"In some instances other governments, taking a less broad view, regard the rights of intercourse of alien citizens as not extending to their former subjects who may have acquired another nationality. So far as this position is founded on national sovereignty and asserts a claim to the allegiance and service of the subject not to be extinguished save by the consent of the sovereign, it finds precedent and warrant which it is immaterial to the purpose of this instruction to discuss. Where such a claim exists, it becomes the province of a naturalization convention to adjust it on a ground of common advantage, substituting the general sanction of treaty for the individual permission of expatriation and recognizing the subject who may have changed allegiance as being on the same plane with the natural or native citizens of the other contracting state." Mr. Hay, Sec. of State, to Mr. Wilson, min. to Roumania, No. 14, July 17, 1902, For. Rel. 1902, 910. In the negotiation of a naturalization treaty, no clause could be admitted that implied assent to the imposition by the country of origin upon any class of persons, by reason of their creed, of "such legal disability as may impair their interests in that country or operate to deny them the judicial remedies there which all American citizens may justly claim in accordance with the law and comity of nations." Mr. Hay, Sec. of State, to Mr. Wilson, min. to Roumania, No. 14, July 17, 1902, For. Rel. 1902, 910, 914. In the negotiation of a naturalization treaty no clause could be admitted that implied an obligation to receive and convert into citizens persons falling within any of the categories of prohibited immigrants. Mr. Hay, Sec. of State, to Mr. Wilson, min. to Roumania, No. 14, July 17, 1902, For. Rel. 1902, 910, 914. 2. VOLUNTARY INDIVIDUAL ACTION. § 378. Peruvian decrees. July 31, 1840, the Peruvian Government issued to the prefects and to the superior courts of justice a circular order, saying: "The 168th article of the Constitution provides that foreigners who acquire real estate are ipso facto naturalized." The clerks were therefore forbidden to draw up any instrument for the alienation of the right and title or the usufruct of any lands or real estate to any foreigner, without inserting an express renunciation of his foreign citizenship, as well as an express submission, as a nat uralized Peruvian, to the laws of the country. Besides, wherever, either judicially or extrajudicially, a foreigner, in consequence of a lien or mortgage, acquired an interest in real estate, the official drawing up the sentence or instrument was required to insert like clauses. Mr. Pickett, chargé d'affaires of the United States at Lima, protested against the order, on the ground that, while aliens might be prevented from holding real estate, to treat them as citizens merely because they had bought it was to lay a snare for them. The Peruvian Government defended its action, but afterwards stated that the order would not be construed to operate retroactively. With reference to this concession Mr. Pickett expressed the opinion that the measure would be "abandoned piecemeal" until it became "unobjectionable" or a "dead letter," though it might not be formally repealed. Mr. Pickett to Mr. Forsyth, Sec. of State, No. 19, Aug. 10, 1840; No. 35, opinion on domicili ation. "These and other parts of the proclamation [of October 21, 1817] exhibit very clearly its intent that there was no disMr. Webster's position on the part of the Spanish authorities to exercise the power of forcibly domiciliating foreigners, even if such power were not contrary to all natural law. 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." Mr. Webster, Sec. of State, to Mr. Sharkey, consul at Havana, July 5, See, however, Mr. Seward, Sec. of State, to Mr. Dayton, min. to France, A law by a foreign state providing that all persons visiting such state are to be regarded as citizens or subjects will not be regarded as internationally binding. Mr. Fish, Sec. of State, to Mr. Russell, min. to Venezuela, Feb. 22, 1875, See, to the same effect, Black, At. Gen., 1859, 9 Op. 356. The question of citizenship will not be determined ex parte on the application of a foreign government. (Mr. Bayard, Sec. of State, to Col. Frey, Swiss min., May 20, 1887, MS. Notes to Switz. I. 158.) Question as to The constitution of Mexico, of 1857, Title I., sec. 2, art. 30, provides: "They are Mexicans: III. Foreigners who acquire real estate in the Republic, or have Mexican children; Provided, always, they do not manifest their resolution to preserve their nationality." Various cases involving the interpretation and effect of this provision came before the mixed commission under the convention between the United States and Mexico, of July 4, 1868. The best known of these cases was that of Fayette Anderson and William Thompson, citizens of the United States, who made a claim against the Mexican Government on account of acts committed in 1867. It appeared that in 1863 they went to Mexico and bought land. The case was referred to the umpire, Dr. Lieber, who said: "This law clearly means to confer a benefit upon the foreign purchaser of land, and equity would assuredly forbid us to force this benefit upon claimants (as a penalty, as it were, in this case), merely on account of omitting the declaration of a negative; that is to say, they omitted stating that they preferred remaining American citizens, as they were by birth-one of the very strongest of all ties. The umpire decides that they were citizens of the United States, and that they have a full right, under the convention, to present their claims to the joint United States and Mexican Commission." Moore, Int. Arbitrations, III. 2479–2481. Sir Edward Thornton, who succeeded Dr. Lieber as umpire, followed the same rule of decision in such cases. (Id. 2481-2482.) See the argument of Mr. Ashton, agent and counsel of the United States, on the above-cited provision of the Mexican constitution, and also his reference to the decree of President Comonfort, of February 1, 1856. (Id. 2468-2477.) By the law of February 1, 1856, article 8, it is provided that aliens who have acquired real property in Mexico may become citizens of the Republic by making a declaration of their wish to be naturalized before the civil authorities of the place of their residence, and that, on the presentation of this declaration at the ministry of foreign affairs, accompanied with a proper petition," their letter of citizenship shall be issued to them." Chapter I., article 1, section 10, of the law of May 28, 1886, concerning alienage and naturalization, declares to be Mexicans "aliens acquiring real estate in the Republic, provided they do not declare their intention of retaining their nationality." By the same section the alien is required at the time of acquiring the property to declare "to the officiating notary or judge whether he does or does not wish to acquire the Mexican nationality granted him by section 3 of article 30 of the constitution," and his decision on the point is required to appear in the document. By Chapter III., article 19, it is provided that aliens who come within section 10 may petition the department of foreign relations for their certificate of naturalization within the time allowed for that purpose, namely, one year, and they are required to annex to their petition a document proving that they have acquired the real estate. By Chapter III., sections 14 and 16, the petitioner is required in the course of the process to renounce all submission, obedience and fealty to every foreign government, and especially to that of which he was a subject. For. Rel. 1895, II. 1013, 1015. "The attention of the Department has recently been drawn to a 'Notice to Americans' published by the legation of the United States in Mexico, in August last, and of which the following is a copy: "Americans are hereby notified that, in conformity with Article I., Chapter V., of the Law of Foreigners of June, 1886, foreigners who may have acquired real estate or have had children born to them within (the) Republic will be considered by the Mexican Government as Mexican citizens, unless they officially declare their intention to retain their own nationality and to that effect obtain from the department of foreign affairs a certificate of nationality on or before December 4, 1886. "Said certificates may be obtained for Americans through the legation of the United States, in this city. Applications for same must be accompanied by one dollar for the necessary revenue stamps. "(Signed): Legation of the United States, Mexico, August 20, 1886.' "A copy and a translation of the law in question were transmitted to the Department in Mr. Jackson's No. 241, of the 21st of June last, but as the dispatch contained copies and translations of other Mexican laws, to which specific references were made for the Department's guidance, the provisions of Article I. of Chapter V. of the Law of Foreigners, to which no reference was made, were overlooked, until the notice above quoted, which was not submitted nor communicated to the Department, was subsequently and only incidentally brought to its attention. A comparison of the notice with the law shows that there are certain provisions of the latter to which the notice does not refer; but they do not in any way tend to remove, but rather to increase, the dissent of this Government from the position of Mexico as disclosed in the notice. The law in question, having been adopted for the purpose of denationalizing certain classes of foreigners in that country, unless they take some affirmative action to preserve their nationality, contains a principle which this Government is compelled to regard as inadmissible. H. Doc. 551-vol 3-20 "The United States, while claiming for aliens within its jurisdiction, and freely conceding to its citizens in other jurisdictions, the right of expatriation, has always maintained that the transfer of allegiance must be by a distinctly voluntary act, and that the loss of citizenship cannot be imposed as a penalty nor a new national status forced as a favor by one government upon a citizen of another. Not only is this believed to be the generally recognized rule of international law, but it is pertinent to notice that it was accepted and acted upon by the mixed commission under the convention of July 4, 1868, between the United States and Mexico. The first umpire of that commission, Dr. Francis Lieber, held, and the commissioners subsequently followed his decision, that a law of Mexico declaring every purchaser of land in that country a Mexican citizen unless he expressed a desire not to become so, did not operate to change, against their will, the national status of citizens of the United States who had purchased land in Mexico, but who had omitted in so doing to disclaim an intention to transfer their allegiance. "The notice in question is not interpreted by the Department as an admission by the legation of the defensibleness, on generally accepted principles of international intercourse, of legislative decrees changing the national status of foreigners without their consent. Americans are notified that, unless they do certain things, they will be considered by the Mexican Government as Mexican citizens.' This, it is to be observed, does not assert or imply that the legation acceded to the Mexican position. But in order to avoid any question of this kind hereafter you will take occasion to make known to the Mexican Government that this Department does not regard the publication of the notice above referred to as admitting the doctrine of involuntary change of allegiance, or that the same can be held conclusive upon our citizens; and that this Government is constrained to withhold its of assent from that doctrine, as embodied in Article I., Chapter V., the law referred to.' Mr. Bayard, Sec. of State, to Mr. Manning, min. to Mexico, Nov. 20, 1886. The views set forth in the foregoing instruction were duly communicated See, also, Mr. Manning to Mr. Bayard, Dec. 11, 1886, and Mr. Bayard to By an act of the Mexican Congress of May 30, 1887, the time designated |