the concession of citizenship is extended.1 These conditions vary from country to country.2 Cockburn in his well-known work on nationality has said that assuming the competency of a person to change his allegiance, "the effect of naturalization ought, by the common law of nations, to be everywhere to supersede and put an end to the nationality of origin, even where by expatriating himself the subject has offended against the law of the original country and may remain amenable to punishment should he return to it." 3

4

The comity of legislation which would be necessary to bring about this condition and thus avoid cases of dual nationality has not yet been manifested by the majority of the states of the world. Many countries still deny the right of expatriation or place such onerous restrictions upon its exercise as to amount to a practical denial of the right. While numerous treaties between the United States and certain foreign countries have aided greatly in adjusting conflicting claims to the allegiance of persons who have become naturalized citizens of the United States, and while municipal statutes and executive regulations of the United States have furnished criteria to establish the bona fide character of the American citizenship of a naturalized American citizen abroad and of his right to diplomatic protection, the fact, nevertheless, that there are various countries of the old world which deny absolutely or conditionally the right of expatriation and with which no naturalization treaties have been concluded, and the fact that the treaties do not extend to all cases, still make conflicts of nationality and cases of no nationality of frequent occurrence. The various types of cases which have engaged the attention of the United States in its diplomatic intercourse with foreign countries will be discussed presently.

1 De Folleville, D., Traité . . . de la naturalisation, Paris, 1880, p. 4; PradierFodéré, III, § 1658.

2 De Folleville in Part four of his work undertakes a comparative study of the law in the countries of Europe and America. See also Lehr, E., La nationalité, Paris, 1909; Sieber, J., Das Staats-bürgerrecht im internationalen Verkehr, Bern, 1907, 205-410; Cogordan, La nationalité, Paris, 1890, 171-271 and Appendix; and Zeballos, E. S., La nationalité au point de vue de la législation comparée et du droit privé humain, trad. par A. Bosq, Paris, 1914, 2 v.

Cockburn, Nationality, London, 1869, 208.

♦ Pradier-Fodéré, III, § 1661 and infra, §§ 237, 238.

Before examining the position of naturalized American citizens abroad, it may be well to note the views of the United States on certain conditions attaching to naturalization in general.

§ 232. Conditions of Recognition.

The United States has always insisted that naturalization requires the voluntary act and the express or tacit consent of the individual to be naturalized. This view has been expressed on various occasions in connection with the attempts of different states of Latin-America by municipal law to impose their nationality on foreigners. Thus, the statutes of Peru, Mexico, Brazil, Venezuela and other countries, imputing their nationality ipso facto upon persons who purchase real estate or have children born to them in those countries have met with vigorous protest and a refusal of recognition by the United States.1 The fact that the law of Mexico and Brazil permitted the foreigner, by affirmative action on his part, to retain his original nationality was not considered to alter the position of the United States that "the loss of citizenship cannot be imposed as a penalty nor a new national status forced as a favor by one government upon a citizen of another." 2 In a few countries of Latin-America, the acceptance of certain public offices naturalizes a foreigner.3 As the acceptance of such office is presumably a voluntary act of the foreigner, his con

1 Moore's Dig. III, § 378. See also Hall, Foreign powers and jurisdiction, 46; Cogordan, Nationalité, 117-118; Pradier-Fodéré, III, § 1658; Robinet de Clery in 2 Clunet (1875), 80. The decisions of the mixed commission of July 4, 1868 with Mexico, on the acquirement of citizenship by owning real estate, have been discussed, supra, p. 492.

2 Mr. Bayard, Sec'y of State, to Mr. Manning, Nov. 20, 1886, For. Rel., 1886, 723; Pradier-Fodéré (III, § 1658), points out that from this point of view the acquisition of citizenship by naturalization may be considered as a contract between the alien who requests it and the state which grants it. Octavio Rodriguez in an article on the Brazilian law of nationality states that while Portugal, Spain, Great Britain, Italy and Austria protested against the provision of the Brazilian Constitution of 1891 by which aliens who had not claimed their original nationality by Aug. 24, 1891 became citizens of Brazil, Brazil has maintained its position. It seems, from a note sent to the French government, that the law was not strictly enforced. 6 Rev. de l'Inst. de dr. comp. 302-304.

* Guatemala and Salvador, cited by Harmodio Arias in his article, Nationality and naturalization in Latin-America, in 11 Journ. of the Society of Comp. Leg. (Nov. 1910), 126, at 136. Norway and Germany appear to make similar provision.

sent to the legal consequences of his act may be inferred. The United States recognized the validity of a Haitian law which provided for certain grants of land to immigrants on condition that they became Haitian citizens.2

A reasonable distinction would result in a denial of the right to impose citizenship based upon mere residence, or marriage with a native woman or the acquisition of real property, or acts generally of a purely civil and personal nature; whereas such naturalization by operation of law should be recognized if it involves the enjoyment of political rights or privileges or if the consent of the naturalized person may be inferred. The acquirement of citizenship through the naturalization of the parent or husband or by marriage of an alien woman to a citizen or by treaty or annexation of territory are almost universally recognized as valid instances of naturalization by operation of law.

While it is not considered within our province to discuss the various methods of naturalization provided by the municipal law of the United States,3 e. g., by naturalization of the parent, by virtue of the marriage relationship, and collective naturalization, either by the admission of new states or by treaty or conquest, it may be desirable to point out one or two features of American naturalization which have at times had an international bearing.

§ 233. Certain Features of American Naturalization having International Importance.

The United States pays no regard to the important particular of the capacity of the applicant for naturalization, according to the municipal law of his original country, to divest himself of his former allegiance. This is of course a necessary consequence of the application of the doctrine of voluntary expatriation. Prussia, Bavaria and

1 Hall goes somewhat further in concluding that a wish to identify himself with the state may be inferred from the performance of political acts. Cited by Arias, op. cit., 137. See Hall, Foreign powers and jurisdiction, 46.

2 Mr. Hay, Sec'y of State, to Mr. Powell, Dec. 1, 1899, For. Rel., 1899, 403. 3 See works noted supra, p. 457, and particularly H. Doc. 326, 59th Cong., 2d sess., 138-159, and Moore's Dig. III, §§ 413–415 (Naturalization of parent), §§ 408–412 (marriage relationship), §§ 379-380 (collective naturalization). On citizenship by annexation of territory, see also cases in Moore's Arb. 2509-2518, 2538, 2541-2542.

Sweden appear to be among the few European states which inquire into the capacity of the applicant to abjure his native allegiance,1 although Great Britain until 1914 provided by statute that the naturalized subject shall not be deemed a British subject within the limits of his former country, unless by its laws or by treaty, he has ceased to be a subject thereof.2

Naturalization in the United States depends upon a compliance with certain conditions, including, in the usual form of naturalization, continuous residence in the United States for a period of five years immediately prior to naturalization.3

It has been generally held that the words "continuous residence" are to be understood in the legal case, according to which a transient absence for business, pleasure or other occasion, with the intention of returning, does not interrupt the period of residence. This is the construction placed upon the words "resided uninterruptedly" in certain naturalization treaties of the United States with other states (e. g., Bavaria and Würtemberg) and is expressly so defined in protocols annexed to those treaties.5 The courts construe the provision for "continuous residence" as practically equivalent to domicil and do not require a continuity of physical presence, the question whether

1 Cockburn, Nationality, 48-49.

2 Supra, p. 461. In the British Nationality and Status of Aliens Act, 1914, this qualification of British naturalization has been dropped, Part II, § 3 (1). On the effect of the qualifying clause (33–34 Vict. ch. 14, § 7, par. 3), see F. B. Edwards, The effect of a certificate of naturalization in 30 Law Quar. Rev. (1914), 433, 436447.

For interpretations by municipal courts and authorities of the five years' residence requirement see H. Doc. 326, 59th Cong., 2d sess., 102–114. For the history of the residence requirements in U. S. naturalization acts, see F. Van Dyne in 29 Amer. Law Rev. 52-58, Moore's Dig. III, § 388, and Naturalization of George Edward Lerrigo, Hearings before the House Committee on Immigration and Naturalization, 63rd Cong., 2nd sess., May 21, 1914, part 2, especially letter from J. B. Densmore, Act'g Sec'y of Labor, p. 16. Mr. Lerrigo was naturalized by Act of Congress, Feb. 23, 1915, notwithstanding the fact that he had not resided five years in the U. S. prior to the Act. His case presented peculiar circumstances which justified naturalization. See Hearings cited.

13 Op. Atty. Gen. 376.

Hunt's The American passport, Washington, 1898, p. 175. The same interpretation would be made of other treaties.

U. S. v. Rockteschell, 208 Fed. 530.

there has been a continuous residence being one of fact for determination under all the circumstances of the case.1

In our discussion of fraudulent naturalization, we have considered the views of various international commissions as to the effect of failure to comply with the requirements for a continuous residence in its relation to fraud under the naturalization laws.2 In the issuance of passports, the State Department has to determine whether a noncompliance with the residence requirements of the statute amounts to fraud warranting a refusal to recognize the validity of the naturalization certificate and a refusal of a passport. The question also becomes of importance because of the provision in our naturalization treaties making five years' uninterrupted residence in the United States a. condition precedent to recognition by the original government of the change of allegiance of a naturalized citizen. It has been held that a petition for the cancellation of a certificate of naturalization under § 15 of the Act of June 29, 1906, on the ground of want of the necessary previous residence, must show either fraud or that the evidence. before the court which granted the certificate was insufficient to warrant the finding of residence.

3

It may here be observed that the statutes of the United States in granting naturalization look to the past and not to the future, in that they require a compliance with conditions preceding naturalization and require no evidence or manifestation of intention to remain a citizen of the United States. The applicant may leave the United States as soon as he is naturalized. By the declaration of intention he merely states his intention to become a citizen. He is not required to state that he intends to make his domicil in the United States. This defect in the law, which it appears is avoided by the naturalization laws of practically all the European countries, has brought about many complaints of the imposition practiced upon the United States by naturalized American citizens residing abroad, who sought naturalization for the sole purpose of securing protection. While the Nat1 U. S. v. Cantini, 212 Fed. 925.

1

4

4 Report of the Commission on Naturalization, Nov. 8, 1905, H. Doc. 46, 59th Cong., 1st sess., 14-15.