayor has recommended an amount lower than that requested by the licensing board in its budget. In all but one of those years (in which a supplemental appropriation was involved, the city council appropriated an amount lower than that requested by the licensing board. In five of those years the licensing board's expenditures were slightly in excess of appropriations and in all other years expenditures were less than appropriations. The city does not have records for years prior to 1956.
[Note 3] The mayor's recommendation included a figure of $64,570 for personal services, an amount less than that necessary, $85,000, to pay the salaries set by the statute then in effect, St. 1906, c. 291, Section 2, as appearing in St. 1975, c. 413, Section 1, for the statutory positions of the three members and the secretary. St. 1906, c. 291, Section 1. Further, if this recommendation had been adopted by the city council, the licensing board would have had no funds with which to pay administrative and clerical help which the licensing board is authorized to employ. St. 1906, c. 291, Section 3.
[Note 4] On appeal the city does not challenge the judgment insofar as it relates to payments for legal services.
[Note 5] An amendment by St. 1983, c. 78, Section 1, increased the salaries.
[Note 6] Section 4, as amended by St. 1915, c. 313, Section 1, which is not at issue, provides in part that "all fees for [all] licenses [issued by the licensing board], including recording fees, miscellaneous fees and all other revenue, shall be paid into the treasury of [the] city." See Colonial Tavern, Inc. v. Boston Licensing Bd., 384 Mass. 372, 376 (1981).
[Note 7] Amendments, e.g., by St. 1941, c. 604, Section 1, St. 1966, c. 642, Section 10, St. 1974, c. 276, Section 53, and most recently by St. 1982, c. 190, Section 15, did not alter the provisions of relevance here.
[Note 8] Several cases have held that the licensing board is a department of the city for some purposes but a part or an agency of the Commonwealth for other purposes. See Saxon Coffee Shop, Inc. v. Boston Licensing Bd., 380 Mass. 919, 923 n.3 (1980). Compare Opinion of the Justices, 374 Mass. 864, 867-868 (1978) (licensing board is a part of the "executive department" of the Commonwealth for the purpose of determining the Governor's power of appointment), with Colonial Tavern, Inc. v. Boston Licensing Bd., 384 Mass. 372, 374-376 (1981) (licensing board acted as a local board and not as a State agency for the purpose of determining its liability to a licensee). Compare also Police Commr. of Boston v. Boston, 343 Mass. 480, 483-484 (1962) (police commissioner [appointed by the Governor] is subject to a provision in the city charter requiring advertising for bids, notwithstanding St. 1906, c. 291, Section 8 [which contained provisions much like those in issue in this case]), with Police Commr. of Boston v. Boston, 239 Mass. 401, 407, 409 (1921) (Statute 1906, c. 291, Section 8, gives the police commissioner the authority to require the city to provide accommodations as determined by the commissioner). These cases do not settle the precise issue before us. See also Prince v. Boston, 148 Mass. 285, 288-289 (1889), discussed below; McGinnis v. Medway, 176 Mass. 67, 68 (1900); Cook v. Springfield, 184 Mass. 247, 248-249 (1903); Trustees of the Pub. Library of Boston v. Rector of Trinity Church, 263 Mass. 173, 179-180 (1928); McDonald v. Superior Court, 299 Mass. 321, 324 (1938).
[Note 9] The first paragraph of art. 2 of the Amendments to the Constitution of the Commonwealth formerly provided, in part: "The general court shall have full power and authority to erect and constitute municipal or city governments, in any corporate town or towns in this commonwealth, and to grant to the inhabitants thereof such powers, privileges, and immunities, not repugnant to the constitution, as the general court shall deem necessary or expedient for the regulation and government thereof." See Commonwealth v. Plaisted, 148 Mass. 375, 386 (1889).
[Note 10] The city does not argue that the Home Rule Amendment changes the effect or validity of the 1906 Act. Section 9 of the amendment provides in part: "All special laws relating to individual cities or towns shall remain in effect and have the force of an existing city or town charter, but shall be subject to amendment or repeal." See Harrington v. Selectmen of Tisbury, 369 Mass. 652, 654 (1976). See also Opinion of the Justices, 356 Mass. 761, 766-767 (1969).
"I am of the opinion that the police force has not maintained that same high character and integrity, in many particulars, that it did in former years. I attended the police ball, about a year ago, in an official capacity. It was held in the Institute building, on Huntington Avenue: and I must say here, as I told the commissioners, and told the police captains, that never in my life did I attend a more disgraceful assembly of people, either in this city or any other. It was as near a mob as anything I ever witnessed in my life. I saw men, waltzing with ladies upon the floor, with cigars in their mouths, smoking; women, with street costumes; and a pretty hard-looking set of people. I thought, if they were friends of the police department, there certainly needed to be some reformation somewhere. I think that is admitted on all sides. I was told by one captain, who went there himself with his family, that he never was so mortified in his life, and as soon as he could, properly and decently, he turned on his heal [sic], and went home. I never saw a policeman that I talked with, whether it was a captain, or lieutenant, or patrolman, but what was mortified with the exhibition at that ball. I understand that this year the ball was conducted upon entirely different principles, for the reason that the commissioners refused to grant them the right to hold a ball, unless it was managed on a different principle. Those are chiefly my reasons for believing that under a different management, or if the same commissioners derived their authority from a different source, they would be able to enforce discipline and order to a higher degree than they do at the present time."
[Note 12] Representative Coffin was a member of the House of Representatives in 1884 and 1885. A biographer wrote of him: "It was through his active work while in the House of Representatives that two important measures were successfully passed -- the bill making all text-books free to the pupils of the public schools, and the bill providing for the appointment of the Boston police commissioners by the governor of the State, instead of by the mayor of the city." One of a Thousand 133 (J. Rand ed. 1890).
[Note 13] The full content of Rep. Coffin's colorful speech would take us too far from the precise issue before us. Generally it discusses violations of law in Boston and alcoholism.
[Note 14] The Senate rejected an amendment to the 1885 bill which would have made the 1885 act subject to the approval of a majority of voters of Boston. 1885 Senate Journal, at 484-485.
[Note 15] In Commonwealth v. Plaisted, 148 Mass. 375 (1889), the court, in rejecting the claim that the 1885 act was unconstitutional "because it takes from the city the power of self-government in matters of internal police," id. at 383-384, stated, "The powers and duties of all the towns and cities, except so far as they are specifically provided for in the Constitution, are created and defined by the Legislature, and we have no doubt that it has the right in its discretion to change the power and duties created by itself, and to vest such powers and duties in officers appointed by the Governor, if in its judgment the public good requires this, instead of leaving such officers to be elected by the people or appointed by the municipal authorities." Id. at 386-387. See also Hibbard v. County of Suffolk, 163 Mass. 34 (1895).
[Note 16] In 1904 Senate Bill No. 5 and House Bill No. 909 it was provided that the board of police be appointed by the mayor. House Bill No. 141 provided that the board be elected by the voters of Boston. In 1905 House Bill No. 712, Section 3, it was provided for a two-person board of license commissioners, one appointed by the mayor and one appointed by the Governor. Senate Bill No. 172 provided for a board of police appointed by the mayor subject to the approval of the Governor. None of these bills was approved by the Legislature.
[Note 17] That there have been some instances where the Legislature has placed limitations on amounts which could be spent, and others where expenditures were made subject to the approval of the mayor and city council is also persuasive. See Harris v. Wayland, 16 Mass. App. Ct. 583, 586 (1983). For example, St. 1906, c. 291, Section 9, limited the amount the police commissioner could requisition for legal expenses to $3,500 annually; St. 1909, c. 387, Section 1, authorized the licensing board to lease quarters but limited the amount it could requisition for such purposes to $5,000; St. 1927, c. 76, provided that the secretary of the licensing board should be paid a salary not exceeding $3,500, subject to the approval of the mayor; and St. 1909, c. 486, Section 20, provided that the Boston finance commission (established by the act with the members appointed by the Governor, with the advice and consent of the Council) could requisition for expenses in an amount not to exceed $25,000 annually "or such additional sums as may be appropriated for the purpose by the city council, and approved by the mayor."
[Note 18] On June 21, 1981, the mayor sent to the city council for approval a home rule petition which would make licensing board expenses subject to appropriation by the mayor and council. There is nothing in the record indicating the disposition of the petition. In his covering letter the mayor said: "While legislation which required the City to pay all money requisitioned by the Board may have been appropriate in 1906, when it was enacted, it is no longer appropriate. The Licensing Board should bear its share of the burden imposed upon the City by Proposition 2 1/2 and school overspending."
[Note 19] In 1962 the Legislature changed the provisions of the 1906 act pertaining to the police commissioner, providing for his appointment by the mayor and making the police a department of the city, thereby subjecting it to the budget and appropriation process. St. 1962, c. 322, Section 1. No such changes have been made in the 1906 act pertaining to the licensing board.
Prior to the passage of the Home Rule Amendment, in 1966, proposals for altering the control over the licensing board had been considered by the Legislature. For example, in 1954, House Bill No. 2754 was introduced providing for the appointment of the members of the licensing board by the mayor, and Senate Bill No. 768 provided for a special commission to study the proposal. In 1960 House Bill No. 1569, Sections 1 and 2, proposed making the appropriations to the licensing board subject to the approval of the city council and the mayor. None of these bills was approved by the Legislature.
[Note 20] We are not presented with the question whether the city may impose reasonable requirements on the submission of the licensing board's requisition for expenses in order that the city may fix its budget with reasonable certainty. We do not suggest that such requirements would be improper. We read the judgment language, "[s]uch requisition need not be submitted as part of a budget to the mayor," as meaning only that the licensing board is not subject to the budget and appropriation process.

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This recent find is courtesy of FamilySearch.org. The probate record is a bit long so I have decided to break it up and feature it over the next couple of Amanuensis Mondays.
(1) I GIVE, BEQUEATH AND DEVISE unto my beloved mother, Emms Jones of Morehead City, in the State of North Carolina, one-third of all the estate to which I may be entitled at the time of my death, to her absolutely.
(2) I GIVE, BEQUEATH AND DEVISE unto my beloved wife, Ula V. Jones of Baltimore, City, in the State of Maryland, one-third of all the estate of which I maybe entitled or possess at the time of my demise, - to her absolutely.
(3) I GIVE, BEQUEATH AND DEVISE unto my said beloved wife, Ula V. Jones, Testamentary Trustee, under this, my testament, the remaining one-third interest in my said estate, upon the trust, nevertheless that she shall use the income thereupon to assist in financing the education of my beloved infant son, Oscar D. Jones Jr. until he shall attain the age of twenty-three years at which time he shall be entitled to the corpus of the said interest or interests devised and bequeathed him hereunder.
(4) ALL THE REST, RESIDUE AND REMAINDER OF my estate, I give, devise and bequeath unto my said wife Ula V. Jones, Trustee, to be applied by her as is set out in paragraph number four of this testament; and should my said mother, Emma Jones, predecease me, then and in that event I direct that heresaid one-third interest shall become a part of the residue of my estate and shall pass unto my said wife, Ula V. Jones, Trustee, to be applied by her as set out in paragraph number three of this, my last will and testament.
AND I HEREBY NOMINATE AND APPOINT my said beloved wife, Ula V. Jones to be the Executrix of this my last will and testament and I also nominate and appoint her, the said Ula V. Jones as Testamentary Trustee hereunder with full power to sell, mortgage, alien or otherwise dispose of any property of my said estate which my come into her hands as Trustee hereunder, but that in event of any sale I direct that she immediately re-invest the funds arising therefrom in other interest bearing real or leasehold estate; and in event of such sale it shall not be incumbent for the purchaser or purchasers thereof to see to to the application of said proceeds.
IN TESTIMONY WHEREOF, I have hereunto set my hand in Baltimore City, aforesaid, this Twenty Seventh day of January, in the year of Our Lord, one thousand nine hundred and twenty.
Signed, sealed, published and declared by Oscar D. Jones, the above named Testator as and for his last will and testament, in the presence of us, who, at his request and in his presence and in the presence of each other have subscribed our names as witnesses.
Address: 21 E. Saratoga St.
Address: 215 St. Paul Pl.
This seems to me to be a good stopping point. I will pick up with the another portion of this record next Monday.
This will seems very clear -- he is bequeathing his estate in equal measure to his wife, mother, and son. And his wife is the Executrix. I'll look forward to the next parts.

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Manoj Mitta of Times of India argues in that paper that Kasab, the captured terrorist, has a right to legal representation. Fine. But then Mitta makes the weird claim that the Constitution of India permits a person to be declared an “enemy alien” for the purposes of Art 22 only if the country is at war! Can anyone point to me where in the Constitution is this stipulation mentioned? I searched the document thoroughly, but I cannot find this claim anywahere — which leads me to believe that Mitta stated a falsehood.
That raises a disturbing point. Can leftwing propagandists not defend the arrested terrorist and his alleged rights without resorting to falsehoods? Are we going to see in the popular press more of these distortions of constitutional provisions as the case goes on trial?
Thanks for the post Arun. An issue on this the new amendments go even beyond POTA deserve mention – POTA only allowed ‘adverse inference’ to be drawn in certain circumstances. These amendments shift by burden of proof by presuming guilt through a reverse onus clause!!
I take it you are referring to Section 43E of the Amendment Bill, which adds a presumption as to offences under Section 15?
Thanks to comments by you and others about the debates over these provisions in the two houses of Parliament, as well as to V. Venkatesan’s helpful links to the text of these debates, i have been going over them carefully. The debate over these amendments in the Rajya Sabha is available here.
“It is a cardinal rule of jurisprudence that a person is presumed to be innocent until proved to be guilty. I do not think that that has been reversed. All it says is that if a person is found with a weapon of destruction in his possession, the onus would shift temporarily, for that limited purpose, upon him to prove that that cannot lead to an inference of guilt against him. In criminal jurisprudence, the onus of proving the guilt of the accused is invariably, and always, on the prosecution. That principle has not been negatived in this Bill.
I think the MP has got his analysis wrong – he first denies that this is a reverse onus provision, but then goes on to say why it is justifiable. But, in its form and content, it is clearly a reverse onus provision.
In recent years, courts across the commonwealth have found a number of such reverse onus provisions to be unjustifiable when tested against the presumption of innocence. But, they have specified that reverse onus provisions are not per se illegal, and have devised tests to divide the justifiable ones from those that are not.
The question to ask would be whether this particular provision can be justified as per the judicial tests laid down. Given that this provision appears in an anti-terror statute, my guess would be that courts would be wary of even getting into this sort of enquiry.
But, what was fascinating for me in these debates was that a number of government MPs (who are also established Supreme Court lawyers), specifically Singvi and Sibal, argued that the decisions in Kartar Singh and PUCL are suspect. They make this point in connection with justifying why they decided not to make confessions admissible even though this was upheld in the TADA and POTA challenges. But, this could also apply to the bail provisions and the extended detention till 180 days, because they too would be suspect on this logic.
In any case, I think these recent amendments have the potential of unsettling a lot of what is today taken for granted in the realm of Supreme Court precedents on anti-terrorism law. Certainly worth following closely.
From consistency point of view please keep track of the fonts. A respected blog like yours should look consistent too.
Also, is there a way I can suggest a topic to cover? The topic on my mind right now is the concept of Mega Lok Adalats. Seems to be a good concept and something very pertinent.
although this s a reverse onus, it is not too great a reverse onus. All it is saying is that if I recover arms from X and I have reason to believe that those arms were used in a terrorist act, I shall presume that you were part of a terrorist activity. This appears to me to be a perfectly legitimate provision – the prosecution has the initial burden, and the “reverse onus” is only an indication of what type of proof will be ordinarily be enough.
As a judge, one would probably anyway convict a person in such cases on circumstantial evidence. So I would not be too worried. If the prosecution shows you have prohibited arms, and that those arms were used in a terrorist act, then it is not really too much of a jump to suppose that you are a terrorist, subject to any defences you may have. That is really all the provision says.
Now that we are agreed that it is indeed a reversal of onus, one has to get into what that actually entails. You are quite sanguine about this, but judges in several countries have taken a dim view of such provisions which result in convictions for serious offences.
Any judge with integrity and a commitment to the oath taken to uphold the Constitution would be careful about convicting someone of a serious offence based only on ‘circumstantial evidence’ and reverse onus provisions. So, in South Africa, in the Zuma case (1995), the challenged provision stated that an accused person who wanted to retract a confession made before a magistrate, would have to establish that the confession was given involuntarily. On your logic, this provision seems quite reasonable and pragmatic, but the Court unanimously struck down the provision as infringing the presumption of innocence. This decision has been endorsed in subsequent cases in 1996 and 2002.
To give you another example that shows that issues may not be as clear-cut as you suggest, consider the Canadian Supreme Court’s decision in R v. Downey (1992). There, a provision stated that a person who lives with or is habitually in the company of prostitutes is, in the absence of evidence to the contrary, committing the offence of living on the proceeds of another person’s prostitution. Again, the Court struck this provision down as violating the presumption of innocence.
In the provision under scrutiny, note that some of the language is vague. What does ‘any other definitive evidence suggesting the involvement of the accused in the offence’ mean? Who decides what is ‘definitive evidence’? The judicial test for such provisions usually is whether the reversal of onus enables a person who is innocent to be convicted. In my view, there are a number of possibilities resulting from the reversal here, where innocent people, or those with only an unknowing, tangential connection to the offence, can end up being convicted of direct complicity. So, to my reading, the provision is certainly suspect. I would want other legislative safeguards to be incorporated to ensure that innocents are not convicted by the use of this reverse onus provision.
Thanks for the rap on the knuckles for the messy fonts.
I see that you have some experience with technology, and wonder if you have tips for us. I’ve tried to harmonise at least the font within this post. In my experience, I’ve found that this problem comes up with long posts, which require extensive quotations. Is this a problem with blogger/blogspot alone? Do you have any tips on how this could be avoided?
What safeguards would you suggest to prevent misuse of this reverse onus provision?
In some of the recent bomb blasts, newspapers have suggested that the individuals who made the bombs were not the ones who planted them at the public places where the explosions occurred. Those who made them, transported them and planted them are all said to be different. Fingerprint/DNA evidence is said to be harder to obtain from bombs that go off because the remains are mostly charred. If the cops end up relying on circumstantial evidence and testimony of other accused, do you believe that would qualify as ‘definitive evidence’ under this standard?
And with respect, your reliance on Canadian and South African decisions is irrelevant in this context. The issue which we are faced with today in India – the cumulative effect of over a decade of violence – is unparalleled. I am no Scalia to refuse to look at foreign cases just because they are foreign; but in the present context, we must look at the issue from our provisions. Also, could you provide the links to any judgment you cite – will be greatly appreciated.
Quick responses to Dilip and Anon’s last points.
Dilip, I will readily confess that I do not have a ready solution, in terms of safeguards that would work better. I think i harbour doubts if the provision could pass muster at all – but, a good start would be to make the provision focus on actual situations that the law wants to counter, and to specifically target them, instead of leaving things dangling under a ‘definitive evidence’ standard. My sense is that the more specific the provision is in terms of the category of cases it wants to cover, and the more clearly it sets out the reason and circumstances for which onus is reversed, the better it will be. While the legislator may want to draft things broadly with a view to giving investigators and prosecutors the maximum latitude, this is precisely the type of situation which breeds abuse of emergency powers, and judges are quite alive to this. Faced with extraordinary circumstances, judges are more willing to give latitude, but they would prefer, in order to maintain the rule of law, to have narrowly crafted exceptions.
Anon: I’m always amused when someone comes up with a Nationalist defence of our legal system. I think this betrays an ignorance of how foundational the link between our constitutional and legal tradition and ‘foreign legal systems’ has been in the past, and continues to be so today. So, whether you like it or not, you are being very Scalia-like in your attitude, which is as unjustified in the US (whose legal system was also similarly built upon the foundations of ‘foreign’ legal ideas) as it is in India.
Reverse onus provisions have been a longstanding practice in commonwealth jurisdictions including India, and our entire system of criminal law is very much linked to that tradition. So, to suddenly try and argue from an ‘indegenous’ standpoint is strange. If you want to do that, you can come up with a far stronger argument by asserting that the ‘presumption of innocence’ itself is a foreign principle and doesn’t need to be adhered. Note Ashwani Kumar’s reference to “Macaulay’s time” – given that we still have what is essentially a foreign-drafted Penal Code (which has, arguably, been adapted over time to our needs), I don’t think one can get away by dismissing foreign precedents by only mentioning that they are foreign. I think you will have to deal with the arguments at a substantive level, and point out why they have no application in India today.
Since you do seem interested in that endeavour, do google ‘Constitutional Court of South Africa’ and ‘the Supreme Court of Canada’. Both these institutions maintain excellent websites where you can easily access their entire caseload from at least the 1990s. The case names and year of decision I’ve provided earlier will help you track them.
Context Arun context. I am not verse to using foreign case-law when the context so demands. Or when the context so permits. But you very conveniently cite foreign cases. Show me why they are relevant? Just because they are criminal cases? On what basis were they struck down?
I do not have to point out why they are irrelevant; you should point out the substantive arguments as to why they are relevant. Besides the fact that reverse onus provisions exist. Where do reverse onus provisions exist in a case dealing with terrorism on the scale India has? No country has faced terrorism on that scale… So pray, why look there? We are talking of exceptional cases, where too the reverse onus is not as great a hardship as you are making it out to be. Read “possession” to mean “conscious possession”. A perfectly legitimate reading.
So now, the provision is saying that if you have certain weapons (and dangerous weapons at that, not knives, but AK-47s) and if those weapons were used in a terrorist offence, The Court will do well to treat you as a terrorist unless you show why u r not one. What exactly is wrong with that? Besides the fact that certain reverse onus clauses have been struck down in Canada and South Africa?
I have to admit, WordPress is much better in this respect but Blogger has its own charm. I hope this was not too technical. Do let me know.
With respect, Anon seems to have missed the point. As I read him, Mr. Arun is not making an argument from authority simply be relying on the foreign cases. He is relying on them not because they are ‘binding’ on Indian Courts. Rather he is relying on them as examples of events/laws given judicial consideration in the courts of countries which have a sound constitutional system (note Section 7 read with Section 1 of the Canadian Constitution in particular) and a criminal law system quite similar to Indian systems. There is no reason why we should not consider these cases simply because they are ‘foreign’.
That might well be true. However that does not mean that the foreign law becomes irrelevant ipso facto. The argument against the reverse onus clause is one based on principle – the principle of the presumption of innocence. That principle IMHO can not be changed because we are facing a two-decade-old terrorism threat.
I am sorry, but insofar as your argument goes, you certainly should. Particularly considering that essentially you are arguing against a foundational principle of criminal/constitutional law.
Let me assume for a moment that your reading of the provision is correct. Now I am sure you agree that Courts are not looking for excuses to acquit someone. If a Court is convinced beyond RD of the existence of a conspiracy, the Court will convict. Why say “Oh you must convict anyway”? Why not let the Court decide in the context of the particular fact situation.
I will respond in more detail when/if you make any deeper arguments explaining your position.
1. I resist arguments based purely on the logic that “no other country has suffered as we have” because, in my view, they are counter-productive, and lead to a mindset of ‘exceptionalism’ that is not constructive. In my view, arguments and mindsets based on precisely such notions of ‘exceptionalism’ have historically led nations to huge blunders, and have hindered attempts to learn from the experiences of others. As several scholars have noted, it is the mindset of ‘American exceptionalism’ that led to mistakes such as those inflicted by the Bush administration in the early years of this decade. In any case, that is a long and complicated discussion that is perhaps best carried out elsewhere.
2. I think you make a potentially fatal concession on your point about legitimate readings of the provision. I am not sure the people who pushed for the provision and demand it, will be happy with your having read the ‘mens rea’ element into the statute. I suspect that having to prove that possession was ‘conscious’ would defeat their entire purpose in securing this provision.
3. Onto the substantive arguments, which I thought I had detailed at sufficient length above. Let me reiterate them: Reverse onus provisions are suspect because they compromise the ‘presumption of innocence’ which is a fundamental principle of our criminal justice system. If you read the provisions of the Indian Evidence Act, several of them are focused upon setting out who carries the burden for various situations, and the circumstances under which they can be shifted. The overall scheme reflects the understanding that our criminal justice system is founded upon the idea that it is ordinarily the prosecution which must establish facts and lead evidence to prove them. Nevertheless, especially in recent years, reverse onus provisions have become more prevalent.
Courts in India have scrutinised these reverse onus provisions carefully, and have emphasised that they must be narrowly tailored to meet the policy considerations behind them. Even while upholding them, courts have been anxious to lay down safeguards which will control abuse.
4. Since you have essentially demanded Indian authorities, let me point you to two recent cases decided by the Supreme Court where some of these same ideas have been emphasised. The decisions in Krishna Bhat v. Hegde and Noor Aga v. State of Punjab were decided earlier in 2008 and the judgments were written by Justice SB Sinha. (The links are to the JUDIS site, though they are also available on Manupatra). Let me declare upfront that these reverse onus provisions were from contexts other than that of terrorism: Krishna Bhat considered a reverse onus provision under the Negotiable Instruments Act, while Noor Aga dealt with one under the NDPS Act. Nevertheless, the general analysis will apply to other reverse onus provisions. Although the Court upheld the reverse onus provisions in both cases, it set aside the individual prosecutions in both cases, in part because of the incorrect reliance on the reverse onus provisions, which the Court was critical of.
6. Particularly in the Noor Aga case, the Court took seriously the problems of reverse onus provisions, and tried to set out the competing considerations involved. My reading of these cases is that they try to caution and guide legislatures on the proper use of such provisions. So, legislators cannot be cavalier, and only use arguments of exceptionalism to justify reverse onus provisions which depart from the norms of our criminal justice system.
7. Lastly, in both cases, and particularly in Noor Aga, the Court spent a considerable portion of the judgment outlining the experience of other common law courts, their views on the legality of reverse onus provisions, and the factors that should be considered in evaluating them. Which takes me back to the point about the use of comparative law on such questions, and the fact that our courts are, unlike you, convinced of the virtues of keeping track of, and learning from them.
Arun, before responding I would like to seek one clarification.
Would you agree that the provision will be constitutionally valid assuming my reading were applied? That is, is the provision fine (constitutionally) if it is taken to mean ‘conscious’ possession?
If your answer is yes, then our debate goes down to what the proper reading of the provision is.
If your answer is no, it still is not constitutionally valid, then we need to go into the constitutional arguments.
So kindly clarify my question so that the discussion can proceed after eliminating misunderstandings about what we are saying.
1. The links to the judgments on JUDIS in the previous comment seem to be inactive. To access the judgments in the Krishna Bhat v. Hegde case, click here. For the judgment in Noor Aga v. State of Punjab, click here. (Thanks to V. Venkatesan for noticing this, and for providing the link to the more reliable ‘Legal Approach’ site).
2. In the Dec 27 issue of Tehelka, Rohini Mohan draws attention to real events that occurred recently, and raise concerns about the manner in which the amended Section 15 of the Unlawful Activities (prevention) Act could be potentially abused, given its having incorporated a reversal of onus.
The comments on this page don’t seem to line up in the order they’ve been posted, so we’ll have to keep track of the back and forth amidst that confusion.
To answer your question: No, I don’t think your reading will help save the constitutionality of the provision. First, I would have to know how you would try and read in some element of the mental element into each segment of the provision. Where would you read a similar element into the far more vague second limb (b) of the provision?
Also, imagine a situation where X holds a valid licence for an armed weapon and it is in his ‘conscious possession’ in his home. Someone in his household/known to him uses his weapon for the terrorist activity and replaces it in X’s home, where it is found during investigation. Under your reading, X would be in ‘conscious’ possession of the weapon and would be presumed guilty of being involved in the terrorist activity. If such a provision was not there, X would still be under the shadow of suspicion, but would not presumed to be involved. There is thus a reasonable chance that the provision, under your reading, would still allow an innocent person to be found guilty. That is the crux of the judicial test to determine the constitutionality of the provision.

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Workmen's Compensation Act. Agency, Existence of relation.
warranted that the journeyman at the time of his injury was in the employ of the corporation and was not an independent contractor within the meaning of St. 1911, c. 751, Part III, § 17.
APPEAL to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board awarding to Frank S. McAllister of Boston, who was alleged to be an employee of the Jordan Marsh Company, a corporation, compensation for an injury sustained by him on September 20, 1916, arising out of and in the course of his employment.
The case was heard by Brown, J. The evidence reported by the arbitration committee and the testimony of the alleged employee before the Industrial Accident Board are described in the opinion.
The judge made a decree in accordance with the decision of the Industrial Accident Board; and the insurer appealed.
E. C. Stone, for the insurer.
F. W. Mansfield & E. R. Mansfield, for the employee.
purchaser's residence and hang the paper. But his name did not appear on the company's pay-roll of employees, as he was paid by the roll at a varying price, with all expenditures for car fares and paste, and received weekly by mail a check for the amount. The terms and mode of payment however are not the decisive test. Morgan v. Smith, 159 Mass. 570, 574. It is whether the employer retained authority to direct and control the work, or had given it to the claimant. Forsyth v. Hooper, 11 Allen 419, 421, 422.
And, although the claimant testified that while at work "he was his own boss," his services manifestly formed part of the company's regular business conducted by itself, and the placing of the paper by his skill and labor enured to its benefit. The time and place of labor were not constant but were determined by the employer as required by the demands of customers. If while the work was in process dissatisfaction arose, or damage was being done, the customer would be obliged to resort not to him but to the company for further directions or redress. It cannot be said on the record as matter of law, that the Industrial Accident Board was not warranted in finding that the parties never intended the claimant should have the absolute right to hang the paper when and as he pleased regardless of any supervision by the company, which alone would be responsible in damages for unperformed or imperfect work; and that whenever and wherever necessary the power to direct what should be done in satisfaction of the purchaser's contract, the parties contemplated and understood, was lodged with, or retained by the company, whose orders given through the foreman the claimant uniformly obeyed and executed. Coughlan v. Cambridge, 166 Mass. 268, 277. Samuelian v. American Tool & Machine Co. 168 Mass. 12. Driscoll v. Towle, 181 Mass. 416, 419. Wakefield v. Boston Coal Co. 197 Mass. 527. Bowie v. Coffin Valve Co. 200 Mass. 571, 577, 578. Clancy's Case, 228 Mass. 316.
The decree awarding compensation should be affirmed. St. 1911, c. 751, Part II, § 1.