possible of complete execution the legislation of Congress looking to the equal treatment of naturalized American citizens everywhere. In fact, the frequency of cases in which naturalization in the United States was obtained merely for purposes of securing American protection while residing more or less permanently abroad led Congress in 1906 and in 1907 to differentiate between native and naturalized citizens by providing, among other things, that when any naturalized citizen shall, within five years after the issuance of his naturalization certificate, take permanent residence in his native or any other foreign state, the Department of Justice may institute proceedings to cancel his certificate, and that "when any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any other foreign state it shall be presumed that he has ceased to be an American citizen." 2 While this provision merely raises a rebuttable presumption, having effect only during the foreign residence of the naturalized citizen, it has served on many occasions to relieve the United States from the duty to protect this type of undesirable citizen. Great Britain has avoided many annoying diplomatic controversies with the countries to which her naturalized subjects originally owed allegiance and which still claim it, by providing that a naturalized and a natural-born British subject shall be entitled to the same rights and privileges, "with the qualification, that [a naturalized subject] shall not, when within the limits of the foreign state of which he was a subject previously to obtaining his certificate of naturalization, be deemed to be a British subject unless he has ceased to be a subject of that state in pursuance of the laws thereof or in pursuance of a treaty to that effect," 3 which clause is printed on passports issued to naturalized subjects.

Strictly speaking, the third general category of citizens, namely, those endowed with citizenship by reason of annexation of territory, constitute a special class of naturalized citizens. Citizenship thus conferred may be called collective naturalization, and this method

1 Act of June 29, 1906, § 15, 34 Stat. L. 601.

2 Act of Mar. 2, 1907, § 2. These provisions of the acts of 1906 and 1907 will be more fully examined hereafter.

The Naturalization Act, 1870, § 7. This provision is omitted from the British Nationality and Status of Aliens Act, 1914.

is exemplified by the admission of new states into the Union, or by acquisition of territory by treaty, purchase or conquest.1 This last class of American citizens has been greatly increased recently by the acquisition of Porto Rico and the Philippines. While the inhabitants of these insular possessions have been held not to be citizens in the constitutional sense of the word, they are American nationals in the international sense,2 and as such entitled to the protection abroad of the United States.3

§ 200. Citizenship Usually Essential to Protection.

Citizenship is usually an essential condition of diplomatic protection. In the matter of the presentation and enforcement of international claims, no rule is more strictly observed. Thus, protocols for the arbitration of general claims usually provide for the adjudication of claims on the part of corporations, companies, or private individuals, citizens of the United States, against the other government, party to the arbitration. International commissions and the Department of State have on many occasions laid down such rules as the following: 4 a claim must be national in origin and at the time of presentation, and continuously national in ownership; 5 the direct beneficiaries of an award must be citizens; the claim of a foreigner against a foreign

1 See the discussion of judicial determinations of these questions in H. Doc. 326, 59th Cong., 2nd sess., 153-159 and 72. On collective naturalization, see also Moore's Dig. III, §§ 379, 380; Van Dyne, Naturalization, 265–332.

2 Our new peoples; citizens, subjects, nationals or aliens, by F. R. Coudert, Jr., 3 Columbia L. Rev. (1903), 13–32; American citizenship by D. O. McGovney, 11 Columbia L. Rev. (1911), 231–250, 326–347; Decisions cited in H. Doc. 326, 59th Cong., 2nd sess., 72-73. The same relation between the constitutional and international aspects of nationality arises in most countries possessing colonial dependencies. See Sargent, E. B., British citizenship, London, 1912, and same author in No. 31 (July, 1914), Journ. of the Soc. of Comp. Leg. 327-336.

3 Circular of May 2, 1899, For. Rel., 1900, 894; Act of Apr. 12, 1900, 31 Stat. L. 77 (for Porto Rico), Act of July 1, 1902, 32 Stat. L. 692 (for Philippines), and Act of June 14, 1902, 32 Stat. L., I, 386, amending § 4076, R. S., providing for protection and issuance of passports to the inhabitants of our insular possessions. Moore's Dig. III, 315-318, 874-878.

4 These rules will be more carefully examined hereafter. Infra, §§ 306 et seq.

* I. e., under the general form of protocol above mentioned. See Burthe v. Denis, 133 U. S. 514, reversing Succession of de Circé, 41 La. Ann. 506.

government cannot be nationalized by assignment to an American citizen, or by the naturalization of its owner.1 Numerous questions of citizenship which have had to be determined by international commissions and the Department of State in connection with claims to diplomatic protection will be considered in this Part under appropriate sections.

§201. Occasional Protection of Foreigners.

Notwithstanding the general rule so strictly enforced by claims commissions, there have been a few cases in which foreigners have received awards from domestic commissions. Perhaps the most famous of these cases occurred under the Acts of Congress of 1874 and 1882 establishing the first and second court of commissioners of Alabama claims, for the distribution of the Geneva award paid by Great Britain to the United States. The Act of June 23, 1874 provided (§ 12) that no claims should be allowed "arising in favor of any person not entitled at the time of his loss to the protection of the United States in the premises." Under this provision, unnaturalized foreigners, except British subjects, who were excluded on special grounds,2 were permitted to come within the benefits of the Act. For example, aliens shipping goods on American vessels during the rebellion, or employed as seamen on vessels owned and registered in the United States (except British subjects) were held to be entitled to "the protection of the United States." 3 The second Alabama Claims court, established by the Act of June 5, 1882, held, however, that the protection of the United States extended to British subjects serving on American vessels and to the American owners of goods shipped on a British vessel." But the London Lloyds association of underwriters were held not entitled to the protection of the United States."

1 Infra, § 306.

Worth v. U. S., No. 91, Davis' Report, Washington, 1877, p. 35.

Davis' Report, 105; Rodocanochi Sons & Co. v. U. S., Moore's Arb. 2359; Morse on Citizenship, § 178, p. 218. See the interesting case of Schreiber and Meyer v. U. S., where naturalization of a German in British East India was held only qualified British naturalization and hence did not exclude claimant from the benefits of the Act. Davis' Rep. 105, Moore's Arb. 2350, Morse, § 178.

Cassidy v. U. S., No. 144, Moore's Arb. 4672.

'The Pacific Mills v. U. S., No. 793, class 2, ibid. 4673. 'Bischoff et al. v. U. S., No. 5693, class 1, ibid. 4672.

Occasional exceptions to the rule that citizenship is an essential condition to diplomatic protection have been made in cases where a foreigner was in imminent danger or placed under unusual circumstances requiring diplomatic assistance. Some of these exceptional cases will be referred to briefly. It may be said, however, that in rendering assistance to the citizens or subjects of a foreign government abroad this government, generally speaking, can only instruct its diplomatic representatives to extend their personal good offices in behalf of such persons, and such assistance does not ordinarily extend to matters in connection with the presentation and collection of claims against foreign governments. When such an individual foreigner invokes the protection of an American diplomatic or consular representative, the consent of the individual's government is, if possible, first obtained by the Department of State.1

After the war with Spain, when Spain relinquished her sovereignty over Cuba and before the Cubans acquired an independent status, the United States undertook to protect Cubans temporarily residing abroad by the use of the good offices of its representatives. It frequently occurs that in times of civil disturbance, especially in LatinAmerica, the United States diplomatic and consular officers extend protection to foreigners. By the exercise of the right of asylum, protection has often been extended to natives of those countries, when political refugees, or on grounds of humanity.3 The Department of State for some years, however, has discouraged the practice of asylum, because of its easy abuse. The peculiarly close relations of the United States to Panama, Nicaragua and the Dominican Republic, and a general desire to prevent foreign governments from taking aggressive action against the countries of Central America in support of claims has often led the United States to use its good offices to adjust pecuniary demands of foreign governments upon those republics.

In the protection of missionaries in Oriental countries, the United States has avoided the example of France, Russia, Great Britain and

1 Mr. Sherman, Sec'y of State, to Baron von Thielmann, Mar. 10, 1897 (protection of German vessel at Martinique). For. Rel., 1897, p. 183. See infra, § 204.

2 See circular of May 2, 1899, For. Rel., 1900, 894 and its application to various special cases as set forth in Moore's Dig. III, 295, 296.

See Leval, op. cit., §§ 15-17.

3

Germany of extending their protection not only to their subjects but also to the members of Christian bodies or communities of the faiths so closely identified with their national history. The United States has followed the policy of extending protection to American citizens only, or to American interests in property devoted to religious purposes.1 Where American missionaries constitute a distinctive American community in an extraterritorial country, citizenship could, until 1914, be handed down from father to son without restriction as to those whose fathers had never resided in the United States.2 This privilege did not however extend to the children of naturalized citizens beyond the second generation. By a circular instruction of July 27, 1914, in which the whole matter was reconsidered, it was ruled by the Department of State, reversing a position which had been maintained since 1887, that the exception, in the case of extraterritorial communities, to the application of § 1993 of the Revised Statutes, by which citizenship had been held inheritable indefinitely regardless of the residence of the father in the United States, was altogether unjustified, and that the exception should be abolished. The occupation as a missionary in Turkey or China serves to overcome the presumption of expatriation on the part of a naturalized citizen leaving the United States for a period of two or five years, respectively, within the meaning of § 2 of the Act of March 2, 1907.5

1 Mr. Adee to Sister Genevieve, Sept. 10, 1895, Moore's Dig. VI, 631; Sec'y Frelinghuysen to Mr. Gifford, Dec. 19, 1884, ibid. 639; Sec'y Cass to Mr. Williams, Oct. 22, 1860, ibid. 333 and extracts quoted in Moore's Dig. VI, § 922; Hinckley, F. E., American consular jurisdiction in the Orient, Washington, 1906, p. 108 et seq.; H. Doc. 326, 59th Cong., 2nd sess., 207, 208 and reference to For. Rel., 1887, p. 1094; 1891, p. 765; 1892, p. 609; 1895, II, pp. 1256, 1461, cited by Hinckley, p. 110. Article 14 of the treaty of 1903 between the U. S. and China deals with the rights of American missionaries and also indicates the policy of the U. S. A useful account of the protection accorded by the U. S. to missionaries abroad is presented in an article by J. B. Scott in 6 A. J. I. L. (1912), 70-85. A Johns Hopkins doctor's dissertation, Owens, O. L., The protection of American foreign missionaries by the United States, is announced for early publication.

2 Thus modifying § 1993, R. S.

3 Infra, § 332.

4 Special Instruction No. 340, July 27, 1914, with annexed opinion of Solicitor in Lilienthal's case.

5 Circular of Dec. 11, 1907 (Turkey), clause (d); Circular of May 13, 1908 (China), clause (e). Infra, p. 707.