by the consular and diplomatic officers of the United States,1 although upon an application for the issuance of a passport, the diplomatic officer can question the validity of a naturalization certificate and compliance with its essential conditions.2

What has been said above regarding the impeachability of the passport applies equally to the certificate of naturalization, on which, in the case of naturalized citizens, it is practically always issued. Thus, the United States has uniformly contested any assumption of right by the administrative or judicial authorities of foreign countries to pass upon the legality or validity of a certificate of naturalization, that being, so it has been insisted, the exclusive function of the appropriate authorities of the United States.3

§ 224. Nature of Certificate of Naturalization. Its Character as Res Adjudicata.

A certificate of naturalization is not only an evidence of citizenship, but, emanating from the judicial department of the government, it is also the evidence of a judgment. Out of this fact has arisen some confusion as to the sacredness of the certificate of naturalization, its character as res adjudicata, and the extent to which it is bind

5

1 Mr. Hay, Sec'y of State, to Mr. Hardy, min. to Switzerland, April 23, 1901, Application of Carl F. Kupfer, For. Rel., 1901, 508-509.

2 Mr. Leishman to Mr. Hay, May 17, 1901, and Mr. Hill, Act'g Sec'y of State, to Mr. Leishman, June 14, 1901, For. Rel., 1901, 519–520.

3 The Benich case in Austria, Mr. Gresham, Sec'y of State, to Mr. Tripp, Sept. 4, 1893, For. Rel., 1893, 23-25. See also For. Rel., 1894, 36–46, For. Rel., 1895, 514-523, For. Rel., 1895, 8-12, 13-20; Sec'y Hay to Mr. Harris, Nov. 7, 1899, For. Rel., 1899, 78, Moore's Dig. III, § 424. See also the Beauffremont decision in Belgium, 9 Clunet (1882), 364, Von Bar (Gillespie's trans.), 158 et seq., and Morse, Citizenship, 92.

In reality the court acts as an administrative body, the proceedings being in the nature of non-contentious jurisdiction. (See Pitney, J., in Johannessen v. U. S., 225 U. S. 227, 237.) It is in the nature of a judgment in rem, though the application is submitted with ex parte proofs. The Government rarely appears, although by § 11 of the Act of June 29, 1906, the Government is given the right to appear, and to crossexamine the petitioner and witnesses and produce evidence in opposition to a grant of naturalization. See also 14 Opin. Atty. Gen. 509, and the exhaustive opinion of the late Spanish Treaty Cl. Com. in Ruiz v. U. S., printed in Van Dyne, Naturalization, 151.

5

Attorney-General Akerman, in 13 Opin. Atty. Gen. 376, erroneously held that it was a judgment binding only on parties and their privies; hence that the U. S. was

ing on municipal courts, on international courts, and on the executive branch of the government.

§ 225. Conclusiveness upon Municipal Courts.

Before municipal courts of the United States a decree or order of naturalization cannot be impeached collaterally.1 It is presumed to be conclusive, and complete evidence of its own validity. Yet in the matter of the collateral attack of judgments, the following distinction has been drawn: they may be impeached by facts involving fraud or collusion which were not before the court or involved in the issue or matter upon which the judgment was rendered, but they may not be impeached for matters which were necessarily before the court and passed upon.2 If, however, the certificate is void on its face, e. g., if issued to a Japanese 3 or Chinese1 subject, the certificate of naturalization may be treated as void in any proceedings.

Certificates of naturalization, fraudulently acquired or held, may, as will be seen, be cancelled in direct proceedings to that end. The federal statutes also provide for the criminal prosecution of false personation, false swearing and forgery in naturalization proceedings, as well as of the uttering, selling and use of false naturalization papers.5 It has been held generally that only the United States can proceed judicially to set aside or cancel a certificate of naturalization, although it was not definitely determined before the Act of June 29, 1906, which officers might bring such an action. Section 15 of the Act of June 29,

not concluded by a fraudulent certificate of naturalization. The true ground is rather that a judgment in rem may be attacked for fraud, or that, being an ex parte proceeding, the U. S. is not concluded by the certificate granted. Johannessen v. U. S., 225 U. S. 227, 237. See Morse, Citizenship, § 191.

1 Moore's Dig. III, § 422 and decisions there cited. Van Dyne, Naturalization, 134-141; H. Doc. 326, 59th Cong., 2d sess., 130-133.

2 U. S. v. The Acorn, 2 Abbott's U. S. Rep. 434, 445.

3 In re Yamashita, 30 Wash. 234, 70 Pac. Rep. 482.

In re Gee Hop, 71 Fed. 274; In re Hong Yen Chang, 84 Cal. 163; 21 Opin. Atty. Gen. 581; Moore's Dig. III, 501.

5 Moore's Dig. III, 499.

Pintsch Compressing Co. v. Bergin, 84 Fed. 140; U. S. v. Norsch, 42 Fed. 417; U. S. v. Gleason, 78 Fed. 396, is doubtful law. See other cases cited in H. Doc. 326, 59th Cong., 2d sess., 132.

1906, makes specific provision for the bringing of such suits by the Department of Justice.1 According to a recent decision, it would seem that a State cannot impeach naturalization. It is established that private parties, exclusive of the naturalized person himself, may not impeach the record of naturalization.3 The judgment may be impeached on the same grounds that would render any judgment of a court invalid. The usual ground is fraud or illegality in the procurement of the naturalization.4

In European countries, municipal courts frequently have to decide upon the effect to be given to a foreign judgment of naturalization, and the general rule as to judgments appears to be followed. For example, if the foreign court was without jurisdiction of person or subject-matter, recognition of the judgment will be refused. Similarly, if the foreign naturalization is contrary to the law or public policy of the jurisdictional state, the foreign judgment will be denied validity.5 In the absence of treaty, the original home state of the naturalized person may not admit the validity of or give effect to his foreign naturalization, if obtained in violation of its law. This is quite different from directly declaring a foreign naturalization null, which would be an invasion of the sovereign rights of a foreign state. It would seem true, also, as in the case of all foreign judgments, that fraud in its procurement may be set up as a ground of impeachment, and the local court will refuse to recognize and enforce a judgment of naturalization obtained by fraud. This also is the standpoint assumed by international tribunals in passing upon the evidentiary character of a certificate of naturalization.

134 Stat. L. 596. The Act is set out in Van Dyne, Naturalization, 417 et seq. and the proceedings under § 15 are discussed at pp. 34–36, 135–141. See U. S. v. Nesbit, 168 Fed. 1005; U. S. v. Simon, 170 Fed. 680; U. S. v. Meyer, 170 Fed. 983; U. S. v. Mansour, 170 Fed. 671; U. S. v. Luria, 184 Fed. 643, 231 U. S. 9; U. S. v. Spohrer, 175 Fed. 440; Johannessen v. U. S., 225 U. S. 227.

seq.

2 Peterson v. State (1905), 89 S. W. 81.

3 Cases quoted and cited in H. Doc. 326, op. cit., 132–133.

H. Doc. 326, 59th Cong., 2d sess., 133; Act of June 29, 1906, § 15, infra, § 228 et

5 Bar, 163-165.

6

Story, Conflict of laws, 608; Ruiz v. U. S., No. 112, Span. Treaty Cl. Com., Decision printed in Van Dyne, Naturalization, 167-168.

$226. The Practice of International Tribunals of Arbitration.

Whatever the conclusive force of judgments of naturalization under municipal laws of the country where granted, international tribunals have often asserted and exercised the right to determine for themselves the citizenship of claimants from all the facts presented.1

These international tribunals, with practically unbroken uniformity, have held that they were not conclusively bound by a certificate of naturalization, but, on an allegation of fraud, could go behind the certificate to examine the antecedent facts on which it was granted. Such a certificate has been held to be prima facie evidence of citizenship, and in the absence of proof of fraud, it has been accepted as conclusive evidence of its own validity. A mere error or irregularity or honest failure to comply fully with the laws of the United States has not been generally deemed a sufficient ground to impeach the evidentiary force of the certificate of naturalization, but some intentional and dishonest misrepresentation or suppression of material facts by the party obtaining the naturalization has usually been required to effect this end. Nevertheless, in some cases, e. g., in the Medina case before the United States-Costa Rican commission of 1860 and in the Flutie case before the United States-Venezuelan commission of 1903, fraud was not considered essential to denial of a claim of citizenship, but misrepresentation or proved non-compliance with the conditions for naturalization was considered sufficient to overcome the presumptive evidence of the certificate. Some exceedingly able opinions on this question have been written, and particular merit is found in the decisions of Umpire Bertinatti in the case of Medina before the United States-Costa Rican Commission of 1860 and of

1 Flutie (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 38, 42, citing Medina (U. S.) v. Costa Rica, Moore's Arb. 2587; Laurent (Gt. Brit.) v. U. S., ibid. 2671; Lizardi (U.S.) v. Mexico, ibid. 2589; Kuhnagel (France) v. U. S., ibid. 2647; Angarica (U. S.) v. Spain, ibid. 2621; Criado (U. S.) v. Spain, ibid. 2624.

2 Delgado (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2590-2592; Sprotto (U. S.) v. Mexico, July 4, 1868, ibid. 2717.

Delgado (U. S.) v. Spain, Feb. 12, 1871, ibid. 2590; Madan (U. S.) v. Spain, ibid. 2638, 2641 (under agreement of Dec. 14, 1882, infra).

4 Moore's Arb. 2583, at pp. 2586-2589.

the recent Spanish Treaty Claims Commission in the case of Ruiz v. United States, No. 112.1

In the decision of Umpire Bertinatti in the case of Medina v. Costa Rica, it was held that the judgment of an American court was not binding on Costa Rica, and that while a duly issued certificate of naturalization is presumptive evidence of its validity, "the presumption of truth must yield to truth itself," and where the existence of facts is shown, which, had they been known, would cause the application for naturalization to have been rejected, e. g., a residence in the United States much shorter than the five years required by statute, the certificate of naturalization will be considered incompetent to confer citizenship.

The United States-Mexican commission of 1868 dismissed the claim of Perez 3 because of his failure, as an alleged naturalized citizen, to comply with the residence requirements of our naturalization statutes, notwithstanding his possession of a certificate of naturalization. Mr. Thornton, umpire of that same commission, held that the tribunal was not bound to admit the citizenship of a claimant when the evidence showed that his certificate of naturalization had been obtained by the false swearing of certain witnesses before the municipal court which granted naturalization."

The question of the finality of a certificate of naturalization was argued very fully before the United States-Spanish commission under the protocol of February 12, 1871. By that protocol it was provided that Spain shall have the right to "traverse the allegation of American citizenship, and thereupon competent and sufficient proof thereof will be required." In the case of Delgado,5 Umpire Bartholdi declined to inquire into the validity of the claimant's naturalization,

1 Reprinted in Van Dyne, Naturalization, 144-178. Commissioner Maury's able dissenting opinion is also worthy of note, ibid. 178–189. Valuable briefs on the question were filed by attorneys for the claimants and by the Government in the cases of Adolphus Torres v. U. S., No. 45 and Rita L. de Ruiz et al. v. U. S., No. 112. Briefs of the Spanish Treaty Claims Commission, v. 7.

2 Medina (U. S.) v. Costa Rica, July 2, 1860, Moore's Arb. 2583, 2587.

* Perez (U. S.) v. Mexico, July 4, 1868, ibid. 2719 (Wadsworth, commissioner). Lizardi (U. S.) v. Mexico, July 4, 1868, ibid. 2589.

* Delgado (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2590-2592.