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 A treatise on the law of citizenship in 
 
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A TREATISE 
 
 LAW OF CITIZENSHIP 
 
 UNITED. STATES 
 
 TREATED HISTORICALLY 
 
 PRENTISS WEBSTER 
 
 OF THE BOSTON BAB 
 
 ALBANY, N. Y. 
 
 MATTHEW BENDER, LAW BOOK PUBLISHER 
 1891 
 
Entered according to act of Congress, in the year eighteen hundred and ninety-one, 
 
 By MATTHEW BENDER, 
 
 In the office of the Librarian of Congress, at Washington. 
 
 , vV -A , 
 
 WEED, PARSONS AND COMPANY, 
 
 PRINTKRB AND E L E C T R O T Y P E RS 
 
 ALBANY, N. Y. 
 
TO THE 
 
 l£tftt0KaMje gjJjeujaraitt ^cauMitt gwtXjeu, 
 
 OF MASSACHUSETTS, 
 
 "WHO, IN SEPTEMBER, 1890, COMPLETED ONE-HALF A CENTURY OF ACTIVE 
 
 PRACTICE OF THE LAW IN THE COURTS OF MANY STATES, AND IN 
 
 THE FEDERAL COURTS OF THE UNITED STATES, THESE 
 
 PAGES ARE RESPECTFULLY INSCRIBED BY THE 
 
 AUTHOR. 
 
PREFACE. 
 
 " The distinction between citizens proper, that is, the constit- 
 uent members of the political sovereignty, and subjects of that 
 sovereignty who are not, therefore, citizens is recognized in the 
 best authorities of the public law." This distinction is true. The 
 further question of who are and who are not citizens has its dif- 
 ficulties, Accept the definition of citizenship to be the enjoy- 
 ment of equal rights and privileges at home, and equal protec- 
 tion abroad, and consider the question from this standpoint, 
 from which alone it should be treated, for we have no law in the 
 United States which divides our citizens into classes or makes 
 any difference whatever between them. We then discover the 
 importance that the equal rights of citizens when at home should 
 maintain when abroad, because questions as to citizenship are 
 determined by municipal law in subordination to the law of na- 
 tions. Therefore, the value of citizenship should not be under- 
 estimated. 
 
 Every individual should have some central point from which 
 he emanates and to which he returns, where he is clothed with 
 citizenship and the consequent enjoyment of all rights and priv- 
 ileges which citizenship confers. 
 
 The modern ways of communication from one country to an- 
 other, the necessity of temporary and permanent sojourn by 
 foreigners in this country, and by American citizens in foreign 
 countries growing out of trade and commercial relations, require 
 that a citizen of the United States should understand his exact 
 relation to this government, and his relations to foreign govern- 
 ments; and to reach this understanding, the question of citizen- 
 ship should be discussed with the light of the existing practice, 
 not solely from the standpoint of the municipal statutes of this 
 
VI PREFACE. 
 
 country, but more especially from the standpoint of the practice 
 of the international common law to which our own practice has 
 materially contributed. 
 
 In the early days of our republic the principle was laid down 
 to welcome all who seek homes in this country, and to deny it to 
 none. The right of emigration and consequent expatriation by 
 means of naturalization was recognized. Aliens born have ever 
 found homes in our republic ; generations have succeeded them 
 and engaged in the development, assisted in the progress, identi- 
 fied themselves with our institutions, and shared in the pride of 
 our greatness. 
 
 In the days of the Roman republic it was the proud honor of a 
 Roman citizen to state at home and abroad civis Romanus sum; 
 so it should be in this country for an American to main- 
 tain, " I am an American citizen." 
 
 Therefore, the elements which enter into the inquiry should 
 be considered. 
 
 The first inquiry should be the means by which citizenship is 
 acquired; whether by descent or naturalization; in either one of 
 these two ways citizenship is generally conferred except in cases 
 of adoption by marriage. 
 
 Municipal rules have value within the territory of their juris- 
 diction, but have no extra-territorial effect. 
 
 To illustrate: In our country there may be a municipal rule, 
 that the children of subjects of that country and the children of 
 aliens born within the territory of that country are by virtue of 
 birth within the territory subjects of that country. The same 
 rule may prevail in a neighboring country. Again, in both these 
 countries there may be municipal rules by which the children of 
 subjects of the respective countries born abroad follow the citi- 
 zenship of the parents. It is evident that a conflict as to citizen- 
 ship cannot be avoided in these cases. 
 
 For example: Assume England and the United States to 
 have the same rules. A child of a citizen of the United States 
 born in England is an English subject, and the statute of the 
 United States asserts that the children of Americans born abroad 
 are Americans. Yet these rules have governed until quite a re- 
 cent date in both countries. For example: in 1858 the Earl of 
 
PREFACE. Vll 
 
 Malmesbury expressed the following opinion in Walewaski's 
 case: " If Walewaski had been born in Prance, of English pa- 
 rents, and had voluntarily returned to France, he would have 
 been a British subject in England, but he would not have been 
 entitled to British privileges or protection in France as against 
 the country of his actual birth or domicile." 
 
 These rules are the outgrowth of municipal statutes, and, as 
 such, involve the question of citizenship, in continuous conflict. 
 
 This should be avoided, and the practice of modern days will 
 show the impracticability of the theory of the derivation of 
 citizenship from birth on this or that inanimate piece of ground, 
 whether in the country of one's parents or on foreign 
 soil. Such a theory had its origin in the feudal law, on which 
 the principles of this country were not grounded, and, while it 
 may be argued that it finds place in the English common law, it 
 must not be forgotten that " our ancestors brought with them, 
 and claimed as their birthright its general principles, and 
 adopted that portion of it only which was applicable to their sit- 
 uation." 
 
 The conclusion reached in the following discourse will be that 
 citizenship is conferred by descent. 
 
 The other means of acquisition of citizenship is by naturaliza- 
 tion. Under our practice no rule governs by which an inquiry 
 is possible into the relations of the applicant to his country of 
 origin. It cannot be doubted on the authorities : first, that 
 every subject has obligations to perform to his country; and 
 second, that the obligations should be such that they can be le- 
 gally discharged. This done and the departure of the citizen 
 from his country of origin to seek a new home elsewhere should 
 be permitted. 
 
 Great Britain, since 1870, has recognized the right of free ex- 
 patriation by her subjects . France gives to her citizens the au- 
 thorization to be naturalized abroad. 
 
 Germany countenances the right of departure when in good 
 faith to found homes in foreign lands after the fulfillment of 
 existing obligations. 
 
 The other countries of Europe do not dispute the legal right 
 of their subjects to become naturalized citizens abroad when done 
 
Vlll PREFACE. 
 
 lawfully with a due observance of the qualifications which they 
 have enacted to govern in such cases, with the exception of Rus- 
 sia and Turkey, in which countries an immunity peculiar to 
 those governments is enjoyed, by which the restriction on the 
 exercise of the right is held to be a matter of imperial favor. 
 
 The South American republics recognize the right in accord- 
 ance with the practice existing among civilized governments. 
 
 There is, however, involved in this principle of expatriation a 
 very important point — that of acting in good faith. Citizenship 
 is not, and should not be held to be, a matter of convenience, to 
 be taken on and thrown off to meet existing emergencies; 
 nor should it be resorted to as a supposed means by which to 
 evade obligations under which any individual is to either his 
 country of origin or country of adoption. The very element of 
 departure from one country and the acquisition of citizenship 
 in another should be governed by good faith to the respective 
 authorities of the countries with which the individual has to do 
 in the transfer of his allegiance . 
 
 It is difficult to find a case where good faith has governed the 
 action of the individual, that the question of citizenship has 
 arisen to cause the citizen inconvenience or trouble. 
 
 In the Christ Ernst case the rule is laid down to be — the nat- 
 ural right of every free person who owes no debt and is guilty 
 of no crime, to leave the country of his birth in good faith, and for 
 an honest purpose, is incontestible. It will be found in the practice 
 that the intent is more often controlled by the acts of the citi- 
 zen than by his professions or loudly expressed oral declarations, 
 in particular with reference to the loss of citizenship acquired 
 by naturalization upon return to the country of origin. 
 
 This has grown out of our naturalization treaties made and 
 entered into with several European governments and South 
 American republics in 1868 and 1870. For example: A former 
 citizen of the United States becomes a naturalized citizen of the 
 Republic of Ecuador; he returns to the country of his nativity; 
 he remains two years, and, acting under the naturalization treaty, 
 the government of the United States claims that he has re- 
 nounced his citizenship in Ecuador by a continued two years' 
 residence in his country of origin; this claim he denies, and pro- 
 duces evidence of his intent to remain a citizen of Ecuador. 
 
PREFACE. IX 
 
 In a similar case with Germany no provision is made for the 
 production of evidence of his intent, and the word "may" in 
 the treaty has, in- the practice with Germany, been construed to 
 mean "shall." Merely no right is given to. defend against the 
 claim of the government. 
 
 In a similar case with Great Britain a change depends on the 
 citizen's own volition; if a former British subject has become a 
 naturalized citizen of the United States, he must comply with 
 the naturalization laws of Great Britain to divest himself of his 
 American citizenship. 
 
 The rule laid down by Mr. Justice Marshall is clear and ex- 
 plicit: "If an American citizen can expatriate himself he divests 
 himself by the very act of expatriation as well of the obligations 
 as of the rights of a citizen . He becomes ipso facto an alien, and 
 citizenship once lost cannot be recovered by residence, but he 
 must go through the formula prescribed by law for the natural- 
 ization of an alien." 
 
 In the English practice, under the Naturalization Act of 1870, 
 the alien who applies for English citizenship is granted a quali- 
 fied certificate of naturalization, which answers well the purpose 
 of citizenship in England when at home, but when abroad, in 
 particular in the country of origin, does not carry with it that 
 protection which English citizens enjoy when abroad, who are 
 such by descent or native born, as the term is used in England. 
 This precautionary measure is taken with a view to avoid con- 
 flict of authority as between the country of origin and the 
 country of adoption. In cases where the alien departed from 
 his country, leaving obligations unfulfilled, illegally or without 
 authorization, to be naturalized abroad, or whatever the pre- 
 requisites may have been, which have not been complied with, the 
 English qualified certificate would seem to be granted, depend- 
 ent upon these conditions precedent to make the citizenship com- 
 plete and insure protection from the English government . It 
 may go so far in the practice as to be in effect, when the condi- 
 tions have been avoided, entirely nugatory to a qualified natural- 
 ized alien in England when abroad, and in particular when in 
 the country of origin. 
 
 In re Bourgeoise, a Frenchman came to reside in England, and 
 
 B 
 
X PREFACE. 
 
 in 1871 obtained the usual qualified certificate of naturalization 
 as a British subject, but did not obtain from the French gov- 
 ernment the necessary authority to become a naturalized citizen 
 abroad. In 1880, he married an English subject and returned 
 to Prance to reside and died there. Held, that at the time of 
 his death he was a French citizen. 
 
 Such a relation to a government must be very unsatisfactory 
 in form and in fact. Eegardless of the question of good faith, 
 and when the applicant has acted in every regard in perfect good 
 faith, he receives his naturalization certificate with qualifications. 
 
 Citizenship qualifiedly conferred cannot have the effect of 
 making the citizen a constituent member of the body politic, of 
 constituting him a particle of the whole, with equal rights and 
 privileges at home and equal protection when abroad with the 
 members of the body politic, who constitute the whole. It' leads 
 to a classification abroad at least if not at home, and is not 
 much removed from the grant in the Middle Ages of trading 
 certificates to aliens. 
 
 This classification does not maintain in this country nor in 
 other European countries. 
 
 It will further be seen from the practice that the question of 
 citizenship is often left in an unsettled condition by the author- 
 ities when brought up for consideration, when the naturalized 
 citizen returns to the country of origin for either temporary or 
 permanent purposes, where the residence is extended over the 
 terminus of time of two years mentioned in the naturalization 
 treaties. In particular is this the case with Germany, where 
 rather than go into the rationale of the question a peremptory 
 order issues to leave the country for the reason that the presence 
 of the citizen is inimical to the interests of the country. 
 
 This act is within the scope of the regulation of internal af- 
 fairs, and unless it is carried so far in its application as to place 
 the United States on a footing different from that of comity be- 
 tween nations, or deny to it the rights of a favored nation at 
 •peace with Germany, remonstrance would be futile. 
 
 There is another point out of which have grown many com- 
 plications, which is the expression that a citizen can be clothed 
 with a dual nationality: that is, in one country a citizen of that 
 
PREFACE. Xi 
 
 country, and when in another country a citizen of the other 
 country. For example: when in the United States, a citizen of 
 the United States, and when in Germany a citizen of Germany. 
 This was held in Stenkauler's case by the authorities of the 
 United States. 
 
 Stenkauler was born in the United States, of German parents 
 naturalized in the United States, who returned to Germany 
 while the son was a few years old. Under the treaty of nat- 
 uralization it was held by the German government that the 
 father by two years' continued residence in Germany had re- 
 nounced his acquired citizenship in the United States, and 
 thereby the citizenship of the son was changed, and he was held 
 for military service. Protection from the United States was de- 
 nied him, and a dual nationality alleged, to the effect that, upon 
 return of the son to the United States, he could take on his 
 citizenship in this country. 
 
 The modern authorities fail to sustain this proposition. 
 
 It will be seen that the subject is important, and its import- 
 ance has increased of late years. Cases have been discussed at 
 length when they have arisen, and been determined, some with 
 more and some with lesser comment. 
 
 The purpose of the following pages is to lead up historically 
 to the standpoint by which citizenship in its international sense 
 should be judged. For it is quite clear, as was said, by Mr. Jus- 
 tice Miller, that there is a citizenship of the United States, and 
 a citizenship of a state which are distinct from each other, and 
 with state citizenship this work has nothing to do, only so far as 
 it is embodied in the question of citizenship of the United States. 
 
 The writer hopes to have determined this standard, and if his 
 labors have convinced a few of his readers, he will feel his work 
 has not been in vain. 
 
CONTENTS. 
 
 Citizenship historically considered, 1. Citizenship among the Romans, 
 3. Effect of the invasion of the Barbarians on Roman citizenship, 4. 
 Governments established by the Barbarians, 5. Relations between the 
 governments of different states in the Middle Ages, 6. Relations of citi- 
 zens to government, 7. Classification of citizens, 9. The right of expat- 
 riation, 11. The rale of Grotius, 13. The rule of Puffendorf, 14. The 
 rule of Bynkerschoek, 15. The rule of Foelix, 15. The rule of Ruther- 
 forth, 16. The rule of Vattel, 16. The rule of Heffter, 16. The rule of 
 Bluntsehli, IV. The rule of Frist, 17. The rule of DeMartens, 17. Local 
 rules on citizenship in the United States, 18. Theory and practice, 20. 
 Effect of French Revolution and Declaration of Independence of the 
 United States on the feudal theory of acquisition of citizenship, 31. 
 Forms of government, 34. Treaties, 39. Relation of citizen to country, 
 41. Obligations, 46. Existing obligations, 47. What constitutes full 
 membership of a society, 48. Right of emigration, 49. Man is either 
 a citizen or an alien, 49. Man becomes a member of society by positive 
 laws, 49. By descent and naturalization, 50. English rule of immuta- 
 ble allegiance, 51. Not adopted in the United States, 51. Practice 
 under the English rule with foreign countries, 53. Practice with the 
 United States, 63. English rule never recognized in the United States 
 in its practice, 91. Citizenship acquired by descent the rule in France, 
 106. Austria, 106. Prussia, 107. Sweden and Norway, 107. Switz- 
 erland, Denmark, Holland, Portugal, Italy, Belgium, Spain, 107. The 
 rule of descent as shown from the practice of the United States with 
 Germany, 109. With France, 117. With Austria, 120. With Switz- 
 erland, 122. With Italy, 123. With China, 124. Citizenship by 
 naturalization in the United States, 129. The right of expatriation, 130. 
 Declaration of intent, 131. Prerequisite to citizenship, 132. Effect of 
 
XIV CONTENTS. 
 
 naturalization on minor children, 133. Effect of naturalization on the 
 wife, 138. Fraudulent naturalization, 143. The definition of expatri- 
 ation, 144. Expatriation recognized by treaties, 148. Eight of protec- 
 tion of naturalized citizens when abroad, 151. Rule applicable upon 
 return to country of origin, 152. Obligations unfulfilled and existing 
 in country of origin before emigration, 158. Military service obliga- 
 tory, 159. Right to protection of citizens of United States when 
 abroad, 162. Long residence abroad may work loss to right of protec- 
 tion, 164. Non-payment of taxes, 166. Revenue and income tax, 167. 
 Refusal to extend protection does not work loss of citizenship, 169. 
 Naturalized citizens, 170. Rule contemplates residence in country of 
 adoption, 171. Rights of naturalized citizens under different naturali- 
 zation treaties, 172. With Hessen-Darmstadt, 172. Wurtemburg, 172. 
 Baden, 173. No German union, 173. Bavaria, 173. Norway and 
 Sweden, 174. Denmark, 174. Austria, Belgium, Equador, 175. The 
 practice under the naturalization treaties, 188. Responsibility on the 
 Executive of the United States, 188. Right of expulsion, 242. Prac- 
 tice under the right of expulsion, 242. Practice with countries with 
 which the United States have no treaty of naturalization, 250. Who 
 are aliens, 289. Owe a local allegiance, 290. Rights of property, 292. 
 Right of claim for damages to person and property, 292. Citizenship 
 not conferred by adoption on alien children, 295. Citizenship confer- 
 red on alien women by marriage, 295. Citizenship of married women 
 after divorce, 299. When in widowhood, 299. Citizenship conferred 
 for service in armies of the United States, 301. Passports, 301. Right 
 to protection under passport, 302. Claims of citizens of United States 
 for damages from foreign governments, 305. 
 
TABLE OF CASES CITED AKD DISCUSSED. 
 
 Page. 
 
 Amther 9 Opinions of Attorney- Generals . 147 
 
 Anderson F. R. of IT. S., 1886, p. 310 240 
 
 Argumiborn Eng. Par. Papers 62 
 
 Ardut F. R. of U. S., 1875, p. 569 192 
 
 Arlich. " 1871, p. 888 221 
 
 Baab " 1877, p. 246 197 
 
 Bagur " 1886, p. 806 167 
 
 Batzell " 1881, p. 1028 258 
 
 Baumer " 1878, pp. 210, 228. . 200 
 
 Bausen " 1886, p. 310 240 
 
 Beckman " 1875, p. 571 194 
 
 Berude " 1879, p. 371 205 
 
 Blesh " 1877, p. 247 116 
 
 Block " 1879, p. 373 211 
 
 Boig " 1879,p.741 268 
 
 Boetcher " 1882, p. 188 206 
 
 Bourry " 1883, pp. 7, 12 121 
 
 Bosdet Eng. Par. Papers 58 
 
 Boynton F. R. of U. S., 1882, p. 212 246 
 
 Brink " 1882, p. 187 206 
 
 Burnato Wheaton Int. Law 141 
 
 Castellan F.R. of U. 8., 1875, p. 579 190 
 
 Cedergreen " 1882, p. 488 218 
 
 Cohn " 1874, p. 447 189 
 
 Colsky " 1881, p. 1029 258 
 
 Cordes " 1882, p. 188 207 
 
 Cormick " 1882, p. 212 246 
 
 Cranz " 1886, p. 27 171 
 
 Crossthwaite Eng. Par. Papers 62 
 
 Dalton P. R. of U. S., 1882, p. 212 246 
 
XVI CASES CITED AND DISCUSSED. 
 
 Page. 
 
 Daly F. R. of U. S., 1882, p. 212 246 
 
 Drevet " 1885, pp.369, 373. . 118 
 
 Eggers " 1879,p.369 203 
 
 Emden " 1885, pp. 803, 809 .. 122 
 
 Foichat " 1884, pp. 145,174. . 253 
 
 Fogarty " 1882, p. 212 246 
 
 Fresh " 1875, p. 572 196 
 
 Foreman Eng. Par. Papers 61 
 
 Feinkopf F. R. of U. S., 1885, pp. 5, 27 221 
 
 Gabriel " 1881, p. 475 215 
 
 Gad " 1885, pp. 419, 423. . 242 
 
 Ganzenmuller " 1878, p. 216 201 
 
 Gehres " 1881, p. 474 215 
 
 Geist " 1885, p. 423 232 
 
 George " 1886, pp. 317, 327. . 218 
 
 Gerding " 1875, p. 570 193 
 
 Gewecke " 1875, p. 569 191 
 
 .Goldner " 1881, p. 1028 258 
 
 Graffenburg " 1875, p. 569 191 
 
 Greiser " 1885, p. 813 110 
 
 Grubel " 1875, pp. 489, 534 .. 189 
 
 Gutowski Wheat . Int. Law 185 
 
 8., 1881, p. 475 206 
 
 1886, p. 365 110 
 
 1885, p. 394 109 
 
 1882, p. 212 246 
 
 1884, p. 209 208 
 
 1873, pp. 78, 79. . . . 120 
 
 1879, p. 371 205 
 
 1877, p. 248 197 
 
 1882, p. 190 207 
 
 1875, p. 570 194 
 
 Hans 
 
 F. R. of U. 
 
 tt 
 
 Hart 
 
 tt 
 
 it 
 
 Held 
 
 it 
 
 
 ti 
 
 Henkes 
 
 it 
 
 
 a 
 
 
 it 
 it 
 
 
 u 
 
 
 it 
 
 
 a 
 
 Jepsen 
 
 a 
 
 
 it 
 
 
 it 
 
 
 u 
 
 1877, p. 248 197 
 
 1883, p. 145 117 
 
 1875, p. 572 196 
 
 1886, p. 310 240 
 
 1886, p. 310 240 
 
 1882, p. 346 287 
 
 1886, p. 310 240 
 
CASES CITED AND DISCUSSED. xvii 
 
 Klagges P. R. of U. 8., 1879, p. 369 204 
 
 Klan " 1883, p. 391 217 
 
 Kloss " 1877, p. 249 198 
 
 Knocke Wheaton Int. Law, 1840 180 
 
 Koszta " 141 
 
 Kriegel F. R. of U. S., 1877, p. 249 198 
 
 Kroemer. " 1877, p. 247 116 
 
 Landan " 1886, p. 10 171 
 
 Largomorisino " 1883, p. 204 251 
 
 Lebrone " 1886, pp. 301, 303 .. 256 
 
 Lemberger " 1885, pp.429, 436. . 117 
 
 Levinson «' 1877, p. 249 198 
 
 Mammelsdorf " 1877, p. 250 199 
 
 McCormiek " 1884, p. 219 245 
 
 McSweeney " 1882, p. 212 246 
 
 McEnery " 1882, p. 212 246 
 
 Mely " 1877, p. 250 209 
 
 Meyer Wheaton Int. Law 185 
 
 Montaga Eng. Par. Papers 56 
 
 Montaya " 56 
 
 Muller P. R. of U. 8., 1881, p. 476 205 
 
 Mumbour " 1875, p. 569 192 
 
 Newmarch " 1875, p. 571 195 
 
 Nicolsen " 1886, p. 310 240 
 
 O'Connor " 1882, p. 212 246 
 
 Oench " 1853, p. 423 158 
 
 O'Mahoney " 1882, p. 212 246 
 
 Pepin " 1873,p.261 256 
 
 Pearson " 1885, p. 172 123 
 
 Ranke 185 
 
 Rainals Eng. Par. Papers 56 
 
 Reewarts F. R. of U. 8., 1886, p. 310 240 
 
 Reichart " 1884, p. 213 243 
 
 Roblffs " 1886,p.310 240 
 
 Rowe " 1882, pp. 1, 3 250 
 
 Roi " 1884,p.208 208 
 
 Rosenwald " 1881, p. 474 214 
 
 Rosenthal " 1875, p. 572 195 
 
XV111 CASES CITED AND DISCUSSED. 
 
 Saab F. R. of U: S., 1886, p. 374 142 
 
 Salamouski " 1887, p. 251 199 
 
 Sandt F.R. of U. S., 184 
 
 Santos " 1886, p. 254 222 
 
 Schang " 1881, p. 473 214 
 
 Schweitzer. " 1881, pp. 30, 52. ... 220 
 
 Scola " 1877,p.251 200 
 
 Sharboro " 1871, p. 392 123 
 
 Sheibert " 1883, p. 344 115 
 
 Sigbjornsen " 1881, p. 344 219 
 
 Slattery " 1882, p. 212 246 
 
 Smith " 1879, p, 815 268 
 
 Speck " 1878,p.841 123 
 
 Steinkauler 113 
 
 Stern „ 143 
 
 Stewart Eng. Par. Papers 61 
 
 Taxacher F. R. of U. S., 1884, pp. 9, 10 220 
 
 Topaz " 1874, p. 890 296 
 
 Verdelet " 1883, pp. 276, 285, 118, 256 
 
 Vertu Eng. Par. Papers 60 
 
 Villinger F. R. of U. S., 1877, p. 252 200 
 
 Vopel " 1875,p.590 193 
 
 Walner " 1879, p. 371 205 
 
 Walsh " 1882, p. 212 142 
 
 Walweski Eng. Par. Papers 58 
 
 Warren 70 
 
 Weick F. R. of U. S., 1875, p. 570 193 
 
 Weigand " 1882, p. 187 115 
 
 White " 1882, p. 212 246 
 
 Wilczynski F. R. of U. S., 259 
 
 Wohlgemuth " 1875, p. 571 194 
 
 Wurgletts " 1881, pp. 30, 52. . . . 122 
 
 Zimmer " 1879, p. 368 203 
 
 Zuber " 1886, p. 723 263 
 
TABLE OF AUTHORITIES CITED. 
 
 Page. 
 
 Aberdeen, Lord, on English citizenship 61 
 
 Attorney-Generals of U. S., opinion, Vol. I, p. 275 133, 293 
 
 do do n, p. 356 101 
 
 do do II, p. 253 289 
 
 do do VII, p. 229 289 
 
 do do VII, p. 495 126 
 
 do do Vin, p. 139,146,151,245, 292 
 
 do do VIII, p. 140 93 
 
 do do IX, p. 62. . . . 147, 152, 245 
 
 do do IX, p. 69 146 
 
 do do IX, p. 92 
 
 do do IX, p. 356. . .49, 76, 89, 93 
 
 146, 152 
 
 do do IX, p. 373 98 
 
 do do X, p. 328 98 
 
 do do XII, p. 7 299 
 
 do do XH, p. 190 71 
 
 do do XIV, p. 154 302 
 
 do do XIV, p. 295 . . .147, 178, 292 
 
 do do XIV, p. 402 71 
 
 do do XV, p. 15 113 
 
 do do XV, p. 114 134 
 
 do do XV, p. 599 300 
 
 Bancroft, George, on expatriation 221, 222 
 
 Barnard, John P., on citizenship 184, 185 
 
 Bayard, Thomas F., on citizenship, 110, 112, 118, 121, 123, 140, 142, 143 
 
 145, 171, 191, 232, 238, 243, 302 
 
 Bernard, Montague, on citizenship 100 
 
 Bismarck, Count, on expulsion 240, 241 
 
 Black, Jeremiah, on citizenship 93, 146, 147, 158, 169 
 
 Blaine, James G., on citizenship 121, 162, 191, 249, 261 
 
 Blackford, Vol. 1, p. 2, on common law 75, 93 
 
 Bluntschli, int. law.... 6, 17, 105, 111, 114, 168, 202, 209, 210, 237, 291 
 
 Buchanan, James, on citizenship 248, 290 
 
XX AUTHORITIES CITED. 
 
 Page. 
 
 Burlamaqui 16 
 
 Busch, Dr 238, 239 
 
 Bynkerschoek 15 
 
 Calvo, int. law 296, 297 
 
 Cass, Lewis, on protection of citizens 93, 143, 159 
 
 Cicero on citizenship 3, 114 
 
 Clarendon, Lord, on English citizenship 57, 62, 67 
 
 Cockburn on nationality 106, 114, 299 
 
 Coke, Lord, on allegiance 101 
 
 Cushing, Caleb, on citizenship 88, 93, 146 
 
 De Martens 17 
 
 Evarts, Wm, M., on citizenship 112, 120, 135, 249, 260, 304 
 
 Everett, Edward, on citizenship 159, 185, 242, 302 
 
 Ferry, Jules, on French citizenship 255 
 
 Fish, Hamilton, on citizenship, 123, 124, 143, 149, 150, 161, 166, 169 
 170, 187, 191, 242, 295, 297, 298, 300, 302, 304 
 
 Field, int. code 104, 114, 298 
 
 Fcelix, private int. law 15, 104, 111, 114, 267, 296 
 
 Frelinghuysen on citizenship, 109, 110, 112, 113, 118, 133, 166, 169, 171 
 
 172, 191, 233, 235, 251, 253, 297, 298 
 
 Frist on citizenship 17 
 
 Furguson on citizenship 105 
 
 Foreign Belations of United States, 1871, p. 888 168, 220 
 
 do 
 
 do 
 
 1873, pp. 
 
 . 78, 79 
 
 120 
 
 do 
 
 do 
 
 
 
 261 
 
 256 
 
 do 
 
 do 
 
 1874, 
 
 P' 
 
 ,413 
 
 299 
 
 do 
 
 do 
 do 
 
 
 
 447 
 
 189 
 
 do 
 
 455 
 
 
 do 
 
 do 
 
 1875, 
 
 P- 
 
 449 
 
 172 
 
 do 
 
 do 
 
 
 
 489 
 
 
 do 
 
 do 
 
 
 
 569 
 
 191 
 
 do 
 
 do 
 
 
 
 570 
 
 192 
 
 do 
 
 do 
 
 
 
 571 
 
 193 
 
 do 
 
 do 
 
 
 
 572 
 
 196 
 
 do 
 
 do 
 
 
 
 579 
 
 190 
 
 do 
 
 do 
 
 1877, 
 
 P. 
 
 246 
 
 197 
 
 do 
 
 do 
 
 
 
 247 
 
 116 
 
 do 
 
 do 
 
 
 
 248 
 
 198 
 
 do 
 
 do 
 
 
 
 249 
 
 198 
 
 do 
 
 do 
 
 
 
 250 
 
 199, 209 
 
AUTHORITIES CITED. xxi 
 
 Page. 
 
 Foreign Eelations of United States, 1877, p. 251 199 
 
 do do 252 200 
 
 do do 1878, pp. 210, 228 200 
 
 do do 216.. 201 
 
 do do 1879, p. 368 201 
 
 do do 369 203 
 
 do do 371 205 
 
 do do 373 211 
 
 do do 1881, pp. 30, 52 122, 219 
 
 do do 473 214 
 
 do do 1881, p. 474 215 
 
 do do 475 206, 216 
 
 do do 476 205 
 
 do do 1028, 1029 258 
 
 do do 1882, p. 187 115,206 
 
 do do 188 206 
 
 do do 190 207 
 
 do do 212 246 
 
 do do 219 245 
 
 do do 240 248 
 
 do do 346 287 
 
 do do 488 218 
 
 do do 1883, p. 145 117 
 
 do do 285 256 
 
 do do 344 115 
 
 do do 391 217 
 
 do do 1884, pp. 9, 10 219 
 
 do do 208 207 
 
 do do 209 207 
 
 do do 213 244 
 
 do do 1885, pp. 5, 27 220 
 
 do do 172 123 
 
 do do 423 242 
 
 do do 429,436 117 
 
 do do 440 241 
 
 do do 803, 809 122 
 
 do do 1886, p. 254 221 
 
 do do 303 257 
 
 do do 325 218 
 
 do do 723 264 
 
 do do 775 284 
 
 do do 864 284 
 
XXU AUTHORITIES CITED. 
 
 Page. 
 
 Gajus institutes 2 
 
 Granville, Lord, on treaties 40 
 
 Grenville, Lord, on naturalization in United States 71, 76 
 
 Griers, M. de, on Israelites in Russia 261 
 
 Grotius 13, 14 
 
 Halleck, international law 217, 224, 294, 300 
 
 Harcourt, Sir Vernon, on origin of citizenship 72, 91, 103 
 
 HefEter, European international law 16, 105, 291 
 
 Hyde, Baron, on English naturalization 67 
 
 Jefferson, Thomas, on expatriation 76, 290 
 
 Jefferson, Thomas, on allegiance 76 
 
 Kent, Chancellor, commentaries 74, 93, 149 
 
 Kasson on citizenship 238 
 
 Lawrence's, Wheaton, international law 74, 93, 295 
 
 Lieber, Franz, on citizenship 264 
 
 Lowell, John R., on citizenship in England 249 
 
 Malmesbury, Earl of, on English citizenship 58 
 
 Manteuffel, Baron, on citizenship 182, 186 
 
 Marcy, William L '. 92, 143, 158, 242 
 
 Marshall, Chief Justice, on expatriation 78 
 
 McLeod, Alexander, on citizenship 88 
 
 Mercier, M. , on French citizens. 293, 294 
 
 Motley, John Lathrop, on citizenship 67 
 
 Nesselrode, Prince, on claims of aliens 292 
 
 Palmerston, Lord, on English citizenship 54, 55, 58, 60 
 
 Peel, Sir Robert 53 
 
 Phillimore, international law 110, 114, 248, 291, 299, 303 
 
 Porter on payment of taxes , 167 
 
 Puffendorf 14 
 
 Russell, Lord John, on English citizenship 56, 57, 58 
 
 Rutherforth 16 
 
 Seward, William H., on growth of Ameriea 34 
 
 Seward, F. W., on citizenship 123 
 
 Story on the conststution 74 
 
 Typhonius, on expatriation 2 
 
 Twiss, Travers 100 
 
AUTHORITIES CITED. XXU1 
 
 Page. 
 
 Vattel, law of nations 16, 85, 103, 105, 115, 148 
 
 Von Bar, int. law 104, 111, 145 
 
 Webster, D., on citizenship 143, 233, 290 
 
 Westlake 104 
 
 Wharton on legitimacy 124 
 
 Wheaton 180, 267 
 
 William, Emperor, on independence 35 
 
 Williams, on citizenship 146, 147 
 
 Woolsey, international law 224, 238, 296, 297 
 
 Wright, Silas 186 
 
DECISIONS OF COURTS CITED- 
 
 Page. 
 
 Ainslie v. Martin, 6 Mass 83 
 
 Bailey's case, 2 Sawyer, 200 301 
 
 Caignett v. Pettit, 2 Dall. 234 165 
 
 Carlisle v. United States, 16 Wallace, 148 48, 87, 290 
 
 Fitch v. Webber, 6 Hare, 51 71 
 
 In re Bourgoise, 41 English Law Reporter, Chancery Division, 30. . 291 
 
 In re Willoughby, 30 English Law Reporter, Chancery Div., 324 291 
 
 Inglis v. Trustees, etc., 3 Peters. 74, 92, 93 
 
 Jansen v. Vrom Christina, Bee Adm 145 
 
 Kelley v. Owen, 7 Wallace, 496 298 
 
 Lamer v. Mican, 112 U. S. 452 112 
 
 Marbury v. Madison, 1 Cranch, 137-170 188 
 
 Murray v. Schooner Betry, 2 Cranch 78 
 
 Murray v. McCarthy, 2 Mumford 79 
 
 Neal v. Delaware, 103 U. S. 370 93 
 
 Parker v. United States, 1 Peters, 293 188 
 
 Porter v. Leroy, 1 Yeates (Penn.), 371 145 
 
 Santissima, Trinidad, 7 Wheaton, 283 93, 121, 145, 147 
 
 Shanks v. Dupont, 3 Peters 74, 90 
 
 Spratt v. Spratt, 4 Peters, 393 143 
 
 Strauder v. West Virginia, 100 U. S. 303 93 
 
 Talbot of Jansen, 3 Dall. 383 145 
 
 Taylor v. Carpenter, 3 Story, 458 289 
 
 United States v. Eliason, 16 Peters, 291 189 
 
 United States v. Freeman, 3 Howard, 556 189 
 
 Walcot v. Botfleld, 1 Kay. 534 189, 236 
 
 Wheaton et al. v. Peters et al., 8 Peters, 650 188 
 
 Wilcox v. Jackson, 10 Peters, 498 188 
 
 Williams case, Whart. St. Trials 145 
 
THE LAW OF CITIZENSHIP. 
 
 CITIZENSHIP HISTORICALLY CONSIDERED. 
 
 Rome, throughout her rise and progress, manifested 
 her uncontrollable thirst for empire. The persever- 
 ance of her citizens amid discouraging reverses and 
 ultimate success over her enemies, won for her the 
 pinnacle of greatness. All nations flocked to the 
 " Eternal City " as the center of civilization ; she 
 dictated to the then known world; she made for it 
 the laws and extended to all the freedom of rights 
 which had been unknown to these nations in the 
 relations which had governed them as deriving power 
 through an earthly prince, from Odin, or relying upon 
 the mandates of their Druids. They had no writers 
 to record either their origin or their principles of law ; 
 therefore, none have come to us. They were known 
 to the Romans as barbarians ; in comparison to the 
 Romans they were considered ignorant ; they lived 
 under the guidance of their chiefs as wandering 
 tribes, constantly at war with each other ; they lived 
 upon the milk and flesh of their cattle and seldom 
 cultivated the ground. These people the Romans 
 conquered, and over their territories to the banks of 
 the Rhine and Danube, through Spain to Africa, and 
 1 
 
2 THE LAW OF CITIZENSHIP 
 
 across to Britannia extended the power of Rome. 
 With them went the principles of the Pandects, 
 a body of laws grafted on experience and well 
 adapted to the people of that day. Famous jurists 
 and orators expounded its principles ; they became the 
 foundation principles of the laws of the civilized 
 world. 
 
 The earliest dissertations on the question of citizen* 
 ship are found among the writings of the Romans. 
 
 By them from time to time the rights of citizens of 
 Rome have been discussed. Not alone the rights 
 as members of the body politic, but also the rights of 
 aliens to become members of the body politic, and the 
 rights of members of the body politic to dissolve 
 membership and depart to become members of another 
 body politic. 
 
 The relation of members to the Roman body politic 
 was based on the principle of jus naturale, of which 
 the definition as laid down by Gajus, was : jus natu- 
 rale est quod natura omnia animalia docuit. Within 
 this definition was comprised man in his natural state ; 
 it was by man that the body politic was organized, 
 and in entering the organization with his fellow men, 
 man followed the exercise of his natural rights, 
 and became- an ingredient of the society of which he, 
 with others, became members. 
 
 The organization formed or the state created as of 
 man and by man, man was not so incorporated into 
 the body politic that he could not depart ; such 
 a restriction was not placed by him on his nature, 
 that he must forever remain a member of the society 
 of which he became a member. 
 
IN THE UNITED STATES. 3 
 
 Typhonius wrote, " It is free to every man to choose 
 the state of which he will be a member." 
 
 Although in the early days of Rome, they alone 
 could call themselves Roman citizens who were free 
 born and born in Rome, yet very soon thereafter 
 foreigners were admitted to citizenship by'authority 
 of the legislative body. 
 
 Later, as Rome advanced in her conquest of the 
 neighboring states, to these states the legislative 
 authorities conferred charters by which the citizens of 
 such states were admitted to Roman citizenship and 
 their former citizenship was abolished. 
 
 In Rome the inhabitants were either free, pere- 
 grines or slaves ; they were either citizens or they 
 were not citizens ; the slaves were in the power 
 of the citizens, and these citizens had the right to 
 make free or emancipate their , slaves, and such as 
 they emancipated became freedmeii, but by the act of 
 emancipation in itself, citizenship was not acquired. 
 It was the being born of freedmen which conferred 
 the citizenship after the act of emancipation was 
 extended. Notwithstanding this rule, the legislative 
 authorities could confer citizenship on such slaves as 
 were emancipated by Roman citizens. 
 
 There were many inhabitants of Rome who were 
 not citizens. They were known as peregrini, and en- 
 joyed the privileges of Roman citizens with the excep- 
 tion of the suffragium, or right of suffrage. This 
 right was conferred on such peregrini as chose to be- 
 come citizens by act of the legislature. 
 
 Cicero lays down the rule, " that every man ought 
 to be able to retain or renounce his rights of member- 
 
4 THE LAW OF CITIZENSHIP 
 
 ship of a society," and further adds, " that this is the 
 firmest foundation of liberty." 
 
 Under this the Romans received all who came and 
 forced none to remain with them. 
 
 EFFECT OF THE INVASION OP THE BARBARIANS ON ROME 
 
 After the downfall of Rome and its consequent loss 
 of power, the principles of jus naturale as had been 
 known throughout the empire, gave way to the prin- 
 ciples of feudalism as introduced by the invaders. 
 
 They brought with them their own principles of 
 government and disavowed the principles of the in- 
 habitants of the countries which they conquered. The 
 conquest was complete and extended to all portions 
 of the empire. Not alone the conquerors, but also 
 the conquered sought stability of government for the 
 enjoyment of life, happiness and prosperity. 
 
 The conquerors came as wandering tribes, governed 
 by a leader to whom all followers owed homage and 
 fealty, and settled with, and in, the homes of a people 
 whom they had reduced to subjection. The same 
 fealty and homage was demanded of the subjected 
 Romans as was demanded of the followers of the in- 
 vading princes. 
 
 EFFECT OF THE INVASION OF THE BARBARIANS ON OTHER 
 PORTIONS OF EUROPE. 
 
 Wheresoever the wandering tribes from the north 
 of Europe established themselves, by conquest or 
 otherwise, they took with them imitatively the same 
 relation of subject to prince. Whether it was to the 
 south, southwest or to the west that they wandered, 
 the same principles and relations were enforced. 
 
IN THE UNITED STATES. 5 
 
 GOVERNMENTS ESTABLISHED. 
 
 The invaders having conquered both the people and 
 their lands, organized their governments, as being in a 
 prince who was all powerful over his subjects. The 
 relation as between man and man and his relation to 
 the government was forced and involuntary. The 
 natural rights of man as being in man were disavowed. 
 
 INTERCOURSE BETWEEN THE STATES. 
 
 As had been the custom when the empire was ex- 
 tant, for its citizens to trade with citizens in the other 
 portions of the empire, so after the invasion it became 
 equally as necessary, as between the subjects of the 
 different new states which were founded on the ruins 
 of the empire. 
 
 Therefore the subjects of one prince must resort to 
 domains of neighboring princes for purposes of trade. 
 The common law which governed was that every sub- 
 ject must owe allegiance to some prince, in order to 
 insure the subject protection when abroad. The al- 
 legiance was held to be indissoluble and could not be 
 thrown off at the will of the subject. Yet the protec- 
 tion was not at all times extended by a prince to his sub- 
 jects when abroad. It became very much a question of 
 greater strength in one than in another ; so much so 
 that only the stronger prince could extend protection 
 to his subjects when within the domain of a neighbor- 
 ing prince. With the growth of time, the necessities 
 of trade enforced temporary and permanent sojourns 
 by the subjects of one prince in the country of an- 
 other prince. This led to a recognition of the right 
 of subjects to depart from the territory of their prince. 
 
6 THE LAW OF CITIZENSHIP 
 
 This came from force of circumstances growing out of 
 the inability of weaker princes to protect their sub- 
 jects as against more powerful princes. It could not 
 be done without the consent of the prince. The rela- 
 tion was personal and must be dissolved' by permission. 
 
 THE ACT OF DEPARTURE OR PERMISSION. 
 
 The act of departure by which a subject threw off 
 his allegiance to his prince and to which the prince 
 gave his assent was ceremonious. The ceremony was 
 different in different countries. In some countries the 
 departure was attended with ceremonies such as im- 
 plied disgrace ; in others the departure was with the 
 good wishes of the prince. 
 
 The general rule was as follows : The emigrant was 
 accompanied by a delegate of the prince with his 
 companions and fellow subjects to a cross road, where 
 led a way to each of the four corners of mother earth, 
 and there the delegate announced to the emigrant pub- 
 licly, that the prince absolved him from the bond of 
 allegiance, and gave to him his liberty, and as evidence 
 of it, proclaimed : " De quattuor viis ubi volueris am- 
 bulare liberam habere potestatem." Bluntschli Staats- 
 recht, vol. 2, p. 504. The emigrant thereupon went 
 upon the way which he had chosen, and commenced 
 his journey to the domain of some other prince. 
 
 In some states there were certain preliminaries with 
 which the emigrant complied before he was taken to 
 the cross way. After he had announced his wish to 
 migrate, the public crier called the man and openly 
 stated : " The man who lives here, in this village and 
 thinks he can find occupation elsewhere better than 
 
IN THE UNITED STATES. 7 
 
 here, may withdraw to that better place, but first pay 
 to our lord all damage and loss, and no one shall in- 
 quire further about him." 
 
 In other states, the act of departure was made a 
 matter of court proceedings : the emigrant having ex- 
 pressed his wish to absolve himself of his allegiance 
 to his prince, was brought into court. The court cen- 
 tarius struck his spear three times upon the ground 
 and called, " Hear ! hear ! hear ! Is there a man sub- 
 ject to this high court, who cannot submit to its law, 
 then he shall first pay our prince, then the Christian 
 church, then the common man, and let the fire in his 
 house go out with the setting sun. The common man 
 shall then load his goods on his wagon and bring them 
 to the common square, where will come ou* gracious 
 prince. And two of our lord's servants shall dismount 
 and lend help to the poor man when starting on his 
 journey by a push to the hind wheels of his wagon." 
 
 The relation of subject to prince was personal, and 
 emigration was only possible upon permission given. 
 This was primarily essential to the acquisition of a 
 similar relation to a foreign prince when the emigrant 
 settled in a foreign country. 
 
 DEPASTURE WITHOUT ASSENT' OF THE PRINCE. 
 
 The act of departure was either with or without the 
 intent to return. No departure was legal unless it 
 was known to the prince. The many personal services 
 which were owed by the subjects to their princes ren- 
 dered it necessary that the presence or absence of the 
 subject should be matters of record. For this reason, 
 the departure of a subject without the intent to return; 
 
8 THE LAW OF CITIZENSHIP 
 
 was attended with ceremonies, such as to impress the 
 remaining subjects. The departure for purposes of 
 trade was by certificate ; these certificates were recog- 
 nized or not recognized according to the likes or dis- 
 likes of the prince in whose territory the subject 
 found himself. 
 
 Other than without intent to return or by certificate 
 the departure could not be legally made. Subjects of 
 one prince in the territory of another with intent or 
 without intent to return, and with no certificate from 
 their prince for identification were regarded with 
 suspicion, treated as men with no rights and often 
 reduced to servile work. Upon subsequent return to 
 the territory of their prince, if the departure was in 
 time of peace, the subject was denied all rights ; if in 
 time of hostilities, he was regarded as a deserter. It 
 was the universal custom that the subjects of every 
 prince should be able to identify themselves in legal 
 form, when in the territories of other princes. For it 
 was well recognized, that the duties which such 
 subjects owed to their princes were similar, conse- 
 quently that no man had the right to be abroad 
 unless with the assent of his prince. 
 
 MILITARY SERVICE. 
 
 The stringency with which these princes enforced 
 their demands on their subjects, was of necessity 
 relaxed, as intercourse for purposes of trade became 
 more important for the welfare of the principalities. 
 The act of departure was attended with less ceremony, 
 and the going and coming between the inhabitants of 
 the numerous principalities became more general. 
 
IN THE UNITED STATES. 9 
 
 The prince, in order to maintain his dignity, enjoined 
 upon his subjects the performance of military duty, 
 and although all were not called upon to do this duty, 
 yet the liability remained that they might be. This 
 remained as the duty which the subjects must not 
 avoid without the sanction of the prince. It was 
 a vestige of former authority in the form of absolutism 
 over the subject. It was an obligation arising from 
 fact of birth as a subject of the prince within the 
 domain of the prince. The rule was general and 
 applicable to all subjects. 
 
 THE CLASSES. 
 
 Aside from the grades of nobility as established by 
 the different princes for and among their courtiers, 
 and leaders, either in a military or civic capacity, 
 there remained two general classes for the subject not 
 classed among the nobility. 
 
 There was the commercial class and the yeomanry. 
 The necessity of the interchange of goods, wares and 
 merchandise, established the trading class, which was 
 beneath the dignity of the nobility. It came into 
 greater importance with the growth of time, with the 
 increase in population and the demands of the people, 
 which it was imperative should be fulfilled and could 
 only be done by subjects who saw fit to devote them- 
 selves to such occupations as would meet these wants. 
 Whatever commodities could be furnished by one 
 principality were wanted in other principalities, and 
 so in return, this necessitating the existence of some 
 class which could interchange these commodities and 
 carry on in detail all that was essential to effect pur- 
 2 
 
10 THE LAW OF CITIZENSHIP 
 
 chase, transportation and sale from one principality to 
 another. 
 
 To accomplish this trading, certificates were given 
 for temporary sojourn in foreign countries. 
 
 The yeomanry still remained attached to the soil, 
 there to perform their work, subject to such obliga- 
 tions and duties of tenure as the lord of the manor 
 imposed on them as tenants. These duties were 
 manifest and of such a nature that they could not 
 be readily put off. Although in the case of the 
 yeomanry the tie of allegiance was no stronger than it 
 was with the commercial class, yet the departure in- 
 volved the dissolution of subordinate relations as 
 between landlord and tenant, aside from that fealty 
 which all subjects owed to the prince of the princi- 
 pality. This rendered the departure of the tenant 
 yeoman more cumbersome than was the departure of 
 the trader, because the subordinate duties to the land- 
 lord must be legally dissolved, in order that the 
 departure of the yeoman should work no detriment to 
 the interests of the landlord ; in many instances the 
 dissolution of these subordinate ties was attendant 
 with extreme inconvenience, which rendered the 
 departure of a yeoman almost impossible. 
 
 For example, in case of homage, where the tenant had 
 ungirt himself, and uncovered his head, and, with his 
 lord sitting, had knelt before him, on both knees, and 
 the lord holding his hands, he had said : " I become 
 your man from this day forward, of life and limb, and 
 of earthly worship, and unto you shall be true and 
 faithful and bear to you faith for the tenements that I 
 hold of you saving the faith that I owe under our 
 
IN THE UNITED STATES. 11 
 
 sovereign lord." This constituted a most honorable 
 service. 
 
 There were other services less honorable. There 
 was escuage, by which the tenant was to do service 
 for a specified time abroad with the lord. There was 
 knight service involving wardship and marriage. 
 There was socage, which was a service not defined 
 other than knight service. There was villenage, 
 which was servile service. 
 
 In cases of rent service, the departure was more 
 easy for reason of its being comparatively free from 
 personal duties and allegiance, which was exacted in 
 other services. 
 
 THE EIGHT OF DEPARTURE. 
 
 The sanction of the prince was essential to the 
 exercise of the right. That is, the departure in itself 
 was not punishable ; it was the departure without his 
 consent which was punishable. The right of depart- 
 ure was recognized as a right in and of man ; but at 
 the same time it could not be exercised legally by the 
 subject without the assent of the prince, under whom 
 the subject lived, and to whom he occupied a personal 
 relation. 
 
 THE PRINCIPLE INVOLVED IN THE ACQUISITION OP CITI- 
 ZENSHIP IN THE MIDDLE AGES. 
 
 The acquisition of citizenship in a society, whether 
 by membership as one of many who formed a particu- 
 lar society or by subsequent admission to membership 
 in the society after its formation, carries within it the 
 loss of citizenship. The right was regarded as a per- 
 sonal right. Each and every society had its autono- 
 
12 THE LAW OF CITIZENSHIP 
 
 mous prescriptions by which the membership in the 
 society was acquired and lost. This was governed by 
 rules which went to the manner of acquisition and loss 
 of the citizenship without denying the right in itself. 
 These rules were different and more or less restrictive, 
 yet withal did not deny the existence of the right as 
 being in man nor did they prevent absolutely the ex- 
 ercise of the right. 
 
 One prerequisite was essential, namely : the legal 
 release from the society of which one was a member. 
 Then followed the acquisition of a new membership. 
 It is not in all respects clear what the exact status 
 was of the citizen during the interim between the loss 
 of one citizenship and the acquisition of a new citizen, 
 ship in another society, beyond the rule which seemed 
 to govern quite generally that each prince was held to 
 the exercise of a supervision over his subjects owing 
 to the personal relation existing between them where- 
 soever they might be whether rightfully beyond the 
 confines of the principality or not. 
 
 This relation was in many respects so exact that 
 until an absolute change in citizenship had been 
 effected it must have continued. 
 
 The corelative right to the jus albinagii by which 
 the prince gathered a fine from the estates left by the 
 subjects of other princes on property within his prin- 
 cipality, the so-called gabella hereditaria, by which he 
 gathered a fine from the estates left by the subjects of 
 other princes in other principalities and which de- 
 scended to his subjects in his principality, could not 
 have been forfeited by the prince until the change 
 was absolute so far as it affected the rights of the 
 
IN THE UNITED STATES. 13 
 
 subject making the change. This was a general rule, 
 and was the common law which governed in most 
 principalities, and was a right of which the princes 
 were very jealous, as a source of income to them. 
 Subsequent to the release from the relation to his 
 prince the subject would seem to have still continued 
 in relations to his prince, notwithstanding the release 
 until the change of citizenship was perfected. In 
 order to perfect the change, there were further requi- 
 sites : first, evidence of good moral character ; second, 
 evidence that the subject had enjoyed the rights of 
 citizenship under his former prince as contradistin- 
 guished from servile labor; and, third, evidence either 
 for reason of property, professional calling, or knowl- 
 edge of some trade, that he was able to support him- 
 self and his family. 
 
 In case the subject seeking the change was unable 
 to meet these requirements which were conditions 
 precedent to his acquisition of new citizenship which 
 would seem to imply the stigma of crime or pauper- 
 ism, he was remanded to his former prince, and the 
 change could not be made. 
 
 THE RULE OP GROTIUS. 
 
 Unless there is an express prohibition, or a custom 
 to the contrary, having the force of a convention, the 
 right to emigrate may be fully and freely exercised. 
 This rule, he founds on the natural obligation of 
 preserving oneself which prevails in every agreement, 
 and whoever submits to a government does so solely 
 for his own good. 
 
 The rule and the explanation indicate, first, that 
 
14 THE LAW OF CITIZENSHIP 
 
 government is founded in agreement as between man 
 and man for the good of each ; and, second, that the 
 right to leave one government and go to live under 
 another, can be restricted only by convention, to 
 which convention the party who seeks to exercise the 
 right of emigration must be a party ; consequently, he 
 must have restricted the exercise of the right by his 
 own act and by convention is bound by it. 
 
 This rule thus laid down by Grotius recognized the 
 natural right of man and was in conflict with the phil- 
 osophy of the times as applied to governments then 
 existing. 
 
 In the first place, right became known as a power 
 and no conception of it was recognized except as at- 
 tached to man ; and second, the source of the right 
 was alleged to be in pure reason which was the exter- 
 nal, immutable and universal law under this rule. 
 
 THE EULE OP PUFFENDORF. 
 
 Puffendorf asserts " that in becoming a member of 
 society, a man does not renounce entirely the care of 
 himself and his affairs ; on the contrary, he seeks 
 thereby an efficient protection under which he may 
 live and labor in security and procure for himself the 
 necessities and conveniences of life." He adds further : 
 " When there is no law on the subject it is necessary 
 to judge by custom of the liberty which each one has 
 in this respect. If nothing is established by custom and 
 there is otherwise no mention made of the matter in the 
 agreement by which a man has become a member of 
 the society, there is no reason to presume that each 
 free person, in entering into society, has not tacitly re- 
 
IN THE UNITED STATES. 15 
 
 served to himself, the permission to leave it when he 
 wishes, and that he has pretended to oblige himself to 
 reside all his life in a certain country and not rather 
 to regard himself always as a citizen of the world." 
 He adds further, " That members of a society ought to 
 be permitted to retire to any other place, in which 
 they hoped to better their affairs." 
 
 Puffendorf carries out the principles as advanced by 
 Grrotius. He attributes to man the exercise of reason 
 and in the exercise of that reason, which is universal 
 and co-extensive with man's being, he finds the source 
 of the law. 
 
 THE RULE OF BTNKERSHOEK. 
 
 A member of a state has the right to remove from a 
 society and thereby renounce his allegiance to the sov- 
 ereign of the country from which he departed. 
 
 THE RULE OP BURLAMAQUI. 
 
 A man ceases to be a subject of a state when he 
 leaves that state and goes to settle elsewhere. It is a 
 right inherent in every man, that every man should 
 have the right of removing out of the society if he 
 thinks proper. 
 
 THE RULE OF FOELIX. 
 
 A man has a right to change his nationality. 
 
 The right in itself is not questioned. It is the ex- 
 ercise of the right subject to such rules of departure 
 and acquisition of a new citizenship as may be pre- 
 scribed in different countries. 
 
16 THE LAW OF CITIZENSHIP 
 
 THE RULE OF RUTHERFORTH. 
 
 The only restraint which a man's right is originally 
 under, is the obligation of governing himself by the 
 laws of nature. Whatever rights those of our own 
 species may have over us, is either to direct our actions 
 to certain purposes or to restrain them within certain 
 bounds. Beyond what the law of nature has pre- 
 scribed, arise rights from some after acts of our own ; 
 from some consent, either express or tacit, by which we 
 have alienated our actions from ourselves to them. 
 
 THE RULE OF VATTEL. 
 
 If society has not contracted with the citizen for a 
 determined length of time, he may retire, if he may 
 do so without prejudice to the society. Every man 
 on coming of age may determine for himself, if his 
 interest is to remain as a member of the society in 
 which he was born ; if he thinks not, he may quit it; 
 
 There is no obligation from the social compact 
 upon man, to continue in allegiance to the government 
 under which he was born. 
 
 THE RULE OF HEFFTER. 
 
 The world is the common fatherland of all human 
 beings. The right of emigration is inalienable. Only 
 self-imposed or unfulfilled obligations can restrict it. 
 This restriction is not a denial of the right in itself ; 
 it enjoins the fulfillment of all obligations to the 
 society of which one is a member before he can acquire 
 citizenship in another state and obtain recognition in 
 the state from which he departed. 
 
IN THE UNITED STATES. 17 
 
 THE RULE OP BLUNTSCHLI. 
 
 Man's being extends beyond his state. A man is 
 no more bound to the land of his birth than he is tied 
 to the soil. 
 
 THE RULE OF FRIST. 
 
 It is in fact, a principle inherent in human liberty, 
 a principle of natural right that a person may leave 
 the soil on which by chance his birth may have thrown 
 him. 
 
 THE RULE OF DE MARTENS. 
 
 It belongs to universal or public law to determine 
 how far the state is authorized to restrict or prevent 
 the emigration of the natives of a country. Although 
 the bond which attaches a subject to a state be not 
 indissoluble, every state has a right to be informed 
 beforehand of the design of one of its subjects to 
 expatriate himself and to examine whether by reason 
 of crime, debt, or of his engagements not being yet 
 fulfilled toward the state, it is authorized to retain 
 him longer. These cases excepted, it is no more 
 justified in prohibiting him from emigrating, than 
 it would be in prohibiting foreign sojourners from 
 doing the same. 
 
 CITIZENSHIP IN THE UNITED STATES. 
 
 In no country more than in the United States has 
 this vital question been agitated, and its importance to 
 the United States is very great when we consider for a 
 moment that the United States is now, and has been, 
 ever since its existence as an independent society, the 
 3 
 
18 THE LAW OF CITIZENSHIP 
 
 harbor and refuge for the members of all communities 
 in the civilized world. 
 
 The growth of the United States has not been, 
 as was that of Rome, by conquest of neighboring 
 states, to dictate to them, such laws, as by virtue 
 of superior force it was able to do, and thus, by its 
 influence and power proceed to the subjugation of 
 the then known world. The contrary has been the 
 rule in the United States. There was the country, 
 full of resources, which its citizens, in the inception, 
 were neither sufficiently numerous, nor had they the 
 ability, to develop and to accomplish its growth; 
 it opened its arms to the members of all communities 
 in the civilized world, to come to its shores and 
 to enjoy life, liberty and the pursuit of happiness 
 with them. This brought to the country men of laws, 
 manners and customs, which were neither compatible 
 with those of the country which sought their coming, 
 nor were they compatible with each other. They 
 differed from each other in race, in language, in 
 religion, in customs and in the rules of positive law 
 which had been enacted in the community from which 
 they came, for their guidance in that country. They 
 came to a country, which had already announced to 
 the civilized world, its principles and forms of govern- 
 ment. For almost a century this has gone on, and 
 to-day the United States contains within its limits, 
 members and descendants of members, from every 
 civilized community in the world. 
 
 For this reason, in treating this subject, reference will 
 be made particularly to the United States, and explana- 
 tions made as to who are considered to be citizens and 
 
IN THE UNITED STATES. 19 
 
 who are not. Comparisons will be drawn between the 
 principles which govern citizenship in the United 
 States, and the principles which govern in other com- 
 munities, such as relate to the means by which one 
 becomes a member, and his right of departure after he 
 has been admitted to full membership. Necessarily, a 
 conflict of these principles may be expected, and 
 the nature of the conflict will be shown and the 
 reasons therefor, at different epochs since the declara- 
 tion of independence of the United States ; for it is 
 since that date, that the questions involved in the 
 rights and privileges of citizenship have arisen. It is 
 since that date, and particularly so, during the past 
 quarter of a century, that commercial relations have 
 necessitated the departure of citizens of one country 
 to reside permanently or temporarily in other coun- 
 tries, not alone for the good of the country from 
 which they departed, but, also, for the benefit of the 
 country to which they migrated, and last but not least, 
 for such advantage and happiness as man might seek 
 and find for himself and family. 
 
 At the present time we find citizens of almost every 
 country living in foreign countries and there enjoying 
 such rights and privileges as the positive laws of the 
 country in which they find themselves accord to them 
 — and, furthermore, we find a constant change of 
 citizenship going on, by which the citizen of one 
 country becomes a member of another. The import- 
 ance of the question cannot be doubted, and it is with 
 attention to citizenship in the United States, that this 
 inquiry is directed. 
 
20 THE LAW OF CITIZENSHIP 
 
 IN THE BEGINNING WAS MAN. 
 
 Man was a dependent being ; he was dependent on 
 his fellow man ; alone, by himself he could not exist ; 
 he sought protection from his fellow men in time of 
 want and in time of prosperity ; he looked to his 
 neighbor in time of trouble ; he looked to him for as- 
 sistance. The one is the guardian of the other's per- 
 sonal rights and rights of property. The one seeks the 
 other for counsel in peace, and defense in danger ; his 
 dependency reaches his depravity ; his wants oblige so- 
 ciety with his fellow man ; the relation is mutual 
 
 Man is one of the many creatures of the Almighty, 
 different from other creatures in the properties which 
 he possesses and which nature has given him. With 
 these qualities from his Maker he pursues life, liberty 
 and happiness. To perfect this pursuit, man is given 
 the powers with which to do, not alone the powers, 
 but therewith are further connected certain rights 
 which are a part of his being, which we term his nat- 
 ural rights, rights which are original or innate. By 
 this is meant his nature, and his exercise of those 
 rights is the action of his being or nature. It is the 
 act of man. 
 
 In this connection the term " right " is synonymous 
 with " power." It is the use of the power over one's self 
 which is meant, and not over the acts of his neighbor. 
 It is the control of one's own self and the exercise of 
 this control, which is the right nature has given to 
 man. This right to control one's self is recognized by 
 others of the same species for the reason that it is 
 equally pursued by others, and the equality of the 
 power, involving the right, constitutes the equality of 
 
IN THE UNITED STATES. 21 
 
 man in a state of nature. These rights exist irrespect- 
 ive of government and involve capacity to take and 
 acquire further rights, which may grow out of the re- 
 lations into which man enters with his fellow beings, 
 when he organizes or joins society. 
 
 THE SOCIETY WHICH MAN ENTERS. 
 
 The society which man enters is an institution of 
 man. It is an organization of human invention. It is 
 constituted of human beings who seek life, liberty and 
 happiness by the individual surrender of such natural 
 rights as are requisite and essential to their common 
 welfare. 
 
 The society is a civilized institution. 
 
 The society is composed of members ; a relation of 
 a governed to a governing power prevails over a tract 
 of land common to mankind within which the govern- 
 ment exercises rights of authority. 
 
 To such a society the term most applicable is state. 
 
 The state or society is ever changing and changeable. 
 Its members change in numbers ; some die and some 
 are born during every day of its existence. It changes 
 in form : from kingdom to empire and vice versa ; from 
 kingdom to republic and vice versa. Each and every 
 change, whether in numbers or in form, is the act of 
 man. 
 
 In the declaration of independence of the thirteen 
 United States of America, it is primarily set forth in 
 the following language: 
 
 " We hold these truths to be self-evident, that all 
 men are created equal ; that they are endowed by their 
 Creator with certain inalienable rights ; that among 
 
22 THE LAW OF CITIZENSHIP 
 
 these are life, liberty and the pursuit of happiness ; 
 that to secure these rights, governments are instituted 
 among men, deriving their just powers from the con- 
 sent of the governed." 
 
 In article I, section 1, declaration of rights, state of 
 Alabama, we find : " That all men are created equal ; 
 that they are endowed by their Creator with certain in- 
 alienable rights ; that among these are life, liberty and 
 the pursuit of happiness." 
 
 Section 3. "That all power is inherent in the peo- 
 ple, and all free governments are founded on their au- 
 thority and instituted for their benefit." 
 
 In article II, section 1, declaration of rights of the 
 state of Arkansas, we read : " That all freemen when 
 they form a social compact, are equal, and have certain 
 inherent and indefeasible rights, among which are those 
 of enjoying and defending life and liberty ; of acquir- 
 ing, possessing and protecting property and reputation, 
 and of pursuing their own happiness." 
 
 Section 2. " That all power is inherent in the people 
 and all free governments are founded on their author- 
 ity and instituted for their peace, safety and happi- 
 ness." 
 
 In article I, section 1, declaration of rights in the 
 state of California, we read : " All men are by nature, 
 free and independent and have certain inalienable 
 rights, among which are those of enjoying and defend- 
 ing life and liberty, acquiring, possessing and protect- 
 ing property, and pursuing and obtaining safety and 
 happiness." 
 
 Section 2. "All political power is inherent to the 
 people." 
 
IN THE UNITED STATES. 23 
 
 In article II, section 1, bill of rights, state of Colo- 
 rado, we find : " That all political power is vested in, 
 derived from the people ; that all government of right 
 originates from the people ; is founded upon their will 
 only and is instituted solely for the good of the 
 whole." 
 
 Section 3. " That all persons have certain natural, 
 essential and inalienable rights, among which may be 
 reckoned the right of enjoying and defending their 
 lives and liberties ; that of acquiring, possessing and 
 protecting property; and of seeking and obtaining 
 their safety and happiness." 
 
 In article I, section 1, declaration of rights, state of 
 Connecticut, we find : " That all men, when they form 
 a social compact, are equal in rights." 
 
 Section 2. " That all political power is inherent in 
 the "people, and all free governments are founded on 
 their authority and instituted for their benefit." 
 
 In article I, section 1, declaration of rights, state of 
 Florida, we find : " That all free men when they form 
 a social compact are equal, and have certain inherent 
 and indefeasible rights, among which are those of en- 
 joying and defending life and liberty ; of acquiring, 
 possessing and protecting property and reputation, 
 and of pursuing their own happiness." 
 
 Section 2. "That all political power is inherent in 
 the people, and all free governments are founded on 
 their authority and established for their benefit." 
 
 In article VIII, section 1, constitution of the state 
 of Illinois, we find : " That all men are born equally 
 free, and independent and have certain inherent and 
 indefeasible rights, among which are those of enjoying 
 
24 THE LAW OF CITIZENSHIP 
 
 and defending life and liberty, and of acquiring, pos- 
 sessing and protecting property and reputation and of 
 pursuing their own happiness." 
 
 Section 2. "That all power is inherent in the people 
 and all free governments are founded on their author- 
 ity, and instituted for their peace, safety and happiness." 
 
 In article I, section 1, constitution of state of Indiana, 
 we find: "That all men are born equally free and 
 independent and have certain natural, inherent and 
 inalienable rights, among which are the enjoying and 
 defending life and liberty ; and of acquiring, possessing 
 and protecting property ; and pursuing and obtaining 
 happiness and safety." 
 
 Section 2. "That all power is inherent in the 
 people, and all free governments are founded on their 
 authority, and instituted for their peace, safety and 
 happiness." 
 
 In article I, section 1, bill of rights, state of Iowa, 
 we find : "All men are by nature, free and equal, and 
 have certain inalienable rights, among which are those 
 of enjoying and defending life and liberty ; acquiring, 
 possessing and protecting life and property, and of 
 pursuing and obtaining safety and happiness." 
 
 Section 2- "All political power is inherent in the 
 people." 
 
 In article I, section 1, bill of rights, state of Kansas, 
 we find : "All men are by nature, free and independ- 
 ent, and have certain inalienable rights, among 
 which are those of enjoying and defending life and 
 liberty ; acquiring, possessing and protecting life and 
 property, and seeking and obtaining safety and 
 happiness." 
 
IN THE UNITED STATES. 25 
 
 Section 2. "All political power is inherent in the 
 people." 
 
 In article XII, constitution of state of Kentucky, 
 we find : " That all men when i hey form a social com- 
 pact are equal ; that all power is inherent in the 
 people." 
 
 In title I, article 1, bill of rights, state of Louisiana, 
 we find : ''All men are created free and equal, and 
 have certain inalienable rights, among these are life, 
 liberty and the pursuit of happiness ; to secure these 
 rights, governments are instituted among men, deriv- 
 ing their just powers from the consent of the governed." 
 
 In article I, section 1, declaration of rights, state of 
 Maine, we find : "All men are born, equally free and 
 independent, have certain natural, free and inalienable 
 rights, among which are those of enjoying and de- 
 fending life and liberty ; acquiring, possessing and 
 protecting property, and obtaining safety and happi- 
 ness." 
 
 Section 2. "All power is inherent in the people ; all 
 free governments are founded in their authority, and 
 instituted for their benefit." 
 
 In declaration of rights, state of Maryland, we find : 
 "That all government of right originates from the 
 people ; is founded in compact only ; and instituted 
 solely for the good of the whole." 
 
 In part I, article 1, declaration of rights, state of 
 Massachusetts, we find : "All men are born free and 
 equal, and have certain natural, essential and inalien- 
 able rights, among which may be reckoned the right 
 of enjoying and defending their lives and liberties ; 
 that of acquiring, possessing and protecting property ; 
 
26 THE LAW OF CITIZENSHIP 
 
 in fine, that of seeking and obtaining their safety and 
 happiness." 
 
 In article I, section 1, constitution of state of Mich- 
 igan, we find : "All political power is inherent in the 
 people." 
 
 Section 2. " Government is instituted for the pro- 
 tection, security, and benefit of the people." 
 
 In bill of rights, state of Minnesota, article I, section 
 5, we find : " The government is instituted for the 
 security, benefit and protection of the people, in 
 whom all political power is inherent." 
 
 In declaration of rights, state of Mississippi, article 
 I, section 1, we find : " That all freemen, when they 
 form a social compact, are equal in rights." 
 
 Section 2. " That all political power is inherent in 
 the people, and all free governments are founded on 
 their authority, and instituted for their benefit." 
 
 In the declaration of rights, state of Missouri, we 
 find : " That all political power is vested in and 
 derived from the people." 
 
 In bill of rights, state of Nebraska, article I, section 
 1 : "All persons are, by nature, free and independent, 
 and have certain inherent and inalienable rights; 
 among these are life, liberty and the pursuit of happi- 
 ness. To secure these rights and the protection of 
 property, governments are instituted among people, 
 deriving their just powers from the consent of the 
 governed." 
 
 In declaration of rights, state of Nevada, article I, 
 section 1 : "All men are by nature, free and equal, 
 and have certain inalienable rights, among which are 
 those of enjoying and defending life and liberty; 
 
IN THE UNITED STATES. 27 
 
 acquiring, possessing and protecting property, and of 
 pursuing and obtaining safety and happiness." 
 
 Section 2. "All political power is inherent in the 
 people." 
 
 In bill of rights, state of New Hampshire, part I, 
 article 1 : "All men are born equally free and in- 
 dependent; therefore, all government of right, origi- 
 nates from the people, is founded on consent, and 
 instituted for the general good." 
 
 Article 2. "All men have certain natural, essential 
 and inherent rights, among which are the enjoying 
 and defending life and liberty ; acquiring, possessing 
 and protecting property, and, in a word, of seeking 
 and obtaining happiness." 
 
 Article 3. " When men enter into a state of society 
 they surrender up some of their natural rights to that 
 society, in order to insure the protection of others 
 and without such an equivalent, the surrender is void." 
 
 In rights and privileges, in the state of New Jersey, 
 article I, section 1: "All men are by nature, free and 
 independent, and have certain natural and inalienable 
 rights, among which are those of enjoying and defend- 
 ing life and liberty ; acquiring, possessing and pro- 
 tecting property, and of pursuing and obtaining safety 
 and happiness." 
 
 Section 2. "All political power is inherent in the 
 people." 
 
 In declaration of rights, state of North Carolina : 
 " That all political power is derived from and vested 
 in the people only." 
 
 In bill of rights, state of Ohio, article I, section 1 : 
 "All men, are by nature, free and independent, and 
 
28 THE LAW OF CITIZENSHIP 
 
 have certain inalienable rights, among which are 
 those of enjoying and defending life and liberty; 
 acquiring, possessing and protecting property, and 
 seeking and obtaining happiness and safety." 
 
 Section 2. "All political power is inherent in the 
 people." 
 
 Bill of rights, state of Oregon, article I, section 1: 
 " We declare that all men, when they form a social 
 compact, are equal in rights ; that all power is inher- 
 ent in the people; and all free governments are 
 founded on their authority, and instituted for their 
 peace, safety and happiness." 
 
 Declaration of rights, state of Pennsylvania: "That 
 all men are born equally free and independent, 
 and have certain natural and inalienable rights, 
 amongst which are the enjoying and defending life 
 and liberty; acquiring, possessing and protecting 
 property, and pursuing and obtaining happiness and 
 safety." 
 
 In declaration of rights, state of South Carolina, 
 article I, section 1. "All men are born free and equal, 
 endowed by their Creator with certain inalienable 
 rights, among which are the rights of enjoying and 
 defending their rights and liberties ; of acquiring, 
 possessing and protecting property, and of seeking 
 and obtaining their safety and their happiness." 
 
 In declaration of rights, state of Rhode Island, ar- 
 ticle I, section 1 : " All free governments are instituted 
 for the protection, safety and happiness of the people." 
 
 In declaration of rights, state of Tennessee, article 
 I, section 1 : " That all power is inherent in the 
 people, and all free governments are founded on their 
 
IN THE UNITED STATES. 29 
 
 authority and instituted for their peace, safety and 
 happiness." 
 
 In declaration of rights, state of Texas, first : " All 
 men when they enter a social compact have equal rights." 
 Second: " All political power is inherent in the people." 
 
 In bill of rights, state of Vermont, chapter I, 
 section 1 : " That all men are born equally free and 
 independent, and have certain natural, inherent and in- 
 alienable rights, among which are the enjoying and 
 defending life and liberty ; acquiring, possessing and 
 protecting property, and pursuing and obtaining safety 
 and happiness." 
 
 Bill of rights, state of Virginia, section 1 : " That 
 all men are by nature equally free and independent, 
 and have certain inherent rights of which, when they 
 enter into a state of society, they cannot, by any com- 
 pact, deprive or divest their posterity, namely : the 
 enjoyment of life and liberty, with a means of acquir- 
 ing and possessing property, and of pursuing and ob- 
 taining happiness and safety." 
 
 Section 2. " That all property is vested in, and con- 
 sequently derived from the people." 
 
 In the constitution, state of West Virginia, section 3 : 
 "The powers of government reside in all the citizens 
 of the state and can be rightfully exercised only in ac- 
 cordance with their will and appointment." 
 
 In declaration of rights, state of Wisconsin, article 
 I, section 1 : " All men are born equally free and in- 
 dependent, and have certain inherent rights. Among 
 these are life, liberty and the pursuit of happiness." 
 
 These declarations of the United States, and of the 
 many states which compose the union, were not origi- 
 
30 THE LAW OF CITIZENSHIP 
 
 nal. Already they had found expression in the writ- 
 ings of public jurists on the natural rights of man, the 
 origin of society and public and private international 
 law. It has been a disputed question, and was, when 
 the United States were organized as an independent 
 community. 
 
 Among the Orientals we find the theory: "The 
 state rests on the will of God ; the state is the work 
 of God." This was theocracy, in which the Jews be- 
 lieved : " That positive law was of God and not of 
 man." In India and Egypt we find jurists, human be- 
 ings with divine inspiration, as emanators of equity 
 and the source of justice. The Druids of northern 
 Europe were held in reverence, as the receptacles of 
 law from God, through whom it came to the people. 
 The Greeks first discussed the idea and expressed the 
 origin of positive law to be in man. 
 
 Aristotle grounds the state on the nature of man, 
 on man's safety and consequently his well being. A 
 citizen of a Grecian state was a particle of the whole, 
 which whole was the state, and partook of the control 
 of its affairs. 
 
 Among the Romans, the state was respublica ; the 
 jus naturale of man was fully recognized. 
 
 In the middle ages, two sources came into conflict. 
 The Christian church did not hold that government 
 was vested in a worldly prince. Among the Germans 
 a worldly prince was the source of all laws and equity. 
 This was the feudal theory and practice which in vary- 
 ing forms and modifications remained in force for many 
 years, on the continent of Europe and was trans- 
 planted to England. 
 
IN THE UNITED STATES. 31 
 
 With the downfall of the Roman empire, the pan- 
 dect of the civilized world lost its authority. The law 
 jus naturale became extinct. On the ruins of the 
 Roman empire rose kingdoms and principalities of a 
 barbarous people. Continental Europe was governed 
 by the laws of barbarians. The laws of these people 
 were feudalistic. The relation of man to the prince 
 was dual ; through the laud, for reason of birth on the 
 land of his prince ; and fealty or allegiance to his 
 sovereign to perform military service. 
 
 From citizens the Romans became subjects. Their 
 lands were parcelled among the followers of the king, 
 the leaders of whom became counsellors and adminis- 
 trators of justice, taking to themselves titles of their 
 towns and castles, and thus creating a landed nobility, 
 co-extensive with the system of tenures. To give the 
 nobility gentility of blood, they adopted armorial 
 bearings, and the names of their estates for surnames. 
 The privileges of birth thus became susceptible of 
 proof under the customs of their lands. These inno- 
 vations marked more distinctly the relation of high 
 born to plebeian who could hold no fief. 
 
 The allodialists subscribed to the oath demanded 
 by the feudal lords. The vassals became identified 
 with the soil. In many states he was inseparable 
 from his till ; he was a " hoeriger " to the land ; a 
 quasi immovable. To what extent this power of the 
 prince over his subjects was exercised, is apparent 
 from recent dates, not a century ago, when the Hes- 
 sian prince sold his subjects to the English king to 
 contend against the struggle for independence of 
 his colonies in America. 
 
32 THE LAW OF CITIZENSHIP 
 
 It remained for the French revolution to declare to 
 Europe the liberty and equality of man. 
 
 From the agitation, which prevailed at about this 
 date in both Europe and America, was evolved anew 
 the principle, that all men were created equal and in 
 them, of them and by them, society and government 
 was organized for the protection of life, liberty and 
 the pursuit of happiness. 
 
 The effect of these declarations, to the world, in 
 America, by the declaration of independence, and in 
 Europe, by the promulgation of the code Napoleon, 
 in their respective relations to citizenship, will be 
 apparent. From this date the theoiy of the feudalists 
 lost support, and at the present time is discount- 
 enanced in the practice of nations. 
 
 THE SOCIETY WHICH MAN ENTERS MUST BE INDEPENDENT 
 AND RECOGNIZED BY OTHER EXISTING SOCIETIES. 
 
 The society must enjoy its own autonomy, free from 
 the influence of other states. 
 
 The essentials which make up a society must be 
 evident before such recognition can be granted. 
 There mixst be members or citizens, territory, govern- 
 ment and laws. 
 
 The recognition of the existience of another state is 
 not primarily obligatory ; it is for the existing state 
 alone for itself to decide when it will recognize a 
 newly created state. The recognition cannot be 
 denied, when the independence is complete. France 
 recognized the independence of the United States 
 earlier than did England. England recognized the 
 independence of states of South America earlier than 
 
IN THE UNITED STATES. 33 
 
 did Spain. The European powers recognized the 
 kingdom of Italy earlier than did Austria. 
 
 So long as strife exists, by which a people seek to 
 attain independence, and thus create a new state, no 
 state is bound to recognize the would-be state strug- 
 gling for existence. 
 
 The struggles in Poland in 1830-1832 ; the struggles 
 in Hungary in 1848-1849 ; the struggles in the con- 
 federate states of North America in 1861-1865. The 
 recognition may be considered as premature. 
 
 England withdrew her ambassador from France in 
 1778 for reason of her early recognition of the inde- 
 pendence of the United States of America. In 1825, 
 before hostilities were concluded, England recognized 
 the South American states as against Spain. In 1827, 
 England, France and Russia stipulated to recognize 
 the independence of Greece. 
 
 In 1830 the five powers of Europe recognized the 
 independence of Belgium despite the protest of the 
 king of Holland. 
 
 In 1860 England recognized the Italian kingdom 
 even in the Neapolitan province while Franz II of 
 Naples was struggling to maintain himself in Gaeta 
 and notwithstanding the protests of the Pope of 
 Rome. 
 
 The newly created state has the right to demand re- 
 cognition from the family of nations when its existence 
 is established. 
 
 The ancient rule that such recognition rested on 
 simple inclination of an existing state to do so or not, 
 does not find support in the recent practice. 
 
 Had France failed to recognize the newly created 
 5 
 
34: THE LAW OF CITIZENSHIP 
 
 North German Union after 1866, it would have been 
 cause for hostilities on the part of Prussia. 
 
 The recognition may be too premature, as was the 
 case in 1869 when the house of representatives in 
 Washington recognized the independence of Cuba, 
 while hostilities were pending, which act was not 
 countenanced by the senate and president. 
 
 FORMS OF SOCIETY. 
 
 Man in his compact with his fellow man, by which 
 society is formed, institutes the form of government, 
 by which and under which he will best enjoy life, lib- 
 erty and the pursuit of happiness. Whatever the 
 form of government may be, under which he and his 
 fellow men join in compact to live, the presumption 
 is, that the government is the institution of man. 
 
 The compact is peculiar to the people by whom it is 
 made. It is not for interference on the part of 
 other states to dictate what the compact shall be or 
 the form of government under which they shall live. 
 The misguided attempt of Napoleon III to establish 
 an empire in Mexico is illustrative, undertaken as it 
 was contrary to the rule that right and politics do di- 
 rect that it is for every people for itself to determine 
 the constitutional form of its international existence. 
 Secretary Seward declared the growth of America to 
 be republican but recognized at the same time that 
 the United States had neither the right nor the incli- 
 nation to interfere in the Mexican constitutional ques- 
 tion as to whether it should be republican or monarch- 
 ical. He advocated the republican form of government 
 for the Americans and denied the right to European 
 monarchies to interfere in the question. 
 
IN THE UNITED STATES. 35 
 
 This modern principle was announced by King "Wil- 
 liam at the opening of the German parliament in his 
 speech from the throne in 1870 as follows: "Among 
 the governments as among the nations of the world 
 the conviction is firmly established that to every indi- 
 vidual political community the independent care of its 
 prosperity, liberty and happiness is alone entrusted 
 and is free from foreign intervention." 
 
 The compact may be expressed or implied; in 
 either case, he acquiesces in its form, and is bound 
 to perform the duties and obligations which arise from 
 the laws enacted for {he good and welfare of the 
 members of the society. 
 
 This is purely a state, and not an international 
 question. It does not concern other states. So far 
 as recognition as member of the family of nations is 
 concerned, it matters not whether a state is monarchical 
 or republican in form. 
 
 The recognition still remains notwithstanding 
 changes in its form of government. 
 
 England had the same international recognition 
 before, during and after the revolutions from 1649 to 
 1688. 
 
 France has had the same recognition notwithstand- 
 ing the extreme changes in form of government 
 through which she has passed since 1789. 
 
 First, there must be a separation of the people as a 
 whole into independent individuals ; but a number of 
 such independent individuals do not make a whole 
 unless united. 
 
 Second, there must be an equality as between these 
 independent individuals, that is, the one must be 
 
36 THE LAW OF CITIZENSHIP 
 
 recognized by the others and vice versa as the equal 
 of the others ; the particles must be the equal, the one 
 of the other. 
 
 Third, there must be an unanimity between these 
 independent individuals for the reason that the agree- 
 ment necessitates that there should be as among the 
 contracting parties in order that the agreement be valid. 
 
 The idea has been advanced that a majority should 
 not contract as among themselves to bind a minority 
 which was unwilling to subscribe to such an agree- 
 ment. The act of the majority does not in itself bind 
 the minority in this sense. The agreement is one 
 made by the representatives of all who desire to be 
 members, and where the expression of a majority 
 is determined, it remains for the minority to acquiesce. 
 The minority cannot separate from the majority act- 
 ing in unison. Individually the right exists to depart 
 from the country and seek citizenship elsewhere. 
 
 Treaties between the states continue to exist 
 throughout the changes in the form of government, 
 with the exception of personal treaties as between 
 sovereigns when the sovereign loses his throne- — 
 then the obligation ceases. 
 
 For example : in the instance of King Louis XIV 
 of France and James II of England. The emperor of 
 Austria with the Bourbon princes of Naples ; the 
 Emperor Napoleon III with Maximilian. 
 
 Treaties ratified at any period by the existing and 
 recognized government with other states are binding 
 on the subsequent rulers, who, by change may govern 
 again after having been driven from power, or who 
 may be called to govern for the first time. 
 
IN THE UNITED STATES. 37 
 
 The restored Stuarts in England could not nullify 
 treaties made by the protector, Cromwell. Nor could 
 the French Bourbons disown the treaties made by 
 Napoleon during his regime. 
 
 The conduct of the restored king of Piedmont and 
 elector of Hesse in 1814, in treating the interim of 
 their absence from power as a nullity was regarded as 
 pure aristocratic caprice and folly. 
 
 It is essential that the state exists and enjoy recog- 
 nition as an international being. 
 
 The interregnum in Venice of Dictator Manin ; of 
 Kossuth in Hungary ; of the republican governments 
 in Eome, and in Baden in 1849, were not recognized 
 as binding on those states. 
 
 EQUALITY OP SOCIETIES. 
 
 Every society is the equal, the one of the other, 
 regardless of the form of government, extent of terri- 
 tory, or number of members. 
 
 " The equality of all states is as much a principle of 
 international law as the equality of all men is an 
 axiom of our independence ; therefore, one should not 
 do to a small and weak state, that which one would 
 not do to a large and powerful state, or what we 
 would not sufier if done to ourselves." 
 
 The republic of Switzerland is the equal of the 
 empire of Russia in the enjoyment of an international 
 existence and independence, as is the republic of the 
 United States of America with the kingdom of 
 Italy. 
 
 While the rule is well established that in the inter- 
 national practice one state is the equal of the other, 
 
38 THE LAW OF CITIZENSHIP 
 
 yet considerable question has attached to the dignity 
 of the person of the sovereign in monarchical states. 
 
 When the Duke Frederick I of Brandenburg 
 assumed the title of king in 1 701, grave doubts were 
 entertained as to the justice of his act to the then 
 ruling emperors and kings in Europe. When Peter 
 the Great of Russia assumed the title of emperor, in 
 1701, other sovereigns were disinclined to recognize 
 him, and it was not done by the German emperor 
 until 1744, by the king of France in 1762, and the 
 king of Poland in 1764. In this century the title of 
 emperor has been assumed by the Austrian king for 
 Austria ; by Napoleon for France ; by Ring William 
 of Prussia for Germany ; and the title of empress of 
 India by Queen Victoria. 
 
 In 1818, when the five great powers conferred at 
 Aix-la-Chapelle, the wish of the duke of Hesse that 
 he be recognized as a titular king was not countenanced. 
 
 The assumption by the negro head of Hayti of the 
 title of emperor in recent times did not receive recog- 
 nition from the sovereigns of Europe. 
 
 These matters of title govern the rules of precedence 
 among ruling potentates. In certain practices they 
 govern as to a classification of the respective countries. 
 It must not, however, be considered that the title in 
 itself conditions the rank. The republic of the United 
 States through its president, as also Great Britain 
 through its queen, must rank with the empires of the 
 continent. 
 
 England did not lose rank under the rule of Crom- 
 well ; the same rank was maintained as under Charles I. 
 
 In 1797 the French republic demanded and received 
 
IN THE UNITED STATES. 39 
 
 the same recognition as the Bourbon kings had re- 
 ceived. 
 
 TREATIES. 
 
 Every society has a treaty making power, through 
 which such relations with other societies are estab- 
 lished, as will be to the mutual advantage and benefit 
 of the contracting parties. A treaty is the supreme 
 law of a society. 
 
 Treaties are made to continue for a period of time, 
 and involve the integrity of the societies contracting, 
 in their entirety ; they are the most solemn relations 
 into which societies can enter. As such they estab- 
 lish principles of law which are to govern the relations 
 of the citizens of the contracting states. 
 
 "An obligee, under a treaty can be held to fulfill a 
 disadvantageous and detrimental obligation, but under 
 no circumstances can it be attributed that the obligee, 
 by the treaty, purposes to sacrifice its existence and 
 prosperity." 
 
 In the year 1806, the Prussian government issued a 
 manifesto in which it concluded, " that the rights of a 
 nation as a nation take precedence of all treaties." 
 
 The reason for this is found in the well recognized 
 principle that it is open to every state, to insure to 
 itself its own independence and existence in order to 
 advance the welfare and well-being of its citizens. At 
 that time treaties were imposed on a weaker state by a 
 more powerful neighbor, and at that time the weaker 
 neighbors of Prussia were suffering from the impo- 
 sition of Napoleon as well as Prussia herself ; and the 
 manifesto was issued more as against France, in order to 
 
40 THE LAW OF CITIZENSHIP 
 
 bring about an unification of policy among the North 
 German states, and thereby abrogate the treaties 
 which Napoleon had forced upon them. 
 
 A manifesto of this same tenor in more modern 
 times, when Prussia was in pursuit of acquisition of 
 more power by subjugation and annexation, as of 
 Schleswig-Holstein, and later the kingdom of Hanover, 
 the duchy of Hesse-Cassel and the free city of Frank- 
 fort would not have availed in any instance had it 
 been made by any of these states. 
 
 This principle as enunciated by Prussia has main- 
 tained its position in the practice. 
 
 In 1870 Lord Granville laid down the principle to 
 be simply this : that by a treaty one nation bound an- 
 other and thereby surrendered a portion of its indi- 
 vidual liberty to act aDd to do ; but it still remained 
 in the power of the contracting parties to bring within 
 its own peculiar control the stipulating of the treaty 
 and thus remain no longer bounden by it than it should 
 see fit. 
 
 This rule would seem to imply that with proper no- 
 tice a treaty can be abrogated, in cases when it was 
 not made to continue for a determined period of time. 
 
 SOCIETY WITHOUT MEN. 
 
 The world is the common fatherland of all beings. 
 Among them, by them, and of them society is formed, 
 to protect them in life, liberty and the pursuit of hap- 
 piness. Society without members would be a nullity ; 
 no people, no society. 
 
 An instance of the total annihilation of a society not 
 alone as a society depriving it of its members but also 
 
IN THE UNITED STATES. 41 
 
 of its territory and disregarding its form of government, 
 was the partition of the kingdom of Poland between 
 the empires of Eussia, Austria and the kingdom of 
 Prussia. 
 
 MAN ENTERS SOCIETY. 
 
 The dependence of man teaches him his wants. This 
 is a feeling common to mankind. He seeks relief 
 for the feeling of dependency, and assumes such re- 
 lations in society as will best serve the promotion of 
 his own welfare. To do this he enters society. He 
 does not renounce to the other members of the society 
 which he enters the entire and complete control of his 
 nature; he permits certain restrictions such as are 
 necessary for the common good. 
 
 Of these restrictions the citizens of the society of 
 which he seeks membership are the judges and he as- 
 sumes such as exist at the time he enters the society 
 as a member and remains subject to them so long as 
 they exist and become subject to others which the 
 citizens, of which he is one, deem necessary should ex- 
 ist for the welfare of the society. 
 
 MAN ENTERS SOCIETY BY POSITIVE LAW. 
 
 The men who form society become members thereof 
 by compact or agreement with each other. This com- 
 pact is the foundation on which society rests. The 
 compact is a positive agreement, and rules of conduct 
 enacted by the governing power for the guidance of 
 the members of the society are positive laws. "When 
 a society is once formed, one, not a member of the so- 
 ciety, becomes a member, or, if a member, absolves his 
 membership by positive law, based on the law of na- 
 6 
 
42 THE LAW OF CITIZENSHIP 
 
 ture. In case of positive law, it is expressed ; in case 
 of custom, it is implied. 
 
 WHAT MAN SURRENDERS TO SOCIETY. 
 
 Man, in his natural state, has certain innate rights, 
 which rights are absolutely in him, and of which he 
 cannot entirely and completely divest himself, or be 
 divested, by positive law. 
 
 Possessed of these absolute rights, he has further 
 the power to assume relative rights, such rights as grow 
 out of membership of the society through the rela- 
 tions into which he enters, with his fellow members. 
 
 The absolute right of man is the power of acting as 
 he sees fit, when in a natural state and when in society 
 he restricts this absolute right in conformity to the 
 same restriction which others who enter into the com- 
 pact on which society is based, permit to be imposed 
 on them. Man permits these restrictions on his natural 
 and inherent rights, in order to obtain better protec- 
 tion to life and liberty, in the pursuit of happiness. In 
 return for this protection which is accorded him, he 
 assumes duties correlative to the rights which he ac- 
 quired. 
 
 WHAT MAN RESERVES TO HIMSELF. 
 
 Man reserves to himself the right to withdraw to 
 his natural state, in which man was before he joined 
 society ; or to join another existing society. The man- 
 ner in which the withdrawal shall be made is entirely 
 a matter of positive law of the society from which he 
 seeks to withdraw. 
 
 The withdrawal legally completed, according to the 
 positive law of the state from which he withdraws, ab- 
 
IN THE UNITED STATES. 43 
 
 solves the member withdrawing from all control of 
 the governing power of the society from which he ab- 
 solves himself and leaves him free and independent to 
 seek membership elsewhere. Where no positive law 
 exists prescribing the manner of withdrawal, the right 
 still exists in man to withdraw. The right is found 
 implied in the organization of the society. 
 
 In the exercise of the right of withdrawal he does 
 not deprive himself of the right to protection from the 
 society from which he withdrew until he has acquired 
 membership in some other existing society. 
 
 The right to withdraw and the withdrawal in itself 
 in the exercise of the right does not constitute mem- 
 bership in another state until the party withdrawing 
 has complied with the laws of the state in which he 
 seeks membership and has been admitted to member- 
 ship in that state. 
 
 MAN'S VOLITION. 
 
 Man's act in joining society and his act in withdraw- 
 ing therefrom, must be peculiarly his own. They must 
 be acts of his own volition. He must join society of 
 his own free will and must withdraw legally of his 
 own free will. 
 
 The society of which he is a member cannot force 
 him to withdraw and become an exile in a foreign so- 
 ciety, no more for a political wrong, than it can for a 
 criminal wrong, or for reason that the member is a 
 pauper. No society is an asylum to which another 
 society can send its members. A society can receive 
 whomsoever it pleases ; but there is no obligation by 
 which it can be compelled to receive those whom it 
 
44 THE LAW OF CITIZENSHIP 
 
 does not want. Such persons can be returned to the 
 society by which they were sent and the society to 
 which they are returned must receive them. 
 
 The exercise of volition presupposes that the person 
 who exercises it has and is of the legal age so to do. 
 This age is not the same in all countries; it is an age 
 determined by the positive law of each society for its 
 own good and benefit. 
 
 THE SOCIETY MUST HAVE LAWS. 
 
 The society of the state which man joins must have 
 laws. These laws are termed positive because they 
 are enacted for the special society in which they are 
 to have force. They are the outgrowth of man's na- 
 ture to meet such emergencies and promote such pros- 
 perity, as the general utility of the society demands. 
 They have a particular application to the defined ter- 
 ritory of the society. 
 
 The term positive is used in contra-distinction to 
 natural, which natural law man restricts by the posi- 
 tive law, to meet such rules of conduct as will best 
 govern the members of society in their relations to each 
 other. These laws of the society, which are termed 
 positive, are the fabric of the government, which is an 
 institution of man. 
 
 The natural law is universal, the positive law is ter- 
 ritorial. 
 
 THE LAWS ARE ENACTED FOR THE UTILITY OF THE 
 SOCIETY. 
 
 However so much the positive law of one society 
 may differ from the positive law of another, the rule 
 is : that, in either case, the laws are enacted for the 
 
IN THE UNITED STATES. 45 
 
 common good of the members of the society within 
 which territory the laws are enacted. It is not open 
 to one society to do any act by which to make any change 
 in any existing law which governs in another society. 
 Such laws are purely autonomous and do not concern 
 other societies. This is the general rule which governs 
 among civilized countries. In the interests of human- 
 ity argued from the standpoint of religion there are 
 many instances of interference on the part of civilized 
 societies in the affairs of barbarous and irreligious 
 communities. Nor can countries debar themselves 
 from intercourse commercially with other countries. 
 This position was taken by Great Britain and the 
 United States in regard to China and Japan, both of 
 which countries were forced to open their ports for 
 trade with the civilized world and for reason of the 
 rule which follows : " As the laws of each particular 
 state are designed to promote its advantage the con- 
 sent of all or at least the greater number of states may 
 have produced certain laws between them. And in 
 fact it appears that such laws have been established 
 tending to promote the utility not of any particular 
 state but of the great body of the communities." 
 
 RIGHT AND DUTY IN THE SOCIETY. 
 
 The laws of every society prescribe rights and du- 
 ties which the members must perform, to preserve the 
 integrity of the society. Each member must volun- 
 tarily assume the obligations prescribed by the laws of 
 the society, when he seeks membership, in return for 
 the rights which he enjoys. The presumption must be 
 that he is knowing to the duties, to which he sub- 
 
46 THE LAW OF CITIZENSHIP 
 
 scribes when he enters the society. There can be no 
 hidden obligations or duties from which a member 
 cannot in some* manner be absolved. Immutable ob- 
 ligations, which follow man, as it were a part of his 
 being, cannot be enforced, are contrary to man's nature 
 and are obnoxious to modern civilization. 
 
 EXERCISE OP RIGHTS AND PERFORMANCE OF DUTIES DE- 
 VOLVE EQUALLY ON ALL. 
 
 Each and every member of society must enjoy equal 
 rights, equal privileges, and the duties and obligations 
 must be equal, in order to insure the perfect enjoy- 
 ment of life and liberty and the pursuit of happiness. 
 
 Unequal rights and privileges and duties, at home, 
 necessarily involve the same relations abroad. Equality 
 before the law, at home, insures equality of protection 
 to one member of society as to another, when abroad. 
 
 The first portion of this rule finds reason in the exist- 
 ence of certain personal treaties as between ruling 
 sovereigns, which regard more the family relations as 
 between ruling families and their immediate ranks of 
 nobility, which do not extend to their subjects. They 
 concern the sovereign family as a family more than 
 the state as a state which would include their sub- 
 jects. Such treaties are often known as alliances, by 
 which a powerful sovereign agrees to protect a weaker 
 prince and maintain him on his throne. The relation 
 thus created entitles certain classes to special privileges 
 in the respective countries which enter into the alliance. 
 The working of this same rule was more evident in 
 European countries than elsewhere. In those countries 
 in which there was a classification of the people ; in 
 which certain civil rights were accorded to one class 
 
IN THE UNITED STATES. 47 
 
 and denied to another ; while the rule was enforced 
 with stringency at home it did not lose its force abroad ; 
 the citizen was supposed to move in the same class 
 when abroad as when at home. This was also the 
 case with the Jews who were accorded no civil rights 
 until quite recent dates. When abroad, it was their 
 own race to which they looked for protection, not to 
 the country from which they came and of which they 
 were quasi-subjects. It was much the same through- 
 out the periods of religious agitations. 
 
 HOW EXISTING OBLIGATIONS ARE INQUIRED INTO. 
 
 It is optional with a member of society to exercise 
 his rights and privileges ; it is obligatory to perform 
 his duties. The governing power redresses an infrac- 
 tion of the former, and enforces the performance of 
 the latter. 
 
 These duties are created by positive law and are de- 
 termined by the positive law of the society of which 
 one is a member ; and the local tribunals of the society 
 can alone adjudicate and inquire into the obligations 
 and duties devolving on the members. When a mem- 
 ber has performed these obligations, the local authori- 
 ties finally determine. 
 
 The question is autonomous, and the tribunals of 
 other societies have no jurisdiction to decide and give 
 any effect to their decision, within the confines of the 
 society where the question of duty arises on the rela- 
 tion of a citizen to his government. 
 
 THE DIVISIONS OF GOVERNMENT OF A SOCIETY. 
 
 The government of a society falls into three depart- 
 ments, , and to each department are assigned powers. 
 
48 THE LAW OF CITIZENSHIP 
 
 The assignment of these powers is found in the com- 
 pact by which society is formed. These departments 
 are known as the legislative, the executive and the ju- 
 diciary. 
 
 In the legislative department, rules of conduct and 
 other necessary laws for the government of the mem- 
 bers of the society are enacted. 
 
 In the executive department, is the power by which 
 the laws enacted by the legislative department are en- 
 forced. 
 
 In the judiciary department, are interpreted the 
 laws enacted in the legislative department. 
 
 WHAT CONSTITUTES FULL MEMBERSHIP OR CITIZENSHIP 
 IN A SOCIETY. 
 
 Full citizenship is the enjoyment of all the rights 
 and privileges which the laws of a society allow to its 
 members when at home, and equal protection when 
 abroad. It consists of: 
 
 First. In the privilege accorded to members of par- 
 ticipating in the legislative branch of the government, 
 of legislating and being represented in the legislative 
 department. 
 
 Second. Subjection to the executive branch. 
 
 Third. The right to have rights determined and 
 wrongs redressed in the judiciary department. 
 
 Fourth. There being no grades or degrees of citizen- 
 ship, the privilege to call for protection from his gov- 
 ernment when abroad equally with other citizens of 
 the state of which he is a member. 
 
 " In regard to the protection of our citizens in their 
 rights at home and abroad, we have no law which 
 
IN THE UNITED STATES. 49 
 
 divides them into classes or makes any difference 
 whatever between them." 9 Op. Atty-Grenl. 356. 
 
 MAN IS EITHER A CITIZEN OR AN ALIEN. 
 
 In the society in which man lives, he is either a 
 citizen or he is an alien. The distinction is this : that 
 an alien enjoys the same rights and protection in the 
 community as does the citizen, excepting the privilege 
 of participating in the legislative branch of the govern- 
 ment, of legislating and being represented in the legis- 
 lative department. 
 
 There is no intermediate relation to the society. 
 
 The rule which governs as to aliens within the 
 United States is found in Carlisle vs. United States, 
 16 Wallace, 148, "Aliens domiciled in the United 
 States owe a temporary and local allegiance to the 
 government of the United States ; they are bound to 
 obey all the laws of the country not immediately re- 
 lating to citizenship during their residence, and are 
 equally amenable with citizens for any infractions of 
 these laws." 
 
 HOW MAN BECOMES A MEMBER OF SOCIETY. 
 
 The rules which govern the acquisition of citizen- 
 ship are not identical. There is and has been a want 
 of uniformity in the positive laws of states on this 
 subject, and consequently in the practice. 
 
 The two sources of the law of government, the one as 
 based on the feudal law and the other as based on the 
 natural law of man, and the recognition by society of 
 certain inalienable rights in man, are in conflict. 
 
50 THE LAW OF CITIZENSHIP 
 
 CITIZENSHIP BY BIRTH — THE ENGLISH RULE. 
 
 This is the doctrine of England, and has been for 
 centuries. By the common law of England, the rule 
 was established that every person born within the 
 dominion of the crown, no matter whether of English 
 or of foreign parentage, and in the latter case, whether 
 the parents were settled or merely temporarily sojourn- 
 ing in the country, was an English subject. 
 
 This doctrine was carried further by the statute 7 
 Anne, chapter 5, section 3 : " The children of all nat- 
 ural born subjects, born out of the allegiance of her 
 majesty, her heirs and successors, shall be deemed, 
 adjudged and taken to be, natural born subjects of 
 this kingdom, to all intents, constructions and pur- 
 poses whatsoever." 
 
 The doctrine was carried still further by statute 4 
 George II, chapter 21, and 13 George III, chapter 21, 
 by which the children or grandchildren of English sub- 
 jects born out of the ligiance of his majesty, his heirs 
 and successors, could not throw off their allegiance to 
 the British crown. 
 
 DO THESE RULES BEAR WITHIN THEM A SPIRIT OP CONTRA- 
 DICTION ? 
 
 First — for what reason under the rule of the common 
 law, did one become a subject of the crown ? The 
 answer is plain ; it was for reason of the principle of 
 the feudists, as found in the jus soli ; by birth on an 
 inanimate piece of land, was created a relation to that 
 land which was immutable. Not alone was the rule 
 applicable to those children whose parents were held 
 in an immutable relation to the piece of land on which 
 they were born, but also, to the children of parents 
 
IN THE UNITED STATES. 51 
 
 who were or who were not held in an immutable 
 relation to a piece of land in some other country than 
 England. 
 
 For reason of intentional or accidental birth within 
 the realm of Great Britain, the immutable relation to 
 the soil was established, regardless of the parentage of 
 the parent, whether English or foreign. 
 
 This rule was hedged in by another rule : " Nemo 
 exure potest patriam," which was designed to enforce 
 the rule of the feudists, that man was an immovable 
 and belonged to the piece of inanimate land on which 
 he was born, there to remain and abide, subject to his 
 lord, the king. 
 
 Second — for what reason did children of English 
 parents when born without the ligiance of the crown 
 become subjects of Great Britain ? It could not have 
 been nor can it be, for reason of any immutable rela- 
 tion to the inanimate piece of land on which the child 
 was born. It was not pursuant to the common law 
 rule of England. This rule had no force out of the 
 realm. The explanation is here: The rule as laid 
 down in 7 Anne, chapter 5, section 3, and subsequent 
 statutes, extending the rule to children and grand- 
 children, was passed at a time in the history in Eng- 
 land, when the inflexible nature of the common law rule 
 must be changed. Subjects of England, for commer- 
 cial and similar purposes must sojourn in foreign 
 countries. Therefore in accordance with that broad 
 principle known to the English law at that period, by 
 which solemn jugglery was permissible, the feudal 
 theory, which was contained in the principle found in 
 jus soli, was relaxed. 
 
52 THE LAW OF CITIZENSHIP 
 
 Permits to depart from the realm were granted and 
 the theory of a personal relation to the sovereign was 
 created, which was held to be as equally immutable 
 as was the theory of an immutable relation to an in- 
 animate piece of land, which it superseded. This was 
 the first extension of the rule of allegiance to the 
 children of English subjects born out of the realm. 
 Allegiance was not unknown to the English law at 
 this time ; it was adjunctive to the theory of jus soli, 
 and was considered as the connecting link through an 
 inanimate piece of land, by which an English subject 
 was bound- to his sovereign. 
 
 The term used in the statute is " ligiance," mean 
 ing the realm, within which allegiance was due to the 
 sovereign; allegiance being immutable within the 
 realm by the statute, it was made equally binding on 
 English subjects without the realm ; not alone on them, 
 but also on their children and children's children in 
 foreign states. 
 
 WHAT WAS THE EFFECT OF THESE RULES ? 
 
 A subject of a foreign power born in England be- 
 came a subject of Great Britain. A subject of England 
 born in a foreign country remained an Englishman, as 
 did his children and his children's children. Suppose 
 in the foreign state to which an English subject mi- 
 grated, the same rule as was laid down by the English 
 common law prevailed ; for example, in Spain ; what 
 would be the citizenship of the child born of English 
 parents, sojourning in Spain ? Under the Spanish rule 
 it would be a Spaniard, but under the statute of Anne 
 it would remain an English subject. Reverse the prop- 
 osition. A child of Spanish parents born in England 
 
IN THE UNITED STATES. 53 
 
 would be an English subject, providing, however, if a 
 similar statute prevailed in Spain to the statute of 
 Anne, the child would be a Spaniard. 
 
 The unreasonableness and impracticability of these 
 rules are self-evident. They were an impediment to 
 social intercourse between countries for the advance- 
 ment of arts, sciences and commerce ; they were restric- 
 tions on the natural rights of man ; an interference 
 with man's enjoyment of life, liberty and the pursuit 
 of happiness. It was an attempt to make the English 
 law the law of the world. 
 
 The enforcement of the rule became impracticable 
 and was abandoned. 
 
 THE LAW AS TREATED BY ENGLAND IN HER RELATIONS TO 
 HER SUBJECTS IN FOREIGN COUNTRIES. 
 
 In this connection the rule of the English common 
 law and the statutes hereinbefore referred to must be 
 borne in mind. 
 
 With the Argentine Republic : In this country, 
 citizenship by reason of birth was the acknowledged 
 principle. Not alone did this apply to children of 
 citizens, but also to children of aliens born within the 
 country. In this regard, the law was precisely the 
 same as in England. 
 
 In 1845, Sir Robert Peel expressed an opinion on 
 the question. It appeared that the general law was 
 this : that the son or grandson of a British subject 
 born abroad was also a British subject. But he could 
 not deny that children born in a foreign state were 
 not also subjects of that state. 
 
 Such was the law in this country, for the children 
 
54 THE LAW OF CITIZENSHIP 
 
 of foreigners born in her majesty's dominion were 
 British subjects. If the children of British residents, 
 born at Buenos Ayres, were born out of that state, the 
 authorities there had no right to make them Buenos 
 Ayres' subjects. If, however, the children of British 
 subjects were born at Buenos Ayres, and continued to 
 reside there, they retained the rights of citizens of 
 that place, but with those rights they also imposed on 
 them, the burdens and duties of citizens, and they 
 were liable to the laws of Buenos Ayres. 
 
 The position taken by Mr. Peel, was a perfect recog- 
 nition of the force of the laws of the Argentine 
 Republic, and the right of that government to enforce 
 military duties, and actual services on children of 
 British subjects born within the country. 
 
 This enforcement caused considerable discontent, 
 and such English subjects received this satisfaction 
 from Lord Palmerston : " That a British subject could 
 not divest himself of his allegiance by submitting to 
 any local enactment compelling him to wear any par- 
 ticular uniform or badge in a foreign country, in 
 which he may think proper to reside, and that he does 
 not thereby forfeit his right to be protected by his 
 own government." 
 
 Notwithstanding this, British subjects were called 
 upon to serve in the national guard of the country 
 until the year 1858, when the government of Buenos 
 Ayres passed a law permitting its subjects to furnish 
 substitutes for service in the national guard of the 
 country. In so doing, they did not distinguish in 
 favor of those born in the country, whether of citizens 
 or aliens. 
 
IN THE UNITED STATES. 55 
 
 Later a treaty was proclaimed between the two 
 countries, to which the right of choice as between 
 English and Argentine Republican citizenship was 
 given to English subjects. 
 
 After this treaty, all the questions were decided by 
 reference to the acts of the subject claiming protection, 
 whether he had made a choice or not. If none had 
 been made, and he had failed to optate to become a sub- 
 ject of England, he was held as a subject of the 
 Argentine Republic. 
 
 "With Austria. In 1833, the Austrian government 
 issued a decree that all foreigners, who at that date 
 had resided uninterruptedly in Venetia and Ionia for 
 ten years, were allowed to free themselves from Aus- 
 trian citizenship, upon proof that they had no intent 
 of becoming Austrian subjects. The proof was to be 
 furnished within six months. The effect of this was, 
 that many former British subjects were claimed as 
 Austrians. 
 
 Lord Palmerston declared, that according to Aus- 
 trian law, they were liable to be considered as 
 Austrian subjects and consequently were not entitled 
 to exemption from burdens for reason of their claim- 
 ing English citizenship. 
 
 With Belgium. Here the question arose as to the 
 rights of naturalized English subjects in Belgium. It 
 was inquired as regards children of naturalized British 
 subjects born abroad. The answer was that such 
 children follow the citizenship of the father during mi- 
 nority. 
 
 But this is, of course, subject to the local law which 
 may deal with children born in the country, whatever 
 
56 THE LAW OF CITIZENSHIP 
 
 may be the circumstances of their fathers, as natural 
 born subjects of the country in which they were 
 born. 
 
 With Brazil. By article VI of the constitution of 
 Brazil, the offspring of all foreigners born in Brazil 
 are Brazilians, with the exception of those born for- 
 eigners who may be in Brazil, in the service of their 
 own state. The English government failed to bring 
 about a change in the Brazilian constitution, and the 
 law remained the same as it was in the Argentine Re- 
 public, prior to the treaty between that country and 
 England. 
 
 The demand of the English government was to the 
 point that children of English subjects, born in Brazil, 
 should follow the citizenship of their parents to the 
 age of twenty-one and then optate to remain Brazilian 
 subjects or become English subjects. 
 
 This desire to have recognized the rule that the 
 child follows the citizenship of the parent, and was a 
 citizen of the country of which the parent was a citi- 
 zen, regardless of place of birth, was in conflict with 
 the English rule. The Brazilian government did not 
 accede to the demand. 
 
 With Colombia. Only once the question arose, 
 and that was the case of Montaya, who became a natu- 
 ralized subject of England. The English authorities 
 held that this fact did not exempt him from the opera- 
 tion of the law of the state of his birth and natural al- 
 legiance while he resides in that state. 
 
 With Denmark. The case of Rainals demanded 
 much attention. Rainals was born in Denmark, of 
 English parents. The Danish law decides that chil- 
 
IN THE UNITED STATES, 57 
 
 dren of foreigners born in Denmark can claim citizen- 
 ship in Denmark after a continued residence up to the 
 eighteenth year. Rainals took an oath to the Danish 
 crown, and notwithstanding this, he claimed British 
 protection. 
 
 Lord John Russell took the position : " It is not de- 
 nied that Mr. Rainals was born in Denmark, and al- 
 though he renounced citizenship, this does not relieve 
 him from the obligations of allegiance to the crown of 
 Denmark. 
 
 With Fkance. Many questions arose between these 
 countries and were much debated until the year 1857, 
 at which time Lord Clarendon laid down the law of 
 England, as follows : " The children of British subjects, 
 although born abroad, if their fathers or their grand- 
 fathers by the father's side were natural born subjects, 
 are, by certain British statutes, to be deemed natural 
 born subjects themselves to all intents and purposes 
 in England. But neither these statutes nor the gen- 
 eral principles of English or international law, or of 
 reciprocity or comity, so far as Great Britain is con- 
 cerned, would justify her in maintaining that such 
 persons are British subjects within the true intent and 
 meaning of a treaty with a foreign nation, in which 
 their case is not specially provided for, or in contend- 
 ing that they are, while residing in such foreign 
 country, exempt from the obligations incident to their 
 status as natural born subjects or citizens of such for- 
 eign country of their actual birth and residence. 
 Great Britain may confer on them any privileges as 
 far as her own territories are concerned, but no such 
 privileges can avail as against, or in derogation of their 
 8 
 
58 THE LAW OF CITIZENSHIP 
 
 antecedent natural and legal obligations to the country 
 of their birth." 
 
 In 1858 the Earl Malmesbury expressed the follow- 
 ing opinion in the Walewski case : " If Walewski had 
 been born in Prance of English parents and had volun- 
 tarily returned to France, he would have been a Brit- 
 ish subject in England, but he would not have been 
 entitled to British privileges or protection in France 
 as against the country of his actual birth and domicile. 
 But Walewski was born in England and as such is a 
 natural born subject of her majesty." 
 
 In 1859 Lord John Kussell laid down the rule as 
 to naturalized subjects : " That they are not entitled 
 to British protection upon return to the country of 
 their birth." 
 
 "With Germany. In 1863 Lord John Russell gave 
 his opinion as to the status of native Germans natural- 
 ized in England : " that a foreigner who has become a 
 naturalized British subject cannot claim British pro- 
 tection against the operation of the law of his native 
 country, so as to exempt himself from any penalties 
 which the law of his native country may inflict upon 
 him when he returns to it." 
 
 With the Hanse Towns. Lord Palmerston laid 
 down the following instructions for those states : 
 
 " I have to authorize you to give way to the liability 
 of British subjects to serve in the civic guard for the 
 protection of the city in which they reside, but you 
 should strenuously resist any pretension to require 
 British born subjects, whether admitted or not to the 
 rights of citizenship, to serve in the contingent ; because 
 that contingent is not a force raised and embodied for 
 
IN THE UNITED STATES. 59 
 
 the maintenance of order within the city and state, but 
 is a portion of the army of Germany and is organized 
 for the purpose of foreign war. It thus might happen, 
 not only that British subjects might be brought, and 
 even against their will, into conflict with troops of a 
 state in amity or alliance with England, but that they 
 might actually be compelled to take the field against 
 the troops of their own country and sovereign." 
 
 The case of Bosdet presents an opinion of the law 
 where it is identical as it was in England. Bosdet was 
 born in England of parents natives of Hamburg, who 
 were domiciled in Hamburg at time the services were 
 demanded of his son. The foreign office decided as 
 follows : " The fact that Alfred Bosdet was born in 
 England, confers on him, according to the law of this 
 country the character of an English subject ; and there 
 arises or may arise in these cases a conflict of jurisdic- 
 tion. But as the law of England also considers the 
 son of a native subject, wherever he is born, as an 
 English citizen, the English government cannot fairly 
 complain of the law of Hamburg, which is in this re- 
 spect the same, nor can it interfere with the execution 
 of that law within the town of Hamburg. You may 
 accordingly present to the authorities of Hamburg, 
 that Alfred Bosdet has become an English subject, 
 and ask as a matter of comity that his name may be 
 therefore taken off the military list. This cannot be 
 insisted on as a matter of right." 
 
 With Guatemala. The same controversy arose as 
 with Buenos Ayres, and the English government was 
 unable to maintain its position until 1859 when it was 
 decreed that children of English subjects born in 
 
60 THE LAW OF CITIZENSHIP 
 
 Guatemala should follow the parentage of the parent 
 until the age of twenty-one and then optate to become 
 English subjects or remain Guatemalans. 
 
 With Italy. The leading case in Italy seems to 
 be the case of John Vertu, born in England of 
 Sardinian parents. The Italian government con- 
 tended that he was a citizen of Italy. Lord Pal- 
 merston expressed the following opinion : " I have 
 now to state that as a general principle, children 
 of alien friends born in the British dominions be- 
 come, de facto, subjects of Great Britain, al- 
 though not absolutely, and in all cases to the entire 
 cessation of all bonds, privileges and duties which 
 might attach to them, as children of the state to which 
 their parents might belong, particularly when they 
 themselves return to and abide in their parents' coun- 
 try, and claim to be, and act as subjects thereof. The 
 right to be considered as British subjects, if fully and 
 completely acquired, and not abandoned or forfeited, 
 may be lawfully extended to them in the foreign state 
 of which their parents were subjects ; and it is not 
 necessary in order to render his children British sub- 
 jects, that an alien friend transferring his domicile to 
 Great Britain, should previously have obtained his 
 legal liberation from his duties and obligations to the 
 state to which he had originally belonged." 
 
 The leading case with the Neapolitan government, 
 was the case of Benedict and John Steuart. The 
 father was an English born subject, and married a 
 Messinese ; the children were born in Naples, and the 
 question arose as to their citizenship. The position 
 , taken by the Neapolitan authorities was as follows : 
 
IN THE UNITED STATES. 61 
 
 u That the father having been born in England, was an 
 English subject, and unless his sons, on coming of age 
 declared their intention of being naturalized, and had 
 gone through the formalities prescribed by the Nea- 
 politan law for that purpose, they remained British 
 subjects." 
 
 With Norway. The leading case was that of 
 Walter Foreman. Foreman was a native born subject of 
 England, and had acquired a domicile in Norway. He 
 was conscripted for military service under the Norwe- 
 gian code, " foreigners who have acquired a domicile in 
 the country are rendered liable to military duty." He 
 was advised to try the case in the courts. In this, 
 however, he was dissuaded on the grounds of equity, 
 that in the absence of a convention with England, by 
 which he would be exempt, he could not claim exemp- 
 tion on the ground that Norwegians were not subject 
 to any such military service in England. 
 
 With Portugal. The government of Portugal 
 claimed as subjects the children of all subjects 
 whether of Portugal or aliens born within the king- 
 dom. This position was denied as being correct in its 
 application to children of British subjects born in 
 Portugal. As a result of the controversy, Lord Aber- 
 deen in 1843, expressed the following opinion : 
 "Although by the statute law of this country (England), 
 all children born out of the ligiance of the king, 
 whose parents or grandparents by the father's side 
 were natural born subjects, are themselves entitled to 
 enjoy British rights and privileges while within Brit- 
 ish territory, yet the effect of British statute law can- 
 not extend so far as to take away from the government 
 
62 THE LAW OF CITIZENSHIP 
 
 of the country, in which these persons may have been 
 born, the right to claim them as natural born subjects, 
 at least so long as they remain in that country." 
 
 " By the common law of England, all persons born 
 within the king's legiance, whether the children of 
 British subjects or of foreigners, are deemed to be sub- 
 jects of Great Britain. And if the law of any foreign 
 state, upon this point be the same as the English law^ 
 and if such foreign state places persons born within 
 its territory upon the same footing as its own subjects 
 or citizens, the government of that state has the right 
 to exact the service of a subject from such persons, 
 even if they may have been the children of foreigners, 
 at least while such children remain in the country of 
 their birth." 
 
 With Prussia. The leading case, is that of Cross- 
 thwaite, who was her majesty's consul, and a natural- 
 ized subject of Prussia. The question was, whether 
 his sons were liable to military duty. It is not stated 
 where the sons were born. The opinion was, " that 
 the sons of a naturalized Prussian subject owing al- 
 legiance to her majesty who are between the ages of 
 seventeen and twenty-five and are resident in Prussia 
 would be compellable to serve in the Prussian army." 
 
 With Spain. In 1841 the English government gave 
 notice to its consuls in Spain that it would not pro- 
 tect the children of English subjects born in Spain 
 as against the laws of that country. In 1856 children 
 of English subjects born in Spain made claims on the 
 English government for protection. 
 
 Lord Clarendon decided that their claims were inad- 
 missible as against the claim made on them by Spain. 
 
IN THE UNITED STATES. 63 
 
 The leading case is that of Joseph Argumiborn ; at 
 the term of his birth his father was domiciled in Spain, 
 but as an English subject. The English government 
 held that the son was not entitled to claim British 
 protection against any obligations arising from his 
 Spanish allegiance, although by an English statute he 
 would be entitled to the privileges of a natural born 
 English subject in Great Britain. 
 
 With the United States op America. The in- 
 flexible rule of the English law was broken by the 
 treaty with the United States in 1783. Prior to the 
 ratification of this treaty the colonists in America were 
 English subjects owing allegiance to the English king. 
 The common law and the statute law were in full 
 force in the colonies. By this treaty, the English 
 king acknowledged the United States to be free, 
 sovereign and independent states, that he treats with 
 them as such and for himself, his heirs and successors 
 relinquishes all claim to the government, proprietary 
 and territorial rights of the same and every part 
 thereof. 
 
 There remained for some years posts and places 
 within the territory of the United States occupied by 
 English troops and garrisons. In 1794 a further treaty 
 was entered into, by which these troops and garrisons 
 should be withdrawn and the right of option granted 
 to English traders and settlers, within the territory 
 of the United States to become citizens of the United 
 States or remain English subjects ; they should not be 
 compelled to become citizens of the United States but 
 could remain as English subjects ; they were obliged 
 to exercise the right of option within one year from the 
 
64 THE LAW OF CITIZENSHIP 
 
 evacuation by the troops and garrisons as stipulated in 
 the treaty. The declaration to become citizens of the 
 United States must be made to the government of 
 Great Britain, otherwise such traders and settlers were 
 to be considered as citizens of the United States. 
 
 Other than these no act was passed by the law- 
 making power of Great Britain, by which citizens of 
 the United States were to be treated as citizens and 
 entitled to protection as such, within the realm of the 
 English king. 
 
 WHAT WAS THE EFFECT OF THIS TREATY BY WHICH THE 
 EIGHT OF OPTION WAS GRANTED ? 
 
 The English subjects who did not exercise the right 
 of option within the year did not for reason of the terms 
 of the treaty become ipso facto citizens of the United 
 States. Further acts on the part of the subject were 
 essential. His failure to declare his intent to his 
 government to become a citizen of the United States 
 did not confer citizenship. He could do so only by 
 becoming naturalized in accordance with the act of 
 naturalization, of date January 29, 1795. 
 
 Until this act had been complied with there is no 
 question that any change in citizenship was per. 
 fected. 
 
 In case the change was made without the de- 
 claration of the intent to make the change to the 
 government of England, then a complete change of 
 citizenship was not effected for reason that it lacked 
 the essential element of consent express or implied of 
 the English king, by which allegiance was absolved. 
 
IN THE UNITED STATES. 65 
 
 TO WHOM DID THE TREATY OP 1783 APPLY? 
 
 The application of the exception made by England 
 was only to colonists then living, and traders and set- 
 tlers who optated to renounce their allegiance to the 
 English king, and become citizens of the United 
 States. Neither the common law of England nor the 
 statute law were altered. Both were retained and 
 recognized as the English rule pertaining to English 
 subjects, whether born within or without the realm of 
 England. English subjects who subsequently mi- 
 grated to the United States could not then throw off 
 their allegiance to the English sovereign. No law, 
 which was in force in the United States, by which 
 they could comply, could release them from their alle- 
 giance, and excuse them from service to their king, when 
 again within his realm. The exception to the English 
 law, as made by the treaties of 1783 and 1794 did not 
 have reference to English subjects who were not col- 
 onists and as such were recognized as citizens of the 
 United States, nor to the traders and settlers who re- 
 mained within the territory of the United States, and 
 were given the right of option at the time of the with- 
 drawal of the troops and garrisons as stipulated in the 
 treaty. 
 
 THE EFFECT OF THIS RULE AS TO THE UNITED STATES. 
 
 The English rule remained unchanged; the right 
 of an English subject to renounce his allegiance was 
 denied ; the rule extended to and included the third 
 generation, each of which were English subjects, by 
 the English law. 
 
 Suppose that an English subject migrated to the 
 9 
 
66 THE LAW OF CITIZENSHIP 
 
 United States and there became a citizen according to 
 the positive law of the states, what would be his rela- 
 tion to the English sovereign ? It would remain un- 
 changed under the English rule, and the English 
 sovereign could demand the services of such a subject 
 who had become a citizen of the United States, if 
 found within the realm of Great Britain. 
 
 It is true that one of the causes which led to the 
 war of 1812 between England and the United States 
 was the impressment of English subjects, who had be- 
 come citizens of the United States, into the service of 
 the English king. 
 
 The war ended, and the question remained un- 
 settled. The treaty failed to recognize the right of 
 English subjects to throw off their allegiance and be- 
 come citizens of the United States. 
 
 It may be argued that this right was tacitly implied, 
 for reason that no occasion arose to agitate the question 
 again. Such an argument could not prevail against posi- 
 tive laws legally promulgated in either the courts of the 
 United States or Great Britain. Had the right been 
 recognized it would have been declared by both coun- 
 tries. As no recognition was given to it, it follows 
 that the law remained unchanged. It was not until 
 the year 1870, when the question was taken up, dis- 
 cussed and formally settled. At that time the presi- 
 dent of the United States and the queen of the 
 United Kingdom of Great Britain and Ireland, being 
 desirous to regulate the citizenship of citizens of the 
 United States of America who have emigrated, who 
 may migrate, from the United States of America to the 
 British dominions ; and of British subjects who have 
 
IN THE UNITED STATES. 67 
 
 emigrated or who may emigrate from the British 
 dominions to the United States of America, have 
 resolved to conclude a convention for that purpose ; 
 it was concluded as follows : 
 
 The President of the United States of America, and 
 her majesty, the Queen of the United Kingdom of 
 Great Britain and Ireland, being desirous to regulate 
 the citizenship of citizens of the United States of 
 America, who have emigrated or who may emigrate 
 from the United States of America to the British 
 dominions, and of the British subjects who have 
 emigrated or who may emigate from the British 
 dominions to the United States of America, have 
 resolved to conclude a convention for that purpose, 
 and have named as their plenipotentiaries, that is to 
 say : The president of the United States of America, 
 John Lothrop Motley, esquire, envoy extraordinary 
 and minister plenipotentiary of the United States of 
 America to her Britannic majesty; and her majesty, 
 the Queen of the United Kingdom of Great Britain 
 and Ireland, the Right Honorable George William 
 Frederick, earl of Clarendon, Baron Hyde of Hindon, 
 a peer of the United Kingdom, a member of her Brit- 
 annic majesty's most honorable privy council, knight 
 of the most noble order of the garter, knight grand 
 cross of the most honorable order of the bath ; her 
 Britannic majesty's principal secretary of state for 
 foreign affairs; who, after having communicated to 
 each other their respective full powers, found to be 
 in good and due form, have agreed upon and con- 
 cluded the following articles : 
 
68 THE LAW OF CITIZENSHIP 
 
 Article I. 
 
 Citizens of the United States of America, who have 
 become, or shall become, and are naturalized accord- 
 ing to law within the British dominions as British 
 subjects, shall, subject to the provisions of article II, 
 be held by the United States to be in all respects and 
 for all purposes British subjects ; and shall be treated 
 as such by the United States. 
 
 Reciprocally, British subjects who have become, or 
 shall become, and are naturalized according to law 
 within the United States of America, as citizens 
 thereof, shall, subject to the provisions of article II, 
 be held by Great Britain to be in all respects and for 
 all purposes, citizens of the United States, and shall 
 be treated as such by Great Britain. 
 
 Akticle II. 
 
 Such citizens of the United States, as aforesaid, who 
 have become, and are naturalized within the dominion 
 of her Britannic majesty as British subjects, shall be 
 at liberty to renounce their naturalization, and to 
 resume their nationality as citizens of the United 
 States, provided, that such renunciation be publicly 
 declared within two years after the exchange of the 
 ratification of the present convention. 
 
 Such British subjects, as aforesaid, who have be- 
 come and are naturalized as citizens within the United 
 States, shall be at liberty to renounce their natural- 
 ization and to resume their British nationality, pro- 
 vided, that such renunciation be publicly declared 
 within two years after the 12th day of May, 1870. 
 
 The manner in which this renunciation may be 
 
IN THE UNITED STATES. 69 
 
 made and publicly declared, shall be agreed upon by 
 the governments of the respective countries. 
 
 Article III. 
 
 If any such citizen of the United States, as afore- 
 said, naturalized within the dominions of her Britannic 
 majesty, should renew his residence in the United 
 States, the United States government may, on his own 
 application and on such conditions as that government 
 may think fit to impose, readmit him to the character 
 and privileges of a citizen of the United States ; and 
 Great Britain shall not, in that case, claim him as a 
 British subject, on account of his former naturalization. 
 
 In the same manner, if any British subject as afore- 
 said, naturalized in the United States, should renew 
 his residence within the dominions of her Britannic 
 majesty, her majesty's government may, on his own 
 application and on such conditions as that government 
 may think fit to impose, readmit him to the character 
 and privileges of a British subject, and the United 
 States shall not, in that case, claim him as a citizen of 
 the United States on account of his former naturaliza- 
 tion. 
 
 THE EFFECT OF THE ACT AND TREATY OP 1870 IN THE 
 UNITED STATES. 
 
 The retroactive effect which it was intended the 
 act should have, is conclusive that the rigidity of the 
 English rule of the common law and of the statutes of 
 Anne and the Greorges had not been relaxed to that 
 date. 
 
 The relation of British subjects who had migrated 
 
70 THE LAW OF CITIZENSHIP 
 
 to the United States, and there become citizens, had 
 remained unchanged under the English law. 
 
 By the law of the United States they were regarded 
 as citizens of the United States ; they had abjured al- 
 legiance to the English sovereign without right. 
 
 Could such citizens enjoy full rights and privileges 
 in the United States and equal protection abroad with 
 other citizens ? They could not. There their relation 
 to the English sovereign had not been changed ; they 
 owed allegiance, if within three generations of English 
 descent, which was immutable. They were not in the 
 enjoyment of fall citizenship. They were not citizens 
 at home and abroad as citizens should be with full re- 
 cognition as such. 
 
 Assume that the son of an English subject, whose 
 father had become a citizen by naturalization, in the 
 United States, had gone to England prior to 1870; 
 what would have been his legal status under the 
 English rule ? It is perfectly clear. No doubt, to 
 have impressed him into the sovereign's service, would 
 have caused the rise of unfriendly feelings between 
 the two countries, yet this might not have changed 
 the law, any more than it did in 1812, at which time 
 the question was vividly discussed in both countries. 
 
 By the act of 1870, the acts of British subjects who 
 have abjured the realm, under the naturalization laws 
 of the United States, have been legitimatized, and by 
 it they have been admitted and recognized to enjoy 
 full membership both at home and abroad ; which 
 rights they did not enjoy prior to 1870. 
 
 The rule which governed prior to the passage of 
 this act is found in Warren's case, 12 Op. Atty.-Genls.: 
 
IN THE UNITED STATES. 71 
 
 " It is well established English law that a native born 
 subject of Great Britain is not capable of throwing off 
 his allegiance." 
 
 Lord Grenville, in his despatch to Secretary King, 
 March 27, 1797, declares, "No British subject can by 
 such form of renunciation as that which is prescribed 
 in the American law of naturalization divest himself 
 of his allegiance to his sovereign. Such a declaration 
 of renunciation by any of the king's subjects, would, 
 instead of operating as a protection to them, be con- 
 sidered an act highly criminal on their part." 
 
 In Fitch v. Webber, 6 Hare, 51, the rule is as fol- 
 lows : " Abjuration by a British subject of his allegi- 
 ance to the crown and his promise of obedience to a 
 foreign state, although it might make him liable for 
 high treason, does not divest him of the character of a 
 British subject, and does not disqualify the children 
 or grandchildren of such British subjects of being 
 British subjects." 
 
 DID THE UNITED STATES ADOPT THE ENGLISH RULE OF 
 CITIZENSHIP BY BIRTH ? 
 
 In the declaration of independence it is clearly set 
 forth : " That all men are created equal ; that they 
 are endowed by their Creator with certain inalienable 
 rights ; that among these are life, liberty and the pur- 
 suit of happiness ; that to secure these rights, govern- 
 ments are instituted among men, deriving their just 
 powers from the consent of the governed." 
 
 Substantially the same phraseology is found in the 
 declaration of rights and bills of rights of the various 
 states which compose the United States. 
 
72 THE LAW OF CITIZENSHIP 
 
 There can be no mistake in the spirit of these dec- 
 larations. 
 
 The declaration of independence contains a series of 
 grievances for which redress had been sought from the 
 English king and which had not been obtained. 
 
 The primary purpose was to combat the source of 
 law and government, under which they had lived, and 
 is explained by the words : " Governments are in- 
 stituted among men, deriving their just powers from the 
 consent of the governed." 
 
 They had lived under the rule that the king could 
 do no wrong, and was the source from which emanated 
 all law and justice, flowing in pure streams to all the re- 
 lations of life into which man enters. 
 
 It was under this rule, by which the laws of Eng- 
 land were interpreted. With such an interpretation, 
 no redress could be given to the wrongs complained of 
 by the colonists Whatever law was enacted was 
 enacted for their good and was promulgated by a 
 sovereign who could do no wrong. 
 
 The sovereign had done no wrong to the colonists 
 in America ; there was nothing to be redressed ; their 
 petitioners were refused a hearing ; their petitions were 
 not heeded. 
 
 The English principles were structural in their form 
 of government. As Sir Vernon Harcourt expresses 
 it : " The rule of determining nationality in England 
 was purely of feudal origin." They made up the 
 expressed form of government as it confronted 
 the outside world. They were the bulwarks of what 
 was declared by the English sovereign to be, the 
 rights and privileges of his subjects. They were in 
 
IN THE UNITED STATES. 73 
 
 no sense conventional in their nature, as between sub- 
 ject and sovereign. There was no provision of law by 
 which the English subject could convene with his 
 king. Suffrage was not free. A subject did not en- 
 joy the right to represent and be represented suo 
 nomine. Contrast this relation with the conventional 
 form of government as declared in the United States, 
 in which every member entitled to full rights of citi- 
 zenship partakes ; in which every such a member is an 
 acting ingredient, and partakes of the whole, and the 
 difference is manifest. 
 
 In support of the adoption by the citizens of the 
 United States of the feudal principles, two arguments 
 have been adduced, both in direct antagonism to the 
 declaration of independence and the constitution. 
 
 The first is formed in the theory that the govern- 
 ment, as agreed by the colonists for the United States, 
 was a substitute for the English sovereign. Conse- 
 quently, intentional or accidental birth on an inanimate 
 piece of ground in the United States created an im- 
 mutable relation through it, to the government, to 
 which was owed an indelible allegiance. This argu- 
 ment proceeds on the same fiction from which the 
 English system is reasoned. 
 
 Was this the intent and purpose of the compact en- 
 tered into by the American colonists in the creation 
 of their government? By no means. It was a gov- 
 ernment created by men who were equal ; who pos- 
 sessed certain inalienable rights ; and in the enjoyment 
 of these rights they organized a government of them- 
 selves, by themselves and from themselves. Each and 
 every member of the society had the right and 
 10 
 
74 THE LAW OF CITIZENSHIP 
 
 privilege of participating in the legislative branch of 
 the government, and was subject, with aliens, to the 
 executive and judiciary. The reverse was the rule in 
 England. 
 
 The second argument is found in opinions of judicial 
 tribunals when invited to consider the question 
 whether or not the theory of immutable allegiance, as 
 known to the English law, was adopted by the United 
 States. 
 
 The decisions announced in Inglis vs. The Trustees 
 of the Sailors' Snug Harbor ; and Shanks vs. Dupont, 
 in 3 Peters' Reports, are summed up by Chancellor 
 Kent, with his own opinion, as follows : " From this 
 historical review of the principal decisions in the 
 Federal courts, on this interesting subject of American 
 jurisprudence, the better opinion would seem to be, 
 that a citizen cannot renounce his allegiance to the 
 United States without the permission of government 
 to be declared by law ; and that, as there is no exist- 
 ing regulation in the case, the rule of the English 
 common law remains unaltered." 2 Kent, 49 ; other 
 authorities : 3 Story on the Constitution, 3 ; Law- 
 rence's Wheaton, 995 (Ed. 1863). 
 
 It would seem that we should accept this as the 
 result of the leading judicial opinions in the courts. 
 It was in direct conflict with the opinions of the other 
 departments of the government and the naturalization 
 laws of the United States. 2 Kent, 49, note. 
 
 The fallacy of the opinions of the courts lies in a 
 mistaken source of government, omitting entirely the 
 fact that certain inalienable rights are in man, which 
 he did not surrender by the compact which he made 
 
IN THE UNITED STATES. 75 
 
 with his fellow man, when he organized the society of 
 the United States. 
 
 The opinions fall in with the line of argument 
 adduced to support the fiction that the United States 
 was a substitute for the British sovereign. 
 
 The opinions rest on the necessity of a positive 
 regulation of law by which allegiance could be 
 absolved. 
 
 May it not be inquired why was not a positive 
 regulation of law as much requisite for the adoption 
 of the principles of jus soli and allegiance, as, accord- 
 ing to Chancellor Kent, it was requisite, in order that 
 a citizen of the United States might throw off his 
 allegiance ? There is no positive regulation in the 
 original compact, constitution or statutes, adopting 
 these principles as known to the English law. " The 
 English common law is not to be taken in all respects 
 to be that of America. Our ancestors brought with 
 them and claimed as their birth right, its general 
 principles and adopted that portion of it only which 
 was applicable to their situation." 
 
 Dictum in 8 Peters' Reports, 658 : " It is clear 
 there can be no common law of the United States. 
 When, therefore, a common law right is asserted, we 
 must look to the state in which the controversy 
 originated." 
 
 Dictum, 1 Blackford, 205 : "The common law of 
 England is not in the United States, as a federal 
 government." 
 
 There is no rule of law in the United States, by 
 which it is laid down that the form, structure and 
 organization of the government of the United States 
 
76 THE LAW OF CITIZENSHIP 
 
 is to be interpreted by the principles of the common 
 law of England. That portion of the common law 
 which related to the form of government of England 
 was expressly set at defiance in the declaration of 
 independence. 
 
 The principles of the government were founded in 
 pure reason which was the immutable, eternal and 
 universal law of mankind. On this same rule are 
 founded the principles of international law which 
 govern the intercourse between independent societies 
 and involved in the question of intercourse is that of 
 expatriation. " Our knowledge of international law is 
 not taken from the municipal code of England, but 
 from actual reason and justice, and from writers of 
 known wisdom, and they are all opposed to the doc- 
 trine of perpetual allegiance." 9 Op. Atty-Genl. 356. 
 
 No better exponent of this famous document (the 
 declaration of independence) can be found than the 
 man himself who agitated the question of separation 
 and drafted the declaration. None could know better 
 than did he, the spirit and intent of the convention by 
 which it was adopted. Mr. Thomas Jefferson, in dis- 
 cussing, among other things, the question of allegiance, 
 while admitting the term, impliedly states : " That our 
 citizens are certainly free to divest themselves of that 
 character, by emigration and other acts manifesting 
 their intention and may then become the subjects of 
 another power and be free to do whatever the sub- 
 jects of that power do." 
 
 Certainly this should be sufficient to counteract any 
 force of judicial tribunals, when arguing from false 
 premises. 
 
IN THE UNITED STATES. 77 
 
 Herein is concisely combatted the theory that a 
 specific regulation of law was essential to a change of 
 citizenship. 
 
 In article 7 of the constitution, by which a uniform 
 law of naturalization is declared essential, in lieu of 
 the laws of the different states then existing, is evi- 
 dence positive of right to acquire citizenship in the 
 United States and implied evidence, that the same 
 privilege exists to dissolve it, on the principle de- 
 clared, that all men are created equal, and in recogni- 
 tion of the natural rights of man. 
 
 It would be difficult to reason from the American 
 standpoint of affairs, at the time of the adoption of the 
 constitution of the United States, and prior to that 
 date during the agitation of the question of separation, 
 how any other conclusion can be reached. When 
 argued from the English standpoint, as was done by 
 Lord Grrenville in 1797, the conclusion is as follows : 
 "No British subject can, by such form of renunciation 
 as that which is prescribed in the American law of 
 naturalization, divest himself of his allegiance to his 
 sovereign. Such a declaration of renunciation made 
 by any of the king's subjects, would, instead of operat- 
 ing as a protection to them, be considered an act en- 
 tirely criminal on their part." Lord Grrenville was, at 
 this time, commenting on a relation with the United 
 States ; the same rule would be applicable to other 
 countries. 
 
 Substitute, however, in place of British subject, 
 American citizen, and in place of his reference to the 
 United States the same reference to all countries, and 
 the opinion of some of the tribunals of the United 
 
78 THE LAW OF CITIZENSHIP 
 
 States are substantially in confirmation of Lord Gren- 
 ville's dictum. 
 
 Chief Justice Marshall, in Murray vs. Schooner 
 Charming Betsy, 2 Cranch, decided as follows : " The 
 American citizen who goes into a foreign country, al- 
 though he owes but a temporary and local allegiance 
 to that country, is yet, if he performs no other act 
 changing his condition, entitled to the protection of 
 his own government ; but his situation is completely 
 changed when by his own act he has made himself 
 subject to a foreign power." 
 
 Thus it appears that the authorities were in conflict 
 not alone in the highest tribunal of the land, but also 
 in the lower state courts, which a review of their de- 
 cisions would show. 
 
 This rule was laid down at an early date in the state 
 of Massachusetts, as follows : " This claim of the com- 
 monwealth to the allegiance of all persons born within 
 its territory may subject some persons, who, adhering 
 to their former sovereign, and residing within his do- 
 minions, are recognized by him as his subjects, to great 
 inconvenience, especially in time of war, when the op- 
 posing sovereigns claim their allegiance. But the incon- 
 venience cannot alter the law of the land. Their situa- 
 tion is not different in law, whatever may be their equi- 
 table claims, from the situation of these citizens of the 
 commonwealth who may be naturalized in the domin- 
 ion of a foreign prince. The duties of these persons 
 arising from their allegiance to the country of their birth, 
 remain unchanged and unimpaired by their foreign 
 naturalization. For by the common law no subject can 
 expatriate himself." Ainslie vs. Martin, 6 Mass. Kpts. 
 
IN THE UNITED STATES. 79 
 
 The contrary was submitted at the same time in 
 Virginia. " It is believed that the right of emigration 
 or expatriation is one of those inherent rights, of which, 
 when men enter into a state of society, they cannot by 
 any campact deprive or divest their posterity. But 
 although municipal laws cannot take away or destroy 
 this right they may regulate the manner and prescribe 
 the evidence of its exercise, and in the absence of the 
 regulations juris positivi, the right must be exercised 
 according to the principles of law." Murray vs. Mc- 
 Carthy, 2 Mumford's Repts. 
 
 By what processes of reasoning these two opinions 
 so diametrically opposed were reached is to be ex- 
 plained by this : that in the first, the common law was 
 believed to be the guide to the declaration of inde- 
 pendence and the constitution of the United States, 
 while in the second the reason is from the principles 
 as laid down by the founders of the government and 
 based on the natural laws of man. 
 
 In the first, it is denied that the government of the 
 United States is conventional as between man and man. 
 In the second, it is admitted that the government has 
 no other existence than in compact entered into, by 
 and between those who organized it. Yet with this 
 diversity of opinion, it was still, in 1836, an open 
 question with our judiciary. Under the rules then pre- 
 vailing the right to depart was both acknowledged 
 and denied. The first recognized the English common 
 law as the guide to the American form of government, 
 while the second recognized the government to be 
 founded on the natural law of man. The latter is the 
 only and correct view. It is based on the compact in 
 
80 THE LAW OF CITIZENSHIP 
 
 which the government had its origin. The application 
 of the principles of the English common law was 
 fallacious. 
 
 WERE THE PRINCIPLES OF JUS SOLI AND ALLEGIANCE 
 ADOPTED IN THE UNITED STATES PRIOR TO 1836 OTHER 
 THAN IN NAME ? 
 
 It is proper, first, to inquire if adopted to whom 
 were they applicable ? The founders of the govern- 
 ment became citizens by recognition under the treaties 
 of 1783 and 1794. At this time citizenship in the 
 United States was not acquired in any other manner. 
 Those born in the colonies were English subjects by 
 birth. The fact of birth in the colonies did not in any- 
 wise affect their right to recognition and to option under 
 the treaties of 1 783 and 1794. Those who were born in 
 England proper stood equal with those born in the 
 colonies. It was no advantage nor was it a disad- 
 vantage to have been born within or without the 
 United States so far as the effect of the treaties was 
 concerned. All who wished to become citizens exer- 
 cised the right of choice or option and became citizens 
 of the United States, or remained English subjects as 
 they wished. 
 
 To these who optated to become citizens were born 
 children ; these children were born within and with- 
 out the limits of the United States. First. As to 
 those who were born within the United States. 
 
 There was no positive regulation, by which it was 
 specifically declared in what manner or for what reason 
 they acquired citizenship. There was no positive reg- 
 ulation by which the principles of the declaration of 
 independence and the constitution should be inter- 
 
IN THE UNITED STATES. 81 
 
 preted, other than by the spirit which these compacts 
 carried within themselves. 
 
 There was no positive regulation that these com- 
 pacts should be interpreted by the rule of the English 
 common law. Only as much of this law was adopted 
 as was applicable to the situation of the founders of 
 the government, in their civic relations and principles 
 which governed crimes. These compacts carry within 
 themselves a sufficient refutation of the common law 
 rules, so far as they pertain to the structure and form 
 of government in England. Among these primarily 
 were the principles of jus soli and allegiance. 
 
 Neither jus soli nor allegiance are mentioned in 
 name in these original compacts so as to convey at all 
 the idea and meaning which was given to them in 
 England. They are taken up in name by the different 
 departments of government — by the publicists and by 
 the judicial tribunals. 
 
 In the foregoing they were in dispute as to their ac- 
 ceptation and the reasons are given. The conclusion 
 reached was, that they were not adopted ; they were 
 incompatible with the structure of government, as 
 agreed to by the colonists. 
 
 The argument must proceed upon the theory which 
 was and became the practice, that those who joined 
 the compact, might on general principles and by the 
 laws of nature, dissolve connection with it. The right 
 was implied if not expressed. Nor was it expressed, 
 in the compact of government, by what means or in 
 what manner the children of those who were citizens 
 should become citizens. 
 
 If the structural principles of the English govern- 
 11 
 
82 THE LAW OF CITIZENSHIP 
 
 ment were not adopted ; if no positive regulation pre- 
 vailed in the United States by which the children of 
 citizens of the United States became citizens, it is per- 
 tinent to inquire, how was a citizenship acquired by 
 them ? 
 
 According to the theory of Chancellor Kent a posi- 
 tive regulation was required by which citizenship in 
 the United States could be acquired. No doubt, by 
 this line of reasoning, a positive regulation would be 
 requisite, in the acquisition of citizenship by children 
 of citizens of the United States born within the limits 
 of the United States. Disregarding the structural 
 principles of the government of the United States and 
 the inherent rights of man, he formed a rule among 
 the structural principles of the English government as 
 declared in the feudal relations through the jus soli 
 and allegiance. 
 
 According to the opposing theory, which denies the 
 structural principles of the English government and 
 acknowledges none but those of the United States, 
 on matters pertaining to the form of government, the 
 rule must be implied in want of a positive rule ex- 
 pressed. 
 
 It has been already adverted to, that the parties to 
 the original compact, by which the government of the 
 United States was formed, were citizens not by birth 
 under the principles either of jus soli or allegiance 
 but by choice and by the treaties. This was the ex- 
 ercise of a right, primary in men, which had already 
 been exercised in 1776 by the colonists prior to the 
 recognition of the right, in another form, by the treaty 
 of 1783. Under either act, the one of 1776, 1783 or 
 
IN THE UNITED STATES. 83 
 
 1795 the effect was the same and was the result of 
 the exercise of a right natural in man. 
 
 It has already been mentioned that no positive regu- 
 lation prevailed, by which children of citizens of the 
 United States born in the United States became citi- 
 zens ; that the structural principles of the English 
 government were not adopted in the United States, 
 either by express words or by implication ; that the 
 natural rights of man are recognized in the compact 
 of government as agreed upon for the United States 
 and disavowed by the feudal principles, on which is 
 constructed the English government. 
 
 Correlative to the rights inherent in man are the 
 duties of man. Primary among these duties growing 
 out of the relation of parent to child, is the one of sup- 
 port which custom and law throughout the civilized 
 world has enjoined on the parent. 
 
 Correlative with the duty of the parent to support 
 the child is the claim of the child on the parent for 
 support. 
 
 These have been positive rules of society. They 
 are the rules of nature transposed into laws for the 
 regulation of these relations in society. These laws 
 were natural to the founders of the government of the 
 United States. They brought them in positive form 
 from England and nourished them as colonists. They 
 were portions of the common law of England as well 
 as of the natural law of man, and were adopted for 
 the society of the United States. 
 
 According to the law of nature, no place is cir- 
 cumscribed within which the parent shall support the 
 child. Wherever the parent goes the child follows. 
 
84 THE LAW OF CITIZENSHIP 
 
 Nor is the place circumscribed by the declaration of 
 independence or the constitution of the United States. 
 Nor is it by the law of any civilized community. The 
 right of locomotion is not restrained by civilized 
 governments. 
 
 Out of this relation of parent to child and child to 
 parent, grow love and affection, aside from duty of 
 support which devolves on the parent toward the 
 child. By the positive law of all societies, a certain 
 age is fixed and determined at which membership is 
 permissible and at which the exercise of full rights 
 of citizenship is allowed. 
 
 While the child is under this prescribed age, which 
 varies in different societies, he is of the same citizenship 
 as is the father, by virtue of the father's citizenship. 
 
 The relation between parent and child is complex ; 
 their rights, the one to the other, are inseparable ; 
 they are so considered by the positive law and by 
 custom. Their inseparable nature renders the rule 
 necessary, that the child follows the citizenship of the 
 parent, until he reaches the age at which he may elect 
 to remain of the same citizenship as the parent or 
 abandon the parent's citizenship. This is the rule 
 which naturally and of necessity governed in the 
 United States prior to 1836, and by which those chil- 
 dren of citizens of the United States became citizens. 
 
 When they arrived at the age prescribed, at which 
 they could enjoy full citizenship, they acquired full 
 citizenship, by taking part in the right of being repre- 
 sented and of representation in the legislative branch 
 of government, expressly or impliedly. 
 
 In the United States, this privilege of election is 
 
IN THE UNITED STATES. 85 
 
 more marked than in most other countries. When the 
 child iails to elect, the presumption is immediately 
 raised, that he has so done, in want of expression by 
 him to the contrary, by seeking citizenship in some 
 other country. It cannot be denied, however, in this 
 connection that the term " native born " was and is in 
 use ; its application was not and is not with the same 
 reason therefore, as is found in the English common 
 law. Its use was and is, purely in imitation as a term, 
 of the same term, in the English law. Strictly inter- 
 preted its meaning was and is, partus sequuntur patrem, 
 i. e., the child follows the citizenship of the parent. 
 
 The rule was well laid down by Vattel, sections 216- 
 220 : " By the law of nature alone children follow the 
 condition of their fathers and enter into all their 
 rights. The place of birth produces no change in this 
 particular ; for it is not naturally the place of birth 
 that gives rights but extraction." 
 
 Secondly, as to those children born of citizens of the 
 United States, without the limits of the United States. 
 
 There was no prohibition on citizens of the United 
 States sojourning in foreign countries. If while abroad 
 children were born to them, such children followed 
 the citizenship of the parent. This rule is the pri- 
 mary, positive regulation on this branch of this subject. 
 
 By the act 1802, " 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 citizen, 
 ship shall not descend to children whose fathers never 
 resided in the United States." 
 
86 THE LAW OF CITIZENSHIP 
 
 This rule is similar to the English rule of 7 Anne, 
 chapter 5, section 3. The success in the enforcement 
 of this rule by England has already been referred to, 
 and from that practice the conclusion would be that 
 English children born abroad of English subjects may 
 have the rights of Englishmen when within Great 
 Britain, but when abroad in the country of their birth 
 they failed to receive that protection, which an Eng- 
 lish subject born of English parents in Great Britain 
 would receive. 
 
 It is reasonable to infer that the practice of the 
 United States under this same rule was not any more 
 successful. 
 
 For example, what would be the citizenship under 
 the English rule, of a child of citizens of the United 
 States born in England ? While that child would be 
 held as an English subject in England under the 
 English law, in the United States, he would be held 
 to be a citizen of the United States. Thus, in both 
 countries he would be subject to duties as a citizen of 
 each, when, respectively, in the one or the other. 
 The rule, as applied in the United States under the 
 act of 1802, was structural as to the form of govern- 
 ment in the United States. It was expressive of the 
 governing principles as to citizenship that the child 
 followed the citizenship of the parent. To declare 
 that the child born in the United States, of citizens of 
 the United States, was other than a citizen by 
 descent, and became a citizen because of the citizen- 
 ship of the parent, would be to contradict the rule 
 which was laid down for children of citizens of the 
 United States born in foreign countries. 
 
IN THE UNITED STATES. 87 
 
 To follow the English common law rule would be to 
 contradict the act of 1802, in spirit and intent. The 
 English common law rule was not adopted. 
 
 Keverse the rule, and what was the citizenship of 
 the children of aliens born in the United States? 
 There is no positive rule, by which, at this time, they 
 were declared to be citizens of the United States. 
 "While it could properly be held that they owed 
 a temporary and local allegiance to the government of 
 the United States, as it was held that their parents 
 did owe it, in Carlisle vs. United States, 16 Wallace, 
 148 ; yet upon return to the country of their parents, 
 in which either the rule as found, 7 Anne, chapter 5, 
 section 3; or the rule that children followed the 
 citizenship of the parent until majority prevailed, they 
 would in either case be held to be citizens of the 
 country of their parents' citizenship. 
 
 The principle would fall short of the definition of 
 citizenship. One cannot enjoy the citizenship of one 
 country when in that country, and the citizenship of 
 another country when in that country. 
 
 The rule, as laid down by the act of 1802, did not 
 carry with it the principle of allegiance as did the 
 rule in 7 Anne, chapter 5, section 3. This principle 
 carried within it a perpetual personal relation to the 
 English sovereign, which by analogy could not have 
 been intended in the relation of a citizen of the 
 United States to his government. Were it so consid- 
 ered, it would argue in favor of the theory that the 
 government of the United States was a substitute for 
 the English sovereign. There was no such relation 
 purposed, nor is any thing contained in the principles of 
 
88 THE LAW OF CITIZENSHIP 
 
 the government of the United States that such a sub- 
 stitution should be made. If by simple phraseology 
 the term " allegiance " is used in the jurisprudence of 
 the United States, it is not with the import as used in 
 the jurisprudence of Great Britain. For in England 
 this allegiance was indissoluble and perpetual, which 
 rule had not maintained in the United States. 
 
 Alexander McLeod defined the position of the 
 United States on allegiance in 1815 to be : "There is 
 no obligation from the social compact upon man to 
 continue in allegiance to the government under which 
 he was born." Again, Mr. Caleb Cushing in 8 Op. Atty- 
 Genls. 139: "The doctrine of absolute and perpet- 
 ual allegiance is inadmissible in the United States. 
 It was a matter involved in and settled by us by 
 the revolution, which founded the American union." 
 
 WHO WERE CITIZENS OF THE UNITED STATES IN 1836 ? 
 
 The citizens of the United States, at this period, 
 were the children of such former English subjects 
 as had optated to become citizens, and such foreigners 
 as had become legally naturalized. This latter class 
 will be considered when the questions of expatriation 
 and naturalization are discussed. It is the purpose at 
 the present time to discuss only the former class, those 
 who had become citizens under the rule, partus 
 sequuntur patrem. 
 
 The first generation descended from the founders of 
 the government and born in the United States were 
 now in full age, enjoying full rights and privileges of 
 citizenship, as the children of parents who were citizens 
 by choice under the treaty of 1783. The second 
 
IN THE UNITED STATES. 89 
 
 generation were born, and by virtue of birth of citizens 
 of the United States, were following the citizenship 
 of their parents under the rule of extraction. 
 
 When the first generation became of age each per- 
 son so descended of a citizen of the United States, ex- 
 pressly or impliedly, himself became a citizen of the 
 United States, or emigrated and became a citizen else- 
 where. 
 
 The terms " expressly " or " impliedly " are here 
 used as demonstrative of the peculiarity which attends 
 a government founded on compact as was the govern- 
 ment of the United States. The alternative is open 
 to the child of a citizen of the United States. He 
 either remains or departs ; he may remain and depart 
 later in life. This is always a matter of choice with 
 him. Here we have to do with him upon reaching his 
 majority and the same rule applies, regardless of the 
 manner in which the parent became a citizen, provided 
 he acquired his citizenship legally under the statutes of 
 the United States. 
 
 Upon reaching majority, if the child desires to ex- 
 ercise full rights of citizenship, he proceeds to partake 
 of the representation privileges, which is done pursuant 
 to prescribed regulations pertaining to suffrage. 
 
 Hereby, he becomes, by subscribing to the principles 
 of government, expressly, as proclaimed by its founders, 
 a contracting party to the original compact, by which 
 the government was organized. It is in this manner 
 that the contract is constantly in process of renewal as 
 between the citizens of the United States. 
 
 If it does'not partake of the representation privileges, 
 by seeking the rights of suffrage in the absence of with- 
 12 
 
90 THE LAW OF CITIZENSHIP 
 
 drawal, he subscribes impliedly to the principles of 
 government and becomes a contracting party, equally 
 as well as if he did so expressly pursuant to the same 
 principle. 
 
 As before stated, the first generation was at this 
 time, in the enjoyment of the rights and privileges of 
 citizens, as declared in the principles of government 
 set forth in the original compact on which the gov- 
 ernment was founded. It had renewed and re-affirmed 
 the principles of the government and by expressed or 
 implied acts demonstrated the necessity of a recogni- 
 tion of the natural rights of man and that government 
 was in man, of man and by man. 
 
 The rule is laid down in Shanks vs. Dupont, 3 
 Peters, 242 : " Children born in a country, continuing 
 while under age in family of father partake of his 
 character as a citizen of that country." The govern- 
 ing principle is that the government is founded on con- 
 tract. During minority a child of a citizen of the 
 United States wheresoever born cannot become a con- 
 tracting party. He can do this only when he reaches 
 majority. He than elects by implication or expressly 
 to become a citizen of the United States by joining 
 with citizens of the United States in the exercise of 
 rights of citizenship. This he does by virtue of his 
 father's rights as a citizen. Or he may depart and 
 seek allegiance in another state. Upon reaching ma- 
 jority, he does or does not renew the original contract 
 of government as made by the founders of the gov- 
 ernment. He does or does not become a party 
 thereto. 
 
IN THE UNITED STATES. 91 
 
 THE RIGHT OF OPTION FURTHER RECOGNIZED BY THE 
 
 UNITED STATES. 
 
 By the treaty of 1803 with France, by which the 
 colony of Louisiana was ceded to the United States, 
 it was distinctly understood that the right of option 
 prevailed, to depart or remain as French citizens or to 
 choose to become citizens of the United States. 
 
 The same rule was recognized in 1819 in the treaty 
 with Spain, by which East and West Florida were 
 ceded to the United States. 
 
 By these cessions these foreign powers surrendered 
 their claims to territory which now forms a great part 
 of. the United States. A Christian duty devolved on 
 these countries not to leave their subjects defenseless, 
 and the following was contained in each treaty : 
 
 " The inhabitants of the territories ceded shall be 
 incorporated in the union of the United States as soon 
 as may be consistent with the principles of the federal 
 constitution, and admitted to the enjoyment of all the 
 privileges, rights and immunities of citizens of the 
 United States." 
 
 DID CITIZENSHIP BY DESCENT AND NOT BY BIRTH UNDER 
 THE ENGLISH RULE, CONTINUE TO BE THE RULE IN THE 
 UNITED STATES TO 1868 ? 
 
 During the period from 1836 to 1861 the question 
 was less discussed than it had been prior to that date. 
 
 The supreme court of the United States refrained 
 from expressing and defining its position on the sub- 
 ject. The courts of several states expressed opinions. 
 
 The court of appeals of Kentucky in 1839 upheld 
 the implied right, as existing in the parties contracting, 
 
92 THE LAW OF CITIZENSHIP 
 
 to withdraw from the United States, that the right 
 was fundamental and could be exercised at the option 
 of its citizens. 
 
 This opinion was grounded on the constitution of 
 1792, "That emigration from the state shall not be 
 prohibited." 
 
 This declaration is from the Virginia constitution, 
 in which the right is recognized. The contrary view 
 was held by the supreme court of Pennsylvania, not- 
 withstanding the constitution of that state as adopted 
 in 1776 : " That all men have a natural, inherent right 
 to emigrate from one state to another that will receive 
 them." 
 
 In other states opinions were expressed, but in 
 nearly every case the reason proceeded either upon the 
 local declaration of rights or the local constitution, and 
 were only of special force in the state, in deciding a 
 local issue. 
 
 The publicists of the United States discussed the 
 question from the standpoint of international law as 
 recognized by and between different countries. 
 
 Mr. Marcy wrote to Mr. Halseman in 1852 : " There 
 is great diversity and much confusion of opinion as to 
 the nature and obligations of allegiance. The sounder 
 and more prevalent doctrine, however, is that a citizen 
 or a subject having faithfully performed the past and 
 present duties, resulting from his relation to his sover- 
 eign power, may at any time release himself from the 
 obligation of allegiance, freely quit the land of his 
 birth or adoption, seek through all countries a home, 
 and select anywhere that which offers him the finest 
 prospects of happiness for himself and posterity." 
 
IN THE UNITED STATES. 93 
 
 Mr. Cass was of opinion in 1859: "The right of 
 expatriation cannot, at this day, be denied or doubted 
 in the United States. The idea has been repudiated 
 ever since the origin of our government that a man is 
 bound to remain forever in the country of his birth 
 and that he has no right to exercise his free will and 
 consult his own happiness by selecting a new home. 
 The most eminent writers on public law recognize the 
 right of expatriation. This can only be contested by 
 those who, in the nineteenth century, are still devoted 
 to the ancient feudal law with all its oppression. The 
 doctrine of perpetual allegiance is a relic of barbarism 
 which has been gradually disappearing from Chris- 
 tendom during the last century." 
 
 Caleb Cushing expressed the view very forcibly 
 that a citizen of the United States may exercise the 
 right of expatriation — the right not being expressed, 
 is implied. He goes further, and adds : " The doctrine 
 of absolute and perpetual allegiance is inadmissible in 
 the United States. It was a matter involved in and 
 settled by, the revolution which founded the American 
 union." 8 Op. Atty-Genl., p. 140. 
 
 Jeremiah Black recognizes the right to be a natural 
 right which every free man may exercise and is incon- 
 testable. 9 Op. Atty-Grenl., p. 356, Santissima Trini- 
 dad, 7 Wheat. 283. 
 
 This treatment of the question of the right of a citi- 
 zen to depart from the United States, and the rule as 
 established by the different writers, necessarily invol- 
 ves the correlative relation of acquisition of citizenship. 
 If citizenship was acquired by birth under the English 
 rule, these publicists would not assume the position 
 
94 THE LAW OF CITIZENSHIP 
 
 which they have done and which they have announced 
 as the foreign policy of the United States. 
 
 To repeat what has already been set forth as the rule 
 prior to 1836, it must be affirmed that neither jus soli 
 nor allegiance in the English sense and meaning had 
 any thing whatever to do with the acquisition of citi- 
 zenship in. the United States. 
 
 In England these rules went to the form of govern- 
 ment. In the United States the government was or- 
 ganized on principles of contract as between men, in 
 direct antagonism to the English form of government 
 
 The use of the term " allegiance " has no technical 
 place in the jurisprudence of the United States in its 
 feudal meaning. 
 
 Technically it should be said that the citizen has 
 taken an oath to support the constitution and the laws 
 of the United States. This is done by every citizen, 
 either expressly or impliedly, before he enjoys full 
 rights of citizenship. 
 
 In taking the oath, no personal relation is entered 
 into with the government of the United States. It is 
 a relation which is created by a citizen with his fellow 
 citizens. By it he affirms and agrees to the continua- 
 tion of the contract on which his government is 
 founded. It is , an expression of truthful intent to 
 abide by and obey the laws which the citizens enact 
 for themselves, from among themselves. 
 
 THE EULE LAID DOWN IN" 1868. 
 
 " All persons born in the United States and not 
 subject to any foreign power are declared to be citi- 
 zens of the United States." 
 
IN THE UNITED STATES. 95 
 
 For the reasons already given, the common law rule, 
 as known in England, was not adopted by the United 
 States, in its application to citizens. 
 
 The right of expatriation as being a natural and in- 
 herent right in man, has been advanced by the pub- 
 licists in the United States ever since the inception of 
 its government. The advocacy of this principle was 
 clearly in contradiction of the common law principle 
 which governed in England. Had the common law 
 principle as recognized in England been adopted in 
 the United States, the right of expatriation on the part 
 of a citizen of the United States could not have been 
 advocated by the publicists. The exercise . of such a 
 right, as it was maintained to exist in a citizen of the 
 United States, bore within it a refutation of the adop- 
 tion of the English common law rule. 
 
 If for reason of locality of birth, citizenship was ac- 
 quired, as it was understood in England, the right of 
 expatriation could not have existed ; and the fact that 
 it was held to exist, and was exercised by citizens of 
 the United States, would seem to deny the adoption 
 of the English rule. 
 
 It has never been maintained, even by the most ar- 
 dent advocates of the English rule in the United 
 States, that the rule was adopted in the United States, 
 only in part. These advocates have maintained, if 
 adopted at all, that it was adopted as a whole. If 
 adopted as a whole, in what manner do they reconcile 
 the exercise of the right of expatriation, on the part of 
 citizens of the United States, with the ties of allegiance, 
 by which a child of an Englishman, born'of English 
 parents in England, was bound to his sovereign ? 
 
96 THE LAW OF CITIZENSHIP 
 
 If a child born of citizens of the United States, in 
 the United States, bore to the United States the 
 same relation which a child of English parents, born in 
 England, bore to England's sovereign, then how was 
 the right of a citizen of the United States to expatri- 
 ate himself to be reconciled? This contradiction in 
 the practice, as exercised by citizens of the United 
 States, refuted the application of the rule as known in 
 England, in the United States. 
 
 For a publicist in the United States to have upheld 
 the English rule as a whole, would have been to deny 
 the fundamental principles of his government. It 
 must be conceded that the right of expatriation did 
 exist in the United States, and has been exercised by 
 citizens of the United States since the foundation of 
 the government. It must be admitted that the prin- 
 ciples involving the right of expatriation were incom- 
 patible with the English rule. 
 
 It would be difficult to reconcile this incompati- 
 bility. The practice admits its existence, which the 
 English practice does not admit. By the English 
 practice it has been shown that while the right to 
 depart and absolve allegiance from the English crown 
 did not exist in law, yet in many cases, where English- 
 men were temporarily or permanently residing abroad, 
 they did owe a temporary and local allegiance to the 
 government under which they were living ; more than 
 this, in many cases they were called upon and did 
 perform similar duties to the government under which 
 they were living as did the citizens of that govern- 
 ment perform when called upon by their government 
 so to do. And the English government did not deny 
 
IN THE UNITED STATES. 97 
 
 but that they should perform such services, and in 
 every respect be treated as citizens of that country ; 
 yet upon return to England they were held to have 
 lost none of their rights as Englishmen. The fallacy 
 of this practice lies in the theory of a dual citizenship. 
 
 This duty to serve the country in which English- 
 men sojourned abroad, was no greater than if they had 
 renounced their English citizenship and become cit- 
 izens of that country. In effect it was the same as if 
 they had expatriated themselves. 
 
 It is not found that the United States sanctioned 
 this practice. It allowed its citizens to expatriate 
 themselves and become citizens of another country. 
 It did not recognize the principle of dual citizenship 
 as was done by England. 
 
 In order to understand the rule laid down in 1868, 
 kindred legislation should be considered in connection 
 with it. Any ambiguity should be avoided, and 
 while the rule laid down in United States vs. Fisher, 2 
 Cranch, 258,, which holds that in case of ambiguity, 
 every part of the act is to be considered, and the 
 intent is to be gathered from the whole, we are at 
 liberty in order to ascertain the spirit of the legis- 
 lation to consider other acts which bear upon the 
 same question. 
 
 We must at the same time consider the purpose for 
 which the legislation was passed. 
 
 It cannot be argued, in this connection, that it was 
 the purpose to pass statutes merely as municipal rules 
 which should have no extra-territorial effect, when the 
 statutes relating to citizenship were passed. It must 
 be presumed that it was the intent to conform to the 
 13 
 
98 THE LAW OF CITIZENSHIP 
 
 laws of nations as practised in the civilized world, in 
 the relations of civilized states the one toward the other. 
 
 For this reason the statute of 1802 should be con- 
 strued in this connection. By this statute it was 
 enacted : "All children heretofore born or hereafter 
 bora 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." 
 
 Under the rule laid down in 1802, it is evident that 
 the locality of birth should not govern as to children 
 of citizens of the United States born in foreign coun- 
 tries. And yet it is nowhere denied but that such a 
 child so born in a foreign country could, on reaching 
 majority become a citizen of that country. This the 
 English rule denied and maintained up to the year 
 1870, the rule : " Once an Englishman always an Eng- 
 lishman." By this practice on the part of the United 
 States the adoption of the English common law rule is 
 again denied. 
 
 It must be admitted, however, in this connection, 
 that persons subject to a foreign power born in the 
 United States, had been held by the authorities to be 
 citizens of the United States. Two rules were laid 
 down ; the one in 1859 in 9 Op. Atty.-Grenls. 373 : "A 
 free white person born in this country of foreign pa- 
 rents is a citizen of the United States." The other, 
 laid down in 1862 in 10 Op. Atty.-Grenls. 328: "A 
 child born in the United States of alien parents who 
 have never been naturalized is, by the fact of birth, a 
 native born citizen of the United States, and entitled 
 to all the rights and privileges qf citizenship." 
 
IN THE UNITED STATES. 99 
 
 These rules were applicable to the territory of the 
 United States, and had no ex-territorial effect. It is 
 admitted by the rules that the parents were aliens, and 
 as such were citizens of another country. Suppose 
 that the country of which the alien parents were citi- 
 zens had the same rule in its jurisprudence as is laid 
 down to be the rule by the United States in the act 
 of 1802. Or, reverse these two rules and admit that 
 these rules governed in the country of which these 
 alien parents were citizens ; and apply them to children 
 of citizens of the United States born in that country. 
 Does this not show a contradiction in principle which 
 is untenable in the jurisprudence of the United States ? 
 
 Not this alone. These rules are for municipal guid- 
 ance in derogation of the principles of international 
 law. It is not simply the rights and privileges of citi- 
 zenship in the United States which govern ; to it there 
 is to be added a further element in order to constitute 
 perfect citizenship and that is, equal protection abroad. 
 Under these rules the United States have simply de- 
 cided that the children of aliens born in the United 
 States can enjoy rights and privileges within the 
 United States. The United States could not contend 
 that these rules clothe such children with the rights of 
 protection as citizens of the United States upon return 
 with their alien parents to the country of which they 
 were citizens. Apply these rules to a child born of 
 English parents; would the United States extend 
 to such children, protection as citizens of the United 
 States upon return of those children with their alien 
 English parents to England, where the rule " Once an 
 Englishman always an Englishman" governs and 
 
100 THE LAW OF CITIZENSHIP 
 
 where the principle of allegiance to the sovereign is 
 held to be indelible and indissoluble ? 
 
 The fallacy of these rules in their application within 
 the spirit of international law, is demonstrated by the 
 act of 1868. By that act, the United States does not 
 lay claim to the children of aliens, subjects of a foreign 
 power. By this portion of the act, relating to children of 
 aliens subjects of a foreign power, and born in the United 
 States, and by the act of 1802, the principle of citizen- 
 ship for reason of locality of birth is distinctly denied. 
 
 There still remains the other portion of the act : "All 
 persons born in the United States are declared to be 
 citizens of the United States." 
 
 With the exception of the fourteenth amendment 
 to the constitution, which was held to be one of a ser- 
 ies of provisions having a common purpose, namely : 
 to secure to the negroes all the civil rights that the su- 
 perior race enjoys, as decided in Strander vs. West 
 Virginia, 100 U. S. 303 ; and Neal v. Delaware, 103 
 U. S. 370 ; there are no other acts than the one of 1802 
 and the one of 1868, which refer to the acquisition of 
 citizenship, whether for reason of locality of birth or 
 for reason of descent or extraction. 
 
 We are, therefore, confined to these acts, which must 
 be construed as a whole. They must be construed 
 with a view to the existing principles of international 
 law on this question. To reach the law of construc- 
 tion, we must refer to the practice of civilized states, 
 because we are dealing with a question which concerns 
 citizenship, the very definition of which necessitates a 
 consideration of the rules which govern citizenship in 
 the international practice. 
 
IN THE UNITED STATES. 101 
 
 THE RULE OF INTERPRETATION TO BE APPLIED TO THE 
 
 STATUTES. 
 
 " We take our knowledge of international law not 
 from the municipal code of England, but from natural 
 reason and justice, from writers of known wisdom, 
 and the practice of civilized nations." 2 Op. Atty.- 
 Genls. 356. 
 
 There are, therefore, three ways by which to reach 
 the rule of construction which must be applied to the 
 acts of 1802 and 1868, considered as a whole. 
 
 First, from natural reason and justice. It is dis- 
 tinctly stated that we do not derive our principles of 
 international law from the municipal code of England. 
 While it is too well known that the English common 
 law rule did obtain for the guidance of England 
 throughout centuries of time, the royal commission 
 appointed by her majesty in 1868 to inquire into the 
 question of allegiance, which commission was composed 
 of prominent international jurists, such as Sir Robert 
 Phillimore, Montague Bernard and Travers Twiss, to- 
 gether with the leading jurists and statesmen of Eng- 
 land, which commission did find : " We are of opinion 
 that the rule of the common law is neither reasonable 
 nor convenient. It is at variance with those principles 
 on which the rights and duties of a subject should be 
 deemed to rest ; it conflicts with that freedom of ac- 
 tion which is now recognized as most conducive to the 
 general good, as well as to individual happiness and 
 prosperity, and it is especially inconsistent with the 
 practice of a state which allows to its subjects abso- 
 lute freedom of emigration." 
 
 This material change in the advocacy of the com- 
 
102 THE LAW OF CITIZENSHIP 
 
 mon law rule is important in this connection. It pro- 
 ceeds upon natural reason and justice; it is applicable 
 to a consideration of the acts of 1 802 and 1 868. The 
 happiness and prosperity of the individual inures to 
 the general good of mankind, whether the individual 
 is at home or abroad. Any restriction for reason of 
 locality of birth is an injury to the general good of 
 mankind. Such freedom of action is essential at the 
 present stage of civilization, as will conduce to the good 
 of mankind. Justice demands that a citizen should enjoy 
 the right of expatriation. This was a right reserved 
 by man when he entered society. This was a dictate 
 of natural reason, and, therefore, he should be sustained 
 in the exercise of the right, for the good of himself 
 and of his children, provided he exercises the right 
 consistent with justice and fair dealing to others. 
 
 Sir Vernon Harcourt decided : " That the rule of 
 determining nationality in England was of purely 
 feudal origin." In the United States it has never been 
 held that the principle of feudalism was founded in 
 natural reason and justice. On the contrary, the 
 principles set forth in the declaration of independence 
 are in distinct antagonism to the principles of feudalism. 
 
 Second, from writers of known wisdom. The 
 publicists have discussed this question from the 
 two different standpoints. The English writers have 
 maintained that the English common law rule, which 
 was conceived in feudalism, should govern. At the vari- 
 ous epochs when these writers have discussed the ques- 
 tion, England sought morally, if not actually, to govern 
 the civilized world. In each instance, these writers 
 have reasoned from Calvin's case as decided by Lord 
 
IN THE UNITED STATES. 103 
 
 Coke. They have labored to make the English com- 
 mon law, or properly speaking the municipal law of 
 England, the international common law of nations. 
 With them these questions were argued and decided 
 in accordance with the decisions of the English tri- 
 bunals, and from these decisions, they derived their 
 knowledge and promulgated to the world, simply the 
 municipal rules which governed Englishmen in Eng- 
 land. In their arguments they confine themselves to 
 the opinions of their own local judges as the source 
 from which the international law of nations should 
 flow. They did not argue from the standpoint that 
 man had within him inherent and inalienable rights 
 which were a part of his nature. To them, reasoning 
 from this standpoint was fallacious. Was it not 
 equally as fallacious to maintain that the municipal 
 law of England alone contained the principles which 
 should govern in the relations between nations ? In 
 this connection it might, with all respect, be said, that 
 the so-called English publicists were expounders of 
 the English common law. 
 
 The continental writers have, as a rule, maintained the 
 principle of citizenship by descent and not by locality of 
 birth, which latter was the English common law rule. 
 
 Vattel directly antagonizes the English rule when he 
 writes: "The true bonds which connect the child 
 with the body politic is not the matter of an inanimate 
 piece of land but the moral relations of his parentage." 
 Again he adds: "The place of birth produces no 
 change in the rule that children follow the condition 
 of their fathers, for it is not naturally the place of 
 birth that gives rights, but extraction." 
 
101 THE LAW OF CITIZENSHIP 
 
 Foelix did not differ from Vattel; he lays down the 
 practice to be : " That the child is a part of the 
 nation to which his father belongs, if the child is born 
 in lawful wedlock, or to the nation of its mother, if 
 the mother is not married." 
 
 Von Bar, a German publicist, explains the general 
 rule to be as follows : " To what nation a person be- 
 longs is by the law of all nations closely dependent 
 on descent ; it is almost an universal rule that the 
 citizenship of the parent determined it ; that of the 
 father, where the children are lawful, and where they 
 are bastards, that of the mother, without regard to 
 the place of their birth. And that must necessarily be 
 recognized as the correct canon, since nationality in its 
 essence is dependent on descent." 
 
 Westlake takes the broad position that : " Legiti- 
 mate children, in whatever region or place they may 
 be born, are regularly members of the state of which 
 their parents form part, at the moment of their birth." 
 This rule does not determine that locality of birth 
 governs, for it carries within itself the principle of 
 natural right of a citizen of one state to change to 
 another. Herein Westlake differs from many other 
 English writers and advocates impliedly, at least, the 
 principle of citizenship by extraction and the right of 
 expatriation, both of which contradict the English com- 
 mon law rule which governed in England prior to the 
 year 1870. 
 
 Field, in his International Code, lays down the rule 
 to be that : " A legitimate child wherever born is a 
 member of the nation of which its father at the time of 
 its birth was a member." 
 
IN THE UNITED STATES. 105 
 
 Both Heffter and Bluntschli, recent German writers 
 maintain the same position. 
 
 Fiore, a recent Italian writer, subscribes to the 
 general view taken by continental writers and main- 
 tains the correctness of the principle. 
 
 Furguson, who recently wrote as a Holland pub- 
 licist, touches the question in a very apt manner; 
 particularly so, for this discussion. For it is not 
 citizenship in a limited sense as defined by a municipal 
 code, with which we are dealing, but with a citizen- 
 ship as recognized by the principles of international 
 common law. Furguson remarks : " The nationality 
 which constitutes an object of international law is the 
 political nationality or political citizenship which can 
 be lost and acquired through acts of legislation. 
 Political nationality is acquired, first, by birth; that 
 is, from the nationality of the parents, not from the 
 mere accidental place of birth ; second, by law, called 
 naturalization." 
 
 Third : From the practice of civilized nations. ; 
 
 The rule, locality of birth, governed to a great ex- 
 tent prior to the publication of the code of Napoleon. 
 The influence of this production was great throughout 
 continental Europe. It was the death blow to the 
 feudal principle which governed in the common law, 
 the abolishment of which was speedily effected by 
 codifications of the laws in the different countries, 
 based on the principles enunciated in the French 
 code. The purpose and intent was to abrogate the 
 existing common law and in its place to put in force 
 principles consistent with man's nature. Its object 
 was to eradicate as far as practicable the vestiges 
 14 
 
106 THE LAW OF CITIZENSHIP 
 
 of the feudal system. The fundamental idea was 
 to effect a complete change in the principles of juris- 
 prudence in every respect, in which it could be done 
 without injury to already existing acquired rights. 
 The proclamation was : " The new law abrogating the 
 ancient law being reputed to be more useful and 
 beneficial to the people than the law which it abro- 
 gates, it becomes necessary for this reason to give 
 to it the most extended effect." 
 
 By the law of France, prior to the revolution, a 
 child born on French soil, though born of foreign 
 parents, was a Frenchman, jure soli ; born of French 
 parents abroad, the child was French jure sanguinis. 
 "The framers of the Code Napoleon adopted a sounder 
 principle ; excluded the place of birth as the source of 
 nationality itself." Cockburn on Nationality, page 14. 
 
 "The sounder principle," adopted by the French 
 code, was the principle that citizenship was acquired 
 by descent or extraction. Code Civile, art. 10. 
 
 This rule governed both for children of Frenchmen 
 born in France, and in foreign countries. The prin- 
 ciple is carried still further: "The children of a 
 Frenchman, naturalized in a foreign country and who 
 are born in the same country, are aliens." Thus in 
 each case, a child born of French parents in France ; 
 a child born of French parents in a foreign country; 
 a child born of a former Frenchman who has become 
 naturalized in a foreign country, the child respectively 
 follows the citizenship of the father. 
 
 In the empire of Austria, the claim to the citizen- 
 ship of the father, at the time of the birth of the child, 
 is recognized as the right of the child. 
 
IN THE UNITED STATES. 107 
 
 In Prussia, a child bora of a subject of the king- 
 dom, is for reason of birth of a Prussian subject, a 
 citizen of Prussia, whether born within the territory 
 of Prussia or in a foreign country. The law is sub- 
 stantially the same in most of the other German states. 
 
 The rule in Sweden and Norway is : the status of 
 persons born of Swedish or Norwegian parents is 
 derived from their parentage. 
 
 The same rule prevails in the republic of Switzer- 
 land. 
 
 In Denmark, Holland and Portugal, the principle 
 recognized is, that the claim to citizenship is by 
 descent. In these countries, however, for the benefit 
 of children of aliens, born within their limits, citizen- 
 ship is conferred upon them for reason of birth, within 
 the country, without their claiming it, provided, they 
 desire, upon attaining their majority, to waive their 
 rights to citizenship by descent. This rule, which 
 is made one of convenience for children of foreigners 
 born within the country, by which they may claim 
 citizenship in the country from fact of locality of birth, 
 thus saving any naturalization, recognizes the law in 
 foreign countries to be, that citizenship is acquired by 
 descent. 
 
 The rule which governs in Italy is : that citizenship 
 is acquired by descent. There is a further rule that 
 if an alien has resided in the country for a period 
 of ten years, and has had children born, the children, 
 are held to be Italians with the right to elect to re- 
 main so or not upon attaining their majority. The 
 ground for this claim is not for reason of birth ; it is 
 on the presumption that the ten years' residence of the 
 
108 i THE LAW OF CITIZENSHIP 
 
 parent has made him an Italian subject. In Belgium 
 the same principles govern as are laid down in the 
 Code Napoleon. 
 
 In Spain the rule as recognized by the French has 
 been made the Spanish rule. 
 
 THE RESULT OP THE APPLICATION OP THIS RULE OP INTER. 
 PRETATION. 
 
 An application of these rules of construction as de- 
 rived from the sources in which are found the princi- 
 ples of international law, to the acts of 1802 and 1868 
 seems to bring these acts properly within the inter- 
 national law rule as was purposed. The rule is to 
 bring citizenship within the practice of nations in order 
 thereby to insure to citizens of the United States equal 
 protection abroad with all other aliens sojourning in a 
 common country. The intercourse between states, the 
 closer relations in commerce and trade, which necessi- 
 tate the residence both temporary and permanent of 
 citizens of one state in other states, seems to require 
 that a general rule should govern as to the acquisition 
 of citizenship. The principles of feudalism are accom- 
 plished with the necessities of trade and commerce, 
 and the practice in the relations between states which 
 grow out of them. Modern civilization has repudiated 
 every vestige of the feudal law in this regard, with 
 the exception of the rule in the English practice as to 
 which there was a wide diversity of opinion among the 
 commissioners in 1868. By them it has been freed 
 from the unbending rule that allegiance was indelible. 
 A child born of English parents in England is now a 
 citizen by birth with the privilege, when the child 
 
IN THE UNITED STATES. 109 
 
 reaches majority, of choosing a citizenship compatible 
 with its belief in its future welfare and prosperity. 
 This relaxation of the common law rule is an approach 
 toward the rule as known to the practice in the com 
 mon law as recognized between nations. 
 
 The rule acquisition of citizenship by descent or ex- 
 traction is a natural law, one which govern all man- 
 kind all the world over. Whereas the rule acquisition 
 of citizenship for reason of locality of birth is merely a 
 municipal law which can have no extra-territorial effect 
 and never has had any as is obvious from the English 
 practice, which in point of fact, recognized the rule of 
 descent or extraction as to its subjects born of Eng- 
 lish parents in foreign countries, attaching, however, 
 as a rule for municipal protection the indelibility of 
 allegiance to the English sovereign. 
 
 PRACTICE UNDER THE RULE CITIZENSHIP BY DESCENT 
 WITH GERMANY. 
 
 The case of Ludwig Hansding. He was born 
 in the United States of German parentage ; removed 
 to his father's native land while a minor ; his father 
 subsequently became a naturalized citizen of the 
 United States. Protection was denied him on the 
 ground that he had never dwelt in the United States 
 as a citizen of the United States. The father, by the 
 act of naturalization, changed the citizenship of the 
 son ; but the son not having dwelt within the United 
 States according to section 2172 of the Revised Stat- 
 utes, Hansding was held to be a subject of Germany. 
 Birth in the United States did not govern. Mr. Fre- 
 linghuysen, secretary of state to Mr. Kasson, January 
 15, 1885/ 
 
110 THE LAW OF CITIZENSHIP 
 
 With Germany. The case of Richard Greisser. 
 He was born in the United States. His father was 
 at the time a German subject and domiciled in Ger- 
 many. He left the United States with his mother to 
 join his father in Germany, where during a portion of 
 his minority he resided until the death of his father, 
 at which time, and while still a minor, he went to 
 Switzerland to reside. At the time of his birth, he 
 was subject to a foreign power, following the citizen- 
 ship of his father, who was a German, and being such 
 under section 1992, Revised Statutes, was held to be a 
 German and protection was denied him. Although 
 under the fourteenth amendment of the constitution 
 all persons born or naturalized in the United States 
 and subject to the jurisdiction thereof are citizens of 
 the United States, yet following the citizenship of the 
 father, he was held not to be subject to the jurisdiction 
 of the United States and on this further ground the 
 protection was denied him. Mr. Bayard, secretary of 
 state, to Mr. Winchester, November 28, 1885. 
 
 The remarkable point in this case is that the appli- 
 cant did not apparently claim protection as against the 
 country of which his father was a citizen, but on 
 general principles as a resident of Switzerland de- 
 manded a passport for protection in foreign countries 
 as a citizen of the United States. 
 
 With Germany. An interesting case is that of one 
 Hans. He was a posthumous child ; his father was not 
 naturalized but had acquired a permanent residence 
 during four years' stay prior to his death. Soon after 
 the death of the father, the mother took the son to 
 Germany, where she resided with him continuously. 
 
IN THE UNITED STATES. Ill 
 
 He applied for protection as a citizen of the United 
 States. The question was whether the act of the 
 mother in returning with her minor son could change 
 the citizenship of the son, he being born in the United 
 States. 
 
 By marriage, the father becomes the head of the 
 family ; the wife becomes a member of the family and 
 remains such together with the children which may be 
 lawfully born to them. In case the father were a 
 German and the wife an Englishwoman she would fol- 
 low the citizenship of her husband as would the chil- 
 dren. Suppose, however, that the Englishwoman had 
 children by a former husband, an Englishman, and 
 after his death she should marry a German ; the mar- 
 riage with the German would change her citizenship, 
 but not that of her children by her former husband. 
 Her change of citizenship by an act, would not change 
 with it the citizenship of the children for reason that 
 she does not legally become the recognized head of the 
 family ; in other words, the death of the husband does 
 not change her relation to the family as that of mem- 
 ber to that of head of the family. Bluntschli Voelker 
 Becht, § 366 ; Von de Bar, § 31 ; 1 Foelix, pp. 54, 55, 
 94. 
 
 The son was in Germany at the time of his appli- 
 cation for protection as against the demands of the 
 German authorities to perform military duty as a sub- 
 ject of Germany. 
 
 It was held that, "As he is now in Germany the 
 question is one which, if military service be insisted on, 
 must be presented to the German government for con- 
 sideration, and their views heard before this depart- 
 
112 THE LAW OF CITIZENSHIP 
 
 ment can express any final determination in this ref- 
 lation. Mr. Bayard, secretary of state, to Mr. Lieb- 
 man, July 9, 1886 ; Lamar vs. Mican, 112 U. S. 
 452. 
 
 With Germany. It was laid down by Mr. Evarts, 
 secretary of state, to Mr. White, June 6, 1879, as a rule, 
 that children born in the United States, of former 
 Germans naturalized in the United States, though taken 
 back to Germany for a few years during minority and 
 having returned to the United States during minority, 
 were citizens upon reaching majority if they elected 
 to become such. 
 
 This rule would hold so far as concerns the laws of 
 the United States, provided the father did not change 
 his citizenship by re-acquisition of his former German 
 citizenship. If the father did so during the minority 
 of his children, this act would carry with it a change 
 in the citizenship of his children so far as concerns the 
 German law ; the children must then, in order to be- 
 come citizens of the United ^States, comply with the 
 statutes of naturalization and take up a permanent 
 residence in the United States. 
 
 The condition on this rule is confirmed by Mr. 
 Frelinghuysen, secretary of state, to Mr. O'Neil, 
 August 8, 1882, wherein it is laid down: "A child 
 born in this country to a German subject, is subject, 
 if he put himself in German jurisdiction, to German 
 laws." That is, provided the father, after his natural- 
 ization in the United States again becomes a subject 
 of Germany. It follows without saying, that if the 
 father never was naturalized in the United States, 
 and while in the United States, had children born to 
 
IN THE UNITED STATES. 113 
 
 him, that the children follow the father's nationality, 
 and upon return to Germany, the children become 
 immediately subject to German law. This is laid 
 down by Mr. Frelinghuysen to Mr. Cramer, June 4, 
 1888 : "A child born in the United States to a 
 foreign father, when taken by his father abroad, 
 acquires the father's domicile and nationality." 
 
 With Germany. The case of Steinkauler. He was 
 born in the United States. His father was a natural- 
 ized citizen ; a native of Germany. Four years after 
 the birth of his son, which was in 1855, he returned 
 with his family, including his son, to Germany, and 
 continued to reside there until 1875, when the German 
 government called upon the son as a German subject 
 to perform military service. 
 
 It was held, that " under the treaty as between the 
 United States and the German government, and 
 according to the rule declared in section 1999 of 
 Revised Statutes, the father renounced his natural- 
 ization in America, and become a German subject. 
 By virtue of the German laws, his son being a minor, 
 also acquired German nationality. Having at the 
 same time an American nationality by birth, he had 
 thus a double nationality. 15 Op. Atty-Genl. 15. 
 
 Under this rule he followed the citizenship of the 
 father. By the treaty which was ratified in 1868, 
 between Germany and the United States, the father 
 was presumed, after a continued residence of two 
 years, to have renounced his American citizenship. 
 This presumption of change in citizenship as to the 
 father carried with it a change in the citizenship of 
 the son. The son was held to perform military ser- 
 15 
 
114 THE LAW OF CITIZENSHIP 
 
 vice as a subject of Germany. The recognition of his 
 claim as a citizen of the United States was denied 
 him. This is borne out of the opinion of the attorney- 
 general, who decided that the son had a double nation- 
 ality. This double nationality may or may not be 
 convenient. The position is not sustained by the 
 authorities on international law. Either he was or 
 was not a citizen of the United States. If he was a 
 citizen of the United States, he was a citizen of the 
 United States all the world over, in Germany, as 
 well as elsewhere. Nothing short of this can be 
 citizenship in the United States. The dictum that 
 Steinkauler was a citizen of the United States when 
 in the United States, and a subject of Germany when 
 in Germany, is certainly a remarkable phase of Ameri- 
 can citizenship. This relation is denied in particular 
 by the German authorities. 
 
 Bluntschli Voelker Recht, section 373, states : " The 
 rule is, every individual can be bounden as citizen to 
 only one state." 
 
 Chief Justice Cockburn : " Under a sound system 
 of international law such a thing as a double nation- 
 ality should not be suffered to exist." 
 
 Phillimore International Law : "An individual can 
 have only one allegiance." 
 
 Field International Law: "One cannot be at 
 one and the same time a citizen of two states." 
 
 Cicero pro Balbo : "According to our civil law no 
 one can be a citizen of two cities at the same time." 
 
 The rule is well laid down by Phillimore Inter- 
 national Law, volume I, page 38 : " In this connection, 
 that the son as long as he remains a minor follows the 
 
IN THE UNITED STATES. 115 
 
 citizenship of the father, whether the citizenship 
 be original or acquired by naturalization." 
 
 Again, by Vattel in his Law of Nations, page 102, 
 and Foelix's Droit Internal Prive. 
 
 With Germany. Case of George Weigand. Born 
 in the United States in 1850. His father was a native 
 of Germany, and was a naturalized citizen of the 
 United States, at the time of his son's birth. In 1871, 
 the father and son visited Germany, and took up 
 their residence in Cologne. In 1881, the son was 
 summoned to do military service. He claimed protec- 
 tion and it was held by the German government after 
 investigation, that Weigand could not be held. For. 
 Eel. of U. S., 1882, p. 187. 
 
 With Germany. Case of Charles William Schei- 
 bert. He was born in the United States in 1856. His 
 father had emigrated from Germany to the United 
 States in 1856; became a naturalized citizen in 1864, 
 and in 1869 with all his family returned to Germany, 
 where they remained and were living in the year 1882, 
 when the son Charles William was suddenly impressed 
 into the military service. Protection was denied to 
 him by the government of the United States because 
 it proved upon investigation that the father had ap- 
 plied for naturalization as a German citizen and that 
 the same had been granted to him. It was held that 
 he was a German citizen. For. Rel. of U. S., 1883, p. 
 344. 
 
 With Germany. The case of John Charles Blesch. 
 He was born in the United States of parents, natives 
 of Germany, but naturalized citizens of the United 
 States, in the year 1851. In 1859 he went to Germany 
 
116 THE LAW OF CITIZENSHIP 
 
 with his mother, his father having died in the mean- 
 time. In 1877, he asked protection as an American 
 citizen from the United States. It was held that by his 
 conduct neither he nor his mother by her conduct 
 contemplated a return to the United States and the 
 protection was, therefore, denied him. The rule laid 
 down in Steinkauler's case was held to be applicable. 
 It is difficult to perceive how it could be. Certainly 
 any change in the citizenship of the mother would not 
 affect the citizenship of the son. His father had died 
 in the United States. The son became a citizen of the 
 United States as the son of a father who was an 
 American citizen at the time of his son's birth. In 
 Steinkauler's case the father returned with the son ; 
 the father was a native of Germany and as such, having 
 been naturalized in the United States, came within the 
 provisions of the treaty of 1868. In the case of Blesch, 
 no provision of the treaty is applicable. For. Eel. of 
 U S„ 1877, p. 247. 
 
 With Germany. The case of Mrs. C. W. Kroemer. 
 Both she and her husband were natives of Wurtem- 
 berg. They were married in the United States and 
 their children were born there. Her husband died in 
 the United States, and she with her minor children 
 resumed her residence in Wurtemberg in 1865. She 
 preserved no domicile in America and paid no taxes. 
 She owned property and paid taxes in Wurtemberg. 
 She applied for a passport for protection for herself 
 and her children, stating that she should, at some time, 
 return to the United States for the benefit of her chil- 
 dren. It was held that the passport could not be 
 granted and remarked that the purpose was to prevent 
 
IN THE UNITED STATES. 117 
 
 the military authorities putting her sons in the army. 
 For. Eel. of U. S., 1877, p. 247. 
 
 The ruling would seem to be correct. The children 
 were born in America of parents aliens and subjects 
 of a foreign power. The father had taken no steps to 
 become a citizen of the United States. They were 
 children of German parents born abroad, and under 
 the German rule followed the citizenship of the father. 
 
 With Germany. Case of David Lemberger. He 
 was born in the United States in 1862. His father 
 was a native of Germany and in 1860 became a natural- 
 ized citizen of the United States. In 1870 he returned 
 to Germany and there took up his residence, when in 
 1884 he was forced into the army to perform military 
 service ; but was subsequently released. Very soon 
 thereafter he was given the option by the German 
 government to become a German citizen or submit to 
 expulsion from the country on the ground that he be- 
 longed to that class of Germans who use their Ameri- 
 can citizenship as a means for evasion of military duty. 
 The question was determined on other grounds and he 
 concluded to become a German citizen. For. Eel. of 
 U. S., 1855, pp. 429, 436. 
 
 With France. Case of Alfred P. Jacob. Born in 
 the United States of French parents, he was registered 
 in the French consulate as a French subject by his 
 father ; subsequently his father became a naturalized 
 citizen of the United States, and when Jacob was sev- 
 enteen years of age he was given an American pass- 
 port and then went to France, where he was impressed 
 into the service as a French soldier and served for the 
 term of four years. He was desirous that his name 
 
118 THE LAW OF CITIZENSHIP 
 
 should not remain on the French rolls after his service 
 and applied to have it withdrawn. The French au- 
 thorities took the position that Jacob's father having 
 been a Frenchman when he was born, that Jacob fol- 
 lowed his nationality until it had been decided by a 
 court of competent jurisdiction in France, that the 
 naturalization of the father in the United States 
 effected a change in the citizenship of his son. 
 
 The government of the United States ruled that he 
 was an American citizen, " his status as such dating 
 from his father's naturalization." F. R. of U. S., 1883, 
 p. 145. 
 
 With France. The case of Charles Drevet. His 
 father came to the United States as a French citizen 
 in 1852. In 1858, his father declared his intent to be- 
 come a citizen of the United States. In 1859 he mar- 
 ried an American lady. In 1860 he returned to 
 France. In 1869, he returned to the United States and 
 took out his second papers and shortly afterward re- 
 sumed his residence in France. The son was born and 
 always resided in France. Neither the son nor the 
 father ever expressed any intention of. residing in the 
 United States. 
 
 He claimed protection, which was denied him. It 
 was held that he was not entitled to recognition as a 
 citizen of the United States. Mr. Bayard, secretary 
 of state, to Mr. McLane, July 4, 1885. 
 
 The refusal was undoubtedly based on the clause, 
 " dwelling in the United States," which the son had 
 never done. 
 
 With France. The case of Eugene Albert Verde- 
 let. He was born in France. His father had resided 
 
IN THE UNITED STATES. 119 
 
 in the United States thirty-five years and in 1853, be- 
 came a naturalized citizen of the United States. In 
 1859 he returned to France where the applicant, his 
 son, was born. It was held he was not entitled to pro- 
 tection from the United States, the reasons being 
 that he had always resided in France and failed to ex- 
 press any intention of coming to the United States to 
 reside, although property interests may render it nec- 
 essary for him to visit the United States at some future 
 time. Mr. Frelinghuysen, secretary of state, to Mr. 
 Morton, November 9, 1883. 
 
 In connection with this case another point was con- 
 sidered. Verdelet, when born, was born as the son of 
 a naturalized citizen of the United States, residing in 
 a foreign country, and in this case in the country of 
 his origin. 
 
 The Revised Statutes, section 1993, declare children 
 born out of the limits of the United States, whose 
 fathers were or may be at the time of their birth, citi- 
 zens of the United States, to be citizens of the United 
 States. 
 
 This statute is held to mean that the legislation of 
 the United States should not be construed so as to in- 
 terfere with the allegiance which such children so born 
 owe to the country of their birth, while they continue 
 within its territory. Under this, if the French gov- 
 ernment should see fit to hold Verdelet as a citizen of 
 France for reason of birth within its territory, it 
 might do so, and the government of the United States 
 could not interfere with such a claim, if made by the 
 French government upon him. 
 
 With Feance. In the case of a child born of 
 
120 THE LAW OF CITIZENSHIP 
 
 Trench parents in the United States who with his pa- 
 rents returned to France during his minority, it was 
 held that after majority, having remained in France, 
 he could not claim protection from the United States. 
 Mr. Evarts, secretary of state, to Mr. Noyes, December 
 31, 1878. 
 
 With Austria. The case of Francois Heinrich. 
 Born in the United States of citizens of Austria, and 
 while temporarily sojourning in the United States. 
 When of the age of two years he was taken by his 
 parents to the empire of Austria and there resided 
 for twenty years, when he made a claim for protection 
 as an American citizen. It was held that he was not 
 entitled to protection as a citizen of the United States, 
 so long as he remained within the jurisdiction of the 
 Austro-Hungarian dominion. F. E.. of U. S., 1873, 
 pp. 78, 79. " 
 
 Under the statute of 1866 he was born of parents 
 subject to a foreign power. It is not claimed that this 
 statute was retroactive in its effect and, therefore, would 
 not be applicable, Heinrich having been born in the 
 United States in the year 1850. 
 
 Under the statute of 1802, all persons heretofore 
 born or hereafter born of citizens of the United States, 
 etc., are citizens thereof, he could not be included, be- 
 cause his parents were Austrians. 
 
 Under the Austrian rule, a foreign born child of 
 Austrian parents takes the nationality of the latter 
 and is regarded as an Austrian. 
 
 The Austrian government claimed him for service 
 in the military as a subject of Austria. This service 
 he was ordered to perform. The protection of the 
 
IN THE UNITED STATES. 121 
 
 United States was rightfully denied him. He followed 
 throughout the citizenship of his father, which the 
 father had never seen fit to change. 
 
 With Austria. The case of Frederick de Bourry. 
 He was born in the United States of Austrian parents 
 and resided in the United States for five years. He 
 then returned with his mother to Austria, where he 
 was subsequently joined by his father. At the time 
 of making his application for protection he was in the 
 employ of the Austrian government. He was then 
 three years in his majority and his father had always 
 retained his Austrian citizenship. He had taken no 
 steps to elect his citizenship, even if a dual citizenship 
 was claimed, and for this reason, in connection with 
 his conduct in Austria, it was held that he had no in- 
 tent to become a citizen of the United States and pro- 
 tection was denied him. Mr. Bayard, secretary of state, 
 to Mr. Lee, July 2.4, 1886. 
 
 It has been held that an American citizen may enter 
 the land or naval service of a foreign government, 
 without divesting himself thereby of his rights of 
 citizenship. The Santissima Trinidad, 1 Brocken- 
 brough, 478. 
 
 Therefore, by this act, he would not have lost his 
 citizenship in the United States, if he had any. 
 
 But he was a child born to an alien in the United 
 States, and lost his citizenship on leaving the United 
 States, and returning to his parent's allegiance. Mr. 
 Blaine, secretary of state to Mr. O'Neil, November 15, 
 1881. 
 
 He followed the citizenship of his father ; his father 
 made no change of citizenship by which to affect that 
 
122 THE LAW OF CITIZENSHIP 
 
 of the son ; the father retained his Austrian citizen- 
 ship, as did the son. It is true that he was born in the 
 United States, but was born of parents subject to a 
 foreign power, namely, subject to Austria, which rule 
 extended to the son, and on this ground the refusal 
 could have been made. 
 
 With Austria. Case of Anton Wurgletts and 
 family. Wurgletts emigrated from Hungary in 1851 
 to the United States. He became a naturalized citizen of 
 the United States in 1856, where he lived sixteen years 
 and had children born there. He returned to Hun- 
 gary in 1869 and took his children with him. Appli- 
 cation was made for protection on the ground that the 
 children desired to return to America, though the 
 father did not appear to intend personally to return to 
 America. It was held that the family had retained its 
 American citizenship and the protection was afforded. 
 F. E. of U. S., 1881, pp. 30, 52. 
 
 With Switzerland. The case of Robert Emden. 
 He was born in Switzerland, of parents naturalized 
 in the United States. He himself had never been in 
 the United States. The date of birth was 1862. 
 The date of the father's naturalization in the United 
 States was 1854. Soon thereafter, he returned to his 
 country of origin, and continued to reside there, 
 where his son was born in 1862. 
 
 It was held : " Undoubtedly, by the laws of nations, 
 an infant child partakes of his father's nationality and 
 domicile. But there are two difficulties in applying 
 the rule in the present case. In the first place, a 
 parent's nationality, cannot, especially when produced 
 by naturalization, be presumed to be adhered to after 
 
IN THE UNITED STATES. 123 
 
 a residence in the country of origin for so long a 
 period as in the present case. In the second place, 
 the rule as to children only applies to minors, since, 
 when the child becomes of age he is required to elect 
 between the country of his residence and the country 
 of his alleged, technical allegiance. This may be in- 
 ferred from the conduct of the parties. 
 
 "Applying these tests to the present case, it can 
 hardly be said that Mr. Robert Emden's claim, to be 
 a citizen of the United States, is as a matter of inter- 
 national law made out. 
 
 The protection was denied him. He was held not 
 to be a citizen of the United States, and it was recom- 
 mended that his proper course was to return to the 
 United States and become naturalized. Mr. Bayard, 
 secretary of state, to Mr. "Winchester, September 14, 
 1885. 
 
 With Switzerland. The case of Joseph Speck. 
 He was born in the United States of Swiss parents. 
 While a minor, his father returned with him to 
 Switzerland. It was held that his status according to 
 well understood principles of international and munic- 
 ipal law, followed that of the father, until the boy 
 reached majority. For this reason no protection was 
 extended to him. Mr. F. W. Seward, acting secretary 
 of state, to Mr. Fish, August 20, 1878. 
 
 With Italy. The case of John Peter Sharboro. He 
 was born in the United States in 1852 of Italian 
 parents; in 1860 his father became a naturalized cit- 
 izen of the United States. At the time of his birth 
 his father was a subject of Italy. He was a subject 
 to a foreign power ; the son followed the citizenship 
 
124 THE LAW OF CITIZENSHIP 
 
 of the father. When, however, the father became a 
 citizen by naturalization, the act carried with it a 
 change in the citizenship of the son, and the son 
 thereby became a citizen of the United States. Mr. 
 Fish, secretary of state, to Mr. Marsh, May 19, 1871. 
 
 With China. The case of John Frederick Pearson. 
 An American citizen born of American parents in the 
 United States, by name Frederick Pearson, lived many 
 years in China, and did business there. While there 
 he married a Chinese woman, contracting the marriage 
 under a law foreign to China, by whom he had children 
 born, of whom John Frederick Pearson was one, who 
 inquired as to his status in citizenship; the father 
 died in China in 1868. During his youth he was 
 educated for a time in the United States and in England, 
 and subsequently returned to China. The applicant 
 was born in China ; lived in China continuously, with 
 the exception of six years' residence abroad for his edu- 
 cation. His dress and habits were Chinese, and his in- 
 quiry was for the purpose of gaining such advantages 
 as American citizenship would give him, by register- 
 ing himself as such with the American authorities. 
 
 It was not held definitely in what relation he did 
 stand to the government of the United States. 
 
 In viewing the subject, the opinion rendered was as 
 follows : '' The rule of law undoubtedly is, that in 
 doubtful cases the presumption in favor of legitimacy 
 is to control, and the conclusion, therefore, must be 
 that John Frederick Pearson, whose rights are here 
 investigated, being a legitimate son of Frederick 
 Pearson by a Chinese wife, assumes his father's nation- 
 ality." Op. of Wharton, F. R. of U. S., 1885, p. 172. 
 
IN THE UNITED STATES. 125 
 
 The first question would be, what was the law of 
 the United States at the date of the marriage of Fred- 
 erick Pearson in China to a Chinese woman ; and second, 
 what was it at the date of the birth of John Frederick 
 Pearson. 
 
 There was at that date no law of the United States 
 which prohibited the marriage of an American to a 
 Chinese woman, and thus by that act of the American 
 citizen, the citizenship of husband was conferred on 
 his wife. This was the law of marriage with foreign- 
 ers and the Chinese women were no exception. 
 
 Again there was at that date no law of the United 
 States which prohibited Chinese from becoming citi- 
 zens of the United States. Pearson's father was a 
 citizen of the United States ; as such he (John) shared 
 the citizenship of his father. 
 
 His mother became an American citizen by the mar- 
 riage and the son became an American by right of de- 
 scent from the father. 
 
 With the exception of some few years' residence in the 
 United States for education, which cannot be consid- 
 ered as any purpose on his part to reside in the United 
 States, he has always resided in China, and expressed 
 no intent to reside in the United States. 
 
 John Frederick Pearson had never dwelt in the 
 United States with bona fide intent to affect his citi- 
 zenship. He had passed the age of majority and had 
 made no election to retain or renounce his American 
 citizenship. It remained to be inferred and the in- 
 ference must be with a view to his age at the time of 
 his application, at this time he was thirty-two years 
 old. 
 
126 THE LAW OF CITIZENSHIP 
 
 " By virtue of the treaty between the United States 
 and China of 1844, all citizens of the United States in 
 China, enjoy complete rights of extra-territoriality and 
 are answerable to no authority but that of. the United 
 States." 7 Op. Atty.-Genls. 495. 
 
 If by the treaty, such children were to be held by a 
 fiction of law to be born in the United States, the case 
 of Pearson would seem clear at the time of his birth. 
 Another element, however, seems to enter into the dis- 
 cussion ; that is, does the law of China sanction the 
 marriage of a Chinese woman to an alien ? Should it 
 not, then, by that law, the child would be illegitimate 
 and follow the citizenship of the mother. The mar- 
 riage was contracted in China, and as such was a mat- 
 ter of record, but not among the records of the Chinese 
 authorities. 
 
 The claimant being in China is governed by Chinese 
 law, if that government should maintain that the mar- 
 riage was illegal. Were he in the United States, the 
 question of the legitimacy of the marriage would be 
 governed by the law of China affecting the capacity of 
 the mother to enter into the marriage contract. 
 
 Should, however, the law of China not present such a 
 marriage, then it would seem that the extra-territoriality 
 extended to citizens of the United States there resid- 
 ing, would govern. 
 
 It cannot be held that subsequent legislation on 
 the Chinese question should have any retroactive 
 effect, only in this regard that it might prevent his 
 election to become a citizen of the United States, the 
 Chinese being excluded from the acquisition of that 
 right. This legislation was in 1876. When reaching 
 
IN THE UNITED STATES, 127 
 
 majority, he failed to exercise the right of election, 
 which was in 1875. Having failed to do so the ex- 
 ercise of the right could be denied him subsequent to 
 the legislation as passed by Congress. 
 
 CONCLUSIONS FROM THE PRACTICE OP THE UNITED STATES. 
 
 The rule to be deduced from the practice in these 
 cases is, that the child follows the citizenship of the 
 parent. That the citizenship of the child follows that 
 of the parent, and changes whenever the parent sees fit 
 to mate a change. 
 
 This rule seems from the practice to be subject to 
 conditions precedent, which conditions are purely 
 autonomous and are open to question as to their 
 influence on the practice under the international com- 
 mon law rules. 
 
 Under sections 1992 and 1993 of the Revised 
 Statutes of the United States, children born of parents 
 residing in the United States, subjects to foreign 
 powers, do not become citizens. This is in consonance 
 with the international law rule. Should, however, 
 the parent subsequent to the birth of the child be- 
 come naturalized, then this act of naturalization car- 
 ries with it a change in the citizenship of the child, as 
 was held in the case of Jacob hereinbefore cited. 
 Should, however, the child depart from the United 
 States prior to the act of naturalization by the parent, 
 then it has been held that the act of naturalization of 
 the parent does not effect a change in the citizenship 
 of the child unless the child has resided within the 
 United States after the act of naturalization of the 
 parent. This was held in the case of Hansding, here- 
 inbefore cited, under section 2172 of the Revised 
 
128 THE LAW OF CITIZENSHIP 
 
 Statutes of the United States. This rule as laid down 
 in the case of Hansding is an innovation on the prac- 
 tice. Contrary to the general rule that a change by 
 the parent in his citizenship carries with it a change 
 in the citizenship of his child, the United States can- 
 not by a local law declare the child of one of its 
 citizens to be a citizen of nowhere as was done in the 
 case of Hansding. There must be a general concur- 
 rence of all states in the practice in order to establish 
 such a rule. If the parent, Hansding's father, had 
 lawfully departed from Germany, and had lawfully 
 become a citizen of the United States, what was at 
 that time the citizenship of the child? Under the 
 German rule, the child follows the citizenship of the 
 parent. Again, in the case of Blesch, hereinbefore 
 cited, the question of dwelling in the United States is 
 overcome, for he had dwelt in the United States. 
 The refusal to protect him declared him to be a citizen 
 of nowhere. The German government did not claim 
 him, nor was it as against that government that the 
 protection was sought. The government of the United 
 States proceeded upon an inference of an intent con- 
 strued from his acts, that he did not intend to reside 
 in the United States. For this there appears to be no 
 statute which governs. 
 
 It is well settled in the practice that every individ- 
 ual must be a member of some society or state. It is 
 well defined in Field's International Code, page 130, 
 that " a person who has ceased to be a member of a 
 nation without having acquired another national 
 character, is, nevertheless, deemed to be a member of 
 the nation to which he last belonged. 
 
IN THE UNITED STATES. 129 
 
 "The United States has not the power to declare its 
 members to be citizens of nowhere, and cast them 
 upon other civilized governments for protection; The 
 error of such declarations would be more apparent 
 should the necessity of support arise for reason of 
 such members becoming paupers." 
 
 Under this same rule may be brought the discussion 
 in Emden's case hereinbefore cited, which was, that a 
 naturalized citizen of the United States after a pro- 
 longed residence in the country of his origin loses his 
 citizenship in the United States. For this there is no 
 statute nor any law by which a distinction can legally 
 be drawn between citizens of the United States. 
 When the citizenship is lawfully acquired no destruc- 
 tion is possible. It is not a question of the manner, 
 provided the acquisition is legal. The citizenship car- 
 ries with it protection all the world over, and one 
 citizen is entitled to the same protection when abroad 
 as is every other citizen of the United States. 
 
 CITIZENSHIP BY NATURALIZATION IN THE UNITED STATES. 
 
 Naturalization signifies the act of adopting a for- 
 eigner and clothing him with the rights of a citizen. 
 
 Every state exercises the power of determining who 
 shall enjoy the rights of membership of the political 
 society or body politic of which it consists, and those 
 who are invested by the municipal constitution and 
 laws of a country with this quality or character, and 
 none others, are citizens of the society. 
 
 This investiture must be in pursuance of the laws 
 of the society by which a change in citizenship can be 
 
 effected. 
 
 17 
 
130 THE LAW OF CITIZENSHIP 
 
 Prior to the passage of a general naturalization law 
 by the congress of the United States, the states in 
 their individual capacity took it upon themselves to 
 legislate on this question, and to prescribe the method 
 by which membership in these respective states might 
 be acquired. 
 
 When, however, the act of 1802 was passed, these 
 rules as prescribed by the different states were of 
 necessity abrogated, and naturalization was alone 
 possible under the acts of the United States. 
 
 EXPATRIATION. 
 
 The alien seeking citizenship by naturalization in 
 the United States comes from a foreign society. Any 
 rules or regulations which may confer the right of 
 expatriation on citizens of the United States do not in 
 any wise affect the rights of such alien to leave his 
 country ; it matters not what may or may not be the mu- 
 nicipal rules as established in the United States. These 
 rules do not and cannot govern the act of departure 
 of an alien from the country of his origin, nor are they 
 under any circumstances applicable to his case. This 
 right to expatriate himself from the country of his 
 origin, and his right of departure therefrom, is regu- 
 lated by such rules and regulations as govern in the 
 country of his origin. Upon the rules no tribunal in 
 the United States can definitely pass any judgment 
 which will be of any validity in the country where 
 such rules are prescribed. That these rules are differ- 
 ent in different countries is beyond a doubt, and the 
 effect of such rules is a matter of local autonomy in 
 each particular society. 
 
IN THE UNITED STATES. 131 
 
 THE PRESUMPTION. 
 
 The presumption upon which the courts of the 
 United States proceed is that the applicant had the 
 right to expatriate himself, and having done so pursu- 
 ant to his wishes and intent,, seeks citizenship by natu- 
 ralization in the United States. There is no inquiry- 
 instituted, nor is any examination prescribed either as 
 to law or fact, as regards the right of the applicant to 
 depart from the country of his origin. It is presumed 
 that he is in full exercise of his rights in this regard, 
 and no court presumes to pass upon the question. The 
 alien simply offers himself for citizenship in compliance 
 with the rules which govern naturalization in the 
 United States. 
 
 THE DECLARATION OP INTENT. 
 
 This is strictly an expression on the part of the alien 
 of his intention to renounce his allegiance to the coun- 
 try of his origin, and become a citizen of the United 
 States. It is nothing more and nothing less. It is en- 
 tered upon the records of the court, and nothing fur- 
 ther may be done by the applicant toward naturaliza- 
 tion by which citizenship is acquired. Asa matter of 
 record, this declaration of intent so made by the appli- 
 cant may raise a question of good moral character. It 
 is open to any person or persons to answer the declara- 
 tion of intent by furnishing evidence to show that the 
 applicant is not a fit and proper person to be admitted 
 to citizenship in the United States, and the court sit- 
 ting in the case may hear the parties, and pass judg- 
 ment, either allowing or disallowing the declaration of 
 the applicant, and permitting or refusing him the right 
 to proceed and perfect his naturalization. 
 
132 THE LAW OF CITIZENSHIP 
 
 A case in point is Spencer's case in 5 Sawyer, 195, 
 where evidence of conviction of a crime more than five 
 years prior to his application for naturalization, but 
 after arrival of the applicant at this country, was held 
 to be a bar to naturalization. 
 
 OTHER PREREQUISITES TO CITIZENSHIP. 
 
 After the declaration of intention to become a citi- 
 zen has been filed, the applicant shall remain in the 
 United States for a term of years, and during that time 
 shall sustain a good moral character. 
 
 By his acts and doings he shall attach himself to the 
 principles of the constitution of the United States, and 
 show himself to be well disposed to the good order 
 and happiness of the same. 
 
 Upon these points he is to furnish two reliable wit- 
 nesses, who will testify under oath in his behalf, and 
 submit to any examination which may have reference 
 to the applicant during his residence in the United 
 States, from the date of his arrival to the date of the 
 hearing on his application. 
 
 The applicant then takes the oath to support the 
 constitution of the United States, and renounce all al- 
 legiance and fidelity to every foreign power. 
 
 QUALIFIED NATURALIZATION. 
 
 Citizenship is not conferred until all the require- 
 ments of the naturalization laws have been complied 
 with. 
 
 Qualified naturalization cannot exist. Such a rela- 
 tion would be a stultification of the rights of autonomy 
 in the country in which such a principle was recognized. 
 To make naturalization depend on the laws of another 
 
IN THE UNITED STATES. 133 
 
 country, or to await the pleasure of some foreign sov- 
 ereign would work an injustice to man in his exercise 
 of his right of removal. 
 
 Were our courts obliged to await some act or some 
 authorization from a foreign government as a condi- 
 tion precedent before it proceeded to a hearing on a 
 petition of an alien for naturalization, the effect could 
 not be predicted, and the wrong which could thus be 
 done would be a hardship to the applicant. Mr. Fre- 
 linghuysen, secretary of state, to Mr. Cramer, October 
 19, 1882. 
 
 Any pre-existing obligations to the country of the 
 applicant's origin cannot be made subjects of inquiry. 
 Should the applicant subsequently return, the govern- 
 ment of the country in which he was naturalized will 
 not protect him as against their fulfilment or punish- 
 ment for default in their performance before his 
 departure. 
 
 EFFECT OF THE NATURALIZATION ON THE MINOR CHILDREN 
 OF THE APPLICANT. 
 
 The principle partus sequuntur patrem is here de- 
 monstrated. The act of the father carries with it a 
 change of citizenship ; this change, by implication, car- 
 ries with it a change in the citizenship of the minor 
 children, who thereby become citizens of the United 
 States. The children must, however, in order to be- 
 come citizens upon reaching majority, by virtue of the 
 act of naturalization of the parent, reside within the 
 United States. 
 
 Under section 2172 of the Kevised Statutes, 
 originally enacted in 1802, a child of a naturalized 
 
134 THE LAW OF CITIZENSHIP 
 
 citizen of the United States, in order to become him- 
 self a citizen of the United States, must dwell 
 therein. 
 
 The doctrine of the changing of an infant's national- 
 ity with the nationality and domicile of the father rests 
 on the assumption that such is the will of the father, 
 and that the change is in submission to his paternal 
 power. 10 Op. Atty.-Genls. 329. 
 
 Children born abroad of aliens who subsequently 
 emigrated to this country with their families and were 
 naturalized here during the minority of their children 
 are citizens of the United States. 
 
 A case in point is that of a Spanish subject by birth 
 who was naturalized in the United States in February, 
 1876, and thereupon his son, aged twenty, who was 
 born in the island of Cuba, applied to the state de- 
 partment for a passport, stating that he had resided in 
 the United States for five years, but that it was his in- 
 tention to resume his residence in the Spanish 
 dominions, and engage in business there. 
 
 It was held that the son, being a minor at the time 
 of his father's naturalization, must be considered a 
 citizen within the meaning of section 2172, Revised 
 Statutes, and as such entitled to a passport, and that 
 the circumstance that he intended to reside in the 
 country of his birth did not make him less entitled 
 than if his destination were elsewhere. 15 Op. Atty.- 
 Genls. 114. 
 
 EXCEPTIONS TO THIS KULE. 
 
 The father must have complied with the naturaliza- 
 tion laws in order to become a citizen, by which act 
 the citizenship is conferred to his minor children. To 
 
IN THE UNITED STATES. 135 
 
 this general rule there is an exception, and probably 
 not more than one. For example. An alien comes 
 to the United States leaving his minor children in the 
 country of his origin. He takes no steps to bring 
 them to the United States during the period of time 
 essential for compliance with the naturalization laws, 
 and after he has been naturalized, he suffers his minor 
 children to remain in the country from which he de- 
 parted. Under these circumstances, the United States 
 cannot undertake to assume that the citizenship of the 
 father as acquired in the United States by him was 
 conferred on his minor children, who had remained in 
 the country of his origin, and also still continued to re- 
 main there. A claim by them for protection for reason 
 of the citizenship of the father would not be accorded, 
 not for reason of the principle that they followed the 
 citizenship of the father, but for reason of section 2172 
 of the Revised Statutes. 
 
 A case in point is that of " a boy of eighteen years, 
 who has never been out of Germany, but whose father 
 is a naturalized citizen of and resident in the United 
 States, is not entitled to obtain the interposition of 
 this government to secure him from military service in 
 Germany, nor to relieve him from being detained in 
 Germany for that purpose." Mr. Evarts, secretary of 
 state, to Mr. Caldwell, March 6, 1880. 
 
 Although this exception is special in its application 
 to this case, and for the reasons given protection was 
 properly refused, the boy being then of the age re- 
 quired for performance of a special obligation to the 
 country of his origin, the same could have been 
 avoided had the father taken him to his own place of 
 
136 THE LAW OF CITIZENSHIP 
 
 residence in the United States when he was of such 
 age as to permit of his departure from the country of 
 his nativity. It does not decide as fully as might be 
 wished the question of citizenship ; it only decides 
 that the government of the United States would not 
 interfere to prevent the German government in im- 
 posing an obligation which was then existing, and 
 while he still remained within the jurisdiction of 
 the German government. 
 
 The case of Robert Emden was this. He was 
 born in Switzerland in 1862, and at the time of his 
 application to the United States government for pro- 
 tection in 1885, he had never lived in the United 
 States. 
 
 His father, a Swiss by origin, was naturalized in 
 New York in 1854, but soon afterward returned to 
 Switzerland, where he continued afterward to reside. 
 The protection was denied, and the conclusion reached, 
 that in order to be entitled to protection, he must 
 emigrate to the United States, and be naturalized. 
 
 " Undoubtedly by the law of nations an infant 
 child partakes of his father's nationality and domicile. 
 But there are two difficulties in the way of applying 
 this rule to the present case. In the first place, 
 a parent's nationality cannot, especially when pro- 
 duced by naturalization, be presumed to be adhered to 
 after a residence in the country of origin for so long a 
 period as in the present case. 
 
 " In the second place, the rule as to children only 
 applies to minors, since when the child becomes 
 of age, he is required to elect between the country of 
 his residence and the country of his alleged technical 
 
IN THE UNITED STATES. 137 
 
 allegiance. Of this election, two incidents are to 
 be observed. 
 
 "When once made, it is final, and it requires no 
 formal act, but may be inferred from the conduct 
 of the party from whom the election is required." F. 
 R of U. S., 1885, page 811. 
 
 Although this protection may be denied, and the 
 rule as laid down guide the action of the government 
 of the United States, yet it does not follow, because 
 the protection is refused as in Emden's case, that he 
 may not be regarded as a citizen of the United States 
 by Switzerland. The regulation which requires resi- 
 dence in the United States is municipal, and the 
 acquisition of citizenship is by municipal rules pre- 
 scribed by the different states ; notwithstanding this, 
 suppose that Switzerland should hold that Emden was 
 by descent a citizen of the United States, as the son 
 of a citizen of the United States, being born of parents 
 residing abroad, not under the rule as laid down in 
 1802, but under the international common law rule. 
 
 Reverse the rule, and suppose that a citizen of the 
 United States had become a naturalized citizen of 
 Switzerland, and should then return to the United 
 States, and should there reside, and his son should be 
 born in the United States, and always reside there 
 with the father, the United States would hold, under 
 the rule of 1868, that he was a child born of a subject 
 of a foreign power. This would seem to be the rule 
 which should govern. 
 
 A son cannot be held to perform the duties incum- 
 bent on a father unfulfilled before emigration. 
 
 The case was where the son of a naturalized citizen 
 18 
 
138 THE LAW OF CITIZENSHIP 
 
 of the United States, who had emigrated from Spain, 
 was called upon to perform his father's military service. 
 The son was living in Spain, and within the jurisdic- 
 tion of the government of that country, and the de- 
 mand was made upon him to perform his father's ser- 
 vices. 
 
 It was held that : " The son living in Spain, of a 
 naturalized citizen of the United States, cannot, con- 
 sistently with the laws of nations, be required by that 
 country ' vicariously ' to perform his father's military 
 services." 
 
 EFFECT OF NATURALIZATION ON THE WIFE OF THE APPLI- 
 CANT. 
 
 An alien migrates to the United States from the 
 country of his origin with a wife born in the same 
 country as is the applicant. He becomes a citizen by 
 naturalization, pursuant to the rules and regulations 
 therefor made and provided. This act confers upon 
 his wife the same citizenship as that acquired by the 
 husband under the laws of the United States. 
 
 The same principle governs as in case of the minor 
 children. 
 
 The statute, however, does not declare that residence 
 of the wife in the United States is an essential requisite 
 to her acquisition of the rights and privileges of a 
 citizen. 
 
 It would seem unnecessary that any particular pro- 
 vision should be made to meet these cases, as they 
 seem to be provided for by implication under section 
 2172 of the Revised Statutes. 
 
 The change is assumed to be made in submission to 
 the husband's paternal power. 
 
IN THE UNITED STATES. 139 
 
 DECLARATION OP INTENTION DOES NOT CONFER RIGHTS OP 
 CITIZENSHIP WITHIN THE UNITED STATES. 
 
 When the applicant has filed his intention to be- 
 come a citizen of the United States, by this act he has 
 not made any change from his former allegiance ; he 
 has declared what he may do at some future date, pro- 
 vided no objections are entered to prevent his execu- 
 tion of his purpose in the courts at the final hearing 
 on his application. This does not confer any rights ; 
 he remains subject to the laws precisely as other resi- 
 dents whether citizens or not within the United States, 
 but cannot partake in the representation, or be repre- 
 sented in the lawmaking branch of the government. 
 He is not entitled to the right of suffrage, which a 
 citizen can exercise, and by the exercise of which he 
 tacitly subscribes to the compact of government under 
 which he. lives. 
 
 Although, in some of the states, the right of suffrage 
 is conferred on males of foreign birth, who have de- 
 clared their intentions to become citizens according to 
 the United States naturalization laws, as in Indiana, 
 Wisconsin, Minnesota, Kansas, Missouri, Arkansas, 
 Texas, Oregon, Colorado, Alabama, Florida and 
 Louisiana, this must be viewed as being conferred by 
 a mere municipal state regulation, which in itself is 
 dangerous. Certainly, it cannot be expected that the 
 national government would take any cognizance of this 
 fact, in passing upon the right to protection when 
 abroad of such an alien who would attempt to claim 
 protection because he had declared his intent to be- 
 come a citizen of the United States, and had exercised 
 the right of suffrage in some fixed locality within the 
 
140 THE LAW OF CITIZENSHIP 
 
 United States. Not until the alien has been finally 
 admitted to citizenship is he a citizen, and such only 
 are entitled to protection when abroad. It is doubt- 
 ful if in these states, by which this right of suffrage is 
 conferred upon such aliens as have declared their 
 intent to become citizens, carries with it the right 
 to represent citizens of these states in the legislative 
 branch of the local government. 
 
 DECLARATION OF INTENTION TO BECOME A CITIZEN OF THE 
 UNITED STATES DOES NOT CONFER RIGHTS OF CITIZEN- 
 SHIP WITHOUT THE UNITED STATES. 
 
 An alien having simply declared his purpose to 
 become a citizen, and going abroad, does not take 
 with him any right to claim protection. He may 
 go to the country of his origin ; going to that country, 
 he simply returns as a subject of the government 
 of that country, for he has never changed his allegi- 
 ance. 
 
 Declaration of intention, to become a citizen does 
 not clothe the individual with the nationality of this 
 country so as to enable him to return to his native 
 land without being subject to all the laws thereof. 
 
 The rule is not upheld with the same stringency in 
 case the applicant for citizenship in the United States 
 goes to a country other than the one of origin. 
 
 A declaration of intention to accept nationality may 
 give the declarant the quasi right to protection by the 
 United States, as against a third sovereign. P. R. of 
 U. S., 1884, p. 552; F. R of U. S., 1884, p. 560. 
 
 Under this rule, each case must be considered with 
 a view to two important points : 
 
 Does the applicant for citizenship depart after filing 
 
IN THE UNITED STATES. 141 
 
 his declaration with the intent of making his absence 
 of a temporary character; or, does the applicant 
 depart with the intent of making his absence of a 
 permanent character, sine animo revertendi ? 
 
 In the first instance, the government may remon- 
 strate against any interference on the part of the govern- 
 ment of his origin to restrain him from perfecting his 
 naturalization. This can only be a remonstrance, and 
 not a demand as of right, in the sense of a claim upon 
 him as a citizen of the United States as against a 
 claim of the government of the country of his origin, 
 for the performance of existing duties and obligations 
 as a citizen of that country. 
 
 As against a third and disinterested government, 
 the claim can be made as of right, for that country 
 can have no claim upon him different from what it has 
 on any sojourner within its territory. 
 
 In the case of Koszta. He had declared his intention 
 to become a citizen of the United States, and went 
 temporarily to the territory of a third sovereign. He 
 went to Turkey, the country of his original allegiance 
 being Austria. While in Turkey he was arrested by 
 Austrian officials. He went animo revertendi, and 
 the government of the United States asserted its right 
 as against any interference with him, in the perfection 
 of his intent and purpose to become a citizen of the 
 United States. 
 
 In the case of Burnato. He was a Mexican by birth ; 
 came to the United States; declared his intent to 
 become a citizen of the United States ; took up his resi- 
 dence in the United States, and temporarily returned 
 to Mexico; the Mexican government held him for 
 
142 THE LAW OF CITIZENSHIP 
 
 military service. The interference of the government 
 of the United States released him. 
 
 This should be taken as one of those exceptional 
 cases, which it was possible to enforce as against 
 Mexico, but which has not been as successfully en- 
 forced against some other countries. 
 
 The rule as laid down by Mr. Frelinghuysen as 
 above quoted, as among the possibilities that such 
 a claim can be successfully presented, but not as 
 a positive certainty. 
 
 In the second instance, the case of Walsh was some- 
 what different. Mr. Walsh came to the United 
 States, declared his intention to become a citizen, and 
 immediately thereafter established himself in business 
 in Mexico ; by so doing he disrupted his residence in the 
 United States, and failed to show an intent of maintain- 
 ing a continuous residence in the United States. 
 
 It was held that he left the United States sine 
 animo revertendi, and protection was refused him. 
 
 In the case of Abdellah Saab, a native of Turkey, 
 who had declared his intention to become a citizen of 
 the United States, it was held, that so far as his 
 political rights were concerned, he could have no 
 claim on the government in case of return to his 
 native country. Mr. Bayard, secretary of state> to 
 Mr. Williams, October 2y, 1885 ; Mr. Bayard, secretary 
 of state, to Mr. Cain, January 28, 18.86. 
 
 DECLARATION OP INTENTION TO BECOME AN AMERICAN 
 CITIZEN MAY CONFER RIGHTS TO PROTECTION IN SEMI- 
 CIVILIZED COUNTREES. 
 
 This rule proceeds upon the civilized relations as 
 existing between members of the family of nations as 
 
IN THE UNITED STATES. 143 
 
 contra-distinguished from the barbarous or less civil- 
 ized world. It is more for reason of that general 
 protection which all civilized nations alike furnish to the 
 inhabitants of civilized nations as against barbarians. 
 
 "Although a mere declaration of intent does not 
 confer citizenship, yet under peculiar circumstances, 
 in a Mohammedan or semi-barbarous land, it may 
 sustain an appeal to the good offices of a diplomatic 
 representative of the United States in such land." Mr 
 Cass, secretary of state, to Mr. De Leon, August 18, 
 1858. 
 
 The interference in Martin Koszta's case, proceeded 
 in part upon these grounds. Mr. Marcy, secretary of 
 state, to Mr. Marsh, August 26, 1853. 
 
 FRAUDULENT NATURALIZATION. 
 
 The act of naturalization is a matter of record, and 
 is so made by statute. The admission of the appli- 
 cant to citizenship is a naturalization judgment of the 
 court, and is so recorded. Spratt v. Spratt, 4 Peters, 
 393. 
 
 The record of naturalization is prima facie evidence 
 of the facts which it recites. It is not, however, con- 
 clusive. 
 
 In the case of Moses Stern, whose certificate of 
 naturalization recited all the facts required under the 
 naturalization laws, it was found upon investigation, 
 as a matter of fact, that he had not resided uninter- 
 ruptedly for a term of five years within the United 
 States. 
 
 Mr. Stern was a native of Germany; had been 
 naturalized in the United States, and returned to 
 
144 THE LAW OF CITIZENSHIP 
 
 Germany. There he claimed rights, privileges and 
 immunities, as a citizen of the United States. His 
 claim was considered with the above result, and the 
 protection refused. Mr. Fish, secretary of state, to 
 Mr. Wing, April 6, 1871. 
 
 It is very often the case that certificates of natural- 
 ization bear on their face errors which are fatal ; in 
 such cases, it is within the power of the authorities 
 who are to consider the claim to protection made 
 under them to refuse their protection. 
 
 The same authorities can pass upon the question 
 whether or not protection shall be accorded where the 
 certificate of naturalization not bearing errors on the 
 face, yet are traversed, and disputed facts arise ; they 
 must pass upon the question and ascertain the correct- 
 ness of the recitals before the protection is extended. 
 There is no other way by which to prevent fraud ; for 
 the government ought not to extend protection to 
 those claiming under fraudulent certificates of natural- 
 ization. Mr. Fish, secretary of state, to Mr. Moran, 
 February 16, 1877. Mr. Bayard, secretary of state, to 
 Mr. Francis, May 20, 1885. 
 
 THE RIGHT TO PROTECTION WHEN WITHIN THE UNITED 
 STATES, OP CITIZENS OF THE UNITED STATES. 
 
 When once admitted to citizenship, whether by 
 descent, by naturalization, or marriage, all citizens are 
 equal in the enjoyment of rights, privileges and im- 
 munities when within the limits of the United States. 
 
 THE RIGHT OP EXPATRIATION AS APPERTAINING TO CIT- 
 IZENS OP THE UNITED STATES. 
 
 The act of congress, adopted July 27, 1868, is self- 
 explanatory. 
 
IN THE UNITED STATES. 145 
 
 Prior to the passage of this act, the right had been 
 declared as an existing right by the publicists. Mr. 
 "Webster, secretary of state, to Mr. Thompson, July 8, 
 1842, laid down the rule as follows: "The United 
 States have not passed any law restraining their own 
 citizens, native or naturalized, from leaving the coun- 
 try and forming political relations elsewhere. 
 
 " Nor do other governments in modern times at- 
 tempt any such thing. It is true that there are 
 governments which assert the principle of perpetual 
 allegiance ; yet, even in cases where this is not rather a 
 matter of theory than of practice, the duties of this 
 supposed continuing allegiance are left to be demanded 
 of the subject himself, when within the reach of the 
 power of his former government, and as exigencies 
 may arise, and are not attempted to be enforced by 
 the imposition of previous restraint preventing men 
 from leaving their country." 
 
 " The individual right of expatriation being admitted, 
 the correlative right of the state to determine what 
 acts are to be taken as evidence of such expatriation 
 necessarily follows — it is a necessary and inevitable 
 corollary." Mr. Fish, secretary of state, to Mr. Davis, 
 June 28, 1875. 
 
 Although the right of expatriation was at one time 
 denied in this country (Williams' case, Whart. St. Tr., 
 652), it is now regarded as established in international 
 law. Santissima Trinidad, 7 Wheat. 283 ; Portier v. 
 LeRoy, 1 Yeates (Penn.), 371; Jansen v. The Vrow 
 Christina Magdelena, Bee Adm. 11, 23; Talbot v. 
 Jansen, 3 Dall. 383. 
 
 The United States recognize the right of voluntary 
 19 
 
146 THE LAW OF CITIZENSHIP 
 
 expatriation, subject to such limitations as congress 
 may impose. 8 Op. 139, Cushing, 1856. 
 
 A citizen of the United States, native or naturalized, 
 may change his allegiance, provided it be done in time 
 of peace, and for a purpose not directly injurious to 
 the interests of the country. 9 Op. 69, Black, 1857. 
 
 The natural right of every free person who owes no 
 debts, and is not guilty of any crime, to leave the 
 country of his birth, in good faith and for an honest 
 purpose, the privilege of throwing off his natural 
 allegiance and substituting another in its place, the 
 general right, in a word, of expatriation, is incontest- 
 able. 9 Op. 356, Black, 1859. 
 
 The declaration in the act of July 27, 1868, chapter 
 249, that the right of expatriation is " a natural and 
 inherent right of all people," applies to citizens of the 
 United States as well as to those of other countries. 
 14 Op. 295, Williams, 1873. 
 
 The natural right of every free person, who owes no 
 debt, and is not guilty of any crime, to leave the 
 country of his birth in good faith and for an honest 
 purpose — the privilege of throwing off his natural 
 allegiance and substituting another allegiance in its 
 place — is incontestable. Christian Ernst's case, 9 Op. 
 356, Black, 1859. 
 
 Our knowledge of international law is not taken 
 from the municipal code of England, but from natural 
 reason and justice, from writers of known wisdom, and 
 from the practice of civilized nations ; and they are 
 all opposed to the doctrine of perpetual allegiance. Id. 
 
 In the United States, ever since our independence, 
 we have upheld and maintained the right of expatri- 
 
IN THE UNITED STATES. 147 
 
 ation by every form of words and acts, and upon the 
 faith of the pledge which we have given to it, millions 
 of persons have staked their most important interests. 
 Id. 
 
 A native born citizen of the United States, who has 
 been naturalized in a foreign country, and thus be- 
 comes a citizen or subject thereof, is to be regarded 
 as an alien ; and he cannot re-acquire American nation- 
 ality, except in conformity to laws of the United 
 States, providing, for the admission of aliens to citizen- 
 ship therein. Reply to President's questions, 14 Op. 
 295, Williams, 1873. 
 
 If a native American can expatriate himself, he 
 divests himself, by the very act of expatriation, as 
 well of the obligations as of the rights of a citizen. 
 He becomes, ipso facto, an alien ; his lands are escheat- 
 able, and the rights appertaining to citizenship, once 
 lost, cannot be recovered by residence, but he must go 
 through the formula prescribed by law, for the natural- 
 ization of an alien born. The Santissima Trinidad, 1 
 Brockenbrough, 478. 
 
 Any citizen of the United States, native or natural- 
 ized, may remove from the country and change his 
 allegiance, provided this be done in time of peace, and 
 for a purpose not directly injurious to the interests of 
 this government. Amther's case, 9 Op. 62, Black, 
 1857. 
 
 THE PRINCIPLE OP EXISTING AND UNFULFILLED OBLIGA- 
 TIONS. 
 
 In the United States by its local law, no impedi- 
 ment is offered to the exercise of the right of expatri- 
 ation. There seem to be no obligations arising from 
 
148 THE LAW OF CITIZENSHIP 
 
 fact of birth, nor for reason of citizenship which must 
 be performed before the emigrant from the United 
 States can lawfully depart, the failure to fulfill which 
 obligation would entail upon the emigrant on return 
 to the United States a punishment. There is no pre- 
 scription by which it is set forth in what manner 
 the departure shall be made. No permission is requi- 
 site ; no license is granted, and no record of depar- 
 tures and returns is kept by which to ascertain the 
 motive or the intent of the emigrant in leaving the 
 country. 
 
 THE MEANING OP THE TERM " EXPATRIATION." 
 
 The act of expatriation includes not only emigration 
 but also, naturalization. Under this rule the act 
 of departure in itself is emigration; if subsequent 
 to the departure the emigrant becomes naturalized in 
 a foreign country he then expatriates himself; thus by 
 expatriation he has lost his citizenship in the United 
 States. By the simple act of emigration the emigrant 
 does not lose his citizenship. 9 Op. Atty-Genls. 356. 
 
 THE RIGHT OP EXPATRIATION AS RECOGNIZED BY TREATIES 
 BETWEEN THE UNITED STATES AND OTHER COUNTRIES. 
 
 What are treaties ? 
 
 By the law of nations a treaty is a mutual pledge 
 of faith between sovereign powers. 1 Vattel, Law of 
 Nations, book 2, chapter 12. 
 
 It is a law under the constitution of the United 
 States. 
 
 All treaties made, or which shall be made under 
 the authority of the United States, should be the 
 supreme law of the land. 1 Kent's Com. 162. 
 
IN THE UNITED STATES. 149 
 
 It is made by the president of the United States, 
 provided two-thirds of the members of the senate 
 present concur. 
 
 A treaty of naturalization between the United 
 States and a foreign power does not yield to an act of 
 congress. It supersedes existing statutes on the same 
 subject so far as the existing statutes were applicable 
 to rights as between the citizens of the sovereign 
 powers contracting. Mr. Fish to Mr. Gushing, July 
 20, 1876, and Feb. 13, 1877. An abrogation of such a 
 treaty places the statute existing prior to the ratifica- 
 tion of the treaty again in force as regards the rights 
 of the citizens of the contracting parties. 
 
 As between foreign and independent sovereign 
 powers, recognized in the family of nations, the stipu- 
 lations in the treaties are held to be declarations of the 
 law of the land which govern the subject-matter to 
 which the treaties refer. 
 
 The decision in Turner vs. The American Baptist 
 Missionary Union, that a treaty with Indian tribes 
 has the same dignity and effect as a treaty with 
 a foreign power, being a treaty within the constitution, 
 and the supreme law of the land is not in point ; 
 no more than is the rule that a statute stands on equal 
 footing with a treaty with a foreign power. 
 
 A foreign government takes no cognizance of a 
 municipal statute ; it adheres to the treaty which is 
 expressive of the statute, and in most countries is 
 identical. 
 
 As between a statute and a treaty with an Indian 
 tribe, one of the wards of the nation, the footing may 
 be the same, but as between a statute and a foreign 
 
150 THE LAW OF CITIZENSHIP 
 
 independent sovereign power, the footing is different. 
 In the latter case, the principles of international law 
 govern and the abrogation of the treaty is to be by 
 the same power by which it was enacted, and is to. be 
 done by notice to the other contracting party in 
 accordance with usage as between sovereign states. 
 The president and two-thirds of the senate present 
 can abrogate that which it has made. Mr. Fish, 
 secretary of state, to Mr. Cushing, February 13, 1817 
 
 THE TREATIES ENTERED INTO BETWEEN THE UNITED 
 STATES AND OTHER FOREIGN POWERS ON NATURALIZA- 
 TION AND EXPATRIATION WERE WITH THE FOLLOWING- 
 SOVEREIGN STATES. 
 
 The North German union, kingdom of Bavaria, 
 kingdom of Wurtemberg, grand duchy of Baden, 
 duchy of Hesse-Darmstadt, Great Britain, kingdom of 
 Belgium, Austro-Hungarian monarchy, kingdom of 
 Denmark, kingdom of Norway and Sweden, republic 
 of Ecuador. 
 
 WHAT CHANGES DID THESE TREATIES MAKE ON EXISTING 
 STATUTES, IN THEIR EFFECT ON EXPATRIATION ? 
 
 The right was one which was acknowledged and 
 recognized in the compact of government by which 
 the government was founded. So far as the effect of 
 these treaties is concerned on the rights of the citizens 
 of the United States, they worked no change in their 
 status to the government. The right to depart to the 
 particular sovereign states with which the treaties 
 were made, existed prior to the ratification of the 
 treaties. The right existed to depart to sovereign 
 states other than to those with which the treaties 
 were made. The right is a general right and is not 
 
IN THE UNITED STATES. 151 
 
 limited in its exercise to any sovereign state to the 
 exclusion of others. 
 
 The law is "citizens of the United States possess 
 the right of voluntary expatriation subject to such 
 limitations in the interest of the state as the law of 
 nations or the acts of congress may impose." 8 Op. 
 Atty-Genls. 139. 
 
 The rule in Anther's case is as follows: "Any 
 citizen of the United States, native or naturalized, 
 may remove from the country and change his alle- 
 giance, provided this be done in time of peace and for 
 a purpose not directly injurious to the interests of this 
 government." 9 Op. Atty-Genls. 62. 
 
 The act of July 27, 1868, which was merely declara- 
 tory of an existing right and of a right which was 
 exercised, was not changed by the treaties. 
 
 THE RIGHT OF PROTECTION WHEN ABROAD OP NATURAL- 
 IZED CITIZENS OP THE UNITED STATES. 
 
 An alien who emigrates to the United States and 
 becomes a citizen by naturalization is adjudged to be 
 a citizen by a court of record. Judgment is entered 
 to that effect after final hearing. The court proceeds 
 upon the presumption that the applicant makes his 
 application with right, so far as his relations and 
 status to the country of his origin are concerned. 
 These relations are not made matters of inquiry in the 
 court in which the application for citizenship is made ; 
 they are questions which the laws of the country of 
 the applicant's origin must determine. By the treaties 
 on naturalization, as ratified by and between the 
 United States and other sovereign countries, certain 
 
152 THE LAW OF CITIZENSHIP 
 
 rules have been adopted. These rules do not apply to 
 naturalized citizens when abroad in countries other 
 than those of their origin. In those countries no 
 questions can arise of a like nature ; they are equally 
 entitled to protection with all other citizens of the 
 United States. 
 
 " In regard to the protection of our citizens in their 
 rights at home and abroad we have in the United 
 States no law which divides them into classes or makes 
 any difference whatsoever between them." 9 Op. 
 Atty-G-enls. 356. 
 
 THE RULES AS LAID DOWN WITH CERTAIN SOVEREIGN 
 
 STATES. 
 
 The Rule Which Governs with the North German Union. 
 
 Article II. A naturalized citizen of the one party, 
 on return to the territory of the other party, remains 
 liable to trial and punishment for an action punishable 
 by the laws of his original country and committed 
 before his emigration ; saving, always, the limitation 
 established by the laws of his original country. 
 
 The Rule Which Governs with Grand Duchy of Baden. 
 
 Article II. A naturalized citizen of the one party, on 
 return to the territory of the other party, remains 
 liable to trial and punishment for an action punish- 
 able by the laws of his original country, and committed 
 before his emigration, saving, always, the limitation 
 established by the laws of his original country, or any 
 other remission of liability to punishment. In partic- 
 ular, a former Badener, who, under the first article, is 
 to be held as an American citizen, is liable to trial and 
 
IN THE UNITED STATES. 153 
 
 punishment according to the laws of Baden, for non- 
 fulfillment of military duty. 
 
 1. If he has emigrated after he, on occasion of the 
 draft from those owing military duty, has been en- 
 rolled as a recruit for service in the standing army. 
 
 2. If he has emigrated whilst he stood in service 
 under the flag, or had a leave of absence only for 
 a limited time. 
 
 3. If, having a leave of absence for an unlimited 
 time, or belonging to the reserve or to the militia, 
 he has emigrated after having received a call into 
 service, or after a public proclamation requiring his 
 appearance, or after war has broken out. 
 
 On the other hand, a former Badener, naturalized 
 in the United States, who, by or after his emigration, 
 has transgressed or shall transgress the legal provisions 
 on military duty by any acts or omissions other than 
 those above enumerated in the clauses numbered one 
 to three, can, on his return to the original, neither be 
 held subsequently to military service nor remain 
 liable to trial and punishment for the non-fulfillment 
 of his military duty. Moreover, the attachment on 
 the property of an emigrant for non-fulfillment of his 
 military duty, except in the cases designated in the 
 clauses numbered one to three, shall be removed 
 so soon as he shall prove his naturalization in the 
 United States according to the first article. 
 
 The Rule which Governs •with the Kingdom op Wuetembekg. 
 Article II. A naturalized citizen of the one party, 
 on return to the territory of the other party, remains 
 liable to trial and punishment for an action punishable 
 20 
 
154 THE LAW OF CITIZENSHIP 
 
 by the laws of his original country, and committed be- 
 fore his emigration; saving, always, the limitation 
 established by the laws of his original country, or any 
 other remission of liability to punishment. 
 
 The Rule which Governs with the Grand Duchy of Hesse-Darm- 
 stadt. 
 
 Article II. A naturalized citizen of the one party, 
 on return to the territory of the other party, remains 
 liable to trial and punishment for an action punish- 
 able by the laws of his original country, and commit- 
 ted before his emigration ; saving, always, the limita- 
 tion established by the laws of his original country. 
 
 The Rule which Governs with the Kingdom of Bavabia. 
 
 Article II. A naturalized citizen of the one party, 
 on return to the territory of the other party, remains 
 liable to trial and punishment for an action punishable 
 by the laws of his original country and committed 
 before his emigration ; saving, always, the limitation 
 established by the laws of his original country or 
 any other remission of liability to punishment. 
 
 The Rule which Governs with the Kingdom op Norway and Sweden. 
 
 Article II. A recognized citizen of the one party, 
 on returning to the territory of the other, remains 
 liable to trial and punishment for an action punish- 
 able by the laws of his original country and commit- 
 ted before his emigration, but not for the emigration 
 itself; saving, always, the limitation established by 
 the laws of his original country and any other remis- 
 sion of liability to punishment. 
 
 The Rule which Governs with the Kingdom op Denmark. 
 
 Article II. If any such citizen of the United 
 
IN THE UNITED STATES. 155 
 
 States, as aforesaid, naturalized within the kingdom 
 of Denmark as a Danish subject, should renew his 
 residence in the United States, the United States gov- 
 ernment may, on his application, and on such condi- 
 tions as that government may see fit to impose, re- 
 admit him to the character and privileges of a citizen 
 of the United States, and the Danish government shall 
 not, in that case, claim him as a Danish subject on 
 account of his former naturalization. 
 
 In like manner, if any such Danish subject, as afore- 
 said, naturalized within the United States as a citizen 
 thereof, should renew his residence within the king- 
 dom of Denmark, his majesty's government may, on 
 his application, and on such conditions as that govern- 
 ment may think fit to impose, readmit him to the 
 character and privileges of a Danish subject, and the 
 United States government shall not, in that case, 
 claim him as a citizen of the United States on account 
 of his former naturalization. 
 
 The Rule which Governs with the Atjstro- Hungarian Monarchy. 
 
 Article II. A naturalized citizen of the one party, 
 on return to the territory of the other party, remains 
 liable to trial and punishment for an action punish- 
 able by the laws of his original country committed 
 before his emigration; saving, always, the limitation 
 established by the laws of his original country and any 
 other remission of liability to punishment. 
 
 In particular, a former citizen of the Austro-Hunga- 
 rian monarchy, who, under the first article, is to 
 be held as an American citizen, is liable to trial and 
 punishment, according to the laws of Austro-Hungary, 
 for non-fulfillment of military duty. 
 
156 THE LAW OF CITIZENSHIP 
 
 1. If he has emigrated, after having been drafted at 
 the time of conscription and thus having become 
 enrolled as a recruit for service in the standing army. 
 
 2. If he has emigrated whilst he stood in service 
 under the flag, or had a leave of absence only for a 
 limited time. 
 
 3. If, having a leave of absence for an unlimited 
 time, or belonging to the reserve or to the militia, he 
 has emigrated after having received a call into service, 
 or after a public proclamation requiring his appear- 
 ance, or after war has broken out. 
 
 On the other hand, a former citizen of the Austro- 
 Hungarian monarchy naturalized in the United States, 
 who, by or after his emigration has transgressed the 
 legal provisions on military duty by any acts or omis- 
 sions other than those above enumerated in the clauses 
 numbered one, two and three, can, on his return to 
 his original country, neither be held subsequently 
 to military service nor remain liable to trial and pun- 
 ishment for the non-fulfillment of his military duty. 
 
 The Bulb which Governs with the Kingdom op Belgium. 
 
 Article III. Naturalized citizens of either contract- 
 ing parties, who shall have resided five years in the 
 country which has naturalized them, cannot be held to 
 the obligation of military service in their original 
 country, or to incidental obligation resulting there- 
 from, in the event of their return to it, except in 
 cases of desertion from organized and embodied mili- 
 tary or naval service, or those that may be assimilated 
 thereto by the laws of that country. 
 
IN THE UNITED STATES. 157 
 
 The Rule which Governs with the Republic of Ecuador. 
 
 Article II. If a naturalized citizen of either coun- 
 try shall renew his residence in that where he was 
 born, without an intention of returning to that where 
 he was naturalized, he shall be held to have reassumed 
 the obligations of his original citizenship and to have 
 renounced that which he had obtained by natural- 
 ization. 
 
 The rule which governs with Great Britain is gen- 
 eral and has no restrictions. 
 
 COMPARISON OF THESE RULES. 
 
 The specification made in some of these rules and 
 the omission to specify in other of the rules do not 
 contradict the international common law rule that 
 when a criminal or an emigrant, who has failed to 
 fulfill existing obligations to his government prior to 
 his departure, returns to the country of his origin, he 
 must perform them regardless of his citizenship. The 
 international common law rule must govern, and is 
 applicable in all cases where there has been a breach 
 of law prior to the departure of the emigrant, to which 
 application of the rule the government of the country, 
 in which the emigrant has become a naturalized cit- 
 izen, should not object upon explanation of the existing 
 facts in the case. 
 
 COMPARISON OP THESE RULES WITH THE RULES WHICH 
 GOVERNED WITH THESE COUNTRIES PRIOR TO THE RATI- 
 FICATION OF THE TREATIES. 
 
 The general rule was laid down by Attorney-Gen- 
 eral Black in 1859, as follows: "In regard to the 
 protection of our citizens at home and abroad, we 
 
158 THE LAW OF CITIZENSHIP 
 
 have in the United States no law which divides them 
 into classes or makes any difference whatever between 
 them." 9 Op. Atty-Grenls. 356. 
 
 In the early practice prior to the ratification of the 
 treaties of naturalization, two classes of cases arose, 
 the first, punishment for wrongs committed by the 
 emigrant prior to his departure, and second, liability to 
 perform military duty due and unperformed before 
 departure. 
 
 Under the first class was the case of Henry 
 D'Oench. He migrated from Prussia, became a 
 naturalized citizen of the United States, returned 
 to the country of his origin, and was there held as 
 a fugitive from justice for reason of condemnation to a 
 punishment for violation of the Prussian law previous 
 to his departure. It was held that the change of 
 national character subsequent to the alleged offense 
 does not release an offender from penalties previously 
 incurred when legally brought within the jurisdiction 
 of the country whose laws have been violated. Mr. 
 Marcy, secretary of state, November 16, 1853. 
 
 The same rule was maintained as to Austria. "An 
 Austrian subject who commits an offense against 
 Austrian laws, and then, after becoming a naturalized 
 citizen of the United States returns voluntarily to Aus- 
 tria, cannot rightfully set up his citizenship in the 
 United States as a bar to a prosecution in Austria for 
 such an offense." Mr. Marcy, secretary of state, to 
 Mr. Jackson, April 6, 1855. 
 
 In a case with the kingdom of Hanover, the follow- 
 ing rule was laid down : " The liability of a citizen 
 of the United States before the courts of Hanover, 
 
IN THE UNITED STATES. 159 
 
 cannot depend upon the question whether he is 
 a native or naturalized citizen, but upon the question 
 only whether he has committed any offense against 
 Hanoverian law. Expatriation is no offense, and we 
 cannot permit an unreasonable distinction to be made 
 between different classes of our citizens." Mr. Cass, 
 secretary of state, to Mr. Wright, December 9, 1859. 
 
 Under the second, the rule is laid down as to 
 the duty to perform military service as follows: 
 "The Prussian government requires of all its subjects 
 a certain amount of military service. However onerous 
 this may be, it is purely a matter of domestic policy 
 in which no foreign government has a right to interfere," 
 Mr. Everett to Mr. Barnard, January 14, 1853. 
 
 It is well known that most of the German states 
 require of their subjects a certain amount of military 
 service. If they emigrate before they perform it, and 
 becoming naturalized abroad, return for any purpose 
 to their native country, they are still liable to perform 
 the service. Mr. Morey, February 17, 1857. 
 
 In order to entitle a naturalized citizen's original 
 government to punish him for an offense, this must 
 have been committed whilst he was a subject, and 
 owed allegiance to that government. Mr. Cass, July 8, 
 1859. 
 
 European governments have maintained that the 
 obligation to perform military service devolves on 
 every subject as descendant from his parent, the fulfil- 
 ment of which duty is in the future, and when the age 
 is reached by the subject for the performance of the 
 duty, the authorities make the demand on the subject. 
 This demand once made holds the subject until he is 
 
160 THE LAW OF CITIZENSHIP 
 
 released therefrom, which may or may not happen, 
 the power being discretionary in the government, and 
 in individual cases it may or may not exercise the 
 same. The cases are few in which the release is 
 granted, and where property can be found in the 
 country which m.aj belong to the subject, or which 
 may fall to the subject by the laws of inheritance, 
 the same is sequestered and held by the government ; 
 or, in cases where none such is found, a fine is imposed 
 by due process of law in favor of the government, 
 which may be abated when the subject is found in the 
 country, and the subject held for military duty or at 
 times released wholly therefrom upon condition of his 
 departing from the country. All of these proceedings 
 are matters of domestic concern with which foreign 
 governments have no rights of interference, and yet 
 they have given rise to much discussion, all of which 
 could have been avoided had the subject followed the 
 rules by which his departure would have been sanc- 
 tioned, which are to seek from his government upon 
 application in the prescribed form a certificate of 
 emigration. 
 
 The effect of the certificate of emigration is to legal- 
 ize the departure and conditionally release the subject 
 from the performance of military service. The release 
 is not absolute, the practice being that an emigrant 
 who, in good faith, departs from his native country, 
 does so for the purpose of founding a home elsewhere, 
 not to remain away temporarily, or to make use of the 
 certificate solely for the purpose of avoiding military 
 service, and with the belief that having so done and 
 having clothed himself with a citizenship in some 
 
IN THE UNITED . STATES. 161 
 
 other country, lie can return and take up his residence 
 in the country of his origin, and with impunity escape 
 all obligations which devolve on his former fellow 
 countrymen. The intention is, and it is the practice 
 that such subjects, who apply for and obtain certificates 
 of emigration, shall leave the country of their origin, 
 and remain away unless return becomes necessary for 
 some temporary purpose, but not for residence if con- 
 tinued for a longer period than for two years. 
 
 There is no duty to perform obligations which arise 
 after emigration as between the United States and the 
 countries with which the treaties of naturalization were 
 made. 
 
 A person having served the required three years in 
 the German army, and being placed on the reserve rolls, 
 having emigrated in time of peace, when no existing 
 obligation to perform military service existed, and hav- 
 ing become naturalized in good faith after a residence 
 of five years in the United States, and who, although 
 temporarily in Germany, intends in good faith to re- 
 turn and reside in the United States, appears to be se- 
 cured by the terms of the treaty from punishment for 
 a failure to perform military service when the obliga- 
 tion arises after emigration. Mr. Fish, July 22, 1875. 
 
 This rule gives rise to a question which has not 
 been fully, decided as between the respective govern- 
 ments. A continuous obligation, one from which with- 
 out permission a German subject could not be ab- 
 solved, would practically bar the right of emigration 
 in this, that upon return punishment would be visited 
 upon such an emigrant. The military service is con- 
 tinuous up to the forty-fifth year, and the simple ser- 
 21 
 
162 THE LAW OF CITIZENSHIP 
 
 vice of three years is not a fulfilment of the duty, 
 should the rule be enforced. To return temporarily 
 would be to place the emigrant in the power of the 
 government to enforce the rule. It is the fulfilment 
 of all obligations which makes the departure secure, 
 and the compliance with existing regulations, such as 
 the obtaining of a certificate of emigration, is the legal 
 method of departure. 
 
 The United States justly maintain that obligations 
 cannot be such as cannot be absolved ; to this rule the 
 German government has not fully subscribed, although 
 great leniency has been shown in some cases. 
 
 The German policy is quite fully explained by the 
 following : It is impossible for this department to say 
 in advance what molestation naturalized American citi- 
 zens of German birth may meet with from the author, 
 ities of Germany, by reason of questions arising as to 
 their liability to military service there. In case of 
 arrest, however, they may be assured of all proper pro- 
 tection from this government and its representatives. 
 Mr. Blaine, April 7, 1881. 
 
 THE RIGHT TO PROTECTION OP CITIZENS OP THE UNITED 
 STATES WHEN ABROAD. 
 
 The rule, as laid down by the statutes of the United 
 States, draws no distinction between a citizen by de- 
 scent and a citizen by naturalization. This rule is auton- 
 omous. The United States cannot legislate for other 
 sovereign states. It can, however, declare to the world 
 its principles of government, and the natural rights 
 which are inherent in man all the world over. The 
 exceptions, if they may be called such, which the 
 United States has been forced to recognize, as to its 
 
IN THE UNITED STATES. 163 
 
 naturalized citizens upon return to the country of their 
 origin, are not in fact exceptions. 
 
 In the United States the rule is, that all citizens 
 when in foreign countries are entitled to its protection. 
 
 When its citizens go to foreign countries, they be- 
 come subject to its laws, and are amenable to its courts 
 of justice ; while there the government of the United 
 States will protect them against all undeserved indig- 
 nities. 
 
 While in foreign countries, citizens ot the United 
 States may be called upon to perform duties to the 
 governments of these countries. 
 
 A citizen of the United States who resides in a for- 
 eign country, and there has relations with the citizens 
 of that country, and has interests which the municipal 
 regulations guard and protect, may be called upon to 
 protect those interests in conjunction with the citizens 
 of that country, whose interests are likewise jeopar- 
 dized. 
 
 In particular is this the case when the country is in- 
 vaded by a foreign enemy. This duty is merely local. 
 A citizen of the United States can only be called upon 
 to defend his own interests and the interests of others, 
 in the locality in which the interests lie. 
 
 He cannot be called upon to enter the army for the 
 purpose of invading another country. Whatever he 
 does in this regard, he does voluntarily. If he enters 
 the army he cannot plead his citizenship, and ask the 
 government of the United States to free him from the 
 obligation which he has thus voluntarily assumed. 
 
164 THE LAW OF CITIZENSHIP 
 
 CITIZENS OF THE UNITED STATES MAY DIVEST THEM- 
 SELVES OF THEIR CITIZENSHIP AND ACQUIRE CITIZEN- 
 SHIP IN A FOREIGN COUNTRY. 
 
 "When a citizen of the United States surrenders his 
 citizenship to the United States, by application to the 
 government of a foreign country, and pursuant to the 
 application is admitted to citizenship in that country, 
 the act is his own voluntary act in the exercise of the 
 right to withdraw from the society of the United 
 States, a right which he reserved to himself when he 
 became a citizen thereof. 
 
 THE LAW OF A FOREIGN STATE CANNOT IN ITSELF CHANGE 
 THE CITIZENSHIP OF A CITIZEN OP THE UNITED STATES 
 TEMPORARILY OR PERMANENTLY RESIDING THEREIN. 
 
 There is no rule of international law which takes 
 away from a citizen the right to exercise his own free 
 will, as to whether he will remain a citizen of the 
 country from which he departd, or become a citizen of 
 the country to which he migrates. 
 
 The republic of Venezuela passed a law that all per- 
 sons visiting such state should be regarded as citizens 
 thereof. 
 
 The rule was applied to citizens of the United 
 States sojourning in Venezuela. 
 
 The United States took the ground that the position 
 could not be maintained, and the rule was not applied. 
 9 Op. Atty-Grenls. 356. 
 
 LONG RESIDENCE IN FOREIGN COUNTRIES BY CITIZENS OF 
 THE UNITED STATES. 
 
 There is no rule of law which denies to citizens of 
 the United States the right and privilege to reside in 
 foreign countries. It is open to citizens to live in all 
 
IN THE UNITED STATES. 165 
 
 parts and portions of the world. There must remain, 
 however, during the period of domicile abroad, some 
 tie of continued relation to the government. This 
 necessitates an investigation of each particular case 
 when the citizen makes claim for protection. In a 
 consideration of such cases, the rule must not be lost 
 sight of, that the government of the United States 
 cannot force other sovereign states or the particular 
 sovereign state, in which the citizen of the United 
 States who makes a claim for protection resides, to 
 accept its citizens as citizens of the country in which 
 the claimant for protection is domiciled. The govern- 
 ment must proceed upon the presumption that the acts 
 of the claimant were of his own intent, and if from such 
 acts the government can properly infer that the claim- 
 ant by his neglect of duties to the government of the 
 United States is not entitled to the protection asked 
 for, it may be denied him. 
 
 But this denial does not work a forfeiture of the 
 claimant's citizenship as a citizen of the United States. 
 It works as a punishment to him, for his failure to per- 
 form his duties to his country. It remains for him to 
 return to the United States, and re-establish his rela- 
 tions to his government. 
 
 " Domicile in a country of voluntary asylum may 
 suspend allegiance to the country of birth." Caignet vs. 
 Pettit, 2 Dall. 234. 
 
 PAYMENT OF TAXES. 
 
 This is an important and a controlling element in 
 many cases, which enters into a consideration of a 
 claim to protection made by a citizen who has enjoyed 
 a long residence in a foreign country. On this ground 
 
166 THE LAW OF CITIZENSHIP 
 
 protection may be denied him. The failure to con- 
 tribute to the support of the government and to leave 
 the burden on those citizens who remain within their 
 country, certainly works an injustice to those with 
 whom the compact was made to maintain and uphold 
 the government by the resident abroad. To shirk this 
 responsibility and then demand of those with whom 
 he agreed to contribute his share towards the welfare 
 of the government justifies those who remain in the 
 United States in denying protection to such individuals 
 who see fit to maintain and enjoy a domicile in a for- 
 eign state for a long period of time. Mr. Fish, secre- 
 tary of state, to Mr. Hepburn, December 20, 1870. 
 
 A citizen of the United States who for thirty-eight 
 years has resided in a foreign country, and has during 
 that period in no wise contributed to the support or 
 maintenance of his own government, cannot claim its 
 diplomatic intervention in his behalf. Mr. Fish, secre- 
 tary of state, to Mr. Niles, October 30, 1871. 
 
 When a citizen of the United States places himself 
 within the jurisdiction of a foreign government and 
 subjects himself and his property to its laws, and when 
 such citizen afterwards seeks the interference of the 
 United States to redress some wrong which he may 
 have suffered at the hands of such foreign government, 
 this government reserves to itself the right of deter- 
 mining not only on the merits of the particular claim 
 but also on the claimant's right to protection. It is for 
 this government to say whether the claim shall be 
 presented or not to the foreign government. Mr. Fre- 
 linghuysen, secretary of state, to Mr. Lowell, February 
 27, 1884. 
 
IN THE UNITED STATES, 167 
 
 A case in point is that of Bagur — resided in the 
 United States from 1852 to 1865, and in 1860 became 
 a naturalized citizen. In 1865 he returned to Spain, 
 taking his wife with him ; his children were born there, 
 and for twenty years he continued his residence in 
 that country. The fact that he has never voted or 
 held office in Spain, or taken part in any political 
 demonstration there may show that he is not a zealous 
 Spaniard, but does not prove him to have been a loyal 
 citizen of the United States. It was held " while there 
 is no allegation that he intended to return to the 
 United States, the inference to the contrary is rendered 
 very strong by his settlement in Spain as the place of 
 his children's birth and education, and by his failure 
 even now to make any effort to return." Moreover 
 there is no evidence that he ever contributed by pay- 
 ment of taxes or otherwise to the support of this 
 government. The facts furnish a presumption not re- 
 butted that he has abandoned his nationality, involv- 
 ing his minor children in the same abandonment. 
 Under these circumstances thus understood the lega- 
 tion will not accede to his request for a passport. Mr. 
 Porter, acting secretary of state, to Mr. Curry, January 
 4, 1886. 
 
 THE REVENUE AND INCOME TAX. 
 
 A state has the right to levy a tax on its citizens 
 resident abroad. The collection of such a tax is diffi- 
 cult. The authorities of the foreign state in which the 
 citizens reside cannot be called upon to make the col- 
 lections, nor is there any power to enforce them. 
 This, however, does not prevent notice to such citizens 
 residing abroad that such a tax is due and is to be 
 
168 THE LAW OF CITIZENSHIP 
 
 paid by them to the authorities of their country. 
 Bluntschli Voelker Recht, § 376. 
 
 This levy of tax and its non-payment has been 
 made an element of importance in the consideration 
 of the question whether protection should be extended 
 to such citizens residing abroad or not. F. R. of U. 
 S., 1871, p. 888; Idem, 1875, pp. 1, 488, 449; Idem, 
 1875, pp. 1, 479. 
 
 If found under these rules that such a citizen resid- 
 ing abroad who demands protection has not paid the 
 tax, it is questionable under the international common 
 law rule, whether the protection can be denied such 
 applicant. A state cannot pass and enforce a law on 
 aliens making them citizens contrary to their will, 
 when within the state, no more can a state declare its 
 citizens to be aliens for reason of failure to pay an in- 
 come tax when resident abroad. The rule is moral in 
 effect, not absolute as a matter of law. In an emer- 
 gency the protection should not be denied. For it 
 must be borne in mind that, as the tax cannot be col- 
 lected, yet there are citizens of other states within the 
 United States paying taxes as the American citizen 
 abroad is doing on property he may have there, and 
 both governments are in the same predicament as to 
 collection from its citizens abroad. 
 
 REBUTTAL TESTIMONY. 
 
 The investigation of the claim of protection as made 
 by a citizen of the United States when abroad, gives 
 to the claimant the right to rebut the evidence which 
 may be furnished to the government on either the 
 question of long continued domicile or non-payment of 
 
IN THE UNITED STATES. 169 
 
 taxes. Upon and after consideration of all the facts 
 in the case it remains for the government of the United 
 States to decide whether or not it will press the claim 
 for protection, as the claimant demands protection. 
 Mr. Frelinghuysen to Mr. Lowell, February 27, 1884. 
 Mr. Fish to Mr. Washburn, June 28, 1873. 
 
 REFUSAL TO EXTEND PROTECTION DOES NOT INVOLVE 
 LOSS OF CITIZENSHIP. 
 
 An applicant makes demand on his government for 
 protection. For reason either of long continued ab- 
 sence from his country, for non-payment of taxes to 
 his government, for non-payment of revenue or income 
 tax to his government, or for some other reason, he is 
 placed in a position to furnish rebuttal testimony on 
 which the government to which application for pro- 
 tection is made may Pass in order to decide whether 
 or not protection shall be extended to the applicant. 
 
 The strongest rule laid down is that by Attorney- 
 General Black in 9 Op. Atty-Genls. 62: "There is 
 no mode of renunciation by a citizen of his citizenship 
 prescribed. But if he emigrates, carries his family and 
 effects along with him, manifests a plain intention not 
 to return, takes up his permanent residence abroad, and 
 assumes the obligation of a subject to a foreign govern- 
 ment this would imply a dissolution of his previous 
 relations with the United States." 
 
 In other words there must be a perfect act of ex- 
 patriation which includes not only emigration but also 
 naturalization. 
 
 Nothing short of expatriation can work a loss of 
 citizenship. 9 Op. Atty-Genls. 356. 
 
 Therefore, unless the citizen has assumed the obliga- 
 22 
 
170 THE LAW OF CITIZENSHIP 
 
 tion of a subject to a foreign government, he still re- 
 mains an American citizen. It is the act of the citizen 
 in the exercise of his volition, expressed pursuant to 
 the prescriptions of the naturalization laws of the 
 country in which he resides, by which the citizenship 
 is abandoned. It is not the decree of the government 
 by which protection is refused to the applicant, even 
 if he is unable to satisfy his government by rebuttal 
 testimony. For example, in Bagur's case, which seems 
 to be the leading case, after a residence of twenty years 
 in Spain it was held that he had abandoned his 
 American citizenship. This ruling did not make him 
 a Spanish subject. There is no rule of law in Spain 
 by which it holds that the waifs of the United States 
 become Spanish subjects because the United States 
 deny to them passports. It works an inconvenience 
 in the applicant and may have the effect to cause his 
 return to the United States, but not as a Spanish sub- 
 ject, and necessitates his naturalization in the United 
 States. No more does it work an abandonment of 
 citizenship as to the children of Bagur born in Spain. 
 They are children of a citizen of the United States 
 born abroad, and remain such unless the parent changes 
 his nationality during their minority, and this change 
 does not deprive them of the right of election to re- 
 main citizens of the United States when they reach 
 majority. 
 
 NATURALIZED CITIZENS. 
 
 The rule is somewhat different as to naturalized citi- 
 zens upon return to the country of their origin. There 
 are many ties notwithstanding their naturalization, 
 which hold them to. the country of their origin ; these 
 
IN THE UNITED STATES. 171 
 
 may be business interests, family affection and relations 
 of patriotism, any or all of which may enjoin upoD 
 them a return to the country of their origin from time 
 to time, and for a temporary or permanent purpose. 
 
 It was early laid down as a rule, " that it can admit 
 of no doubt that the naturalization laws of the United 
 States contemplate the residence in the country of 
 naturalized citizens, unless they shall go abroad in the 
 public service or for temporary purposes." 
 
 The Case op Landan. He was naturalized in the 
 United States in 1854, he went to the Levant in 1857; 
 he retired to Vienna in 1868, and during the whole of 
 this period he was absent from the United States, and 
 continued the same until 1886, when he demanded 
 protection from the government of the United States. 
 
 It was held that Landan had evaded his duties of 
 citizenship by his non-residence, and none of them had 
 ever been performed by him. The protection was re- 
 fused. Mr. Bayard to Mr. Lee, July 24, 1886. 
 
 The Case of Ceanz. He was born in Hamburg, 
 Germany, of Austrian parents ; emigrated to the United 
 States ; was naturalized in 1882, left the United States 
 in 1888, with no intention to return to the United 
 States to reside ; is now a resident of Belgium, and 
 claims protection. It was held that he having no in- 
 tention to return to this country to reside, and take 
 upon himself the duties and obligations of a citizen of 
 the United States, that protection must be denied him. 
 Mr. Bayard to Mr. Tree, April 9, 1886. 
 
 "Voluntary expatriation by a naturalized citizen, 
 which forfeits a right to diplomatic intervention, may 
 be inferred from a long residence abroad in the place 
 
172 THE LAW OF CITIZENSHIP 
 
 of his birth, by non-payment of taxes and non-possession 
 of property in this country, and by failure to express 
 any intention to return." Mr. Frelinghuysen to Mr. 
 Lowell, February 27, 1884. 
 
 NATURALIZED CITIZENS UNDER THE TREATIES — THE 
 RULES UNDER THE TREATIES. 
 
 With the Grand Duchy of Hesse-Darmstadt. 
 
 Article IV. If a Hessian, naturalized in America, 
 but originally a citizen of the parts of the Grand 
 Duchy not included in the North German confedera- 
 tion, renews his residence in those parts without the 
 intent to return to America, he shall be held to have 
 renounced his naturalization in the United States. 
 Reciprocally, if an American, naturalized in the 
 Grand Duchy of Hesse (within the above described 
 parts), renews his residence in the United States with- 
 out the intent to return to Hesse, he shall be held to 
 have renounced his naturalization in the Grand Duchy. 
 
 The intent not to return may be held to exist, when 
 the person naturalized in the one country resides more 
 than two years in the other country. 
 
 With the Kingdom of Wurtemberg. 
 
 Article IV. If a Wurtemberger, naturalized in Amer- 
 ica, renews his residence in Wurtemberg without the in- 
 tent to return to America, he shall be held to have re 
 nounced his naturalization in the United States. Re- 
 ciprocally, if an American naturalized in Wurtemberg, 
 renews his residence in the United States, without the 
 intent to return to Wurtemberg, he shall be held to 
 have renounced his naturalization in Wurtemberg. 
 The intent not to return may be held to exist when 
 
IN THE UNITED STATES. 173 
 
 the person naturalized in the one country resides more 
 than two years in the other country. 
 
 With the Grand Duchy op Baden. 
 
 Article IV. The emigrant from the one state who, 
 according to the first article, is to be held as a citizen 
 of the other state, shall not on his return to his origi- 
 nal country be constrained to resume his former citizen- 
 ship; yet if he shall of his own accord re-acquire 
 it and renounce the citizenship obtained by natural- 
 ization, such a renunciation is allowed, and no fixed 
 period of residence shall be required for the recognition 
 of his recovery of citizenship in his original country. 
 
 With the North German Union. 
 
 Article IV. If a German naturalized in America re- 
 news his residence in North Germany, without the 
 intent to return to America, he shall be held to have 
 renounced his naturalization in the United States. 
 Reciprocally, if an American naturalized in North 
 Germany renews his residence in the United States, 
 without the intent to return to North Germany, he 
 shall be held to have renounced his naturalization in 
 North Germany. 
 
 The intent not to return may be held to exist when 
 the person naturalized in the one country resides more 
 than two years in the other country. 
 
 With the Kingdom of Bavaria. 
 
 Article IV. If a Bavarian, naturalized in America, 
 
 renews his residence in Bavaria, without the intent to 
 
 return to America, he shall be held to have renounced 
 
 his naturalization in the United States. Reciprocally, 
 
174 THE LAW OF CITIZENSHIP 
 
 if an AmericaD, naturalized in Bavaria, renews his resi- 
 dence in the United States, without the intent to return 
 to Bavaria, he shall be held to have renounced his 
 naturalization in Bavaria. 
 
 The intent not to return may be held to exist when 
 the person naturalized in the one country resides more 
 than two years in the other country. 
 
 With Nobway and Sweden. 
 Article III. If a citizen of the one party, who has 
 become a recognized citizen of the other party, takes 
 up his abode once more in his original country and 
 applies to be restored to his former citizenship, the 
 government of the last-named country is authorized to 
 receive him again as a citizen, on such conditions as 
 the said government may think proper. 
 
 With the Kingdom op Denmark. 
 
 Article III. If, however, a citizen of the United 
 States, naturalized in Denmark, shall renew his resi- 
 dence in the former country without the intent to 
 return to that in which he was naturalized, he shall 
 be held to have renounced his naturalization. 
 
 In like manner if a Dane, naturalized in the United 
 States, shall renew his residence in Denmark without 
 the intent to return to the former country, he shall be 
 held to have renounced his naturalization in the United 
 States. 
 
 The intent not to return may be held to exist when 
 a person naturalized in the one country shall reside 
 more than two years in the other country. 
 
IN THE UNITED STATES. 175 
 
 With thk Austbo-Hungarian Monarchy. 
 Article IV. The emigrant from the one state, who, 
 according to article 1, is to be held as a citizen of the 
 other state, shall not, on his return to his original coun- 
 try, be constrained to resume his former citizenship, 
 yet if he shall of his own accord re-acquire it, and re- 
 nounce the citizenship obtained by naturalization, such 
 a renunciation is allowable, and no fixed period of resi- 
 dence shall be required for the recognition of his re- 
 covery of citizenship in his original country. 
 
 With the Kingdom of Belgium. 
 
 Article IV. Citizens of the United States naturalized 
 in Belgium shall be considered by Belgium as citizens 
 of the United States when they shall have recovered 
 their character as citizens of the United States accord- 
 ing to the laws of the United States. Beciprocally, 
 Belgians naturalized in the United States shall be con- 
 sidered as Belgians by the United States when they 
 shall have recovered their character as Belgians accord- 
 ing to the laws of Belgium. 
 
 With the Eepublic of Ecuador. 
 
 Article II. If a naturalized citizen of either country 
 shall renew his residence in that where he was born, 
 without an intention of returning to that where he was 
 naturalized, he shall be held to have re-assumed the 
 obligations of his original citizenship, and to have re- 
 nounced that which he had obtained by naturalization. 
 
 Article III. A residence of more than two years in 
 the native country of a naturalized citizen shall be con- 
 strued as an intention on his part to stay there without 
 returning to that where he was naturalized. This pre- 
 
176 THE LAW OF CITIZENSHIP 
 
 sumption, however, may be rebutted by evidence to the 
 contrary. 
 
 COMPARISON OF THESE RULES. 
 
 The rules fall into three distinctive groups. The 
 rule made with the North German Union, Hesse-Darm- 
 stadt, Wurtemberg, Bavaria, Denmark and Norway and 
 Sweden is to the point, that the return of a naturalized 
 citizen of the United States, who was a native of any 
 of these states, to the country of his nativity without 
 the intent to return to the United States, shall be con- 
 strued as a renunciation of citizenship in the United 
 States. The intent not to return may be held to exist 
 when the person naturalized in the United States re- 
 sides more than two years in the country of his birth. 
 
 The rule made with the Grand Duchy of Baden, 
 Belgium, Austro-Hungarian monarchy and Great Brit- 
 ain is to the point that the return of a naturalized 
 citizen of the United States to the country of his 
 nativity shall not be construed as a renunciation of 
 citizenship in the United States. The exercise of the 
 citizen's own volition is essential to work a change of 
 citizenship. 
 
 The rule made with the republic of Equador is to 
 the point that the return of a naturalized citizen of the 
 United States to the country of his nativity shall be 
 presumed as a renunciation of citizenship in the United 
 States after a residence of two years. This presump- 
 tion, however, may be rebutted by evidence to the con- 
 trary. 
 
 Under these rules, naturalized citizens return to the 
 country of their nativity respectively under different 
 conditions. 
 
IN THE UNITED STATES. 177 
 
 These rules are reciprocal, and affect citizens of the 
 United States who have become naturalized in these 
 respective countries and being treaties are the supreme 
 law of the land. 
 
 THE RULES AS THEY AFFECT CITIZENS OF THE UNITED 
 STATES NATURALIZED IN THESE COUNTRIES UPON RE- 
 TURN TO THE UNITED STATES. 
 
 Under the rule as laid down for the first group of 
 states, the presumption is absolute. For example : A 
 citizen of the United States becomes naturalized in the 
 North German Union ; after naturalization he remains 
 in that country for a long period of time and then re- 
 turns to the United States. After a two years' resi- 
 dence in the United States he may be presumed to 
 have renounced his citizenship to the North German 
 Union and be held as a citizen of the United States. 
 
 Under the rule as laid down for the second group 
 of states there is no presumption. For example : A 
 citizen of the United States becomes a naturalized 
 citizen of Great Britain ; after naturalization he re- 
 mains in that country for a long period of time and 
 then returns to the United States. No length of time 
 for residence in the United States works a presump- 
 tion of his renunciation of his English citizenship. In 
 order to become a citizen of the United States he must 
 comply with the naturalization laws precisely as 
 though he had never been a citizen of the United 
 States. 
 
 Under the rule as laid down for the third group of 
 
 states a presumption is raised, but rebuttal evidence to 
 
 the contrary can be offered against the presumption. 
 
 For example : A citizen of the United States becomes 
 23 
 
178 THE LAW OF CITIZENSHIP 
 
 a citizen of the republic of Equador ; after naturaliza- 
 tion he remains in that country for a long period of 
 time and then returns to the United States. After a 
 two years' residence in the United States, he may be 
 presumed to have renounced his citizenship to the re- 
 public of Equador ; he cannot, however, be held as a 
 citizen of the United States, until hearing had and 
 rebuttal evidence is submitted by him to show that he 
 has no intent of abandoning his citizenship to the re- 
 public of Equador. 
 
 The rule as laid down in the United States is to the 
 point that " a native born citizen of the United States 
 who has been naturalized in a foreign country and has 
 become a citizen thereof is to be regarded as an alien, 
 and in order to re-acquire his original nationality he 
 must conform to the laws of the United States provid- 
 ing for the admission of aliens to citizenship." 14 Op. 
 Atty.-G-enls. 295. 
 
 There is no other construction to be placed upon the 
 rule as agreed to with the first group of states. No pro- 
 vision is made by which the presumption can be re- 
 butted, nor is it implied. To take away the right of 
 expression of intent as to a change of citizenship finds 
 neither precedent in the practice of the United States, 
 nor is it in accord with the spirit of the laws as passed 
 from time to time by the congress of the United States. 
 Why this privilege should be denied is without reason. 
 The rule carries within it a contradiction of the con- 
 stitution and the laws ; as a law of the land it is uncon- 
 stitutional. 
 
 The rules which govern with the second and third 
 groups of states are both constitutional. With the 
 
IN THE UNITED STATES. 179 
 
 second group, the rule is in accordance with the opin- 
 ion above quoted. "With the third group in case the 
 presumption is raised, it can be met by evidence to the 
 contrary. It does not deprive the returning naturalized 
 citizen of the privilege to make his defense. If, there- 
 fore, he sees fit to change his citizenship, he must do so 
 in accordance with the naturalization laws of the land. 
 Why there should be such a contradiction and such 
 a lack of uniformity in these rules is inexplicable from 
 the standpoint of the spirit of the jurisprudence of the 
 country which governs these questions. 
 
 THE RULES AS THET AFFECT NATURALIZED CITIZENS OP 
 THE UNITED STATES UPON RETURN TO THE COUNTRY 
 OF ORIGIN. 
 
 The rule which governs, and was agreed to with the 
 first group of states by the government of the United 
 States, should not admit of a dual construction, one for 
 the convenience of the United States, and one for the 
 convenience of any of the governments of the countries 
 with which the treaties were made. 
 
 The treaty was ratified for two purposes : The first, 
 on the part of the government of the United States to 
 prevent abuses of the privileges of citizenship by 
 naturalized citizens who sought to make it a convenience 
 by which to avoid duties and obligations to the country 
 of their origin, and to practically enforce the rule, " that 
 the naturalization laws of the United States contem- 
 plate the residence in the country of naturalized citizens 
 unless they shall go abroad in the public service or for 
 temporary purposes." 
 
 The second, on the part of these governments referred 
 to in the first group, to prevent the return of their 
 
180 THE LAW OF CITIZENSHIP 
 
 former subjects who sought citizenship in the United 
 States and disavowed their allegiance to the countries 
 of their origin for political reasons, thereby evading 
 the continuing obligations which devolve upon their 
 subjects who remain. These obligations were municipal 
 regulations which were made for the protection and 
 good of the country. If the obligations were obnox- 
 ious to some of the subjects and they departed for that 
 reason, and became naturalized citizens of the United 
 States, certainly it was proper for the government to 
 stipulate the grounds on which they could return. 
 For the reason that they had become naturalized citi- 
 zens of the United States, to allow them by such an 
 act to take up a permanent abode among the subjects 
 with whom they formerly lived and evade obligations 
 and duties and enjoy the immunities which work an 
 injustice to a friendly government.. To prevent this 
 after a residence for a fixed period a stipulation was 
 made in accordance with their own views, and in 
 contemplation of the rule expressed in the United 
 States that the naturalized citizens of the United 
 States were to remain within the United States and 
 go abroad for temporary purposes only. By the treaty 
 two years was considered sufficient sojourn for a tem- 
 porary purpose. 
 
 THE WHEATON. RULE. 
 
 In 1840, Mr. Wheaton, then United States minister 
 at Berlin, commented on the case of Johann P. Knocke 
 as follows : " I have received your application stating 
 that you are a native born subject of his majesty, the 
 king of Prussia; that you emigrated to the United 
 States in the year 1884, being then twenty-one years 
 
IN THE UNITED STATES. 181 
 
 old, when you became naturalized as a citizen ; that 
 you Lave since returned to your native country where 
 you have been required to perform military duty, and 
 desiring my official interference for your relief. 
 
 " In reply I have to state that it is not in my power 
 to interfere in the manner you desire. Had you re- 
 mained in the United States, or visited any other for- 
 eign country except Prussia, on your lawful business, 
 you would have been protected by the American au- 
 thorities at home and abroad, in the enjoyment of all 
 your rights and privileges as a naturalized citizen of the 
 United States. But having returned to the country of 
 your birth, your native domicile and natural character 
 revert, so long as you remain in the Prussian dominions, 
 and you are bound in all respects to obey the laws ex- 
 actly as if you had never emigrated." 
 
 THE ERROR OF THE WHEATON RULE AS LAID DOWN AND 
 FOLLOWED AS THE POLICY OF THE UNITED STATES WITH 
 PRUSSIA. 
 
 The error of the Wheaton rule is found first, in the 
 theory that the common law of England was accepted 
 by the people of the United States, for structural use 
 in the organization of their government ; and second, 
 in the belief that the principles of the feudal law gov- 
 erned in the organization of the form of government 
 of Prussia. 
 
 The first has been sufficiently discussed heretofore. 
 
 The second is satisfactorily proved to be an error 
 by consulting the constitution of the Germanic con- 
 federation of 1842, in which the admission of mem- 
 bers of one state as members in another state is 
 recognized : it is true that this may be considered in 
 
182 THE LAW OF CITIZENSHIP 
 
 one sense to be a local rule, somewhat similar to a 
 municipal law for the confederation ; yet it takes up 
 the principle recognizing the right of a citizen to 
 change his citizenship to that of another state. The 
 principle of acquisition of citizenship by descent was 
 likewise laid down in the same constitution. On the 
 question of expatriation, a certificate of emigration was 
 a prerequisite, which could not be granted to male citi- 
 zens between the ages of seventeen and twenty-five un- 
 less they had a discharge from service in the army. 
 During these years service in the army was held to be 
 an existing obligation. While under the age of seven- 
 teen the obligation was prospective, and after the age 
 of twenty-five the obligation was held to be continu- 
 ing in its nature on general principles that the citizens 
 should be ready on call to re-enter the army in case 
 the country needed the services. 
 
 By the constitution of Prussia of 1850, article 1, it 
 is declared " The right to emigrate cannot be restricted 
 by the state except with respect to the duty of mili- 
 tary service." 
 
 When Mr. Wheaton laid down the Wheaton rule as 
 the law for subjects of Germany, naturalized in the 
 United States, and Baron Manteuffel expressed the 
 rule that the United States should inquire into the 
 right of a German subject to emigrate before he was 
 admitted to naturalization, the principles of the Code 
 Napoleon recognizing the natural rights of man, was 
 the common law in the Rhenish provinces, and in 
 Westphalia, which constitute a large portion of the 
 Prussian territory. The doctrine as laid down by Mr. 
 Wheaton was anticipated as being that of Prussia, 
 
IN THE UNITED STATES. 183 
 
 which at that time had no fixed foreign policy, except 
 that as had always been known to the international 
 law of Europe, that only existing obligations at the 
 date of emigration could be enforced, if not fulfilled 
 before the departure of the emigrant. Prussia took ad- 
 vantage of this anticipation of Mr. Wheaton, and in 
 the case of Knocke it so happened that the Prussian 
 government was in a position to do so, owing to the 
 age of Knocke when he departed, as being between the 
 ages of seventeen and twenty-five; Knocke being 
 twenty-one, when the obligation is recognized to be 
 neither prospective, nor continuing, but existing. The 
 right of Prussia to hold Knocke was undisputed ; it 
 did not, however, warrant Mr. Wheaton to declare the 
 rule which he did, as being the law of the United 
 States. 
 
 There was still another principle which would seem 
 to have influenced Mr. Wheaton when he laid down 
 the rule which has been cited. 
 
 At that time the judicial opinions in the United 
 States proceeded upon a false presumption that the 
 common law of England had a structural influence on 
 the government of the United States. Very few cases 
 had arisen in which aliens naturalized in the United 
 States, returned to their original countries, and the 
 dicta in these opinions were of great moment to him in 
 his consideration of the subject. 
 
 Others who followed in the same line of thought 
 found a further reason in the principle advocated in 
 England in regard to the extent to which protection 
 should be extended to naturalized citizens. By stat- 
 ute passed in 1851, the English government extended 
 
184 THE LAW OF CITIZENSHIP 
 
 no protection to its naturalized subjects when in their 
 original countries ; when there the statute implies, as 
 is laid down in the Wheaton rule " having returned to 
 the country of birth, native domicile and natural 
 character revert," and this rule was followed by- 
 Mr. Wheaton's successors as the rule which should 
 govern Prussians naturalized in the United States 
 upon return to Prussia. Why this rule was not 
 applied to other countries in similar cases can only be 
 solved by defective diplomacy. And yet this rule be- 
 came so forcibly impressed on the government of the 
 United States that it passed in 1886 a statute afford- 
 ing equal protection to all citizens of the United 
 States when abroad. For what reason ? may prop- 
 erly be asked. It could only have been intended as a 
 declaration against the German states, with which 
 states a treaty was in force, which furnished a legal 
 method by which to upset its practical effect. 
 
 THE BARNARD RULE. 
 
 In 1851, Mr. Barnard commented on the case of H. 
 Y. de Sandt, as follows : " The facts being that Sandt 
 was born in Prussia; had emigrated to the United 
 States ; had there declared his intent to become a 
 citizen; and then returned to Prussia. 
 
 " When you ceased to be a citizen of Prussia by 
 your permit of emigration, and became a resident in 
 the United States, the laws and government of that 
 country became your protection as long as that resi- 
 dence continued. When, however, you quitted your 
 residence there, before perfecting your naturalization, 
 and again took up your abode in Prussia for your own 
 
IN THE UNITED STATES. 185 
 
 purposes, your position was a peculiar one and required 
 from you a peculiar and very discreet line of conduct. 
 It was impossible for the American legation here to 
 claim you as an American citizen." 
 
 In 1852, Mr. Barnard commented on the case of Dr. 
 Gutowski, as follows, the facts being that he was 
 born in Prussia, naturalized in the United States and 
 returned to Prussia : " Having voluntarily returned to 
 the country of your birth where you have purchased 
 a farm and taken up your residence, the Prussian 
 government has a right to regard you as its subject 
 and so treat you in all respects." 
 
 In the case of B. Meyer, the facts were as follows : 
 Meyer was born in Prussia ; emigrated to the United 
 States ; became a naturalized citizen ; returned to 
 Prussia ; was arrested for non-fulfillment of military 
 duty and fined, without the intervention of the govern- 
 ment of the United States. 
 
 In 1852, Mr. Barnard received instructions from 
 Mr. Everett, secretary of state, in the case of Johann 
 Josef Kanke, on the following facts : Born in Prussia ; 
 emigrated without permission; naturalized in the 
 United States ; returned to Prussia, and was sentenced 
 to a service of three years in the Prussian army. 
 
 " That lying under a legal obligation in Prussia to 
 perform a certain amount of military service, he leaves 
 his native land and without performing that duty or 
 obtaining the prescribed certificate of emigration, 
 comes to the United States, and is naturalized, and 
 afterward for any purpose whatever, goes back to 
 Prussia, it is not competent for the United States to 
 protect him from the operation of the Prussian law." 
 
186 THE LAW OF CITIZENSHIP 
 
 At this time these cases were of common occurrence. 
 Citizens of the United States were fined, imprisoned, 
 and sent from the country, and Baron Manteuffel de- 
 fines the Prussian position as follows : " As, however, 
 the government of the United States considers that it 
 is not for its interest to make the admission of an emi- 
 grant as citizen dependent on the exhibition of a docu- 
 ment proving that the ties by which he was attached 
 to his old country are dissolved, it is much to be feared 
 that difficulties will still occasionally arise." 
 
 THE WRIGHT RULE. 
 
 In 1858, Mr. Wright, United States minister at 
 Berlin wrote as follows on this question : " No Ameri- 
 can consul or minister can shield from impressment a 
 United States citizen, born in Prussia. Is it possible 
 there is no remedy for this state of things ? My opinion 
 is, that if a decided and firm stand be taken by our 
 government during the present peculiar condition of 
 affairs in Prussia, it will lead to good results. It is 
 certainly worthy of a trial." 
 
 THE QUESTION FURTHER CONSIDERED. 
 
 During the civil war in the United States many 
 cases arose, which did not receive any attention from 
 the government of the United States. 
 
 In 1865, the question was again agitated and con- 
 tinued in discussion until 1868, when the naturalization 
 treaties were ratified. 
 
 Under these rules, which governed prior to the date 
 of these treaties, the rule of construction by inference 
 must be, that no expression of intent to return was in- 
 tended and that the acts of the naturalized citizen in 
 
IN THE UNITED STATES. 187 
 
 the country of his origin were to be construed against 
 him ; that he renounced his citizenship in the United 
 States by a two years' residence in the country of his 
 origin. 
 
 Subsequent to the ratification of these treaties the 
 presumption continued to be made in these cases and 
 they were determined by the authorities without giv- 
 ing a hearing to the naturalized citizens of the United 
 States. Continuous discussions of cases followed be- 
 tween the two governments. 
 
 In the year 1875 the German government made the 
 announcement that hereafter naturalized Germans, 
 who had resided in Germany more than two years 
 shall not be forced into the army immediately upon 
 the expiration of that time, but shall first be offered an 
 opportunity to return to the United States. 
 
 Mr. Fish to Mr. Davis, November 5, 1875, then 
 communicated the views of the United States : " The 
 announcement is carefully worded and seems intended 
 to remove the difficulty which has existed. If the course 
 indicated be fairly pursued, and naturalized citizens 
 resident in Germany are notified of the intentions of 
 the authorities, and are allowed to depart prior to any 
 attempt to force them into service, it will, as is hoped, 
 remove an objectionable feature in the working of the 
 treaty and not compel you to discuss cases where an 
 adverse decision has practically been already pro- 
 nounced by the authorities." 
 
 Notwithstanding this announcement, no rule of con- 
 struction has been agreed upon as between the coun- 
 tries, and the interpretation remains substantially the 
 same. 
 
188 THE LAW OF CITIZENSHIP 
 
 The rule which, was made and agreed to between 
 the United States and the second group of states has 
 been free from questions, and rights and privileges of 
 the respective citizens have been recognized in the re- 
 spective countries. 
 
 The rule which was made and agreed to between 
 the United States and the third group of states, has 
 also been free from questions, and the status of natural- 
 ized citizens in the respective countries been recognized 
 and their rights and privileges defined. 
 
 EFFECT OF TREATY LIMITATIONS. 
 
 Qualifications imposed by treaty become, when such 
 treaty is duly solemnized and ratified, part of our 
 naturalization system. 
 
 Consequently, the effect of the naturalization trea- 
 ties between the United States and other countries was 
 a modification of the naturalization laws of the United 
 States, so far as the relations were concerned, which 
 were entered into between the United States and those 
 countries. 
 
 THE PRACTICE UNDER THE NATURALIZATION TREATIES. 
 
 Each case must depend entirely upon the circum- 
 stances of the same, is the position taken by both the 
 United States and Germany. F. E. of U. S., 1874, p. 
 455. 
 
 The act of the Secretary of State is the act of the 
 President of the United States except in such cases as 
 the law may especially provide. The responsibility is 
 on the Executive. Marbury vs. Madison, 1 Cranch, 
 137-170; Parker vs. United States, 1 Peters, 293; Wil- 
 cox vs. Jackson, 13 Peters, 498 ; United States v. Elia- 
 
IN THE UNITED STATES. 189 
 
 son, 16 Peters, 291 ; United States vs. Freeman, 3 
 Howard, 556. 
 
 The Cash of Mentheim Cohn. 
 
 Born in Hatow, Germany. He emigrated to the 
 United States in 1864, where he became a citizen by 
 naturalization. Eeturned to Germany in 1872, where 
 he married and settled down in January, 1872. It 
 was held by the German government that article IV 
 of the treaty of 1868 applied to his case, and he was 
 summoned to perform military service without regard 
 to his naturalization in the United States. 
 
 The government of the United States issued to him 
 a passport upon his application, and the case was not 
 pressed. F. R of U. S., 1874, p. 447. 
 
 The Case op Edward Grubel. 
 
 Born in Prussia. At the age of seventeen years, 
 and prior to having been called to perform military 
 service, he emigrated to the United States, where he 
 became naturalized and resided seven years. On 
 Christmas, 1874, he returned to his former home in 
 Prussia, and on January 5, 1875, he was fined one hun- 
 dred and fifty reichsmarks. He pleaded his American 
 citizenship and exhibited his passport. It was held by 
 the court that he was liable to a fine irrespective of his 
 citizenship, and in default, was committed to jail. 
 
 The government of the United States put the ques- 
 tion : " Whether the unallowed emigration of a per- 
 son of an age liable to military duty is of itself an 
 offense by the law of Germany, or whether the issue 
 of a notice to perform military duty is requisite to con- 
 stitute the offense." It was answered as follows : That 
 
190 THE LAW OF CITIZENSHIP 
 
 every German subject is by law required to be ready 
 to perform military duty upon reaching the requisite 
 age, and that no notice is necessary in order to entail 
 liability to do the duty or to warrant a fine for neglect 
 to perform it. F. E. of U. S., 1875, pp. 489, 533, 534, 
 535. 
 
 The Case of Jacob and Herman Castellan. 
 
 Born in Posen. Both obtained discharges from the 
 German government, the one February 20, 1866, the 
 other May 6, 1867. The one left for the United States 
 in 1866, the other in 1867. Both became naturalized 
 citizens of the United States, the one January 11, 1871, 
 the other February 13, 1871, and during the year 1871 
 both returned to Posen and settled there. The question 
 was whether they were entitled to protection. It was 
 held that under the circumstances, certificates of natural- 
 ization valid on their face and founded on the decree of 
 a competent court cannot be questioned except through 
 judicial proceedings instituted for that purpose or in 
 which the correctness of the facts formerly passed upon 
 may properly be adjudicated. F. R. of U. S., 1875, p. 
 579. 
 
 In both of these cases fraud was apparent. Herman 
 Castellan received his discharge from the German gov- 
 ernment May 6, 1867, and was naturalized February 13, 
 1871. Certainly he had not resided uninterruptedly 
 for five years in the United States as the statute re- 
 quired. He had in this respect failed to comply with 
 the law. He could not have honestly satisfied the court 
 that he had done so. No more so could Jacob Castellan, 
 who received his discharge February 20, 1866, and was 
 naturalized January 11, 1871. 
 
IN THE UNITED STATES. 191 
 
 Notwithstanding this, the power of the authorities 
 was underrated, when the department of state decided, 
 " if the political department of the government may 
 from time to time pass upon such questions accord- 
 ing to the apparent credibility of the particular evi- 
 dence offered to impeach the decree, or the varying 
 statements of an interested party, no uniformity of 
 decision or security for acquired rights could exist." 
 F. K. of TJ. S., p. 579. 
 
 The inquiry as to the discharges was instituted by 
 the local authorities of Germany and were brought to 
 the knowledge of the government of the United 
 States. They were sufficiently authentic to permit 
 the department to decide the question. Mr. Freling- 
 huysen to Mr. Hamlin, Sept. 22, 1882. Mr. Fish to 
 Mr. Moran, Feb. 16, 1877. Mr. Blaine to Mr. Hamlin, 
 Dec. 6, 1881. Mr. Bayard to Mr. Francis, May 20, 
 1885. 
 
 Case of Leo Graffenbekg. 
 Born in Germany. He emigrated to America in 
 1867, when seventeen years old; resided there more 
 than five years; was naturalized in August, 1873; 
 returned to Germany in 1874; he was notified that he 
 had been fined during his absence for evasion of mili- 
 tary duty. Upon investigation the fine was remitted by 
 the German government because of ignorance of the 
 fact that he had become an American citizen. F. R. of 
 U. S., 1875, p. 569. 
 
 Case op Robert Geweoke. 
 
 Born in Germany. He emigrated to the United 
 States when eighteen years of age, without permission 
 
192 THE LAW OF CITIZENSHIP 
 
 in January, 1869 ; in 1874, he was naturalized, and in 
 1874 returned to Germany where he was notified that 
 he had been fined for unallowed emigration. Upon 
 investigation the fine was remitted. F. E. of U. S., 
 1875, p. 569. 
 
 Cask of Frederick A. Abndt. 
 
 Was born in Germany in 1835. In 1855, he pre- 
 sented himself for enrollment, and being a sailor was 
 enrolled in the navy to serve until his thirty-ninth 
 year. From 1855 to 1868, he served by permission on 
 merchant vessels. In 1868, he took up his residence 
 in New York ; remained there over five years and was 
 naturalized. He returned subsequently to Germany, 
 and entered business. He was fined and sentenced to 
 six years' service in the navy for unauthorized emigra- 
 tion and for not responding to the call in 1870. Upon 
 request made by the government of the United 
 States, the fine was remitted and the sentence reversed. 
 Arndt had not resided two years in Germany when 
 arrested. F. E. of U. S., 1875, p. 569. 
 
 Case of Hbhky Mumbouk. 
 
 Born in Germany. He served three years in the 
 Prussian army, was then placed in the reserve and ob- 
 tained a lea ve of absence for one year. In April, 1 8 6 9, he 
 went to the United States. While there the reserves 
 were called out in the war against France. He re- 
 ceived his call while in the United States, and decided 
 to remain there and to become naturalized. In 1874, 
 he returned to Germany. He was arrested and sen- 
 tenced to imprisonment for one year for desertion. 
 The government interceded in his behalf to which the 
 
IN THE UNITED STATES. 193 
 
 German authorities replied that he was residing in 
 Germany without intent to return to the United 
 States, as he admitted on examination ; therefore, 
 under the treaty he had renounced his American 
 citizenship. They declined to remit the sentence. F. 
 R. of U. S. 1875, p. 569. 
 
 Case op Jacob Wbiok. 
 
 Born in Germany. He was summoned in 1869 to do 
 military duty. Instead of responding, he emigrated 
 to the United States where he resided five years and 
 became a citizen. During his absence a fine was levied 
 on his estate. On his return he was arrested for 
 desertion. Pending examination he fled to Switzer- 
 land. The government of the United States inter- 
 ceded in his behalf to which reply was made that he 
 had been adjudged to be a deserter and that sentence 
 would be enforced should he come within the jurisdic- 
 tion. F. R. of U. S., 1875, p. 570. 
 
 Case op Theodore Vopel. 
 
 Born in Germany. After service in the army for 
 three years and in the reserve for three months, he 
 emigrated to the United States where he became a 
 naturalized citizen. He returned to Germany in 1874 
 where he was fined for illegal emigration. Upon inves- 
 tigation the fine was remitted. F. R of U. S., 1875, 
 p. 570. 
 
 Case op Charles H. A. Gerding. 
 
 Born in Germany. He emigrated to the United States 
 when twenty years of age, remained there five years 
 and two months, where he became naturalized. He 
 25 
 
194 THE LAW OF CITIZENSHIP 
 
 returned to Germany to sell out some property and 
 then returned to the United States. He was arrested 
 and forced into the army. Upon investigation he was 
 released on condition that he returned to the United 
 States. F. E. of U S., 1875, p. 570. 
 
 Case of Philip Humbert. 
 
 Born in Germany in 1840. Served one year in the 
 Prussian army; emigrated to the United States in 
 1868 ; was there naturalized and returned to Germany 
 in 1874. He was notified upon return that he had 
 been fined for non-performance of military duty. He 
 stated in defense that he was a doctor of medicine and 
 had returned to Germany "to live for a longer or 
 shorter time and to practice his profession." The 
 authorities of the United States replied that " such 
 language implied residence in Germany without intent 
 to return to America." He paid the fine to the Ger- 
 man government. F. E. of U. S., 1875, p. 570. 
 
 Case op Louis Wohlgemuth. 
 
 Born in Germany. He emigrated to the United States 
 when eighteen years of age, and there became a citizen 
 by naturalization. He returned to Germany and was 
 notified that he had been fined for nonperformance of 
 military duty. Upon investigation it was found that 
 the fine had been paid by his father and it was ordered 
 that it be remitted to him. F. E. of U. S., 1875, p. 
 571. 
 
 Case of Martin Beckman. 
 Emigrated to the United States when nineteen years 
 of age ; became a naturalized citizen and land-owner 
 in Nebraska ; returned to visit his father in Kiehl and 
 
IN THE UNITED STATES. 195 
 
 was forced into the German army. Upon investiga- 
 tion he was released. F. R. of U. S., 1875, p. 571. 
 
 Cask of Maurice A. Newmarch. 
 
 He was a native of Prussia ; resided more than five 
 years in the United States and became a citizen by 
 naturalization. He returned to Germany and was 
 notified to pay a fine which had been imposed in his 
 absence because of non-performance of military service. 
 Upon investigation it was found that the fine had been 
 paid by his father ; the German authorities refused to 
 remit it on the ground that it had been paid without 
 protest and because five years' residence in the United 
 States had not been satisfactorily proved. F. R. of 
 U. S, 1875, p. 571. 
 
 Case of Charles S. Rosenthal. 
 
 Born in Prussia, March 13, 1847. He went to the 
 United States in July, 1865; was naturalized November 
 16, 1869. He invoked the intervention of the authori- 
 ties of the United States for remission of fine imposed 
 for non-performance of military duty. This was re- 
 fused by the German authorities on the ground that 
 his naturalization was improperly obtained, he not 
 having resided five years in the United States and had 
 not served in the army of the United States. 
 
 The German authorities would not accept as final a 
 decree of a court of competent jurisdiction in the 
 United States which had conferred on Rosenthal the 
 rights of citizenship. They inspected the record and 
 investigated the facts, and finding that the treaty had 
 not been complied with, retained him as a German 
 subject. The political authorities of the United States 
 
196 THE LAW OF CITIZENSHIP 
 
 in the case of the brothers Castillan would not go be- 
 hind the record, yet the same authorities in Germany 
 deemed it their duty and right to do so in order to 
 prevent imposition. Had they done so in the case of 
 the brothers Castillan, they would have reached the 
 same conclusion as in the case of Rosenthal. F. R. of 
 U. S., 1875, p. 572. 
 
 Case of C. P. H. Jantzkn. 
 A native of Mecklenburg. Emigrated in 1868 to the 
 United States; was naturalized in 1875, when he re- 
 turned to Germany. He was forced into the German 
 army ; on proof of his American citizenship he was re- 
 leased. F. R of U. S., 1875, p. 572. 
 
 Cask op Hilar Fresh. 
 
 Born in Germany. He emigrated to the United States, 
 became naturalized and returned to Wurtemberg, 
 where he resided nearly two years. He inquired for 
 information concerning his rights, having been notified 
 that a residence of two years Avould be held to be a 
 renunciation of his American citizenship. The legisla- 
 tion of the United States notified him that after the 
 expiration of two years, it would be much more diffi- 
 cult to protect him, and counseled him to go to America. 
 
 This was in direct contradiction of the treaty with 
 Wurtemberg, article IV, which is " the emigrant from 
 the one state who, according to the first article, is to be 
 held as a citizen of the other state, shall not on his re- 
 turn to his original country be constrained to resume 
 his former citizenship, yet if he shall of his own accord 
 re-acquire it and renounce the citizenship acquired by 
 naturalization, such a renunciation is allowed, and no 
 
IN THE UNITED STATES. 197 
 
 fixed period of residence shall be required for recovery 
 of citizenship in his original country. F. R. of U. S., 
 1875, p. 572. 
 
 Case of Andreas Frederick Baab. 
 
 Born in Germany. He emigrated to the United States, 
 resided there five years and became a citizen by natural- 
 ization. He returned to Germany where, after a resi- 
 dence of nearly two years, he was notified that he must 
 leave Germany after the expiration of two years or 
 enter the army. He went to the United States where 
 he remained for a few weeks and returned to Germany; 
 he was at once put into the army. The legation of the 
 United States intervened in his behalf ; the German 
 authorities refused to release him. F. R. of U. S., 
 1877, p. 246. 
 
 Case of Marcus Hirsch. 
 Born in Germany. He emigrated to the United States 
 where he was naturalized. He subsequently returned 
 to Germany. He was asked by the German authori- 
 ties whether he intended to return to America, and de- 
 clined to answer. The same inquiry was made by the 
 American authorities, to which the same answer was 
 given; a passport was denied him. F. R. of U. S., 
 1877, p. 248. 
 
 Case of Deidrich Jacobson. 
 
 Born in Germany. He emigrated to the United States 
 in 1871, was naturalized in 1876, and returned to Ger- 
 many in the same year. He took up his residence 
 there and had no purpose of returning to the United 
 States. Upon application for passport his citizen papers 
 were retained by the legation in Berlin, and the course 
 
198 THE LAW OF CITIZENSHIP 
 
 was approved by the authorities at Washington. F. 
 E. ofU. S., 1877, p. 248. 
 
 Case op B. F. Kloss. 
 
 A native of Prussia. Emigrated to the United States, 
 arriving there November 11, 1870; was naturalized 
 November 1, 1875, after a residence of less than five 
 years. Returning to Prussia, he was fined for emigra- 
 tion without permission, and after paying the fine sought 
 the intervention of the United States, which was denied 
 him. F. R. of U. S., 1877, p. 249. 
 
 The German authorities should have investigated 
 this case as fully as was done in the case of Charles 
 S. Rosenthal. It would appear that the authorities of 
 the United States did so notwithstanding the ruling 
 laid down in the case of the brothers Castillan. 
 
 Case op Gustave Kbiegal. 
 
 Born in Prussia. Emigrated to the United States in 
 1870 when fifteen and one-half years old ; returned 
 to Prussia in 1874; re-emigrated the same year with a 
 German passport authorizing him to go abroad tem- 
 porarily subject to liability to return to perform mili- 
 tary duty; was naturalized October 19, 1876; he 
 returned immediately thereafter to Germany, and was 
 ordered to be enrolled. The authorities of the United 
 States refused to interfere. F. R. of U. S., 1877, p. 
 249. 
 
 Case op Chables Lbvinson. 
 
 Born in Germany. Emigrated to the United States, 
 then returned to Germany. He applied for a new 
 passport from the legation at Berlin, producing a 
 certificate of naturalization and an old passport. Upon 
 
IN THE UNITED STATES. 199 
 
 investigation, it was shown that he left Germany 
 too late to have had a five years' residence in the 
 United States. The papers were retained and pass- 
 port refused. F. R. of U. S., 1877, p. 249. 
 
 The investigation by the authorities was correct. 
 The claim to citizenship should only be allowed upon 
 the clearest evidence and when it is discovered in the 
 examination of the case that the certificate of citizen- 
 ship has been fraudulently obtained, it is right to 
 refuse to surrender such papers to an applicant for 
 protection who has practiced deceit and thereafter 
 seeks to impose on the government of the United 
 States and his own native government. 
 
 Case of Edward Mammelsdorf. 
 
 Born in Germany. He emigrated to the United 
 States in 1867 ; resided there five and one-half 
 years ; was naturalized ; resumed his residence in 
 Germany in 1872. In 1875 he received a passport. 
 In 1877 he applied for a new passport, having lost 
 the one given him in 1872. The legation of the 
 United States at Berlin decided that the facts tended 
 to raise a presumption that Mammelsdorf had sought 
 naturalization in order to avoid military duty in 
 Germany, and that it would not consider his applica- 
 tion for a new passport until the expiration of two 
 years from the issue of the old passport. 
 
 The German authorities had not raised any question 
 as to his citizenship. F. R. of U S., 1877, p. 250. 
 
 Case of Walde Salamonzke. 
 
 Born in Germany. Emigrated to the United States 
 and there received a certificate of naturalization. Upon 
 
200 THE LAW OF CITIZENSHIP 
 
 application for protection on return to Germany, it 
 was discovered that he had not resided in the United 
 States for five years, and no protection was extended 
 to him. The German authorities had not claimed or 
 raised any question as to him. F. E. of U. S., 1877, 
 p. 251. 
 
 Case of John Soola. 
 
 A native of Hesse-Darmstadt. Born in 1850; ob- 
 tained a discharge from his German nationality and 
 emigrated in his seventeenth year; was naturalized 
 November 14, 1873. He returned and resumed his 
 residence in Hesse, in August, 1876 ; he was ordered 
 by the German government to return to the United 
 States or enter the army. The authorities of the 
 United States refused to interfere in his case on the 
 ground " there was no good reason to take it out of 
 the operation of the treaty." See article IV, treaty 
 with Hesse-Darmstadt. F. R. of U. S., 1877, p. 251. 
 
 Case of Gottlieb Villinger. 
 
 Born in Germany. He emigrated to the United 
 States and arrived in lower bay of New York on the 
 evening of the 2d of September, 1869; landed on the 
 morning of the 8d ; was naturalized September 2, 
 1874; returned to Germany September 4, 1874, 
 where, upon arrival, he went into business. He 
 applied for a passport, which was refused ; evidence be- 
 ing produced against him that he did not intend to re- 
 turn to the United States. F. R. of U. S., 1877, p. 252. 
 
 Case of Julius Baumer. 
 Born in Prussia. When he reached the age of 
 twenty years, he obtained from his government a 
 
IN THE UNITED STATES. 201 
 
 formal permission in writing to emigrate. He came to 
 the United States, and on the 6th of November, 1876, 
 became a naturalized citizen of the United States. In 
 the year 1877 he returned to Prussia with the intent 
 to remain about six months. After his arrival he was 
 notified by the local authorities, that he must either 
 perform military service or submit to banishment. 
 He appealed from this notice to the higher authorities 
 who gave to him the alternative, to leave the country 
 within eight days or enter the army. He thereupon 
 left the country. 
 
 It was held by the authorities of the United States 
 that such proceedings were unwarranted and illegal ; 
 that he was a citizen of the United States, and as such 
 was entitled to the protection of the government. 
 Upon this finding he should have returned to 
 Germany. F. R of U S., 1878, pp. 210-228. 
 
 . Case op Chahles G-anzenmtjixer. 
 
 Born in the grand duchy of Baden in 1851. He 
 emigrated to the United States with permission of the 
 Baden authorities, and became a naturalized citizen of 
 the United States in 1875. In the same year, he re- 
 turned to Baden, to care for an aged and decrepit father. 
 He was immediately ordered by the local authorities to 
 leave Baden or become a citizen of the grand duchy 
 subject to military duty. The reason for this was, 
 because his exemption from military service for 
 reason of his American citizenship was a bad example 
 to other young men. And this was brought within 
 the local law of the grand duchy, enacted May 5, 
 1870, that "the grand ducal minister of the interior 
 26 
 
202 THE LAW OF CITIZENSHIP 
 
 may at any time decree the expulsion of such foreigners 
 as endanger the internal and external safety of the 
 state." 
 
 The imperial government refused to annul the 
 decree of expulsion. 
 
 Granzenmuller left the country disgusted, because 
 protection was not afforded him. This he should have 
 had. 
 
 The treaty with the United States was made in 
 1868 — of which article fourth is as follows: "The 
 emigrant from the one state who, according to the first 
 article, is to be held as a citizen of the other state, 
 shall not, on his return to his original country be con- 
 strained to resume his former citizenship." 
 
 Under this rule he was to be recognized as an 
 American citizen, and under the first article of the 
 same treaty " shall be treated as such," upon return to 
 Baden. 
 
 The law passed by the Baden authorities was in 
 1870, two years later than the treaty. Its application 
 to the case of Ganzenmuller and the reason for its 
 application is in derogation of the treaty in its import 
 and meaning. 
 
 "A treaty is a general rule of law for the contract- 
 ing parties. Pactum instar legis." Bluntschli Voelker 
 Eecht, § 402. 
 
 The treaty was the law for both the United States 
 and the grand duchy of Baden. The municipal rule, 
 as passed by Baden in 1870, was in conflict, and one 
 of which the government of the United States had no 
 official notice that its purpose was to change the intent 
 of the treaty of 1868, nor would such notice have 
 
IN THE UNITED STATES. 203 
 
 availed, the treaty for 1868 having been made for a 
 term of ten years from its date. 
 
 The position taken by Baden was not tenable. If 
 the recognition of Ganzenmuller as an American citi- 
 zen as such under the treaty did not apply to him in 
 Baden, then the treaty was valueless. There was no 
 two-year rule as in other German treaties made at the 
 same time. F. E. of U. S., 1878, p. 216. 
 
 Case op Martin Zimmer. 
 
 A native of Hesse-Darmstadt. Emigrated to the 
 United States October, 1 868, at the age of fourteen, 
 with written permission from the authorities; was 
 naturalized in 1877 ; returned to Germany the same 
 year, to visit his parents ; was arrested and forcibly 
 enrolled in the army as an "unsafe person liable to 
 military service." During his absence in America he 
 had been sentenced to pay a fine for evasion of mili- 
 tary service. Request was made that Zimmer be 
 released from the army, which was granted by the 
 German authorities. F. B. of U. S., 1879, p. 368. 
 
 Case of Ernest Eggers. 
 
 Born in Hanover in 1846. Emigrated to the United 
 States in 1867 ; declared his intention to become a 
 citizen of the United States in 1868, and was natural- 
 ized in 1878. While in the United States, and after 
 naturalization, he complained that his property in Ger- 
 many had been attached for evasion of military service; 
 the authorities of the United States intervened in his 
 behalf and received report that the attachment had ex- 
 pired by reason of limitation. F. R. of U. S, 1879, p. 
 369. 
 
204 THE LAW OF CITIZENSHIP 
 
 Although the attachment may have expired for 
 reason of limitation it does not follow but that new pro- 
 ceedings could have been begun against his person, 
 upon return to Germany. 
 
 Case of Frank Klagges. 
 
 Born in Westphalia in 1857. Emigrated to the 
 United States in November, 1864, and was naturalized 
 about ten years later. In 1875, he returned on a visit 
 to Germany, and was informed in 1878 that he must 
 become a German citizen within four weeks or return 
 to the United States. The legation of the United 
 States took the position, as Klagges had exceeded the 
 two years' visit allowed by the treaty, the legation could 
 only ask as a favor of the German government that he 
 might be allowed to remain longer than four weeks, 
 for reason of his wife's illness; the favor was granted 
 by the German government. It is to be noticed in this 
 case that Klagges was thirty-eight years of age upon 
 return ; too old for military service ; he had not been 
 fined, nor was he held for any unfulfilled obligations. 
 
 He had simply resided in Germany more than two 
 years and was ordered to return to the United States 
 or become a German subject. In concurring with this 
 action of Germany the authorities of the United States 
 accepted the German version of article IV of the treaty 
 and asserted no rights in his behalf. For eleven years 
 he had been resident in the United States. His posi- 
 tion was a most unenviable one. Contrary to his will 
 he must surrender his American citizenship or return 
 to the United States to preserve it. He concluded to 
 remain in Germany. F. E. of U S., 1879, p. 369. 
 
IN THE UNITED STATES. 205 
 
 Case of John Gottfried Bertjde. 
 Born in Prussia in 1849. Emigrated to America in 
 1870 ; was naturalized in 1877 and in 1878. returned to 
 Germany, to visit his father with intent to return to 
 the United States within two months to take command 
 of a ship. He was imprisoned for non-payment of a fine 
 imposed in his absence for neglect to perform military 
 service. Upon petition the fine was remitted with the 
 emperor's pardon from imprisonment, the return to 
 the United States being the reason therefor. F. R. of 
 U. S., 1879, p. 371. 
 
 Case of Christian Henkes. 
 Born in Prussia. Emigrated to the United States at 
 the age of sixteen; was naturalized in 1875; was fined 
 for non-performance of military duty. He petitioned 
 while in the United States for remission of the fine, 
 which his father had paid. The petition was granted. 
 F. R of U. S., 1879, p. 371. 
 
 Case of Alexander P. Wallner. 
 Born in Russia of German parents, in 1848. He 
 emigrated to the United States in 1871 ; was natural- 
 ized in 1877 ; returned immediately to Germany where 
 he had been fined for non-performance of military duty. 
 Upon application the fine was remitted. F. R. of U. 
 S., 1879, p. 371. 
 
 Case of C. R. Muller. 
 A naturalized American citizen returned to Ger- 
 many in 1876, at the age of twenty-eight years and re- 
 mained until 1880 in business. His visit having ex- 
 ceeded the two years allowed by treaty, he was ordered 
 
206 THE LAW OF CITIZENSHIP 
 
 to leave the country within eight days. He petitioned 
 for more time, and at the request of the American au- 
 thorities he was granted three months, to return at the 
 expiration of that time. F. R. of U. S., 1881, p. 476. 
 
 Case of John C . Hagedorn. 
 Born in Wendel, Schleswig-Holstein in 1852. Emi- 
 grated in 1868 to the United States, where he was 
 naturalized in 1880. He returned on a visit to Ger- 
 many, and was informed that he had been fined for 
 non-performance of military duty. He petitioned that 
 the fine be remitted upon his return to the United 
 States. This was granted by the German authorities. 
 F. R of U S., 1881, p. 476. 
 
 Case op William Brink. 
 
 Was born March 9th, 1858, in Prussia. In 1872, he 
 emigrated with his mother to the United States, to join 
 his father who had emigrated in 1871, and was natur- 
 alized in 1876. In 1881 the father and son returned 
 to Germany for a few weeks ; the son was arrested, 
 and enrolled in the army. Upon petition, was re- 
 leased ; he was then fined ; upon petition for remission 
 of the fine it was returned, the father and son return- 
 ing to the United States. F. E. of U. S. 1882, p. 187. 
 
 Case of George E. R. Boetcher. 
 Born in Germany in 1851. Emigrated to the United 
 States in 1871; was naturalized in 1878, after which 
 he became an officer in the American merchant marine. 
 With his vessel he arrived in Bremerhafen ; went on 
 a visit to his parents, was arrested and fined. Upon 
 petition he was released and fine remitted, upon proof 
 
IN THE UNITED STATES. 207 
 
 of his citizenship and intent to leave the country. F. 
 R. of U. S., 1882, p. 188. 
 
 Case of Edward Cordes. 
 
 Born in Hamburg, Germany, in 1853. He emigrated 
 to the United States in 1872, where he was natural- 
 ized in 1878. He returned soon after to Germany, 
 where he resided for a period of time exceeding two 
 years. The German authorities arrested him, and en- 
 rolled him in the army for service. The evidence of 
 intent to return was unsatisfactory, and the legation 
 would not intervene in his behalf, " he having actually 
 resided more than the two years allowed by treaty, 
 was consequently liable to be considered by the German 
 government to have forfeited his American nationality. 
 
 Cordes was discharged, and returned to the United 
 States. Under this ruling, it would seem that question 
 of intent to return to the United States is not open for 
 expression, after two years' residence. After that time, 
 one is liable to be considered by the German govern, 
 ment to have renounced his American nationality. F. 
 R. of U. S., 1882, p. 188. 
 
 Case op Bertrand Horstmanh. 
 
 Born in Germany in 1851. He emigrated to the 
 United States in 1872, where he was naturalized in 
 1881, and returned to Germany in 1882. He was 
 arrested as a deserter, and claimed the protection of 
 the government of the United States. It was held by 
 the German government, that in accordance with the 
 terms of the treaty of 1868, he was a deserter, and was, 
 therefore, sentenced to a fine and imprisonment, in 
 which decision the United States acquiesced. F. R. 
 of U. S., 1882, p. 190. 
 
208 THE LAW OF CITIZENSHIP 
 
 Case of George E. De La Roi. 
 Born in 1856. Emigrated at the age of sixteen to 
 the United States, and was naturalized in 1878. While 
 in the United States he received notice that he had 
 been fined for non-fulfillment of military duty, and in 
 case of non- payment, would be imprisoned. Upon pe- 
 tition, setting forth his American citizenship, which 
 upon examination by the German authorities was found 
 to be in legal form, the fine was remitted. F. R. of 
 U. 8., 1884, p. 208. 
 
 Case of Gtjstave Held. 
 
 Born in Prussia. He emigrated at the age of twenty- 
 three, and was naturalized in 1883. Before emigration, 
 he had served two years in the army, and been honor- 
 ably discharged. He returned to Germany, and there 
 ordered to appear in court, and was fined. Upon pe- 
 tition and hearing in the case, in which his American 
 citizenship was established, as also his performance of 
 military duty to Germany, it was held that the fine 
 be remitted. F. R of U. S., 1884, p. 209. 
 
 Law of June 1, 1870, concerning the loss and acqui- 
 sition of nationality in the North German confeder- 
 ation, and in the various states thereof. 
 
 Section 13. Nationality can be lost henceforth in the 
 following ways only : 
 
 (1) By discharge upon application therefor. 
 
 (2) By decree of the public authority. 
 
 (3) By a residence of ten years abroad. 
 
 (4) In the case of illegitimate children, the father 
 having another allegiance than that of the mother by 
 legitimation effected pursuant to the provision of law. 
 
 (5) In the case of a North German, by marriage 
 
IN THE UNITED STATES. 209 
 
 with a person having allegiance in another state of the 
 confederation or with a foreigner. 
 
 Section 21. North Germans who leave the territory 
 of the confederation and sojourn during a period 
 of ten years uninterruptedly abroad, lose thereby 
 their state nationality. The above-designated period 
 is reckoned from the time of the departure from the 
 territory of the confederation ; or, if the person leav- 
 ing is in possession of a passport or home certificate 
 from the time of the expiration of this paper. It is 
 interrupted by an entry on the files of a consulate of 
 the confederation. Its course recommences with the 
 day following the cancellation of the entry on these 
 files. 
 
 For North Germans who sojourn in a foreign state 
 for at least five years uninterruptedly, and at the same 
 time acquire nationality there the period of ten years 
 may be reduced to one of five, whether or not the per- 
 sons concerned are in possession of a passport or home 
 certificate. 
 
 This law was made applicable to Alsace-Lorraine by 
 law of January 8, 1873. 
 
 WITH ALSACE-LORRAINE PROVINCES OP FRANCE, UNTIL 
 
 1870, THEN ANNEXED TO GERMANY. 
 
 Case of August Melt. 
 
 Born in Lorraine in 1836. Went to the United 
 States in 1852 ; naturalized in 1853; returned to Lor- 
 raine in 1861 ; bringing with him his son, born in the 
 United States; where he continuously resided, until 
 1877, when he complained that the German govern- 
 ment had called on his son to perform military duty, 
 on the ground that his father's long residence in his 
 27 
 
210 THE LAW OF CITIZENSHIP 
 
 native place had worked a renunciation of his natural- 
 ization. The authorities of the United States refused 
 to interfere. F E. of U. S., 1877, p. 250. 
 
 It was not until 1871 that Alsace-Lorraine was an- 
 nexed to Germany ; at the time of the annexation 
 Mely was a citizen of the United States, residing in 
 the country of his nativity, which was France. By 
 the law of that country he had lost his quality as a 
 French citizen, by his act of naturalization in the 
 United States, and was there regarded as a citizen of 
 the United States. Code Civile, § 17. 
 
 By the treaty of May 10, 1871, between the German 
 empire and France, the right of option was given to 
 the inhabitants of the provinces of Alsace and Lor- 
 raine to remain citizens of France, or become citizens 
 of Germany. This right to optate was open until 
 October 1, 1872. Bluntschli Voelker Becht, § 286. 
 
 This contract as between the contracting parties, 
 France and Germany, could only apply to the citizens 
 of the respective countries, parties to the contract. It 
 could not in any sense apply to aliens living in either 
 the provinces of Alsace or Lorraine. There was no 
 evidence to show that Mely optated to become a 
 citizen of Germany. 
 
 The rule was not applicable to him, nor did he 
 come within it. His course was to comply with the 
 German law of naturalization, after it had been ex- 
 tended to the provinces of Alsace and Lorraine pre- 
 cisely as would any alien. The application of the rule 
 which might have been made in Germany, had he, as 
 a naturalized citizen of the United States, returned to 
 that country as the one of his nativity, and there re- 
 
IN THE UNITED STATES. 211 
 
 sided as lie had done in France, to which country he 
 did return, as the country of his nativity, is certainly 
 far fetched. 
 
 He had lived in France, recognized as an American 
 citizen, and was such by the laws of France at the date 
 of the annexation in 1871. The German authorities 
 then come in and say, because Mely has been absent 
 from the United States for so long a time, and during that 
 time has been in a foreign country, other than Germany, 
 that he has lost his citizenship. Under the French 
 law, he could only have acquired his former citizen- 
 ship in France by naturalization. This he had not 
 done. 
 
 Section 2000, Rev. Stat., was then in force, having 
 been passed in 1868, by which naturalized citizens of 
 the United States are entitled to the same protection 
 as native born citizens when in foreign countries. 
 This rule should have been enforced as against the 
 claim as made by the German government, which was 
 a mere subterfuge to expel Mely from the empire. 
 
 Cask ov Elie Block, 1879. 
 
 Born in Alsace in 1851. Emigrated to the United 
 States in 1872 ; was naturalized in 1878, and returned 
 to Germany the same year. He was notified that he 
 had been fined for evasion of military duty. Upon 
 investigation, the German government extended to him 
 the right to remain in the place of his nativity, for two 
 years, and then leave the country. F. R. of U. S., 
 1879, p. 373. 
 
 Block was not a native of Germany. He was a native 
 of France, by the laws of which he was recognized as 
 
212 THE LAW OF CITIZENSHIP 
 
 a citizen of the United States for reason of natural- 
 ization in a foreign country. He had sought natural- 
 ization in the United States, subsequent to the annexa- 
 tion of Alsace to Germany. There does not appear to 
 be any evidence of his having exercised the right of 
 option to remain a Frenchman, or become a German. 
 The fact is, he emigrated from Alsace before the time 
 within which he could optate had expired. Upon re- 
 turn, the treaty of 1868 between the North German 
 Union and the United States is applied which had not 
 been extended to these provinces, except by implica- 
 tion and was adjudged accordingly. 
 
 The question of the application of the treaty was 
 still open as between the United States and Germany. 
 Subsequent to this, arose a similar case, that of Jacques 
 Leob, which was under consideration at this time in 
 ] 881 by the German government. The decision was, 
 that " Leob is no longer a citizen of Alsace-Lorraine." 
 It is difficult to see how the German government could 
 apply the rules, which governed in Germany, prior to 
 the annexation of Alsace-Lorraine and were applicable 
 to the natives of Germany, to natives of France, as 
 were the inhabitants of these provinces at the time of 
 the annexation. The obligations, which arise in Ger- 
 many for reason of birth in that country, certainly 
 were not applicable to natives of France at the time of 
 their birth in France. Therefore, any such obligations, 
 incumbent on natives of Germany for reason of birth 
 in Germany, should not become applicable to the natives 
 of France, who by annexation are separated from the 
 country of their birth. And although such a native of 
 France may be given the right to optate, yet, should 
 
IN THE UNITED STATES. 213 
 
 he optate to become a citizen of Germany, would 
 this throw off any obligations which he might be 
 under, as a native of France, to the government of 
 France ? 
 
 Certainly it would do so, were the annexation by 
 treaty as was the case in 1871. By this a citizen of 
 France would be relieved of any obligations to the 
 French government. Would it, however, work such a 
 change as to oblige such a person to assume obligations 
 incumbent on Germans, natives of Germany, for reason 
 of birth in that country ? It would not. The annexa- 
 tion by treaty is equivalent to an authorized right of 
 departure to the citizens of the country annexed, and 
 with the privilege of an option to become German citi- 
 zens, which option such a native of France saw fit to 
 exercise. He thus becomes a naturalized citizen of 
 Germany and assumes burdens, with the enjoyment of 
 rights and privileges, such as the laws of Germany then 
 give him. His position is precisely the same as that 
 of any alien, who becomes a citizen of Germany by 
 naturalization. 
 
 A further question arises under the report in this 
 case. How could Germany have any claims on Block ? 
 By the treaty of annexation, Block, as a native of 
 France, was given until October 1, 1872, Avithin which 
 to optate, and until he did decide ; during that time 
 he remained a citizen of France. He emigrated to the 
 United States in September, 1872, and did so as a 
 French citizen and not as a German, and the German 
 government had no claims upon him prior to his de- 
 parture. Upon this ground, it could readily have been 
 decided that he was a French emigrant, naturalized in 
 
214 THE LAW OF CITIZENSHIP 
 
 the United States, and when he went to Germany he 
 went as an alien. 
 
 Case of Jeanne Pierre Schang. 
 Born in Alsace in 1853. Emigrated at the age of 
 fifteen, in 1868, to the United States; was naturalized 
 in 1880. While in the United States he was fined, 
 and levy was made on his share in his father's estate, 
 for neglect to perform military service to the German 
 government. After investigation, it was decided by 
 the German authorities that Schang, having emigrated 
 before the annexation of Alsace Lorraine to Germany, 
 the fine should be remitted. F. R. of U. S., 1881, p. 
 473. 
 
 Case of Labard Rosenwald. 
 
 Born in Alsace in 1854. Emigrated to the United 
 States in 1872 ; was naturalized in November, 1878, 
 and returned to Germany on a visit in 1879. In May, 
 
 1880, he was notified by the authorities to leave "the 
 country. The German authorities did not claim that 
 he was a German citizen ; he had emigrated subsequent 
 to the annexation of the provinces to Germany, but 
 within the year within which citizens of Alsace and 
 Lorraine should optate to remain French subjects or 
 become Germans. Nor was it held that former citizens 
 of Alsace and Lorraine might become citizens of other 
 countries, under the treaty. Rosenwald was allowed 
 to remain the limit of two years, as stipulated by the 
 naturalization treaty between the United States and 
 the German states, which was extended to the prov- 
 inces of Alsace and Lorraine in 1873. F. R. of U. S., 
 
 1881, p. 474. 
 
IN THE UNITED STATES. 215 
 
 Case of Aloys Gehres. 
 Born in Alsace-Lorraine in 1856. Emigrated to the 
 United States in 1872; was naturalized in 1877. 
 While in the United States he petitioned for remission 
 of a fine imposed for non-fulfillment of military duty 
 to the German government. At time of emigration, 
 the term within which to optate, as fixed by the Ger- 
 man law, whether to remain French, or become Grerman 
 subjects, had not expired. The fine was remitted. F. 
 R of U. S., 1881, p. 474. 
 
 Case of Nicholas Victor Gabriel. 
 
 Born in Alsace in 1853. Emigrated to the United 
 States September 10, 1872, and was naturalized 
 June 8, 1880, and remained in the United States. 
 After his departure he was fined for neglect of military 
 duty. While still in the United States, he petitioned 
 to have the fine removed. This was denied by the 
 German government, which held that he was still a 
 German subject, and the fine could not be remitted. 
 
 The policy, and consequently the law, which had 
 governed in the United States in matters of annexation 
 by purchase or otherwise, and to which acquiescence 
 had been given by other nations, so that it had be- 
 come a rule of international law, was to allow the in- 
 habitants of the territory thus annexed, to become citi- 
 zens of the United States, or to remain aliens. F. R. 
 of U. S., 1881, p. 475. 
 
 In the year 1803, the republic of France and the 
 United States both stipulated, as to Louisiana, that 
 " the inhabitants of the Louisiana territory should be 
 incorporated into the Union of the United States and 
 
216 THE LAW OF CITIZENSHIP 
 
 admitted as soon as possible, according to the prin- 
 ciples of the federal constitution, to the enjoyment of 
 all the rights, advantages and immunities of citizens 
 of the United States ; and in the meantime they shall 
 be maintained and protected in the free enjoyment of 
 their liberty, property and religion which they profess." 
 
 Under this rule, the French inhabitant remained a 
 Frenchman until he was admitted to citizenship by 
 the law of the United States. 
 
 In the year 1819, the kingdom of Spain and the 
 United States both stipulated, as to Florida, that the 
 inhabitants of the territories which Spain cedes to the 
 United States shall be incorporated in the union as 
 soon as may be consistent with the principles of the 
 federal constitution. 
 
 Under this rule, the Spanish inhabitant remained a 
 Spaniard, until he complied with the law of the 
 United States for admission of aliens to citizenship. 
 
 In the year 1848 with Mexico, it was stipulated, 
 that the Mexicans in the ceded territories — " those 
 who shall prefer to remain in the said territories, may 
 either retain the title and rights of Mexican citizens or 
 acquire those of citizens of the United States." 
 
 Until they had acquired the rights of citizens of the 
 United States, they remained as Mexican citizens. 
 
 In the year 1867 it was stipulated in the treaty 
 with Russia on the cession of Alaska to the United 
 States " the inhabitants of the ceded territory accord- 
 ing to their choice reserving their natural allegiance, 
 may return to Russia within three years, but if they 
 should prefer to remain in the ceded territory they 
 shall be admitted to the enjoyment of all rights, ad- 
 
IN THE UNITED STATES. 217 
 
 vantages and immunities of citizens of the United 
 States, and shall be protected in the free enjoyment of 
 their liberty, property and religion." 
 
 Under this rule the Alaskan remained a Russian 
 subject for three years ; at the expiration of that time 
 to retain Russian citizenship, he must leave Alaska 
 and take up his domicile within the Russian empire. 
 This was not optional ; it was obligatory. The 
 Alaskan, if he did not return to Russia, lost his 
 Russian citizenship and became by force of the treaty 
 an American citizen. 
 
 The principle is the acquisition of territory, which 
 may be done by any of the known ways, by which 
 private property is acquired by individuals. Halleck 
 Int. Law, p. 75. 
 
 The custody of the persons on the territory does 
 not pass by a cession of the control of the territory. 
 
 Case of Andrew Klam. 
 
 Born in Alsace in 1853. Elected to be a French 
 citizen in 1872; he entered the French army; emi- 
 grated to the United States in 1874, where he was 
 naturalized in 1880. He was fined for non-perform- 
 ance of military duty in Germany. Upon investiga- 
 tion, it was held that his name be taken from the 
 army-roll in Germany, but that the fine remain. F. R. 
 of U. S., 1883, p. 391. 
 
 Case of C. L. Geokgb. 
 
 His father, Peter George, a native of Germany, came 
 
 to the United States in 1840 ; was naturalized in 1848 ; 
 
 returned to Germany in 1851, and married there. 
 
 The son was born in Alsace-Lorraine in 1859, that is, 
 
 28 
 
218 THE LAW OF CITIZENSHIP 
 
 after his father had been residing there eight years. 
 Both father and son continued to reside there, until 
 1875, the son being then sixteen years of age, when they 
 came to the United States. In 1884, the son returned 
 to Germany, and was held for military duty, and im- 
 prisoned. It appeared that prior to his return, he 
 took out naturalization papers on his own account. 
 The German authorities held that he owed allegiance 
 to Germany. This was not assented to by the United 
 States, for reason that having been born abroad of an 
 American citizen he followed the citizenship of the 
 parent with the right to elect upon reaching his 
 majority. F. K. of U S., 1886, pp. 317, 325, 327. 
 
 WITH NOKWAY AND SWEDEN. 
 Case of C. M. Cedergrben. 
 
 Born in Sweden in 1845. He emigrated to the 
 United States in 1864, and was naturalized as a citizen 
 of the United States in 1880, having taken out his 
 preliminary papers in 1877. 
 
 In 1 881, he returned to Sweden on a temporary visit ; 
 was called on to pay a fine for evasion of military 
 duty. This he did not pay upon demand, and he was 
 ordered to report for duty. At this time he had been 
 in the country less than a year and had expressed his 
 purpose to return to the United States within a few 
 months. 
 
 It was held by the Swedish authorities " that Ceder- 
 green should be stricken from the military lists, as he 
 was undisputably an American citizen, but as he had 
 not taken his first step to naturalization until 1877, his 
 naturalization could not have a retroactive effect and 
 
IN THE UNITED STATES. 219 
 
 that, therefore, he was still liable to Sweden for his 
 military fine imposed for his prior delinquency." 
 
 This position was not tenable under the treaty of 
 naturalization between the two countries, and the 
 practice ; and after discussion, it was conceded by the 
 Swedish government that where there was no military 
 liability at and before the date of emigration, there 
 could be no claim upon Cedergreen. 
 
 The age for service is twenty-one in Sweden, and 
 Cedergreen was nineteen when he emigrated ; there- 
 fore, the fine was remitted. F. R. of U. S., 1882, p. 
 488. 
 
 Cask of Pbdee Sigbjobnsen. 
 
 Born in Norway. Emigrated to the United States 
 in 1871, where he resided eight years, and became a 
 naturalized citizen of the United States. In 1879 he 
 returned to Norway, and in the spring of 1880 was 
 called upon for military service. For non-performance 
 of his duty, he was fined and paid the fine. Later in 
 the year, he was informed that he must perform mili- 
 tary service as a Norwegian subject. He asked for 
 protection from the United States. It was held : " By 
 the express terms of the treaty of 1869, Sigbjornsen 
 could remain two years in Norway, without rendering 
 himself liable to be claimed as a Norwegian subject. 
 The two years had now nearly expired, but in view of 
 the fact that his American citizenship had been dis- 
 regarded for a period of several months and a fine im- 
 posed on him, it is agreed that he may remain in Nor- 
 way about two years and five months in all, from the 
 date of his arrival in Norway, and his fine was refunded 
 him." F. R. of U. S., 1881. 
 
220 THE LAW OF CITIZENSHIP 
 
 WITH AUSTEIA. 
 Case of Gustave Schwetzer. 
 
 Born in Austria. He came to the United States in 
 1851 ; became naturalized in 1856 ; returned to Austria 
 in 1859, and has remained there until 1881, when he 
 asked for protection. It was held that Mr. Schwetzer 
 had renounced his American citizenship and was not 
 entitled to protection. F. K. of U. S., 1881, pp. 30, 52. 
 
 If the treaty of 1870 is to be considered the criterion 
 of the laws of both the contracting parties, with Austria 
 as well as the United States, then Schwetzer remained 
 and was an alien in 1881, to Austria. Under article 
 IV, it is held that a naturalized citizen of the United 
 States, native of Austria, shall not be constrained to 
 resume his former citzenship ; " yet, if he shall, of his 
 own accord, re-acquire it and renounce the citizenship 
 obtained by naturalization, such a renunciation is allow- 
 able and no fixed period of residence shall be required 
 for the recognition of his recovery of citizenship in his 
 original country." 
 
 This being the law of Austria applicable to the case, 
 that country would continue to recognize Schwetzer as 
 a citizen of the United States and the United States 
 would continue to refuse him protection as an American 
 citizen. 
 
 Case op Vitus Taxacheb. 
 
 Born in Austria. When he reached the requisite age 
 for military duty he reported and was put back for one 
 year. During this time he emigrated to the United 
 States ; resided there more than five years, and then 
 returned to Austria. He was arrested and impressed 
 
IN THE UNITED STATES. 221 
 
 in the service. Upon investigation, it was held that 
 he was an American citizen, and the Austrian authori- 
 ties released him. F. R. of U. S., 1884, pp. 9, 10. 
 
 Case of Louis Feinknopf. 
 Born in Austria in 1860. In 1876 he emigrated to 
 the United States, where he became a naturalized citi- 
 zen of the United States, and then returned to Austria, 
 where he was impressed into the military service. It 
 was held by the Austrian authorities, that he was an 
 American citizen, and was, therefore, discharged. F. 
 R. of U. S., 1885, pp. 5, 27. 
 
 Case of Mathien Aklich. 
 
 Born in Austria. He emigrated to the United States, 
 and became a naturalized citizen of the United States. 
 After a residence of some years in the United States, 
 he left that country and took up his abode in Turkey, 
 where he resided for fifteen years, and then made a 
 demand on the government of the United States for 
 protection. It was held that the same principles ap- 
 plied as if he had returned to his native country, 
 namely to Austria. The case was further considered 
 as follows : Among the tests which may be applied 
 to determine the intent of a naturalized person who 
 resides continuously abroad, the fact of payment by 
 such person of the income and excise taxes, which have 
 been imposed by law upon American citizens, will be 
 an important aid. Inquiry should be made when, and 
 in what assessment district, the returns required by the 
 internal revenue laws have been made, where, and to 
 whom the taxes have been paid. 
 
 The omission to have made the returns or to have 
 
222 THE LAW OF CITIZENSHIP 
 
 paid any tax, would necessarily cast grave suspicion 
 upon the claim of the party applying for the protection 
 of a government, from whose support he has withheld 
 the contributions required of all its citizens, whether 
 resident at home or abroad; and if such omission has 
 been long continued, it will, as a general rule, justify 
 the refusal of a recognition of the claim to protection. 
 F.R of U.S., 1871, p. 888. 
 
 WITH EQUADOR. 
 
 The case of Julio Romano Santos, a native of Equa- 
 dor. He emigrated to the United States, where in 
 July, 1874, he became a naturalized citizen, and subse- 
 quently returned to Equador in the capacity of agent 
 for American merchants. He was charged with com- 
 plicity in a revolutionary movement, and consequently 
 imprisoned. The Equadorian authorities took the po- 
 sition that according to the treaty of naturalization of 
 1872, articles 2 and 3, he had lost his American citi- 
 zenship. The article 2 is as follows : If a naturalized 
 citizen of either country shall renew his residence in 
 that where he was born, without an intention of re- 
 turning to that where he was naturalized, he shall be 
 held to have re-assumed the obligations of his original 
 citizenship, and to have renounced that which he had 
 obtained by naturalization. The article 3 is as follows : 
 A residence of more than two years of a naturalized 
 citizen shall be construed as an intention on his part 
 to stay there without returning to the country where 
 he was naturalized. This presumption, however, may 
 be rebutted by evidence to the contrary. 
 
 The authorities of the United States laid stress on 
 
IN THE UNITED STATES. 223 
 
 the terms of the treaty, " this presumption, however, 
 may be rebutted by evidence to the contrary." This 
 is equivalent to saying, that when such a citizen's in- 
 tention to return to the United States is shown, his 
 citizenship of the United States remains. It is true 
 that while Mr. Santos, though a domiciled citizen of 
 the United States is resident in Equador, he is subject 
 to the penal laws of Equador, and that mere alienage 
 or United States citizenship will not be a defense if 
 he be tried for treason, or other offense against Equa- 
 dor. F. R. of U. S., 1886, p. 254. 
 
 DEDUCTIONS PROM THE PRACTICE UNDER THE NATURALI- 
 ZATION TREATIES. 
 
 The two important questions, which are to be de- 
 volved from the practice, and which are alone to be 
 devolved from the practice with the first group of 
 states with which the United States entered into natur- 
 alization treaties, are first, that of obligations unfulfilled 
 before departure from the country of origin, and sec- 
 ond, the presumption of loss of citizenship by a con- 
 tinued two years' residence in the country of origin. 
 
 First, obligations. It is not strictly held that 
 every German, for reason of his birth in Germany, is 
 bound to perform military duty. The right of ex- 
 patriation is recognized by both countries as a funda- 
 mental right. At the time of the discussion of the 
 treaties in 1868 in the German parliament, Prince 
 Bismarck remarked in debate on the question "that 
 whoever bona fide emigrated with the intent to 
 establish a new home for himself and his, elsewhere, 
 could not be called upon to perform duties arising 
 
224 THE LAW OF CITIZENSHIP 
 
 from the fact of his birth in the North German union." 
 Hon. George Bancroft, then United States minister at 
 Berlin, wrote to Mr. Seward, then secretary of state, 
 " the right of expatriation is acknowledged by the 
 laws of both countries," meaning the North German 
 union and the United States. 
 
 The best writers in the United States have main- 
 tained this position : " The right of voluntary expatri- 
 ation exists only in time of peace and for peaceful and 
 lawful purposes." Halleck, p. 133. 
 
 " The relation of subject to sovereign is a voluntary 
 one to be determined by emigration, but a state is not 
 bound to allow the departure of its subjects, until all 
 pre-existing obligations have been fulfilled." Woolsey 
 Int. Law. 
 
 The question has two elements : first, the fulfillment 
 of pre-existing obligations. These obligations must 
 be reasonable and not continuing in their nature ; that 
 is, they must be such as can be fulfilled and the 
 emigrant thus prepare himself for a legal departure, 
 for this is the very quintessence of a legal change of 
 citizenship such as will be respected in international 
 common law. The obligation as enjoined by Germany 
 is susceptible of fulfillment. When a determined age 
 is reached the subject becomes liable for the perform- 
 ance of a certain duty to the country ; prior to that 
 age the obligation does not arise, or if it does arise the 
 practice has shown that any penalty imposed has been 
 abated. Therefore, the stringency of a supposed 
 existing rule that the obligation is for reason of birth 
 and continuing in its nature, until fulfilled, may be 
 held to be abolished, but not unless secured. The 
 
IN THE UNITED STATES. 225 
 
 further element is coupled with it, that the departure 
 prior to reaching the age at which active service in 
 the army is demanded, has been iu good faith and con- 
 sistent with such principles as govern an honest change 
 of citizenship. The practice is and has been not to 
 prevent or to interfere with the exercise of the right 
 of expatriation when made in good faith, and this 
 question of good faith is one to be interpreted from 
 the acts of the party. These elements are purely 
 within the scope of investigation of the authorities of 
 the country of the emigrant's origin. 
 
 The cases are different when the departure is made 
 without authority after the age for duty in the army 
 has been reached. Here there can be no question of 
 good intent. It goes without saying, that the depart- 
 ure is mala fide, and no argument should be offered in 
 mitigation of such an act in behalf of an emigrant who 
 departs under such circumstances. Such cases are 
 construed to be desertion from the flag, and for such 
 cases punishment should be administered. 
 
 There has been some misconception of the practice 
 in both the cases of departure before and after reach- 
 ing the age requisite for military service. These rules 
 are not inconsistent with the international common-law 
 practice. They conform to the practice as recognized 
 prior to the ratification of the treaty. The authorities 
 have ever maintained this practice. It has been error 
 on the part of the United States that from 1860 to 
 1865 it failed to enforce the rule in restraint of de- 
 parture of many of its citizens at a time when all 
 citizens were "under the flag." Had it done so at 
 that time, the spirit and purpose of the treaty stipu- 
 29 
 
226 THE LAW OF CITIZENSHIP 
 
 lations of 1868 would have been better under- 
 stood. 
 
 Second, the presumption of loss of citizenship after a 
 continued two years' residence in the country of origin. 
 This rule has been enforced with much rigidity. 
 From the practice it would appear that the United 
 States has entertained the enforcement of the rule 
 by its expressions of the import of its principle of 
 naturalization, by which citizenship is conferred on 
 aliens to the effect that they shall reside in the United 
 States. 
 
 This rule is not intended to interfere with the proper 
 right and exercise of locomotion for legitimate pur- 
 poses, but as a test of good faith in the applicant in 
 order that he shall not use his newly conferred citizen- 
 ship as a matter of convenience, and thus avoid duties 
 to both the country of his origin and that of his adop- 
 tion. Citizenship carries within it an idea of per- 
 manency and not of transient conveyance by which an 
 evasion of duties is rendered possible. It will be seen 
 from the practice that in some cases the change of 
 citizenship was made with a purely selfish intent and 
 with no good intent either towards the citizens of 
 Germany, or with the citizens of the United States. It 
 is for the citizens of Germany, by their proper authori- 
 ties, to judge of this intent in one regard and for the 
 citizens of the United States, by their proper authorities, 
 to judge of this intent in another regard. For the 
 first to pass upon the good faith of the departure, and 
 for the second to pass upon the good faith exercised 
 in the acquisition of the new citizenship. It is not a 
 mere and empty formality, a simple acting under the 
 
IN THE UNITED STATES. 227 
 
 naturalization law by the emigrant and then a speedy 
 departure to the country of his origin, and then de- 
 mand a release from all obligations to that country, 
 and there take up his residence with an easy turning 
 his back on the country of his adoption, which should 
 be held as a change of citizenship. Such is not, nor 
 has it been, the practice under the international com- 
 mon law. The change must be with a purpose of 
 permanency and not for temporary use. 
 
 When made with this intent and the intent is ad- 
 missible of this interpretation, a demand for protection 
 should be entertained. 
 
 By the rule of return, however, to the country of 
 origin in the practice under the treaties, there has been 
 a want of consideration of the question of good faith 
 in the change of citizenship, and the intent of making 
 the same for a permanent purpose has been disre- 
 garded. The practice has been unfortunate in this, 
 that no provision has been made for an expression of 
 volition. The change of citizenship has been implied 
 from the act of the citizen returning to the country of 
 his origin and seemingly in two classes of cases. The 
 first, when it was possible to infer a renunciation of 
 citizenship in the United States by a two years' resi- 
 dence in Germany and thereby enforce the performance 
 of actual military duty on the citizen, who had resided 
 in the country of his origin for that space of time con- 
 tinuously, and second, when the^application of the rule 
 to a father would thereby effect a change in the citizen- 
 ship of a minor son, who was of age to perform military 
 service. 
 
 Such practice is not in conformity with the practice 
 
228 THE LAW OF CITIZENSHIP 
 
 with other countries and is not in accord with the rule 
 laid down in 9 Op. Atty.-G-enls. 356, that " in regard to 
 the protection of our citizens in their rights at home 
 and abroad, we have in the United States no law which 
 divides them into classes or makes any difference what- 
 ever between them." 
 
 The practice under the treaty would seem to be that 
 we admit of a class of our citizens who, born in Ger- 
 many, naturalized in the United States, return to 
 Germany, and there reside for two years continuously, 
 lose their citizenship in the United States. 
 
 We have no other citizens who are subject to such 
 rules; all other citizens of the United States may reside 
 in Germany for that period of time, and for a longer 
 period without the application of the rule as laid down 
 in the treaty. 
 
 The rule is not in accordance with the principles of 
 international common law. 
 
 THE RIGHT OF EXPULSION AS BETWEEN GERMANY AND 
 THE UNITED STATES. 
 
 For a series of years prior to 1885 there had been 
 prolonged discussions over the clause in the naturaliza- 
 tion treaty of 1868 between the two countries as re- 
 gards the practice as to the two years' uninterrupted 
 residence in Germany of a former German subject 
 naturalized in the United States, and who returned to 
 the country of his origin, to Germany. 
 
 The German authorities construed the two years' 
 residence to be a renunciation of the American citizen- 
 ship and a re-acquisition of German nationality. They 
 carried the construction still farther and made it ap- 
 plicable to the minor children of such Germans who 
 
IN THE UNITED STATES. 229 
 
 returned to Germany, and there, after having been 
 naturalized in the United States, took up their resi- 
 dence and continued the same uninterruptedly for a 
 period of two years. 
 
 The underlying principle which governed the legisla- 
 tion of the German empire was and is, that minor 
 children standing under paternal control share the 
 nationality of the father. The same is the American 
 rule, and in this regard there was and is no conflict. 
 
 This rule of construction was applied to the two 
 years' clause in the treaty in its relation and effect on 
 the status of minor children of former Germans, natural- 
 ized in the United States. 
 
 Taking the two rules, the first, that the uninterrupted 
 residence in the country of origin was a renunciation 
 of American citizenship, and second, that its applica- 
 tion should be made to the status of minor children of 
 such former Germans, the practice became severe, be- 
 cause, by virtue of the enforcement of these rules, such 
 minor children, when they reached the requisite mili- 
 tary age, were called upon to perform military service ; 
 this was considered to be a great hardship, and gave 
 rise to continuous remonstrances on the part of the 
 government of the United States, in which it was, at 
 times, successful, and at others, was unsuccessful in 
 affording relief to such persons, who claimed its pro- 
 tection. It was partially with a view of avoiding this 
 unpleasantness, but more for its own protection that 
 the German authorities resorted to the idea, not of en- 
 forcing the performance of military service, but of 
 expulsion from the country, and to include within the 
 rule of expulsion other naturalized American citizens 
 
230 THE LAW OF CITIZENSHIP 
 
 of former German nationality, who should take up 
 their residence within the empire. 
 
 la order to approach the assertion of the right to 
 expel such citizens, two reasons were given. The first, 
 the internationally recognized right of every state to 
 remove foreigners from its territory, when their further 
 sojourn in the country appears to be undesirable upon 
 grounds of the welfare of the state. 
 
 The second, a resort to the systematic legal jugglery, 
 by which a principle of law was evolved, which was 
 in direct antagonism to the principles which governed 
 in that regard in both countries. 
 
 It was this, that children of former German subjects, 
 naturalized in the United States, who returned with 
 their parents or otherwise to Germany, should be held 
 to retain their American citizenship, although their 
 parents should by an act of their own, or by a two 
 years' uninterrupted residence on return to their country 
 of origin, re-acquire their former German citizenship. 
 That is, that the father might re-acquire his former 
 nationality, and his minor child should retain his 
 American citizenship, which he had acquired by birth 
 in the United States, as the son of an American citizen 
 as an inheritance from him. The father became a Ger- 
 man again, and his son remains an American citizen. 
 
 The German foreign office took this ground : " As 
 regards the fathers of such sons, no doubt can exist 
 that they are to be regarded as having renounced their 
 naturalization by a longer sojourn than two years pur- 
 suant to the treaties regulating nationality of 1868, 
 concluded with the United States. The provisions of 
 these treaties do not, however, extend to the minor 
 
IN THE UNITED STATES. 231 
 
 children of persons naturalized in America. The rules 
 there prescribed cannot, therefore, find any application 
 to the legal status of these children." 
 
 This had not been the practice heretofore, as has 
 been shown by the cases cited. It has been held as 
 the cases show, that the treaty was applicable to the 
 status of minor children. 
 
 The authorities of the United States acquiesced in 
 the view as follows : That the children of naturalized 
 citizens born in the United States stood on the same 
 ground as native Americans of American parentage. 
 
 This rule is just as far as it goes. It does not main- 
 tain, however, that a change in the citizenship of the 
 parent fails to carry with it a change in the citizenship 
 of the minor child. This is the rule of international 
 common law well established and recognized. The 
 minor child, upon reaching his majority, may then elect 
 of what country he will be a citizen, and then comply 
 with the law in order to perfect his citizenship. 
 
 Under these rules the German government has ex- 
 pelled such citizens from Germany. 
 
 Acting in direct violation of the German rule of 
 citizenship by descent, and in contradiction of the rec- 
 ognized international common-law rule, this position 
 was assumed by the German government, and the ex- 
 pulsion of such American citizens followed. Why any 
 distinction should be allowed as between American 
 citizens, it is difficult to determine. The government 
 of the United States took the position that under such 
 a rule the German government might expel any Amer- 
 can citizen, whether of German extraction or not. This 
 is true under the principle of the right of a state to 
 
232 THE LAW OF CITIZENSHIP 
 
 preserve its own welfare, and even then the rule must 
 be applied only for good reasons and with great cir- 
 cumspection. 
 
 This is not the trouble ; the trouble is found in the 
 recognition of the principle, that the change in the 
 citizenship of the father does not carry with it a change 
 in the citizenship of minor children. 
 
 RECOGNITION OF THE GERMAN RULE BY THE UNITED 
 
 STATES. 
 
 "The doctrine of the changing of the infant's nation- 
 ality with the nationality and domicile of the father, 
 rests on the assumption that such is the father's will, 
 and that the change is in submission to his paternal 
 power." Secretary Bayard to Mr. Pendleton, May 12, 
 1885. 
 
 In a discussion of the case of John L. Geist, the 
 foregoing principle was announced. 
 
 Geist was born in the United States of a father 
 naturalized in 1872, who subsequently returned to 
 Germany, taking his son with him, where he resumed 
 his German nationality. In his application for a re-ac- 
 quisition of his former German citizenship, the father 
 inserted this condition, ''that his son, John L. Geist, 
 being a native born citizen of the United States and a 
 minor, should elect whether he would return to and 
 take the nationality of his birth." It appeared by the 
 certificate of naturalization granted to him, that it in- 
 cluded his wife and all his minor children mentioned 
 by name, with the exception of John L. Geist. The 
 son, John L. Geist, was subsequently warned to leave 
 the empire, for reason that his presence in Germany 
 was undesirable to the welfare of the state. 
 
IN THE UNITED STATES. 233 
 
 This statement presents the question, Was or was not 
 John L. Geist a German citizen ? 
 
 Mr. Frelinghuysen to Mr. Kasson, January 15, 1885, 
 lays down the rule to be that " during minority the 
 rights of the minor, if he had any other than those 
 possessed by his father, were at least suspended and 
 subject to the father's allegiance." Further, the al- 
 legiant condition of the minor son, while residing 
 within the jurisdiction and under the control of the 
 father, follows that of the father. 15 Op. Atty.-Genls. 
 15. 
 
 Further : Under ordinary circumstances his status 
 (John L. Geist), in both relations would have followed 
 that of his father, when his father returned to Ger- 
 many from the United States, and resumed his German 
 nationality. But the father's resumption of German 
 nationality by its own terms excluded from its pur- 
 view the case of his son, John L. Geist." Secretary 
 Bayard to Mr. Pendleton, May 12, 1885. 
 
 The position is, that Geist, by the act of the parent, 
 became a German citizen. The parent could not 
 exclude the son in the terms of his application for a 
 resumption of German nationality. The mention of 
 the names of his other minor children was superfluous 
 and of no direct effect. 
 
 The general rule of public law is, that every person 
 of full age has a right to change his domicile. Mr. 
 Webster, secretary of state, to the president in 
 Thatcher's case. 
 
 The requirement of full age means a person who has 
 reached his majority ; at this time in life the law recog- 
 nizes the existence of the power to express an intent : 
 
234 THE LAW OF CITIZENSHIP 
 
 to declare his intent and by the declaration to elect 
 the state of which he will be a citizen. 
 
 No law which governs the mode of departure nor 
 which governs the acquisition of citizenship recognizes 
 any act done thereunder unless done by a person of 
 full age. 
 
 Full age is majority ; when a minor reaches majority 
 then he can act for himself and in his own behalf. 
 
 The requirement of full age means the exclusion of 
 the exercise of the right by those who are not of full 
 age, that is by minors. A minor not being of full age 
 cannot by his own act change his nationality. He can 
 neither legally depart from the country of his origin 
 nor can he legally acquire citizenship in another 
 country. His acts would not obtain recognition under 
 the laws of either country. The minor has no right 
 which he can himself assert in the exercise of his own 
 power to effect a change of nationality. During his 
 minority he remains sub potestate patris. This was 
 the rule of the Romans and has ever since been the 
 rule. He himself cannot act. The father can act and 
 by the act of the father a change in the citizenship of 
 the minor be effected. This act of the father must be 
 a perfect act of his and his alone, as the head of his 
 family, for his change of nationality carries with it a 
 change in the nationality of the members of his family. 
 
 The members of the family of which he is the head 
 are the wife and the minor children. Upon the death 
 of the father the mother does not become the head of 
 the family in the sense, that an act of hers, by which 
 to change her nationality, would effect a change in the 
 nationality of her minor children. 
 
IN THE UNITED STATES. 235 
 
 This is the international common-law rule. The 
 rule has some exceptions which are local and which 
 may be questioned, when put into practice ; as for ex- 
 ample, the rule in the United States, that the minor 
 <}hild of a foreigner, who seeks citizenship in the 
 United States must reside within the United States. 
 For example, a German born subject cannot emigrate 
 to the United States and there reside and there be- 
 come a citizen by naturalization and by his act confer 
 this citizenship on a minor child, who has resided all 
 the time in Germany. This is a local rule, yet under 
 it protection has been denied to such minors, when 
 coming to age upon allegations of citizenship by 
 descent for reason of the change made by the father. 
 It is doubtful if such a rule could maintain in the 
 practice in case the minor were in a foreign country 
 other than Germany or the United States and German 
 protection were denied him because his father had 
 acquired citizenship in the United States and re- 
 nounced his German nationality. The rule is not of 
 much importance, especially when it is possible for 
 .a minor child to go to the United States one week be- 
 fore his father's naturalization and return to his native 
 country one week thereafterward, as a full-fledged 
 American citizen, while still in his minority and without 
 renunciation of old allegiance or swearing to the new. 
 
 " That such a thing is possible is a defect in the 
 naturalization laws of the United States." Secretary 
 Frelinghuysen to Mr. Kasson, January 15, 1885. 
 
 And yet this has been held to be the rule with per- 
 haps a slight deviation. In a question in which the 
 terms " residence " and " domicile " were discussed it was 
 
"236 THE LAW OF CITIZENSHIP 
 
 decided as follows in England : " But the meaning of 
 the word " residence " is different from " domicile," for an 
 infant has the domicile of his parents until he attains 
 his full age and does some act to acquire a new one, 
 and thus his domicile may be in a country in which he- 
 has never personally been, whereas "residence" implies 
 a personal presence at some time or other." Walcot v. 
 Botfield, 1 Kay, 534. 
 
 LOCAL RULES. 
 
 Local rules which embody exceptions to the inter- 
 national common-law rule do not have much force in 
 the practice. 
 
 Every country has fixed laws by which citizenship 
 is acquired and by which it is lost. These laws are 
 for the convenience of the citizens of the country, who 
 reside within it and are such as they may deem just 
 and proper for their own safety as to admission of 
 aliens as citizens and departure of their own members 
 to acquire citizenship elsewhere. These laws are en- 
 acted by and for persons of full age, and not for minors. 
 The persons of full age act under them, not minors. 
 By the laws of every country the minor is subject to 
 the father's will ; he is under the paternal power. 
 This power the father cannot delegate to his minor chil- 
 dren. He cannot delegate to his minor child the power 
 to exercise his, the father's, will, and thereby effect 
 a change of nationality, nor can he, this minor child, 
 refuse to obey the will of the father, when the father 
 seeks to effect a change of nationality. The child hav- 
 ing no power to act for himself in this regard, cannot 
 deny the existence of the power in his father, by which 
 
IN THE UNITED STATES. 237 
 
 he, the father, can effect a change of nationality, and 
 with the change effect a change in the nationality of 
 his minor child. 
 
 In Geist's case the father was born in Germany. 
 Under German law the place of birth does not govern ; 
 nationality is not acquired for reason of birth in a cer- 
 tain locality ; the child takes the nationality of the 
 rather. The children of Germans wheresoever born 
 in the world are Germans. Geist's father took the 
 citizenship of his father at the time of his birth by de- 
 scent. Bluntschli Staatslehre, p. 65. 
 
 The father of Geist had entered into a compact with 
 other citizens of Germany for mutual protection and 
 their common welfare. 
 
 In the exercise of his free will and with right he 
 emigrated from Germany and by naturalization in the 
 United States entered into a compact for mutual pro- 
 tection and for the common welfare of citizens of the 
 United States. 
 
 He had with him when he entered into the compact 
 a minor son — the son could not enter into the com- 
 pact — he had not the power, being a minor ; therefore, 
 it was by no act of the son that he became a citizen of 
 the United States. It was by the act of the father, 
 who alone could contract as the head of the family. 
 
 The contract became binding on the father immedi- 
 ately upon naturalization and by implication on his 
 wife and minor children. It was a contract with pub- 
 lic right with the citizens of the United States. Blunt- 
 schli Staatslehre, p. 66. 
 
 The father subsequently returned to Germany and 
 there renounced his American citizenship, taking with 
 
238 THE LAW OF CITIZENSHIP 
 
 him his minor son born in the United States. He ex- 
 cluded from the purview of his application his minor 
 son. 
 
 The father willed two things ; first, that he become a 
 German subject ; second, that his minor son remain an 
 American citizen notwithstanding the rule that "wives 
 and minor children follow as a thing of course the 
 status of the head of the family." Woolsey Int. Law, 
 p. 103. 
 
 There is no rule for the second part of his wish ; he 
 could make no such exception. It is explained as fol- 
 lows : " The most charitable view to take of the father 
 is that his mind is partially disordered." Mr. Kasson 
 to Secretary Frelinghuysen, April 15, 1885. 
 
 The United States government subsequently took 
 this position as to the case. The German government 
 not only accepted the father's change of nationality, 
 charged as it was with the reservation of the son's 
 nationality continuing in the United States, but by re- 
 quiring the son to return to this country at a specific 
 period the continuance of the son's American nation- 
 ality was formally conceded." Mr. Bayard to Mr. 
 Pendleton, May 12, 1885. 
 
 Ergo because the German government assumed the 
 right to expel Geist, he was an American citizen. For 
 what reason should he be expelled ? Why not remain 
 in Germany? To admit of this right of expulsion as 
 an element constituting the American citizenship of 
 Geist is without support in the authorities. Nor is the 
 position at all supported by the authorities that the 
 father could make such a reservation in his application 
 to re-acquire his former German nationality. 
 
IN THE UNITED STATES. 239 
 
 THE ERROR IN THE RULE. 
 
 This is found in the position taken by the German 
 government that the American law contains no pro- 
 vision which makes the renunciation of American 
 naturalization by the father act upon his minor son 
 also. Dr. Busch to Mr. Kasson, December 31, 1884. 
 
 This statement is in conflict with the German and 
 American practice. It may be true that totidem verbis 
 the minor child is not referred to. The practice has 
 been to the contrary without exception in the interna- 
 tional common law and between the two countries. 
 
 EXPULSION PROM SOHLESWIG-HOLSTEIN. 
 
 In the year 1885 a number of naturalized American 
 citizens of German extraction returned to Fohr, an 
 insular portion of the territory of Schleswig-Holstein. 
 
 The cases were these : Simon Meinert Baysen emi- 
 grated in the year 1863 at the age of sixteen years to 
 the United States with a passport, but without having 
 been discharged from Prussian allegiance ; in the year 
 1870 he spent from two to three months on a visit on 
 the island of Fohr and returned there with five chil- 
 dren in 1885. 
 
 Minert Heinrick Biewerts, native of the same island, 
 emigrated to the United States after discharge obtained 
 from his government at the age of sixteen years and 
 eight months. 
 
 Acke Edward Nickelsen, native of the same island, 
 emigrated to the United States after discharge obtained 
 from his government at the age of sixteen years and 
 four months. 
 
 Ingwer George Jappen, native of the same island, 
 
240 THE LAW OF CITIZENSHIP 
 
 emigrated to the United States after discharge obtained 
 from his government at the age of sixteen years and 
 seven months. 
 
 Peter Cornelius Anderson, native of the same island, 
 emigrated to the United States after discharge obtained 
 from his government at the age of sixteen years and 
 eight months. 
 
 Peter Jepsen, native of the same island, emigrated to 
 the United States after discharge obtained from his 
 government at the age of sixteen years and eleven 
 months. 
 
 Hans Peter Jessen, native of the same island, emi. 
 grated to the Unied States after attaining the mili- 
 tary age and without having responded to the duty of 
 presenting himself for military duty. 
 
 Heinrick Friedrick Nicholas Rohlffs, native of the 
 same island, emigrated to the United States after having 
 attained the military age and without having responded 
 to the duty of presenting himself for military duty. 
 
 Constantia Heinrich Edward Rohlffs, native of the 
 same island, emigrated to the United States after having 
 attained the military age and without having re- 
 sponded to the duty of presenting himself for military 
 duty. 
 
 In each of these cases the parties became naturalized 
 citizens of the United States, and subsequently re- 
 turned to the country of their nativity. 
 
 The German government, through Count Bismarck, 
 December 21, 1885, laid down the following rule: 
 Discharge from Prussian nationality cannot be refused 
 in time of peace, to persons who have not yet reached 
 the age of military liability, which begins with the 
 
IN THE UNITED STATES. 241 
 
 completed seventeenth year of life. It was assumed that 
 in the cases of Baysen, Biewerts, Mckelsen, Jappen, 
 Anderson and Jessen, that they sought the discharges 
 only for the purpose of withdrawing themselves from 
 the performance of military duty in Germany, and ex- 
 pulsion ordered from the country after sufficient sojourn 
 to visit relatives, and time to attend to any business 
 matters claiming their attention. The government of 
 the United States invoked the treaty of 1828, article 
 I, with Prussia, as regards the rights of citizens of the 
 respective countries, in the countries of each other: 
 " They shall be at liberty to sojourn and reside in all 
 parts whatsoever of said territories, in order to attend 
 to their affairs, and they shall enjoy to that effect the 
 same security and protection as natives of the country 
 wherein they reside, on condition of their submitting 
 to the laws and ordinances there prevailing." To this 
 Count Bismarck replied : "Provisions of this character 
 by no means conflict with the right of every independ- 
 ent state to expel foreigners from its territory, when 
 such course is considered requisite, upon grounds of the 
 welfare of the state and of public order." Count Bis- 
 marck went further and stated : " Germans naturalized 
 in America who have resided five years in the United 
 States are to be regarded as Americans, and are also 
 to be treated as such in case of their return to Germany, 
 so far as they have not, in accordance with article IV 
 of the treaty, renounced the naturalization acquired 
 in the United States. 
 
 They may, however, nevertheless, when the accom- 
 panying circumstances require, be expelled like any 
 other foreigner. On principle, this right will be con- 
 31 
 
242 THE LAW OF CITIZENSHIP 
 
 sidered only when maturely considered grounds of the 
 public welfare compel. F. E. of U. S., 1886, pp. 312-317. 
 
 THE RULE OF EXPULSION AS MAINTAINED IN THE UNITED 
 
 STATES. 
 
 " This government could never give up the right of 
 excluding foreigners whose presence they might deem 
 a source of danger to the United States." Mr. Everett, 
 secretary of state, to Mr. Mann, December 13, 1852. 
 
 "Every society possesses the undoubted right to de- 
 termine who shall compose its members, and it is exer- 
 cised by all nations, both in peace and war. A memor- 
 able example of the exercise of this power in time of 
 peace was the passage of the alien law of the United 
 States, in the year 1798." Mr. Marcy, secretary of 
 state, to Mr. Fay, March 22, 1856. 
 
 "The control of people within its limits, and the 
 right to expel from its territory persons who are dan- 
 gerous to the peace of the state, are too clearly within 
 the essential attributes of sovereignty to be seriously 
 contested." Mr. Fish, secretary of state, to Mr. Wash- 
 burne, September 17, 1869. 
 
 EXPULSION FROM GERMANY. 
 
 Case of Meyer Gad. Born in Russia. He settled 
 in Germany, where in 1878, for malfeasance, he was 
 expelled from the country ; he went to Austria, from 
 which country he went to the United States in 1879, 
 where he became a citizen by naturalization in 1884. 
 After naturalization he went to Germany to dispose of 
 some property. Upon knowledge by the authorities 
 of his return to Germany, he was ordered to leave the 
 country. 
 
IN THE UNITED STATES. 243 
 
 The German government took the position that the 
 measure of expulsion adopted against Gad before his 
 naturalization as an American citizen must be main- 
 tained. 
 
 Without discussion of the question of the right of 
 the German government to punish a breach of its 
 municipal law by expulsion of the wrong-doer from its 
 country to the territory of other civilized and friendly 
 powers, with or without designation, and which coun- 
 try might have been as well the United States as 
 any other country, the authorities of the United 
 States decided the case as follows : " It does not 
 appear that we can object to the German government's 
 refusing to receive back to the scene of his alleged 
 former depredations Meyer Gad, who appears to have 
 been a wandering if not a predatory Polish Jew, Rus- 
 sian by allegiance of birth, American by allegiance of 
 naturalization, Austrian by allegiance of residence, 
 German if he could be by allegiance of present 
 election." Secretary Bayard, F. E. of U. S., 1885, 
 p. 423. 
 
 THE FOURTH ARTICLE OF THE TREATY. 
 
 This article has been the subject of much comment. 
 The position assumed by the German government, that 
 two years' uninterrupted residence in the German em- 
 pire of a former German subject naturalized in the 
 United States worked a change of nationality, has not 
 received the assent of the authorities of the United 
 States. 
 
 Two reasons have been advanced against the German 
 position. 
 
 First, rebuttal testimony should be allowed to meet 
 
244 THE LAW OF CITIZENSHIP 
 
 the presumption of an intent to abandon the citizen- 
 ship in the United States. 
 
 Second, by the German construction of the treaty 
 the naturalized American citizen of German extraction 
 becomes immediately without a nationality and is a 
 citizen of nowhere. Where a former German subject 
 naturalized in the United States returns to his former 
 country and by his mode of life, his acquisition of 
 property, his assimilation with the people of the coun- 
 try, he identifies himself in their every-day relations 
 in business and otherwise and continues to do so for a 
 period of two years' uninterrupted residence, such acts 
 and doings are in themselves constructive of his intent 
 and purpose. F. R. of U. S., 1885, p. 440. 
 
 To make the question of intent to return depend 
 upon an inward mental operation is not practical. 
 The intent should be deduced from outward circum- 
 stances by which the naturalized citizen governs him- 
 self during the period of two years. This is the rule 
 which has always governed the principle formerly 
 known in the practice of animus manendi. 
 
 The other reason, that acting on the presumption the 
 naturalized citizen becomes without a nationality, does 
 not seem tenable. The treaty does not contain totidem 
 verbis that the naturalized citizen assumes his former 
 German nationality. The intent that he wishes to as- 
 sume his former nationality is deduced from outward 
 circumstances by which he has governed himself dur- 
 ing his two years' uninterrupted residence in the 
 country. Under the German law in such cases only 
 an expression of a desire to resume former nationality 
 is requisite, and under the practice this has been the 
 
IN THE UNITED STATES. 245 
 
 meaning, and the former nationality resumed; the 
 acts and doings of the naturalized citizen in his former 
 country are held to work under the treaty a change of 
 citizenship by operation of law. 
 
 The case of Augustus Reichard is directly in 
 point. Born in 1820 in the then kingdom of Hanover ; 
 military obligations performed in 1840 ; emigrated to 
 the United States in 1 844 ; became a citizen of the 
 United States in 1853 ; returned to Germany in 1881 ', 
 returned subsequently for six months to the United 
 States, and had intent to return to Germany, when he 
 was advised to ascertain his prospective status upon 
 return to Germany under article 4 of the treaty as 
 concerns himself and his children. Reichard owned a 
 villa in Germany ; owned real property in the United 
 States to which he purposed at some future time to 
 return. The authorities of the United States held as 
 follows : " The only effect in our view of the case of 
 your overstaying two years would be to give the 
 German authorities the right to say (without our 
 interference) that you or your children or both must be- 
 come naturalized or leave the country. As long as 
 you hold to the bona fide intention to return to the 
 United States to reside there as a citizen we hold you 
 and your minor children to be still American citizens." 
 F. R of U. S., 1884, p. 213. 
 
 WITH GREAT BRITAIN. 
 The Case of John R. McCormick. 
 
 Born in Ireland he emigrated to the United States 
 where he became a naturalized citizen of the United 
 States on the 25th of October, 1867. He subsequently 
 
246 THE LAW OF CITIZENSHIP 
 
 returned to Ireland where he resided uninterruptedly 
 for a period of over fourteen years. He was imprisoned 
 by the English government for an infraction of its laws 
 and claimed an indemnity for five months' imprison- 
 ment from that government for reason of his confinement 
 as an American citizen. 
 
 It was held by the authorities of the United States: 
 " The case of British subjects naturalized in the United 
 States who return to and voluntarily resume a perma- 
 nent residence within the territorial jurisdiction of her 
 Britannic majesty must rest for settlement and deter- 
 mination upon the facts and upon well-understood and 
 settled principles. After a careful consideration of 
 the facts and circumstances of the case it is not con- 
 ceived that the claim is one which can with propriety 
 be presented by this government to the government 
 of that of Great Britain. No suggestion of this in- 
 struction, however, is to be taken as expressing an 
 opinion as to what Mr. McCormick's political status 
 would be should he return permanently to the United 
 States, nor as to the action of this government were he 
 suffering present unjust personal treatment." F. R. of 
 U. S., 1884, p. 219. 
 
 In this connection two opinions have reference: 
 " When the individual removes himself, his family and 
 his property from the country, and takes up his resi- 
 dence in a foreign country, manifesting no intention to 
 return to the United States, he is to be considered as 
 having renounced his allegiance to this government." 
 8 Op. Atty.-Grenls., p. 139. 9 Op. Atty.-Crenls., p. 
 63. 
 
 Such a presumed renunciation does not necessarily 
 
IN THE UNITED STATES. 247 
 
 change citizenship so that it may not be regained by 
 a return to the United States. 
 
 Casks of Dennis H. O'Connor, Michael Hakt, Daniel McSweeney, 
 M. B. Fogerty, Michael Baynton, Joseph B. Walsh, Joseph 
 D' Alton, John Cormick, James L. White, James F. Daly, Henry 
 O'Mahoney, William Brophy, John McBnery, Patrick Slattery. 
 
 In each of these cases the parties were citizens of 
 the United States who went to Ireland and were 
 arrested under the act of Parliament known as " An 
 act for the better protection of property and persons 
 in Ireland." 
 
 In most of the cases the option was given to the 
 arrested citizens to return to the United States if they 
 so wished. 
 
 "Any person who is declared by warrant of the 
 lord-lieutenant to be reasonably suspected of having at 
 any time since the 30th day of September, 1880, been 
 guilty as principal or accessory of high treason, treason, 
 felony, or treasonable practices, wherever committed, 
 or of any crime punishable by law committed at any 
 time since the 30th day of September, 1880, in a pre- 
 scribed district, being an act of violence or intimida- 
 tion, or the inciting of an act of violence or intimida- 
 tion, and tending to interfere with or disturb the main- 
 tenance of law and order, may be arrested in any part 
 of Ireland, and legally detained during the continuance 
 of this act in such prison in Ireland as may from time 
 to time be directed by the lord-lieutenant, without bail 
 or main prize ; and shall not be discharged or tried by 
 any court without the direction of the lord-lieutenant, 
 and every such warrant shall for the purposes of this 
 act be conclusive evidence of all matters therein con- 
 
248 THE LAW OF CITIZENSHIP 
 
 tained, and of the jurisdiction to issue and execute such 
 warrant, and of the legality of the arrest and detention 
 of the person mentioned in such warrant." 
 
 The position taken by the English government on 
 these arrests was, that it could make no distinction as 
 to the enforcement of the terms of the act between the 
 liability of foreigners and British subjects. F. K. of 
 TJ. S., 1882, p. 212. 
 
 In this the authorities of the United States con- 
 curred. 
 
 F. K. of U. S., 1882, p. 219, quoting the position 
 taken by Mr. Buchanan in 1848, when certain citizens 
 of the United States were arrested and confined in 
 Newgate prison, Dublin, under the law suspending the 
 habeas corpus : " If this law, arbitrary and despotic 
 as it is, had been carried into execution in the same 
 impartial manner against the citizens and subjects of 
 all foreign nations, this government might have sub- 
 mitted in silence." The reason for the position taken 
 by the English government is assigned by Lord Gran- 
 ville, June 28, 1881, despatch to Sir Edward Thornton. 
 Par. Pap., U. S., No. 2 (1882). 
 
 " The right of every state to subject foreigners within 
 its limits, no less than its own subjects, to every law 
 made for the maintenance of law and order, is an undis- 
 puted principle of the law of nations, and is a right 
 necessarily inherent in the sovereignty of every inde- 
 pendent community." See Phillimore on International 
 Law, vol. 1, p. 454. 
 
 The principles thus stated apply alike to exceptional 
 laws, which the necessities of state have caused to be 
 imposed, and to the action of the ordinary tribunals. 
 
IN THE UNITED STATES. 249 
 
 Foreigners, whether native born or naturalized sub- 
 jects of their own state, are equally amenable to the 
 laws for the time being in force in the country in which 
 they are resident. 
 
 In this view Mr. Blaine concurred as follows in 
 O'Connor's case, * that the act of parliament, under 
 which O'Connor is held, is a law of Great Britain, 
 and it is an elementary principle of public law 
 that in such case the government of that country, in 
 the exercise of its varied functions, judicial and execu- 
 tive, administers and interprets the law in question. 
 The right of every government in this respect is abso- 
 lute and sovereign, and every person who voluntarily 
 brings himself within the jurisdiction of the country, 
 whether temporarily or permanently, is subject to the 
 operation of its laws, whether he be a citizen or mere 
 resident. In stating this familiar principle no more is 
 conceded to Great Britain than every country may of 
 right demand, and it is one of the sovereign rights 
 which the government of the United States has always 
 insisted upon and maintained for itself." 
 
 Throughout the discussion of these cases the English 
 government did not raise the question of abandonment 
 of citizenship. 
 
 It was raised by Mr. Lowell, the minister of the 
 United States, as follows : In treaties with the North 
 German confederation, and with "Wurtemberg, the 
 United States have agreed to consider two years as the 
 reasonable limit beyond which a continuous residence 
 in his native country by the naturalized citizen of 
 another, will be considered as establishing the animus 
 manendi. In the cases of most if not all the so-called 
 32 
 
250 THE LAW OF CITIZENSHIP 
 
 suspects in Ireland, continuous residence has exceeded 
 this term; in some it has greatly exceeded it. I can- 
 not help thinking that the British government would 
 be justified in questioning the final perseverance of 
 adopted citizenship, under adverse circumstances like 
 these." F. R. of U. S., 1882, p. 240. 
 
 Under the position taken by the English government, 
 that the principles of international law sustain it to 
 the point that both foreigners and subjects should be 
 judged alike for an infringement of the law, it was 
 wholly unnecessary to call into question the natural- 
 ization treaty between the United States and Great 
 Britain, under which directly no cases appear to have 
 arisen, for the reason that it is quite agreed between 
 the two countries that the right of expatriation exists, 
 and that allegiance may be thrown off, and to be re- 
 acquired it must be under the respective naturalization 
 laws of the countries. 
 
 It is error to interpret the English treaty by the 
 German rule, nor is the interpretation put upon it, as 
 hereinbefore stated, the correct one. 
 
 The principle of intent, and the right to express the 
 intent, is an essential requisite under the international 
 common-law rule. 
 
 The construction, hereinbefore attempted in P. R. 
 of U. S., 1882, p. 240, must not be held as wise or 
 quoted. 
 
 THE PRACTICE WITH COUNTRIES WITH WHICH THE UNITED 
 STATES HAVE NO TREATIES OP NATURALIZATION 
 
 With the Argentine Republic. 
 
 The case of John S. Rowe, born of English parents 
 in the republic of Argentine; in 1868 he went to the 
 
IN THE UNITED STATES. 251 
 
 United States with the object in view of obtaining an 
 education. He remained there until 1875, during 
 which time he became a naturalized citizen of the 
 United States. In 1875 he returned to the Argentine 
 Republic and was there summoned to perform military- 
 duty as a citizen of that country; he failed to comply 
 with the order and was placed under arrest. Upon 
 demand of the United States authorities he was 
 released pending the settlement of the question, 
 which was at first allowed by the authorities of the 
 United States to be submitted to the local tribunals 
 of the Argentine Republic. This undignified position 
 assumed by the United States government was sub- 
 sequently changed by that government, and the rule 
 laid down by that government that " even in the 
 absence of a specific treaty on the subject, this gov- 
 ernment must, in consonance with the principle it 
 uniformly follows, claim for a duly naturalized citizen 
 of the United States abroad all the rights which a 
 native American citizen would possess under like 
 circumstances." Secretary Frelinghuysen to Mr. Os- 
 born, June 19, 1882. 
 
 This practice is in direct conflict with the rules as 
 laid down under the treaties of naturalization with the 
 first group of states as has been treated hereinbefore. 
 
 With the Kingdom of Italy. 
 
 The case of Felice Largomorsino. Born in Italy; 
 he emigrated to the United States when a minor, be- 
 came a naturalized citizen and in 1875 returned to 
 Torrenti in Italy, intending to spend a year in his 
 native land, and then return to the United States. A 
 few days after his arrival in Italy he was notified that 
 
252 THE LAW OF CITIZENSHIP 
 
 he had been drafted to serve in the army. He claimed 
 to be an American citizen and refused to obey the 
 summons, in consequence of his refusal he was arrested 
 on the charge of having deserted from the Italian 
 army. His case was heard and appealed to the supreme 
 court sitting in Rome, by which the charge of desertion 
 was dismissed, and it was ordered that he be remanded 
 to take his place in the army. He claimed the 
 protection of the government of the United States. 
 The Italian government insisted that the law which 
 governed the case was as follows : " There are two 
 categories of Italian foreign naturalized subjects. 
 First, the children of parents naturalized abroad, who 
 by the act of their parents have themselves become 
 aliens. Second, children of Italian parents, who have 
 themselves become naturalized in a foreign country, 
 whose parents have not changed their nationality but 
 have remained subjects of Italy." 
 
 Largomorsino was held to fall within the second 
 category, the parent who took him to the United 
 States not having become a citizen of that country. 
 It was further held that by the Italian Code " loss of 
 citizenship does not cany with it exemption from mili- 
 tary duty." He was, therefore, held to a performance 
 of that duty to the Italian government although recog- 
 nized as an American citizen. At the end of three 
 years' service he was released, yet throughout that 
 period he was held by both countries to be an 
 American. 
 
 The position taken by the authorities of the United 
 States was that his release should be granted on grounds 
 of amity and comity existing between the two coun- 
 
IN THE UNITED STATES. 253 
 
 tries. This rule was not recognized by the Italian 
 government. 
 
 It would seem that the United States, by this act, 
 fully agreed with the prevailing principle in inter- 
 national common law that Largomorsino, having failed 
 to fulfill existing obligations before his emigration 
 from Italy, could be held to a performance of such 
 obligations upon his return. Both countries, however, 
 concurred in his status as being that of an American 
 citizen. 
 
 " The government of Italy does not recognize 
 foreign naturalization as extinguishing the obligation 
 of its former subjects to military service, nor has that 
 government any treaty stipulations with the United 
 States, which in any way modify the case so far as our 
 citizens are concerned. If, therefore, such native so 
 naturalized returns to the jurisdiction to which he was 
 once subject the American passport which will be given 
 him on proper application will insure the earnest atten- 
 tion of our diplomatic and consular officers in case there 
 may be any proper opportunity to be of service to him. 
 The department cannot, however, guarantee freedom 
 from detention, nor protection and release in case 
 charges are prosecuted, based on conditions preceding 
 the acknowledgment of obligation to the United 
 States." Mr. Frelinghuysen, secretary of state, to Mr. 
 DePierre, December 16, 1883. 
 
 With Fbancb. 
 
 The case of John H. Foichat. Born in France in 
 1853 ; when seventeen years of age he emigrated to 
 the United States. In May, 1883, he became a natural- 
 
254 THE LAW OF CITIZENSHIP 
 
 ized citizen of the United States, and in April, 1884,, 
 he returned to France. He was arrested for having 
 failed, when twenty-one years of age, to report for 
 military duty on the charge of insubmission, was de- 
 tained for some time and then released. He then made 
 a claim for pecuniary damage. 
 
 Mr. Jules Ferry made reply to this claim : " Upon 
 principle we have constantly refused to admit that a 
 Frenchman naturalized in a foreign country can be ex- 
 empted, if he returns to France, from being answerable 
 for the offense of insubmission when the naturalization 
 has taken place subsequently to the existence of the 
 offense. We cannot abandon this jurisprudence, which 
 is dictated by a question of public order of a most 
 important character, and against which the government 
 of the United States would be all the less founded in 
 protesting, as it is in conformity with one of the principal 
 provisions which appear in the treaties of naturaliza- 
 tion concluded by it with certain powers." He then 
 refers to article 2 of the treaty of 1868 between the 
 United States and the kingdom of Prussia. 
 
 The correspondence in relation to this case continues 
 as follows : The principles which govern are as fol- 
 lows : First natural citizenship in France is not inci- 
 dental to the place of birth, but to parentage ; it is a 
 privilege obtained by inheritance. A Frenchman car- 
 ries with him his nationality wherever he goes, and 
 transmits it to his children wherever they are born. 
 
 A Frenchman can expatriate himself only if he 
 obtains the consent of his government. He may lose 
 his national character by doing a number of things 
 which are described in the Code, among them his 
 
IN THE UNITED STATES. 255 
 
 naturalization in a foreign country, whether with or 
 without consent of his government. By so doing he 
 cannot evade the duty of submission to the military 
 laws, provided he is a citizen of France at the time 
 when such submission is required by law. The good 
 faith in his change of citizenship may be drawn in 
 question and investigated by the French authorities. 
 They are very jealous of their military requirements 
 and hold tenaciously to their principle of performance 
 of all existing obligations which accrued before the 
 change of nationality. They maintain further that 
 the act of emigration should be by consent, for reason 
 that a record is kept of all French citizens born in and 
 out of France, and whenever a change of nationality 
 is made, it becomes a question for investigation. The 
 acquisition of citizenship in a foreign country for the 
 purpose of evading an existing law, will not avail 
 under the French law. Jules Ferry to L. P. Morton, 
 October 22, 1884. 
 
 The case of Henri Pepin. He was born in France ; 
 his father had resided in the United States and had 
 there become an American citizen ; his mother was 
 French, and after marriage went, upon one occasion, 
 temporarily, to the United States. The son had never 
 been in the United States ; he always lived in France, 
 and had expressed no intent to remove to the United 
 States and there reside. He claimed protection as 
 against the law of France, that every Frenchman must 
 render military service to his country. It was held 
 that the act of his father in returning to the country 
 of his nativity and having there resided for more than 
 twenty years, furnished the presumption of a purpose of 
 
256 THE LAW OF CITIZENSHIP 
 
 expatriation so strong that rebuttal testimony must be 
 produced in a satisfactory manner to repel the presump- 
 tion, and that no protection could be afforded against 
 the operation of the law of the country which had 
 been chosen as a domicile until such rebuttal testimony 
 is produced. F. R of U. S., 1873, p. 261. 
 
 In the case of Eugene Albert Verdelet, the facts 
 were these : He was born in France in 1862, where he 
 always resided with his family ; his father, a French- 
 man by birth, resided in the United States for thirty- 
 five years, where he became a citizen in 1853. In 1859 
 he returned to France, where he resided until he died, 
 in 1874. Upon reaching his majority. Verdelet took 
 the oath of allegiance before the American consul to 
 the United States, furnished no evidence that he pur- 
 posed living in the United States, and asked that he 
 be furnished with a certificate of his nationality from 
 the government of the United States. It was held 
 that a passport is the usual form in which this govern- 
 ment attests the nationality of its citizens. Under 
 the circumstances of Verdelet's case it is considered 
 that he is not entitled to a passport and consequently 
 that he cannot justly claim a certificate in any other 
 form attesting the fact that he has maintained his 
 American nationality. F. R, 1883, p. 285. 
 
 The case of Victor Labrone . Born in France in 1865. 
 His father, Ernest Labrone, born in France in 1829, 
 emigrated to the United States in 1853. In 1856 he 
 settled in the state of Minnesota, where, in 1856, he 
 was married. In 1863 he was duly naturalized in the 
 United States. In 1864 he was called back to France 
 and took up his residence in Bordeaux. Victor Labrone 
 
IN THE UNITED STATES. 257 
 
 took the oath of allegiance to the United States at the 
 American consulate, declaring that his domicile was 
 in Minnesota, and that it was his intention to return 
 at some future time to his domicile. He was never in 
 the United States. His application for protection was 
 in 1886. It was held by the American authorities that 
 his case came within section 1993 of the Revised 
 Statutes, by which all " children heretofore born, or 
 hereafter born, out of the limits 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." 
 
 The first question was whether the father was an 
 American citizen at the date of the birth of his son 
 Victor. There was no evidence to show that he had 
 abandoned his American citizenship. By the law of 
 nations he would be entitled when of full age to elect 
 which of the two allegiances he will accept. It was 
 held that he must make an election which "to be 
 operative must not only be formally and solemnly de- 
 clared, but must be followed by his coming to, and 
 taking up his abode as soon as practicable in the 
 United States. Should he remain voluntarily in 
 France after the period when the French law as well 
 a,s the law of nations requires him to make his election, 
 this may properly be regarded as an abandonment of 
 American, and an acceptance of French, allegiance." 
 For. Rel., 1886, p. 303. 
 
 This rule coincides with the French Municipal Code, 
 article 1 of the law of 1851. 
 
 33 
 
258 THE LAW OF CITIZENSHIP 
 
 Any individual born in France, of a foreigner, who, 
 himself, was born there, is French unless in the year 
 following the time of his majority, as fixed by French 
 rule, he claims his foreign nationality by a declaration 
 made either before the municipal authorities of the 
 place of his birth or before the diplomatic or consular 
 agents of France abroad, and establishes that he has 
 maintained his original nationality by an attestation, 
 in due form, of his government, which will remain 
 affixed to his declaration. 
 
 With Russia. 
 
 Case of Isaac Goldner. Born in Odessa, Russia, in 
 1858; when twelve years of age, in 1870, he went to 
 Germany, from there in 1872 to the United States, 
 where he remained continuously until 1880, having 
 served in the army of the United States five years of 
 that time. In 1881 he returned to Odessa on a visit 
 to his friends, and was immediately arrested and held 
 for service in the Russian army. Pending the investi- 
 gation of his case, he was released on bail, which he 
 forfeited by returning to the United States. 
 
 Case of Paul T. Batzell. Born in Riga, Russia, in 
 1848, he left for the United States in 1872, and be- 
 came a naturalized citizen. Subsequent to his naturali- 
 zation, he desired to return to Russia, solely for a 
 temporary visit. He received no reply to his request 
 from the Russian authorities. 
 
 Case of Louis Colsky. Born in Russia, and in 1862, 
 when sixteen years of age, he emigrated to the United 
 States and served in the army of the Union to the 
 close of the war ; was then naturalized ; married in 
 
IN THE UNITED STATES. 259 
 
 the United States; had four children. His parents 
 died in the meantime, leaving to him a legacy which 
 he desired to collect. He requested permission from 
 the Russian authorities to make a personal visit to his 
 former home, but received no answer. 
 
 The position taken by the Russian government is in 
 direct antagonism to the international common-law 
 practice. The municipal rule which governs such 
 cases is found in the Penal Code, article 325, which is 
 as follows : " Whoever, leaving his country, enters 
 without the authorization of the government into a 
 foreign service or becomes a citizen of a foreign power, 
 incurs on account of this violation of his oath of 
 allegiance and of his duties as a subject, the privation 
 of all his civil rights and perpetual exile beyond the 
 limits of the empire, or in case of voluntary return 
 to Russia, deportation to Siberia, to be colonized 
 there." F. R. of U. S, 1881, pp. 1028, 1029. 
 
 The principle is, that no individual can go beyond 
 the limits of the empire without a passport ; and no 
 passport is given unless all claims are discharged. 
 The claims are not by the government to perform 
 military service, but relate to taxes, personal indebted- 
 ness, suits at law, or other similar obligations. 
 
 AMERICAN CITIZENS, NOT NATIVES OP RUSSIA, NOT 
 ALLOWED IN RUSSIA BECAUSE THEY WERE JEWS. 
 
 Case of Marx Wilczynski. He was a citizen of the 
 United States by naturalization, having been born in 
 Germany. He went to Russia on business for a mer- 
 cantile firm having its head-quarters in the United 
 States. He took with him a passport as an American 
 
260 THE LAW OF CITIZENSHIP 
 
 citizen. He reached St. Petersburg, and was ordered, 
 very soon thereafter, to leave Russia ; the authorities 
 indorsing his American passport, as follows : " The 
 bearer of this passport, a North American citizen, a 
 merchant, and a Jew, Marx Wilczynski, is forbidden 
 to reside in St. Petersburg." Upon complaint made 
 to the Russian government, it was held that Wilczynski 
 might return to St. Petersburg, and remain six months. 
 
 Other cases similar to the foregoing arose at about 
 the same time, and were decided in a similar manner 
 by the Russian authorities. F. R. of U. S., 1881, pp. 
 990, 996, 1004. F. R. of U. S., 1886, p. 773. 
 
 By the treaty of 1832, between Russia and the 
 United States — a treaty of commerce and navigation — it 
 was agreed, " the inhabitants of their respective states 
 shall be at liberty to sojourn and reside in all parts 
 whatsoever of their respective territories in order to 
 attend to their affairs ; and they shall enjoy to that 
 effect the same security and protection as natives of 
 the country wherein they reside, on condition of their 
 submitting to the laws and ordinances there prevail- 
 ing, and in particular, to the regulations in force con- 
 cerning commerce." F. R. of U. S., 1881, pp. 1030- 
 1036. ' 
 
 There is no reference made to the religious belief 
 of a citizen of either country. And yet the Russian 
 government assumed and maintained the position that 
 an American citizen of the Jewish faith was not en- 
 titled when in Russia to any other or greater privileges 
 than Russian Jews enjoyed in Russia. Mr. Evarts to 
 Mr. Foster, September 4, 1880. 
 
 How this construction is admissible can only be ex- 
 
IN THE UNITED STATES. 261 
 
 plained in this way : That the laws of Eussia proscribe 
 Jews to enjoy lesser rights and privileges in Eussia, 
 than were enjoyed by other Eussian subjects. This 
 may be what was meant by the closing clause in the 
 article of the treaty, " and in particular to the regu- 
 lations in force concerning commerce." It is not to 
 be denied that certain commercial and trading privi- 
 leges were denied to Jews at that time. It is diffi- 
 cult, however, to perceive how this proscription should 
 turn against and include American citizens of the 
 Jewish faith. Ap. M. de Giers, F. E. of U. S., 1881, 
 p. 1037 
 
 When aliens come to the United States and become 
 naturalized, the government does not inquire into their 
 religion, and when once American citizens, they are 
 not protected when abroad for reason of the religion 
 which they may profess, but because they are American 
 citizens, and as such are entitled to protection. Mr. 
 Blaine to Mr. Foster, June 22, 1881, July 29, 1881, 
 Nov. 23, 1881. 
 
 Under the statutes of the United States, the natur- 
 alized citizen is entitled to the same protection when 
 abroad, as are native citizens. 
 
 Wilczynski was not a native of Eussia ; he was under 
 no obligations and bounden by no ties to that country 
 for reason of birth or otherwise. He went there as a 
 law-abiding citizen of the United States. Any dis- 
 tinction of a local nature as between inhabitants of 
 different religious beliefs, natives of Eussia, was not 
 applicable to a citizen of the United States. He was 
 not tried and found to be a Jew, which should have 
 been done. The proceeding was upon the presumption 
 
262 THE LAW OF CITIZENSHIP 
 
 that he was a Jew, and therefore he was classed with 
 those of his own faith. Nor was he tried for the vio- 
 lation of any local law, which denied to Jews the rights 
 of trade and privileges of commerce, provided there 
 had been such laws. The proceeding was arbitrary ; 
 he was entitled to a hearing, and should have had it. 
 
 Israelites in general are subject to special legislation 
 in Russia. By Code of Laws, vol. IX, ed. 1876, article 
 992, Israelites are forbidden to immigrate to Russia, 
 and to receive Russian naturalization. 
 
 To this rule there are exceptions, as found in Code 
 of Laws, ed 1857, article 530. 
 
 1. Those whom the imperial government invites 
 to come to Russia, to exercise the functions of Rab- 
 bis. 
 
 2. Those who come to Russia with the object of 
 creating manufactories and workshops (with the ex- 
 ception of distillers), and who can show a capital for 
 this purpose, of at least fifteen thousand roubles. The 
 individuals at their entry into Russia must engage, in 
 writing, to create said establishments within a period 
 of three years. In cases where they shall be found not 
 to have complied with the terms of their engagements, 
 they shall be expelled from the empire. On the con- 
 trary, in case they shall have fulfilled it, they shall have 
 the right to become Russian subjects and shall select a 
 legal status. Artisans, called to Russia by them to 
 work in the factories, shall be admitted by certificate, 
 and after a sojourn of five years and evidence from 
 their employers and the local authorities, attesting their 
 skill and their irreproachable conduct, they shall be 
 permitted to establish themselves permanently in the 
 
IN THE UNITED STATES. 263 
 
 localities of domicile acquired for Israelites, and to be- 
 come Russian subjects. 
 
 With Finland. 
 
 Although Finland is subject to Russia, yet the re- 
 lation is not such that the Penal Code, article 325, 
 relates to that territory as it does to Russia. The gen- 
 eral laws of Russia do not apply to Finland, and the 
 rule which governs there does not restrict emigration 
 nor punish the return of its former subjects natural- 
 ized in foreign countries as is done in Russia. F. 
 R. of U. S., 1881, p. 1029. 
 
 The Practice With Mexico. 
 
 There is a well-settled and fundamental principle as 
 regards citizenship which is, that no municipal law can 
 in itself create or destroy the status of a citizen when 
 established in the international common-law practice. 
 
 With Mexico there is a rule which has not received 
 approval in its application to foreigners who may 
 sojourn in that country. 
 
 The rule is that established by the thirteenth article 
 of the Mexican constitution, section three, which pro- 
 vides that foreigners who acquire real estate in the 
 republic, unless they declare their intention of retain- 
 ing their nationality, become by that act Mexican citi- 
 zens. 
 
 The declaration of the intent to retain nationality is 
 provided for by application to the foreign office of the 
 Mexican government for a certificate of matriculation. 
 
 To illustrate this rule : William Lewis Zuber, as a 
 foreigner, went to Mexico and there became possessed 
 of a piece of urban property in Mazatlan. He made 
 
264: THE LAW OF CITIZENSHIP 
 
 no application to the Mexican government prior to his 
 acquisition of this property for a certificate of matricu- 
 lation by which to obtain recognition as a foreigner 
 and retain his nationality. It was held by the Mexican 
 authorities that he had renounced his former citizen- 
 ship, and by the act of acquisition of real property had 
 become a citizen of Mexico. 
 
 Had Zuber, prior to his acquisition of the real prop- 
 erty at Mazatlan, applied for a u carta de matricula " he 
 would have retained his nationality. Having failed to do 
 so the presumption arises that he knew the provision of 
 law as contained in the Mexican constitution and 
 thereby intended to renounce his nationality and be- 
 come a Mexican citizen. 
 
 On the question of the standing before the Mexican 
 commission of certain American citizens, owners of 
 land which they cultivated in Mexico, it was decided 
 by Dr. Francis Lieber that they had not lost their. 
 American citizenship ; " the claimant has not lost his 
 nationality by the act of his having established his 
 domicile temporarily in Mexico, nor by having acquired 
 real estate there." F. R of U. S., 1886, p. 723. 
 
 There is error in the inference that a presumption 
 can arise as to an intent to acquire or renounce citizen- 
 ship. There must be an express volition. 
 
 The Mexican law provides that citizenship is ac- 
 quired by descent ; that citizenship may be acquired 
 by naturalization. These rules are consistent with the 
 practice as known to international common law, by 
 which the status of citizens is established. The further 
 rule, that by simple acquisition of real property with- 
 out procuration of certificate of matriculation, is incon- 
 
IN THE UNITED STATES. 265 
 
 sistent with the practice, and finds comparison only with 
 the fourth article of the naturalization treaty between 
 the United States and Prussia, by which the right to 
 declare an intent is taken from the citizen and he is to 
 be adjudged by his act. 
 
 It is wholly within the power of the Mexican govern- 
 ment to prescribe regulations by which foreigners may 
 reside in that country ; these must be reasonable and 
 consistent with public law. It was not reasonable to 
 prescribe, as the practice did do, that the failure of 
 a foreigner to obtain a certificate of matriculation, pre- 
 cluded his right to demand protection from his govern- 
 ment. Unquestionably foreigners are amenable to the 
 local law, but this rule does not carry with it a loss of 
 citizenship in case the foreigner failed to matriculate. 
 Nor was this the purport and intent of the rule as laid 
 down by Mexico. That government would not pro- 
 tect such an alien whom it had declared to be a 
 Mexican citizen, should such an alien so declared to be 
 a citizen of Mexico, return to his country of origin or 
 to another foreign country. The rule was a municipal 
 regulation. It did not carry with it protection abroad, 
 to such citizens so declared to be citizens without ex- 
 pression of an intent to become Mexican citizens on 
 their part. 
 
 A similar rule was laid down by the government of 
 Venezuela. In that country it was declared by law, 
 that all persons visiting Venezuela became citizens of 
 Venezuela. To this, objection was raised by the 
 United States and the rule was not enforced as against 
 the citizen of that country. 9 Op. Atty.-Genls. 356. 
 
 The Mexican rule was in conformity with the rule 
 34 
 
266 THE LAW OF CITIZENSHIP 
 
 of the Roman civil law "actor sequitur forum rei." 
 The rule as to real property questions was the rule 
 " locus rei sitae." By the matriculation requirement, 
 the authorities confirmed these rules with the declara- 
 tion that failure to take out a certificate of matricula- 
 tion was to be construed that for the purposes of 
 jurisdiction these foreigners who failed to comply with 
 the matriculation regulation were to be considered as 
 Mexican citizens. They did not become Mexican 
 citizens in the same sense as if acquisition of citizen- 
 ship had been by descent or applied for under the 
 laws of naturalization. 
 
 There is no other construction to be put upon the 
 rule, for the reason that it did not carry with it the 
 protection abroad which is the most essential element in 
 citizenship, as recognized in the international common- 
 law practice. 
 
 In what respect as to amenability to the Municipal 
 Code of Mexico were foreigners exempt who did take 
 out the certificate of matriculation ? The common-law 
 rule, which was based on a pure legal fiction, was not 
 applicable to Mexico, by which personal actions, 
 whether arising ex contractu or ex delicto, were tran- 
 sitory. In Mexico, taking its rules -from the Roman 
 civil law, there was no fiction in this regard by which 
 a personal action, arising from tort or contract, was 
 supposed to have been inflicted or contract to have 
 been made within the local jurisdiction, and this per- 
 mits the action to be brought in the domestic forum. 
 
 The Roman rule was incorporated into the modern 
 international law ; the right was recognized of foreign- 
 ers to contract with citizens of other states, in the state 
 
IN THE UNITED STATES. 267 
 
 of such citizens, and vice versa, which right necessarily 
 draws after it the authority of the local tribunals to 
 ■enforce the contracts thus made, whether the suit is 
 brought by foreigners or by citizens. Foelix, Droit 
 International Prive, §§ 122, 123. Wheaton Inter- 
 national Law, § 20. 
 
 It would seem that the conclusion must be, that the 
 rule requiring matriculation in Mexico, in order to pre- 
 serve the nationality of a foreigner sojourning in that 
 country, was not in effect a change of citizenship, for 
 the reason that it could not obtain recognition in the 
 international common-law practice. As an internal 
 regulation, it went too far, but more in terms than in 
 fact. With the United States, it originally precluded 
 the right of intervention, by which to afford protection 
 to its citizens in some cases ; since then, however, the 
 rule has been modified in this, that it is left optional 
 with foreigners residing in Mexico, to request a cer- 
 tificate of their nationality, which will be issued to 
 them by the secretary of foreign relations. There is 
 no ground for a rule by which to preclude the right of 
 a country to intervene and protect its citizens. The 
 United States took the position in the case of Zuber, 
 hereinbefore cited, that instructions should be issued 
 by which to notify citizens of the United States, that 
 they be made aware of the existence of the Mexican 
 law, in order to avoid their being brought into trouble ; 
 although it did not recognize the right of the Mexican 
 government, by its laws, to thus force a change of 
 citizenship on its citizens, who might sojourn in Mexico, 
 and there acquire real estate. 
 
 In another case, however, the force of a law by 
 
268 THE LAW OF CITIZENSHIP 
 
 which citizenship was held to have been changed by a 
 former citizen of the United States was recognized. 
 It was the case of James W. Smith, a former citizen of 
 the United States, who entered the military service of 
 the republic of Mexico. By the laws of that country, 
 this act worked a change of citizenship, and Smith be- 
 came a citizen of the republic; after his death, the 
 question arose as to the nationality of his minor chil- 
 dren who had been born in the United States. 
 
 It was held: "If within the jurisdiction of the 
 United States, their right to American citizenship 
 would be unimpaired, and even if within Mexican 
 jurisdiction during minority, they would, in the ab- 
 sence of any Mexican law specifically attaching the 
 altered status of the father to his minor children 
 within Mexican jurisdiction, be still properly regarded 
 as American citizens. But if there be such a law, or 
 if, on attaining majority, they remain in Mexico, and 
 come within any provision of Mexican law, making 
 them citizens of that republic, they could not be 
 regarded as citizens of the United States." Mr. Seward,, 
 secretary of state, to Mr. Foster, August 13, 1879. 
 
 The case of Emilio Boig. Born in Russia, he emi- 
 grated to the United States in 1871, and five years 
 later became a naturalized citizen. Subsequently he 
 went to Mexico where he was arrested, and forced into 
 the army. He applied for protection. It was held by 
 the Mexican government, that because he had not ap- 
 plied for a certificate of matriculation as an American 
 citizen, that he could not be recognized as an American 
 citizen in Mexico. 
 
 These vexed questions, which have caused so much 
 
IN THE UNITED STATES. 269 
 
 feeling between the United States and Mexico, have 
 been solved by laws defining the status of citizens and 
 foreigners in the Mexican republic, passed in 1886. 
 
 .MEXICO — LAW CONCERNING FOREIGNERS AND NATURAL- 
 IZATION — PROMULGATED IN 1886. 
 
 CHAPTER I. — Of Mexicans and Fokeiqnbks. 
 
 Aeticle 1. Mexicans are : 
 
 (1) Those born on national territory, of a father 
 Mexican by birth or by naturalization. 
 
 (2) Those born on national territory, of a Mexican 
 mother and a father not recognized as such by the laws 
 of the republic. Those born of unknown parents or 
 of unknown nationality shall be likewise [so] consid- 
 ered. 
 
 (3) Those born outside the republic, of a Mexican 
 father who has not lost his nationality. If this should 
 have occurred, those children shall be reported as for- 
 eigners ; having the option, though, of becoming Mex- 
 icans within one year from the day they attain twenty- 
 one years, provided, if they live abroad, they make the 
 due declaration before diplomatic or consular agents of 
 the republic; or, if they reside in national territory, 
 before the department of foreign affairs. 
 
 Should the children referred to in the preceding 
 paragraph reside in national territory, and should they, 
 on arriving at maturity, accept any public position, or 
 serve in the army, navy or the national guard, they 
 shall be considered Mexicans in virtue thereof, without 
 the need of further formalities. 
 
 (4) Those born outside the republic, of a Mexican 
 mother and unknown father, provided the former has 
 
270 THE LAW OF CITIZENSHIP 
 
 not lost her nationality, according to the provisions of 
 this law. If the mother should become naturalized in 
 a foreign country her children shall be foreigners ; but 
 they shall have the option of becoming Mexicans 
 under the terms and conditions of the preceding para- 
 graph. 
 
 (5) Those Mexicans who having under the provis- 
 ions of this law lost their national character, and who 
 may have recovered it by complying with the due 
 requisites, according to the different cases treated of. 
 
 (6) The foreign woman who marries a Mexican, and 
 who, even during her widowhood, retains her Mexican 
 nationality. 
 
 (7) Those born outside the republic, but who, being 
 here in the year 1821, and having taken the oath of 
 independence, have continued to reside in national 
 territory and have not changed their nationality. 
 
 (8) Those Mexicans who, established in the territory 
 ceded to the United States by the treaties of February 
 2, 1848, and of November 30, 1853, complied with the 
 requirements of said treaties to preserve their Mexican 
 nationality. Mexicans who continue to reside in ter- 
 ritory belonging to Guatemala are in the same cate- 
 gory, also citizens of that republic remaining in ter- 
 ritory belonging to Mexico, as specified by the treaty 
 of September 27, 1882, provided said citizens comply 
 with the stipulations of the fifth article of that treaty. 
 
 (9) Foreigners who may become naturalized under 
 the present law. 
 
 (10) Foreigners who acquire real estate in the re- 
 public, provided they do not specify their intention of 
 preserving their nationality — as soon as the property 
 
IN THE UNITED STATES. 271 
 
 is acquired the foreigner shall state to the notary, or 
 the respective receiver, whether or not he desires to 
 obtain Mexican nationality, as granted under paragraph 
 3 of the thirtieth article of the constitution, and the 
 decision of the foreigner shall appear in the body of 
 the document. 
 
 If he select Mexican nationality, or fail at the time 
 to designate any preference, he may still within a year 
 resort to the department of foreign affairs to comply 
 with the requirements of article 19, and be considered 
 a Mexican. 
 
 (11) Foreigners with children, born in Mexico, who 
 do not prefer to retain their character as foreigners. 
 On registering the birth of the child, the father shall 
 indicate his intention in this particular to the judge 
 of the civil register, and the same shall be recorded in 
 the body of the document. If he should select Mexi- 
 can nationality, or fail to state his intention in that 
 particular, he will still be able to resort to the depart- 
 ment of foreign affairs within a year to comply with 
 requirements of the nineteenth article and be consid- 
 ered a Mexican. 
 
 (12) Those foreigners who officially serve the gov- 
 ernment or accept therefrom titles or public offices, 
 provided that within one year from the date of accept- 
 ance of those titles or public offices which should be 
 conferred upon them, or from the commencement of 
 their official service to the Mexican government, they 
 resort to the department of foreign affairs to comply 
 with the requirements of the nineteenth article, and be 
 considered as Mexicans. 
 
 Aet. 2. Foreigners are: 
 
272 THE LAW OF CITIZENSHIP 
 
 (1) Those born outside of national territory, sub- 
 jects of foreign governments, and who have not be- 
 come naturalized in Mexico. 
 
 (2) The children of a foreign father, or foreign 
 mother and unknown mother, born on national terri- 
 tory, until they reach the age when, according to the 
 law on nationality of the father or mother respectively, 
 they cease to be minors. If for one year after they 
 arrive at maturity they do not file with the local au- 
 thorities of the place of their residence their intention 
 of retaining the nationality of their parents, they shall 
 be considered Mexicans. 
 
 (3) Those absent from the republic without leave 
 or license from the government, unless on account of 
 studies, or for public interests, or commercial or indus- 
 trial pursuits, or in the exercise of a profession, who 
 allow ten years to elapse without asking for a proroga- 
 tion of their term of absence. This prorogation shall 
 not exceed five years on each application, and after the 
 first prorogation is granted, good and sufficient reasons 
 must be given before another can be obtained. 
 
 (4) Mexican women who marry foreigners, and who 
 preserve the character of foreigners even during their 
 widowhood, the marriage being dissolved, the native 
 woman can recover her nationality, provided that, in 
 addition to residing in this republic, she make due 
 declaration before the civil judge nearest her residence 
 of her intention to recover that nationality. 
 
 The Mexican woman who, under the laws of her 
 husband's country, does not assume his nationality by 
 her marriage shall retain her own. 
 
 The change of the husband's nationality after mar- 
 
IN THE UNITED STATES. 273 
 
 riage implies a similar change in that of the wife and 
 the minor children subject to the father's authority, pro- 
 vided they live in the country of naturalization of the 
 husband or father, respectively, with the sole exception 
 stated in the preceding clause of this paragraph. 
 
 (5) Mexicans naturalized in other countries. 
 
 (6) Those who, without leave of congress, officially 
 serve foreign governments in any political, administra- 
 tive, judicial, military or diplomatic capacity. 
 
 (7) Those who, without previous leave of the fed- 
 eral congress, accept foreign decorations, titles or offices, 
 save in the case of literary, scientific or humanitarian 
 titles, all of which they are free to accept. 
 
 Art. 3. In order to determine the place of birth in 
 the above cases, it is hereby declared that national ves- 
 sels, without any distinction, are part of the national 
 territory, and that those born on board of them are 
 considered as being born within the republic. 
 
 Art. 4. In virtue of the right of extra-territoriality 
 enjoyed by diplomatic agents the children of ministers 
 and employees of the legations of the republic will 
 never be regarded as being born outside the republic. 
 
 Art. 5. The nationality of legally responsible per- 
 sons or beings is regulated by the law which authorizes 
 the same. In consequence, all those so constituted, 
 according to the laws of the republic, shall be Mexi- 
 cans, if, in addition, they make it their legal resi- 
 dence. 
 
 Legally responsible foreigners enjoy in Mexico the 
 rights guaranteed by the laws of their country in so 
 far as these do not conflict with the laws of the nation. 
 35 
 
274 THE LAW OF CITIZENSHIP 
 
 CHAPTER II.— Of Expatriation. 
 
 Aet. 6. The Mexican republic recognizes the right 
 of expatriation as being natural and inherent in every 
 man, and necessary to the enjoyment of individual 
 liberty. In consequence, while it allows its inhabitants 
 to exercise this right, so they can leave its territory 
 and settle in a foreign land, it also protects the right 
 of foreigners of all nationalities who seek to settle 
 within its jurisdiction. The republic, therefore, re- 
 ceives subjects or citizens of other states, and natural- 
 izes them under the provisions of this law. 
 
 Art. 7. Expatriation and consequent naturalization 
 obtained in a foreign land do not exempt the criminal 
 from extradition, trial or punishment to which he may 
 be subject under the provisions of treaties, interna- 
 tional law, and the law of the land. 
 
 Aet. 8. Citizens naturalized in Mexico, even if 
 abroad, have a right to equal protection on the part of 
 the government of the republic with native-born 
 Mexicans in their persons or their property. This does 
 not, in case they return to their native land, exempt 
 them from responsibilities incurred before the natural- 
 ization, under the laws of that land. 
 
 Aet. 9. The Mexican government shall, through the 
 channel of international law, protect Mexican citizens 
 when abroad. The president, as he may deem neces- 
 sary, shall make use of these means, provided they do 
 not constitute acts of hostility. But if diplomatic in- 
 tervention be not sufficient, and such measures prove 
 futile, or if the offenses against the Mexican nation be 
 serious enough to demand severer measures, the jpresi- 
 
IN THE UNITED STATES. 275 
 
 dent shall notify congress thereof, and furnish the re- 
 spective documents for constitutional effect. 
 
 Akt. 10. The naturalization of a foreigner becomes 
 nullified by his residence in his own country for two 
 years, unless he be absent on an official commission 
 for the Mexican government, or with the permission 
 of the same. 
 
 CHAPTER HI.— Of Naturalization. 
 
 Art. 11. Foreigners who comply with the requisites 
 of this law may be naturalized in the republic. 
 
 Art. 12. At least six months before applying for 
 naturalization papers the applicant should state in 
 writing, before the municipal council of his place of 
 residence, his intention of becoming a Mexican citizen 
 and of resigning his foreign nationality. The munic- 
 ipal authorities shall give him a certified copy of his 
 application and preserve the original in their archives. 
 
 Akt. 13. When the said six months shall have 
 passed, and the foreigner has resided two years in the 
 republic, he may apply to the federal government for 
 his certificate of naturalization. To obtain it he should 
 first present himself to the district judge in whose 
 jurisdiction he resides, and furnish proof of the fol- 
 lowing : 
 
 (1) That according to the law of his land, he en- 
 joys all civil rights, being of age. 
 
 (2) That he has resided in the republic at least 
 two years, and has observed good conduct. 
 
 (3) That, for his living, he has some business, in- 
 dustry, profession or revenue. 
 
 Art. 14. The applicant shall add to the petition 
 presented to the district judge a copy of the certificate 
 
276 THE LAW OF CITIZENSHIP 
 
 issued by the municipal authorities, as specified in ar- 
 ticle 12. He shall also make an express renouncement 
 of all submission, obedience or fidelity to foreign gov- 
 ernments, and especially to that of which he had been 
 a subject, disclaiming also all protection outside of the 
 laws and authority of Mexico, and all rights which, by 
 treaties or international law, are guaranteed to for- 
 eigners. 
 
 Art. 15. The district judge, prior to the ratification 
 made by the applicant, in the presence of the district 
 attorney, shall take the deposition of witnesses on the 
 points referred to by article 1 3, and, if he deem it 
 necessary, shall obtain the report which the municipal 
 council should furnish, as promised in article 12. 
 
 The judge shall also admit any other proofs pre- 
 sented by the interested party touching the points in- 
 dicated in article 13, and shall consult the judgment 
 of the district attorney. 
 
 Art. 16. In case the decision of the judge be favor- 
 able to the applicant, he shall transmit the legal 
 documents, in original, to the department of foreign 
 affairs, applying for the certificate of naturalization, 
 provided there be no legal motive to impede the same. 
 Through the said judge the interested party shall 
 transmit a petition to that department asking for the 
 certificate of naturalization, ratify his renouncement of 
 the rights of a foreigner, and protest adherence, obe- 
 dience and submission to the laws and authorities of 
 the republic. 
 
 Art. 17. Foreigners serving in the national merchant 
 marine may become naturalized, one year of service on 
 board sufficing instead of two years, as otherwise 
 
IN THE UNITED STATES. 277 
 
 required under article 13. The district judge of any 
 of the ports touched by the ship is amply authorized 
 to negotiate this matter, and, likewise, any of the 
 municipal authorities of those x»orts may receive the 
 petitions treated in article 12. 
 
 Art. 18. Foreigners naturalized under this law are 
 not included in the provisions of articles 12, 13, 14, 15 
 and 16, neither are they who have the option of Mex- 
 ican nationality. In consequence, children of a Mexi- 
 can father or mother, who has lost his or her citizenship, 
 and to whom the third and fourth paragraphs of 
 article 1 refer; the foreigner who marries a Mexican, 
 referred to in paragraph 6 of the same article ; the 
 children of a foreign mother and unknown father, horn 
 on national territory, as specified in paragraph 2 of 
 article 2 ; and a Mexican widow of a foreigner, as 
 treated in paragraph 4 of the same article, shall be 
 considered as legally naturalized by solely complying 
 with the requisites in such cases and without the neces- 
 sity of other formalities. 
 
 Art. 19. Foreigners who find themselves within the 
 scope of paragraphs 10, 11 and 12 of article 1 may 
 apply to the department of foreign affairs for their 
 certificate of naturalization within the terms specified 
 therein. Their petition should be accompanied by a 
 document accrediting them, as the case may be, with 
 the acquisition of real estate, or that they had children 
 born in Mexico, or had accepted some public position. 
 They will also present the renouncement and protest 
 required under articles 14 and 16 for ordinary natu- 
 ralization. 
 
 Aet. 20. Absence in a foreign land by permission 
 
278 THE LAW OF CITIZENSHIP 
 
 of the government does not conflict with the residence 
 clause in article 13, provided it does not exceed six 
 months during any period of two years. 
 
 Art. 21. Certificates of naturalization shall not be 
 extended to subjects or citizens of any nation with 
 which the republic may be engaged in war. 
 
 Art. 22. Neither shall certificates be given to those 
 who are judicially repudiated, and in other countries 
 declared to be pirates, slave dealers, incendiaries, coun- 
 terfeiters of coin, or forgers of. bank bills or other 
 paper passing current as money, nor assassins, kidnap- 
 pers or thieves. By common right, naturalization 
 papers fraudulently obtained by a foreigner in viola- 
 tion of the law are null and void. 
 
 Art. 23. The certificates of naturalization shall be 
 issued gratuitously, nor may any fee for costs, registry, 
 seal or other expense be collected thereon. 
 
 Art. 24. The act of naturalization being a very 
 personal matter, the petitioner may only be repre- 
 sented by a proxy who has special and sufficient 
 powers for the act, and who holds the renouncement 
 and protest made in person by the interested party 
 himself, according to articles 14 and 16. But in no 
 case may the powers of the proxy substitute the actual 
 residence of the foreigner in the republic. 
 
 Art. 25. The character of citizen or of foreigner is 
 not transferable to a third party. Therefore, for ob- 
 vious reasons, neither can the citizen enjoy the rights 
 of a foreigner, nor the latter the prerogatives of the 
 former. 
 
 Art. 26. The change of nationality does not produce 
 retroactive effects. The acquisition and rehabilitation 
 
IN THE UNITED STATES. 279 
 
 of the rights of a Mexican only take effect on the day 
 following that on which all the conditions and settled 
 formalities of this law have been complied with to 
 obtain naturalization. 
 
 Akt. 27. Colonists who come to this country under 
 contract with the government, and whose expenses for 
 traveling and installation are paid by the same, shall 
 be considered Mexicans. In their enrollment contract 
 shall be specified their intention to renounce their 
 former nationality and adopt the Mexican, and on set- 
 tling in the colony they shall file with the competent 
 authorities the renouncement and protest, as required 
 under articles 13 and 16. The authorities shall send 
 the same to the department of foreign affairs, which 
 in turn shall issue the certificate of naturalization in 
 favor of the interested party. 
 
 Aet. 28. Colonists who come here on their own ac- 
 count, or for private companies and organizations not 
 subventioned by the government, and also immigrants 
 of all classes, may become naturalized in each case 
 under this law. Colonists established up to the pres- 
 ent are subject also to the law in this particular in 
 every respect that does not conflict with the rights ac- 
 quired through their contracts. 
 
 Art. 29. The naturalized foreigner shall become a 
 citizen of the republic as soon as he complies with the 
 conditions required by article 34 of the constitution, 
 being clothed with all the rights and obligations as a 
 Mexican citizen ; but he shall not be qualified to dis- 
 charge those trusts or employments which, in conform- 
 ity with the laws, require the nationality by birth, 
 unless he had been born in national territory, and that 
 
280 THE LAW OF CITIZENSHIP 
 
 said nationality had been effected by paragraph II of 
 article 2. 
 
 CHAPTER IV. — Of the Rights and Obligations of Foreigners. 
 
 Art. 30. Foreigners in the republic share the civil 
 rights pertaining to Mexicans, and the guarantees of- 
 fered in section 1, title 1, of the constitution, with the 
 sole exception of the faculty held by the government 
 for the expulsion of pernicious foreigners. 
 
 Art. 31. In the acquirement of waste and govern- 
 ment lands, of real estate and of ships, foreigners are 
 not obliged to reside in the republic, but are subject 
 to the restrictions imposed by the laws now in force, 
 with the understanding that all leases of real estate 
 made to a foreigner shall be considered as sales if the 
 term of the contract exceed ten years. 
 
 Art. 32. The federal law alone can modify the civil 
 rights of foreigners by the principle of international 
 reciprocity, so that, therefore, foreigners may be sub- 
 ject in this republic to the same legal disqualifications 
 which the laws of their country impose on Mexicans 
 there resident. Consequently the provisions of the 
 Civil Code and of district procedure possess, in this re- 
 spect, a federal character and are obligatory through- 
 out the union. 
 
 Art. 33. Foreigners, without forfeiting their own 
 nationality, may make their homes in the republic for 
 all legal effects. The acquirement, change or relin- 
 quishment of their residences are subject to the laws 
 of Mexico. 
 
 Art. 34. In case of the suspension of individual 
 guarantees, in the terms prescribed by the twenty- 
 
IN THE UNITED STATES. 281 
 
 ninth article of the constitution, foreigners and Mexi- 
 cans are alike subject to the law decreasing the sus- 
 pension, save in the case of treaty stipulations. 
 
 Art. 35. Foreigners are obliged to contribute 
 toward public expenses in the manner prescribed by 
 the laws, and are also required to respect and obey the 
 institutions, laws and authorities of the country, sub- 
 jecting themselves to the decisions and sentences of 
 the courts, and without appeal to other resources than 
 are granted to Mexicans by the laws. They can ap- 
 peal to the via diplomatica only in case of the denial 
 of justice or of voluntary delay in its administration, 
 after having exhausted, without effect, the common 
 legal resources, and that as determined by interna- 
 tional law. 
 
 Art. 36. Foreigners do not enjoy the political rights 
 of Mexican citizens. They, therefore, cannot vote nor 
 be voted for in any popular election, nor be named for 
 any position or commission in a state career. Nor can 
 they join the army, navy or national guards, nor be- 
 come associated with, or engaged in, the political ques- 
 tions of the country, nor exercise the right of petition 
 in these matters. This is understood not to conflict 
 with the provisions of article 1, paragraph XII, and of 
 article 19 of this law. 
 
 Art. 37. Foreigners are exempt from military ser- 
 vice. Foreign residents, though, are obliged to serve 
 as police in the event of preserving property and of 
 maintaining order in the place in which they live. 
 
 Art. 38. Foreigners participating in the civil dis- 
 sensions of the country may be expelled from its ter- 
 ritory as pernicious foreigners, being subject to the 
 36 
 
282 THE LAW OF CITIZENSHIP 
 
 laws of the republic for any crimes they may commit 
 against it, and without the privilege of having their 
 rights and obligations regulated by international law 
 or by treaties in case of a state of war. 
 
 Art. 39. The laws establishing the matriculation of 
 foreigners are repealed. The department of foreign 
 affairs alone can issue certificates of determined na- 
 tionality to foreigners soliciting the same. These cer- 
 tificates constitute a legal presumption of foreign citi- 
 zenship, but proofs to the contrary are not barred. 
 The definite proof of determined nationality is pre- 
 sented before the competent courts and by the means 
 established by laws or treaties. 
 
 Art. 40. This law does not concede to foreigners 
 any rights denied them by international law, by treaties 
 or by the laws in force in the republic. 
 
 CHAPTER V.— Transitory Measures. 
 
 Article 1. Foreigners who have acquired real es- 
 tate, or have had children in Mexico, or have held some 
 'public position, and who are embraced in the provis- 
 ions of paragraphs X, XI and XII of article 1 of this 
 law, are obliged to manifest within six months after 
 its publication, provided they have not previously done 
 so, to the political authorities of their place of resi- 
 dence, whether they desire to obtain Mexican national- 
 ity or to retain that of foreigners. In the first event, 
 they should immediately apply for the certificate of 
 naturalization, according to the form prescribed in ar- 
 ticle 19 of this law. If they fail to manifest, as indi- 
 cated, they shall be considered Mexicans, save in cases 
 where official declaration has been made on that point. 
 
IN THE UNITED STATES. 283 
 
 Art. 2. Colonists resident in the country, to whom 
 the last part of article 28 of this law refers, shall man- 
 ifest, in the manner specified in the preceding article, 
 the nationality they wish to retain, and also apply for 
 their certificate of naturalization under the provisions 
 of that article, if the nationality they desire be Mexi- 
 can. 
 
 Art. 3. The executive, in issuing the necessary reg- 
 ulations for the execution of this law, shall see that 
 requisite measures are taken, so that the local authori- 
 ties may, as far as they are concerned, give it due ful- 
 fillment. 
 
 With Turkey. 
 
 In Turkey there governs a rule similar to the rule of 
 matriculation as promulgated in Mexico. 
 
 The bureau of nationality certifies to the nationality 
 of foreigners, which is held to be a prerequisite to main- 
 tenance of citizenship. 
 
 In the year 1869, the Turkish government issued an 
 order forbidding Turkish subjects to leave the country 
 without permission to become naturalized in another 
 country. 
 
 The law as laid down by article V, of the legislation 
 Ottomanes, is as follows : The Ottoman subject, who 
 has acquired a foreign nationality with the author- 
 ization of the imperial government, is considered and 
 treated as a foreign subject. If, on the contrary, he 
 has naturalized himself as a foreigner without the 
 preliminary authorization of the imperial government, 
 his naturalization will be considered as null and void, 
 and he will continue to be considered and treated in 
 all respects as an Ottoman subject. No Ottoman sub- 
 
284 THE LAW OF CITIZENSHIP 
 
 ject can in any case acquire foreign naturalization until 
 after obtaining an act of authorization delivered by 
 virtue of an imperial irade. 
 
 The condition precedent to naturalization in a for- 
 eign country, that the authorization of the imperial 
 government, should be had for Turkish subjects before 
 their naturalization abroad would obtain recognition 
 upon return to their country of origin. This regulation 
 does not prohibit emigration. It requires that the 
 departure should be lawfully authorized. It affords 
 an opportunity to protect the government, to protect 
 creditors and investigate the condition of the would-be 
 emigrant as appertains to pauperism and crime. By 
 it, the government is made aware of its subject's rela- 
 tions at the time of application for a certificate, and 
 the intended future relations which the emigrant 
 desires to assume. The government is enabled to 
 inquire into unfulfilled and existing obligations which 
 must be performed before departure. 
 
 By article IX of the legislation Ottomane, the fol- 
 lowing rule is laid down : " Every individual inhabit- 
 ing Ottoman territory is reputed an Ottoman subject, 
 and will be treated as such until his character as a 
 foreigner is verified in a regular manner." 
 
 The bureau of nationality is open for this investiga- 
 tion, where, by application, the foreigner may establish 
 his citizenship, pursuant to prescribed rules. As to 
 these rules there has been much discussion. The Turk- 
 ish government contravenes the principle of interna- 
 tional common law, that a passport issued by a govern- 
 ment to one of its citizens, was prima facie evidence of 
 the citizenship of the person to whom the passport was 
 
IN THE UNITED STATES. 285 
 
 issued. This rule was not satisfactory to the Turkish 
 government, which went still further and demanded 
 the full and complete evidence, showing the manner in 
 which the application for citizenship was made, and the 
 form of the certificate granted as the judgment of the 
 court in the application. Other impediments were 
 placed in the way of former Turkish subjects, and in 
 this regard a distinction was made between citizens of 
 the United States, by descent or by naturalization, 
 who were former subjects of other countries, and those 
 who were formerly subjects of the Ottoman empire. 
 In this demand the Turkish government cannot pre- 
 vail in the international practice, in cases where the 
 subject departed with authority, in this, that a distinc- 
 tion be drawn between citizens of a foreign country, 
 for reason that some of such citizens were former Turk- 
 ish subjects. The rule is, that the applicant who de- 
 sires to establish his citizenship, whenever there is any 
 question, must himself furnish the evidence of what he 
 claims, which evidence must be satisfactory to the 
 authorities in charge of the bureau of nationality. This 
 bureau is a special commission, appointed at the minis- 
 try of foreign affairs, with the charge to ascertain 
 through an investigation, based on the treaties, conven- 
 tions and existing laws and regulations, the real nation- 
 ality of individuals, who, as presumed Ottoman sub- 
 jects, claim to be of foreign nationality or under foreign 
 protection. F. R, 1886, p. 864. 
 
 The practice differs from the Turkish rule. 
 
 If the departure was legal this ends the question, 
 and it cannot be raised upon return to the country of 
 origin. It is open upon return, for the government to 
 
286 THE LAW OF CITIZENSHIP 
 
 inquire into the naturalization, in order to ascertain if 
 the same was legal in all respects, and to call the atten- 
 tion of the government, under which the naturalization 
 was made, to any errors which the government will aid 
 in the investigation of such questions, in the interests 
 of • conformity to its own laws, and to prevent fraud. 
 This was the practice with Germany and other states. 
 
 With Colombia. 
 
 The laws which govern citizenship are as follows : 
 Political constitution of Colombia, of date December, 
 1885. 
 
 Article 8. The following persons are declared to be 
 Colombians : 
 
 (1) By birth. Those who are natives of Colombia, 
 under either of the following conditions : That the 
 father or the mother was a native of Colombia, or that, 
 being the children of foreigners, they are domiciled in 
 the republic. The legitimate children of a Colombian 
 father or mother, who were born in a foreign country, 
 and shall have afterward fixed their domicile in the 
 republic, are considered Colombian by birth, for the 
 purposes indicated in the laws that determine this con- 
 dition. 
 
 (2) By origin or vicinity. Those who are born in 
 foreign countries, of a Colombian father or mother, and 
 are domiciled in the republic, and all Spanish- Ameri- 
 cans who may have appeared before the municipal 
 authorities of the place in which they reside, and regis- 
 ter themselves as Colombians. 
 
 (3) By adoption. Those foreigners who apply for, 
 and obtain letters of naturalization. 
 
IN THE UNITED STATES. 287 
 
 Article 9. The status of the Colombian citizen is 
 forfeited by obtaining letters of administration in a 
 foreign country, fixing therein his domicile, and he may 
 recover it under laws enacted for that purpose. 
 
 Article 16. Citizenship is lost when nationality is 
 lost. The quality of citizens shall also be forfeited in 
 either of the following cases when judicially declared: 
 
 (1) When he enters the service of a nation at war 
 with Colombia. 
 
 (2) When he shall have belonged to a rebellious 
 faction against the government of a friendly nation. 
 
 (3) When he shall be condemned to suffer corporeal 
 punishment. 
 
 (4) When he shall have been removed from public 
 office by means of a criminal procedure or of an act 
 affecting his civil responsibility. 
 
 (5) When he shall have committed acts of violence, 
 falsehood or corruption in elections. 
 
 All persons who may have lost their citizenship may 
 petition the senate for restoration. 
 
 With the Hawaiian Islands. 
 
 The case of Peter Cushman Jones. Born in the 
 United States, of parents who were citizens of the 
 United States, in 1837. When twenty years of age he 
 went to the Hawaiian Islands. In the year 1864 he 
 took an oath to the government that '' he would sup- 
 port the constitution and laws of the Hawaiian Islands 
 and bear true allegiance to his majesty the king." Sub- 
 sequent to this, by which he became a citizen, he voted 
 and used his influence for good government. He did 
 this in order to protect his business interests. He desired 
 
288 THE LAW OF CITIZENSHIP 
 
 to re-acquire his citizenship as a citizen of the United 
 States, and asked for instructions. 
 
 It was held " to constitute expatriation there must 
 be an actual removal followed by foreign residence, 
 accompanied by authentic renunciation of pre-existing 
 citizenship." 8 Op. Atty.-Genls. 139. 
 
 Further than this, no information was imparted by 
 opinion, only the suggestion that the question might at 
 some future time become a matter for judicial investi- 
 gation. F. E. of U. S., 1882, p. 346. 
 
 It would seem that Mr. Jones having complied with 
 the laws of the Hawaiian Islands, by which he became 
 a citizen, and as such exercised his rights and enjoyed 
 his privileges, that he thereby renounced his American 
 citizenship, and could only renew it by compliance with 
 the laws of naturalization precisely the same as would 
 any other alien. To deceive the citizens of the Hawaiian 
 Islands in his contract with them, that he did not in- 
 tend what he did do in good faith, and only did what he 
 did do to accomplish a certain purpose, namely, pro- 
 tect his business interests and nothing more, certainly 
 could not be countenanced by his former fellow-citi- 
 zens in the United States. Then again he had his 
 business interests there ; he had his domicile there ; 
 nothing appears to show that he intended to return to 
 the United States ; evidently he was there for a per- 
 manent purpose which, coupled with his act by which 
 he took the oath to the king, should be construed as a 
 renunciation of his rights and claims as an American 
 citizen. He could not be under oath to the United 
 States and to the Hawaiian Islands and do his duty by 
 and to both. Such a dual relation would be both im- 
 
IN THE UNITED STATES. 289 
 
 practicable and illegal. There was but one instruction 
 to give him and that was, that he had lost his American 
 citizenship in the exercise of his rights as an American 
 citizen, and must re-acquire it as any alien would do. 
 He had the right of expatriation as an American citi- 
 zen. 
 
 ALIENS. 
 
 Aliens are citizens or subjects of a foreign state resid- 
 ing in another state. The residence may be temporary 
 or permanent. 
 
 An alien enjoys rights and privileges in the country 
 in which he is resident ; he is subject to the laws the 
 same as are citizens ; he may seek redress in the courts 
 for wrongs done, and is within the jurisdiction of the 
 courts for his own wrong-doings. He is entitled to 
 full protection, and owes local allegiance to the laws 
 of the land. 
 
 It is the duty of the president, to whom the care 
 of our foreign relations is committed, to take all law- 
 ful measures for the protection of alien subjects of a 
 state with which the United States are at peace, who 
 shall come within our territory and place themselves 
 under the safeguard of our laws with the consent of 
 the general and state governments. 3 Op. Atty.-Grenls. 
 253. Taylor vs. Carpenter, 3 Story, 458. 7 Op. Atty.- 
 Genls. 229, 351. 
 
 For better care and protection, it is the custom to 
 send ambassadors, envoys, ministers and consuls to a 
 country in which foreigners have taken residence. 
 This is done by all civilized countries. In time of war 
 between countries, these representatives withdraw and 
 for the protection of their fellow-citizens, the represent- 
 37 
 
290 THE LAW OF CITIZENSHIP 
 
 atives of other countries which are at peace with the 
 countries at war, are placed in charge of the citizens 
 of the countries at war. Notably was this the case 
 during the late war between Germany and France, 
 during which the minister of the United States to 
 France was requested to take charge of German sub- 
 jects in France, and the English ambassador to Ger- 
 many was requested to take charge of French subjects 
 in Germany, after the withdrawal of the respective 
 representatives from either country. 
 
 Aliens in a country owe a temporary and local 
 allegiance to the country in which they reside. That 
 is, they become subject to the laws of the country and 
 impliedly agree to obey the law of the land. 
 
 "Aliens domiciled in the United States owe a local 
 and temporary allegiance to the government of the 
 United States. They are bound to obey all the laws 
 not immediately relating to citizenship during their 
 residence and are equally amenable with citizens for 
 any infraction of those laws." Carlisle vs. United 
 States, 16 Wallace, 148. Mr. Jefferson, secretary of 
 state, to Mr. Genet, June 5, 1793. 
 
 Every foreigner residing in a country owes to that 
 country allegiance, and obedience to the laws as long 
 as he remains in it as a duty imposed on him by the 
 mere fact of his residence and the temporary protec- 
 tion which he enjoys, and is as much bound to obey 
 its laws as native subjects or citizens. This is the uni- 
 versal understanding in all civilized states and no- 
 where a more established doctrine than in this country. 
 6 Webster's Works, 524. Mr. Buchanan to Mr. Orma, 
 February 1, 1848, MSS. 
 
IN THE UNITED STATES. 291 
 
 The use of the term " allegiance," must not be con- 
 founded with the import of that term as connected 
 with citizenship. The construction should he, as is 
 the practice, with the interpretation of obedience to the 
 laws. A dual allegiance is as much a fiction as is a 
 dual citizenship. In the English practice it was held 
 that a child born of foreign parents by virtue of birth 
 owed allegiance to England ; when, however, the child 
 returned with its parents to the country of their origin 
 he owed another allegiance to that country. In other 
 words, by the birth in England the child of foreign 
 parents became a subject of England so far as English 
 soil was concerned ; when not in England he was not 
 protected more than was a naturalized citizen of 
 England as against any claims of the parent country. 
 This is the English rule under the naturalization act 
 of 1870. In re Bourgoise, 41 Eng. Law Repts., Chan. 
 Div., p. 310. In re Willoughby, 30 Chan. Div., 324. 
 
 Heffter lays down the rule to be, " as a general 
 proposition a man can have only one allegiance." 
 
 Bluntschli is of opinion, "that aliens owe obedience 
 to the laws of the land in which they reside." 
 
 Sir R. Phillimore agrees in this as follows, " all 
 strangers commorant in a land, owe obedience as sub- 
 jects for the time being, to the laws of it." 
 
 In case of rebellion in a country, aliens should re- 
 frain from participation in the same, for by so doing 
 they become equally liable for any treasonable acts 
 with those citizens who participate in the rebellion. 
 
 "Aliens domiciled in the United States, prior to the 
 rebellion, and who gave aid and comfort to the rebel- 
 lion, were subject to be prosecuted for violation of the 
 
292 THE LAW OF CITIZENSHIP 
 
 laws of the United States against treason." Carlisle vs. 
 United States, 16 Wallace, 148. 
 
 IN MATTERS OF PROPERTY. 
 
 An alien can inherit, carry away and alienate per- 
 sonal property without being liable to any jus detrac- 
 tus. 1 Op. Atty.-Grenls. 275. 
 
 The question of the right to hold real property is a 
 question of municipal law which each society governs 
 by its own regulations. It is not a right which can be 
 demanded on the principles of international common 
 law. At the present time it is well established in 
 Europe and America, that aliens may hold real estate. 
 This rule was accepted in Turkey, by the law of 
 June 15, 1867, and finally in England by the alien act 
 of 1870. 
 
 Aliens cannot demand reparation for loss of prop- 
 erty caused by internal dissension or rebellion in the 
 country in which they reside, where they suffer in 
 common with the citizens of that country. 
 
 The governments of Russia and Austria refused to 
 admit that reparation should be made to English- 
 men who suffered losses in their property during the 
 revolutions in Naples and Florence in Italy. 
 
 " One cannot admit that a sovereign forced to re- 
 gain a city temporarily lost to him by rebellion of his 
 subjects, should compensate strangers who in the midst 
 of similar circumstances to his own subjects, become 
 the victims of loss of property." Prince Nesselrode, 
 May 2, 1850. 
 
 The United States refused damages to Spanish sub- 
 jects which they suffered at New Orleans in 1851. 
 
IN THE UNITED STATES. 293 
 
 The same rule governed in the civil war of 1861- 
 1865. 
 
 The conference of the great powers of Europe at 
 Paris, in 1869, laid down the same rule as to the 
 struggles between Turkey and Greece. 
 
 Germany demanded of Spain reparation to her subjects 
 for losses sustained by the bombardments of Don Carlos 
 in 1872, 1873, 1874 and 1875, but failed in her demand. 
 
 Aliens are not duly bound to serve in the army 
 other than for local defense in common with other 
 inhabitants. "There is no rule of international law 
 prohibiting the government of any country from 
 requiring aliens to serve in the militia or police." 
 2 Halleck Int. Law, p. 6. 
 
 As aliens do not enjoy political rights, so the politi- 
 cal burdens should not be imposed on them. Blunt- 
 schli Int. Law, p. 227. 
 
 The rule was carried further in the United States in 
 1863 than it had been previous in the practice. By act 
 of congress March 3, 1863, it was expressly declared 
 that the levy should include " all persons of foreign 
 birth who shall have declared on oath their intention 
 to become citizens." 
 
 The English government excepted to this rule in 
 this, that such aliens not having exercised political 
 rights, should be allowed a reasonable period within 
 which to optate to remain or leave the country. This 
 was granted by the government of the United States. 
 
 In another instance, the rule was extended to aliens 
 who had exercised the right of suffrage. Certain 
 English subjects residing in Wisconsin complained of 
 this action of the American authorities, on the ground 
 
294 THE LAW OF CITIZENSHIP 
 
 that they had not surrendered their English nationality 
 by exercising the right of suffrage. Lord Lyons was 
 instructed by the home government to abide the de- 
 cision of the American law courts. 
 
 M. Mercier, the French minister, wrote in a circular 
 to the French consuls, that Frenchmen, who had voted 
 illegally in the United States, had no doubt laid 
 themselves liable to penalties in that country, but that 
 they had not forfeited their French nationality or 
 their rights as aliens to be exempt from compulsory 
 military service. 1 Halleck Int. Law, p. 365. 
 
 In some of the states of the union the right of suf- 
 frage is extended to aliens who have expressed their 
 intent to become citizens. Under the constitution of 
 the United States, article 1, section 2, clause 1, they 
 may vote for representatives to congress. This right so 
 conferred by the laws of one state does not carry the priv- 
 ilege to vote in the several states nor the enjoyment of 
 immunities which the federal constitution secures and 
 guarantees under article IV, section 1, clause 1. The 
 question has not been raised as to the right of a state to 
 confer extra privileges on an alien which other states do 
 not confer. The distinction between a citizen and an 
 alien with the right of suffrage is confusing. The alien 
 .with the right of suffrage under a state law cannot make 
 demands for protection on the federal government ex- 
 cept so far as he is entitled under a declaration of in- 
 tent, filed in any of the federal or state courts, which he 
 may or may not perfect by the act of naturalization. 
 
 The theory has been expressed that the test of citi- 
 zenship is the right of voting in the government of the 
 local, provincial or national community of which one 
 
IN THE UNITED STATES. 295 
 
 is a member. Lawrence's "Wheaton on International 
 Law, p. 393. It would seem that without membership 
 in a community one should not enjoy the right of suf- 
 frage, and certainly it seems absurd that an alien under 
 a state law should have the privilege of voting for a 
 representative to congress, when no national law exists 
 under which the alien can claim membership in the 
 national community. 
 
 ADOPTION OF CHILDREN OF FOREIGN BIRTH. 
 
 The act of adoption by a citizen of the United States, 
 of a child born in a foreign country, does not transfer 
 the citizenship of the father to the child. It does not 
 work a change of citizenship in the child. It is not 
 within the rule of partus sequuntus patrem. The child 
 will still maintain the citizenship of its natural father, 
 if known ; if not, then that of the mother, mater semper 
 certa est. 
 
 " A citizen of the United States cannot, by adopting 
 a child of foreign nationality, confer on such child the 
 privileges of citizenship in the United States." Mr. 
 Fish, secretary of state, MSS. Dom. Letters, January 
 6, 1872. 
 
 The effect is only to place the foreign-born child in 
 a position when reaching majority to elect either to re- 
 tain the citizenship of his natural father, or father 
 being unknown, that of the mother as to assume the 
 citizenship of the father by adoption. 
 
 ADOPTION OF WOMEN BY MARRIAGE. 
 
 A citizen of the United States can confer on a foreign 
 born woman the rights and privileges of an American 
 
THE LAW OF CITIZENSHIP 
 
 citizen by marriage. This rule is modified by 10 U. 
 S. Statutes at Large, 604, in this, " any woman who is 
 now or may hereafter be married to a citizen of the 
 United States, and who might herself be lawfully 
 naturalized, shall be deemed a citizen." The require- 
 ment, "who might herself be lawfully naturalized," 
 carries wihtin it two elements, the first being the 
 possibility under the laws of the United States of 
 naturalization of women born in foreign countries ; 
 and second, the question of civil rights in her relations 
 to the laws of the country of her origin. This latter 
 element is of importance in this, that citizenship does 
 not in itself involve rights and privileges in the coun- 
 try of which one is a citizen, but also protection abroad 
 and recognition of her citizenship when abroad, and in 
 particular in the country of her origin. While this 
 latter element cannot strictly be inquired into as a con- 
 dition precedent and finally determined by the tri- 
 bunals of the United States, yet its importance is 
 beyond doubt, and should she, by the laws of her coun- 
 try of origin, not be competent to become naturalized 
 in a foreign country, her citizenship, as conferred by 
 the United States Statutes, would not avail her upon 
 return to the country of her origin. 
 
 A Russian 'woman, by name of Topaz, married an 
 American. The question was whether by such mar- 
 riage she became exempt from the municipal laws of 
 Russia respecting women. It was held, " there can be 
 no doubt that such a person would upon her marriage 
 to an American citizen acquire the right to be regarded 
 by the authorities of the United States as an American 
 citizen in every country except that to which she owed 
 
IN THE UNITED STATES. 297 
 
 allegiance at the time of her marriage." Secretary Fish, 
 June 9, 1874, MSS. Russia. 
 
 It was a maxim of the Roman law, which has been 
 incorporated into modern jurisprudence, that as the 
 wife takes the rank, so does she also take the domicile 
 of her husband, and by the same analogy the widow 
 retains it after her husband's death. But if she marry 
 again, her domicile becomes that of her second husband. 
 Woolsey Int. Law, p. 311. Calvo, International La w> 
 Vol. 1, p. 230. Foelix, Droit International Prive, 
 pp. 82, 83. 
 
 A woman partakes of her husband's nationality. 
 Secretary Fish, March 18, 1872. 
 
 A wife's political status follows that of her hus- 
 band. Secretary Frelinghuysen, March 31, 1883. 
 
 The only mode of adoption by which a private citi- 
 zen can confer citizenship on an alien is, that of marry- 
 ing a female of a foreign state. Secretary Fish, March 
 26, 1870. 
 
 In Field's Outlines of an International Code, p. 135, 
 it is laid down " marriage gives to the wife the privi- 
 leges of the national character of her husband, but 
 does not deprive her of the privileges of that which 
 she had before marriage." 
 
 This rule must conflict with itself in the practice. 
 It does not appear to effect any thing other than attri- 
 bute to her a dual nationality which is a mere fiction 
 of law and impracticable. 
 
 The woman changes her nationality, absolutely, by 
 marriage to a citizen of the United States. She does 
 not enjoy in coverture, any other or different rights and 
 privileges from those enjoyed by her husband. 
 
298 THE LAW OF CITIZENSHIP 
 
 The rule does not require residence in the United 
 States ; a woman who is married to a citizen of the 
 United States partakes of his citizenship, though re- 
 siding abroad. Kelly vs. Owen, 7 Wallace, 496. 14 
 Op. Atty.-Genls. 402. 
 
 MARRIAGE OF WOMEN, CITIZENS OF THE UNITED STATES, 
 TO FOREIGNERS. 
 
 The same rule which applies to foreign women who 
 marry citizens of the United States governs women 
 citizens of the United States who marry foreigners. 
 
 "A woman, a citizen of the United States, marries 
 an alien who resides out of the jurisdiction. She abso- 
 lutely ceases to be an American citizen, and becomes 
 subject to all the disabilities of alienage." F. E. of 
 U. S., 1874, p. 413. 
 
 A woman was born, married a French citizen, and 
 always resided, before and after the death of her hus- 
 band, in France. It was held that she was a French 
 subject, though her father at the time of her birth was 
 a citizen of the United States. 12 Op. Atty.-Genls. 7. 
 
 The rule has been modified in some respects, as re- 
 gards rights of inheritance and ability to transfer 
 property. " A woman, who is a citizen of the United 
 States, merges her nationality in that of a foreign hus- 
 band on her marriage ; but it does not necessarily fol- 
 low that she thus becomes subject to all the disabilities 
 of alienage, such as inability to inherit or transfer real 
 property." Mr. Fish, secretary of state, September 22, 
 1875, MSS. Mr. Frelinghuysen to Mr. Lawrence, 
 March 31, 1883, MSS., Dom. Let. Mr. Frelinghuysen 
 to Mr. Foster, April 2, 1883, MSS., Dom. Let. 
 
IN THE UNITED STATES. 299 
 
 IN CASE OF DIVORCE. 
 
 The woman merges her nationality in that of her 
 husband upon marriage to a foreigner. In case of 
 legal separation, the practice places her in a position 
 similar to that of a minor child, born of foreign par- 
 ents, who has been adopted by a citizen of the United 
 States upon reaching majority. The wife may elect 
 whether to preserve the foreign nationality acquired 
 by her marriage, or re-acquire her former American 
 citizenship. 
 
 This rule was laid down in the French practice, "upon 
 legal separation from her husband, she may chose her 
 domicile." Phillimore, vol. IV, pp. 63, 64, maintains 
 the same to be the English rule. I am not aware of 
 any decided case in England upon the question of the 
 domicile of the wife divorced, a mensa et thoro, but in 
 principle it seems to me there can be but little doubt, 
 that in England as in France it would not be that of 
 the husband, but the one chosen for herself after di- 
 vorce. In case of divorce a mensa et thoro, her domi- 
 cile is not affected by the removal of her husband to 
 another country. Pennsylvania vs. Eavenel, 21 How. 
 103. 
 
 WIDOWHOOD. 
 
 Upon death of the husband, the former citizenship 
 of the wife does not revert ; she must do some act by 
 which to work a change in her nationality, if she should 
 desire to do so. 
 
 " But on widowhood, a woman should be entitled to 
 resume her original nationality, on returning and set. 
 tling in her former country." Chief Justice Cockburn 
 on Nationality, p. 216. 
 
300 THE LAW OF CITIZENSHIP 
 
 This would be expressive of an intent. She should 
 do more. Her nationality having absolutely merged 
 in that of her husband, she has become an alien, and 
 should be treated as such. The statutes of the United 
 States and codes of European countries prescribe, how 
 aliens may acquire citizenship. The widow abandoned 
 her former citizenship by marriage to her husband. 
 This is equivalent to naturalization abroad. To re-ac- 
 quire the citizenship lost by her by her marriage, she 
 should comply with the naturalization laws. Mr. 
 Fish to Mr. Washburne, Feb. 24, 1871, MSB., in- 
 structed that passports should be withheld from 
 widows of French citizens, former Americans, unless 
 the widows produced evidence of their intent to re- 
 sume residence in the United States. 
 
 "The citizenship acquired by an alien woman 
 through marriage to a citizen of the United States is 
 not lost by the death of the husband." 15 Op. Atty.- 
 G-enls. 599. 
 
 The English rule was laid down in Pari. Pap. 189, 
 as follows : The British-born widows of American or 
 foreign husbands, if, after the dissolution of their 
 coverture, they should elect to claim the benefit of 
 their British character, they would be at liberty to do 
 so, and must be treated and protected as British sub- 
 jects. 1 Halleck Int. Law, 369. 
 
 CITIZENSHIP BY SERVICE IN THE ARMIES. 
 
 By section 2066 of the Revised Statutes of the United 
 States, citizenship is conferred as follows : Any alien 
 of the age of twenty-one years and upwards, who has 
 enlisted or may enlist in the armies of the United 
 
IN THE UNITED STATES. 301 
 
 States, either in the regular or volunteer forces, and 
 has been or may be hereafter honorably discharged, 
 shall be admitted to become a citizen of the United 
 States upon his petition, without any previous declara- 
 tion of his intention to become such, and shall not be 
 required to prove more than one year's residence within 
 the United States previous to his application to be- 
 come such citizen ; and the court admitting such alien 
 shall, in addition to such proof of residence and good 
 moral character as now provided by law, be satisfied 
 by competent proof of such persons having been 
 honorably discharged from the service of the United 
 States. 
 
 It has been held in Bailey's case, 2 Sawyer, 200, that 
 this law applies only to the armies of the United 
 States. The term " armies " does not even include 
 marines. 
 
 It remains, however, under this act, that the appli- 
 cant should make a formal application to the court, 
 and prove one year's residence in the United States, 
 good moral character, and that he has been honorably 
 discharged from service in the army. 
 
 In this connection, however, it should not be for- 
 gotten that citizenship conferred in the foregoing 
 manner is so done in accordance with a domestic rule 
 which holds equally good, and has the same effect as 
 any rules of naturalization, which may be prescribed 
 in any country for its own guidance in its domestic 
 affairs. 
 
 PASSPORTS AND CLAIMS FOR DAMAGES. 
 
 The value of a passport lies in the declaration made 
 under the authorization of the government that the 
 
302 THE LAW OF CITIZENSHIP 
 
 person or persons named therein are citizens of the 
 country and are entitled to recognition as such by the 
 authorities of foreign governments. Mr. Everett to 
 Mr. Ingersoll, Dec. 7, 1852, MSS. "Woolsey Int. Law, 
 pp. 264, 265. Every citizen of a country can demand 
 of his government a passport as evidence of his right 
 to claim protection when abroad. Mr. Fish to Mr. 
 Davis, Jan. 14, 1875, MSS. The simple declaration of 
 an intent to become a citizen does not entitle the ap- 
 plicant to such a certificate of his national character. 
 Print. Per. Inst. Dip. Agents, 1885. The grant of the 
 passport lies in the exercise of a discretionary power 
 vested in the president, and by him delegated to his 
 executive agents. The refusal of an application for a 
 passport is in effect a refusal to extend protection. 
 Whatever the action on the application may be, it is 
 not open to appeal. It is in the power of congress to 
 censure the action by criticism of the exercise of the 
 discretionary power by the executive or his agents. 
 
 Applications have been refused to naturalized citi- 
 zens for reason of inference drawn from their long 
 residence abroad and other circumstances to the effect 
 that they had abandoned their American citizenship. 
 Mr. Fish to Mr. Lockwood, Oct. 27, 1874, MSS. Mr. 
 Fish to Mr. Ehrenbacher, June 5, 1875, MSS. Mr. 
 Blaine gave Mr. Kasson, March 31, 1881, the following 
 instructions : " A naturalized citizen of the United 
 States who returns to his country of origin and there 
 marries, settles and remains twenty years is not enti- 
 tled to a passport as a citizen of the United States." 
 
 Mr. Bayard gave to Mr. Lee, Oct 2, 1885, the fol- 
 lowing instructions : " When an Austrian subject, af- 
 
IN THE UNITED STATES. 303 
 
 ter having been naturalized in the United States, re- 
 turns to the country of his origin on a passport dated 
 June 17, 1881, and there resides four years, and then 
 applies for a new passport, such passport ought not to 
 be granted without proof that this residence was meant 
 by him to be temporary and exceptional." 
 
 Under these rules it will not be maintained that in 
 the respective countries the applicants become citizens 
 of those countries. "When the president of the United 
 States declares that one of his fellow-citizens has aban- 
 doned his citizenship, he does not thereby make him a 
 citizen of a foreign country. 
 
 The French rule that continued residence abroad for 
 ten years works a loss of French citizenship does not 
 constitute the Frenchman a citizen of the United 
 States because he resided in the United States during 
 that period of time. Even in case of banishment the 
 citizenship is hot destroyed. 1 Phillimore Int. Law, 
 pp. 380, 381. Under section 1993, Revised Statutes 
 of the United States, the rights of citizenship shall 
 not descend to children whose fathers never resided in 
 the United Statas. This does not constitute them cit- 
 izens of a foreign country. There must be a co-opera- 
 tion of the laws of that country by which such 
 persons become citizens. The action of our authorities 
 alone is not sufficient to work the change against the 
 volition of the citizen. 14 Op. Atty.-Grenls. 154. 
 
 The theory and the practice proceed upon the prin- 
 ciple that citizenship involves duties and obligations 
 as well as rights, and an evasion of the duties and ob- 
 ligations by continued residence abroad works a for- 
 feiture of the right to protection from the authorities 
 
304 THE LAW OF CITIZENSHIP 
 
 of the United States. Mr. Fish to Mr. Niles, Oct. 30, 
 1871. Mr. Fish to Mr. Colfax, March 12, 1872. Mr. 
 Fish to Mr. Beardsley, April 28, 1873. Mr. Evarts to 
 Mr. Logan, March 9, 1881, MSS. 
 
 There exists between the citizens of a country a 
 contract, either express or implied, through the medi- 
 ation of their governmental authorities, to afford pro- 
 tection at home and abroad. In order to insure a per- 
 formance of the contract the exercise of absolute good 
 faith is essential. When abroad and in the exercise of 
 proper conduct toward the citizens of a foreign gov- 
 ernment, no infraction of his rights should be permit- 
 ted, and in case there is an infringement of his rights 
 the citizen is entitled to a claim for damages, to be 
 presented in his behalf through the proper, diplomatic 
 channels of communication between governments. 
 
 The executive must pass upon two questions ; first, 
 his relation of good faith to his fellow-citizens, and 
 second, his conduct toward the citizens of the country 
 from whom he seeks damages. Then comes the further 
 question whether or not he is entitled to protection, 
 and under this consideration necessarily follow his 
 relations to his fellow-citizens in matters of mainte- 
 nance of the government and personal service. Mr. 
 Seward to Mr. Asboth, March 27, 1867. Mr. Fish to 
 Mr. Davis, Nov. 21, 1874, MSS. It would seem ex- 
 traordinary for a citizen who had resided abroad for 
 twenty years, and during that time had made no con- 
 tributions or rendered no personal service, to expect 
 his fellow-citizens to extend protection without an in- 
 vestigation of his good faith toward them. The power 
 to refuse protection and the power to decide on and 
 
IN THE UNITED STATES. 305 
 
 present a claim for damages to a foreign government 
 is discretionary in the executive, who may exercise his 
 offices after a consideration of all the circumstances 
 pertaining to each individual case. 
 
 The principle should not be contested that each citi- 
 zen should preserve the utmost good faith toward his 
 fellow- citizens in order to enjoy equal rights and privi- 
 leges at home and equal protection when abroad. 
 
 39 
 
APPENDIX. 
 
 UNITED STATES NATURALIZATION LAWS. 
 
 AN ACT to establish an uniform rule of naturalization and to repeal the 
 acts heretofore passed on that subject. 
 
 Be it enacted by the Senate and Souse of Representatives of 
 the United States in Congress assembled, That any alien being a 
 free white person may be admitted to become a citizen of the 
 United States or any of them on the following conditions and 
 not otherwise: 
 
 First. That he shall have declared on oath or affirmation be- 
 fore the supreme, superior, district or circuit court of some one 
 of the states or of the territorial districts of the United States or 
 a circuit or district court of the United States three years at least 
 before his admission that it was bona fide his intention to be- 
 come a citizen of the United States and to renounce forever all 
 allegiance and fidelity to any foreign prince, potentate, state or 
 sovereignty whatever and particularly by name the prince, poten- 
 tate, state or sovereignty whereof such alien may at the time be 
 a citizen or subject. 
 
 Secondly. That he shall at the time of his application declare 
 on oath or affirmation before some one of the courts aforesaid 
 that he will support the constitution of the United States, and 
 that he doth absolutely and entirely renounce and abjure all 
 allegiance and fidelity to every foreign prince, potentate, state 
 or sovereignty whereof he was before a citizen or subject,, which 
 proceedings shall be recorded before the clerk of the court. 
 
 Thirdly. That the court admitting such alien shall be satisfied 
 that he has resided within the United States five years at least 
 and within the state or territory where such court is at the time 
 
308 APPENDIX. 
 
 held, one year at least; and it shall farther appear to their satis- 
 faction, that during that time he has behaved as a man of a 
 good moral character, attached to the principles of the constitu- 
 tion of the United States, and well-disposed to the good order 
 and happiness of the same: Provided, That the oath of the appli- 
 cant shall in no case be allowed to prove his residence. 
 
 Fourthly. That in case the alien applying to be admitted to 
 citizenship shall have borne any hereditary title, or been of any 
 of the orders of nobility in the kingdom or state from which he 
 came, he shall, in addition to the above requisites, make an ex- 
 press renunciation of his title or order of nobility in the court to 
 which his application shall be made; which renunciation shall 
 be recorded in the said court: Provided, That no alien who shall 
 be a native citizen, denizen or subject of any country, state or 
 sovereign with whom the United States shall be at war at the 
 time of his application, shall be then admitted to be a citizen of 
 the United States. 
 
 Sec. 3. And whereas doubts have arisen whether certain courts 
 of record in some of the states are included within the descrip- 
 tion of district or circuit courts: Be it further enacted, That 
 every court of record in any individual state having common-law 
 jurisdiction, and a seal and clerk or prothonotary, shall be con- 
 sidered as a district court within the meaning of this act; and 
 every alien who may have been naturalized in any such court 
 shall enjoy, from and after the passing of the act, the same 
 rights and privileges as if he had been naturalized in a district 
 or circuit court of the United States. 
 
 Sec. 4. And he it further enacted, That the children of per- 
 sons duly naturalized under any of the laws of the United States, 
 or who, previous to the passing of any law on that subject by the 
 government of the United States, may have become citizens of 
 any one of the said states, under the laws thereof, being under 
 the age of twenty-one years at the time of their parents being so 
 naturalized or admitted to the rights of citizenship, shall, if 
 dwelling in the United States, be considered as citizens of the 
 United States; and the children of persons who now are or have 
 been citizens of the United States shall, though born out of the 
 limits and jurisdiction of the United States, be considered as 
 
APPENDIX. 309 
 
 citizens of the United States: Provided, That the right of cit- 
 izenship shall not descend to persons whose fathers have never 
 resided within the United States: Provided, also, That no person 
 heretofore proscribed by any State, or who has been legally con- 
 victed of having joined the army of Great Britain during the 
 late war, shall be admitted a citizen as aforesaid without the 
 consent of the legislature of the State in which such person was 
 proscribed. 
 
 Sec. 5. And be it further enacted, That all acts heretofore 
 passed respecting naturalization be, and the same are, hereby 
 repealed. 
 
 Approved April 14, 1802. 
 
 AN ACT in addition to an act entitled " An act to establish an uniform 
 rule of naturalization, and to repeal the acts heretofore passed on that 
 subject. 
 
 Sec. 2. And be it further enacted, That when any alien who 
 shall have complied with the first condition specified in the first 
 section of the said original act, and who shall have pursued the 
 directions prescribed in the second section of the said act, may 
 die before he is actually naturalized, the widow and the children 
 of such alien shall be considered as citizens of the United States, 
 and shall be entitled to all rights and privileges as such, upon 
 taking the oaths prescribed by law. 
 
 Approved March 26, 1804. 
 
 AN ACT for the regulation of seamen on board the public and private 
 vessels of the United States. 
 
 Sec. 12. And be it further enacted, That no person who shall 
 arrive in the United States from and after the time when this 
 act shall take effect, shall be admitted to become a citizen of the 
 United States, who shall not for the continued term of five years 
 next preceding his admission as aforesaid have resided within 
 the United States, without being at any time during the said 
 five years out of the territory of the United States. 
 
 Approved March 3, 1813. 
 
310 APPENDIX. 
 
 AN ACT in further addition to " An act to establish an uniform rule of 
 naturalization, and to repeal the acts heretofore passed on that subject." 
 
 Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That any 
 alien, being a free white person, and a minor, under the age of 
 twenty-one years, who shall have resided in the United States 
 three years next preceding his arriving at the age of twenty-one 
 years, and who shall have continued to reside therein to the time 
 he may make application to be admitted a citizen thereof, may, 
 after he arrives at the age of twenty-one years, and after he shall 
 have resided five years within the United States, including the 
 three years of his minority, be admitted a citizen of the United 
 States without having made the declaration required in the first 
 condition of the first section of the act to which this is an addi- 
 tion, three years previous to his admission: Provided, Such alien 
 shall make the declaration required therein at the time of his or 
 her admission; and shall further declare, on oath, and prove, to 
 the satisfaction of the court, that for three years next preceding 
 it has been the bona fide intention of such alien to become a cit- 
 izen of the United States, and shall in all other respects comply 
 with the laws in regard to naturalization. 
 
 Sec. 2. And be it further enacted, That no certificates of cit- 
 izenship or naturalization heretofore obtained from any court of 
 record within the United States shall be deemed invalid in con- 
 sequence of an omission to comply with the requisition of the 
 first section of the act entitled " An act relative to evidence in 
 cases of naturalization," passed the twenty-second day of March, 
 one thousand eight hundred and sixteen. 
 
 Sec. 3. And be it further enacted, That the declaration re- 
 quired by the first condition specified in the first section of the 
 act to which this is an addition, shall, if the same has been bona 
 fide made before the clerk of either of the courts in the said con- 
 dition named, be as valid as if it had been made before the said 
 courts respectively. 
 
 Sec. 4. And be it further enacted, That a declaration by any 
 alien, being a free white person, of his intended application to 
 be admitted a citizen of the United States, made in the manner 
 and form prescribed in the first condition specified in the first 
 
APPENDIX. 311 
 
 section of the act to which this is in addition, two years before 
 his admission, shall be a sufficient compliance with said condi- 
 tion, any thing in the said act, or in any subsequent act, to the 
 contrary notwithstanding. 
 Approved May 26, 1824. 
 
 AN ACT to amend the act entitled ' ' An act for the regulation of seamen 
 on board the public and private vessels of the United States," passed the 
 third of March, eighteen hundred and thirteen. 
 
 Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That the 
 last clause of the twelfth section of the act hereby amended, con- 
 sisting of the following words, to wit, "without being at any 
 time during the said five years out of the territory of the United 
 States," be, and the same is hereby, repealed. 
 
 Approved June 26, 1848. 
 
 AN ACT to secure the right of citizenship to children of citizens of the 
 United States born out of the limits thereof. 
 
 Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That per- 
 sons heretofore born, or hereafter to be born, out of the limits 
 and jurisdiction of the United States, whose fathers were or shall 
 be at the time of their birth citizens of the United States, shall 
 be deemed and considered and are hereby declared to be citizens 
 of the United States: Provided, however, That the rights of cit- 
 izenship shall not descend to persons whose fathers never resided 
 in the United States. 
 
 Sec. 2. And be it further enacted, That any woman who might 
 lawfully be naturalized under the existing laws, married, or who 
 shall be married to a citizen of the United States, shall be deemed 
 and taken to be a citizen. 
 
 Approved February 10, 1855. 
 
 Second Session, Thirty-seventh Congress, chap. 200. 
 Section 21. And be it further enacted, That any alien of the 
 age of twenty-one years and upwards, who has enlisted or shall 
 
312 APPENDIX. 
 
 enlist in the armies of the United States, either the regular or 
 the volunteer forces, and has been or shall be hereafter honorably 
 discharged, may be admitted to become a citizen of the United 
 States upon his petition, without any previous declaration of his 
 intention to become a citizen of the United States, and that he 
 shall not be required to prove more than one year's residence 
 within the United States previous to his application to become 
 such citizen; and that the court admitting such alien shall, in 
 addition to such proof of residence and good moral character as 
 is now provided by law, be satisfied by competent proof of such 
 person having been honorably discharged from the service of the 
 United States as aforesaid. 
 Approved July 17, 1862. 
 
 Article XIV of the Constitution of the United States, adopted 
 July 28, 1868. 
 
 Section 1. All persons born or naturalized in the United 
 States, and subject to the jurisdiction thereof, are citizens of the 
 United States and of the state wherein they reside. No state 
 shall make or enforce any law which shall abridge the privileges 
 or immunities of citizens of the United States; nor shall any 
 state deprive any person of life, liberty or property, without due 
 process of law; nor deny to any person within its jurisdiction the 
 equal protection of the laws. 
 
 AN ACT to amend the naturalization laws and to punish crimes against 
 the same and for other purposes. 
 
 Be it enacted ty the Senate and House of Representatives of 
 the United States of America in Congress assembled, That in all 
 cases where any oath, affirmation or affidavit shall be made or 
 taken under or by virtue of any act or law relating to the 
 naturalization of aliens, or in any proceedings under such acts 
 or laws, and any person or persons taking or making such oath, 
 affirmation or affidavit, shall knowingly swear or affirm falsely, 
 the same shall be deemed and taken to be perjury, and the per- 
 son or persons guilty thereof shall upon conviction thereof be 
 sentenced to imprisonment for a term not exceeding five years, 
 
APPENDIX. 313 
 
 and not less than one year, and to a fine not exceeding one thou- 
 sand dollars. 
 
 Sec. 2. And be it further enacted, That if any person apply- 
 ing to be admitted a citizen, or appearing as a witness for any 
 such person, shall knowingly personate any other person than 
 himself, or falsely appear in the name of a deceased person, or 
 in an assumed or fictitious name, or if any person shall falsely 
 make, forge or counterfeit any oath, affirmation, notice, affida- 
 vit, certificate, order, record, signature or other instrument, 
 paper or proceeding required or authorized by any law or act 
 relating to or providing for the naturalization of aliens; or shall 
 utter, sell, dispose of or use as true or genuine, or for any un- 
 lawful purpose, any false, forged, antedated or counterfeit oath, 
 affirmation, notice, certificate, order, record, signature, instru- 
 ment, paper or proceeding as aforesaid; or sell or dispose of, to 
 any person other than the person for whom it was originally 
 issued, any certificate of citizenship, or certificate showing any 
 person to be admitted a citizen; or if any person shall in any 
 manner use for the purpose of registering as a voter, or as evi- 
 dence of a right to vote, or otherwise, unlawfully, any order, 
 certificate of citizenship, or certificate, judgment or exemplifica- 
 tion, showing such person to be admitted to be a citizen, whether 
 heretofore or hereafter issued or made, knowing that such order 
 or certificate, judgment or exemplification has been unlawfully 
 issued or made; or if any person shall unlawfully use, or attempt 
 to use, any such order or certificate, issued to or in the name of 
 any other person, or in a fictitious name, of the name of a de- 
 ceased person; or use, or attempt to use, or aid, or assist, or 
 participate in the use of any certificate of citizenship, knowing 
 the same to be forged, or counterfeit, or antedated, or knowing 
 the same to have been procured by fraud, or otherwise unlaw- 
 fully obtained; or if any person, and without lawful excuse, 
 shall knowingly have or be possessed of any false, forged, ante- 
 dated or counterfeit certificate of citizenship, purporting to 
 have been issued under the provisions of any law of the United 
 States relating to naturalization, knowing such certificate to be 
 false, forged, antedated or counterfeit, with intent unlawfully 
 to use the same; or if any person shall obtain, accept or receive 
 40 
 
314 APPENDIX. 
 
 any certificate of citizenship known to such person to have been 
 procured by fraud or by the use of any false name, or by means 
 of any false statement made with intent to procure, or to aid in 
 procuring, the issue of such certificate, or known to such person 
 to be fraudulently altered or antedated ; or if any person who 
 has been or may be admitted to be a citizen shall, on oath or 
 affirmation, or by affidavit, knowingly deny that he has been so 
 admitted, with intent to evade or avoid any duty or liability im- 
 posed or required by law, every person so offending shall be 
 deemed and adjudged guilty of felony, and, on conviction thereof 
 shall be sentenced to be imprisoned and kept at hard labor for 
 a period not less than one year nor more than five years, or be 
 fined in a sum not less than three hundred dollars nor more 
 than one thousand dollars, or both such punishments may be im- 
 posed, in the discretion of the court. And every person who 
 shall knowingly and intentionally aid or abet any person in the 
 commission of any such felony, or attempt to do any act hereby 
 made felony, or counsel, advise or procure, or attempt to pro- 
 cure, the commission thereof, shall be liable to indictment and 
 punishment in the same manner and to the same extent as the 
 principal party guilty of such felony, and such person may be 
 tried and convicted thereof without the previous conviction of 
 such principal. 
 
 Sec. 3. And be it further enacted, That any person-who shall 
 knowingly use any certificate of naturalization heretofore granted 
 by any court, or which shall hereafter be granted, which has 
 been, or shall be, procured through fraud or by false evidence, 
 or has been or shall be issued by the clerk, or any other officer 
 of the court without any appearance and hearing of the applicant 
 in court and without lawful authority; and any person who shall 
 falsely represent himself to be a citizen of the United States, 
 without having been duly admitted to citizenship, for any fraud- 
 ulent purpose whatever, shall be deemed guilty of a misde- 
 meanor, and upon conviction thereof, in due course of law, shall 
 be sentenced to pay a fine of not exceeding one thousand dollars, 
 or be imprisoned not exceeding two years, either or both, in the 
 discretion of the conrt taking cognizance of the same. 
 
 And be it further enacted, That the provision of this act shall 
 
APPENDIX. 315 
 
 apply to all proceedings had or taken, or attempted to be had or 
 taken, before any court in which any proceeding for naturaliza- 
 tion shall be commenced, had or taken, or attempted to be 
 commenced; and the courts of the United States shall have 
 jurisdiction of all offenses under the provisions of this act, in or 
 before whatsoever court or tribunal the same shall have been 
 committed. 
 Approved July 14, 1873. 
 
 AN ACT to authorize the appointment of shipping commissioners by the 
 several circuit courts of the United States, to superintend the shipping 
 and discharge of seamen engaged in merchant ships belonging to the 
 United States, and for the further protection of seamen. 
 
 Sec. 29. That every seaman, being a foreigner, who declares 
 his intention of becoming a citizen of the United States in any 
 competent court, and shall have served three years on board of a 
 merchant ship or ships of the United States subsequent to the 
 date of sucb declaration, may, on his application to any compe- 
 tent court, and the production of his certificate of discharge and 
 good conduct during that time, together with the certificate of 
 his declaration of intention to become a citizen, be admitted a 
 citizen of the United States; and every seaman, being a foreigner, 
 shall, after his declaration of intention to become a citizen of 
 the United States, and shall have served said three years, be 
 deemed a citizen of the United States for the purpose of mann- 
 ing and serving on board any merchant ship of the United States, 
 any thing to the contrary in any previous act of congress not- 
 withstanding; but such seaman shall, for all purposes of protec- 
 tion as an American citizen, be deemed such, after the filing of 
 his declaration of intention to become such citizen. 
 
 Approved June 7, 1 872. 
 
 EXPATRIATION. 
 
 AN ACT concerning the rights of American citizens in foreign states. 
 
 Whereas, The right of expatriation is a natural and inherent 
 right of all people, indispensable to the enjoyment of the rights 
 of life, liberty and the pursuit of happiness; and whereas in the 
 recognition of this principle this government has freely received 
 
316 APPENDIX. 
 
 emigrants from all nations, and invested them with the rights 
 of citizenship; and whereas it is claimed that such American 
 citizens, with their descendants, are subjects of foreign states, 
 owing allegiance to the governments thereof; and whereas it is 
 necessary to the maintenance of public peace that this claim of 
 foreign allegiance should be promptly and finally disavowed: 
 Therefore, 
 
 Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled, That any 
 declaration, instruction, opinion, order or decision of any officers 
 of this government which denies, restricts, impairs or questions 
 the right of expatriation, is hereby declared inconsistent with 
 the fundamental principles of this government. 
 
 Sec. 2. And be it further enacted, That all naturalized citizens 
 of the United States, while in foreign states, shall be entitled to, 
 and shall receive from this government, the same protection of 
 persons and property that is accorded to native-born citizens in 
 like situations and circumstances. 
 
 Sec. 3. And be it further enacted, That whenever it shall be 
 made known to the president that any citizen of the United 
 States has been unjustly deprived of his liberty by or under the 
 authority of any foreign government, it shall be the duty of the 
 president forthwith to demand of that government the reasons 
 for such imprisonment, and if it appears to be wrongful and in 
 violation of the rights of American citizenship, the president 
 shall forthwith demand the release of such citizen, and if the 
 release so demanded is unreasonably delayed or refused, it shall 
 be the duty of the president to use such means, not amounting 
 to acts of war, as he may think necessary and proper to obtain 
 or effectuate such release, and all the facts and proceedings rela- 
 tive thereto shall as soon as practicable be communicated by the 
 president to Congress. 
 
 Approved July 27, 1868. 
 
APPENDIX. 317 
 
 Extract from the analytical index to the " Treaties and Conven- 
 tions of the United States with other powers." 
 
 Naturalization : 
 
 citizens of one nationality are to be deemed and taken to 
 have become citizens of the other, who during a con- 
 tinuous residence of five years in the territories of the 
 other have become naturalized there — Austria, Sweden 
 and Norway; who have resided uninterruptedly there five 
 years, and before, during or after that time, have be- 
 come or shall become naturalized — Baden; who have be- 
 come or shall become naturalized, and shall have resided 
 there uninterruptedly five years — Bavaria, Hesse, Mexico, 
 North Germany; as explained in the protocol — Wurtem- 
 berg; who may or shall have been naturalized there — 
 Belgium, Denmark; who have become or shall become 
 naturalized — Great Britain. 
 
 the declaration of intention to become a citizen has not the 
 effect of citizenship — Austria, Baden, Bavaria, Hesse, 
 Mexico, North Germany, Sweden and Norway, Wurtem- 
 berg. 
 
 naturalized citizens are liable on return to their original 
 country to be tried and punished for offenses committed 
 before emigration, subject to the limitations established 
 by law — Austria, Baden, Bavaria, Belgium, Hesse, 
 Mexico, North Germany, Sweden and Norway, Wurtem- 
 berg; but not for emigration itself — Bavaria, Sweden 
 and Norway. 
 
 when a naturalized citizen remains liable to trial and 
 punishment for violation of laws of his old country rela- 
 tive to military duty — Austria, Baden, Belgium, Swe- 
 den and Norway. 
 
 a naturalized citizen may renounce his acquired citizenship 
 — Austria, Baden, Bavaria, Hesse, Mexico, North Ger- 
 many, Sweden and Norway, Wurtemberg; but this re- 
 nunciation does not entitle him to recover his former 
 citizenship without the consent of the government — Ba- 
 varia. 
 
318 APPENDIX. 
 
 a return of the naturalized citizen to his original country is 
 not of itself a renunciation — Austria, Baden. 
 
 no fixed period of residence in his original country works of 
 itself a renunciation — Austria, Baden. 
 
 a residence in the old country without intent to return 
 works a renunciation — Bavaria, Denmark, Hesse, Mexico, 
 North Germany, Sweden and Norway, Wurtemberg. 
 
 the intent not to return may be held to exist when the resi- 
 dence is for more than two years — Bavaria, Denmark, 
 Hesse, Mexico, North Germany, Sweden and Norway, 
 "Wurtemberg; but that presumption may be rebutted by 
 evidence — Mexico. 
 
 naturalized citizens may re-acquire their lost citizenship in 
 the old country in the manner provided by law — Bel- 
 gium, Denmark; in the manner and on the conditions 
 prescribed by the old government — Great Britain, Swe- 
 den and Norway. 
 
 provisions concerning citizenship of inhabitants of territories 
 annexed to the United States — France, Spain, Mexico, 
 Bussia. 
 
 III. 
 Extracts from the analytical index to the treaties of the United 
 Stales with other powers, showing what privileges are conferred 
 upon aliens in the United States and upon citizens of the 
 United States by other countries. 
 
 5JC -F •!* t* TnT *P •}• •!» •}■ 
 
 Asylum: 
 
 vessels and citizens seeking asylum by reason of stress of 
 weather to be treated with humanity, and shall be allowed 
 to repair and depart — Bolivia, Brazil, Colombia (New 
 Grenada), Ecuador, France (obsolete), Guatemala, 
 Hayti, Mexico, Morocco (as to United States vessels), 
 Netherlands (obsolete), Nicaragua, Portugal, Prussia, 
 San Salvador, Sardinia, Spain, Sweden (see Sweden and 
 Norway). 
 
 to be exempt from the payment of duties on vessel or cargo 
 unless entered for consumption — Hawaiian Islands, 
 Morocco (as to American vessels), Sardinia. 
 
APPENDIX. 319 
 
 to be subject to no duties or charges except pilotage, unless 
 remaining longer than forty-eight hours in port — Colom- 
 bia (New Grenada). 
 
 unloading and reloading not to be considered an act of com- 
 merce — Sardinia, Two Sicilies. 
 
 vessels seeking asylum to be treated as national vessels — 
 Sardinia, Two Sicilies. 
 
 shelter not to be given in ports of one power to enemies of 
 the other power who have captured prizes from the other 
 at sea — Prance, Great Britain. 
 
 consulates not to be used as asylum — Germany, Italy. 
 Aubaike, Droit de: [See " Personal Property," " Real Es- 
 tate." 
 
 abolished by treaty with Bavaria, Prance (obsolete), Hesse, 
 Nassau, Saxony, Wurtemberg. 
 ********* 
 
 Detraction, Droit de: 
 
 abolished by treaty with Bavaria, Prance (obsolete), Hanover, 
 
 Hanseatic Eepublics, Hesse, Nassau, Saxony, Spain, 
 
 . Wurtemberg, Sweden. 
 ********* 
 
 Personal Property: 
 
 citizen of each, in the country of the other, may own per- 
 sonal property, and may dispose of it by gift, will, or in 
 any other way, and may take such property by gift, pur- 
 chase, will or succession, paying only such dues as the in- 
 habitant of the country would pay in such case — Austria, 
 Bavaria, Bolivia, Brazil, Brunswick and Luneburg, Colom- 
 bia (New Grenada), Costa Eica, Dominican Republic, 
 Ecuador, Prance, Guatemala, Hanover, Netherlands (obso- 
 lete), Mecklenburg-Schwerin, Mexico, Oldenburg, Hanse- 
 atic Eepublics, Hawaiian Islands, Hayti, Hesse-Cassel, 
 Honduras, Italy, Nassau, Nicaragua, Orange Free State, 
 Paraguay, Portugal, Prussia, Eussia, San Salvador, Sar- 
 dinia, Saxony, Spain, Swiss Confederation, Two Sicilies, 
 Wurtemberg. 
 
 citizens of each in the country of the other may own and 
 
320 APPENDIX. 
 
 succeed as above, and on removal of the property it shall 
 be exempted from all duty called "Droit de detraction " 
 
 — France (obsolete), Sweden. [See " Sweden and Nor- 
 way. "] 
 
 in case of the absence of persons who would be entitled to 
 personal property so situated on the death of the owner, 
 the property shall receive the same care which would be 
 bestowed upon the property of a native — Austria, Ba- 
 varia, Brunswick and Luneburg, Dominican Republic, 
 Hanover, Hawaiian Islands, Hayti, Hesse-Cassel, Hon- 
 duras, Mecklenburg-Schwerin, Nassau, Orange Free 
 State, Prussia, Russia, Sardinia, Saxony, Spain, Swiss 
 Confederation, Two Sicilies, Wurtemberg. 
 
 disputes as to the inheritance of such property shall be de- 
 cided by the courts of the country where the property is 
 situated — Austria, Brunswick and Luneburg, Dominican 
 Eepublic, Hanover, Hawaiian Islands, Hayti, Hesse- 
 Cassel, Houduras, Mecklenburg-Schwerin, Nassau, Orange 
 Free State, Prussia, Russia, Sardinia, Saxony, Spain, 
 
 Swiss Confederation, Two Sicilies, Wurtemberg. 
 **** ***** 
 
 Real Estate: 
 
 citizens and subjects of each nation are to be on the footing 
 of the most favored nation in the territories of the other 
 
 — Italy. 
 
 citizens of each country may dispose of real estate in the 
 territories of the other by will, donation or otherwise — 
 France (obsolete), Bavaria, Colombia (New Grenada), 
 San Salvador, Two Sicilies. 
 
 their heirs, legatees and donees, being citizens or subjects 
 of the other contracting party, may succeed to their real 
 estate — Bavaria, Colombia (New Grenada), France 
 (obsolete), San Salvador, Two Sicilies. 
 
 citizens of each country may dispose of real estate in the 
 territories of the other, where the laws of the state in 
 which it is situated permit it to be done — Nicaragua, 
 Swiss Confederation. 
 
 citizens of each country may possess real estate in the terri- 
 
APPENDIX. 321 
 
 tories of the other, and dispose of it in the same manner 
 as citizens can — France, San Salvador. 
 
 the United States are to recommend states where this is not 
 permitted, to pass laws to allow it; and Prance reserves 
 the right of establishing reciprocity. 
 
 where, on the death of the owner, real estate in the terri- 
 tories of the one power descends npon a citizen of the 
 other, who is disqualified by alienage from taking, he 
 shall be allowed two years to sell the land and withdraw 
 the proceeds — Austria, Bavaria, Hesse, Nassau, Saxony, 
 Wurtemberg. 
 
 he shall be allowed three years — Brazil, Ecuador, Guate- 
 mala, Hanseatic Kepublics, Swiss Confederation. 
 
 he shall have the longest period allowed by law — Bolivia, 
 Dominican Republic. 
 
 he shall be allowed the time allowed by the law of the state 
 or country — Brunswick and Luneburg, Nicaragua, 
 Orange Free State, Portugal, Russia, Swiss Confederation. 
 
 he shall be allowed a reasonable time — Hanover, Hawaiian 
 Islands, Portugal, Prussia, Bussia, Sardinia, Spain, Meck- 
 lenburg-Schwerin. 
 
 the time allowed may be prolonged by the government in 
 whose territories the land is situated — Austria, Hesse, 
 Nassau, Saxony, Wurtemberg. 
 
 the tax or dues charged on the succession or withdrawal is 
 to be the same as that imposed upon natives — Austria, 
 Bavaria, Bolivia, Brazil, Brunswick and Luneburg, Co- 
 lombia (New Grenada), Dominican Republic, Ecuador, 
 France, Nicaragua, Orange Free State, Portugal, Russia, 
 San Salvador, Sardinia, Swiss Confederation, Two Sicilies. 
 
 such tax or dues to be the same as imposed upon the most 
 favored nation — Hawaiian Islands. 
 
 there shall be no duties of detraction — Bavaria, France, 
 Guatemala, Hanover, Hanseatic Republics, Hawaiian 
 Islands, Saxony, Spain, Prussia. 
 
 the property of absent heirs is to receive the same care as if 
 it were the property of citizens — Austria, Bavaria, 
 ^Hesse, Nassau, Saxony, Two Sicilies, Wurtemberg. 
 41 
 
322 APPENDIX. 
 
 all disputes relating to such real estate must be settled be- 
 fore the courts of the country — Bavaria, Hesse, Nassau, 
 Orange Free State, Saxony, Swiss Confederation, Two 
 Sicilies, Wurtemberg, 
 Reciprocal privileges of citizens of each nation within 
 the territories oe the other: 
 
 the citizens of each may reside in the territories of the other, 
 remaining subject to the laws — Argentine Confederation, 
 Austria, Bolivia, Brazil, Colombia (New Grenada), Costa 
 Eica, Denmark, Dominican Republic, Ecuador, Great 
 Britain (obsolete), Greece, Guatemala, Hanover, Hawaiian 
 Islands, Hayti, Honduras, Italy, Mecklenburg-Schwerin, 
 Oldenburg, Mexico, Nicaragua, Portugal, Prussia, Russia, 
 San Salvador, Sardinia, Sweden and Norway, Swiss Con- 
 federation, Two Sicilies, Liberia. 
 
 the citizens of each may reside in the territories of the other 
 — Borneo. 
 
 vessels and effects of citizens of each in the territories of the 
 other are to be protected and defended — Sweden (see 
 Sweden and Norway), Tunis. 
 
 citizens of each being within the territories of the other 
 shall be exempt from forced military service — Argentine 
 Confederation, Costa Rica, Dominican Republic, France 
 (obsolete), Hawaiian Islands, Hayti, Honduras, Italy, 
 Mexico, Nicaragua, Orange Free State, Paraguay, Switz- 
 erland, Two Sicilies. 
 
 from billeting of soldiers — Two Sicilies. 
 
 from contribution in kind or money for compensation for 
 personal military services — Italy, Two Sicilies [they 
 shall not be exempt from such contribution — Orange 
 Free State, Swiss Confederation]. 
 
 from forced loans — Argentine Confederation, Bolivia, Costa 
 Rica, Dominican Republic, Hawaiian Islands, Honduras, 
 Nicaragua, Paraguay, Two Sicilies. 
 
 from military exactions — Argentine Confederation, Costa 
 Rica, Dominican Republic, Hayti, Honduras, Nicaragua, 
 Paraguay. 
 
 from contributions — Bolivia, Nicaragua. 
 
APPENDIX. 323 
 
 from contributions in time of war, in which case property 
 is not to be taken without compensation paid in advance 
 
 — Nicaragua; without compensation on the same footing 
 as natives — Orange Free State. 
 
 from extraordinary contributions not general and established 
 
 by law — Hawaiian Islands, Two Sicilies, 
 from contributions higher than those paid by natives — 
 
 Costa Kica, Dominican Republic, Hayti, Honduras, 
 
 Mexico, Orange Free State, Paraguay, 
 from judicial or municipal office — Italy, 
 the citizens of each shall not be liable to the embargo or 
 
 detention of their vessels, cargoes, merchandise, or effects 
 
 — Bolivia, Brazil, Colombia (New Grenada), Ecuador, 
 Guatemala, Italy, Mexico, Netherlands (obsolete), San 
 Salvador, Spain, Sweden, Tunis; without compensation 
 
 — Bolivia, Brazil, Colombia, Ecuador, Guatemala, Italy, 
 Mexico, San Salvador; to be paid in advance — Bolivia; 
 when it can be agreed upon — Italy. 
 
 their vessels are to be subjected to such embargo only in 
 cases of urgent necessity, and an equitable indemnity 
 shall be paid — Prussia. 
 
 their books and papers are not to be subjected to inspection 
 without the order of a competent legal tribunal — Bolivia, 
 Hawaiian Islands, Hayti, Two Sicilies. 
 
 the citizens of each country are to have a right to travel in 
 the possessions of the other — Bolivia, Hawaiian Islands 
 Italy, Nicaragua, Two Sicilies. 
 
 citizens of each residing in the territories of the other may 
 intermarry with natives — Nicaragua. 
 
 may enjoy freedom of religious belief, respecting at the 
 same time the laws and usages of the country — Brazil, 
 Bolivia, China, Ecuador, Guatemala, Hawaiian Islands, 
 Hayti, Netherlands (obsolete), Colombia (New Grenada), 
 Paraguay, Argentine Confederation. 
 
 and also of religious worship, on conditions as named in the 
 respective treaties (as to consuls and agents) — Algiers 
 (obsolete), Argentine Confederation, Colombia (New 
 Grenada), Costa Eica, Dominican Eepublic, Honduras, 
 
324 APPENDIX. 
 
 Mexico, Nicaragua, Paraguay, San Salvador, Sweden 
 (see Sweden and Norway). 
 
 they are to have the liberty of burial — Argentine Con- 
 federation, Brazil, Bolivia, Colombia (New Grenada), 
 Costa Eica, Dominican Republic, Ecuador, Guatemala, 
 Hayti, Honduras, Netherlands (obsolete), Nicaragua, 
 Mexico, Paraguay, San Salvador, Sweden (see Sweden 
 and Norway). 
 
 on the breaking out of a war between the two countries, the 
 citizens of each in the country of the other may remain and 
 continue to trade so long as they behave peaceably — Ar- 
 gentine Confederation, Paraguay, Great Britain (obsolete). 
 
 all may remain whose occupations are for the common benefit 
 of mankind — Italy, Prussia. 
 
 six months are granted to merchants and citizens to arrange 
 their business and withdraw their effects — Dominican 
 Republic, Hayti, Two Sicilies. 
 
 succession — the dues are to be paid as those paid by na- 
 tives — Denmark, German Empire. 
 
INDEX. 
 
 Abandonment of citizenship by acts of citizens, 302. 
 
 opinion of Hamilton Fish, 302. 
 opinion of James G. Blaine, 302. 
 opinion of Thomas F. Bayard, 302. 
 Aberdeen, Lord, on citizenship acquired by birth in English prac- 
 tice, 61. 
 Act of Secretary of State the act of the President, 188. 
 Act of naturalization, English, 68, 69. 
 Act for protection of persons and property in Ireland, 247. 
 Act for protection of persons and property in suspect cases, 247. 
 Acquisition of citizenship in middle ages, 11. 
 Adoption of children of foreign birth confers no citizenship, 295. 
 Adoption of women by marriage takes husband's citizenship 297. 
 Ages, middle, principles which governed citizenship in, 30. 
 Alabama, state of, recognizes natural rights of man, 22. 
 Aliens. Who are, 49, 289. 
 
 owe a temporary and local duty, 96, 247, 267, 290. 
 
 protection to, when in United States, 290. 
 Allodialists. Who were, 31. 
 
 Allegiance, what constitutes, 291. Opinion of Thomas Jef- 
 ferson, 76. 
 
 Caleb Cushing, 88. 
 
 Alexander McLeod, 88. 
 
 term, no technical meaning in United States, 94. 
 Amther's case, on right of expatriation, 147. 
 Anderson, N. 0. Case of expulsion, 240. 
 Annexation of territory, citizenship acquired by, 215. 
 
 Louisiana, 215, 216. 
 
 Florida, 216. 
 
 Mexico, 216. 
 
 Alaska, 217. 
 Argentine Kepublic, English practice with, on citizenship, 53. 
 Argumiborn's case. Citizenship acquired by birth, 63. 
 Ardut, F. A. Case of, under naturalization treaty, 192. 
 Arlich, M. Case of, under naturalization treaty, 221. . 
 
326 INDEX. 
 
 Austria, English practice with, on citizenship, 55. 
 Austro-Hungary. Naturalization treaty with, 155, 175. 
 Autonomy. Every independent state entitled to, 32. 
 Baab, A. F. Case of, under naturalization treaty, 197. 
 Baden, naturalization treaty with, 152, 173. 
 Bagur. Case of, on payment of taxes while abroad, 167. 
 Banishment, not a forfeiture of citizenship, 303. 
 Barnard. Rule laid down on naturalization, 184. 
 Batzell. Case of naturalization. No treaty existing, 258. 
 Baumer. Case of, under naturalization treaty, 200. 
 Bavaria. Naturalization treaty with, 154, 173. 
 Bayard, Thomas F., on protection of citizens abroad, 171. 
 
 on right of expulsion of aliens, 243. 
 
 on abandonment of citizenship by residence abroad, 302. 
 Baysen, S. M. Case of expulsion, 239. 
 Belgium, English practice with, on citizenship, 55. 
 Belgium. Becognition of struggles in, by other countries, 34. 
 Belgium. Naturalization treaty with, 156, 175. 
 Bernde, J. G. Case of, under naturalization treaty, 205 . 
 Bismarck, Count, on right of expulsion of aliens, 240, 241. 
 Black, Jeremiah, on classification of citizens in United States, 
 158. 
 
 on right of expatriation, 93. 
 
 on refusal of protection to citizens abroad, 169. 
 Blaine, James G., on military service in Germany, 162. 
 
 on duties of aliens, 249. 
 
 on Israelites in Bussia, 261. 
 
 on abandonment of citizenship by residence abroad, 302. 
 Block, Elie, case of, under naturalization treaty, 211. 
 Bluntschli. Kule laid down on citizenship, 17. 
 
 On citizenship acquired by descent, 105. 
 
 On dual citizenship, 114, 291. 
 
 on political rights of aliens, 293. 
 Boig, Emilio. Case of citizenship with Mexico, 268. 
 Boetcher, G. E. Case of, under naturalization treaty, 206. 
 Boury, M. Case of citizenship acquired by extraction, 121. 
 Bosdet. Case of citizenship acquired by birth, 59. 
 Boynton, M. Case of arrest in England, 247. 
 Brazil, English practice with, on citizenship, 56. 
 Brink, W. Case of, under naturalization treaty, 206. 
 Brophy, W. Case of arrest in England, 246. 
 Buchanan, James. On duties of aliens, 248, 290. 
 Burlamaqui. Kule laid down on citizenship, 15. 
 Bynkerschoek. Bule laid down on citizenship, 15. 
 Busch, Dr., opinion on citizenship of minor children, 239. 
 California, state of . Recognizes natural rights of man, 22. 
 
INDEX. 327 
 
 Cass, Lewis . On crimes committed before emigration, 159. 
 Castellan, Jacob . Case of, under naturalization treaty, 190. 
 Castellan, Henry. Case of, under naturalization treaty, 190 
 Cedergreen, C. M. Case of, under naturalization treaty, 218. 
 Certificates for trade in foreign countries in middle ages, 10. 
 Cicero. On citizenship in Rome, 3. 
 
 On dual citizenship in Eome, 114. 
 Citizens of United States entitled to protection abroad, 162. 
 abroad must obey local laws, 163. 
 amenable to foreign courts, 163. 
 owe a local duty, 163. 
 ^ cannot be forced into foreign army, 163. 
 enjoy rights of property, 163. 
 naturalized abroad become aliens, 178. 
 abroad, lose protection by long residence, 303. 
 Citizenship among the Romans, 1. 
 
 among the Romans conferred by charter, 3. 
 
 in United States . Rules which govern, 17, 18. 
 
 in Europe . How affected by French Revolution, 32. 
 
 Declaration of Independence, 32. 
 Definition of. Equal rights and protection at home and 
 
 abroad, 48. 
 ~No classification of, at home or abroad by laws of United 
 
 States, 49, 158. 
 acquired by locality of birth the English rule, 50. 
 acquired by. English rule not the rule in United States, 
 
 51, 71, 96. 
 acquired by locality of birth of feudal origin, 71, 72. 
 in United States from 1783 to 1836. Who were citizens? 80. 
 in 1836. Who were citizens? 88. 
 prior to 1868. Who were citizens? 91. 
 rule which governed in 1868, 95. 
 acquired by extraction, the rule in Austria, 106. 
 Belgium, 106. 
 Denmark, 107. 
 France, 106. 
 Holland, 107. 
 Italy, 107. 
 
 Norway and Sweden, 107. 
 Prussia. 107. 
 Spain, 107. 
 Switzerland, 107. 
 acquired by extraction a natural law, 109. 
 in the United States, 109, 129. 
 case of Blesh, J. C, 116. 
 Boury, F., 121. 
 
328 INDEX. 
 
 Citizenship acquired by extraction. Cases of Drevet, Charles, 118 
 Emden, Robert, 122; Greisser, Richard, 110; HauBding, Louis 
 109; Haus, M., 110, 111; Heinrich,F., 120; Jacob, A. E., 117 
 Kroemer, C. W., 116; Semberger, D., 117; Pearson, J. P., 124 
 Sharboro, J. P., 123; Speck, Josef, 123; Sheibert, C. J., 115 
 Steinkauler, F., 113; Verdelet, E. A., 119; Weigand, Geo., 115 
 Wurgletto, A., 122. 
 Citizenship, dual, not practicable, 114. 
 
 by naturalization in the United States, 129 . 
 
 Prerequisites to acquisition of, 132. 
 
 qualified, not practicable, 132, 133. 
 
 acquired in United States, no protection to crime committed 
 
 before emigration, 158. 
 by service in the army, 301 . 
 Cockburn, chief justice, on dual citizenship, 114. 
 
 on citizenship of widows, 299 . 
 Code Napoleon . Effect of, on principle of jus soli, 105 . 
 Clarendon, Lord, on citizenship acquired by locality of birth, 
 
 57, 62. 
 Classification of citizens in middle ages, 9 . 
 of United States when abroad, 158, 228. 
 in United States, 158 . 
 Claims for damages on foreign countries, 305 . 
 
 how presented, 305 . 
 Colorado. State of, recognizes natural rights of man, 23 . 
 Columbia. Citizenship in, 286, 287. 
 Colsky, Louis. Case of naturalization, no treaty, 258. 
 Commerce between countries in middle ages, 9 . 
 Commercial classes in middle ages, 10. 
 Common law . There is none for United States, 75 . 
 
 of England not law of nations, 101 . 
 Cordes, Edward . Case of, under naturalization treaty, 207. 
 Cormick, J . Case of arrest in England, 246 . 
 Contract. Government of United States contract between citi- 
 zens, 90. 
 Cranz. Case of protection abroad, 171. 
 Crossthwaite. Case of citizenship acquired by birth, 62. 
 Cushing, Caleb, on principle of allegiance, 88. 
 
 on right of expatriation, 93, 146 . 
 Dalton, J . Case of arrest in England, 246 . 
 Daly, J. P. Case of arrest in England, 246. 
 Declaration of Independence recognizes natural rights of man, 21, 
 
 22. 
 Declaration of intent . Force of, 131 . 
 
 does not confer citizenship in United States, 139. 
 may confer right to protection abroad, 140, 142. 
 does not confer right to demand passport, 302. 
 
INDEX. 329 
 
 Decisions of courts on citizenship by locality of birth, 74 . 
 
 De Martens. Eule laid down on acquisition of citizenship, 17. 
 
 Denmark. English practice with on citizenship, 56. 
 
 Denmark, naturalization treaty with, 154, 174. 
 
 Department of State . Agency of President of United States, 
 
 188. 
 Department of State. Can inquire into fraudulent naturaliza- 
 tion, 143,144. 
 Dignity of States . How upheld, 37. 
 Divorce . Citizenship of women after, 299 . 
 Drevet, Charles . Case of citizenship acquired by extraction, 118 . 
 Druids as sources of law in Germany, 30 . 
 Duties to a State prescribed by positive law, 45 . 
 Duties of a citizen, correlative to inherent rights, 83-86 . 
 Equador. Naturalization treaty with, 157, 175. 
 Effect of invasion of Barbarians on citizenship in Eome, 4. 
 
 generally, 4. 
 Eggers, Ernest. Case of, under naturalization treaty, 203. 
 Egypt. Principles which governed citizenship in, 30. 
 Election. Eight of, on reaching majority, 89. 
 Emden, Eobert. Case of citizenship acquired by extraction, 122. 
 Emigration in middle ages, 6. 
 
 with permission, 7. 
 
 without permission, 7. 
 
 recognized as a right, 11. 
 Emigration rules which govern in Eussia, 259. 
 
 Turkey, 284. 
 English rule of qualified naturalization, 291. 
 Equality of countries in international practice, 37. 
 Evarts, Wm. M. On Israelites in Eussia, 260. 
 
 On loss of right to protection abroad, 304. 
 Everett, Edward. On crimes committed before emigration, 159. 
 Executive branch of government, 48. 
 Exercise of rights devolve equally on all citizens, 46. 
 Expatriation, rule of. Opinion of Jeremiah Black, 93, 146. 
 
 Lewis Cass, 93. 
 
 Caleb Cushing, 93, 146. 
 
 William L. Marcy, 93. 
 
 Marshall, C. J., 78. 
 
 Williams, J. M., 146. 
 Expatriation rule in Massachusetts, 78. 
 
 Virginia, 79, 91. 
 
 Kentucky, 91. 
 
 Pennsylvania, 92. 
 Expatriation, rule of, 130, 228. 
 
 Eule in United States not extraterritorial, 130, 164. 
 
 42 
 
330 INDEX. ' 
 
 Expatriation. Presumption is that citizen has right of, 131, 
 228 
 
 Definition of, 148. 
 
 Eight of, recognized by treaty, 148. 
 
 complete, works change of citizenship, 169 
 Expulsion. Eight of, 228. 
 Expulsion from Schleswig-Holstein, 239. 
 
 cases, 239. 
 Expulsion. Eight of, maintained in United States, 242. 
 
 opinion of Count Bismarck, 240, 241. 
 
 in Germany, 242. 
 Extraction, not locality of birth, confers citizenship, 85. 
 
 Principle of, a law of nature, 109. 
 
 the rule which governs acquisition of citizenship in Europe, 
 106, 107. 
 
 Practice of United States on citizenship acquired by, 109- 
 122. 
 Feudal principle of citizenship supplants jus naturale of 
 
 Eomans, 4. 
 Ferry, Jules, on naturalization abroad, 254, 255. 
 Field on citizenship acquired by descent, 105. 
 
 on nationality of women, 297, 298. 
 
 on dual citizenship, 114. 
 Finland. Emigration from, permitted, 263. 
 Fish, Hamilton, on adoption of foreign children, 295. 
 
 on nationality of women, 297, 298. 
 
 on abandonment of citizenship, 302. 
 
 on loss of right to protection abroad, 303. 
 Fiore on citizenship acquired by descent, 105. 
 Florida. State of, recognizes natural right by man, 23. 
 Foichat, T. H. Case of naturalization. No treaty, 253. 
 Foelix. Eule laid down on acquisition of citizenship, 15. 
 
 on dual citizenship, 115. 
 
 on duties of aliens, 267. 
 Fogai*ty, M. B. Case of, arrest in England, 246. 
 France, English practice with, on citizenship, 57. 
 Fresh, Hilar. Case of under naturalization treaty, 196. 
 Frelinghuysen, F., on right of expatriation, 171. 
 
 on nationality of women, 298 . 
 Frist. Eule laid down on acquisition of citizenship, 17. 
 Furgurson. On citizenship acquired by descent, 105 
 Foreman, W. Case of citizenship by birth in English practice, 
 
 61. 
 Gad, Meyer. Case of expulsion, 242, 243. 
 Germany. English practice with, on citizenship, 58. 
 Germany. Expulsion from, 242. 
 
INDEX. 331 
 
 Goldner, Isaac. Case of naturalization. No treaty, 258. 
 
 Granville, Lord. On principle of treaties, 40. 
 
 Granville, Lord. On duties of aliens, 248. 
 
 Grenville, Lord, on naturalization in United States, 77. 
 
 Griers, M. de. On rights of Israelites in Russia, 261. 
 
 Grotius. Eule laid down on citizenship, 14. 
 
 Guatemala. English practice with, on citizenship, 59. 
 
 Hanse Towns. English practice with, on citizenship, 58. 
 
 Hagerdorn, J. C. Case of, under naturalization treaty, 206. 
 
 Halleck on rights of aliens, 294. 
 
 Hans, M. Case of citizenship acquired by extraction, 110. 
 
 Hansding, Louis. Case of citizenship acquired by extraction,! 
 
 109. 
 Harcourt, Sir Vernon, on citizenship acquired by locality of 
 
 birth, 72. 
 Hart, M. Case of arrest in England, 247. 
 Hawaiian Islands. Citizenship in, 287. 
 Heffter, rule laid down on acquisition of citizenship, 16. 
 
 on citizenship acquired by descent, 105. 
 
 on dual citizenship, 291. 
 Held, Gustav. Case of, under naturalization treaty, 208. 
 Henrichs, E. Case of citizenship acquired by extraction, 120. 
 Henkes, C. Case of, under naturalization treaty, 205. 
 Hessen-Darmstadt. Naturalization treaty with, 154. 
 Hirsch, Marcus. Case of, under naturalization treaty, 197. 
 Hoeriger. Meaning of term in practice of middle ages, 31. 
 Horstman, B. Case of, under naturalization treaty, 207. 
 Humbert, P. Case of, under naturalization treaty, 194. 
 Hungary. Recognition of struggles in, 33. 
 Illinois. State of, recognizes natural rights of man, 23. 
 Independence of State. ' Principle of Emperor William of Ger 
 
 many, 35. 
 Independence. Every country must enjoy it, 32. 
 India. Principles which govern citizenship in, 30. 
 Indiana. State of, recognizes natural rights of man, 24. 
 Inquiry into existing obligations before emigration, 47. 
 
 right of, purely autonomous, 47. _ 
 Intent. Declaration of, to become citizen, 131. 
 
 does not confer citizenship, 139. 
 
 may give right to protection abroad, 140, 142. 
 International law. Rules of, derived from, 101. 
 Intercourse between countries in middle ages, 7. 
 Interference in Mexico by Napoleon III, 34. 
 Iowa. State of, recognizes natural rights of man, 24. 
 Ireland. Act for protection of property and persons in, 247. 
 Israelites not allowed in Russia, 261. ' 
 
332 INDEX. 
 
 Israelites. Opinion of J. Gr. Blaine on, 261. 
 
 Opinion of Wm. Evarts on, 260. 
 
 Opinion of M. de Criers on, 261. 
 Italy. Recognition of its independence, 32. 
 Italy. English practice with, on citizenship, 60. 
 Jacobson, D. Case of, under naturalization treaty, 197. 
 Jacob, A. E. Case of citizenship acquired by extraction, 117. 
 Jantzen, C. F. Case of, under naturalization treaty, 196. 
 Jefferson, Thomas, on expatriation, 76. 
 Jepsen, P. Case of expulsion, 240. 
 Jessen, H. P. Case of expulsion, 240. 
 
 Jones, C. P. Case of citizenship with Hawaiian Islands, 287. 
 Joppen, I. G-. Case of expulsion, 239. 
 Judicial branch of government, 48. 
 Jus Albanagii, of middle ages, 12. 
 
 Jus naturale. Basis of relation of citizens to Roman state, 2. 
 Jus naturale, lost as principle on invasion of Barbarians, 4, 31. 
 Jus soli. English rule of, not adopted in United States, 80, 105. 
 Jus soli. Principle of. How affected by Code Napoleon, 105. 
 Kansas. State of, recognizes natural rights of man, 24. 
 Kentucky. State of, recognizes natural rights of man, 25. 
 Klagges, Prank. Case of, under naturalization treaty, 204. 
 Klan, Andrew. Case of, under naturalization treaty, 217. 
 Kloss, E. P. Case of, under naturalization treaty, 198. 
 Knocke, John P. Case of naturalization. No treaty, 180, 
 
 181. 
 Kriegal, Gustav. Case of, under naturalization treaty, 198. 
 Kroemer, C. W. Case of citizenship acquired by extraction, 116. 
 Landau. Case of. On protection abroad, 171. 
 Largomorisino, P. Case of, under naturalization. No treaty, 
 
 251. 
 Laws. Each country must have, 44. 
 
 natural, are universal, 44. 
 
 positive, are territorial, 44. 
 
 of nature prescribe no particular locality for man, 85. 
 Law itself does not change citizenship. 164. 
 Law, common. There is none for United States, 74. 
 
 of England, not law of nations, 101. 
 Lebrone, victor. Case of naturalization. No treaty, 256. 
 Legislative branch of government, 48. 
 
 Lemberger, D. Case of citizenship acquired by extraction, 117. 
 Levinson, C. Case of, under naturalization treaty, 198. 
 Lieber, Franz. On citizenship acquired by law of Mexico, 264. 
 Loeb, Jacob. Case of, under naturalization treaty, 212. 
 Louisiana. State of, recognizes natural rights of man, 25. 
 Lowell, J. R., on citizenship, how acquired, 249. 
 
INDEX. 333 
 
 Malsbury. On citizenship acquired by birth in English prac- 
 tice, 58. 
 Mamelsdorf, E. Case of, under naturalization treaty, 199. 
 Man by nature a dependent being, 20. 
 Man essential to good of society, 40. 
 Man enters society to preserve his welfare, 41. 
 Man entering society permits restrictions on his natural rights, 
 
 41. 
 Man enters society by positive law, 41. 
 Man becomes a member of society by contract, 41. 
 Man; what he surrenders to society when he becomes a member, 
 
 42. 
 Man reserves to himself certain inalienable rights, 42. 
 Man is either a citizen or an alien, 49. 
 Manteuffel. On citizenship acquired by naturalization, 186. 
 
 criticism on naturalization law of United States, 186. 
 Marcy, Wm. L. On right of expatriation, 93. 
 
 on crimes committed before emigration, 158. 
 Marriage of citizens of United States to foreigners, 298. 
 Marshall, chief justice, on right of expatriation, 78. 
 Maryland, state of, recognizes natural rights of man, 25. 
 Massachusetts, state of, recognizes natural rights of man, 25. 
 Matriculation in Mexico, principles of, 267, 268. 
 McLeod, Alexander, on theory of allegiance, 87. 
 McCormick, J. K. Case of, on naturalization, no treaty, 245 
 McSweeney, D. Case of arrest in England, 246. 
 Mely, August. Case of, under naturalization treaty, 209. 
 McEnery, D. Case of arrest in England, 246. 
 Members of a society should enjoy equal rights, 46, 48 . 
 Men are created equal with certain inalienable rights, 71. 
 Mercier, M., on French citizens in United States, 294. 
 Mexico. Practice with, on naturalization, 263. 
 Mexico . Laws relating to foreigners in, 269-283. 
 Michigan. State of, recognizes natural rights of man, 26. 
 Military service in middle ages, 11. 
 
 Obligatory in Europe, 159. 
 
 in Germany. Rule of, 161, 182. 
 
 in Italy. Eule of, 252, 253. 
 Minnesota. State of, recognizes natural rights of man, 26. 
 Minor children. How affected by naturalization of parent, 133, 
 
 134, 135. 
 Missouri. State of, recognizes natural rights of man, 26. 
 Montaya. Case of citizenship acquired by locality of birth, 56. 
 Muller, C. K. Case of, under naturalization treaty, 205. 
 Mumbour, H. Case of, under naturalization treaty, 192. 
 Nationality. Principle of Sir Vernon Harcourt, 72, 102. 
 
 Loss of, in Germany, 208, 209. 
 
334 INDEX. 
 
 Naturalization. Effect of on minor children, 133, 135, 232, 234. 
 
 Effect of, on wife of applicant, 138. 
 
 Treaty of, not subordinate to act of Congress, 149. 
 
 Treaty, effect of, on existing statutes, 150. 
 
 treaty with Austro-Hungary, 155, 175. 
 Baden, 152, 173. 
 Bavaria, 154, 173. 
 Belgium, 156, 175. 
 Denmark, 154, 174. 
 Hessen-Darmstadt, 154, 172. 
 "Wurtemburg, 153, 172. 
 
 Eules of, compared, 157, 177. 
 
 Citizens by, 170. 
 
 rules different on return to country of origin, 171. 
 
 contemplates residence in country of adoption, 171. 
 
 treaties, effect of, on citizens in country of origin, 179. 
 
 "Wheaton. Rule on, 180. 
 
 Barnard. Bule on, 184. 
 
 Position of Prussian government on, 186. 
 
 Opinion of Baron Manteuffel on, 186. 
 
 Wright. Eule on, 186. 
 
 treaties. Practice under, 188. 
 
 Each case to be decided on its own merits, 188. 
 
 Decision of State department on the decision of President, 
 188. 
 
 case decided in effect by the President, 188. 
 
 cases under treaties, 189-221. 
 
 deductions from the practice, 223. 
 
 German rule of, acquiesced in by the United States, 232. 
 
 fraudulent, inquired into, 143. 
 
 in United States, opinion of Lord Grenville on, 77. 
 Natural law of man universal, 44. 
 
 Nebraska. State of, recognizes natural rights of man, 26. 
 North Carolina. State of, recognizes natural rights of man, 27. 
 Nevada. State of, recognizes natural rights of man, 26. 
 New Hampshire. State of, recognizes natural rights of man, 27. 
 New Jersey. State of, recognizes natural rights of man, 27. 
 Newmarch, M. A. Case of, under naturalization treaty, 195. 
 Nesselrode, Prince. On aliens' claim for loss of property, 292. 
 Nicolson, A. E. Case of expulsion, 239. 
 Nobility in Middle Ages, 10. 
 
 Norway, Sweden. English practice with, on citizenship, 61. 
 Oath to support constitution does not imply allegiance, 94. 
 Obligations of Roman citizens to state, 2. 
 
 of Barbarians to their leaders, 4. 
 
 as to property, real and personal, 4. 
 
INDEX. 335 
 
 Obligations. A country can have no hidden obligations for its 
 citizens, 46. 
 
 existing. How inquired into, 47. 
 
 Principle which governs unfulfilled, 148. 
 
 to perform military servioe in Europe, 159. 
 
 arising after immigration not to be performed, 161. 
 
 to country cannot be continuous, 161, 162. 
 
 unfulfilled before immigration, 223. 
 O'Connor. Case of arrest in England, 246, 247. 
 Oench, Henry. Case of, on crimes committed before emigra- 
 tion, 158. 
 Ohio. State of, recognizes natural rights of man, 27. 
 O'Mahoney, H. Case of arrest in England, 247. 
 Option. Eight of, in citizens under treaty of 1794, 63. 
 
 as to citizenship on reaching majority, 89. 
 
 in citizens under treaty of 1803, 91. 
 
 in citizens under treaty of 1819, 91. 
 
 under France-German treaty 1870, 210. 
 Oregon. State of, recognizes natural rights of man, 28. 
 Orientals. Principles which governed citizenship among, 30. 
 Origin of state in man, 20. 
 
 Organization of governments among Barbarians, 5. 
 Ottoman legislation on citizenship, 284. 
 Palmerston, Lord, on citizenship by birth in English practice, 
 
 54, 55, 58, 60. 
 Passports, certificates of protection, 302. 
 
 Every citizen entitled to, 302. 
 Pearson, S. P. Case of citizenship with China, 124. 
 Peel, Sir Eobert, on citizenship by birth in English practice, 53: 
 Pennsylvania. State of, recognizes natural rights of man, 28, 
 Pepin, Henry. Case of naturalization. No treaty, 255. 
 Performance of duties and exercise of rights equal to all, 46. 
 Phillimore on dual citizenship, 114. 
 
 on citizenship of women after divorce, 299. 
 
 on duties of aliens, 248. 
 Poland. Eecognition of struggles in, 33. 
 
 Annihilation of, 40, 41. 
 Portugal. English practice with, on citizenship, 61. 
 Positive law territorial in effect, 44. 
 
 Practice under English rule, citizenship acquired by birth, 53. 
 Practice under English rule, of England with Argentine Eepub- 
 lic, 53. 
 
 Austria, 55. 
 
 Belgium, 55. 
 
 Brazil, 56. 
 
 Colombia, 56. 
 
336 INDEX. 
 
 Practice under English rule, of England with Denmark, 56. 
 
 France, 57. 
 
 Germany, 58. 
 
 Guatemala, 59. 
 
 Hanse Towns, 58. 
 
 Italy, 60. 
 
 Norway-Sweden, 61. 
 
 Portugal, 61. 
 
 Prussia, 62. 
 
 Spain, 62. 
 
 United States, 63. 
 Prerequisites necessary to citizenship, 132. 
 President of United States acts through his secretaries, 188. 
 Presumption of loss of citizenship after two years' residence 
 
 abroad, 223. 
 • Principle citizenship in England not adopted by United States, 71. 
 
 of int. law in United States not taken from English law, 101. 
 Protection to citizens of United States when abroad, 151. 
 
 when denied, does not involve loss of citizenship, 165, 169. 
 
 rebuttal testimony permitted, 169. 
 
 to aliens in United States, 289. 
 Property. Eights of aliens to hold, 292. 
 
 loss to, by aliens no compensation for, 292, 293. 
 Prussia. English practice with, on citizenship, 62. 
 
 Rights of nation precede stipulations of treaty, 40. 
 Puffendorf. Eule laid down on citizenship, 14. 
 Qualified citizenship not practicable, 132, 133. 
 Eainals. Case of citizenship by locality of birth, 56. 
 Rebuttal testimony. Importance of, on citizenship, 243, 244. 
 Eecognition of a state's autonomy may be premature, 33. 
 
 United States by Prance, 33. 
 
 South American states by England, 33. 
 
 Greece by England, Prance and Russia, 33. 
 
 Belgium by the five powers of Europe, 33. 
 
 Italy by England, 33. 
 
 a state's autonomy can be demanded, 33. 
 
 a state's autonomy can be premature, 33. 
 Reewarts. Case of, expulsion, 239. 
 Reichart, A. Case of, on rebuttal testimony, 245. 
 Renunciation. Loss of citizenship by, 245. 
 Residence. Two years may be loss of citizenship with Ger- 
 many, 243. 
 
 meaning of, different from domicile, 234. 
 
 Frederick Frelinghuysen on, in United States, 235. 
 Rohlffs, H. Case of expulsion, 240. 
 
 C. Case of expulsion, 240. 
 
INDEX. 337 
 
 Eowe, J. S. Case of naturalization. No treaty, 250, 251. 
 Russia. Bale of expatriation in, 259. 
 
 Punishment by expatriation, 259. 
 
 Israelites not allowed in, 262. 
 Rutherforth. Rule laid down on citizenship, 16. 
 Russell, Lord John, on citizenship by birth in English practice, 
 
 56, 57. 
 Salamonske, W. Case of, under naturalization treaty, 199. 
 Sandt, H. V. Case of naturalization. No treaty, 184. 
 Santos, T. K. Case of naturalization. No treaty, 222. 
 Scola, John. Case of, under naturalization treaty, 200. 
 Schang, J. P. Case of, under naturalization treaty, 214. 
 Schweitzer, Q-. Case of, under naturalization treaty, 220. 
 Secretary of State the agent of the President of United States, 188. 
 Seward, Wm. H., on political growth of America, 34. 
 Seward, on loss of protection abroad, 304. 
 Sharboro, T. P. Case of citizenship acquired by extraction, 123. 
 Sheibert, C. T. Case of citizenship acquired by extraction, 115. 
 Sigbjornsen, P. Case of, under naturalization treaty, 219. 
 Slattery, P. Case of arrest in England, 247. 
 Smith, T. W. Case of citizenship with Mexico, 268. 
 Sovereigns. Pledge of faith between, 148. 
 Society. Man enters an institution of man, 21, 34. 
 
 is a civilized institution, 21. 
 
 common term, applicable to state or country, 21. 
 
 must be independent, 32. 
 
 recognized by other countries, 32. 
 
 Different forms of, 34. 
 
 Each the equal of the other in international sense, 37. 
 
 Dignity of rank of, 37. 
 
 Annihilation of, 40. 
 
 What man reserves to himself when he enters. 42. 
 
 must have laws, 44. 
 
 has no hidden obligations for its citizens, 46. 
 
 Members of, should enjoy equal rights, 46. 
 South Carolina. State of, recognizes natural rights of man, 28. 
 Speck, Josef. Case of citizenship acquired by extraction, 123. 
 State. Common term applicable to society, 21. 
 Statute applies equally to citizens and aliens, 98. 
 
 Construction of, 100, 101, 102, 105, 109. 
 
 on citizenship, must conform to international practice, 100. 
 Steinkauler. Case of citizenship by extraction, 113. 
 
 Case of dual citizenship, 113. 
 Stein, Mose. Case of fraudulent naturalization, 143. 
 Spain. English practice with, on citizenship, 62. 
 Taxes, payment of, essential to protection abroad, 166, 167. 
 
338 INDEX. 
 
 Taxes. Opinion of Hamilton Fish, 166. 
 
 Opinion of Frelerick Frelinghuysen, 166. 
 Taxacher, V. Case of, under naturalization treaty, 230. 
 Texas. State of, recognizes natural rights of man, 29. 
 Testimony, rebuttal. Importance of, on citizenship, 169, 243, 
 
 244. 
 Topaz, M. Case of adoption of woman by marriage, 296. 
 Treaty, what is, 39. 
 
 nullification of, 37. 
 
 Lord Grenville on, 40. 
 
 of 1783, between England and United States, effect of, 63. 
 
 of 1794, on citizenship, 63. 
 
 of 1794, to whom applicable, 65. 
 
 of 1870, with Great Britain, effect of, 68. 
 
 supreme law in United States, 148. 
 
 of naturalization, not subordinate to act of Congress, 149. 
 
 effect of, on existing statutes, 150. 
 
 is a rule of law of international import, 202. 
 Trading certificates in middle ages, 10. 
 Turkey. Citizenship in, how acquired, 283, 284. 
 
 Emigration from, prohibited, 284. 
 Typhonius, on right to choose citizenship, 3. 
 United States. Recognition of, by Prance, 32. 
 
 cannot legislate for foreign countries, 162. 
 
 cannot force its citizens to become citizens elsewhere, 165. 
 
 English practice with, on citizenship, 63. 
 Vattel. Rule laid down on acquisition of citizenship, 16, 103. 
 
 on dual citizenship, 115. 
 Venezuela. Rule of acquisition of citizenship in, 265. 
 Verdelet, E. A. Case of naturalization. No treaty, 256. 
 
 Case of citizenship acquired by extraction, 119. 
 Vermont. State of, recognizes natural rights of man, 29. 
 Vertus. Case of citizenship acquired by locality of birth, 60. 
 Villinger, G-. Case of, under naturalization treaty, 200. 
 Virginia. State of, recognizes natural rights of man, 29. 
 Volition. Exercise of, essential to change of citizenship, 43, 164. 
 Vopel, T. Case of, under naturalization treaty, 193. 
 Wheaton, Henry, on naturalization, 180. 
 Widowhood. Former citizenship does not revert, 299. 
 
 opinion of Cockburn, chief justice, 299. 
 Woman's nationality in case of divorce, 299. 
 Woman abandons her citizenship by marriage, 300. 
 Woman does not lose her citizenship by death of husband, 300. 
 Yeomanry in middle ages, 10. 
 
 Zimmer, Martin. Case of, under naturalization treaty, 203. 
 Zuber, Wm. L. Case of citizenship with Mexico, 263.