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THE TEMPORARY PROTECTION OF DOMICILED ALIENS DECLARING AN INTENTION TO BECOME AMERICAN CITIZENS

a

$396. Thrasher's Case. Koszta's Case.

2

From the language of Mr. Webster, Secretary of State, in his report on Thrasher's Case, December 23, 1851,1 and from that of Mr. Marcy, Secretary of State, in his note of September 26, 1853, to the Austrian Chargé d'Affaires, in the Martin Koszta Case, there developed in the United States confusion of thought, manifest even in utterances emanating from the Department of State, as to the exact significance of domicile as the basis of the right of diplomatic protection.3 Both of these Secretaries of State were supposed to have been committed to the doctrine that domicile afforded a criterion of national character; and to Mr. Marcy was imputed the intimation that a declaration of intention to become an American citizen afforded some basis for the according of protection.1

Professor Moore has removed cause for misapprehension concerning both cases. He has shown that with respect to Thrasher's Case, Mr. Webster "referred to something which, although it did not necessarily presuppose the existence of domicile, went in some respects beyond it"; and that subsequently, upon fuller information, in a paper touching the same case, he banished the

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1 Senate Ex. Doc. No. 5, 32 Cong., 1 Sess., Moore, Dig., III, 818.

2 House Ex. Doc. 1, 33 Cong., 1 Sess., 30, Moore, Dig., III, 824.

3 Statement in Moore, Dig., III, 817.

Mr. Frelinghuysen, Secy. of State, to Mr. Wallace, Minister to Turkey, March 25, 1884, and April 8, 1884, For. Rel. 1884, 551, 560, Moore, Dig., III,

339.

Declared Mr. Bayard, Secy. of State, to Mr. Mackey, Aug. 5, 1885: "The criterion by which Koszta's and Burnato's cases are to be measured in examining questions arising with respect to aliens who have declared, but not lawfully perfected, their intention to become citizens of the United States, is very simple.

When the party, after such declaration, evidences his intent to perfect the process of naturalization by continued residence in the United States as required by law, this Government holds that it has a right to remonstrate against any act of the Government of original allegiance whereby the perfection of his American citizenship may be prevented by force, and original jurisdiction over the individual reasserted." Wharton, Dig., II, 359-360, Moore, Dig., III, 847.

5 Moore, Dig., III. 817, where the same writer adds: "The early published report in Thrasher's Case related to the question whether he was entitled to the intervention of the United States, in respect of his arrest, sentence, and imprisonment in Cuba on a charge of complicity in the Lopez expedition of

suggestion that the acquisition of a foreign domicile involved expatriation, or deprived the individual of the protection of his own government. Respecting the position of Mr. Marcy in the Koszta Case, the same writer has declared :

First of all, it is seen that the supposition that Mr. Marcy held that Koszta's declaration of intention gave him an American character and a claim to the protection of the United States is not only destitute of foundation, but is directly opposed to his repeatedly expressed opinion. He referred to the declaration of intention merely as an evidence of domicile. In the second place, there likewise disappears the supposition that he held that a domiciled alien, even where he had made a dec laration of intention, was entitled to the same protection abroad as a citizen of the United States, or yet to protection against the claims of the country of his original allegiance lawfully asserted, either there or in a third country. In the third place, it appears by Mr. Marcy's instruction to Mr. Marsh, of Aug. 26, 1853, that the claim that Koszta had at the time of his seizure an American character was based, in the first instance, exclusively upon his having been duly admitted to American protection, according to the recognized usage in Turkey.2

1850 It appeared that he had taken out letters of domiciliation in Cuba, and there was reason to believe that he was also domiciled in the island. The process of obtaining such letters involved the taking of an oath of allegiance, which it was thought might have had the effect of making him a Spanish subject and dissolving his allegiance to the United States. But, even assuming that this was not the case, Mr. Webster argued that if he was domiciled in Cuba he was, as a permanent resident, peculiarly subject to the operation of the laws there, and could not ask the United States to intervene to prevent the imposition of any penalties which he might justly have incurred by the violation of those laws."

1 Moore, Dig., III, 819, citing also Mr. Webster's instruction to Mr. Sharkey, of July 5, 1852, conveying his final opinion on the question of domiciliation, and contained in the summary of the argument on domicile by Mr. J. H. Ashton before the Mexican-American Commission, Convention of July 4, 1868, Moore, Arbitrations, 2701.

2 Moore, Dig., III, 843-844. Concerning the Koszta case and interpretations thereof, see documents, id., III, 820-854.

The facts in the Martin Koszta Case were the following: Koszta, a Hungarian Revolutionist in the movement of 1848-1849, fled from Austria and took refuge in Turkey, from which State his extradition was vainly sought. With other refugees he was, however, confined at Kutahia, but finally released, with the understanding of Austria that they should leave the country. This banishment Austria accepted as a substitute for extradition. By reason of his having left Austrian territory without the consent of the Government and with an intention never to return thereto, he came under the operation, according to Mr. Marcy, of the Austrian statute so as to be regarded as an unlawful emigrant subjected to loss of all civil and political rights. Koszta came to the United States, where on July 31, 1852, he declared his intention to become an American citizen. After a residence of one year and eleven months, he returned to Turkey on account of alleged private business of a temporary character, and thereupon sought to place himself under the temporary

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§ 397. The Act of March 2, 1907.

The Act of March 2, 1907, authorized the Secretary of State to issue, at his discretion, a passport to a person not a citizen of the United States who had made a declaration of intention to become such a citizen as provided by law, and had resided in the United States for three years, the document "entitling him to the protection of the Government in any foreign country", provided, that such passport should not be valid for more than six months and should not be renewed, and that it should not entitle the holder to the protection of the United States "in the country of which he was a citizen prior to making such declaration of intention." 1

The law conferring this authority was, however, repealed by an Act of June 4, 1920.2

According to rules issued by the Department of State June 1, 1915, it was announced that passports could not be issued, under the Act of Congress, to declarants who intended to visit their native lands. It was ordered that before a passport should be protection of the American Consul at Smyrna Later the Consul and the American Chargé d'Affaires ad interim at Constantinople extended protection to Koszta, furnishing him with a so-called tezkéréh· a kind of passport or letter of safe-conduct. No objection was made by Austria to Koszta's return to Turkey. While at Smyrna, awaiting, as he alleged, an opportunity to return to the United States, he was seized by lawless men, thrown into the sea, and immediately thereafter taken up by a boat's crew, lying in wait for him, and belonging to the Austrian_warship Huszar, forced on board that vessel, and there confined in irons. The diplomatic and consular representatives of the United States sought in vain from both Turkish and Austrian authorities the release of the prisoner. Thereupon the U. S. S. St. Louis arrived at Smyrna. The Commander, Captain Ingraham, after investigating the case and learning of a plan to take Koszta clandestinely to Austrian territory, demanded his release, and intimated that he should resort to force if the demand were not complied with by a certain hour. No force was used. By agreement the prisoner was delivered to the French Consul-General to be held by him until the United States and Austria should agree as to the disposition of the case. Koszta was ultimately released and returned to the United States.

134 Stat. 1228. See, in this connection, Report on Citizenship of the United States, Expatriation, and Protection Abroad, by J. B. Scott, David J. Hill, and Gaillard Hunt, House Doc. No. 326, 59 Cong., 2 Sess., 19-22.

2 See Act making appropriation for the Diplomatic and Consular Service for the fiscal year ending June 30, 1921, 66 Cong., 2 Sess., Chap. 223.

3 The text of the Rules is contained in American White Book, European War, II, 164-165. These rules were somewhat more rigid than certain others announced by the Department of State, Nov. 14, 1913. Appended to the Rules of June 1, 1915, was the statement that "Passports are not issued to declarants who are natives of countries which are at war, nor to declarants who intend to visit belligerent countries."

Shortly after the outbreak of The World War, it was declared by the Department of State, in instructions to the Embassies and Legations in Europe, that "special consular registration certificates may be issued to wives of persons

issued the following facts should be established to the satisfaction of the Secretary of State: (a) that the applicant had resided in the United States for at least three years as provided by law; (b) that he was not then eligible under the law for final naturalization; (c) that at least six months had elapsed since the applicant's declaration of intention; (d) that the applicant had not previously applied for and obtained a similar passport from the Department; (e) that a special and imperative exigency existed requiring the absence of the applicant from the United States;1 (f) that the applicant had not applied for and obtained a passport from any other government after he had declared his intention to become a citizen of the United States.

While the enactment of the statute indicated no disposition. on the part of the United States to substitute domicile for allegiance as the test of national character for purposes of diplomatic protection in times of peace, save under the exceptional circumstances noted, it is believed that the repeal of the law was altogether desirable.>

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§ 398. Extraterritorial Factories of American Citizens.

The Department of State has been confronted with the problem of determining to what extent the aid of the United States should in the United States who have resided here more than three years and have made declarations of their intention to become American citizens. Such certificates should not describe the holders as American citizens, but should set forth their exact status." Telegram of Mr. Lansing, Acting Secy. of State, Sept. 12, 1914, American White Book, European War, II, 155, 156.

i In this connection it was said that "The burden of proof will, in each case, be upon the applicant to show to the satisfaction of the Secretary of State that there is a necessity for his absence. The statement as to such necessity must be detailed and supported by satisfactory corroborative evidence. Under this rule passports will not be granted to persons who wish to go abroad as commercial travelers."

See, also, Mr. Lansing, Acting Secy. of State, to the American Embassies and Legations in Europe, Sept. 12, 1914, American White Book, European War, II, 155, 156.

In a communication of Feb. 20, 1914, to the American Consul-General at Shanghai, it was declared by Mr. Moore, for the Secretary of State, that the Department of State construed § 1 of the Act of March 1, 1907, as applicable only to cases of declarants who, because of some pressing necessity, were obliged to absent themselves from the United States for a brief period, and not to cases of persons who sought to establish themselves abroad with the intention of making a protracted stay. Mr. Moore had reference to the case of Leo Koeningsberger, a native of Germany, who, some three years after having declared his intention of becoming a citizen of the United States, went to China where he desired to remain for several years and complete his naturalization upon his return. Mr. Moore adverted to the fact also that residence in a foreign country where extraterritorial privileges were enjoyed could not be taken to satisfy the requirements of residence under the naturalization laws of the United States.

be accorded American citizens who have established manufacturing plants with American capital in foreign countries. It has been perceived that in certain instances the transfer to foreign territory of American enterprises with a view to securing benefits of certain preferential features of a foreign tariff law, has rendered such concerns direct competitors in certain markets of American firms in the United States. Thus, in 1910, the Department decided that firms which had removed "all or a part of their plants from the United States to Canada" were no longer entitled to the assistance of the Government so far as their foreign factories were concerned.1 It was recognized, however, that circumstances might justify the extension of governmental assistance to an extraterritorial factory either established or projected by American citizens who made use of American capital. It was declared that where, for example, an established manufacturing enterprise in the United States, exporting its products to foreign countries, found it expedient to meet competitive conditions in a certain foreign market by establishing a branch therein for the purpose of preempting the field and stopping competition, and thus preserving and fostering the main export business for the benefit of which the branch had thus been established, there would seem to be reason for the extension of the good offices and assistance of the foreign service of the United States. It was said that such a case was to be clearly distinguished from one where a foreign branch was a serious undertaking maintained to build up a trade which would compete with the genuine American export trade, "and might even result in making the branch in the foreign country a base for distributing foreign-made goods to third countries in competition with American exports." 2

The distinction thus laid down appears to be important. It reveals the fact that when American enterprise in foreign territory opposes the economic as well as political interests of the United States, the American nationality of the actors is a matter of subordinate consideration. The strength of the equity of those who invoke the extension of the good offices of the United

1 Mr. Knox, Secy. of State, to American Diplomatic and Consular Officers, March 24, 1910, quoting Circular Instruction to Consular Officers, of April 30, 1906, Dept. of State, Circulars Relating to Citizenship, 1916, 30-32. 2 Íd. "In cases of this kind," it was said, "the department must regard the enterprise as essentially foreign from the point of view of international competition, and, therefore, the activities of the diplomatic and consular officers in behalf of the American citizens who are concerned in the establishment of such extraterritorial factories should be limited to matters of courtesy and the supplying of general information only."