It has been held that naturalization has a retroactive effect to the extent of removing liability to forfeiture of lands held during alienage.9

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The naturalization of a father operates as a naturalization of his minor children if they are dwelling within the United States.10 This same case holds that a declaration of a father of an intention to become naturalized gives to his children who attain their majority, before their father's naturalization is completed, an inchoate citizenship which, upon majority may be repudiated. Clearly," say the court, "minors minors acquire an inchoate status by the declaration of intention on the part of their parents. If they attain their majority before the parent completes his naturalization, then they have an election to repudiate the status which they find impressed upon them, and determine that they will accept allegiance to some foreign potentate or power rather than hold fast to the citizenship which the ing the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured. Whenever any certificate of citizenship shall be set aside or cancelled, as herein provided, the Court in which such judgment or decree is rendered shall make an order cancelling such certificate of citizenship and shall send a certified copy of such order to the Bureau of Immigration and Naturalization; and in case such certificate was not originally issued by the Court making such order it shall direct the clerk of the court to transmit a copy of such order and judgment to the court out of which such certificate of citizenship shall have been originally issued. And it shall thereupon be the duty of the clerk of the court receiving such certified copy of the order and judgment of the Court to enter the same of record and to cancel such original certificate of citizenship upon the records and to notify the Bureau of Immigration and Naturalization of such cancellation." This provision has been held constitutional in United States v. Simon, 170 Fed. 680. This section further provides that: "If any alien who shall have secured a certificate of citi zenship under the provisions of this act shall, within five years after the issuance of such certificate, return to the country of his nativity, or go to any other foreign country and take permanent residence therein, it shall be considered a prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for citizenship, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceedings to authorize the cancellation of his certificate of citizenship as fraudulent."

9 Manuel v. Wulff, 152 U. S. 505; 14 Sup. Ct. Rep. 651; 38 L. ed. 532; Governor's Heirs v. Robertson, 11 Wh. 332; 6 L. ed. 488.

10 Boyd v. Nebraska, 143 U. S. 135; 12 Sup. Ct. Rep. 375; 36 L. ed. 103.

act of the parent has initiated for them. Ordinarily this is determined by application on their own behalf, but it does not fol low that an actual equivalent may not be accepted in lieu of a technical compliance."

§ 134. Naturalization by Annexation of Territory and by Treaty.

Where territories are annexed either by treaty or by conquest, the status of their inhabitants is determined at the will of the annexing States. In all cases, however, in the absence of any treaty stipulations to the contrary, the annexation of a territory transfers to the annexing State the allegiance of its inhabitants, and makes them, from the viewpoint of other nations, the citizens of that State. Whether or not, however, they become its citizens in the stricter constitutional sense depends upon the municipal will of that country. This branch of the subject will be treated in the chapter dealing with "Citizenship in the Territories and Dependencies."

Besides naturalization by general acts, by treaty, and by conquest, there have been many instances in the United States of naturalization of specific individuals or groups of individuals by special acts of Congress.'

11

By statute it is provided that" all children heretofore 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 de clared 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.12

The application of this principle to persons born in countries which, like the United States, claim as their own citizens all persons born within their limits, is to create a double citizenship. This is true, especially, of course, with reference to England.

11 Cf. Van Dyne, Citizenship of the United States, Chapter VI. See the same work, chapter VI, for questions of citizenship connected with the admission of Territories as States.

12 Rev. Stat., § 1993.

Most European countries apply the doctrine of jus sanguinis in fixing citizenship. That is, they treat as their own citizens persons wherever born, whose parents are their citizens. In some cases also, they apply the jus soli as well, claiming as their own citizens persons born upon their soil of alien parents. This, for example, is the practice of France. Many States permit after majority an election to one born in one country of parents who are citizens of another; for example, France, Spain, Belgium, Greece, Bolivia, Italy, Portugal, Mexico, and Great Britain. The British Act of 1870 declares that "any person who is born out of Her Majesty's dominions, of a father being a British subject, may, if of full age, and not under any disability, make a declaration of alienage, and, from and after the making of such declaration, shall cease to be a British subject." In default of such declaration he remains, by birth, a British subject.

Double citizenship is also created, as we shall see in those cases in which one country naturalizes the citizens of another country which does not admit the right of the individual to expatriate himself without the consent of the State of his natural allegiance.

The difficulties and conflicting claims arising out of these cases of double allegiance have been numerous, and have usually been settled, each case upon its own merits, by way of compromise and upon doctrines of comity, rather than by the establishment of any very general principles. Thus it has been held upon numerous occasions by the executive branch of our government that our law cannot operate to relieve such persons from their allegiance to the countries in which they are born so long as they remain in such countries. It has also been generally held that where a naturalized American citizen returns to his native country, he may be held bound by such obligations, as, for example, the rendition of military service, as may have been due by him at the time of his departure from his native country.1

13

13 Cf. W. S. Tingle, Germany's Claims Upon German Americans in Germany, Philadelphia, 1903.

CHAPTER XIX.

EXPATRIATION.1

§ 135. Denial of Right of Expatriation.

Until comparatively recent times, except in the United States, the right of a citizen to cast off his natural allegiance, the allegiance into which he is born, was generally denied by the States of the world.

This denial was made, but not always enforced in practice, in England down to the time of her Naturalization Act of 1870. Blackstone in his Commentaries declared: "It is a principle of universal law that the natural-born subject of one prince cannot, by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former; for this natural allegiance is intrinsic, and primitive, and antecedent to the other, and cannot be divested without the concurrent act of that prince to whom it was first due. Indeed, the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands by which he is connected to his natural prince."

The statute 3 Jac. 1, chap. 4, provided that promising obedience to any other prince, State, or potentate, subjected the person so doing to be adjudged a traitor, and to suffer the penalty of high

treason.

In respect to the naturalization law of the United States, passed in 1795, Lord Grenville wrote to our minister, Rufus King: "No British subject can, by such a form of renunciation as that which

1 In addition to the general authorities on citizenship, see chapter VII of Moore's American Diplomacy, and the address of Hon. Oscar S. Straus entitled "The United States Doctrine of Citizenship and Expatriation" before the American Social Science Association, 1901.

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 operating as a protection to them, be considered an act highly criminal on their part.2

The assertion by England of this principle with reference to her subjects who had become naturalized American citizens was one of the causes of the War of 1812.3

In a proclamation issued in 1807, the King declared: "Now we do hereby warn all 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 the treaty of Ghent which marked the conclusion of this war no mention, one way or the other, was made of this English doctrine; but in future England ceased to enforce her claims in an arbitrary manner against English born, but American naturalized, citizens.

By the act of 1870 England definitely abandoned the doctrine.) By that statute it is recognized that by voluntarily assuming citizenship in another State, British citizenship is lost, though such change of allegiance is not to operate to discharge the expatriated one from liability for acts or defaults committed prior 22 Am. State Pap., p. 149; Fitch v. Weber, 6 Hare, p. 51.

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3 Moore (Op. Cit., p. 173) calls attention to the fact that the dispute over impressment as a whole did not involve the crucial point of the later controversies as to expatriation. "The burden of the complaint in regard to impressment," writes Moore, as defined in Madison's war message of June 1. 1812, was that Great Britain sought, under cover of belligerent right, to execute her municipal law of allegiance on board the ships of other countries on the high seas, where no laws could operate but the laws of the country to which the vessels belong.' Precisely the same position was maintained by Webster in his correspondence with Lord Ashburton in 1842. Ships on the high seas are treated, for purposes of jurisdiction, as if they were part of the territory of the nation to which they belong. The complaint that the British Government enforced the English law of allegiance on board of American vessels on the high seas was manifestly a different theory from objecting to her enforcement of the same law within British jurisdiction."