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REVISION AND CODIFICATION OF THE NATIONALITY

LAWS OF THE UNITED STATES

PART 1

SECTIONS OF THE PROPOSED CODE WITH EXPLANATORY COMMENTS'

[The part printed in bold-face type shows the sections of the proposed Code; the part printed in
Roman shows the explanatory comments of each section]
CHAPTER I. DEFINITIONS

Sec. 101. For the purposes of this Act

(a) The term "national" means a person owing permanent allegiance to a state.

This term has come into common use in recent years with reference to the individuals who together compose the people of a sovereign state, regardless of the character of the government thereof. Where the state is represented by a personal sovereign the term "subject" may also be used, and where the government of a state is democratic in form the term "citizen" may likewise be used, but the broader term "national" covers both. This term, with the corresponding term "nationality" has been in use in modern times not only in standard works on international law and nationality (3 Moore, Digest of International Law, 273–276; 1 Hyde, International Law, 610-611; Hall, International Law, 8th ed., pp. 275-276; 1 Oppenheim, International Law, 4th ed., 524–526; Borchard, Diplomatic Protection, pp. 7-24; Cockburn, Nationality; see also McGovney, D. O., American Citizenship, 11 Columbia Law Review, 231; Scott, J. B., Nationality; Jus Soli or Jus Sanguinis, 24 American Journal of International Law (1930), p. 58), but in treaties to which the United States is a party, including the treaty establishing friendly relations with Austria, signed at Vienna, August 24, 1921, Treaty Series No. 659 (Malloy, Treaties, Conventions, etc., vol. III, p. 2493); the treaty restoring friendly relations with Germany, signed at Berlin, August 25, 1921, Treaty Series No. 658 (Malloy, op. cit., p. 2596); the treaty establishing friendly relations with Hungary, signed at Budapest, August 29, 1921, Treaty Series No. 660 (Malloy, op. cit., vol. III, p. 2693); treaty between the United States and Bulgaria, signed at Sofia, November 23, 1923, Treaty Series No. 684; treaty between the United States and Czechoslovakia, signed at Prague, July 16, 1928, Treaty Series No. 804; treaty between the United States and Norway, signed at Oslo, November 1, 1930, Treaty Series No. 832; treaty between the United

Submitted with report of Committee of Advisers August 13, 1935; subsequently amended with reference to amended sections of the Code.

States and Sweden, signed at Stockholm, January 31, 1933, Treaty Series No. 890.

With reference to the above, particular attention is called to the treaty restoring friendly relations with Germany, signed August 25, 1921, the preamble of which contains a quotation from the joint resolution of Congress, approved by the President July 2, 1921, declaring the state of war between the United States and Germany to be at an end, including the following clause in section 2 thereof:

SEC. 2. That in making this declaration, and as a part of it, there are expressly reserved to the United States of America and its nationals any and all rights, privileges, indemnities, reparations, or advantages, together with the right to enforce the same, to which it or they have become entitled under the terms of the armistice signed November 11, 1918, or any extensions or modifications thereof; or which were acquired by or are in the possession of the United States of America by reason of its participation in the war or to which its nationals have thereby become rightfully entitled; or which, under the Treaty of Versailles, have been stipulated for its or their benefit; or to which it is entitled as one of the principal allied and associated powers; or to which it is entitled by virtue of any act or acts of Congress; or otherwise.

Article I of this treaty contains the following important provision:

ARTICLE I. Germany undertakes to accord to the United States, and the United States shall have and enjoy, all the rights, privileges, indemnities, reparations, or advantages specified in the aforesaid joint resolution of the Congress of the United States of July 2, 1921, including all the rights and advantages stipulated for the benefit of the United States in the Treaty of Versailles which the United States shall fully enjoy notwithstanding the fact that such treaty has not been ratified by the United States (Malloy, op. cit., p. 2598).

The treaties establishing friendly relations with Austria and Hungary, referred to above, contain provisions similar to those quoted above from the treaty with Germany. It may be added that the Treaty of Versailles, referred to in article I of the treaty restoring friendly relations between the United States and Germany, signed August 25, 1921, also uses the term "nationals" to indicate all persons owing permanent allegiance to the respective states (Malloy, op. cit., appendix, pp. 331 et seq.).

1

The nationals of a state owe permanent allegiance to the state or the personal sovereign thereof, as distinguished from the obligation of aliens temporarily residing or sojourning in the territory of the state, sometimes called "temporary allegiance," to obey the laws (Carlisle v. United States, 16 Wall. 147). The word "permanent" in this connection means continuous, or of a lasting nature, as distinguished from "temporary," but it does not connote an indissoluble relationship. Thus, the "permanent allegiance" owed to the United States by Philippine citizens may continue until terminated at the end of the 10-year period prescribed in the act of Congress of March 24, 1934. It was permanent allegiance which was referred to by Justice Iredell, in Talbot v. Jansen, 1795, 3 Dall. 133, 164, when he said:

By allegiance I mean the tie by which a citizen of the United States is bound as a member of the society.

(b) The term "national of the United States" means (1) a citizen of the United States, or (2) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

The term "national of the United States," as used in the proposed code, is applicable to any person who owes permanent allegiance to the United States, whether or not he is a "citizen of the United States," as that term is used in the Constitution and in various statutes. The corresponding term "nationality" refers to the status of any persons owing permanent allegiance to the United States and is broader in scope than the term "citizenship." All "citizens of the United States" are also "nationals of the United States," but there are nationals who are not citizens of the United States. Reference is made to the inhabitants of the various outlying possessions who owe permanent allegiance to the United States but have not the status of citizens of the United States (Coudert, F. R., Jr., Our New Peoples, Citizens or Aliens, 3 Columbia Law Review, 13, 17; Burdick, C. K., The Law of the American Constitution, ch. XI, 318-328). This includes citizens of the Philippine Islands, natives of the Panama Canal Zone, and inhabitants of American Samoa and Guam owing permanent allegiance to the United States.

This view was expressed by Judge Parker, umpire in the Mixed Claims Commission, United States and Germany in an opinion of October 31, 1924, in which he said:

The term "American national" means a person wheresoever domiciled owing permanent allegiance to the United States of America, and embraces not only citizens of the United States but Indians and members of other aboriginal tribes or native peoples of the United States and of its territories and possessions (Administrative Decision No. 5, p. 193).

From the standpoint of international law noncitizen nationals have the same status and are entitled to the

same protection abroad as nationals who are citizers the United States, but their rights within the terri of the United States, under the Constitution and thereof, are not the same.

The nature of citizenship in the United States discussed by Chief Justice Waite in rendering the of ion of the Supreme Court in Minor v. Happersett, 1 21 Wall. 162, 165. After referring to the provis in the fourteenth amendment to the Constitution cerning citizens of the United States, he said:

Before its adoption the Constitution of the l States did not in terms prescribe who should be citizens of United States or of the several States, yet there were nee sarily such citizens without such provision. There cannot be nation without a people. The very idea of a political munity, such as a nation is, implies an association of pers for the promotion of their general welfare. Each one of persons associated becomes a member of the nation formed the association. He owes it allegiance and is entitled to protection. Allegiance and protection are, in this connecti reciprocal obligations. The one is a compensation for the oth allegiance for protection and protection for allegiance.

For convenience it has been found necessary to give a na to this membership. The object is to designate by a title t person and the relation he bears to the nation. For this p pose the words "subject," "inhabitant," and "citizen" have be used, and the choice between them is sometimes made to de pend upon the form of the government. Citizen is now mor commonly employed, however, and as it has been considered be ter suited to the description of one living under a republica government, it was adopted by nearly all of the States upo their separation from Great Britain, and was afterward adopted in the Articles of Confederation and in the Constit tion of the United States. When used in this sense it is under stood as conveying the idea of membership of a nation, and nothing more.

The decision just mentioned was rendered before the expansion of the United States by the acquisition of its insular possessions. Since that time it has beer necessary, as indicated above, to use a broader term than the word "citizen" to describe persons owing permanent allegiance to the United States, and the word "national" has thus come into use. (With regard to the status of the outlying possessions and their inhabitants, see 3 Moore, Digest of International Law, ch. X, Nationality, especially pp. 315-318; Van Dyne. Citizenship of the United States, 160-230; Maxson, Citizenship, 193-208; Downes v. Bidwell, 1900, 182 U. S. 244; De Lima v. Bidwell, 1900, 182 U. S. 1; Gonzales v. Williams, 1903, 192 U. S. 1; Coudert, F. R.. Jr., op. cit.)

The use of the term "national" as meaning any person owing permanent allegiance to the United States does not, as will be seen, involve abandonment of the term "citizen of the United States" where the latter is applicable.

The terms "American citizen" and "American citizenship" have been in common use since the early days of the Republic, although they are not found in the Constitution of the United States. Originally, these terms

ere used as the equivalent of the terms "citizen of the nited States" and "citizenship of the United States," it since the acquisition of the various outlying posssions having inhabitants who owe permanent alleance to the United States but are not "citizens of the nited States," within the meaning of the Constitution, e terms "American citizen" and "American citizenip" have become ambiguous. When these terms are ed, it is not always clear whether they are intended to late solely to "citizens of the United States" or whether ey are intended to relate to all persons having the ationality of the United States. This ambiguity and onfusion is illustrated by various provisions of the 'itizenship Act of March 2, 1907 (34 Stat. 1229). In ections 2, 3, and 4 of this act the terms "American itizen" and "American citizenship" seem to have refernce to American nationals in general, that is, any ersons owing permanent allegiance to the United States, but the term "American citizenship" in section 5 eems to relate to "citizenship of the United States" nly.

It has been suggested that the term "citizen of the United States" or "American citizen" be applied to all persons who owe permanent allegiance to the United States, although certain classes of these citizens, that is, he inhabitants of certain outlying possessions, would not have the same rights under the Constitution as others, that is, those who are "citizens of the United States" within the meaning of the Constitution (McGovney, D. O., American Citizenship, 11 Columbia Law Review, 231–250, 326-347). It is believed, however, that such terminology would be likely to give rise to misunderstanding and confusion. All things considered, the terminology used in the attached code seems preferable.

(c) The term "naturalization" means the conferring of nationality of a state upon a person after birth.

This definition, while expressly limited to the use of the term "for the purposes of this act," relates to naturalization in foreign states as well as in the United States. Thus it is applicable to the provision of section 401 that an American national shall lose his Amercan nationality by "obtaining naturalization in a foreign state."

"Naturalization," according to the usual acceptation of the term in the United States, undoubtedly means the grant of a new nationality to a natural person after birth. (Cooley, Principles of Constitutional Law, 88; Osborne v. Bank, 9 Wheat. 827; 9 Op. Att'y Gen. 359). The term is not ordinarily applied to the conferring of the nationality of a state, jure sanguinis, at birth, upon a child born abroad. It has sometimes been contended that the power conferred by section 8 of article I of the Constitution "to establish an uniform Rule of Naturali

zation" included the power to provide for acquisition of nationality at birth by children born abroad to citizens of the United States, .and this contention finds some support in the fact that the first naturalization act of the United States, which was passed by the first Congress, that is, the act of March 26, 1790, entitled "An act to establish an Uniform Rule of Naturalization" (1 Stat. 103), contained a provision that

the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens:

Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.

It is interesting to note, however, that the statute declares that such children shall be "considered as natural born citizens."

Whether the term "natural born citizen," as used in section 1 of article II of the Constitution, with reference to eligibility to the office of President of the United States, includes persons born abroad to citizens of the United States is still a subject of debate.

From the discussion in the Convention of the Constitutional provision in question it is apparent that the framers of the Constitution were principally concerned with the desirability of making it clear that the acquisition of citizenship of the United States should be governed by a single Federal law and not left to diverse laws of the various States of the Union, the provision in the Articles of Confederation having proved most unsatisfactory. The members seem to have had in mind, primarily at least, the matter of conferring citizenship after birth, through the process of naturalization, upon aliens who should have taken up their abode in the United States, since mention was made of the fact that in some of the States under the Confederation a long period of residence was required before citizenship was granted, while in others it was granted immediately or very shortly after arrival. A uniform rule seemed desirable. (The Papers of James Madison (1840), vol. III, pp. 1274, 1300; The Federalist, A New Edition (1818), No. XLII, pp. 267–268; Story on the Constitution, ch. XVI; Warren, The Making of the Constitution, p. 480. See also Passenger Cases, 7 How. 282, 482). It may be possible to hold, however, that the Convention, when using the expression "an uniform rule of naturalization" contemplated a broader use of the term "naturalization" than that which is now ordinarily applied, and that it intended to cover cases in which citizenship might be conferred by statute at birth upon children born to citizens of the United States in foreign lands. The latter view was expressed in the opinion of Chief Justice Waite in Minor v. Happersett, 1874, 88 U. S. 162, 168, and in the opinion of Justice Gray in U. S. v. Wong Kim Ark, 1898, 169 U. S. 649, 672, 702-703.

Even if it is true that the term "naturalization” in section 8 of article I of the Constitution should be construed broadly, it does not follow that in the proposed new act the narrower meaning indicated by the definition under discussion cannot properly be used, especially as this meaning is now universally attributed to the word. Certainly in recent years, at least, persons who were born abroad of citizens of the United States and who acquired citizenship of the United States at birth, under the provision of section. 1993 of the Revised Statutes, have never been termed "naturalized citizens." On the other hand, the Naturalization Act of June 29, 1906, is entitled "An act to establish a Bureau of Immigration and Naturalization and to provide for a uniform rule for the naturalization of aliens throughout the United States" (34 Stat. 596).

Acquisition of nationality at birth is discussed further on with reference to chapter 2.

It may be noted that, according to the above definition, “naturalization" is not limited to the conferring of nationality upon a person as a result of his application, but includes the derivate naturalization of minors, through the naturalization of their parents, and acquisition of nationality through marriage. It also includes the collective acquisition of the nationality of a state by the inhabitants of territory annexed by a state, at least of those who had the nationality of the predecessor state. (As to collective naturalization, see Boyd v. Thayer, 1892, 143 U. S. 135; 3 Moore, Digest of International Law, 311–327; Van Dyne, Naturalization, 266-332; Research in International Law, Harvard Law School, 1929, Title, Nationality.)

(d) The term "United States" when used in a geographical sense means the continental United States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands of the United States.

It is especially important to bear in mind the fact that this definition is "for the purposes of this act" only. It does not purport to follow existing terminology, under which the term "United States" is applied narrowly to the continental United States and the incorporated Territories of Alaska and Hawaii, or broadly to include all territory over which the United States is sovereign. In bringing the Virgin Islands within the term "United States" for purposes of acquisition of nationality, and for such purposes treating them as if they were incorporated with the continental United States, this code follows the act of March 2, 1917 (39 Stat. 953, 965), and it extends the same advantages to Puerto Rico, where, considering the express provisions of the act of June 27, 1934, it seems clear that the common law rule of acquisition of nationality through the fact of birth within the territory

and jurisdiction of the United States (jus soli) i not apply. According to the act mentioned, pers born in Puerto Rico acquire citizenship of the Un States at birth only in case they are "not citizens, :. jects, or nationals of any foreign power.' In the posed new law this condition is eliminated, and b in Puerto Rico will have the same effect as birth in continental United States.

(e) The term "outlying possessions" mea all territory, other than as specified in subs tion (d), over which the United States exerci rights of sovereignty.

The meaning of this definition, when read with s section (d), seems clear.

(f) The term "parent" includes in the case a posthumous child a deceased parent. (g) The term "minor" means a person und twenty-one years of age.

These definitions seem to require no explanation. Sec. 102. For the purposes of chapter III of th Act

(a) The term "State" includes (except used in subsec. (a) of sec. 301), Alaska, H waii, the District of Columbia, Puerto Rico, an the Virgin Islands of the United States.

(b) The term "naturalization court", unles otherwise particularly described, means a cour authorized by subsection (a) of section 301 t exercise naturalization jurisdiction.

(c) The term "clerk of court” means a clerk ( a naturalization court.

(d) The terms "Commissioner" and "Deput Commissioner” mean the Commissioner o Immigration and Naturalization and a Deput Commissioner of Immigration and Naturaliza tion, respectively.

(e) The term "Secretary" means the Secretar

of Labor.

(f) The term "Service" means the Immigra tion and Naturalization Service of the United States Department of Labor.

(g) The term "designated examiner" means an examiner or other officer of the Service designated under section 332 by the Commis sioner.

(h) The term "child" includes a child legit imated under the law of the child's residence or domicile, whether in the United States or elsewhere; also a child adopted in the United States, provided such legitimation or adoption takes place before the child reaches the age of sixteen years and the child is in the legal custody of the legitimating or adopting parent or parents.

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These definitions also seem to require no explanaion.

Sec. 103. For the purposes of subsections (a) and (b) of section 402 of this Act

The term "foreign state" includes outlying possessions of a foreign state, but does not include self-governing dominions or territory under mandate, which, for the purposes of these subsections, shall be regarded as separate states.

The above quoted statement is, strictly speaking, an xplanation rather than a definition. Needless to say, iny "state" is a "foreign state" from the standpoint of every other "state." It is hardly necessary to enter into an extended discussion of the term "state" as a concept of political science or of international law. Since international law is that branch of the law which pertains to the relations between the various "states," or international persons, ordinarily spoken of as "sovereign" or "independent," a discussion of the term 'state" may be found in any standard work on international law. Fenwick says:

As understood in international law, a state is a permanently organized political society, occupying a fixed territory, and enjoying within the borders of that territory freedom from control by any other state, so that it is able to be a responsible agent before the world (International Law, p. 86). (For discussions of this term see also Dickinson, Law of Nations, ch. II, pp. 76-185; Hall, International Law, 8th ed., pt. 1, ch. I, pp. 17-49; Hershey, International Law, pt. I, ch. VI-VII, pp. 157–198; Hyde, International Law, vol. I, pp. 16-22; Oppenheim, International Law, ch. I, 4th ed., pp. 133-142.)

The discussions of the term "state" in the works referred to above and in other works on international law necessarily include discussions of "outlying possessions," that is, portions of a state geographically separated from the main body of the state but subject to the control of the central government and included with it in a single sovereign entity.

The words "self-governing dominions" relate in particular to those which compose the British Commonwealth of Nations. It is believed that at the present time there are no other countries which may be termed "self-governing dominions." (For discussions of the status of the self-governing dominions in the British Commonwealth of Nations see Hershey, International Law, ed. 1927, pp. 160-164; Hall, International Law, 8th ed., pp. 34–35; Oppenheim, International Law, 4th ed., vol. I, pp. 193-200.) It may be observed that, in addition to Great Britain and Northern Ireland, the following self-governing dominions of the British Commonwealth of Nations are now members of the League

of Nations: Australia, New Zealand, Canada, the Union of South Africa, and the Irish Free State (1 Oppenheim, op. cit., p. 196). Newfoundland, although not a separate member of the League of Nations, also has the status of a self-governing dominion (1 Oppenheim, op. cit., p. 198). India, although a member of the League of Nations, is not a self-governing dominion, but has a special position as defined by the Government of India Act, 1919 (1 Oppenheim, op. cit., 195).

It may be well to mention the peculiar status of Iceland with reference to Denmark. According to the Treaty of Amalienborg of November 30, 1918, "Denmark and Iceland shall be independent and sovereign states in association through one and the same king, and through the Covenant which is contained in this Treaty of Association. The names of both states shall be used in the title of the King" (Hall, op. cit., p. 26, note 2).

The words "territory under mandate" relate to certain "colonies and territories," referred to in article 22 of the Covenant of the League of Nations, "which, as a consequence of the late war, have ceased to be under the sovereignty of the states which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world." Article 22 provides that "the tutelage of such peoples should be entrusted to advanced nations," which "tutelage should be exercised by them as mandatories on behalf of the League." Provision is made for three classes of mandates, the precise character of which should "be explicitly defined in each case by the Council."

The existing mandates are as follows: Palestine and Trans-Jordan (Great Britain); Syria and Lebanon (France); French Cameroons (France); British Cameroons (Great Britain); Tanganyika (Great Britain); Ruanda-Urundi (Belgium); British Togo (Great Britain); French Togo (France); Southwest Africa (Union of South Africa); New Guinea (Australia); Western Samoa (New Zealand); South Sea Islands (Caroline, Marshall, and the Ladrones or Marians) (Japan); Nauru (British Empire). (Annuaire de la Société des Nations, 1931, pp. 491-493; Gerig, The Open Door and the Mandates System, p. 107.)

With reference to the nationality of inhabitants of mandated territories, attention is called to a resolution of the Council of the League of Nations, dated April 23, 1923, reading as follows:

The Council of the League of Nations.

Having considered the report of the Permanent Mandates Commission on the national status of the inhabitants of territories under B and C mandates,

In accordance with the principles laid down in article 22 of the Covenant:

Resolves as follows:

(1) The status of the native inhabitants of a mandated territory is distinct from that of the nationals of the Manda

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