a conflict usually raise a question respecting the effect of certain acts or events alleged to have changed the nationality of the individual, rather than an issue concerning his nationality by birth.1

3

§ 349. Acquisition of Nationality by Revolution.

When a colony by process of revolution wins independence and becomes a State, the persons formerly nationals of the parent State who adhere to the new one and continue to reside within its territory may be regarded as becoming automatically the nationals of the latter. Thus, as a consequence of the American Revolution, persons formerly of British nationality, who adhered to the cause of the revolutionists and resided in the territory which they controlled, acquired American nationality when the United States came into being. A privilege of election was, however, accorded. British subjects withdrawing from the United States and so manifesting their adherence to the British Crown, were regarded as never acquiring American citizenship. The Supreme Court of the United States was of opinion that the change of nationality wrought by the Revolution was effected on or about July 4, 1776; and it tested generally, by reference to that date, the timeliness of acts indicative of an election to retain British nationality.3 In England the courts were of opinion

1 Cases of Narcisa de Hammer and Amelia de Brissot, American-Venezuelan Commission, convention of Dec. 5, 1885, Moore, Arbitrations, 2456, 2461; Plumley, umpire, in Stevenson's Case, British-Venezuelan Commission, 1903, Ralston's Report, 438, 442-452; Ralston, umpire, in Brignone Case, ItalianVenezuelan Commission, 1903, id., 710, 715; same umpire in Miliani case, before same Commission, id., 754, 759-760; same umpire in Poggioli case, before same Commission, id., 847, 866.

2 McIlvaine v. Coxe's Lessee, 4 Cranch, 209; Inglis v. Sailor's Snug Harbour, 3 Pet. 99; Mr. Gallatin to Mr. Lowrie, Feb. 19, 1824, 2 Gallatin's Writings, 287, Moore, Dig., III, 294.

"All white persons, or persons of European descent, who were born in any of the colonies, or resided or had been adopted there, before 1776, and had adhered to the cause of independence up to July 4, 1776, were, by the Declaration, invested with the privileges of citizenship." Van Dyne, Naturalization,

272.

3 Thompson, J., in Inglis v. Sailor's Snug Harbour) 3 Pet. 99, 120-126. The learned Justice who delivered the opinion of the Court said in part: "Prima facie, and as a general rule, the character in which the American ante-nati are to be considered, will depend upon, and be determined by, the situation of the party, and the election made, at the date of the Declaration of Independence according to our rule; or the treaty of peace, according to the British rule. But this general rule must necessarily be controlled by special circumstances attending particular cases. And if the right of election be at all admitted, it must be determined, in most cases, by what took place during the struggle, and between the Declaration of Independence and the treaty of peace. To say that the election must have been before, or immediately at the declaration of independence, would render the right nugatory."

1

that the change of nationality took effect with the operation of the treaty of peace concluded September 3, 1783.1

Nationality which results from revolution is a natural consequence of the change of sovereignty brought about by the occupants of the territory of the new State. No affirmative acts are required of such individuals. Their duty of allegiance to the new sovereign arises from the circumstance that it, as the successor of the parent State, may reasonably claim as nationals all who previously owed allegiance to that State, at least while they remain residents of the territory of which the sovereignty has undergone a change. The situation does not resemble that where an individual attempts through his own acts to expatriate himself, and simultaneously to acquire through naturalization the benefits of the nationality of a foreign State.

4

Naturalization

a

§ 350. Definition. Regulation.

Naturalization is the process by which a State adopts a foreigner and stamps upon him the impress of its own nationality. The reasonableness of such action depends upon whether, in the particular case, circumstances have so combined as to warrant the claim that a relationship has been established between the naturalizing State and the individual such that there is due from him to it an obligation of allegiance superior to and inconsistent with any previously due to any other sovereign.

Whether naturalization serves also to confer rights of citizenship depends solely upon the will of the State whose nationality

1 Doe v. Acklam, 2 Barn. & Cresw. 779. With reference to the treaty of peace, the text of which is contained in Malloy's Treaties, I, 586, see also, Story, J., in Shanks v. Dupont, 3 Pet. 242, 247, 248, Moore, Dig., III, 292–293. Also Art. II of the Jay Treaty of Nov. 19, 1794, Malloy's Treaties, I, 591, concerning the right of British settlers and traders within the precincts of military posts within the boundaries of the United States and occupied by British forces, to retain British nationality after the removal of said forces, and the opinion of Mr. Wirt, Atty.-Gen., as to the interpretation of the treaty. 5 Ops. Attys.-Gen., 716, Appendix, Moore, Dig., III, 293–294.

2 "Naturalization is the act of adopting a foreigner, and clothing him with the privileges of a native citizen." Fuller, C. J., in Boyd v. Thayer, 143 U. S 135, 162.

See, also, Report on Citizenship of the United States, by J. B. Scott, D. J. Hill and G. Hunt, House Doc. No. 326, 59 Cong., 2 Sess.; Frederick Van Dyne, Law of Naturalization of the United States, Washington, 1907; Dana's Wheaton, Dana's Note No. 49.

is acquired. That State is free to determine according to its discretion what classes or races of aliens it will accept as nationals and the conditions on which they may become such. It may be noted that until the beginning of the twentieth century the statutory law of the United States offered abundant opportunity for fraud on the part of aliens seeking to acquire American citizenship.2

b

§ 351. Voluntary Individual Action.

The United States has always maintained that a transfer of allegiance, save where it is brought about collectively through the operation of a change of sovereignty over territory, must be a distinctively voluntary act, and that loss of nationality should not be imposed as a penalty, nor a new national status forced as a favor by one government upon a citizen of another. A transfer of allegiance is deemed to possess an involuntary aspect when, without the knowledge or consent of the individual, it is made the legal consequence of his purchase of land, or of his

This is true when naturalization takes place in the United States by virtue of Sec. 1 of the Fourteenth Amendment to the Constitution, which provides that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

2 President Grant, Annual Message, Dec. 5, 1876, For. Rel. 1876, ix, Moore, Dig., III, 298; President Arthur, Annual Message, Dec. 1, 1884, For. Rel. 1884, x, Moore, Dig., III, 299; President Cleveland, Annual Message, Dec. 3, 1888, For. Rel. 1888, I, xvii-xviii, Moore, Dig., III, 300; President Roosevelt, Annual Message, Dec. 6, 1904, For. Rel. 1904, xxxii-xxxiv; opinion of Mr. Justice Brandeis, in United States v. Ness, 245 Ú. S. 319, 324.

But see § 15 of the Act of Congress of June 15, 1906, respecting fraudulent naturalization, and the Diplomatic Instructions and Consular Regulations based thereon, April 19, 1907, For. Rel. 1907, I, 8–9.

The language in the text (save for the proviso) is substantially that of Mr. Bayard, Secy. of State, to Mr. Manning, Minister to Mexico, Nov. 20, 1886, For. Rel. 1886, 723, Moore, Dig., III, 305–306. See, also, Same to Same, April 27, 1887, For. Rel. 1887, 717, Moore, Dig., III, 307; Mr. Fish, Secy. of State, to Mr. Russell, Minister to Venezuela, Feb. 22, 1875, MS. Inst. Venezuela, II, 283, Moore, Dig., III, 303.

It may be observed that through the operation of the treaty between the United States and Spain of Dec. 10, 1898, the natives of the Philippine Islands and Porto Rico were collectively naturalized, and left without means of retaining their Spanish nationality while they remained in those islands.

See cases relative to the ownership of land in Mexico, before MexicanAmerican Commission, Convention of July 4, 1868, Moore, Arbitrations, 2468-2483, especially Case of Fayette Anderson and Wm. Thompson, No. 333, id., 2479, and 2481. Mr. Bayard, Secy. of State, in a communication, to Mr. Manning, Minister to Mexico, April 27, 1887, expressed "dissent from the position that foreigners who have purchased land or had children born to them in Mexico may, from time to time, by a municipal statute, be deprived of their nationality unless they take some affirmative step to preserve it." For. Rel. 1887, 717, Moore, Dig., III, 307.

Compare Mr. Olney, Secy. of State, to Mr. Ransom, Minister to Mexico,

A

residence within the territory of a State.1 No objection is, however, apparent when the granting of land to an alien is made contingent upon his accepting the nationality of the grantor. In such case the transaction is regarded as a voluntary arrangement.2 While the Department of State has been unwilling to admit the principle that a foreign government may denationalize domiciled aliens who fail, within a specified time, to declare an intention to retain their nationality, it has, under certain circumstances, acquiesced in the practice, by advising American residents to make the desired declaration before an American diplomatic or consular representative.3

с

§ 352. Collective Naturalization.

Whenever a State acquires territory from another, the inhabitants of the area transferred, who were nationals of the former territorial sovereign, are collectively naturalized. They are at once subjected to a duty of allegiance to the transferee. The process by which the change of sovereignty is brought about seems to be immaterial.5 If it is effected by a treaty of cession, the

Dec. 13, 1895, For. Rel. 1895, II, 1008, Moore, Dig., III, 307, respecting the refusal of Mexico to extradite one Chester W. Rowe, a fugitive from the justice of the United States.

1 Mr. Webster, Secy. of State, to Mr. Sharkey, Consul at Havana, July 5, 1852, Moore, Arbitrations, 2701, 2703, in which it was declared: "Change of domicil is matter of intention, and, notwithstanding residence in fact, there must be the animus manendi. Change of allegiance, which is manifested by the voluntary action, and usually by the oath of the party himself, ought always to be accomplished by proceedings which are understood on all sides to have that effect. It is certainly just that acts which are to be regarded as changing the allegiance of American citizens, should be distinctly understood by those to whom they are applied, as having that effect; that the practical as well as the theoretical construction of such acts should be unequivocal and uniform, and that no acts should be deemed acts of expatriation, except such as are openly avowed and fully understood."

2 Mr. Hay, Secy. of State, to Mr. Powell, Minister to Haiti, Dec. 1, 1899, For. Rel. 1899, 403, Moore, Dig., III, 310.

3 See abstracts of documents in Moore, Dig., III, 307-310, concerning a discussion with Brazil in 1890.

4 American Insurance Co. v. Canter, 1 Pet. 511, 542; Fuller, C. J., in Boyd v. Thayer, 143 U. S. 135, 162; Tobin v. Walkinshaw, McAllister, 186, Moore, Dig., III, 312; Case of Egle Aubrey, American-French Commission, Convention of Jan. 15, 1880, Moore, Arbitrations, III, 2511. See, also, Van Dyne, Naturalization, 266-332; Oppenheim, 2 ed., I, § 301.

5 "It is a universally recognised customary rule of the Law of Nations that the inhabitants of subjugated as well as ceded territory lose their nationality and acquire that of the State which annexes the territory." Oppenheim, 2 ed., I, § 302. See, also, Hall, 6 ed., 566.

As a consequence of the subjugation by Italy in 1911 of Tripoli and Cyrenaïca, the native population acquired Italian nationality. See royal decree of Nov. 5, 1911, annexing Tripoli and Cyrenaïca, which contained no reference

agreement commonly makes provision that nationals of the former sovereign, residing within the territory and who so elect, may retain their allegiance to it by taking certain specified steps appropriate to that end.1

The treaty may declare that persons whose nationality is to be changed may become citizens as well as nationals of the new sovereign. In the absence of agreement the change of allegiance resulting from the change of sovereignty does not serve also to confer rights of citizenship. The acquisition of them depends to the change of nationality, Arch. Dip., 3 ser., 52d year, tom. 121, p. 181. The same document is contained in Nouv. Rec. Gén., 3 ser., VI, 4. See, also, treaty of peace between Italy and Turkey, Oct. 18, 1912, Arch. Dip., 3 ser., 53d year, tom. 125, p. 16. The same document is contained in Nouv. Rec. Gén., 3 ser., VII, 7. In this connection see "Die Erwerbung Tripolitaniens durch Italien und deren völkerrechtlicher Charakter”, by Dr. G. Diena, Zeit. Int. Recht, XXIII, Part I, 1.

If by occupation a State asserts dominion over a region not deemed to belong to any civilized State or to any country or political entity regarded as capable of possessing title, as in the case of a land inhabited solely by uncivilized people, the impressing of the nationality of the occupant upon the native inhabitants is the natural consequence of the creation of a right of property and control over the territory on which they dwell. Such persons might, therefore, be regarded as possessed of no nationality until subjected to the allegiance of the occupying State.

See, for example, Art. VIII, Treaty of Guadalupe-Hidalgo, Feb. 2, 1848, Malloy's Treaties, I, 1111, and documents respecting its operation in Moore, Dig., III, 319; also cases in Moore, Arbitrations, III, 2509-2511; Art. III, convention with Russia, March 30, 1867, ceding Alaska to the United States, Malloy's Treaties, II, 1523, also documents respecting its operation in Moore, Dig., III, 320; Art. IX of the treaty of peace between the United States and Spain, Dec. 10, 1898, Malloy's Treaties, II, 1693, and documents concerning its operation in Moore, Dig., III, 321-327; also Bosque v. United States, 209 U. S. 91, where the removal of a Spanish resident from the Philippine Islands in 1899, and his absence therefrom until 18 months after the ratification of the treaty of peace, caused him to remain a Spaniard, in spite of no declaration of intention to preserve allegiance to Spain. See Martinez v. Asociación de Señoras, 213 U. S. 20, with reference to a Spanish corporation organized for purely local and charitable purposes in Porto Rico, in which the court declared: "We are of opinion that the cession of Porto Rico by Spain to the United States severed all relations between Spain and this corporation, and that thereafter it cannot be regarded in any sense as a citizen or subject of Spain. Spain has no duty to or power over it. We confine this statement to a corporation like the one before us, formed for charitable purposes and limited in its operations to the ceded territory. A different question (which need not be decided) would be presented if the corporation had other characteristics than those possessed by the one under consideration, as, for instance, if it were a Spanish trading corporation, with a place of business in Spain but doing business by comity in the island of Porto Rico."

2 "Every treaty of cession to which the United States has been a party, with the exception of the treaty of peace of 1898 (30 Stat. L. 1754), with Spain, ceding Porto Rico and the Philippine Islands to the United States, contains a stipulation providing that the inhabitants of the territory ceded may, in whole or in part, become citizens of the United States, either immediately or under certain conditions. The treaty with Russia for the cession of Alaska (15 Stat. at L. 542) excepted uncivilized native tribes' from the privilege of admission to citizenship. Van Dyne, Naturalization, 275-276.

See, also, Art. VI of the treaty between the United States and Denmark of Aug. 4, 1916, U. S. Treaty Series, No. 629, Am. J., XI, Supp., 53, 57.