The utility and desirability of the declaration of intention have often been questioned, and because of its apparent uselessness and of the difficulties which it engenders its elimination from our naturalization laws has more than once been recommended.1 Its purpose was once explained by Secretary Blaine as providing "a probationary period during which the applicant, by residence in the land of his adoption, by acquiring interests therein, by good moral conduct, and by familiarizing himself with, and attaching himself to, its constitutional methods, shall fit himself for a faithful and loyal assumption of the duties of citizenship and thus, as a member of our free society, support the government whose protection is in return extended to him." 2 The anomalous position in which the person who has thus acquired what might be termed "inchoate citizenship" is placed, has caused many diplomatic controversies between the United States and other governments and has served at times to deprive the person concerned of the protection of both his old and his new government.

While the declaration of intention serves to confer upon an alien various rights in the states of this country,3 occasionally denominated as state citizenship, it has been held uniformly by our courts and by the executive department of the government that the declaration is merely an expression of intention or purpose, and has not the effect either of naturalization or citizenship in the United States 4 or of expatriation from the country to which the applicant owes original alle

1 E. g., Report of Naturalization Commission, 1905, p. 12.

2 Mr. Blaine to Mr. Hicks, May 8, 1890, For. Rel., 1890, 695.

3 In twelve states it gives the alien the right to vote, provided he has resided in the state for a certain period. In several states he enjoys greater rights than other aliens in the acquisition of real property, and in some states he may be employed on public works and other aliens may not. He also enjoys privileges under the preemption and homestead laws. Van Dyne, Naturalization, 64; H. Doc. 326, 59th Cong., 2nd sess., 20; Nathan Wolfman in 41 Amer. L. Rev. (1907), 504.

4 Lanz v. Randall, 4 Dill. 425; In re Moses, 83 Fed. 995; Minneapolis v. Reum, 56 Fed. 576, 6 C. C. A. 31; Frick v. Lewis, 195 Fed. 693, 697; U. S. v. Uhl, 211 Fed. 628, 631, and cases cited in 41 Amer. L. Rev. 505 and Dicey, Conflict of laws (Amer. ed.), 202. See also Johnson v. U. S., 160 U. S. 546; Yerke v. U. S., 173 U. S. 439. See instructions of Secretaries Buchanan, Fish, Frelinghuysen, and Bayard in Moore's Dig. III, 337-340. See also Sec'y Olney to Mr. Denby, Jan. 13, 1897, For. Rel., 1896, 92; Sec'y Hay to Mr. McKinney, March 20, 1899, MS. Dom. Let. 544

giance. This principle has been confirmed by naturalization treaties concluded by the United States with foreign countries 2 and by the decisions of arbitral tribunals.3

§ 248. Anomalous Position of Declarant.

While the principle is, therefore, clear that a declaration of intention does not confer citizenship, the position of such an alien declarant when abroad is not free from doubt. Legally, he has not abjured his original allegiance, and he remains a national of the country of his origin until his naturalization has been completed. This has been reiterated, as has been observed, by various secretaries of State and is made clear by numerous treaties. Nevertheless, having clearly ex'Mr. Hay, Sec'y of State, to Mr. Conger, Feb. 15, 1902, For. Rel., 1902, 221; Mr. Cass, Sec'y of State, to Mr. Washburne, March 9, 1857, Moore's Dig. III, 338; Mr. Frelinghuysen to Mr. Dunne, July 31, 1883, ibid. 339; Mr. Bayard to Mr. West, Oct. 17, 1885, ibid. 341; Mr. Blaine to Mr. Hicks, Feb. 26, 1890, ibid. 341.

4

Adlam (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2552, Hale's Rep. 14; Tousig's case, Cockburn, 123. Citation of opinion by Lieber in Wilson (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 2555. The argument of the American commissioners in the case of Santangelo (U. S.) v. Mexico, April 11, 1839, ibid. 2550, to the effect that the declaration of intention constituted a renunciation of orginal allegiance is clearly wrong.

In the case of France, however, the declaration of intention was held in one case to serve as evidence of an intent not to return to France, which constituted a presumption of expatriation under the French Civil Code. Bouillotte (France) v. U. S., Jan. 15, 1880, Moore's Arb. 2652. But to the effect that the French code contemplates the acquisition of a new citizenship before French citizenship can be lost, see M. Flourens, French minister of foreign affairs, as reported by Mr. McLane, June 25, 1887, For. Rel., 1887. See also as to French law before 1889, circular printed in Moore's Arb. 2653–2654.

2 The particular provision generally reads: "The declaration of intention to become a citizen . . . has not for either party the effect of naturalization." It is included, in substance, in the treaties with Bavaria, Baden, North German Confederation, Würtemberg, Hesse, Austria-Hungary, Sweden and Norway, Haiti, Honduras, Brazil, Costa Rica and Nicaragua. It was also included in the treaties with Ecuador and Mexico, now abrogated.

3 Santangelo (U. S.) v. Mexico, April 11, 1839, Moore's Arb. 2549; Beales (U. S.) v. Mexico, Act of Congress, March 3, 1849, ibid. 2670; Ehlers (U. S.) v. Mexico, March 3, 1849, ibid. 2551; Ryder (U. S.) v. China, Nov. 8, 1858, ibid. 2332; Elliott (U. S.) v. Mexico, July 4, 1868, ibid. 2481 (dictum); Gros (U. S.) v. Mexico, ibid. 2772; Perez (U. S.) v. Mexico, ibid. 2718 (dictum); Adlam (Gt. Brit.) v. U. S., May 8, 1871, ibid. 2553, Hale's Rep., 14; Wilson (U.S.) v. Chile, Aug. 7, 1892, ibid. 2553, 2557. Supra, p. 566, and note 2, Supra.

pressed his intention to sever the tie which binds him to his country, it is a question whether he is entitled, when abroad, to the protection of that country. The United States, on one or two occasions soughtwithout success, it would seem to resist the right of Italy to protect certain Italian subjects, the victims of mob violence, who had declared their intention of becoming citizens of the United States.1 Germany withdrew its protection from a German in Nicaragua, who, it was found, had declared his intention of becoming a citizen of the United States. Before the French-American mixed commission under the convention of January 15, 1880, the declaration of intention was held to be prima facie proof of the absence of an intent to return (“sans esprit de retour") to France, and under the French code, a presumption of expatriation.3 Cockburn is emphatically of the opinion that a person who has declared his intention has, during the probationary period preceding his final naturalization, no claim to the protection of his home government.1

§ 249. Protection of "Declarants."

In the matter of protection abroad, the United States appears from a comparatively early period to have recognized that a declarant who manifests a bona fide intention to complete his naturalization and reside in the United States is in a somewhat different position, at least in a third country, than an ordinary alien.5 A limited protection

1 See quotations from diplomatic correspondence in certain mob violence cases, printed in For. Rel., 1895 and 1896, and reprinted in Moore's Dig. III, 344–353.

2 Claim of George A. K. Morris v. Nicaragua, Mr. Jas. P. Porter, Act'g Sec'y to Messrs. Kennedy and Shellaberger, Jan. 4, 1887, and previous correspondence in Sen. Doc. 287, 57th Cong., 1st sess., 10-22. See also Moore's Dig. VI, 633-634. As Mr. Morris had not yet become an American citizen, U. S. protection was also denied him.

3 Bouillotte (France) v. U. S., Jan. 15, 1880, Moore's Arb. 2652. See statement in Ryder (U. S.) v. China, Nov. 8, 1858, ibid. 2333, that when claimant first sued as British subject, his claim was rejected on the ground of his assumed American character.

4 Cockburn, Nationality, 202. See also J. Hubley Ashton's argument before U. S.Mexican commission of 1868, Moore's Arb. 2701.

5 See also infra, p. 569. Attention has already been called (supra, p. 476) to the privileged position of seamen on American vessels who have declared their intention. After three years' service, following the declaration, they may be admitted to citizen

has in some instances been extended to such persons, and as has already been observed,' passports were issued to them for a short time during the Civil War, and are now issued, under the authority of the Act of March 2, 1907, to those who have declared their intention and have resided in the United States for three years. They are issued only under special circumstances,2 are valid for six months only and in their issuance the Department of State has adhered to its uniform rule that a person who has declared his intention will not be protected in his native country.3 In China and Mohammedan and semibarbarous countries," the declaration of intention, it has been suggested by one or two secretaries of State, may sustain an appeal to the good offices of the diplomatic representative of the United States.

The limited protection which is thus extended in third countries to those who, under certain circumstances, have declared their intention to become citizens of the United States is based upon the realization of their awkward position in being practically unable to look for protection to the government of which they are still nationals, by reason of their declared intention to renounce allegiance to it, and in not yet having acquired the complete right to American protection. It has always been sought to guard against imposition on the United States. On numerous occasions the departure from the United States of a person who had declared his intention, followed by an extended residence or domicil abroad has been construed as an abandonment

ship; and immediately after filing the declaration, they are deemed American citizens for purposes of protection. R. S., § 2174.

1 Supra, p. 501.

2 Rules of the Dept. of State governing issuance of passports to " 'declarants," Nov. 14, 1913. The subject is discussed at greater length, supra, p. 501.

3 Mr. Olney, Sec'y of State, to Mr. Breckenridge, Jan. 27, 1896, Moore's Dig. III, 343 and other instructions there cited. The rule is confirmed by the naturalization treaties cited supra, p. 567. See also Wharton, II, § 175.

4 Mr. Olney, Sec'y of State, to Mr. Denby, Jan. 13, 1897, For. Rel., 1896, 92. But not, said Mr. Olney, if the person was a citizen of a country with which the U. S. had a naturalization treaty, thus excluding such action.

5 Mr. Cass, Sec'y of State, to Mr. de Leon, Aug. 18, 1858, Wharton, II, § 175, p. 359.

See the discussion of the Citizenship Board, H. Doc. 326, 59th Cong., 2nd sess., 21. The board's recommendation as to declarant's passports was carried out in section one of the Act of March 2, 1907.

of his intention to become a citizen.1 As a condition precedent to the issuance of the declarant's passport as authorized by the Act of 1907, it must be shown by the applicant, among other things, that a special and imperative exigency requires his temporary absence and that there has been no neglect in his failure to complete his naturalization. During the present European War, the issuance of "declarants' passports" to natives of the belligerent countries has been completely suspended, and they are issued to natives of other countries with reluctance only.

DOMICIL PLUS DECLARATION OF INTENTION

$250. Koszta's Case.

Reference has been made 3 to the confusion engendered by the arguments of Secretary of State Marcy in sustaining the right of the United States to protect Martin Koszta, in so far as they relate to the effect of domicil and a declaration of intention upon the right to American protection. The reasoning and the dicta of Mr. Marcy subsequently led other secretaries of State to assert rather wide claims of American protection based upon domicil and declaration of intention, but Mr. Marcy's statements must be understood as applying only to the case of Koszta then under discussion, and it may be added that the Department of State has in recent years confined Mr. Marcy's

1 Mr. Marcy, Sec'y of State, to Mr. Fay, March 22, 1856, Moore's Dig. III, 337; Mr. Blaine, Sec'y of State, to Mr. Hicks, May 8, 1890, For. Rel., 1890, 695; Mr. Hay, Sec'y of State, to Mr. Conger, Feb. 15, 1902, For. Rel., 1902, 222. See citations to instructions of Secretaries Marcy and Bayard in Wilson (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 2555. See also Perez (U. S.) v. Mexico, July 4, 1868, ibid. 2718; Kern (U. S.) v. Mexico, ibid. 2719 and cases cited, p. 2720.

2 See the rules issued November 14, 1913, in which other special conditions which must be fulfilled, are set forth.

4 The case is fully presented, with the notes printed at length, in Moore's Dig. III, § 490; S. Ex. Doc. 1, 33rd Cong., 1st sess.; 44 St. Pap. 961 et seq. See also Wharton, II, §§ 175, 198; Cockburn, 118-122; Lawrence's Wheaton (2nd ed. 1863), 176, 229; Hall, 5th ed., 242; Morse, op. cit., 6, 70; Moore, American diplomacy (New York, 1905), 194-199; Wolfman in 41 Amer. Law Rev. 509. We shall confine our statement of the Koszta case to the facts which relate to the questions of citizenship and protection.