Imágenes de páginas
PDF
EPUB

2

has in some instances been extended to such persons, and as has already been observed,1 passports were issued to them for a short time during the Civil War, and are now issued, under the authority of the Act of March 2, 1907, to those who have declared their intention and have resided in the United States for three years. They are issued only under special circumstances, are valid for six months only and in their issuance the Department of State has adhered to its uniform rule that a person who has declared his intention will not be protected in his native country.3 In China and Mohammedan and semibarbarous countries,5 the declaration of intention, it has been suggested by one or two secretaries of State, may sustain an appeal to the good offices of the diplomatic representative of the United States.

The limited protection which is thus extended in third countries to those who, under certain circumstances, have declared their intention to become citizens of the United States is based upon the realization of their awkward position in being practically unable to look for protection to the government of which they are still nationals, by reason of their declared intention to renounce allegiance to it, and in not yet having acquired the complete right to American protection." It has always been sought to guard against imposition on the United States. On numerous occasions the departure from the United States of a person who had declared his intention, followed by an extended residence or domicil abroad has been construed as an abandonment

ship; and immediately after filing the declaration, they are deemed American citizens for purposes of protection. R. S., § 2174.

1 Supra, p. 501.

2 Rules of the Dept. of State governing issuance of passports to "declarants," Nov. 14, 1913. The subject is discussed at greater length, supra, p. 501.

3 Mr. Olney, Sec'y of State, to Mr. Breckenridge, Jan. 27, 1896, Moore's Dig. III, 343 and other instructions there cited. The rule is confirmed by the naturalization treaties cited supra, p. 567. See also Wharton, II, § 175.

Mr. Olney, Sec'y of State, to Mr. Denby, Jan. 13, 1897, For. Rel., 1896, 92. But not, said Mr. Olney, if the person was a citizen of a country with which the U. S. had a naturalization treaty, thus excluding such action.

5 Mr. Cass, Sec'y of State, to Mr. de Leon, Aug. 18, 1858, Wharton, II, § 175, p. 359.

• See the discussion of the Citizenship Board, H. Doc. 326, 59th Cong., 2nd sess., 21. The board's recommendation as to declarant's passports was carried out in tion one of the Act of March 2, 1907.

of his intention to become a citizen.1 As a condition precedent to the issuance of the declarant's passport as authorized by the Act of 1907, it must be shown by the applicant, among other things, that a special and imperative exigency requires his temporary absence and that there has been no neglect in his failure to complete his naturalization. During the present European War, the issuance of “declarants' passports" to natives of the belligerent countries has been completely suspended, and they are issued to natives of other countries with reluctance only.

2

DOMICIL PLUS DECLARATION OF INTENTION

$250. Koszta's Case.

Reference has been made to the confusion engendered by the arguments of Secretary of State Marcy in sustaining the right of the United States to protect Martin Koszta, in so far as they relate to the effect of domicil and a declaration of intention upon the right to American protection. The reasoning and the dicta of Mr. Marcy subsequently led other secretaries of State to assert rather wide claims of American protection based upon domicil and declaration of intention, but Mr. Marcy's statements must be understood as applying only to the case of Koszta then under discussion, and it may be added that the Department of State has in recent years confined Mr. Marcy's

1 Mr. Marcy, Sec'y of State, to Mr. Fay, March 22, 1856, Moore's Dig. III, 337; Mr. Blaine, Sec'y of State, to Mr. Hicks, May 8, 1890, For. Rel., 1890, 695; Mr. Hay, Sec'y of State, to Mr. Conger, Feb. 15, 1902, For. Rel., 1902, 222. See citations to instructions of Secretaries Marcy and Bayard in Wilson (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 2555. See also Perez (U. S.) v. Mexico, July 4, 1868, ibid. 2718; Kern (U. S.) v. Mexico, ibid. 2719 and cases cited, p. 2720.

2 See the rules issued November 14, 1913, in which other special conditions which must be fulfilled, are set forth.

3 Supra, p. 556.

4 The case is fully presented, with the notes printed at length, in Moore's Dig. III, § 490; S. Ex. Doc. 1, 33rd Cong., 1st sess.; 44 St. Pap. 961 et seq. See also Wharton, II, §§ 175, 198; Cockburn, 118–122; Lawrence's Wheaton (2nd ed. 1863), 176, 229: Hall, 5th ed., 242; Morse, op. cit., 6, 70; Moore, American diplomacy (New Yo 1905), 194-199; Wolfman in 41 Amer. Law Rev. 509. We shall confine our state of the Koszta case to the facts which relate to the questions of citizenship a tection.

somewhat extreme position to the peculiar circumstances under which it originated.

In brief, the facts were that Koszta, a Hungarian by birth, fled Austria after the rebellion of 1848 and escaped to Turkey. Turkey having declined Austria's demand for his extradition, he was released by Turkey on the understanding that he would leave Turkey and not return. This appears to have been with Austria's consent. Coming to the United States, he made a declaration of intention to become a citizen, and after a residence of somewhat less than two years, returned to Turkey on alleged private business. He placed himself under the protection of the American consul at Smyrna, and received a tezkereh, or local protection paper. While at Smyrna, awaiting an opportunity to return to the United States, he was arrested under violent circumstances by Austrian authorities claiming to have the right to arrest him under the capitulations between Austria and Turkey. The arrest was made without the authority and over the refusal of permission of the Turkish governor. Koszta was taken on board an Austrian war-vessel and confined in irons. The demand of the American consul and chargé for his release having been refused, an American war-vessel in the harbor threatened to sink the Austrian ship unless Koszta was at once delivered up. As a compromise, Koszta was turned over to the French consul until the matter could be settled by the two governments concerned, and in the end Koszta was sent to the United States, Austria reserving the right to proceed against him should he return to Turkey.

Secretary Marcy's argument in support of the right of the United States to protect Koszta1 was based upon several grounds, the most important of which were: (1) that the seizure of Koszta having taken place within the jurisdiction of a third power, the respective rights of Austria and the United States were to be determined, not by the municipal law of either country, but by international law; (2) that although Austria claimed him as its subject he had been practically banished when he left Turkey, by agreement, with Austria's consent,

1 The argument is set out in full in Mr. Marcy to Mr. Hülsemann, Sept. 26, 1853, H. Ex. Doc. 1 and S. Ex. Doc. 1, 33rd Cong., 1st sess. See also Moore's Dig. III, 824-834.

and that he was, even by Austrian law, no longer an Austrian subject; (3) that Austria's seizure could not be justified under her treaties with Turkey or international law, Turkey having expressly refused permission to make the arrest; (4) that among the special grounds which sustained the right of the United States, under international law, to protect Koszta were: (a), the fact, that although not a citizen under the municipal laws of the United States, he had by virtue of his domicil and declaration of intention to become a citizen, acquired, in international law, a national character as American; and (b), even if this were not so, he had, by placing himself under the extraterritorial protection of the American consul at Smyrna, become invested with the nationality of the United States.

$251. Erroneous Interpretations.

Mr. Marcy's contentions in the Koszta case led to various erroneous interpretations and constructions and misconceptions of law, some of which, even up to recent years, have resulted in some confusion of thought. It was, for example, assumed that a declaration of intention may be considered as conferring an American character and a right to diplomatic protection in a third country. Mr. Marcy's own firm denial of any such construction of his statements has not altogether served to cause its abandonment. In fact, it will be recalled that the Act of March 2, 1907, confers a right to issue a limited passport, under certain special circumstances, to declarants. Apart from this special case, a mere declarant has no claim of right to American protection,2 and in recent years when an attempt has been made to found a claim to American protection in a third country upon a declaration of intention, the Department has replied:

"The somewhat extreme position taken by Mr. Marcy in the Koszta case, that the declarant is followed during sojourn in a third country by the protection of this Government,3 has since been necessarily re

1 Supra, p. 501. In every other case, the passport is as firmly refused to a declarant as it is to any other alien.

2 The extension of good offices has on one or two occasions been authorized in countries in which the U. S. exercises extraterritoriality. Supra, p. 569.

3

* This is not an accurate statement of Mr. Marcy's position, for he considered the declaration of intention and domicil together, and regarded the former as evidence of the latter.

garded as applying particularly to the peculiar circumstances in which it originated, and to relate to the protection of such a declarant in a third country against arbitrary seizure by the Government of the country of his origin." 1

Again, it was for some time supposed that Secretary Marcy considered a domiciled alien entitled abroad to the protection accorded a citizen, on the ground that when resident in the United States such domiciled alien owed temporary allegiance to and was entitled to local protection by the United States. While this erroneous belief was short-lived, traces of it may be discovered in positions assumed by the Department of State at various times attributing some vague title to special protection abroad to the fact of domicil in the United States, especially when accompanied by a declaration of intention. President Cleveland, in 1885, even made a recommendation to Congress that the rights of such persons should be defined by statute.2 Based upon an opinion by Dr. Wharton, Solicitor for the Department of State, to the effect that certain civil rights attaching to domicil are entitled to international recognition, Secretary Bayard in 1885 instructed the diplomatic officers of the United States that persons domiciled in the United States, although not naturalized, are entitled "to maintain internationally their status of domicil, and to claim protection from this government, in the maintenance of such status.' For several years thereafter instructions were issued in several cases extending a vague degree of protection to persons domiciled in the United States, who, having declared their intention to become citizens, were temporarily abroad. Fortunately, this peculiar confusion between domicil and nationality was of comparatively short duration, and Secretary Bayard himself became convinced that his instruction afforded no satisfactory rule of action.5 In the revision of the instructions to diplomatic officers in 1897 the reference to domicil was omitted. Finally, there is evidence that Secretary Marcy himself regarded

4

13

1 Mr. Olney, Sec'y of State, to Mr. Denby, Jan. 15, 1897, For. Rel., 1896, 92–93. Reaffirmed by Mr. Hay, Sec'y of State, to Mr. McKinney, March 20, 1899, MS. Dom. Let. 544–546.

2 Congress took no action upon the recommendation. Moore's Dig. III, 846. Printed personal instructions to diplomatic agents, § 118.

'Burnato's and King's cases, Moore's Dig. III, 847–850.

* See Baron Seillière's case in France, For. Rel., 1887, 303 et seq.

« AnteriorContinuar »