the naturalization was in fact fraudulently used to escape obligations otherwise due, protection has been withdrawn.1

Some years ago, when diplomatic officers were permitted to issue passports, the Department of State directed that when the renewal of passports was frequently demanded by alleged Americans resident abroad they were to be warned that the declaration of intention to return to the United States was not an empty phrase and that a further passport should be refused unless for special reasons it was clear that the foreign residence was not inconsistent with bona fide American citizenship. The criteria for determining when naturalization was obtained fraudulently or claimed inconsistently with American citizenship were much simplified by the application of the presumptions defined in the Acts of June 29, 1906 and March 2, 1907.2 Section 15 of the Act of 1906 provides that the permanent residence of a naturalized citizen in any foreign country within five years after his naturalization shall be deemed prima facie evidence that his naturalization was obtained in bad faith. It still leaves the diplomatic or consular officer to determine from all the circumstances when the residence is "permanent." By § 2 of the Act of 1907, two years' residence of the naturalized citizen in the country of his origin or five years' residence in any other country creates a presumption that he has ceased to be an American citizen, and unless that presumption is rebutted by showing some special and temporary reason for the change of residence, the obligation of protection by the United States is deemed to be ended.

It has already been noted that whenever it appears to the Department of State that naturalization has been improperly or improvidently granted to a person claiming an American passport or diplomatic protection on the strength of a naturalization certificate, the passport and protection are refused.3

1 Mr. Olney, Secretary of State, to Mr. Townsend, For. Rel., 1895, 24. When the naturalized citizen has, on return to his native country, flaunted his naturalization and boasted of his immunity from burdens to which his neighbors were subject, thereby incurring the penalty of expulsion "for reasons of public welfare," the United States has declined to intervene in his behalf. For. Rel., 1894, pp. 30-36, supra, pp. 53, 56.

* Aide memoire of the Dept. of State, December 20, 1909, For. Rel., 1909, 35. 'Supra, p. 527.

§ 230. Criteria Applied by Municipal and International Courts.

As to what is fraud, no definite rule can be laid down. It would seem, however, that it must in general be positive rather than negative. Thus, it was held in United States v. Norsch,1 that an applicant who merely presented himself for naturalization, knowing that he was not entitled thereto was not guilty of fraud, the court adding, that only when he resorts to false testimony or to some trick or artifice with a view to deceiving the court, is he guilty of fraud.2

4

Attention has already been called to the views of international commissions on the question of fraudulent naturalization, and to the general rule adopted by them that the fraud which renders naturalization invalid must consist in intentional and dishonest misrepresentation as to a material fact or in the willful suppression of material facts.3 Under the rule of the Spanish Claims Commission adopted December 14, 1882, some curious decisions were handed down as to what constituted fraud. The doubtful regularity of claimant's naturalization was held not to constitute fraud.5 In other cases, however, the rule appears to have been too liberally interpreted. Thus, the naturalization of a person before he was twenty-one, notwithstanding his false representations, was held not to constitute fraud. Similarly, clear proof of failure to comply with the five years' residence requirements was in a number of cases held not to constitute fraud." Other commissions have considered that naturalization obtained notwithstanding failure to comply with residence requirements was a prima facie evidence of or equivalent to fraud or misrepresentation and to disentitle the claimant from appearing before the commission as an American citizen.8

1 U. S. v. Norsch, 42 Fed. 417, 419; Matter of McCarran, 8 Misc. (N. Y.), 482. 2 For other cases in municipal courts, see H. Doc. 326, 59th Cong., 2d sess., 134, and cases under § 15 of the Act of 1906, cited supra, p. 529, note 3.

3 Supra, p. 522. See particularly Angarica (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2621, and Criado, ibid. 2625.

5 Zaldivar (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2630; Govin (U. S.) v. Spain, ibid. 2629 (dictum).

Zenea (U. S.) v. Spain, ibid. 2626.

7 See, e. g., Montejo (U. S.) v. Spain, ibid. 2646; Macias (U. S.) v. Spain, ibid. 3775, No. 52, Original opinion, MS. Dept. of State; Govin Y Pinto, ibid. 2635; Rozas, ibid. 2646. See also Madan, ibid. 2641, and Portuondo, ibid. 2565.

8 Medina (U. S.) v. Costa Rica, July 2, 1860, ibid. 2583, 2587; Perez (U. S.) v.

While the abandonment of American citizenship by a naturalized citizen may be visited with the same results as fraudulent naturalization (and the Act of 1906 in fact provides that the establishment of a permanent residence abroad within five years after naturalization shall be considered prima facie evidence of the bad faith of the naturalization), international commissions have considered abandonment of citizenship as distinct from fraudulent naturalization as a ground of forfeiture of diplomatic protection or citizenship.

While the practice of the Department of State has not been uniform, the attempt is now generally made to secure and destroy a fraudulently obtained naturalization certificate, just as a wrongfully held passport is retained and cancelled. The demand for legislation empowering the government to bring suit to cancel records of naturalization obtained by fraud has been met by the Act of June 29, 1906.1 Section 7 of the recent British Nationality and Status of Aliens Act enables the Secretary of State to revoke any certificate obtained by fraud, and order it to be given up and cancelled, an obligation enforced by criminal proceedings.2

INTERNATIONAL EFFECTS OF NATURALIZATION

$231. Nature and Effect of Naturalization.

Naturalization is in effect an act of adoption by which a foreigner at his expressed or implied volition, is granted citizenship, with its incidental rights, upon his compliance with the conditions prescribed by the municipal law of the adopting country.3 It is an act of public law whose validity can in theory be determined only by the naturalizing country, within whose right it is to fix the conditions under which Mexico, July 4, 1868, ibid. 2719, and Lizardi (U. S.) v. Mexico, ibid. 2589; Kuhnagel (France) v. U. S., ibid. 2647, 2649 (same principle); Flutie (U.S.) v. Venezuela, Feb. 17, 1903, Ralston, 38, 41; Ruiz v. U. S., No. 112, Spanish Treaty Cl. Com., supra., p. 526. 1 Supra, p. 528. See also Moore's Dig. III, § 425.

2 Part II, § 7 (2), 4-5 Geo. V, ch. 17. Under the new Act (§ 8) the government of any British possession has the power to grant a certificate of naturalization having the same effect as a certificate granted by the British Secretary of State. In the self-governing dominions, the Act must first have been adopted. See E. B. Sargent on Naturalization in the British dominions, in No. 31 (July, 1914), Journ. of the Soc. of Comp. Leg. 327–336.

3 Stoicesco, C. J., Etude sur la naturalisation, Paris, 1876, p. 236.

the concession of citizenship is extended.' These conditions vary from country to country.2 Cockburn in his well-known work on nationality has said that assuming the competency of a person to change his allegiance, "the effect of naturalization ought, by the common law of nations, to be everywhere to supersede and put an end to the nationality of origin, even where by expatriating himself the subject has offended against the law of the original country and may remain amenable to punishment should he return to it." 3

4

The comity of legislation which would be necessary to bring about this condition and thus avoid cases of dual nationality has not yet been manifested by the majority of the states of the world. Many countries still deny the right of expatriation or place such onerous restrictions upon its exercise as to amount to a practical denial of the right. While numerous treaties between the United States and certain foreign countries have aided greatly in adjusting conflicting claims to the allegiance of persons who have become naturalized citizens of the United States, and while municipal statutes and executive regulations of the United States have furnished criteria to establish the bona fide character of the American citizenship of a naturalized American citizen abroad and of his right to diplomatic protection, the fact, nevertheless, that there are various countries of the old world which deny absolutely or conditionally the right of expatriation and with which no naturalization treaties have been concluded, and the fact that the treaties do not extend to all cases, still make conflicts of nationality and cases of no nationality of frequent occurrence. The various types of cases which have engaged the attention of the United States in its diplomatic intercourse with foreign countries will be discussed presently.

1 De Folleville, D., Traité . . . de la naturalisation, Paris, 1880, p. 4; PradierFodéré, III, § 1658.

2 De Folleville in Part four of his work undertakes a comparative study of the law in the countries of Europe and America. See also Lehr, E., La nationalité, Paris, 1909; Sieber, J., Das Staats-bürgerrecht im internationalen Verkehr, Bern, 1907, 205-410; Cogordan, La nationalité, Paris, 1890, 171–271 and Appendix; and Zeballos, E. S., La nationalité au point de vue de la législation comparée et du droit privé humain, trad. par A. Bosq, Paris, 1914, 2 v.

3 Cockburn, Nationality, London, 1869, 208.

Pradier-Fodéré, III, § 1661 and infra, §§ 237, 238.

Before examining the position of naturalized American citizens abroad, it may be well to note the views of the United States on certain conditions attaching to naturalization in general.

$232. Conditions of Recognition.

The United States has always insisted that naturalization requires the voluntary act and the express or tacit consent of the individual to be naturalized. This view has been expressed on various occasions in connection with the attempts of different states of Latin-America by municipal law to impose their nationality on foreigners. Thus, the statutes of Peru, Mexico, Brazil, Venezuela and other countries, imputing their nationality ipso facto upon persons who purchase real estate or have children born to them in those countries have met with vigorous protest and a refusal of recognition by the United States.1 The fact that the law of Mexico and Brazil permitted the foreigner, by affirmative action on his part, to retain his original nationality was not considered to alter the position of the United States that "the loss of citizenship cannot be imposed as a penalty nor a new national status forced as a favor by one government upon a citizen of another." 2 In a few countries of Latin-America, the acceptance of certain public offices naturalizes a foreigner.3 As the acceptance of such office is presumably a voluntary act of the foreigner, his con1 Moore's Dig. III, § 378. See also Hall, Foreign powers and jurisdiction, 46; Cogordan, Nationalité, 117-118; Pradier-Fodéré, III, § 1658; Robinet de Clery in 2 Clunet (1875), 80. The decisions of the mixed commission of July 4, 1868 with Mexico, on the acquirement of citizenship by owning real estate, have been discussed, supra, p. 492.

2 Mr. Bayard, Sec'y of State, to Mr. Manning, Nov. 20, 1886, For. Rel., 1886, 723; Pradier-Fodéré (III, § 1658), points out that from this point of view the acquisition of citizenship by naturalization may be considered as a contract between the alien who requests it and the state which grants it. Octavio Rodriguez in an article on the Brazilian law of nationality states that while Portugal, Spain, Great Britain, Italy and Austria protested against the provision of the Brazilian Constitution of 1891 by which aliens who had not claimed their original nationality by Aug. 24, 1891 became citizens of Brazil, Brazil has maintained its position. It seems, from a note sent to the French government, that the law was not strictly enforced. 6 Rev. de l'Inst. de dr. comp. 302-304.

3 Guatemala and Salvador, cited by Harmodio Arias in his article, Nationality and naturalization in Latin-America, in 11 Journ. of the Society of Comp. Leg. (Nov. 1910), 126, at 136. Norway and Germany appear to make similar provision.