sent to the legal consequences of his act may be inferred.1 The United States recognized the validity of a Haitian law which provided for certain grants of land to immigrants on condition that they became Haitian citizens.2

A reasonable distinction would result in a denial of the right to impose citizenship based upon mere residence, or marriage with a native woman or the acquisition of real property, or acts generally of a purely civil and personal nature; whereas such naturalization by operation of law should be recognized if it involves the enjoyment of political rights or privileges or if the consent of the naturalized person may be inferred. The acquirement of citizenship through the naturalization of the parent or husband or by marriage of an alien woman to a citizen or by treaty or annexation of territory are almost universally recognized as valid instances of naturalization by operation of law.

While it is not considered within our province to discuss the various methods of naturalization provided by the municipal law of the United States, e. g., by naturalization of the parent, by virtue of the marriage relationship, and collective naturalization, either by the admission of new states or by treaty or conquest, it may be desirable to point out one or two features of American naturalization which have at times had an international bearing.

§ 233. Certain Features of American Naturalization having International Importance.

The United States pays no regard to the important particular of the capacity of the applicant for naturalization, according to the municipal law of his original country, to divest himself of his former allegiance. This is of course a necessary consequence of the application of the doctrine of voluntary expatriation. Prussia, Bavaria and

1 Hall goes somewhat further in concluding that a wish to identify himself with the state may be inferred from the performance of political acts. Cited by Arias, op. cit., 137. See Hall, Foreign powers and jurisdiction, 46.

2 Mr. Hay, Sec'y of State, to Mr. Powell, Dec. 1, 1899, For. Rel., 1899, 403. 3 See works noted supra, p. 457, and particularly H. Doc. 326, 59th Cong., 2d sess., 138-159, and Moore's Dig. III, §§ 413-415 (Naturalization of parent), §§ 408-412 (marriage relationship), §§ 379–380 (collective naturalization). On citizenship by annexation of territory, see also cases in Moore's Arb. 2509-2518, 2538, 2541-2542.

Sweden appear to be among the few European states which inquire into the capacity of the applicant to abjure his native allegiance,1 although Great Britain until 1914 provided by statute that the naturalized subject shall not be deemed a British subject within the limits of his former country, unless by its laws or by treaty, he has ceased to be a subject thereof.2

Naturalization in the United States depends upon a compliance with certain conditions, including, in the usual form of naturalization, continuous residence in the United States for a period of five years immediately prior to naturalization.3

It has been generally held that the words "continuous residence" are to be understood in the legal case, according to which a transient absence for business, pleasure or other occasion, with the intention of returning, does not interrupt the period of residence. This is the construction placed upon the words "resided uninterruptedly" in certain naturalization treaties of the United States with other states (e. g., Bavaria and Würtemberg) and is expressly so defined in protocols annexed to those treaties. The courts construe the provision for "continuous residence" as practically equivalent to domicil and do not require a continuity of physical presence, the question whether

1 Cockburn, Nationality, 48-49.

6

2 Supra, p. 461. In the British Nationality and Status of Aliens Act, 1914, this qualification of British naturalization has been dropped, Part II, § 3 (1). On the effect of the qualifying clause (33-34 Vict. ch. 14, § 7, par. 3), see F. B. Edwards, The effect of a certificate of naturalization in 30 Law Quar. Rev. (1914), 433, 436– 447.

3 For interpretations by municipal courts and authorities of the five years' residence requirement see H. Doc. 326, 59th Cong., 2d sess., 102-114. For the history of the residence requirements in U. S. naturalization acts, see F. Van Dyne in 29 Amer. Law Rev. 52-58, Moore's Dig. III, § 388, and Naturalization of George Edward Lerrigo, Hearings before the House Committee on Immigration and Naturalization, 63rd Cong., 2nd sess., May 21, 1914, part 2, especially letter from J. B. Densmore, Act'g Sec'y of Labor, p. 16. Mr. Lerrigo was naturalized by Act of Congress, Feb. 23, 1915, notwithstanding the fact that he had not resided five years in the U. S. prior to the Act. His case presented peculiar circumstances which justified naturalization. See Hearings cited.

413 Op. Atty. Gen. 376.

5 Hunt's The American passport, Washington, 1898, p. 175. The same interpretation would be made of other treaties.

U. S. v. Rockteschell, 208 Fed. 530.

there has been a continuous residence being one of fact for determination under all the circumstances of the case.1

In our discussion of fraudulent naturalization, we have considered the views of various international commissions as to the effect of failure to comply with the requirements for a continuous residence in its relation to fraud under the naturalization laws.2 In the issuance of passports, the State Department has to determine whether a noncompliance with the residence requirements of the statute amounts to fraud warranting a refusal to recognize the validity of the naturalization certificate and a refusal of a passport. The question also becomes of importance because of the provision in our naturalization treaties making five years' uninterrupted residence in the United States a condition precedent to recognition by the original government of the change of allegiance of a naturalized citizen. It has been held that a petition for the cancellation of a certificate of naturalization under § 15 of the Act of June 29, 1906, on the ground of want of the necessary previous residence, must show either fraud or that the evidence before the court which granted the certificate was insufficient to warrant the finding of residence.

3

It may here be observed that the statutes of the United States in granting naturalization look to the past and not to the future, in that they require a compliance with conditions preceding naturalization and require no evidence or manifestation of intention to remain a citizen of the United States. The applicant may leave the United States as soon as he is naturalized. By the declaration of intention

he merely states his intention to become a citizen. He is not required. to state that he intends to make his domicil in the United States. This defect in the law, which it appears is avoided by the naturalization laws of practically all the European countries, has brought about many complaints of the imposition practiced upon the United States by naturalized American citizens residing abroad, who sought naturalization for the sole purpose of securing protection.

While the Nat

Report of the Commission on Naturalization, Nov. 8, 1905, H. Doc. 46, 59th

Cong., 1st sess., 14-15.

uralization Act of June 29, 1906 has not rectified the omission by requiring the applicant to swear that he intends to make his permanent residence in the United States, § 15 authorizes proceedings for the cancellation of the certificate of a naturalized citizen who within five years of his naturalization establishes a permanent residence abroad, and § 2 of the Act of March 2, 1907, provides that a residence of two years in his native land or five years in any other foreign country creates a rebuttable presumption of his expatriation.

Under the regulations of the Department of State passports are as a rule issued only to those naturalized citizens abroad who declare an intention to resume their residence in the United States.1

§ 234. Non-Retroactivity of Naturalization.

It is a fairly established principle that naturalization has no retroactive effect. Most of the naturalization treaties of the United States expressly provide that the naturalized citizen is punishable in his native country for violations of law committed prior to his emigration. Thus, desertion after the call to arms or while in the active service is an offense "from the penalty of which exemption by foreign naturalization is neither claimed nor conceded by the United States." 2 In countries in which military service is compulsory and with which the United States has naturalization treaties, it would seem that a naturalized citizen who failed to respond to the call to arms, when after having served the required number of years, he was placed on the reserve rolls, and then emigrated to the United States in time of peace and before the call to arms, and became duly naturalized, is secured by the terms of the treaties from punishment for desertion, the obligation to military service having arisen after his emigration. Similarly,

'The exception is made in the case of American naturalized citizens resident in a semibarbarous country or in a country in which the U. S. exercises extraterritorial jurisdiction, in which residence may be indefinitely prolonged without forfeiting American citizenship or protection. Circular instruction, March 27, 1899. Such citizenship is no longer inheritable from generation to generation, but is subject to the provisions of § 1993, R. S., infra, § 333.

'Mr. Bayard, Sec'y of State, to Mr. Turner, Sept. 10, 1885, Moore's Dig. III, 425. See also Moore's Dig. III, §§ 401-402.

'Cases of L. Sedivy and F. Holasek v. Austria, For. Rel., 1896, 6–13, 16. See also For. Rel., 1900, 30.

emigration prior to the year when liability to service arises or before conscription, carries exemption, under the treaties, from penalties for non-fulfillment of military duty. When, however, the emigration was due solely to a desire to evade military duty, the United States has often yielded to the asserted right of the native state to expel the emigrated person should he undertake to settle in his native home. as a naturalized American citizen, free from the obligation of military service. It is usually provided, at least in the Bancroft treaties, that the emigrant is not punishable for the act of emigration itself, although, apart from treaty, a state has clearly the right to regulate, under penalty, the emigration of its subjects and to punish its nationals for evasion of military service. The treaties also provide for the application of the customary statutes of limitation to punishable offenses, and the United States has generally been successful under these statutes of limitation in securing a remission of penalty or liability for the naturalized citizen.3

In the case of international claims, the rule uniformly adopted is that American naturalization cannot serve to nationalize a claim which arose prior to the date of naturalization of its owner. In other words, a claim must be national in origin as well as at the time of presentation. A passage from an instruction of Secretary of State Fish may here be aptly quoted: "In granting the high privilege of its citizenship, the United States does not assume the defense of obligations incurred by the party to whom it accords its citizenship prior to his acquisition of that right, nor does it assume to become his attorney for the prosecution of claims originating prior to the citizenship of the claimant.”5

§ 235. Protection of Naturalized Citizen in Native Country.

It has already been observed that the statutes of the United States

1 For. Rel., 1889, 25, 35.

2 Supra, p. 53.

'Moore's Dig. III, § 403.

Ryder (U. S.) v. Chinese indemnity, treaty of Nov. 8, 1858, Moore's Arb. 2332. Claims before Spanish commission of Feb. 12, 1871, ibid. 2437; Abbiatti (U. S.) r. Venezuela, Dec. 5, 1885, ibid. 2348; Medina (U. S.) v. Costa Rica, July 2, 1860, ibid. 2483. See also infra, § 306.

6

Mr. Fish, Sec'y of State, to Mr. Davis, Nov. 24, 1874, Moore's Dig. III, 429. Supra, p. 460.