zation or an exemplified copy thereof. Naturalization may be proved by parol evidence only in case the record has been lost or destroyed.1

2

A passport issued by the Department of State has been held by municipal courts as incompetent judicial proof of citizenship, but, as will be noted, internationally, the United States has insisted upon its passport being accepted as prima facie evidence of citizenship.3

When satisfactory evidence is furnished that the record has become lost, destroyed or mutilated or could not for good and sufficient reasons be found, it has been held that secondary evidence to prove naturalization will be admitted. Municipal courts have on several occasions construed the facts of long residence in the United States and the exercise of the voting privilege as tending to show naturalization and citizenship.5 International commissions have not been so liberal.6

As the judicial branch of the government is charged with the duty of naturalizing aliens and is invested with appropriate powers for determining matters of fact which are essential to decide the question of naturalization, the Department of State has uniformly held that it is beyond its power to assert that a certain person is a naturalized citizen of the United States in the absence of judicial proof of the fact. Thus where a record of naturalization has been lost or destroyed, it is for the courts to hear the evidence of the loss and remedy it.8

It has been uniformly held that proof of a declaration of intention is not sufficient evidence of naturalization.9

1 Green v. Salas, 31 Fed. Rep. 106. See other cases in municipal courts cited in Moore's Dig. III, §§ 420, 421, in H. Doc. 326, 59th Cong., 2nd sess., 127-130, and in Van Dyne, Naturalization, 129–133.

2 In re Gee Hop, 71 Fed. Rep. 274; Urtetiqui v. D'Arcy, 9 Peters, 692; Edsell v. Mark, 179 Fed. Rep. 292.

3
3 Infra, p. 517.

4 Mantin (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2540; Steinthal, ibid. 2540; Wolfe, ibid. 2539; Van Dyne, Naturalization, 132; Moore's Dig. III, § 421. The Department of State occasionally accepts secondary evidence.

5 See cases cited in Moore's Dig. III, 497–498.

6 Infra, p. 491.

7 See communications of Sec'y of State Blaine printed in Moore's Dig. III, 498. Mr. Bayard, Sec'y of State, to Mr. Ferguson, ibid. 498. For purposes of protec tion, the Department occasionally accepts secondary evidence.

• Infra, § 247.

$212. Rules of International Tribunals of Arbitration.

International commissions acting under special treaties or rules of their own often provide for special methods of establishing citizenship, and have had occasion to pass upon various forms of evidence of citizenship. In each case, it is important to consult the treaty or protocol of arbitration under which the commission is acting. The domestic commission under the convention with France of July 4, 1831 held that the executive determination of the fact of citizenship did not authorize the commission to deny the privileges of citizenship to an American who had neither renounced them in terms, nor by assuming a hostile attitude towards a foreign nation, had authorized that nation to treat him as its enemy.1

The claims commission under the treaty of July 4, 1868 with Mexico, passing upon the claims of citizens of either country against the other, issued an order which required native citizens to state the place and date of their birth. Various forms of evidence of citizenship were presented to this commission, which resulted in some interesting decisions concerning proof of naturalization and citizenship. For example, a certificate from the Governor of a Mexican State attesting claimant's citizenship, supported by other evidence, was accepted as proof of citizenship, but certificates executed by minor officials were rejected.3 Similarly, recognition of citizenship by a consul or a certificate from a consul, or aid furnished by the American minister,5 were held each as insufficient evidence of citizenship.

1 Kane's notes, Phila. 1836, p. 16.

2

Garay (Mexico) v. U. S., July 4, 1868, Moore's Arb. 2532.

3 Warner (Mexico) v. U. S., ibid. 2533 (sub-political chief of a Mexican district); Wolfe (U. S.) v. Mexico, ibid. 2539 (passport and certificate from a Mexican colonel of infantry). Of course, claimant's declarations, supported only by persons interested in the claim, were rejected as proof. Spencer (U. S.) v. Mexico, ibid. 2768 (note). To effect that opinions of witnesses are incompetent to prove citizenship, see Valentiner (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 564.

4

Brockway (U. S.) v. Mexico, July 4, 1868, ibid. 2534; Goldbeck (U. S.) v. Mexico, ibid. 2507. See also Gilmore (U. S.) v. Costa Rica, July 2, 1860, ibid. 2539.

5 Tipton (U. S.) v. Mexico, July 4, 1868, ibid. 2545. But such official recognition by several U. S. ministers and the minister of foreign affairs combined with circumstantial evidence of naturalization and direct evidence of a declaration of intention was considered by Thornton, Umpire, as proof of claimant's citizenship. Pradel (U. S.) v. Mexico, ibid. 2543. Recognition of claimant's American citizen

Service of a claimant in the Mexican navy was regarded as a method of electing Mexican citizenship, in view of a Mexican law which considered such service as a form of naturalization.1 But service in the United States military forces, while requiring an oath of allegiance during the term of service, did not entitle a claimant to appear as an American citizen.2 In the absence of proof to the contrary, service on an American merchant vessel was held to create a presumption of American citizenship.3

4

The mere exercise of the voting privilege in a state has. been held by international commissions neither to confer American citizenship, nor to deprive a foreigner of his alienage.5

Enrollment in the register of a Spanish consulate in Venezuela, it appearing that such registration was only granted after proof of Spanish nationality, was accepted by the umpire of an international commission as prima facie evidence of Spanish nationality.

The United States-Mexican commission of 1868, before Thornton became umpire, also held that a declaration of intention, together with an established domicil in the United States, made claimant a citizen within the meaning of the protocol conferring jurisdiction over claims of "citizens" of the United States.7

ship by Mexican and U. S. authorities obviated the non-production of naturalization papers in Remer et al. (U. S.) v. Mexico, Act of Mar. 3, 1849, ibid. 3343.

1 Martin (U. S.) v. Mexico, ibid. 2467, and other cases there cited. But an artisan repairing gun carriages was held not in the military service. Cole (U. S.) v. Mexico, ibid. 2463.

2 Pagliari (U. S.) v. Mexico, July 4, 1868, ibid. 2468. So held as to service of foreigner in the U. S. merchant marine. Shields (U. S.) v. Chile, Aug. 7, 1892, ibid. 2557. But see supra, p. 477.

* McCready (U. S.) v. Mexico, July 4, 1868, ibid. 2537.

4 Gatter (U. S.) v. Mexico, ibid. 2547 (even if accompanied by twenty years' residence). Pugos (U. S.) v. Mexico, ibid. 2548. See also Gerrard's case, 43 Ct. Cl. 67. Sharpe (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2548, Hale's Rep. 15. But proof of claimant's having voted as an American citizen was held to cast doubt on his Mexican citizenship, and to offer a presumption against his Mexican citizenship which must be rebutted. Barrios (Mexico) v. U. S., July 4, 1868, ibid. 2535. See also the still stronger cases of Schaben (U. S.) v. Mexico, ibid. 2541, and Cabazos (Mexico) v. U. S., ibid. 2543, Lieber, Umpire.

Esteves (Spain) v. Venezuela, April 2, 1903, Ralston, 922.

7 Wadsworth, U. S. commissioner, and Lieber, umpire, in Sprotto (U. S.) v. Mexico, Moore's Arb. 2717. But Thornton, when he became umpire, declined to follow

The effect of a provision of the Mexican constitution of 1857, according to which foreigners became Mexican citizens by the purchase of real estate in Mexico, unless a contrary intention were expressly manifested, was construed in a number of cases coming before the mixed claims commission under the treaty of July 4, 1868. The provision was held merely permissive and designed to confer a benefit, making Mexican citizenship optional with the alien, and not obligatory and intended to impose a disability, so as to force Mexican citizenship upon an alien.1 Nor did the purchase of land in territory not open to alien purchase serve to prove citizenship.2 But a request for permission to become a Mexican citizen in order to purchase land in a frontier state, followed by such purchase, was held a proof of citizenship.3

A claim to American citizenship by reason of the annexation of territory was held to require for its support proof of citizenship or residence in the territory annexed.*

EVIDENCE OF CITIZENSHIP

§ 213. Classes of Documentary Evidence.

5

The customary documentary evidences of American citizenship having an international value are the passport, the certificate of naturalization, and the certificate of registration issued under paragraph 172 of the Consular Regulations. Of these three certificates, the passport is the most important for international purposes, and its relation to diplomatic protection abroad warrants special and detailed examination.

this and similar decisions. Wilkinson (U. S.) v. Mexico, ibid. 2720 and infra, p. 575.

1 See Mr. Ashton's argument printed in Moore's Arb. 2468-2477. Anderson and Thompson (U. S.) v. Mexico, ibid. 2479 and 2482. Same rule, notwithstanding claimant's intention to reside permanently in Mexico (Elliott v. Mexico, ibid. 2481), and long residence in Mexico (Bowen v. Mexico, ibid. 2482). See also Robert v. Mexico, ibid. 2477, where American citizenship was expressly preserved and recognized.

2 Morton (U. S.) v. Mexico, ibid. 2477. (Lieber held that it merely showed the purchase to have been void.)

3 Prim (U. S.) v. Mexico, ibid. 2482.

* Masson (U. S.) v. Mexico, ibid. 2542; Vallejo (U. S.) v. Mexico, ibid. 2534.

5 See circular instruction, April 19, 1907, Registration of American Citizens, For. Rel., 1907, I, 6.

THE PASSPORT

§ 214. Nature and Purpose of Passport System.

The issuing of passports is a convenient system adopted by states to secure for their citizens a right of transit through foreign countries, which permission might in international legal theory be withheld. Technically, the foreign country grants the citizen the passport, and accepts his certificate of citizenship as a title to the right, accorded by all civilized states, of unobjectionable foreigners to pass through. In those countries which even in time of peace exercise strict supervision over aliens entering and residing, the local or national visé on the certificate corresponds to the technical passport. In practice, the certificate itself has received the name passport and actually serves that purpose, being often, if not unregulated by foreign officials, at least only inspected, the visé, where it is affixed, serving merely as evidence of inspection.

The passport is the accepted international certificate or evidence of citizenship, although its evidentiary value is prima facie only. In the practice of the United States, it is issued by the Secretary of State or under his authority by a diplomatic or consular officer. It certifies that the person therein described is a citizen of the United States and requests for him while abroad permission to come and go as well as lawful aid and protection.1

§ 215. Relation of Passport to Diplomatic Protection.

The passport is a prima facie, though not a final, warrant of diplomatic protection. Possession of a passport does not always carry

1 The American passport, its history and a digest of laws, rulings and regulations governing its issuance by the Department of State, by Gaillard Hunt. Washington, 1898, p. 4; Moore's Dig. III, 856. Mr. Hunt's work, the American passport, gives a full history, with forms, circulars and rules and regulations bearing on the issuance of the passport by the Dept. of State. Prof. Moore's chapter on passports (XII), Digest, III, pp. 855-1022 contains a valuable account, illustrated by diplomatic notes, of the practice of the Dept. of State and of foreign countries in regard to the United States passport. The rules of 1907, and the amended rules of 1914–1915, entailed by the problems incidental to the European War, are not, of course, noticed, the work having been published in 1906. A less systematic collection of notes and instructions of secretaries of State and diplomatic officers is contained in Wharton's Digest, 2nd ed., II, §§ 191–195. On the English passport, see an article by N. W. Sibley in 7 Journ, of the Soc. of Comp. Leg. (1904–05), 26–33.