May 8, 1893, the imperial-royal minister of foreign affairs wrote to the
minister of the United States: "The flight of the aforesaid individual
fully proves the suspicion . . that Saul Moerser was entertain-
ing dishonest thoughts when he impatiently clamored for his docu-
ments of identity which were in the safe-keeping of the court, and
that the authorities at Krakau were perfectly justified in refusing
to hand these documents over to Saul Moerser, because they knew
his true character."
In an instruction of June 1, 1893, Mr. Gresham said: In withholding
the evidence of the citizenship of Mr. Moerser, it may be observed
that there is an essential distinction between withholding the papers
from the individual and withholding them from the legation. By
the latter course the legation is deprived of all opportunity to ascer-
tain whether the party is in fact a citizen of the United States by
lawful process and as such entitled to the protection of the legation
to secure him speedy and impartial justice or to defend his rights
under the treaty if infringed." (For. Rel. 1893, 14-15.)

66

In the case of John Benich, a native of Hungary, who was alleged to have obtained his naturalization in the United States without having resided there for five years uninterruptedly, as required by the treaty between the United States and Austria-Hungary, the Austrian Government asked that his certificate of naturalization should be cancelled; and it was suggested that the superior court of Cook County, Illinois, by whom the certificate was granted, should require Benich to show cause why it should not be cancelled. (For. Rel. 1894, 36-38.)

The minister of the United States at Vienna, who had made this suggestion, was instructed to inform the minister of foreign affairs that the Department of State had no powers by any steps of its own to cancel the certificate, but that the matter would be submitted to the court at Chicago, and that, should the court decide that its decree of naturalization was erroneously issued and set it aside, the Department would withdraw the passport which had been issued in reliance upon it. (For. Rel. 1894, 46, 47.)

The treaty of naturalization between the United States and Austria-Hungary of Sept. 20, 1870, “being a contract between equal sovereignties, stipulates that five years' residence in the territory of the one, coupled with naturalization, shall constitute full citizenship to be duly recognized and respected in the territories of the other. Naturalization is a sovereign attribute within the sole competence of the respective parties and each is competent to certify the fact under its own laws. By the laws of the United States a five years' uninterrupted residence is essential to the lawful naturalization of all aliens, save minor children of naturalized parents (such children residing within the jurisdiction of the United States) and honorably discharged soldiers, which latter may be naturalized on proving at least one year's residence.

"While in these exceptional cases the Austro-Hungarian Government may rightly require the facts, there is nothing in the treaty

which can authorize its ex parte municipal action to that end. It rests with the Government of the United States to certify those facts, upon request, if need be, and it is equally incumbent upon this Government to press no case where citizenship may be ascertained to have been conferred and the naturalized Austrian to have quitted the United States within the stipulated term of five years. As for the provisions of Article II., they are clearly intended to authorize the respective governments to apply the penalties in certain specific cases, and the opportunity and obligation to prove the facts necessarily rests with the government which takes advantage of the right conferred. But the facts so to be shown are wholly distinct from any question of citizenship; for the returning offender may be punished according to Austro-Hungarian law for any of the specified acts of nonfulfillment of military duty before emigration, without impugning the validity of his subsequent naturalization in conformity with the laws of the United States."

Mr. Gresham, Sec. of State, to Mr. Tripp, min. to Austria-Hungary, Sept. 4, 1893, For. Rel. 1893, 23, 25.

This instruction related to a case in which a native of Croatia, who had been naturalized in the United States after a seven years' residence, was, while on a visit to his native country, arrested and held for military service, although his passport and certificate of naturalization were submitted, in original and translation, to the local authorities. Subsequently, on the interposition of the American legation at Vienna, he was, by order of the Hungarian minister of defense, temporarily discharged from active service, but the question of finally erasing his name from the rolls was reserved till “full information" should be received as to his United States citizenship. It was with reference to these circumstances that the foregoing instruction was written, in which Mr. Gresham maintained that United States passports were, "on their face, entitled to faith and credit" as prima facie evidence of citizenship, and that if the Austro-Hungarian authorities should "have reason to believe that they are fraudulently held by others than the persons to whom they were lawfully issued, or that the holders have obtained naturalization in fraud of the laws of the United States, or claim privileges of citizenship not granted by the treaty of naturalization between the two countries, the facts should at once be brought to the notice of the Government of the United States through its accredited envoy in Austria-Hungary," so that any doubtful cases of citizenship" might be disposed of “by the cooperative action of the legation and the foreign office."

(4) DISPOSITION OF FRAUDULENT CERTIFICATES.

$ 425.

"Frequent instances are brought to the attention of the Government of illegal and fraudulent naturalization, and of the unauthorized use of certificates thus improperly obtained. In some cases the

fraudulent character of the naturalization has appeared upon the face of the certificate itself; in others, examination discloses that the holder had not complied with the law; and in others, certificates have been obtained where the persons holding them not only were not entitled to be naturalized, but had not even been within the United States at the time of the pretended naturalization. Instances of each of these classes of fraud are discovered at our legations, where the certificates of naturalization are presented, either for the purpose of obtaining passports or in demanding the protection of the legation. When the fraud is apparent on the face of such certificates, they are taken up by the representatives of the Government and forwarded to the Department of State."

President Grant, annual message, Dec. 7, 1874. (For. Rel. 1874, xi.)
Following this passage, President Grant went on to urge that legislation
be adopted to secure the ready cancellation of records of naturaliza-
tion obtained by fraud, so that the individual, after his certificate was
taken from him, might not immediately obtain a fresh duplicate from
the court.

The precedents of the Department of State with regard to the treatment
of the certificate of naturalization in such cases are altogether con-
tradictory. President Grant and Mr. Fish, as is seen by the foregoing
extract, refused to return to the individual the certificate which he
had fraudulently obtained, evidently acting upon the principle that,
as he was not entitled to protection as a citizen, he should not be per-
mitted to carry about with him the discredited evidence of citizenship,
on which he might attempt to obtain or even might obtain a passport
from another legation. At other times the Department has assumed
that the certificate must be returned to him, on the theory (1) that
he has in it a sort of property right of which he can not be deprived,
or (2) that the Executive "can not declare that the man is not a
citizen." (Mr. Sherman, Sec. of State, to Mr. Draper, amb. to Italy,
No. 128, March 22, 1898, MS. Inst. Italy, III. 278.) With regard to
the first ground, it may be observed that the Department does not
hesitate in such case to retain and cancel a passport, which the indi-
vidual has obtained and for which he has paid the usual fee. As to
the second ground, the answer is two-fold. In the first place, the
Executive has in reality repeatedly declared that a person who has
been fraudulently naturalized "is not a citizen," for any purpose of
protection abroad; and, in the second place, this is all that the with-
holding and retention of the fraudulently obtained certificate in such
case amounts to. It does not involve any assumption of power to
cancel or set aside the judicial record, or to invalidate any claim of
citizenship which the individual might afterwards assert in the
United States. On the contrary, it merely deprives him of the means
of continuing to assert a fraudulent claim to protection abroad. It
seems advisable, in any event, to communicate the facts to the proper
court for its information. (Mr. Gresham, Sec. of State, to Mr. Run-
yon, No. 189, Dec. 15, 1894, MS. Inst. Germany, XIX. 171.)
In the case of a person who was naturalized on the ground of service in
the Army of the United States in the war with Spain, but who, as
it appeared, had never so served, a direction was given to procure

and retain his certificate of naturalization. (Mr. Cridler, Third Assist. Sec. of State, to Mr. Donzelmann, No. 27, March 20, 1899, 166 MS. Inst. Consuls, 349.)

A person improperly naturalized is not entitled to a passport

or other

certificate" of American citizenship. (Mr. Bayard, Sec. of State, to Mr. McLane, min. to France, Dec. 8, 1888, For. Rel. 1888, I. 565.)

XI. DOUBLE ALLEGIANCE.

The doctrine of double allegiance, though often criticised as unphilosophical, is not an invention of jurists, but is the logical result of the concurrent operation of two different laws. In the absence of a general agreement for the exclusive application, according to circumstances, of the one or the other of such laws, the condition that actually exists is described by the term double allegiance. An undisputed example of it is furnished by the case of a child who, by reason of his parents being at the time of his birth in a foreign land, is born a citizen of two countries-a citizen of the country of his birth jure soli, and a citizen of his parents' country jure sanguinis. It is true that in such a case a double claim of allegiance potentially may not arise. For instance, the country of birth may not claim the allegiance of children born on its soil to alien parents; or the country to which the parents belong may not claim the allegiance of the foreignborn children of its citizens; or the laws of the two countries, while recognizing both sources of allegiance, may coincide in giving a preference, at least during the infancy of the child, to the one or the other source. But, if the conditions be otherwise, and the double claim actually exists, it is conceded to have a valid foundation. A conflict, however, is obviated by the rule-which is indeed but the practical formulation of the doctrine itself-that the liability of the child to the performance of the duties of allegiance is determined by the laws of that one of the two countries in which he actually is.

Another example of double allegiance may be furnished by the case of an infant whose father emigrates and acquires a new allegiance. In the cases above mentioned it is held that the child on attaining his majority, if the double claim has not sooner been dissolved, has the right to elect which of the two allegiances he will retain; and this election he is required to make.

It is sometimes stated that a double allegiance also exists where a person born in one country afterwards emigrates to and becomes a citizen of another country. That a person in such a situation may be subject to the claims of allegiance in two countries, is in point of fact no doubt true; but it is in point of principle equally true that, when writers place such a case under the head of double allegiance, they at least impliedly hold that the doctrine of voluntary expatriation, as maintained by the United States, is not well founded.

This will the more clearly appear when we discuss, below, the question of expatriation. From the point of view of the doctrine of expatriation, as enunciated by the United States, the man who, voluntarily forsaking his original home and allegiance, acquires a new one, has thereafter but one allegiance-that of his adopted country.

1. FOREIGN-BORN CHILDREN.

(1) ACT OF 1855.

$ 426.

The act of February 10, 1855, 10 Stat. 604, provides that “ persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, That the rights of citizenship shall not descend to persons whose fathers never resided in the United States.” Rev. Stat. § 1993. This section, which incorporates the substance of the act of 1855, reads as follows: "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States."

"If therefore by the laws of the country of their birth children of American citizens, born in that country, are subjects of its government, I do not think that it is competent to the United States by any legislation to interfere with that relation, or, by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist.”

Hoar, At.-Gen., June 12, 1869, 13 Op. 89, 91.

"Every independent state has as one of the incidents of its sovereignty the right of municipal legislation and jurisdiction over all persons within its territory, and may therefore change their nationality by naturalization, and this, without regard to the municipal laws of the country whose subjects are so naturalized, so long as they remain, or exercise the rights conferred by naturalization, within the territory and jurisdiction of the state which grants it.