I. PROTECTION OF AMERICAN CITIZENS ABROAD.

RECOMMENDATIONS AND OBSERVATIONS.

Recommendations.

First. That in order to render more effective the national policy of regarding voluntary expatriation from one country to another as a right, and to secure the equal protection of American native and naturalized citizens abroad, negotiations should be undertaken to extend and perfect the treaty relations of the United States with foreign countries.

Second. That in order to prevent the abuse of American passports in foreign countries, the customary American passport be henceforth issued only by the Department of State at Washington, to be valid for only two years, but subject to one, and only one, extension, when found necessary, for two years longer, by designated diplomatic and consular officers of the United States. In cases of emergency designated diplomatic and consular officers should be authorized to issue a provisional passport for a particular journey or occasion and limited in time to a period not to exceed six months upon the application of properly accredited American citizens in foreign countries.

Third. That in order to give additional protection to American citizens resident abroad for purposes of study, health, commerce, or other proper reasons, a certificate of nativity be furnished upon proper application to the Department of State at Washington, stating the place of origin, date of birth, names and nationality of parents, and last place of residence in the United States.

Fourth. That American citizens residing continuously for more than one year in any foreign country be required to register with the most convenient United States consular officer once each year, in a book provided for that purpose, their full names and places of residence, together with the date and place of their birth, the names and nationality of their parents, their occupation, their last place of residence in the United States, and their place of residence in the consular district, accompanied with a solemn assurance of their continued allegiance to the United States and of their intention to return thereto. An entry of the names, ages, and places of birth of a wife or of minor children should also be required.

Fifth. That upon arriving at the age of 18 years every male child of an American citizen who has passed the previous five years out of the United States and desires to enjoy the protection of his Government should be required to record at the most convenient American consulate his intention to become a resident of the United States and to take the oath of allegiance thereto on attaining his majority.

Sixth. That for the purpose of meeting the demands of the local police in foreign countries American citizens residing abroad who have complied with the requirements of registration be furnished, upon application, by the consular officer in whose office they have registered, with an officially stamped statement to that effect, good for one year, and that a complete list of all persons thus registered be reported every three months to the Department of State at Washington.

Observations.

I.

An American citizen going abroad is entitled to the protection of this Government against unlawful molestation of his person and property.

This protection has always been accorded to naturalized citizens equally with native citizens, except that there was fluctuation in the practice of protecting naturalized citizens upon their return to the country of their origin until the act of July 27, 1868 (15 Stat. L., 223), forbade any discrimination whatever between native and naturalized citizens. The act, as embodied in the Revised Statutes, section, 2000, is as follows:

All naturalized citizens of the United States while in foreign countries are entitled to and shall receive from this Government the same protection of persons and property which is accorded to native-born citizens.

This law was a natural result of the practice and contention of the Government from the time of its independence.

After the Declaration of Independence and before the adoption of the Constitution, naturalization was a function of the several State governments, and Delaware, Maryland, South Carolina, and Virginia had general naturalization laws. The law of Delaware provided that after taking the necessary oaths of allegiance an alien-‍

shall thereupon and thereafter be deemed, adjudged, and taken to be a naturalborn subject of this State; and he shall be thenceforth entitled to all the immunities, rights, and privileges of a natural-born subject of this State: Provided, That no person who shall become such a subject of the State, by virtue of this act, shall be appointed to any civil office, or eligible as president [of Delaware]. member of the privy council or general assembly, unless such person shall have resided within this State five years previous to such election or appointment, and shall have the other qualifications of age and property required by the constitution or system of government.

The law of Maryland said the person naturalized—

shall thereupon and thereafter be deemed, adjudged, and taken to be a naturalborn subject of this State; and he shall be thenceforth entitled to all the immunitics, rights, and privileges of a natural-born subject of this State: Provided, That no person who shall become a natural-born subject of this State by virtue of this act shall be appointed to any civil office, or eligible as governor, member of the council or general assembly, or as a delegate to Congress, unless such person shall have resided within this State seven years previous to such election or appointment, and shall have the property and estate required by the constitution and form of government to execute any of the said offices, respectively. The law of Virginia said those naturalized

shall be entitled to all the rights, privileges, and advantages of citizens, except that they shall not be capable of election or appointment to any office, legislative, executive, or judicial, until an actual residence in the State of two years from the time of taking such oaths or affirmations aforesaid, nor until they shall have

evinced a permanent attachment to the State by having intermarried with a citizen of this Commonwealth or a citizen of any other of the United States, or purchased lands to the value of one hundred pounds therein. (Report of the Naturalization Commission, Appendix A).

The effect of naturalization in the several States before the Constitution was adopted was, therefore, to remove alienage, the person naturalized standing in all respects upon the same plane with a natural-born citizen, except that he was under certain removable political disabilities.

The same principle was applied in constructing the Constitution and in the debates in the Constitutional Convention no one proposed any other principle. Gouverneur Morris said "he would let them (naturalized citizens) worship at the same altar (with native citizens), but he did not choose to make priests of them (Madison's Writings, IV, 159), and this was the sentiment which finally resulted in the provision that the President must be a natural-born citizen (Art. II, sec. 1), and that no one shall be a Representative who has not been a citizen for seven years (Art. I. sec. 2) or a Senator who has not zens. (The American Passport, p. 77.)

Before the Constitution was adopted passports for the protection of Americans proceeding abroad were issued by the governors or presidents of the several States. There can be no doubt that they described the holders as citizens of the State issuing the passport, and that they were given to naturalized as well as native citizens. The passports issued by the Secretary of State since 1789 have always stated that the persons described were citizens of the United States, and have never stated whether they were native or naturalized citizens. (The American Passport, p. 77).

When the question of the impressment of American seamen, many of whom were naturalized citizens, first came up, John Marshall, Secretary of State in John Adams's Administration, said, September 20, 1800, in an instruction to Rufus King, this Government's envoy at London:

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With the naturalization of foreigners no other nation can interfere further than the rights of that other are affected, consequently those persons who, according to our laws, are citizens, must be so considered by Britain, and by every other power not having a conflicting claim to the person. (MS. Instructions.)

In relation to the same question Secretary Monroe wrote to the British minister, May 30, 1812:

Your proffered exertions to procure the discharge of native American citizens from on board British ships of war, of which you desire a list, has not escaped attention. It is impossible for the United States to discriminate between their native and naturalized citizens, nor ought your Government to expect it, as it makes no such discrimination itself. (Qu. Moore's Digest, III, 563.)

Thus Marshall asserted the right of protection, with a reservation that the country of which the person naturalized had formerly been a subject might have a conflicting claim, and Monroe denied the right of such a claim. These two doctrines were repeated from time to time by succeeding executive officers. Henry Wheaton, minister to Prussia, wrote July 24, 1840, to a naturalized American who was in Prussia, the country of his origin:

Had you remained in the United States or visited any other foreign country (except Prussia) on your lawful business, you would have been protected by the American authorities, 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 domicil and national character revert (so long as you remain in the Prussian dominions), and you are bound in all respects to obey the laws exactly as if you had never emigrated. (Qu. Moore's Digest, III, 564.)

On the other hand Attorney-General J. S. Black said in 1859:

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What, then, is naturalization? There is no dispute about the meaning of it. The derivation of the word alone makes it plain. All lexicographers and all jurists define it in one way. In its popular, etymological, and legal sense it signifies the act of adopting a foreigner and clothing him with all the privileges of a native citizen or subject. * ** In regard to the protection of our citizens in their rights at home and abroad we have no law which divides them into classes, or makes any difference whatever between them. A native and a naturalized American may, therefore, go forth with equal security over every sea and through every land under heaven, including the country in which the latter was born. * They are both of them American citizens, and their exclusive allegiance is due to the Government of the United States. One of them never did owe any fealty elsewhere, and the other, at the time of his naturalization, solemnly and rightfully, in pursuance of public law and municipal regulation, threw off, renounced, and abjured forever all allegiance to every foreign prince, potentate, state, and sovereignty whatsoever, and especially to that sovereign whose subject he had previously been. If this did not work a dissolution of every political tie which bound him to his native country then our naturalization laws are a bitter mockery, and the oath we administer to foreigners is a delusion and a snare.

There have been, and are now, persons of very high reputation who hold that a naturalized citizen ought to be protected by the government of his adopted country everywhere, except in the country of his birth; but if he goes there, or is caught within the power of his native sovereign, his act of naturalization may be treated as a mere nullity, and he will immediately cease to have the rights of an American citizen. This can not be true. It has no foundation to rest upon (and its advocates do not pretend that it has any), except the dogma which denies altogether the right of expatriation without the consent of his native country, and that is untenable, as I think I have already shown. * * * The application of these principles to the case of any naturalized citizen who returns to his native country is simple and easy enough. He is liable, like everybody else, to be arrested for a debt or a crime, but he can not rightfully be punished for the mere nonperformance of a duty which is supposed to grow out of that allegiance which he has abjured and renounced. If he was a deserter from the army he may be punished when he goes back, because desertion is a crime. On the other hand, if he was not actually in the army at the time of his emigration, but merely liable, like other members of the state, to be called on for his share of military duty, which he did not perform because he left the country before the time for its performance came round, he can not justly be molested. (9 Op. At. Gen., 359 et seq.)

Congress finally settled the question in favor of the position set forth in Mr. Black's opinion by passing the law quoted at the beginning of this section.

The immediate occasion which called forth the law was the arrest of certain naturalized citizens by the authorities of their parent countries, chiefly the German States, for nonperformance of military service, and numerous arrests of naturalized citizens of Irish origin in the United Kingdom charged with crimes of a political character. At the time these arrests were made the doctrine of indefeasible allegiance stood as the British doctrine, although it was not always strictly observed, and the continental States insisted that their allegiance could not be thrown off without their permission. Allowing for the heat occasioned in the United States by the nature of the arrests, the action of Congress, nevertheless, rested upon a welldefined and not ephemeral popular demand, was taken with deliberation and with unanimous agreement on the principle involved, and

must be considered a final expression of national policy. Hundreds of petitions requesting the legislation were sent to Congress.

The legislature of Maine passed the following:

Resolved, That it has always been the American doctrine that a citizen of one country may expatriate himself and transfer his allegiance to any other; and that the naturalized citizens of the United States are entitled to the same rights and protection, in the lawful pursuits of life, as native citizens, whether at home or abroad.

Resolved, That the United States should insist upon a recognition of these rights in its intercourse with all other governments.

Resolved, That wherever the American doctrine is denied and the rights of naturalized citizens are violated thereby, it should be regarded as an offense against the United States, and that justice and honor alike demand that the Executive of the Government should take immediate and efficient measures to restore such naturalized citizens to all the rights and privileges belonging to native-born citizens. (H. Mis. Doc. No. 59, 40th Cong., 2d sess., Vol. 1, 1867–68.)

The legislature of Wisconsin resolved—

That no distinction should be tolerated between native born and duly naturalized citizens of the United States in regard to their immunities and privileges in foreign countries, and that a naturalized citizen of the United States temporarily sojourning within the dominions of his former sovereign, can only be compelled to enter the military service or otherwise support the Government of such former sovereign to the same extent and under the same circumstances as might be required of a native born American citizen thus temporarily domiciled in such foreign country. (H. Mis. Doc. No. 60, 40th Cong., 2d sess., Vol. 1, 1867-68.)

The legislature of Maryland called upon Congress to pass

such laws as honor, justice, and the true policy of the country demand in fully securing to all naturalized citizens the same rights of person and property. both at home and abroad, which are now possessed by the native born. (Id., Doc. No. 75.)

The able and exhaustive report of the Committee on Foreign Affairs of the House, through Hon. N. P. Banks, the chairman (Reports of Committees, No. 1 to No. 46, 2d sess. 40th Cong.; Report No. 13, H. R.), and the debates in the Senate and House, which covered a wide range and were participated in by all the leading Senators and Representatives, left no doubt of agreement on the great point of the right of absolute equality of protection of naturalized and native Americans while in foreign states.

For the purpose of obtaining full information for intelligent guidance in proposing improvements in our laws concerning expatriation and the protection of American citizens abroad, on July 9, 1906, a circular was sent to the diplomatic and certain consular officers of the United States asking for reports on the following subjects:

1. The laws relating to citizenship in the country in which you reside ; 2. The means by which citizenship in that country is lost;

3. Whether or not the law of that country authorizes the renunciation of citizenship; and if so, the conditions for the reacquisition of the citizenship thus renounced;

4. Whether, and how far, residence in foreign parts may affect the citizenship of origin;

5. And finally, the practice of the Government to which you are accredited In protecting its citizens permanently residing in other countries.

The law relating to naturalization and the acquisition of citizenship is also desired.

The reports received in reply to this circular have been carefully read, their contents duly considered, and the dispatches, with their inclosures, filed for future reference in the archives of the Department