the United States is without power to naturalize an alien by a process other than that prescribed by the general law; it merely concedes that he who claims the benefit of that law must not perpetrate a fraud upon it, or otherwise hold it in contempt.1

The United States does not, however, admit the right of a foreign government to pass judgment on the validity of a decree of naturalization, reserving to itself the right, and manifesting also the disposition, in all proper cases, to inquire into the regularity of a judgment that is open to impeachment.2

If the validity of the naturalization of an individual claimant (or of one through whom a claim is derived) is challenged in a case before an international tribunal, the Department of State appears to recognize the reasonableness both of the right of contest and of the decision of the question by the arbitral court. The consent to its jurisdiction is believed to be implied from the agreement for the submission of claims. Such tribunals have not hesitated to impeach certificates of naturalization when the evidence warranted such action.4

1 Opinion of Commander Bertinatti, in the Medina Case, American-Costa Rican Commission, Convention of July 2, 1860, Moore, Arbitrations, III, 2586. 2 Mr. Fish, Secy. of State, to Mr. Nelson, Minister to Mexico, Feb. 13, 1872, For. Rel. 1872, 387, Moore, Dig., III, 513; Mr. Bayard, Secy. of State, to Mr. Bluhdorn, Aug. 21, 1888, MS. Notes to Austrian Legation, VIII, 575, Moore, Dig., III, 514; Mr. Gresham, Secy. of State, to Mr. Tripp, Minister to Austria-Hungary, Sept. 4, 1893, For. Rel. 1893, 23, 25, Moore, Dig., III, 515.

3 Instructions of Mr. Frelinghuysen, Secy. of State, to Mr. Suydam, advocate for the United States, before the Spanish Claims Commission, Feb. 25, 1882, in which it was declared: "The true rule to govern the commission is, that when an allegation of naturalization is traversed and the allegation is established prima facie by the production of a certificate of naturalization, or by other competent and sufficient proof, it can only be impeached by showing that the court which granted it was without jurisdiction, or by showing, in conformity with the adjudications of the courts of the United States on that topic, that fraud, consisting of intentional and dishonest misrepresentation or suppression of material facts by the party obtaining the judgment, was practiced upon it, or that the naturalization was granted in violation of a treaty stipulation or of a rule of international law." Moore, Arbitrations, III, 2619, 2620. This rule was accepted by the commissioners for both the United States and Spain.

Concerning generally the question before the Spanish Claims Commission, see Moore, Arbitrations, 2590-2621, Moore, Dig., III, 506–509. Concerning the Disposition of Fraudulent Certificates, Moore, Dig., III, 516–518.

With respect to Crimes and Offenses against the Naturalization Laws of the United States, see Van Dyne, Naturalization, 189-194.

4 Case of Medina, United States-Costa Rican Commission, Convention of July 2, 1860, Moore, Arbitrations, III, 2583-2589; Cases before Spanish Claims Commission, Agreement of Feb. 11-12, 1871, id., 2621-2647; Cases before French-American Commission, Convention of Jan. 15, 1880, id., 2647-2655; Flutie Cases before American-Venezuelan Commission, 1903, Ralston's Report, 38.

See, also, Case of Rita L. Ruiz, before Spanish Treaty Claims Commission, under Act of Congress, March 3, 1901, 37, published also in Van Dyne, Nat

That a child may at birth become the object of a double claim of allegiance is the natural consequence of the fact that States may without impropriety rely upon either the jus sanguinis or the jus soli as the source of national character, and the necessary result whenever a State, such as the United States, bases its laws upon both principles. Nevertheless, this very reliance upon both aids in the solution of the conflict by necessarily imputing to such State respect for the nature of the claim of that other within whose territory the child happens to be.2 The latter is able to exact allegiance from him so long as he is deemed incapable of making any choice, and remains within its control. The power of the territorial sovereign and the incapacity of the child combine to fortify the claim.

When, however, the child attains his majority, emigrates to a foreign country, acquires by naturalization its nationality, and returns to the State of his origin, it will be seen that, according to the view of the United States, the doctrine of double allegiance is not applicable. Naturalization by the adult, capable of making a choice, is regarded as impressing upon him a new and solitary national character, entitled to general respect until he expatriates himself.3

uralization, 144, in which it was held that the Commission, although established by Act of Congress, was sitting as an international tribunal, and as such was empowered to impeach for cause an American certificate of naturalization. 1 Mr. Lansing, Secy. of State ad interim, to Senator H. C. Lodge, June 9, 1915, American White Book, European War, II, 149; Department of State, Circulars Relating to Citizenship, etc., 1916, p. 75. See, generally, Moore, Dig., III, 518-519; Oppenheim, 2 ed., 383-386; Westlake, 2 ed., I, 221-225. Opinion of Mr. Hoar, Atty.-Gen., 13 Ops. Attys.-Gen., 89, 91, Moore, Dig., III, 519; Report of Mr. Fish, Secy. of State, to the President, Aug. 25, 1873, For. Rel. 1873, II, 1186, 1191-1192, Moore, Dig., III, 519; see, also, Westlake, 2 ed., I, 223. See, also, Mr. Wilson, Acting Secy. of State, to Mr. Pierrepont, Chargé at Santiago, Aug. 3, 1910, For. Rel. 1910, 195.

2

Obviously a State cannot justly exact allegiance of a resident not born within its territory and the child of alien parents; for such an attempt would defy the principle that claims of allegiance, in order to be just, must be derived from recognized sources. Herein is illustrated the fact that the propriety of the action of the individual State in respect to nationality, as in all other matters, finds its ultimate test in an international rather than a domestic standard, and in one manifest in the practice of enlightened States.

3 Declares Professor Moore: "It is sometimes stated that a double allegiance also exists where a person born in one country afterwards emigrates to and becomes a citizen of another country. That a person in such a situation may be subject to the claims of allegiance in two countries, is in point of

b

The Attitude of the United States

(1)

§ 373. Foreign-born Children.

Children born outside of the limits of the United States who are citizens thereof by virtue of section 1993 Revised Statutes,1 and who continue to reside outside of the United States, are deemed by the Department of State to be entitled to passports during minority. Recognizing the impropriety of interference with the allegiance which such children owe to the country of birth which regards them as nationals, the United States formerly issued passports qualified with the statement that the rights of the holders were subject to the rights, obligations and duties which might attach to them in the State of birth and of continued residence.3

According to the Act of March 2, 1907, such persons, in order to receive the protection of the United States, are required, upon reaching the age of eighteen years, to record at an American Consulate their intention to become residents and remain citizens of the United States, and are further required to take the oath

fact no doubt true; but it is in point of principle equally true that, when writers place such a case under the head of double allegiance, they at least impliedly hold that the doctrine of voluntary expatriation, as maintained by the United States, is not well founded. From the point of view of the doctrine of expatriation, as enunciated by the United States, the man who, voluntarily forsaking his original home and allegiance, acquires a new one, has thereafter but one allegiance that of his adopted country." Dig., III, 518–519. See, also, the Right of Expatriation, infra, §§ 376-378.

1 § 1993 provides that "All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States."

2 Mr. Adee, Acting Secy. of State, to Mr. Combs, No. 71, Sept. 15, 1903, For. Rel. 1903, 595, Moore, Dig., III, 525.

3 See excellent statement of Mr. Bayard, Secy. of State, to Mr. Vignaud, Chargé at Paris, July 2, 1886, For. Rel. 1886, 303, 304, referring to opinion of. Mr. Hoar, Atty.-Gen., 13 Ops. Attys.-Gen., 89, Moore, Dig., III, 529; Mr. Frelinghuysen, Secy. of State, to Mr. Kasson, Minister to Germany, Jan. 15, 1885, For. Rel. 1885, 396, 398, Moore, Dig., III. 530; Mr. Olney, Secy. of State, to Mr. Strobel, Minister to Chile, June 4, 1896, For. Rel. 1896, 34–35, Moore, Dig., III, 526.

Obviously where such a conflict does not arise under the legislation of the foreign State, no reason other than what may be apparent from the domestic law of the United States exists for the withholding of protection in the country of birth. Mr. Adee, Acting Secy. of State, to Mr. Coombs, Minister to Japan, April 28, 1893, For. Rel. 1893, 401, Moore, Dig., III, 530.

It should be noted that qualified passports have not been issued for many

years.

FOREIGN-BORN CHILDREN

i§ 373 of allegiance to the United States upon attaining their majority.1 It may be doubted whether bare compliance by the foreign-born child with either or both of the foregoing requirements would justify the United States in attempting to shield him from burdens of citizenship which might be imposed by the country of birth; for such conduct on his part, while he remained within its territory, could not reasonably deprive that State of the right to exact allegiance of him as a consequence of his birth within its territory. The international value of an election of American nationality by one having capacity to elect, is believed to depend upon actual removal to the United States.3

It is not unreasonable for the State of origin to declare that a child of its own citizens born within its own territory, who is naturalized abroad in consequence of the parents' naturalization, is, nevertheless, not deprived of his nationality of origin if he during minority returns to its domain. Under such circumstances it is believed that the duty of that State to respect the

1

§ 6, 34 Stat. 1229, U. S. Comp. Stat. 1918, § 3963. See circular instructions of Mr. Root, Secy. of State, to American Diplomatic and Consular Officers, April 19, 1907, For. Rel. 1907, I, 9.

According to a notice to American Diplomatic and Consular Officers, Mar. 14, 1911, it was declared by Mr. Wilson, Acting Secy. of State, that the Department of State had decided that the declarations of "intention to become residents and remain citizens of the United States" required by the statute had reference to the right of protection rather than citizenship under the municipal law, and that "such declarations may be made at any time after the minors concerned have reached the age of eighteen years and before they take the oath of allegiance to the United States; not necessarily before they reach the age of nineteen years." For. Rel. 1911, 2.

See, also, Mr. Adee, Acting Secy. of State, to Mr. Kerens, Ambassador to Austria-Hungary, Oct. 7, 1910, respecting the citizenship of R. Warren-Lippit, For. Rel. 1910, 76.

2 The purpose of the statute was to prescribe circumstances when foreignborn children should cease to have the right to invoke the protection of the United States, rather than to assert conditions when they should be protected by the United States against claims of allegiance made by the State of birth and of continued residence.

The fact of election, as prescribed by the statute, may serve by virtue of the law of the State of birth and residence (as in France) to produce relinquishment by it of its claim of allegiance. In such case compliance with the Act of Congress is efficacious only so far as it results in compliance also with the foreign law. See Mr. Vignaud, Chargé at Paris, to Mr. Bayard, Secy. of State, June 15, 1886, For. Rel. 1886, 301, Moore, Dig., III, 528. Compare the situation in Russia, indicated in a communication of Mr. Adee, Acting Secy. of State, to Mr. Coombs, Minister to Japan, April 28, 1893, For. Rel. 1893, 401, Moore, Dig., III, 530.

3 Mr. Bayard, Secy. of State, to Mr. McLane, Minister to France, Feb. 15, 1888, For. Rel. 1888, I, 510, 511, Moore, Dig., III, 548; Same to Mr. Vignaud, Chargé at Paris, July 2, 1886, For. Rel. 1886, 303, 304, Moore, Dig., III, 546; Mr. Hay, Secy. of State, to Mr. White, Ambassador to Germany, No. 959, Nov. 4, 1899, MS. Inst. Germany, XXI, 104, Moore, Dig., III. 551.

See, in this connection, Ex parte Gilroy, 257 Fed. 110, 126; also Native-born Children, infra, § 374.

naturalization of the parents fails to include the duty to heed also that of the child. Thus a foreign-born child naturalized in the United States in consequence of the naturalization of its parents, upon returning during minority to the State of origin may be regarded (while within its territory) as a national thereof, and subject to the performance of obligations incidental to allegiance, from which the United States should not endeavor to shield him. It will be observed that the Act of Congress clothing such an individual with American citizenship by virtue of the naturalization of his parents is conditioned upon the child's "beginning to reside permanently in the United States." 2

§374. Native-born Children.

(2)

Children born to foreign parents in the United States, and who are American citizens within the meaning of the Fourteenth Amendment to the Constitution, if taken to the country of the parents' nationality, are deemed to be entitled to passports during minority.3 The Department of State does not, however, endeavor to protect the child from the burdens of allegiance imposed by that State, in case its laws regard him as a national by virtue of the jus sanguinis.*

1 The United States might possibly exercise its good offices in behalf of such an individual if he entered the domain of a foreign State as a transient visitor not contemplating an extended sojourn therein.

See Case of René Dubuc, For. Rel. 1910, 514-516.

The Department of State has maintained that the naturalization, by virtue of the statutory laws of the United States, of a child of Portuguese birth, in consequence of the naturalization of the parents in the United States, attaches to such child an American nationality which should be respected by Portugal by reason of Art. I of its naturalization convention with the United States of May 8, 1908, which provides that subjects of Portugal who become naturalized citizens of the United States and shall have there resided uninterruptedly for five years shall be held by Portugal to be American citizens and shall be treated as such. Mr. Knox, Secy. of State, to Mr. Bryan, Minister to Portugal, Jan. 12, 1910, telegram, in the Case of Antonio S. Nunes, where it is also stated that "similar construction has been put upon provisions in our naturalization treaties with other countries." For. Rel. 1910, 832.

2 § 5, Act of March 2, 1907, 34 Stats. 1229. Also Effect of Parents' Naturalization on Infants, supra, § 367.

3 Fourteenth Amendment, Section 1.

4 Mr. Frelinghuysen, Secy. of State, to Mr. O'Neill, M. C., Aug. 8, 1882, 143 MS. Dom. Let. 270, Moore, Dig., III, 532; Mr. Blaine, Secy. of State, to Mr. Phelps, Minister to Germany, May 3, 1892, For. Rel. 1892, 189, Moore, Dig., III, 533; Mr. Bacon, Acting Secy. of State, to Mr. Tower, Ambassador to Germany, March 8, 1907, For. Rel. 1907, I, 516.

Compare the divergent rulings in Case of R. J. J. Pinto and other cases in 1899 and 1901, For. Rel. 1899, 588-589; id., 760, 762; id., 1901, 532.

When a child, born in the United States to parents previously naturalized therein, is taken during minority to the territory of the State of the parents'