When the normal relations between nations were those of belligerency, the principle underlying those relations was the predominance of might and self-interest. As this attitude changed and gradually developed with the advance of civilization into the desire on the part of nations to maintain peace with one another, SO did the relations change from normal belligerency to normal amity and friendship. In the earlier stages of this development the foreigner had no rights, he was regarded as a slave; his property on the slightest pretext was plundered or confiscated; piracy was an important and legitimate branch of international commerce, the dangers of which could be avoided by paying in advance the stipulated and often regulated tribute, which tribute, or tariff, was regarded very much in the light of marine insurance.
If we will bear in mind that the development to which we have referred has by no means reached its final stages, but that distinct signs of arrested growth in varying degrees are not only traceable, but clearly evident in many of the principles as expounded by the leading authorities on international law, we will be better able to harmonize as well as distinguish between abstract principles as laid down by the text writers and specific cases as adjusted by diplomatic negotiations. This development also marks the stages of evolution of international relations from a policy based upon predominant might and self-interest, to the recognition of reciprocal obligations based upon equal sovereignty and the principles of justice as between civilized nations. As the individuals composing a nation became more enlightened and imbued with a sense of right and justice, so the nations which ultimately reflect public opinion, shaped their political and executive relations towards each other by their laws, treaties and conventions, so as to avoid international differences and lessen those double-edged controversies, which arose out of the conflict of sovereignty and were the fruitful causes of war.
Among the questions coming under this head, none are of more frequent occurrence than those growing out of the conflicting claims of sovereignty and allegiance made by nations respecting their subjects. The chief conflict arises out of the following classes of cases:
(a) Where a person is domiciled in a country wherein he was born, descended from a father born in the dominion of another country.
(b) Where a person born in one country, emigrates therefrom and becomes naturalized in the country of his adoption, and afterwards returns to the country of his birth.
The evolution and revolutions which brought about the overthrow of Feudalism as a State system have not entirely obliterated many of the precedents that system engendered. It has left in European countries as a prerogative of early monarchical claims the idea of perpetual allegiance transferred from the liege lord to the State, except in so far as these ideas had to yield to the conflicting claims of sovereignty, which are chiefly embodied in the reciprocal clauses of naturalization treaties. The feudal doctrines have never found root in this country. "The Government of the United States commenced with successful revolution; it was organized on the hypothesis of allowing the largest range to individual volition compatible with public safety; the people of the United States are composed of emigrants from Europe, most of whom expatriated themselves in order to escape from oppression, or, if you please, legal impediments to personal action, in the countries of their birth—and many of whom were the actors and the victims of revolutions or of civil wars. . . . The doctrine of absolute and perpetual allegiance—the root of the denial of any right of emigration—is inadmissible in the United States. It was a matter involved in and settled for us by the Revolution which founded the American Union."
It has been claimed even by some of our leading jurists of former years, that as we adopted the common law of England, as it existed at the time of our separation, therefore we adopted the common law doctrine of indissoluble allegiance. "But there are two sufficient answers to this course of reasoning; the common law of England is not the international law of the world, and we have inherited and adopted the common law of England only in so far as its provisions and its reasoning are adapted to our new situation and our political institutions. Therefore the common law doctrine of indestructible allegiance is not a part of the system of American law any more than it is of the international law."
The United States have led the way in the overthrow of the feudal doctrine of perpetual allegiance. The executive branch of the Government has from the earliest times consistently upheld the right of expatriation, and opposed the doctrine of indissoluble allegiance. In 1793, Mr. Jefferson, then Secretary of State, in a letter to Mr. Morris, says: "Our citizens are certainly free to divest themselves of that character by emigrating, and other acts manifesting their intention, and may then become the subjects of another power, and free to do whatever the subjects of that power may do." Again, in 1794, Mr. Randolph, Secretary of State, relative to the alleged expatriation of one, Captain Talbot, said: "I can not doubt that Captain Talbot has taken an oath to the French Republic, and at the same time I acknowledge my belief that no law of any of the States prohibits expatriation."
The United States have never passed any law restraining their own citizens, native or naturalized, from leaving the country and forming political relations elsewhere. Besides, the naturalization laws of the United States are inconsistent with this doctrine, as they require an alien who is to be naturalized, to abjure his former allegiance without taking cognizance whether his sovereign of origin has released him.
I have appended a statutory history of naturalization in the United States beginning with 1790, specially prepared by Mr. Gaillard Hunt of the Department of State. It will be seen that while in all of these laws the right of expatriation is implied that implication was recognized by express enactment by the Act of 1868, whose preamble reads: "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 emigrants from all nations, and invested them with the rights of citizenship."
Our foreign relations are replete with cases wherein we have consistently urged and generally upheld the doctrine of the inherent right of expatriation.
The insistence upon this right brought us into war with England in 1812, and again in 1848 came near bringing us into hostile collision with Austria, arising out of the case of Martin Koszta. In the Koszta case by reason of the peculiar circumstances and the summary manner, Martin Koszta was seized or rather kidnapped by the Austrian authorities in neutral territory, provoked, if it did not entirely justify the extreme claim of protection by the United States. The case is commented upon in all the text books. Martin Koszta was a Hungarian insurgent of 1848-9. He escaped to Turkey, and from there went to the United States, and in 1852 made to the usual declaration preparatory to being naturalized under our laws. In 1854 he returned to Turkey. At Smyrna he was, by the order of the Austrian Consul, seized while on shore and thrown into the water, taken up by the crew of the Hussar, an Austrian frigate, and put into irons. Before the boat got under way an American frigate arrived and threatened to sink the Austrian vessel unless Koszta was released. This led to an arrangement by which he was put under the custody of the French Consul-General, until the governments should come to an understanding. The Turkish authorities had refused to allow his arrest, and Austria, it seems, subsequently claimed she had a right to do so under the capitulations. I have examined these capitulations, but do not find a basis for such claim. I advert to this point, which I find referred to in the correspondence, but not by the text writers in their discussion of the case. This fact doubtless influenced Mr. Marcy, the Secretary of State, to expand the doctrine of protection so as to include inchoate citizenship under such exceptional circumstances. Besides, as Secretary Marcy correctly emphasized, Koszta had been banished by Austria, and banishment under the law of nations, operates a release of allegiance. So in any event Austria was estopped by her own act. That this is a fact, is borne out by the action of Secretary Marcy in the case of Simon Tousig, who had also filed his declaration to become an American citizen. On returning to Austria, Tousig was arrested for the same cause, participation in the Hungarian Insurrection. Mr. Marcy refused to interfere, and stated: "Every nation, whenever the laws are violated by any owing obedience to them, whether he be a citizen or a stranger, has a right to inflict the Penalties incurred upon the transgressor if found within its jurisdiction."
England, while freely allowing liberty of emigration, held to the principle of indelible allegiance until 1870. Her former attitude was neither logical nor consistent, in that she did not follow her emigrants to other countries with English protection, but claimed the right of their allegiance whenever she chose to demand it. So long as they remained in a foreign country they were held to their foreign claim of allegiance, and estopped from asking British protection, yet when they returned to England the Claim of their foreign allegiance was not admitted. No more striking illustration of conflict of sovereignty arising out of opposing doctrines maintained by two nations on the question of expatriation than the causes that brought on the Anglo-American war of 1812. So long as these opposing doctrines were insisted upon all efforts to arrive at a peaceful arrangement proved futile. In 1807 the King issued a proclamation containing the following passage, "Now we do hereby warn all such mariners, seafaring men, and others, our natural-born subjects, that no such letters of naturalization, or certificates of citizenship do, or can, in any manner divest our natural-born subjects of the allegiance, or in any degree alter the duty which they owe to us, their lawful sovereign."
In 1809 Mr. Smith, the American Secretary of State, in a dispatch to Mr. Pinkney, our Minister to the Court of St. James, announcing the refusal of the President to accord further official intercourse with Mr. Jackson, the British representative, whose negotiations his government had disavowed, states: "What possible consideration could have induced the British Government to expect that the United States would admit a principle that would deprive our naturalized citizens of the legal privileges which they hold in common with their native born fellow-citizens."
Englishmen naturalized in the United States were impressed from on board American vessels for service in the English Navy. President Monroe in his inaugural address on March 4, 1823, refers to this attitude of England, he said: "They have refused to consider as prisoners of war, and threaten to punish as traitors and deserters, persons emigrating without restraint to the United States, incorporated by naturalization into our political family, and fighting under the authority of their adopted country in open and honorable war, for the maintenance of its rights and safety. Such is the avowed purpose of a Government which is in the practice of naturalizing by thousands citizens of other countries, and not only of permitting but compelling them to fight its battles against their native country."
Mr. Monroe, when Secretary of State, in the instructions to the American Commissioners for negotiating the Treaty of Ghent (April 15, 1814), says: "It is contended by some . . . by naturalizing a foreigner, no State can absolve him from the obligation which he owes to his former Government, and that he becomes a citizen in a qualified sense only. This doctrine, if true in any case, is less applicable to the United States than to any other power. Expatriation seems to be a natural right, and by the original character of our institutions, founded by compact on principle, and particularly by the unqualified investment of the adopted citizen with the full rights of the native, all that the United States could do to place him on the same footing has been done."
I cite these opinions out of many of a like nature as showing the divergent positions taken by England and the United States upon this subject. The Prince Regent in the Proclamation issued on the 24th of July, 1814, recalling and prohibiting natural born subjects of His Majesty from serving in the ships and armies of the United States, entirely disregarded American naturalization and gave notice to those who remain in the service that they would be treated as guilty of high treason. Of course, this extreme position was due to the existence of war between the two countries, and was regarded as a war measure.
In the negotiations which terminated in the treaty of Ghent, the Commissioners did their utmost to incorporate the claims of the respective governments as to expatriation and perpetual allegiance; but it was found the divergent positions under their instructions, could not be harmonized, so that question was dropped, the United States Commissioners stating: "The causes of war between the United States and Great Britain having disappeared by the maritime pacification of Europe, the Government of the United States did not desire to continue it in defense of abstract principles, which have, for the present, ceased to have any practical effect." Yet on examination of this treaty it will be seen that Article III provides for the restoration of all prisoners of war. This was by implication an abandonment of the extreme position taken by Great Britain, and to that extent a recognition of the American doctrine of expatriation. With the abandonment by Great Britain of impressment as a means of manning the navy the sources of possible collision upon this question were removed. From time to time the United States made advances to open negotiations with Great Britain upon the subject of expatriation, but successive English Governments, though having abandoned in practice the claim of perpetual allegiance, refused to come to a definite understanding on the question. In 1842 Lord Ashburton was sent on a special mission to the United States authorized to negotiate for the settlement of all existing differences between the two countries. Mr. Webster, availing of this opportunity, addressed a note to him for the purpose of coming to an arrangement upon these questions, setting out the efforts that had been made by the United States in that direction for the past fifty years. Lord Ashburton, however, put the negotiations aside, stating his instructions limited him only to existing subjects of difference, said: "I am well aware that the laws of our two countries maintain opposite principles respecting allegiance to the Sovereign. America receiving every year by thousands the emigrants of Europe, maintains the doctrines suitable to her condition, of the right of transferring allegiance at will. The laws of Great Britain have at all times maintained the opposite doctrine."
Diplomatic conflicts with England and other countries arising out of this question of allegiance and expatriation continually presented themselves. In 1848, during the Irish disturbances of that year, Bergen, a native American, and Ryan, an Irishman, naturalized in America, were arrested on suspicion of treason. Mr. Bancroft, our Minister to England, remonstrated against the treatment of the arrested persons as subjects of Great Britain. Lord Palmerston in his answer upheld the traditional law of perpetual allegiance. Mr. Buchanan, Secretary of State, instructed Mr. Bancroft: "Whenever the occasion may require it, you will resist the British doctrine of perpetual allegiance, and maintain the American principle, that British native born subjects after they have been naturalized under our laws, are to all intents and purposes as much American citizens and entitled to the same degree of protection, as though they had been born in the United States." While these conflicting views were expressed it resulted in the liberation of Bergen and Ryan on condition of their leaving the kingdom.
In 1859 Mr. Cass, Secretary of State, in his instructions to Mr. Wright, our Minister to Prussia, respecting the protection of our naturalized citizen of Prussian origin, who on their return were arrested under the regulations for enlistment, and laws against expatriation, said: "The moment a foreigner becomes naturalized, his allegiance to his native country becomes severed forever. He experiences a new political birth. A broad and impassable line separates him from his native country. He is no more responsible for anything he may say or do, or omit to say or do, after assuming his new character, than if he had been born in the United States. Should he return to his native country he returns as an American citizen, and in no other character. In order to entitle his original government to punish him for an offence, this must have been committed while he was a subject and owed allegiance to that government. * * * * * A future liability to serve in the army will not be sufficient because before that time can arrive for such service he has changed his allegiance and became a citizen of the United States." He then distinguishes between these cases and those where the person had been drafted or had actually deserted prior to emigration.
Another important case that came up at this time was that of Christian Ernst. He was a native of Hanover, and emigrated to this country in 1851, when he was about 19 years of age. In February, 1859, he was naturalized, and in March, after procuring a passport, he went back to Hanover on a temporary visit. He had been in the village where he was born about three weeks, when he was arrested, carried to the nearest military station and forced into the Hanoverian Army. Upon this state of facts Mr. Caleb Cushing, the Attorney-General, said: "I know that the common law of England denies it (the right of expatriation) ; that the judicial decisions of that country are opposed to it; and that some of our courts, misled by British authority, have expressed, though not very decisively, the same opinion. But all this is very far from settling the question. The municipal code of England is not one of the sources from which we derive our knowledge of international law. We take it from natural reason and from the practice of civilized nations. All these are opposed to the doctrine of perpetual allegiance. It is too injurious to the general interests of mankind to be tolerated; justice denies that men should either be confined to their native soil or driven away from it against their will. Expatriation includes not only emigration out of one's native country, but naturalization in the country adopted as a future residence."
The next class of cases which brought this question to the foreground in our diplomacy were those arising out of the Fenian arrests, and the suspension of the Habeas Corpus Act in Ireland in 1866. These cases (the Fenian) and those with Prussia gave rise to political agitation which stimulated Congress to place our policy regarding the protection of our naturalized citizens in foreign countries and our doctrine regarding the right of expatriation into a definite enactment, so that there might no longer be doubt as to our position or any question respecting a conflict between the decisions of the courts and the executive branch of the government. This act of Congress of the 27th of July, 1868, the preamble of which I have quoted, declared the principles upon which the naturalization laws of the United States always rested, and gave legislative sanction to the doctrine uniformly held by the executive and political branches of the Government. It enacted: (Sec. 2) "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."
The foreign relations in all countries to a greater or less extent are shaped by internal conditions, and doubtless this law which was enacted to win over foreign born citizens to the support of the party in power, while entirely applicable for the protection of this class of citizens within the jurisdiction of the United States, has in many instances been found impracticable or impossible to enforce, where such foreign born citizen has returned to the country of his birth. These latter cases have caused endless vexatious negotiations, at times imperiling the good relations of our country with other nations.
The fact is, the same year this Act was passed we concluded the first of our series of naturalization treaties, wherein we limited, except under exceptional circumstances, the period of protection of naturalized citizens to two years after their return to, and residence in the country of their origin. And yet the United States goes further in the protection of its naturalized citizens, even under these circumstances than any other country. Great Britain, for instance, while freely according naturalization, has relieved herself from protecting its foreign born subjects on their return to the country of their origin.
We have treaties of naturalization with the following countries: Austria-Hungary, Baden, Bavaria, Belgium, Denmark, Ecuador, Great Britain, Hesse-Darmstadt, the North German Union, Sweden, Norway, and Wurtemberg. These treaties have had a restraining as well as eliminating effect, restraining such who otherwise would seek our naturalization with the purpose of returning to the country of their origin and their claiming the protection of our laws; and an eliminating effect, in relieving our country with certain exceptions, from protection of naturalized citizens on their return to their country of origin after a residence therein of two years or more.
The Act of 1868, in reference to such countries with which we have treaties of naturalization, is modified by the two-year clause of such treaties, but with such countries as Turkey, Russia, France, Mexico, and the other Republics of this hemisphere, with which we have as yet no treaty of naturalization, continual conflicts arise, which are aggravated in times of revolution or other domestic disturbances in such countries, by the return of their former subjects clothed with American naturalization. A large part of the time of our State Department and our diplomatic agents is taken up with this class of cases, which often menace our friendly relations.
My purpose in presenting this subject aside from the importance of the questions involved, is to direct attention to the advisability, if not the imperative duty of our law-makers, to modify our laws regarding naturalization in respect to that special class of our naturalized citizens who are a constant menace to our friendly relations with other nations. I refer to that class whose citizenship, though regular in form, but in the light of intent and purpose to which it is applied, is a fraud upon two countries, our own and the country of their nativity—"thus making the claim to American citizenship the pretext for avoiding duties to one country while absence secures them from duties to the other." From my experience in Turkey I feel justified in saying that a very large proportion of American naturalized citizens of Ottoman origin, who return to their country of origin, come under this class. The same is true to some extent as to the same class of naturalized citizens in other countries.
Our diplomatic relations with Spain for the past fifty years bear proof to the extent our naturalized citizens of Cuban origin were responsible for the chronic state of insurrection, fostered by filibustering expeditions from the United States, which eventually brought on our recent war with Spain.
Our relations with Mexico and with other American Republics would be far less liable to vexatious differences and would be more permanently friendly but for the machinations of this same class of citizens, who return to their country of origin to exploit their native country, and embroil the country of their nominal adoption.
Naturalization effected in the United States without any intent to permanently reside therein, but with a view of residing in another country, especially when such other country is the country of origin, and using such naturalization to evade duties and responsibilities that would otherwise attach to such persons, should be treated by our Government as fraudulent and as imposing no obligation upon it to protect such person. In practice the facts are not always apparent, as all kinds of subterfuges are used to conceal them. Many instances of this kind may be cited, and in some of these our country went to the verge of war in behalf of citizens who never had and could not have any feeling of loyalty to the United States, much less any knowledge or appreciation of our form of government. A case which came near involving us in war with Ecuador occurred in 1885,—that of Julio R. Santos. Santos was born in Ecuador of Ecuadorian parents. He came to the United States where he was naturalized and afterwards returned to the country of his birth, where he was engaged in business for a period of six years, when he was arrested for complicity in the revolution of 1884, for which, together with other rebels, he was tried and convicted. The matter developed much irritation and was a severe strain upon our relation and was not finally settled until our contention was backed up by a man-of-war.
The reason why acquired citizenship has been and will continue to be more abused in the United States than in other countries, is not because during the last hundred years the tide of emigration has been directed to our shores, but because naturalization in other countries is either not so easily acquired or is granted only with the consent of the native State. Such countries wherein naturalization is only granted with consent of the native state, restrictions are generally imposed by the native state as a condition for that consent, while in such countries as come under the former classification, therein as a rule, only a limited naturalization is accorded, which imposes no obligation to protection beyond the jurisdiction of the state granting such naturalization.
I do not for a moment advocate an abridgment of the American doctrines of citizenship and expatriation, which are so consonant with principles of personal liberty. I do, however, advocate the elimination of those naturalized citizens who, taking advantage of the broad and general provisions of our naturalization laws, not for the purpose of residing in the United States, nor with any intention to respond to the duties citizenship in this country involves, return to their native country, and through their acquired citizenship seek to escape the burdens of their native allegiance. That class who, under the pretext of loyalty for their adopted country, commit treasonable acts in the country of their nativity, and thereby seek to involve the United States in the domestic turmoils and rebellions in their native country. This abuse is not eliminated by our naturalization treaties, it is circumscribed to an extent by the two-year clause in such treaties, but we have found within the two years after the return of naturalized citizens to their native country, or during a residence claimed to be temporary, but in fact permanent, it often happens these citizens have been apprehended as participants in revolutions they have promoted even while residing in the United States pending the acquiring of citizenship.
The dangers from this class of citizens have been largely augmented in recent years by the rapid means of travel on land and sea, together with the facilities of communication by telegraph. coupled with our natural world-wide sympathies for people struggling against oppression.
The Presidents of the United States in their annual messages since our Civil War have again and again called attention to the unsatisfactory and defective condition of our laws. President Grant in his annual message of 1875, referring to this special phase of the subject, says: "In other cases naturalized citizens, immediately after naturalization, have returned to their native country, have become engaged in business; have accepted offices or pursuits inconsistent with American citizenship, and evidence no intent to return to the United States until called upon to discharge some duty to the country where they are residing, when at once they assert their citizenship and call upon the representatives of the Government to aid them in their unjust pretensions. It is but just to all bona fide citizens that no doubt should exist in such questions, and that Congress should determine by enactment of law how expatriation may be accomplished and change of citizenship be established."
President Cleveland in his Annual Message of 1888, says: "That easy and unguarded manner in which certificates of American citizenship can now be obtained has induced a class, unfortunately large, to avail themselves of the opportunity to become absolved from allegiance to their native land, and yet by a foreign residence to escape any just duty and contribution of service to the country of their proposed adoption. Thus, while evading the duties of citizenship to the United States, they may make prompt claim for its national protection and demand its intervention in their behalf. International complications of a serious nature arise."
As matters now stand, with the law of 1868, which provides that the same protection shall be accorded to naturalized as to native born citizens in foreign countries, and in the absence of any laws providing by what voluntary acts or circumstances expatriation is effected, this class of questions, if not the most important, is certainly the most frequently occurring in our diplomacy, is largely left to haphazard, and to contradictory evidence and circumstances for decision.
Secretary Fish, in an instruction to Mr. Washburn, our Minister to France, refers to the difficulties surrounding such cases, and indicates a distinction that must necessarily be made between native-born and such naturalized citizens who have returned to the country of their birth, as to when and whether they are entitled to the protection of our Government. He says: "But where a naturalized citizen returns to his native land to reside, the action of the treaty-making power above referred to would seem to acquire that such agents be jealous and scrutinizing when he seeks their intervention. Even in such cases the purpose of not renouncing the adopted citizenship might be manifested and proven in various ways, &c." In other words, the Executive Department of our Government through force of circumstances has found itself compelled to read an exception in the Act of 1868, and in certain cases to withhold its protection from naturalized citizens who have returned to their native country and concerning whom the circumstances justified the conclusion they had abandoned their acquired citizenship. In most every case where this conclusion is arrived at, it has been done in contradiction to the person's demand for protection and to his pretension of not having abandoned his United States citizenship. In practice the application of these principles are difficult and at times our Government finds itself committed to the protection of persons for whom it doubtless would have declined to intervene had all the circumstances come to its knowledge before any action had been taken by its naval officers or diplomatic officials, but having once asserted its right to accord protection and having been committed thereto by its agents, it is difficult without loss of national prestige for the Government to recede from its position.
The United States in consonance with the spirit of personal liberty which underlies the fabric of its laws has had a marked influence upon European powers in its maintenance of the right of expatriation, and in inducing them to recede from the doctrine of perpetual allegiance, therefore, all the more should it have a care to guard that right and prevent it from being perverted and abused to the detriment of its bona fide citizens and to the jeopardy of its relations with other nations. Because from the beginning of our Government we have encouraged immigration by liberal laws and freely endowed the emigrants and refugees from the Old World with a new national birth by investing them with the rights and privileges of American citizens, should we be jealous of the duties and obligations those privileges impose by discouraging the immigration of such persons who come among us only to acquire our citizenship as a pretext for seeking our protection upon their return to permanently reside in the country of their birth.
There are several ways of reaching the desired result, either by adopting some such form respecting naturalization as obtains in Great Britain, or by the passage of an amendment to the existing laws to the effect that the return of a naturalized citizen to the country of his nativity, except for a temporary stay or a brief visit, shall be presumptive evidence of the abandonment of his American citizenship. While this will not be a complete remedy, such a law would also have the effect of deterring the immigration of such persons as most abuse the high privileges of American citizenship, and who are a continual menace to our friendly relations with other countries.
The inevitable consequences of our Spanish War together with our keen competition for the markets of the world for our export trade, have involved us, for good or for ill, in the intricacies of the world's diplomacy and has expanded the scope of our fortional press, may, even when least expected, bring on the calameign affairs.
To understand and administer these enlarged interests, to guard and protect our rights, and at the same time to keep clear of strained and interrupted relations, and the many vexatious questions which, under the provocations of home politics and a sensaities of war, will demand the highest skill of our Department of State, aided by the trained knowledge of experienced diplomatic agents. It is especially incumbent upon a powerful nation to be just. It can best afford to be generous. It can be so without being charged with weakness. It must often be firm and resolute. Such characteristics are as effective internationally as inter-personally.
To be this, and to do this, we must concede to others the same rights we demand for ourselves, and not invite quarrels from which we must often retreat; quarrels, too, which are most apt to arise at times when nations are most susceptible to irritation, during periods of threatening or pending revolution, or of actual war; when the obligations of neutrality are difficult to maintain; notwithstanding the most watchful care on the part of Governments.
APPENDIX.
STATUTORY HISTORY OF NATURALIZATION IN THE UNITED STATES.
By GAILLARD HUNT, Chief of the Passport Bureau, Department of State.
In the Declaration of Independence one of the grievances enumerated against George III was:
"He has endeavored to prevent the population of these States; for that purpose obstructing the Laws of Naturalization of Foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands."
"Before the adoption of the Constitution each State exercised the right to naturalize aliens" (Morse on Citizenship, p. 116).
The Constitution provided that the Congress should have power "To establish a uniform Rule of naturalization."
Accordingly, an Act was approved March 26, 1790, providing that a free white alien could be admitted to citizenship, after residing within the limits and under the jurisdiction of the United States for two years, by any common law court of record, after a residence of one year in a particular State, provided he was of good moral character and took an oath to support the Constitution. His naturalization also made his minor children citizens (1 Stat., 103). This Act was repealed by that of January 29, 1795, which required a declaration of intention to become a citizen three years at least before admission, before the "supreme, superior, district or circuit court of some of the States, or of the territories northwest or south of the river Ohio, or a circuit or district court of the United States," and upon applying for admission to citizenship the applicant must swear to five years' residence in the United States and one year's residence in the State where he applied besides taking the oath of allegiance. But people then residing in the United States were permitted, as under the Act of March 26, 1790, to secure naturalization after a residence of two years. No person proscribed by the legislature of any State and legally convicted of having joined the army of Great Britain during the late war, could be admitted without the consent of the legislature. The Act of 1790 had simply debarred those who had been proscribed by the legislature of a State, until the legislature lifted the proscription (1 Stat., 414). The next general naturalization law was the severest ever passed in this country, and was the outcome of the agitation against aliens which led also to the passage of the alien and sedition laws. It was approved June 18, 1798. It required that an alien must make his declaration of intention five years at least before his admission, and prove residence in the United States for fourteen years and in the State where he applied for five years. Any alien in the United States before the Act of January 29, 1795, might secure naturalization one year after the passage of the Act. If he had made his declaration of intention in accordance with the provisions of the Act of 1795 he might within four years thereafter secure naturalization, if he had lived five years in the United States, and no citizen of a country with which the United States might be at war at the time of his application could be admitted to citizenship. Clerks of courts before which declarations of intention might be made were to transmit abstracts of such declarations to the Secretary of State, and naturalizations were to be similarly reported (1 Stat., 566).
This Act remained in force four years. It was the only one which required a report of naturalization to be made to the executive.. It was repealed by the Act of April 14, 1802, the main source from which springs our existing system of naturalization. It provides that a person may be admitted to citizenship :—
First. After making an oath before the supreme, superior, district or circuit court of a State or territory, or a federal circuit or district court, three years at least before application of his declaration of intention.
Second. After taking the oath of allegiance to the United States and of renunciation of his former allegiance.
Third. After having resided in the United States at least five years and in the State where he applied at least one year before his application. He must also establish a good moral character and attachment to the Government.
Fourth. Upon renouncing any title of nobility he may have had. But a citizen of a country with which we might be at war could not be admitted, and an alien resident in the United States before January 29, 1795, might be admitted after a two years' residence.
Every free white person arriving in the United States after the approval of the Act, in order to become a citizen, must report himself if twenty-one years old, or be reported if a minor, to some court of record, and his name, nationality, etc., being recorded, receive a certificate of his registration. The children of persons duly naturalized were, if dwelling in this country, to be considered citizens, and the children of citizens born out of the United States enjoyed the same status provided that the citizenship should not descend to persons whose fathers had never resided in the United States. No person proscribed by the legislature of any State for having joined the British Army was to be admitted without the consent of the legislature of the State in which such person was proscribed (II Stat., 153).
The Act of March 26, 1804, modified this Act, so as to permit the naturalization of persons residing in the United States between June 18, 1798, and April 14, 1802, without the previous declaration of intention; and if any one should die after declaring his Intention to become a citizen and before he had secured naturalization, his widow and minor children were to be considered citizens upon taking the oaths prescribed by law (II Stat., 282).
The five years' residence before naturalization was restricted by Section 12 of this Act of March 3, 1813, so that no person should be admitted to citizenship who should not have resided for the continued term of five years within the United States without being at any time out of its territory. Section 13 of the same Act provided severe penalties for forging, counterfeiting or selling certificates of citizenship (II Stat., 811).
Both of these enactments were made during a period of war. They were followed by a third, approved June 30, 1813, which permitted the naturalization of persons resident in the United States June 18, 1812, who had made their declaration of intention, or who were entitled to naturalization without such declaration, notwithstanding the fact that they might be alien enemies according to existing law. Nothing in the Act was to be construed as preventing the apprehension and removal, agreeably to law, of an alien enemy at any time previous to his naturalization (III Stat., 53). Another Act (March 22, 1816), required that the certificate of registry prescribed by the Act of April 14, 1802, and from the clerk of a court of a declaration of intention should be exhibited by every alien on his application to become a citizen, provided he arrived in this country after June 18, 1812, and must be recited in the certificate of naturalization, otherwise he was not to be considered a citizen. This Act was not to apply, however, to persons in the United States between June 18, 1798 and April 14, 1802 (III Stat., 259).
On May 26, 1824, the Act was approved which nearly assimilated to the one now in force on the subject of naturalization of aliens coming to this country during their minority. It provided that a free white person residing in the United States three years next preceding his arrival at the age of twenty-one years, and who had continued his residence therein to the time of his application, might, after arriving at the age of twenty-one, and after five years' residence, including the three years of his minority, be admitted to citizenship without having made the previous declaration of intention required by law. He must make the declaration of intention at the time of his application for citizenship, and state and prove that for three years last past it had been his intention to become a citizen of the United States. The second section of this Act also provided that a certificate of naturalization previously obtained from any court was not to be deemed invalid because of an omission to comply with the requirements of the Act of March 22, 1816, that a certificate of report and registry and of declaration of intention should be exhibited upon application for naturalization. The fourth section provided that the declaration of intention two years before admission to citizenship should be sufficient (IV Stat., 69). The Act of May 24, 1828, repealed so much of the Acts of April 14, 1802, and of March 22, 1816, as required the registry of all foreigners who desired naturalization upon their arrival in this country, and provided that any person residing in the United States between the dates April 14, 1802, and June 18, 1812, and who had continued his residence might be admitted to citizenship without having made a previous declaration of intentions (IV Stat., 310).
The requirements of the Act of March 3, 1813, that the five years' residence should not permit of any absence from the United States was repealed by the Act of June 26, 1848 (IX Stat., 240).
The Act of February 10, 1855, modified so much of the Act of April 14, 1802, as required that the children of citizens born outside of the United States should be considered citizens, if dwelling within the United States, and simply declared them to be citizens, the rights of citizenship not to descend to the children of fathers who had never resided in the United States. The same Act provided that any woman who might herself lawfully be naturalized was to be considered a citizen upon her marriage to an American citizens (X Stat., 604).
During the civil war by the Act of July 17, 1862, it was provided that an alien, over twenty-one years of age, who had enlisted or should thereafter enlist in the army and be honorably discharged might become a citizen upon his petition to a court without having made a previous declaration of intention, and after one year's residence in the United States. The facts of his honorable discharge, residence and good moral character must be established to the satisfaction of the court (XII Stat., 597).
By the Act of April 9, 1866, it was declared: "That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States" (XIV Stat., 27). This was followed by the fourteenth amendment to the Constitution, proclaimed July 28, 1868, which said: "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."
Deserters from the army or navy forfeiting, under the law, their citizenship, the Act of July 19, 1867, prescribed that this penalty should not be held to apply to those who faithfully served according to the terms of their enlistment up to April 19, 1865 (XV Stat., 14).
In 1868, July 27, important action was had by Congress with reference to the right of abandonment of citizenship and protection of American citizens abroad. The Act passed was entitled, "An Act concerning the Rights of American Citizens in Foreign States." The preamble declared that the right of expatriation was natural and inherent, that this country freely received emigrants from all countries and invested them with the rights of citizenship; that it was, nevertheless, claimed that these citizens and their descendants owed allegiance to foreign governments, and that it was necessary that this claim be disavowed. Therefore, "any declaration, instruction, opinion, order, or decision of any officers of this Government which denies, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this Government." Further, "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." Whenever the President should ascertain that any citizen of the United States had been unjustly deprived of his liberty by any foreign Government, he should enquire the reason of his imprisonment, and if he found it to be wrongful should demand his release and use means to effect it, short of an act of war, and report the facts to Congress (XV Stat., 223, 224).
The Act of June 17, 1870, establishing the Police Court of the District of Columbia, prohibited (Sec. 5) that court from naturalizing foreigners (Stat. XVI, 154).
The last section of the Act of July 14, 1870, extending the naturalization laws to aliens of African nativity and of African descent (XVI Stat., 256). Before that they had applied only to "free white" persons. The same Act provided heavy penalties for obtaining or using false naturalization certificates (XVI, Stat. 254).
American seamen enjoy, under Section 29, of the Act of June 7, 1872, an exceptional status with reference to citizenship. Every seamen, being a foreigner, who makes his declaration of intention to become an American citizen before a competent court, and who shall subsequently serve three years on board a merchant ship of the United States may secure citizenship by proving the facts to the satisfaction of the court. For all purposes of protection he is to be deemed an American after making the declaration of intention (XVII Stat. 268).
The Act of February 1, 1876, amended the Act of April 14, 1802, relative to the declaration of intention so that it might be made before the clerk of any of the courts named in that law, and made valid all declarations of intention that had already been so made (XIX Stat. 2).
The Act of April 9, 1866, excluded from the category of citizens "Indians not taxed," but the Act of February 8, 1887, allotting land in severalty to Indians provided (Sec. 6) that every Indian born within the territorial limits of the United States, to whom allotments should be made and who should voluntarily take up his residence apart from any tribe of Indians and adopt the habits of civilized life, should be entitled to all the rights of American citizenship (XXIV Stat. 390). Under the Act of March 3, 1893 (Section 15), lands in severalty were allotted to the Cherokees, Creeks, Choctaws, Chickasaws and Seminoles, and upon the allotment being effected they were to be citizens (XXVII Stat. 645).
Privileges such as are enjoyed by soldiers have never been extended to the same extent to sailors in the navy, but the Act of July 24, 1894, making appropriations for the naval service prescribed that any alien twenty-one years old, who has served or may serve five consecutive years in the navy, or one enlistment in the marine corps, and has been honorably discharged shall be admitted to citizenship by a competent court without having made a previous declaration of intention (XXVIII Sta. 124).