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ship by registration in an American consulate. So, likewise, children born abroad who are citizens under § 1993 of the Revised Statutes must, upon reaching the age of eighteen, in order to receive the protection of this government, record at a consulate their intention to become residents and remain citizens of the United States. The practical effects of consular registration, to which all American citizens resident abroad are invited, are hardly less important. Registration operates as a definite avowal or election of citizenship and is an important factor in overcoming the presumption of expatriation. Besides, it facilitates and expedites protection abroad in case of need, inasmuch as the identity and citizenship of the person desiring protection are at once established and made a matter of record.

The same general principles govern applications for registry which govern applications for passports. The applicant must furnish to the consul the same proof of citizenship as would be required by the Department of State for the issuance of a passport.2 Upon satisfactory registration, the consul is authorized to issue without charge 3 a certificate of registration for use with the authorities of the place where the person registered is residing. The certificates are good for one year only, and may be renewed annually, provided it is clearly shown that the residence abroad has not assumed a permanent character.

The certificate of registration, while serving the important international purpose of establishing the identity and citizenship of the entitled holder, is issued rather as a measure of supervision or control by the United States over its citizens abroad, particularly in extraterritorial countries, and as an aid to its protective functions.

1 Sections 3, 4 and 6 of the Act of March 2, 1907, Circulars, April 19, 1907, Registration of women who desire to resume or retain American citizenship, and Children of citizens born abroad, For. Rel., 1907, I, 10, 9.

2 See the rules prescribed by the Dept. of State in circular of November 30, 1907, and March 2, 1908, as to Applications for registration. See also circular of June 21, 1909.

Circular March 25, 1908. The charge of a small fee is now contemplated by the Department.

IMPEACHMENT OF CITIZENSHIP

§ 223. Who may Impeach.

The conclusiveness of the ordinary evidences of citizenship, the passport and the certificate of naturalization, has been the subject of much diplomatic correspondence during the last fifty years. This government has uniformly insisted that the documents it issues as certificates of citizenship shall be considered as prima facie evidence of lawful citizenship. While admitting the possibility of foreign authorities traversing the conclusively evidentiary character of the passport or certificate of naturalization, by showing fraud or illegality, the United States, as has been said, has reserved to itself the exclusive right to determine the ultimate validity of these documents and of the citizenship of the persons to whom they are issued.

On several occasions the attempts of foreign governments to impeach the validity of a passport duly issued by the Department of State have called forth emphatic protests from American secretaries of State.1 Diplomatic difficulties with Mexico, Austria-Hungary and Russia have made it clear that the United States will not admit the right either of administrative or judicial officers of those countries to pass upon the validity of passports or certificates of naturalization issued by the United States. These documents may be questioned on the ground that they have been fraudulently obtained or are fraudulently held, but even then the determination of the validity of the passport is within the competency alone of the Department of State and not of the local authorities abroad. The assumption by such local authorities of the right to ignore the evidence of the passport and to ascertain by an independent municipal investigation the citizenship of an alien, an American citizen, was declared by Secretary of State Gresham to be "incompatible with the universally admitted doctrine that a state is the sole and ultimate judge of the citizenship of its own dependents, and is competent to certify to the fact." He added:

"It is neither incumbent upon the bearer to prove his citizenship by

1 See the various notes of Secretaries Marcy, Fish, Evarts, Foster, Gresham and Olney, quoted in Moore's Dig. III, 985 et seq.

extraneous evidence at the will of the country of his sojourn; nor upon the certifying government to support its official attestation of the fact of the citizenship by collateral proof under the municipal requirements of another country. . . . Should the Austro-Hungarian authorities have reason to believe that they [passports] are fraudulently held by others than the persons to whom they were lawfully issued or that the holders have obtained naturalization in fraud of the laws of the United States, or claim privileges of citizenship not granted by the treaty of naturalization between the two countries, the facts should at once be brought to the notice of the Government of the United States through its accredited envoy in Austria-Hungary." 1

The naturalization treaties with some of the German states make five years' residence as well as naturalization conditions precedent to a recognition of a change of allegiance. Inasmuch as the passport of a naturalized citizen does not disclose the statute under which he was naturalized-which may not be predicated upon a five years' residence, e. g., in the case of minors, honorably discharged soldiers, seamen, etc.-the allegation of a failure to comply with the requirement of five years' residence must be heard as an objection to the conclusively evidentiary character of the passport, and in the absence of disrespect to the passport as prima facie evidence of citizenship, the competency of a German court to conduct an independent investigation upon the question of five years' residence cannot, it would seem, be contested.2

The United States has always insisted that it alone was competent to pass upon the question as to whether a passport was fraudulently obtained. If foreign governments could pass upon the question of fraud in obtaining a passport, they would in effect pass upon the legality of the act of naturalization itself, an assumption which the United States has always vigorously contested.3

The passport must be accepted as prima facie proof of citizenship

1 Mr. Gresham, Sec'y of State, to Mr. Tripp, min. to Austria-Hungary, Sept. 4, 1893, For. Rel., 1893, 23-24, quoted in Moore's Dig. III, 988-989. The Austrian foreign office fully conceded the principle contended for by Mr. Gresham.

2 Mr. Olney, Sec'y of State, to Mr. Jackson, chargé at Berlin, Feb. 13, 1896, For. Rel., 1895, 520-523 (In re claim by Würtemberg authorities of right to require other evidence of citizenship than passports). Extracts quoted in Moroe's Dig. III,

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Hay, Sec'y of State, to Mr. Harris, min. to Austria-Hungary, Nov. 7, 1899, 1899, 78, Passport of John Wilson. Quoted in Moore's Dig. III, 1001.

by the consular and diplomatic officers of the United States,1 although upon an application for the issuance of a passport, the diplomatic officer can question the validity of a naturalization certificate and compliance with its essential conditions.2

What has been said above regarding the impeachability of the passport applies equally to the certificate of naturalization, on which, in the case of naturalized citizens, it is practically always issued. Thus, the United States has uniformly contested any assumption of right by the administrative or judicial authorities of foreign countries to pass upon the legality or validity of a certificate of naturalization, that being, so it has been insisted, the exclusive function of the appropriate authorities of the United States.3

§ 224. Nature of Certificate of Naturalization. Its Character as Res Adjudicata.

A certificate of naturalization is not only an evidence of citizenship, but, emanating from the judicial department of the government, it is also the evidence of a judgment. Out of this fact has arisen some confusion as to the sacredness of the certificate of naturalization, its character as res adjudicata, and the extent to which it is bind

Mr. Hay, Sec'y of State, to Mr. Hardy, min. to Switzerland, April 23, 1901, Application of Carl F. Kupfer, For. Rel., 1901, 508-509.

2 Mr. Leishman to Mr. Hay, May 17, 1901, and Mr. Hill, Act'g Sec'y of State, to Mr. Leishman, June 14, 1901, For. Rel., 1901, 519–520.

3 The Benich case in Austria, Mr. Gresham, Sec'y of State, to Mr. Tripp, Sept. 4, 1893, For. Rel., 1893, 23-25. See also For. Rel., 1894, 36–46, For. Rel., 1895, 514-523, For. Rel., 1895, 8-12, 13-20; Sec'y Hay to Mr. Harris, Nov. 7, 1899, For. Rel., 1899, 78, Moore's Dig. III, § 424. See also the Beauffremont decision in Belgium, 9 Clunet (1882), 364, Von Bar (Gillespie's trans.), 158 et seq., and Morse, Citizenship, 92.

In reality the court acts as an administrative body, the proceedings being in the nature of non-contentious jurisdiction. (See Pitney, J., in Johannessen v. U. S., 225 U. S. 227, 237.) It is in the nature of a judgment in rem, though the application is submitted with ex parte proofs. The Government rarely appears, although by § 11 of the Act of June 29, 1906, the Government is given the right to appear, and to crossexamine the petitioner and witnesses and produce evidence in opposition to a grant of naturalization. See also 14 Opin. Atty. Gen. 509, and the exhaustive opinion of the late Spanish Treaty Cl. Com. in Ruiz v. U. S., printed in Van Dyne, Naturalization, 151.

"Attorney-General Akerman, in 13 Opin. Atty. Gen. 376, erroneously held that it was a judgment binding only on parties and their privies; hence that the U. S. was

ing on municipal courts, on international courts, and on the executive branch of the government.

§ 225. Conclusiveness upon Municipal Courts.

Before municipal courts of the United States a decree or order of naturalization cannot be impeached collaterally.1 It is presumed to be conclusive, and complete evidence of its own validity. Yet in the matter of the collateral attack of judgments, the following distinction has been drawn: they may be impeached by facts involving fraud or collusion which were not before the court or involved in the issue or matter upon which the judgment was rendered, but they may not be impeached for matters which were necessarily before the court and passed upon. If, however, the certificate is void on its face, e. g., if issued to a Japanese 3 or Chinese subject, the certificate of naturalization may be treated as void in any proceedings.

Certificates of naturalization, fraudulently acquired or held, may, as will be seen, be cancelled in direct proceedings to that end. The federal statutes also provide for the criminal prosecution of false personation, false swearing and forgery in naturalization proceedings, as well as of the uttering, selling and use of false naturalization papers. It has been held generally that only the United States can proceed judicially to set aside or cancel a certificate of naturalization, although it was not definitely determined before the Act of June 29, 1906, which officers might bring such an action. Section 15 of the Act of June 29,

not concluded by a fraudulent certificate of naturalization. The true ground is rather that a judgment in rem may be attacked for fraud, or that, being an ex parte proceeding, the U. S. is not concluded by the certificate granted. Johannessen v. U. S., 225 U. S. 227, 237. See Morse, Citizenship, § 191.

1 Moore's Dig. III, § 422 and decisions there cited. Van Dyne, Naturalization, 134-141; H. Doc. 326, 59th Cong., 2d sess., 130-133.

2 U. S. v. The Acorn, 2 Abbott's U. S. Rep. 434, 445.

In re Yamashita, 30 Wash. 234, 70 Pac. Rep. 482.

In re Gee Hop, 71 Fed. 274; In re Hong Yen Chang, 84 Cal. 163; 21 Opin. Atty. Gen. 581; Moore's Dig. III, 501.

Moore's Dig. III, 499.

Pintsch Compressing Co. v. Bergin, 84 Fed. 140; U. S. v. Norsch, 42 Fed. 417; U. S. v. Gleason, 78 Fed. 396, is doubtful law. See other cases cited in H. Doc. 326, 59th Cong., 2d sess., 132.

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