CHAPTER II

PROOF AND EVIDENCE OF CITIZENSHIP

210. By Whom Determined.

It is asserted as a principle that among the attributes of sovereignty is the right of a government to determine the conditions and qualifications of citizenship and to decide who shall be deemed citizens.1 The United States has denied the right of a foreign government to impeach the documentary evidence of citizenship furnished to an American citizen by this government, but it has admitted the right of a foreign government to traverse the evidence of the passport by showing fraud in its procurement or illegal naturalization or forfeiture of the right to protection.2 However, the final determination of the validity of the citizenship is reserved exclusively for the United States.3 There has been some expression of opinion in the Department of State to the effect that the presentation of a claim, on behalf of a claimant alleged to be an American citizen, to an international commission, should preclude all examination by the commission into the citizenship of the claimant, on the ground that the Department's determination should be considered final. International commissions, however, have freely assumed the right to pass upon the citizenship of a claimant, testing it in first instance by the municipal law of 1 Wilson (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 2554; Mr. Gresham, Sec'y of State, to Mr. Tripp, Sept. 4, 1893, For. Rel., 1893, 23-24. Supra, p. 7.

2 Mr. Adee, Act'g Sec'y of State, to Mr. Lee, Aug. 13, 1907, For. Rel., 1907, II, 589-590; Mr. Uhl to Mr. Hengelmüller, May 8, 1895, For. Rel., 1895, I, 10.

3 Mr. Bayard, Sec'y of State, to Mr. McLane, Feb. 15, 1888, For. Rel., 1888, I, 511. 4 Sec'y Blaine appears also to have taken this view. Mr. Blaine to Mr. Durant, August 22, 1881, MS. Dom. Let., Van Dyne, Citizenship, 107. Several Solicitors and Assistant Solicitors appear to have supported Mr. Blaine's view. Prof. Basdevant criticizes some of the decisions of the Venezuelan Arbitrations of 1903 in which the Umpire denied the right of a claimant to the citizenship of the country which supported his claim. 5 R. D. I. Privé (1909), 41-63, particularly the Corvaia case (Italy), p. 45, and the Flutie case (U. S.), p. 48.

the claimant's country. For example, when Sir Edward Thornton became umpire of the mixed claims commission between the United States and Mexico under the treaty of July 4, 1868, he acted on the principle that the term "citizenship" in the convention meant citizenship according to the law of the contracting parties, and declined to recognize a declaration of intention or domicil, singly or together, as conferring citizenship.2

3

In the protocols for the submission of claims to arbitration, it is occasionally provided that the defendant country may contest the validity of the citizenship of the claimant. The frequent occurrence of cases of dual nationality, by which a claimant, owing to a conflict of laws, becomes a citizen of both the claimant and the defendant country according to the municipal law of each, has resulted in a general preference by international commissions in favor of the law of the defendant country, so as to preclude the possibility of a country being made a defendant to an international claim by a person who by its municipal law is considered its own citizen. In a few cases, international commissions have essayed to determine a claimant's citizenship by rules of international law, rather than by the municipal law of either the claimant or defendant country, as, for example, in cases where trade domicil has been held to confer nationality for international purposes. 5

Ancira, Attorney (Mexico), v. U. S., July 4, 1868, Moore's Arb. 2453; De Acosta y Foster (U. S.) v. Spain, Feb. 12, 1871, ibid. 2462. As we shall see, certificates of naturalization have been frequently impeached by claims commissions. Infra, § 226.

Zamacona, Mexican commissioner, acted on the same principle. Moore's Arb.

2720.

* Protocol of Feb. 12, 1871, between U. S. and Spain, Art. 5, Malloy's Treaties and conventions, II, 1663. A protocol added to the convention of Nov. 1, 1895, for the settlement of British claims against Nicaragua, provides "that Her Majesty's Government will not support the claim of any person before the commission unless they consider him to be a British subject, and on their part the Nicaraguan Govern ment will accept such status as duly established, subject to the production of proof that the claimant is not entitled to it, in contemplation of English Law." For. Rel., 1896, 307.

4 § 253 et seq.

5

See, e. g., Laurent (Gt. Brit.) v. U. S., Feb. 8, 1853, Moore's Arb. 2675 and infra,

§§ 245, 246.

A

PROOF OF CITIZENSHIP

$211. Methods of Proof.

Citizenship being ordinarily an essential condition of protection, it will be of interest to examine the various methods by which citizenship may be proved. A passport, for example, as one of the most usual evidences of citizenship, is in its terms a statement that the holder is a citizen of the United States. The Department of State, therefore, requires an applicant for a passport clearly to establish his citizenship.1

The principal methods of proving American citizenship are by evidence of birth or of naturalization in the United States. Birth is usually proved by affidavit, and international commissions generally accept this as sufficient in the absence of dispute or suspicious circumstances.2 Birth certificates, duly authenticated by the states issuing them, are accepted by the Department of State as evidence. of American citizenship. Unfortunately, there are still many states which have no adequate birth registration laws. In the circular instruction of April 19, 1907, providing for the registration in consulates abroad of women, the widows or divorced wives of aliens or of American citizens, who desire to resume or retain American citizenship, as the case may be, it is prescribed that if the woman is a native citizen, documentary evidence of such citizenship need not be required unless the consul entertains doubts as to the statements made to him, in which case a certificate of birth or the affidavit of a credible witness known to him may be demanded.

The best evidence of naturalization is the judicial record of naturali

1 As will be seen, however, it is not obligatory to issue a passport to every citizen who desires it, so that the rejection of an application is not necessarily a denial by the Department or its agents of the American citizenship of the person whose application is rejected.

2 Wilkinson (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2532. But in Suarez (U. S.) v. Mexico, ibid. 2449, the oath as to birth and certificate of baptism were held by Thornton, as insufficient proof, on the ground that identity of claimant with child baptized was not proved. In Barco and Garate (U. S.) v. Mexico, ibid. 2449, he held that birth in U. S. of alien parents, followed by departure from U. S. while under age, did not establish U. S. citizenship. This appears clearly a mistake of law, at least according to U. S. municipal law.

zation or an exemplified copy thereof. Naturalization may be proved by parol evidence only in case the record has been lost or destroyed.1

A passport issued by the Department of State has been held by municipal courts as incompetent judicial proof of citizenship,2 but, as will be noted, internationally, the United States has insisted upon its passport being accepted as prima facie evidence of citizenship.3

When satisfactory evidence is furnished that the record has become lost, destroyed or mutilated or could not for good and sufficient reasons be found, it has been held that secondary evidence to prove naturalization will be admitted. Municipal courts have on several occasions construed the facts of long residence in the United States and the exercise of the voting privilege as tending to show naturalization and citizenship.5 International commissions have not been so liberal.6

As the judicial branch of the government is charged with the duty of naturalizing aliens and is invested with appropriate powers for determining matters of fact which are essential to decide the question of naturalization, the Department of State has uniformly held that it is beyond its power to assert that a certain person is a naturalized citizen of the United States in the absence of judicial proof of the fact. Thus where a record of naturalization has been lost or destroyed, it is for the courts to hear the evidence of the loss and remedy it.8

It has been uniformly held that proof of a declaration of intention is not sufficient evidence of naturalization.9

1 Green v. Salas, 31 Fed. Rep. 106. See other cases in municipal courts cited in Moore's Dig. III, §§ 420, 421, in H. Doc. 326, 59th Cong., 2nd sess., 127–130, and in Van Dyne, Naturalization, 129–133.

In re Gee Hop, 71 Fed. Rep. 274; Urtetiqui v. D'Arcy, 9 Peters, 692; Edsell v. Mark, 179 Fed. Rep. 292.

3 Infra, p. 517.

Mantin (U.S.) v. Mexico, July 4, 1868, Moore's Arb. 2540; Steinthal, ibid. 2540; Wolfe, ibid. 2539; Van Dyne, Naturalization, 132; Moore's Dig. III, § 421. The Department of State occasionally accepts secondary evidence.

See cases cited in Moore's Dig. III, 497-498.

* Infra, p. 491.

7 See communications of Sec'y of State Blaine printed in Moore's Dig. III, 498. 8 Mr. Bayard, Sec'y of State, to Mr. Ferguson, ibid. 498. For purposes of protection, the Department occasionally accepts secondary evidence.

'Infra, § 247.

§ 212. Rules of International Tribunals of Arbitration.

International commissions acting under special treaties or rules of their own often provide for special methods of establishing citizenship, and have had occasion to pass upon various forms of evidence of citizenship. In each case, it is important to consult the treaty or protocol of arbitration under which the commission is acting. The domestic commission under the convention with France of July 4, 1831 held that the executive determination of the fact of citizenship did not authorize the commission to deny the privileges of citizenship to an American who had neither renounced them in terms, nor by assuming a hostile attitude towards a foreign nation, had authorized that nation to treat him as its enemy.1

The claims commission under the treaty of July 4, 1868 with Mexico, passing upon the claims of citizens of either country against the other, issued an order which required native citizens to state the place and date of their birth. Various forms of evidence of citizenship were presented to this commission, which resulted in some interesting decisions concerning proof of naturalization and citizenship. For example, a certificate from the Governor of a Mexican State attesting claimant's citizenship, supported by other evidence, was accepted as proof of citizenship, but certificates executed by minor officials were rejected.3 Similarly, recognition of citizenship by a consul or a certificate from a consul, or aid furnished by the American minister,5 were held each as insufficient evidence of citizenship.

1 Kane's notes, Phila. 1836, p. 16.

2 Garay (Mexico) v. U. S., July 4, 1868, Moore's Arb. 2532.

3 Warner (Mexico) v. U. S., ibid. 2533 (sub-political chief of a Mexican district); Wolfe (U. S.) v. Mexico, ibid. 2539 (passport and certificate from a Mexican colonel of infantry). Of course, claimant's declarations, supported only by persons interested in the claim, were rejected as proof. Spencer (U. S.) v. Mexico, ibid. 2768 (note). To effect that opinions of witnesses are incompetent to prove citizenship, see Valentiner (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 564.

4 Brockway (U.S.) v. Mexico, July 4, 1868, ibid. 2534; Goldbeck (U. S.) v. Mexico, ibid. 2507. See also Gilmore (U. S.) v. Costa Rica, July 2, 1860, ibid. 2539.

5 Tipton (U. S.) v. Mexico, July 4, 1868, ibid. 2545. But such official recognition by several U. S. ministers and the minister of foreign affairs combined with circumstantial evidence of naturalization and direct evidence of a declaration of intention was considered by Thornton, Umpire, as proof of claimant's citizenship. Pradel (U. S.) v. Mexico, ibid. 2543. Recognition of claimant's American citizen