of enemy vessels to subjects or the flag of neutral states either shortly before or during war. Before the Declaration of London, which has been ratified by but few of the signatories, the practice of maritime powers differed greatly. According to Anglo-American practice such a transfer to a neutral flag was recognized as valid, provided: (1) it was bona fide, (2) "was not effected in a blockaded port or while the vessel was in transitu," (3) the vendor did not retain an interest in the vessel or did not stipulate a right to recover or repurchase the vessel after the conclusion of the war, and (4) "the transfer was not made in transitu in contemplation of war." According to the French and Russian practice, a transfer of flag effected after the outbreak of war is considered illegal, and not merely presumed to be invalid.2 The Declaration of London in articles 55 and 56, provides a series of rules with a view to furnish presumptions and criteria as to the legitimacy of the transfer.3

The courts of Alabama claims held that a colorable transfer of an American vessel to the British flag, in order to rescue her from the hands of the captors, did not forfeit the protection of the United States.1

Every country has a great interest in the proper use of its national flag abroad, both on vessels and elsewhere. The United States has on more than one occasion successfully protested to foreign countries. against the abusive display of the American flag on property or vessels not American, and on its own part has endeavored to prevent every improper use of the flag. The government may of course decline to protect a vessel wrongfully flying the American flag.

5

6

A vessel of the United States may forfeit its right to American protection by entering into the service of a foreign power as an auxiliary

1 Oppenheim, II, § 91, p. 118. This question is concisely presented by Oppenheim, with the decisions in support and the provisions of the Declaration of London.

2 A good collection of prize cases in which the question of transfer of flag was involved, is presented in Russell T. Mount's article in 15 Columbia L. Rev. (1915), 327-333. Supra, p. 255. See also J. W. Garner in 49 Amer. L. Rev. (1915), 321-348. The details are set forth in Oppenheim, II, § 91 and in the works by Bentwich and Cohen on the Declaration of London.

4 Tyler v. U. S., No. 4438, class 1, Moore's Arb. 4673.

'Moore's Dig. II, 135–138.

Case of the Itata, Mr. Gibbs to Sec'y Evarts, Mar. 19, 1879, For. Rel., 1879,

to military or naval operations.1 So the acceptance of a privateering commission from a foreign country by an American citizen and the display of the foreign flag on his vessel will serve to deprive him of American protection for all purposes connected with the privateering expedition in which he is engaged. Any violation of the neutrality laws of the United States or of his neutrality as an American citizen, may operate to deprive an American citizen of his right to American protection.3

1 Mr. Fish, Sec'y of State, to Mr. Bassett, Sept. 15, 1869, Moore's Dig. II, 1073. 2 Medea and Good Return (U. S.) v. Ecuador, Nov. 25, 1862, Moore's Arb. 2736. Infra, § 358 et seg.

3

CHAPTER II

PROOF AND EVIDENCE OF CITIZENSHIP

210. By Whom Determined.

It is asserted as a principle that among the attributes of sovereignty is the right of a government to determine the conditions and qualifications of citizenship and to decide who shall be deemed citizens.1 The United States has denied the right of a foreign government to impeach the documentary evidence of citizenship furnished to an American citizen by this government, but it has admitted the right of a foreign government to traverse the evidence of the passport by showing fraud in its procurement or illegal naturalization or forfeiture of the right to protection.2 However, the final determination of the validity of the citizenship is reserved exclusively for the United States.3 There has been some expression of opinion in the Department of State to the effect that the presentation of a claim, on behalf of a claimant alleged to be an American citizen, to an international commission, should preclude all examination by the commission into the citizenship of the claimant, on the ground that the Department's determination should be considered final. International commissions, however, have freely assumed the right to pass upon the citizenship of a claimant, testing it in first instance by the municipal law of 1 Wilson (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 2554; Mr. Gresham, Sec'y of State, to Mr. Tripp, Sept. 4, 1893, For. Rel., 1893, 23-24. Supra, p. 7. II,

2 Mr. Adee, Act'g Sec'y of State, to Mr. Lee, Aug. 13, 1907, For. Rel., 1907, 589-590; Mr. Uhl to Mr. Hengelmüller, May 8, 1895, For. Rel., 1895, I, 10.

Mr. Bayard, Sec'y of State, to Mr. McLane, Feb. 15, 1888, For. Rel., 1888, I, 511. * Sec'y Blaine appears also to have taken this view. Mr. Blaine to Mr. Durant, August 22, 1881, MS. Dom. Let., Van Dyne, Citizenship, 107. Several Solicitors and Assistant Solicitors appear to have supported Mr. Blaine's view. Prof. Basdevant criticizes some of the decisions of the Venezuelan Arbitrations of 1903 in which the Umpire denied the right of a claimant to the citizenship of the country which supported his claim. 5 R. D. I. Privé (1909), 41–63, particularly the Corvaia case (Italy), p. 45, and the Flutie case (U. S.), p. 48.

the claimant's country. For example, when Sir Edward Thornton became umpire of the mixed claims commission between the United States and Mexico under the treaty of July 4, 1868, he acted on the principle that the term "citizenship" in the convention meant citizenship according to the law of the contracting parties, and declined to recognize a declaration of intention or domicil, singly or together, as conferring citizenship.2

3

In the protocols for the submission of claims to arbitration, it is occasionally provided that the defendant country may contest the validity of the citizenship of the claimant. The frequent occurrence of cases of dual nationality, by which a claimant, owing to a conflict of laws, becomes a citizen of both the claimant and the defendant country according to the municipal law of each, has resulted in a general preference by international commissions in favor of the law of the defendant country, so as to preclude the possibility of a country being made a defendant to an international claim by a person who by its municipal law is considered its own citizen. In a few cases, international commissions have essayed to determine a claimant's citizenship by rules of international law, rather than by the municipal law of either the claimant or defendant country, as, for example, in cases where trade domicil has been held to confer nationality for international purposes. 5

1

Ancira, Attorney (Mexico), v. U. S., July 4, 1868, Moore's Arb. 2453; De Acosta y Foster (U. S.) v. Spain, Feb. 12, 1871, ibid. 2462. As we shall see, certificates of naturalization have been frequently impeached by claims commissions. Infra, § 226.

2 Zamacona, Mexican commissioner, acted on the same principle. Moore's Arb. 2720.

3 Protocol of Feb. 12, 1871, between U. S. and Spain, Art. 5, Malloy's Treaties and conventions, II, 1663. A protocol added to the convention of Nov. 1, 1895, for the settlement of British claims against Nicaragua, provides "that Her Majesty's Government will not support the claim of any person before the commission unless they consider him to be a British subject, and on their part the Nicaraguan Govern ment will accept such status as duly established, subject to the production of proof that the claimant is not entitled to it, in contemplation of English Law." For. Rel., 1896, 307.

4 § 253 et seq.

See, e. g., Laurent (Gt. Brit.) v. U. S., Feb. 8, 1853, Moore's Arb. 2675 and infra, §§ 245, 246.

PROOF OF CITIZENSHIP

$211. Methods of Proof.

Citizenship being ordinarily an essential condition of protection, it will be of interest to examine the various methods by which citizenship may be proved. A passport, for example, as one of the most usual evidences of citizenship, is in its terms a statement that the holder is a citizen of the United States. The Department of State, therefore, requires an applicant for a passport clearly to establish his citizenship.1

The principal methods of proving American citizenship are by evidence of birth or of naturalization in the United States. Birth is usually proved by affidavit, and international commissions generally accept this as sufficient in the absence of dispute or suspicious circumstances.2 Birth certificates, duly authenticated by the states issuing them, are accepted by the Department of State as evidence of American citizenship. Unfortunately, there are still many states which have no adequate birth registration laws. In the circular instruction of April 19, 1907, providing for the registration in consulates abroad of women, the widows or divorced wives of aliens or of American citizens, who desire to resume or retain American citizenship, as the case may be, it is prescribed that if the woman is a native citizen, documentary evidence of such citizenship need not be required unless the consul entertains doubts as to the statements made to him, in which case a certificate of birth or the affidavit of a credible witness known to him may be demanded.

The best evidence of naturalization is the judicial record of naturali

1 As will be seen, however, it is not obligatory to issue a passport to every citizen who desires it, so that the rejection of an application is not necessarily a denial by the Department or its agents of the American citizenship of the person whose application is rejected.

2 Wilkinson (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2532. But in Suarez (U. S.) v. Mexico, ibid. 2449, the oath as to birth and certificate of baptism were held by Thornton, as insufficient proof, on the ground that identity of claimant with child baptized was not proved. In Barco and Garate (U. S.) v. Mexico, ibid. 2449, he held that birth in U. S. of alien parents, followed by departure from U. S. while under age, did not establish U. S. citizenship. This appears clearly a mistake of law, at least according to U. S. municipal law.