3

occupation of towns; 1 the bombardment of coast towns; 2 the blockade of ports and the interruption of commerce; the despatch of punitive expeditions, the declaration of embargoes and the passage of non-intercourse acts, and other forcible measures having in view

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1 E. g., British occupation of Corinto, 1895, For. Rel., 1895, II, 1025, 1032. French seizure of the fort of San Juan de Ulloa, Mexico, 1838. This actually resulted in a declaration of war by Mexico, settled by treaty of peace of March 9, 1839. Alvarez in 3 A. J. I. L. (1909), 298. French seizure of custom-house at Mitylene, 1901, For. Rel., 1901, 529 and 9 R. G. D. I. P., 677. This has been done in Latin-America on several occasions by various powers.

2 British bombardment of Omoa, 1873, 67 St. Pap. 955; U. S. bombardment of Greytown, 1854, Moore's Dig. VII, 112–116.

3 The anomalous remedy known as pacific blockade has been used for the redress of many wrongs besides those arising out of the non-payment of claims. The nature of this extraordinary remedy is best discussed in Hogan, Albert E., Pacific blockade, Oxford, 1908; Ducrocq, Représailles en temps de paix, Paris, 1901; and Staudacher, H., Die Friedensblockade, Leipzig, 1909. Illustrative cases may be found in Hogan, 73 et seq.; Moore's Dig. VII, § 1097, and Tchernoff, op. cit., 238-244. It has on several occasions been used as a measure of reprisal for the non-payment of claims, notably by France against Portugal in 1831 (Hogan, 77; Ducrocq, 100; Tchernoff, 239; Moore's Dig. VII, 136); by France against Mexico in 1838 (Hogan, 85; Ducrocq, 111; Moore's Dig. VII, 136); by Great Britain against Greece in 1850 in the Pacifico, Finlay and Fantome cases (Hogan, 105; Calvo, III, § 1841; 39 St. Pap. 480; Lawrence's Wheaton, 2nd ed., 509; Moore's Dig. VII, 132); by Great Britain against Brazil in 1862 in the Prince of Wales and Forte cases (Hogan, 117; 73 St. Pap. 81 et seq.; Moore's Dig. VII, 137); and by Great Britain, Germany and Italy against Venezuela, 1902-1903 (For. Rel., 1903, 417-439; Hogan, 149; Zeballos in 1 Bull. argentin de dr. int. privé, 145–177). While pacific blockade is a measure of constraint much milder than war, it merges easily into war, if resistance is long-continued; see, e. g., the French blockade of Formosa, 1884 (Hogan, 122; Ducrocq, 129). The United States has always insisted that pacific blockade must not affect the rights of states not parties to the controversy (For. Rel., 1903, 420 et seq.; Moore's Dig. VII, 141); but it is hardly possible to avoid interfering with the commerce of third states, even if vessels of the blockaded country only are seized.

* French expedition against Portugal, 1831, 18 St. Pap. 395, 397; British expedition against Abyssinia, 1867, Bonfils, § 440; Agreement between Great Britain, France and Spain, 1861, for taking of forcible measures against Mexico, Moore's Dig. VI, § 956; Lawrence's Wheaton, 509.

The United States in 1807 passed an embargo act prohibiting the departure of vessels from U. S. ports as a measure of reprisal for Napoleon's Berlin decree of 1806 and the British orders in council. Other embargo acts were passed in the years botween 1807 and 1814. Moore's Dig. VII, § 1008.

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• Non-intercourse Act of 1798 suspended commercial intercourse between U. S. and France and her dependencies. By the Act of 1809, it was made unlawful to import French products. Moore's Dig. VII, § 1099.

retaliation and the exaction of redress.1 An example of a negative reprisal may be found in the instruction to the British minister in Mexico in 1858, making the recognition of the Constitutional Government contingent upon acknowledgment by that Government of liability for certain claims of British subjects.2

It will have been observed that in most of these cases the forcible action undertaken was in fact the establishment of a state of limited war, and in some cases war actually resulted.3

$197. War.

Only in rare instances has a state actually undertaken war in the full sense-in its physical manifestations merely general reprisals—as a mode of redress for the failure to extend local protection to its nationals or for the non-payment of claims. The means of constraint enumerated above have at times assumed the form of hostile belligerent action, but the protecting state has usually endeavored to avoid a construction of its acts which might entail all the legal consequences of war, particularly in its relations with third states. Nevertheless Great Britain's armed expedition against Abyssinia in 1867 on account of the imprisonment and detention of several British subjects has been considered a war measure, and Italy expressly alleged that the principal reason for its declaration of war against Turkey in 1912 was the non-payment of Italian pecuniary claims. It may be remembered that one of the causes of the war of 1812 between the United States and Great Britain was Great Britain's continued interference with American vessels and the removal of American seamen alleged to be British subjects. The claims of citizens of the United States against Mexico for "grievous wrongs perpetrated by Mexico" were recited by President Polk in his special message of May 11, 1846 as one of the causes which required the adoption of war measures.5 Not a few inter

4

1 E. g., the use of naval forces to support threats and ultimatums, supra, p. 449 and Memorandum of Solicitor, 31-33.

2 Lord J. Russell to Sir C. Wyke, Mar. 30, 1861, 62 St. Pap. 237.

* French blockade of Mexican ports in 1838, Hogan, 85, Moore's Dig. VII, 136; French blockade of Formosa, 1884, Hogan, 122.

national conflicts have had their origin in public wrongs to the state arising, however, out of persistent violations of the commercial or other interests of nationals.

This cursory survey of the means of assuring protection to citizens abroad and of exacting redress for a violation of their rights will have indicated the variety of agencies and methods authorized and recognized by international law for the enforcement of the rights of aliens. If these measures of constraint are usually applied by strong against weak states, it is largely because it is in the latter that the treatment of aliens frequently falls below the standard prescribed by international law and civilized custom and because in these states local protective agencies, both administrative and judicial, are often deemed unsatisfactory as guarantees of adequate remedies for defects in the measures adopted for the security of life and property.

PART III

THE OBJECT OF PROTECTION-THE PERSON AND PROPERTY OF CITIZENS

CHAPTER I

CITIZENSHIP THE PRIMARY TITLE TO PROTECTION

§ 198. American Citizenship.

It is now proper to enter upon a study of that branch of the present subject which relates to the legal status and qualifications necessary to the individual to entitle him to protection. While citizenship, as has already been observed, is the primary condition of or title to protection, it will be noted that this principle has numerous modalities and variations. It will be necessary to examine the various classes of persons to whom protection is extended by the government, and the effect upon their right to protection of various legal relations into which they may enter.

Citizenship in constitutional law and citizenship or nationality in international law are not necessarily coextensive terms. Having already discussed the different senses in which the term "citizen" is used and the classes of persons to whom it is applied in the United States,1 attention may now be confined to the international phases of citizenship in its relation to diplomatic protection.2

The principal statutory provisions relating to citizenship in the United States are contained in title XXV, §§ 1992 to 2001, of the 1 Supra, § 12. See also H. Doc. 326, 59th Cong., 2nd sess., p. 43 et seq.

2 No attempt will be made to undertake an exhaustive study of citizenship in the municipal law of the United States. That phase of the subject is discussed in Morse, A. P., A treatise on citizenship, Boston, 1881; Van Dyne, F., Citizenship of the United States, Rochester, 1904; Webster, Prentiss, A treatise on the law of citizenship in the United States, Albany, 1891; Wise, J. S., A treatise on American citizenship, Northport, L. I., 1906 and in H. Doc. 326, 59th Cong., 2nd sess., Washington, 1906.

Revised Statutes, and in the Act of March 2, 1907,1 to which we shall have frequent occasion to recur in discussing the various classes of persons entitled to protection.

Broadly speaking, there are three categories of citizens of the United States those who have acquired citizenship either (1) by birth, or (2) by naturalization, or (3) by annexation of territory.

Prior to the Fourteenth Amendment, the Constitution of the United States did not declare who were and who were not citizens, nor did it define the constituent elements of citizenship. The Fourteenth Amendment, while intended primarily for the negro race, has in fact conferred citizenship upon persons of all other races, "born or naturalized in the United States and subject to the jurisdiction thereof." 3 Citizenship extends also to the foreign-born children of American citizens, with the limitation that the rights of citizenship shall not descend to children whose fathers have never resided in the United States.* Naturalization is another method of acquiring citizenship, and in international relations gives rise to many difficult problems. The power to naturalize foreign subjects was expressly granted by the states to the federal government, and as early as 1790 Congress made statutory provision for naturalization. The principal legislation on the subject is to be found in title XXX (§§ 2165–2174), and §§ 5395 and 5424– 5429 of the Revised Statutes, and in the Act of June 29, 1906, as supplemented by the Regulations of the Department of Commerce (34 Stat. L. 596).5 The internationally important phases of naturaliza134 Stat. L. 1228.

210 Op. Atty. Gen. 382.

3 Fed. Stat. Annotated, I, 785; In re Rodriguez, 81 Fed. Rep. 337, 353; U. S. v. Wong Kim Ark (1898), 169 U. S. 649 (person born in U. S. of Chinese parents). Strict limitations, however, prevail as to the persons capable of naturalization. These persons embrace only "white persons" and persons of African descent. 2 Stat. L. 153, R. S., § 2169; Moore's Dig. III, § 383; Van Dyne, Naturalization, Washington, 1907, 40-53.

4 R. S., § 1993. See infra, § 270; Act of Mar. 2, 1907, §§ 5 and 6, 34 Stat. L. 1229; and Regulations of the Dept. of State, Apr. 19, 1907, For. Rel., 1907, p. 9.

The Act of June 29, 1906 repealed §§ 2165, 2167, 2168 and 2173 of the Revised Statutes. We cannot here undertake a study of naturalization in American municipal law. For this purpose, reference may be made to the Fed. Stat. Annotated, V, p. 200 et seq., and to the Act of June 29, 1906; to "Naturalization laws and regulations," published at frequent intervals by the Dept. of Labor, Bureau of Naturalization