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Citizenship is not lost by one who before acquiring foreign citizenship has secured on application the written consent of the competent authorities of his home State to retain his citizenship. Before this consent is given the German consul is to be heard.
The Imperial Chancellor may order, with the consent of the Federal Council, that persons who desire to acquire citizenship in a specified foreign country, may not be granted the consent provided for in paragraph 2.
The second paragraph of this article apparently allows a German subject, seeking to become a naturalized citizen of another country, to secure on application the written consent of the competent authorities of his home State to retain his citizenship. In view of the provisions of the Act of Congress of June 29, 1906, to establish a Bureau of Immigration and Naturalization, and to provide for a uniform rule for the naturalization of aliens “naturalization under such conditions could not be legally obtained for Section 4 of that Act requires the applicant before he is admitted to citizenship, to
declare on oath in open court that he will support the Constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly by name to the prince, potentate, state, or sovereignty of which he was before a citizen or subject; that he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same.3
An applicant who attempted to obtain American citizenship and made the required declaration after having complied with the provisions of Sec. 25 of the German law for retaining his German allegiance, would be guilty of perjury, and his fraudulent naturalization certificate could be cancelled in accordance with Sec. 15 of the Act above referred to.
Section 36 of the German Imperial and State Citizenship Law states that "treaties concluded by the Federal States with foreign Powers prior to the going into effect of this law remain undisturbed." The United States has no treaty of naturalization with the German Empire. It has the so-called Bancroft treaty of 1868 with the North German Confederation and with the German-speaking States which were then independent, but which have since become parts of the Empire. These treaties are held, both by the German Empire and by the United States, to be in effect. As a sample, the material portions of the treaty between
3 U. S. Stat. at Large, Vol. 34, Pt. 1, Ch. 3592, pp. 596-603; Supplement to this JOURNAL, Vol. 1, p. 34.
the North German Union, whereof Prussia was the leading member, and the United States, concluded February 22, 1868, are here quoted:
Art. 1. Citizens of the North German Confederation, who become naturalized citizens of the United States of America and shall have resided uninterruptedly within the United States five years, shall be held by the North German Confederation to be American citizens, and shall be treated as such.
Reciprocally, citizens of the United States of America who become naturalized citizens of the North German Confederation, and shall have resided uninterruptedly within North Germany five years, shall be held by the United States to be North German citizens, and shall be treated as such. The declaration of an intention to become a citizen of the one or the other country has not for either party the effect of naturalization.
This article shall apply as well to those already naturalized in either country as those hereafter naturalized.
Art. 2. 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 limitations established by the laws of his original country.
Art. 4. If a German naturalized in America renews 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.'
On the face of it, such provisions would seem to be inconsistent and irreconcilable with the provision under comment of Sec. 15 of the German law, and therefore that the latter will have no application to naturalization in the United States under the express stipulation of the law.
Mr. P. A. Lelong, Jr., of New Orleans, wrote a letter to the Department of State, March 27, 1915, asking whether he would be liable to military service if he should visit France. It appeared that he was born in the United States on June 18, 1880, of a native French father, who had emigrated to this country when about twenty years of age. The Department of State replied, in a letter dated April 2, 1915, that
Under the provision of the Fourteenth Amendment to the Constitution, all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States. Section 1, Article VII, of the French Civil Code states that the fol
* Malloy's Treaties, Conventions, etc., 1910, Vol. II, pp. 1298–1299.
lowing are Frenchmen: “Every person born of a Frenchman in France or abroad." It thus appears that you were born with a dual nationality and the Department cannot therefore give you any assurance that you would not be held liable for the performance of military service in France should you voluntarily place yourself within French jurisdiction.
A little later the view of the Department of State was requested concerning the detention in Italy for military service of Ugo Da Prato, who was born in Boston, August 25, 1895, and went to Italy in 1912 to study architecture, and whose father, Antonio Da Prato, a native of Italy, was naturalized at Boston, March 19, 1892, that is, some two years before the birth of his son. The Department directed the American Ambassador at Rome to call the attention of the Italian Government to the American birth of Da Prato after the naturalization of his father. In a letter to Senator Lodge, dated June 2, 1915, who was interested in Da Prato's case and who had asked the Department to secure his release, the Department requested the certificate of birth of the young man, as well as the naturalization certificate of his father, for the reasons contained in the following extract from the Department's letter:
The Department is being called upon to take action in a good many cases similar to that of Ugo Da Prato. The Italian law concerning naturalization of Italians in foreign countries is peculiar. Article 11 of the Italian Civil Code contains the following provision:
“Art. 11. Citizenship is lost by the following persons:
“Art. 12. The loss of citizenship in the cases mentioned in the foregoing article does not work exemption from the obligations of the military service, nor from the penalties imposed on those who bear arms against their country.”
Under the provisions of law mentioned the Italian Government recognizes the naturalization of Italians as citizens of other countries, but holds them liable for military service in Italy unless they have been expressly excused therefrom. In view of Article 11, persons born in this country of fathers naturalized before their births are not considered Italian subjects or held liable for military service in Italy. It is very important that in each case of this kind the Department should be furnished with the best documentary evidence procurable of the naturalization of the father and the subsequent birth in this country of the son, so that necessary assurances may be given to the Italian Government.
It will be noted that the Department held in the first case that, as far as the United States was concerned, Lelong was an American citizen by birth, and that as far as France was concerned he was a French citizen
by reason of the French law, because, although born abroad, his father was French. In the second case, Da Prato was held to be an American citizen by reason of birth, and it was denied that he was an Italian citizen because, at the time of his birth, his father was a naturalized citizen of the United States.
The reason for the difference is that allegiance is ordinarily based upon two principles, instead of a single principle. One is the jus soli, by virtue of which a person, born within a certain territory, owes allegiance to the government thereof. The other principle is the jus sanguinis, by virtue of which allegiance depends upon the blood of the parent, that is to say, the nationality of the parent. The United States accepts both principles, as do many countries, with the result that conflicting claims to allegiance arise, based upon the locality of birth and, on the other hand, upon the nationality of the parent, irrespective of the birthplace of the child.
Let us consider briefly the attitude of the United States. The common law accepted the jus soli, and the common law doctrine was followed in the United States without statutory authority until settled by an Act of Congress of April 9, 1866, providing "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." I The principle was incorporated in the Fourteenth Amendment to the Constitution in the following form: “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."
Although it is not material to the present purpose, it may be said that the expression in the Act of Congress, “not subject to any foreign Power,” and the expression in the Constitution, “and subject to the jurisdiction thereof,” were meant to exclude the children of diplomatic agents, as they are exempt from the jurisdiction of the United States and by a fiction of law are treated as if they were actually born in the country represented by the father.
The Supreme Court of the United States, in the Wong Kim Ark case (169 U. S. 649), was called upon to determine whether a child, born in the United States, of Chinese parents, was an American citizen under the Fourteenth Amendment. The court, by Mr. Chief Justice Fuller, held that birth was, under the amendment, sufficient of itself to make the child an American citizen, although the parents were aliens and were
· Stat. at Large, Vol. 14, p. 27.
prohibited by statute from becoming American citizens. So much for the first principle.
The United States adopted by statute the jus sanguinis at an early date in its history. The Acts of Congress of April 14, 1802,2 and of February 10, 1855,3 reappear in substance as Section 1993 of the Revised Statutes, which provides that
all children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.
And the Act of Congress in reference to the expatriation of citizens and their protection abroad, approved March 2, 1907, provides in Article 6:
That all children born outside the limits of the United States who are citizens thereof in accordance with the provisions of section nineteen hundred and ninetythree of the Revised Statutes of the United States and who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath of allegiance to the United States upon attaining their majority.*
This section of the Act last quoted is a specific recognition of the fact that children born in foreign countries of American parents owe an allegiance to the country of their parents, although the statute conditions protection to them upon a declaration of intention upon reaching eighteen years of age, to become residents and to remain citizens of the United States, and an oath of allegiance to the United States upon attaining their majority.
What we claim we cannot very well deny to other countries, and inasmuch as the Constitution bases citizenship upon birth, we cannot deny the right of foreign countries to declare that the children of American parents not in the diplomatic service, born in a particular foreign country, are jure soli subjects of that country; and, inasmuch as we maintain that children born of American parents, residing abroad, are by statute citizens of the United States, we must perforce admit that
2 Stat. at Large, Vol. 2, Ch. 28, p. 153. 3 Ibid., Vol. 10, Ch. 51, p. 604. * Ibid., Vol. 34, Chap. 2534, p. 1229; Supplement to this JOURNAL, Vol. 1, p. 259.