uralization Act of June 29, 1906 has not rectified the omission by requiring the applicant to swear that he intends to make his permanent residence in the United States, § 15 authorizes proceedings for the cancellation of the certificate of a naturalized citizen who within five years of his naturalization establishes a permanent residence abroad, and § 2 of the Act of March 2, 1907, provides that a residence of two years in his native land or five years in any other foreign country creates a rebuttable presumption of his expatriation.

Under the regulations of the Department of State passports are as a rule issued only to those naturalized citizens abroad who declare an intention to resume their residence in the United States.1

§ 234. Non-Retroactivity of Naturalization.

It is a fairly established principle that naturalization has no retroactive effect. Most of the naturalization treaties of the United States expressly provide that the naturalized citizen is punishable in his native country for violations of law committed prior to his emigration. Thus, desertion after the call to arms or while in the active service is an offense "from the penalty of which exemption by foreign naturalization is neither claimed nor conceded by the United States." " In countries in which military service is compulsory and with which the United States has naturalization treaties, it would seem that a naturalized citizen who failed to respond to the call to arms, when after having served the required number of years, he was placed on the reserve rolls, and then emigrated to the United States in time of peace and before the call to arms, and became duly naturalized, is secured by the terms of the treaties from punishment for desertion, the obligation to military service having arisen after his emigration. Similarly,

3

1 The exception is made in the case of American naturalized citizens resident in a semibarbarous country or in a country in which the U. S. exercises extraterritorial jurisdiction, in which residence may be indefinitely prolonged without forfeiting American citizenship or protection. Circular instruction, March 27, 1899. Such citizenship is no longer inheritable from generation to generation, but is subject to the provisions of § 1993, R. S., infra, § 333.

2 Mr. Bayard, Sec'y of State, to Mr. Turner, Sept. 10, 1885, Moore's Dig. III, 425. See also Moore's Dig. III, §§ 401-402.

'Cases of L. Sedivy and F. Holasek v. Austria, For. Rel., 1896, 6-13, 16. See also For. Rel., 1900, 30.

emigration prior to the year when liability to service arises or before conscription, carries exemption, under the treaties, from penalties for non-fulfillment of military duty.' When, however, the emigration was due solely to a desire to evade military duty, the United States has often yielded to the asserted right of the native state to expel the emigrated person should he undertake to settle in his native home as a naturalized American citizen, free from the obligation of military service. It is usually provided, at least in the Bancroft treaties, that the emigrant is not punishable for the act of emigration itself, although, apart from treaty, a state has clearly the right to regulate, under penalty, the emigration of its subjects and to punish its nationals for evasion of military service. The treaties also provide for the application of the customary statutes of limitation to punishable offenses, and the United States has generally been successful under these statutes of limitation in securing a remission of penalty or liability for the naturalized citizen.3

4

In the case of international claims, the rule uniformly adopted is that American naturalization cannot serve to nationalize a claim which arose prior to the date of naturalization of its owner. In other words, a claim must be national in origin as well as at the time of presentation. A passage from an instruction of Secretary of State Fish may here be aptly quoted: "In granting the high privilege of its citizenship, the United States does not assume the defense of obligations incurred by the party to whom it accords its citizenship prior to his acquisition of that right, nor does it assume to become his attorney for the prosecution of claims originating prior to the citizenship of the claimant."5

§ 235. Protection of Naturalized Citizen in Native Country.

It has already been observed that the statutes of the United States

1 For. Rel., 1889, 25, 35.

2 Supra, p. 53.

3 Moore's Dig. III, § 403.

4 Ryder (U. S.) v. Chinese indemnity, treaty of Nov. 8, 1858, Moore's Arb. 2332. Claims before Spanish commission of Feb. 12, 1871, ibid. 2437; Abbiatti (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 2348; Medina (U. S.) v. Costa Rica, July 2, 1860, ibid. 2483. See also infra, § 306.

5 Mr. Fish, Sec'y of State, to Mr. Davis, Nov. 24, 1874, Moore's Dig. III, 429. 6 Supra, p. 460.

require and provide that naturalized citizens and native citizens shall be equally protected abroad.1 The United States is often, however, unable to enforce this statutory obligation of equal protection to both classes of citizens by reason of the fact that several countries, e. g., Russia, Turkey and Greece prohibit expatriation, and either punish the subject, upon his return, for having acquired foreign naturalization, or decline to recognize his foreign citizenship. Upon his return to his native country, he is treated as a native, and the United States is not in a position to enforce rights growing out of his American naturalization. Other countries, e. g., Switzerland and France, predicate the recognition of a change of allegiance upon compliance with certain formalities for abjuring original allegiance, in the absence of which the foreign naturalization of the subject has no effect in his native country or only such effect as his native country is willing to concede. Less than half the countries of Europe have concluded naturalization treaties with the United States.

Although the naturalization treaties have done much to remove difficulties and controversies with the countries with which they have been concluded, as to the status of the naturalized citizen with respect to his new and his former country, the protection to be extended to him is limited by the terms of the treaty. Again, with respect to certain classes of persons excluded from various countries, such as Chinese in some of the Latin-American countries and Syrians in Haiti, their subsequent American naturalization has not served to exempt them from the application of the local exclusion law. So also, the presumption of expatriation by residence abroad arises more quickly against a naturalized than against a native citizen.3

These examples will serve to indicate the limitations upon the obligation of equal protection and upon its execution and enforcement. At most, it must be understood as the duty to extend the same

1 R. S., § 2000; 9 Op. Att'y Gen. (1859), 360; 14 ibid. (1873), 295; Morse on Citizenship, § 134; Wise, John S., American citizenship, 261; E. P. Wheeler in 3 A. J. I. L. (1909), 882. The American passport, 171; Mr. Fish, Sec'y of State, to Mr. Cushing, May 22, 1876, Moore's Dig. VI, 622.

2 For. Rel., 1909, 242-245, quoting Sol. Op. March 5, 1909. As to the exclusion of Chinese who are British subjects, see 20 Op. Att'y Gen. 729.

3 Infra, § 330.

measure of protection, whenever possible, to the native and to the naturalized citizen.1

The United States has always recognized the apparent irreconcilability of the conflict of laws in cases where a naturalized citizen, originally the subject of a country which prohibits expatriation, returns voluntarily to his native country. The view of this government has been that the effect of American naturalization is in no wise dependent upon or affected by the law of the alien's former country and his rights are effectively respected in the United States and protected in a third country. Should he, however, return to his native country, the United States, while asserting that the validity of his naturalization cannot be questioned except by an allegation of fraud in its procurement, nevertheless is aware of the fact that in the absence of a treaty of naturalization, its validity may not be practically enforceable against a counterclaim of his native country, based upon the ground that under its law he has not lost his original allegiance.2 It is clear that until the freedom of expatriation is universally recognized such conflicts will occasionally occur. It seems true, also, notwithstanding the contentions of the United States as to the unlawfulness of punishing a person for becoming an American citizen, as is the law and practice of Russia, that in the absence of consent or treaty, naturalization abroad has within the limits of the country of origin no other effect than the government of that country chooses voluntarily to concede.

1 The United States issues the same form of passport to all citizens of the U. S. (not special officials) whether native or naturalized. Many other countries make a distinction in issuing passports. The American passport, 173. During the course of the present European War, the Department of State has all but refused to issue passports to naturalized citizens, natives of the belligerent countries, the object being to avoid, so far as possible, diplomatic controversies with their former countries, or conceivably with enemy countries.

2 This is the practice with Russia, Turkey and Persia. 9 Op. Att'y Gen. 356; For. Rel., 1893, 498–501, Moore's Dig. III, 780-781. But in many cases where naturalized American citizens have been imprisoned upon their return to Turkey and Russia, their native lands, the good offices of the diplomatic representative of the United States have been successful in obtaining their release. Wheaton's often quoted statement in 1840 to a naturalized citizen of Prussian origin, that on his return to Prussia, his "native domicil and national character revert" was contradicted by Att'y Gen. Black in 1859 (9 Op. Att'y Gen. 359 et seq.). Congress, in the Act of 1868, by providing for the equality of native and naturalized citizens, supported Mr. Black's opinion. H. Doc. 326, 59th Cong., 2d sess., 9-10.

Some of the states of Europe have avoided the controversies growing out of conflicting claims to allegiance by requiring from the applicant for naturalization proof that his change of allegiance is permitted by the sovereign of whom he is then a dependent. Great Britain recognized this principle in its Naturalization Act of 1870 by providing that the naturalization of an alien shall be without force and effect should he return to the country of his original allegiance unless by the laws thereof or by treaty between that country and Great Britain his change of status is recognized.1

The foreign-born son of a naturalized American citizen who returns to his native country, is required, in order to have the protection of the United States, not merely to elect American citizenship upon reaching his majority, but to carry out his intention by taking measures to come to the United States and make it his permanent abode.2

§ 236. Relations with Different Countries.

It will now be appropriate to enter upon a more detailed discussion of the position of the naturalized American citizen upon his return to the foreign country to which he originally may have owed allegiance. Inasmuch as the enforceability of the statutory obligation of protection depends so largely upon the municipal law of his native country, which may not recognize his foreign naturalization or recognize it only upon the fulfillment of certain conditions, it is important to study the question in its relation to the different countries in which it has arisen. For our present purpose, these countries may be divided into:

133 Vict., ch. 14, § 7. See F. B. Edwards in 30 Law Quar. Rev. (1914), 436–447. This limitation upon the protection of a naturalized British subject has, until recently, been endorsed upon British passports. Supra, p. 461, and Sen. Doc. 83, 54th Cong., 1st sess., 2-3; Report of Sec'y of State Olney, Jan. 16, 1896, also printed in For. Rel., 1895, II, 147 et seq., For. Rel., 1893, 683, For. Rel., 1900, 27. Nor can he claim British protection against the operation of the laws of his native country, should he return to it. Webster, P., Citizenship. pp. 9, 58. Under Palmerston's circular of Jan. 8, 1851, British protection of naturalized subjects was even more limited. Cockburn, Nationality, 114, 115; British instructions printed in For. Rel., 1873, II, 1337, 1342. In the recent British Nationality and Status of Aliens Act, 1914, this qualification has been dropped, Part II, § 3 (1), so that the British law now is probably similar to that of the United States.

2 Mr. Bayard, Sec'y of State, to Mr. Straus, Sept. 30, 1887, For. Rel., 1887, 1131. See infra, §§ 270, 271.