Natives of Russia and Turkey who become naturalized in the United States, often return to their native countries, concealing their American naturalization because of their liability to punishment for expatriation. In the Notices issued to former subjects of those countries, the Department has included the following provision: "The Department of State holds that a naturalized American citizen of Russian [Turkish] origin who returns to his native country as a Russian [Turkish] subject, concealing the fact of his naturalization in order to evade Russian [Turkish] law, thereby so far relinquishes the rights conferred upon him by his American naturalization as to absolve this Government from the obligation to protect him as a citizen while he remains in his native land." It naturally follows that the Secretary of State, in the exercise of his discretion, may refuse to issue a passport to a man admittedly an American citizen who has concealed or denies his American citizenship.1

$ 343. Decisions of International Tribunals.

In the case of Casanova before the United States-Spanish Mixed Commission of 1871,2 Lowndes, arbitrator, expressed the opinion that if a person desired to protect himself by his citizenship, he must give notice of it and claim the rights he may possess by virtue of his nationality. This was a dictum in connection with the agreement made between the United States and Spain, Feb. 12, 1871, to cover the case of the many Cubans who had gone to the United States, remained just long enough to secure American naturalization, and then returned to Cuba. Spain thus obtained recognition for her contention that such an individual should, in order to claim rights as an American citizen, have given notice of his American citizenship to the Spanish authorities, under penalty of estoppel. The agreement read in part:

to Mr. Hall, May 3, 1869, S. Ex. Doc. 108, 41st Cong., 2nd sess., 202, Moore's Dig. III, 770–771; Mr. Gresham, Sec'y of State, to Mr. Terrell, Minister to Turkey, July 11, 1894, For. Rel., 1894, pp. 733, 735; Mr. Hill, Act'g Sec'y of State, to Mr. Griscom, chargé, No. 345, Feb. 16, 1901, Moore's Dig., III, 771.

1 Memo. of the Solicitor referring to case of J. H. Brown, January 2, 1907, For. Rel., 1907, p. 1079.

2 Casanova (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2571-2.

"The arbitrators shall not have jurisdiction of any reclamation made in behalf of a native-born Spanish subject naturalized in the United States if it shall appear that the same subject-matter having been adjudicated by a competent tribunal in Cuba and the claimant, having appeared therein, either in person or by his duly appointed attorney, and being required by the laws of Spain to make a declaration of his nationality, failed to declare that he was a citizen of the United States; In such case and for the purposes of this arbitration, it shall be deemed and taken that the claimant, by his own default had renounced his allegiance to the United States" (italics ours).

The representation by a naturalized American citizen abroad that he is not an American operates as a bar to recovery upon a claim before a commission having jurisdiction of claims of American citizens. Thus, in the well-known case of Lacoste,2 who permitted himself to be regarded as a French subject in Mexico and presented to the FrenchMexican Mixed Commission, as a French subject, the same claim which he later presented, as a United States citizen, to the United States-Mexican Commission of 1868, Thornton, umpire, expressed the opinion that "by such conduct. . . he forfeited his right to consideration by this commission."

Similarly, the birth of the claimant in the United States, of French parents, followed by his removal while still a minor, to Mexico, establishing a commercial house there and presenting a claim as a French citizen to the French-Mexican Mixed Commission was held to estop

1 Moore's Arb. 2562. Notice of citizenship was considered necessary in order to maintain a claim for violation of rights attaching to such citizenship in the case of J. O. Wilson, No. 121, Delgado, No. 31, and by Potestad, arbitrator for Spain, in the case of Zenea, Moore's Arb. 2571. In the latter case, Potestad held that the possession even of a passport from the Cuban Republic designating him as a United States citizen coupled with his own silence during his long imprisonment does not constitute notice. The failure to give notice does not seem to have operated as a bar to a claim for the appropriation of property (in the Zenea case, the taking of money; in the Wilson case, Moore's Arb. 2454, for the seizure of property), although in the Wilson case it did bar a claim for the use of property by Spain. Lewenhaupt, umpire, held that the concealment of citizenship (in the Wilson case for over 51 years) by a claimant does not forfeit his right to appear before the commission as an American citizen, although, as stated, it bars a claim for the use of property during the period citizenship was concealed.

2 Lacoste (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2561. See also dictum in Canevaro (Italy) v. Peru, April 25, 1910, 6 A. J. I. L. (1912), 746, 747.

him from asserting American citizenship, especially where both by French and Mexican law he was considered a citizen of France.1

It has already been observed that a number of countries require that their citizens abroad register themselves at their legation or consulate. Thus Belgium, Italy, Spain, Portugal, France, Mexico, and now by the act of 1907, the United States, require that citizens abroad register their citizenship periodically at the nearest national consular office. Whether the failure to comply with these requirements would operate to forfeit protection is open to question, although it would undoubtedly constitute an important factor, among others, in determining the citizen's right to protection. Pradier-Fodéré, as already noted, denies that the mere failure to comply with a formality of this kind can forfeit such an important and vital right as that of citizenship and its incidental rights. Similarly, certain foreign countries have required that aliens register their foreign nationality with local authorities in order to acquire the benefit of the rights of foreigners. This has usually taken place in countries frequently disturbed by revolutionary troubles, such as the Latin-American countries, and particularly Salvador, Guatemala and others. As will be noted hereafter, the United States and other countries have declined to consider the rights of their citizens to be dependent upon compliance with a formality of this kind.

Mexico in its constitution of 1857 provided that aliens acquiring real estate in Mexico became Mexican citizens, unless a contrary intention was manifested. In the United States-Mexican Mixed Claims Commission of 1868, a number of claims were presented by American citizens who had purchased Mexican real estate and had failed to declare their intention to retain American citizenship. Lieber, Umpire, in one such case,2 in declining to consider such omission as a forfeiture of citizenship, expressed himself as follows:

"Citizenship . . . is too weighty a matter to be lost or gained by mere implication or omission of a comparatively trifling act, or the registering of a mere declining of a benefit, which the coupling of

1 Gautier (U. S.) v. Mex., July 4, 1868, Moore's Arb. 2450.

Elliott (U. S.) v. Mex., July 4, 1868, Moore's Arb. 2481; the same opinion in Anderson and Thompson v. Mexico, American Docket, No. 333, Op. I, p. 270, Moore's Arb. 2480.

Mexican citizenship with acquisition of land was undoubtedly intended to be."

Thornton, who succeeded Lieber as umpire of that commission, in numerous other cases1 held that the requirement of the constitution that the holding of land involved Mexican citizenship is permissive and not obligatory and that the failure of claimants to avail themselves of that permission was sufficient proof that they did not wish to do so.

Foreigners, it seems, were required by Mexican law to take out a letter of safety, carta de seguridad. Thornton, umpire of the 1868 commission, considered that the failure to take out such a letter could not forfeit citizenship.2 The fact that an American citizen took out a carta de seguridad as a citizen of Chile was considered by Umpire Thornton (in a dictum) 3 not to deprive the claimant of his American. citizenship, although it might have afforded the United States government a ground to refuse him its protection.

In certain cases decided by the Commission under the Convention of July 4, 1831 with France, the misconduct of a neutral in endeavoring to mask the property of an enemy by commingling it with his own, so as to evade capture and condemnation was punished by a forfeiture of his national claim, as a neutral, to immunity from capture and confiscation. On the other hand, the colorable transfer of vessels from the American to the British flag during the Civil War, with the purpose of evading capture by the Alabama and other Confederate cruisers was held by both courts of Alabama claims not to forfeit their right to American protection.5

FRAUDULENT AND EXORBITANT CLAIMS

§ 344. Claims against United States.

A false, fictitious, or fraudulent claim against the United States when made with knowledge of its fraudulent character is punishable

1 Opinions quoted and cases cited in Moore's Arb. 2482.

2 Smith Bowen (U. S.) v. Mex., July 4, 1868, No. 442, American Docket, I, 156-214, cited in Moore's Arb. 2482.

3 Pradel (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2543-45.

4 Moore's Arb. 4479.

Texan Star, Stevens & Co. v. U. S., Moore's Arb. 2378, 4653, 4673.

by imprisonment at hard labor from one year to five years, or fine from one thousand to five thousand dollars, according to § 5438 of the Revised Statutes, which specifies the character of the acts which shall be considered as coming within the provisions of the section. In the Court of Claims Act (Revised Statutes, § 1086) which has now become § 172 of the new judicial code (36 Stat. L., I, 1141), it is provided that

"any person who corruptly practices or attempts to practice any fraud against the United States in the proof, statement, establishment, or allowance of any claim . . . shall ipso facto forfeit the same to the government."

The Court of Claims upheld the terms of the statute in the case of Furay.1 Under the Abandoned or Captured Property Act, in which loyalty was a jurisdictional fact, the Court of Claims held that the concealment of disloyalty on the part of a claimant is such "fraud, wrong or injustice" against the United States as will entitle the government to a new trial under the provisions of the Act of June 25, 1868.2

§ 345. Claims against Foreign Governments.

The United States has on a number of occasions been made the victim of fraud in presenting claims against a foreign government. Where the fraud is discovered in advance the Department of State will of course decline to press the claim against the foreign government. Secretary of State Seward ably expressed the practice of the Department in a note to the British minister on May 30, 1862:

"Nations cannot afford to have the intercourse which the interests of their citizens require to be kept open, subjected to the annoyances and risks which would result from the admission of fraud or duplicity into such intercourse. It has therefore become a usage, having the authority of a principle, in the correspondence between enlightened governments, in relation to the claims of citizens or subjects, that any deception practiced by a claimant upon his own government in regard to a controversy with a foreign government, for the purpose of enhancing his claim, or influencing the proceedings of his government, forfeits all

1

Furay v. The United States, 34 Ct. Cl. 171. See also Act of the Hawaiian government, March 16, 1895, for the judicial investigation of claims, parag. 7, 87 St. Pap. 1230-1231.

2 Tait v. The United States, 5 Ct. Cl. 638.