form as would meet the requirements of the police in the place of his residence. If the duration of his absence from the United States and the nature of his occupation should conclusively establish his intention not to return and perform the duties of citizenship, he would properly be denied both the consular statement of his nationality and the right to be registered as an American citizen.

In general, the spirit of the recommendations proposed has been (1) to furnish bona fide American citizens with suitable and wellauthenticated evidence of their citizenship; (2) to prevent the fraudulent use of American protection; (3) to render the course of the Government of the United States in exercising that protection more clear and certain. It is believed the system proposed will have the advantage (1) of showing what individuals are deserving of American protection, and (2) of aiding in the detection of those who intend to use the power and prestige of the United States merely as a shield for nefarious practices. American citizenship is the highest civic privilege enjoyed by free men anywhere. The Government of the United States has never failed to guard and uphold the rights and prerogatives of its citizens; but it has often been embarrassed by pretenses that were intended to procure immunity from obedience to law both at home and abroad. From whatever point of view the subject may be regarded, the duty of our Government is clear. If its protection be fraudulently sought against itself, evasion of the law becomes a double offense against the State. If, on the other hand, it be sought for the purpose of evading just obligations to another government, the continuance of protection is not only a violation of international comity too serious to escape reproach, but a disregard of national dignity too flagrant for good citizens to support. To protect to the fullest extent the rights of every American citizen, and to afford no refuge to imposters and pretenders this is the plain standard of national fidelity and international obligation.

II. PROTECTION ABROAD OF THOSE WHO HAVE MADE THE DECLARATION OF INTENTION TO BECOME CITIZENS OF THE UNITED STATES.

RECOMMENDATION AND OBSERVATIONS.

The report of the Naturalization Commission, submitted to Congress at its last session, recommended that the declaration of intention as a preliminary to naturalization as a citizen of the United States should be abolished, showing as an important reason for the recommendation that one who has made the declaration occupies the anomalous position of having effectually abandoned one allegiance without having acquired another; but the new naturalization law has retained this requirement, and it seems probable that it will continue to be a part of our naturalization system. Realizing this fact, the logical conclusion seems to be that the Government must accept the responsibilities which the law imposes, and accord under certain circumstances temporary protection to a declarant who goes abroad on a visit.

We offer, therefore, the following

Recommendation.

That the protection of this Government be accorded to those who have made the declaration of intention to become citizens of the United States and who go abroad for brief sojourn, but that such protection should not be effective in the country of their origin and should not be extended to those who have resided in the United States for a less period than three years.

Observations.

Under the law an alien who desires to become a citizen of the United States must declare on oath before the clerk of a court authorized to naturalize aliens that it is his intention to become a citizen of the United States and to renounce all other allegiance and that he intends permanently to reside in the United States, such declaration being made at least two years prior to his final application for admission as a citizen of the United States. (Sec. 4, par. 1, and sec. 27, form of declaration, act approved June 29, 1906.) This requirement is applicable to all aliens except those who have been honorably discharged from the military service of the United States (sec. 2166, Rev. Stat.), but as none can be enlisted in the Army who have not made the declaration (act of Aug. 1, 1894) this exception is now unimportant. It is not required in the case of one who has served five years in the Navy or one enlistment in the Marine Corps (act of July 25, 1894), but it is the policy of the Navy Department

not to enlist aliens.

One who has made the declaration of intention enjoys in the United States certain rights which commonly pertain to citizens of

the several States and of the United States. He may vote at all elections, State or national, in Arkansas, Indiana, Kansas, Missouri, Nebraska, South Dakota, Texas, Oregon, and Wisconsin. Under the laws of Delaware, Kentucky, New York, and Washington he enjoys greater rights in the acquisition of real property than other aliens enjoy. In some places (notably in the States of Illinois and Idaho) he may be employed upon public works and other aliens may not. Under the preemption and homestead laws of the United States he may preempt and acquire public lands (secs. 2259, 2289, Rev. Stat.). Not only may he be enlisted in the Army, but during the civil war he was compelled to perform military service as though he were a full citizen (act of March 3, 1863, 12 Stat. L., 731). Under section 2168, Revised Statutes, the widow and children of one who has made the declaration may, if he dies before he is actually naturalized, be considered as citizens "upon taking the oaths prescribed by law " that is to say, the inchoate rights of the father are recognized as transmissible and the widow and children may secure full naturalization without themselves making the declaration. The sixth paragraph of section 4 of the act of June 29, 1906, has as its object the reenactment of this provision.

The Supreme Court in the case of Boyd v. Thayer said on this point:

Clearly 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 act of the parent has initiated for them. (143 U. S., 178.)

It is plain that those who have made the declaration are accorded privileges and perform duties from which other aliens are debarred. Nevertheless, the Government does not accord them protection if they proceed abroad.

Their citizenship is in a formative stage, and in order that it may be completed it is necessary that they reside continuously in the United States for five years, the term continuous residence being understood in the legal sense, and not as being interrupted by brief absence from the United States. By an act approved March 3, 1813 (2 Stat. L., 811), no person could be admitted to citizenship who had not resided in the United States for five years, without being at any time out of its territory, but the latter part of this requirement was specifically repealed by the act of June 26, 1848 (9 Stat. L., 240), and it is now beyond dispute that the continuous residence required by law does not make one who intends to apply for our citizenship a mere prisoner at large in the United States condemned to lose the benefit of his formally expressed intention and desire as a penalty for his stepping beyond our boundaries even for an instant.

It is plain, however, that the Government does not owe protection to one who has declared his intention and goes abroad for a period of time long enough to destroy the continuousness of his residence. By this act his declaration would be nullified and as though it had not been made. It is equally true that he should not be protected if he should return to the country of his origin. As he has not yet accomplished expatriation from that country, it may of right

claim him as its citizen if he places himself within the jurisdiction of its laws, and this Government, not having yet invested him with its citizenship, can not justly dispute the claim. This principle should be of general application. It has been specifically recognized in our naturalization conventions with Austria, Germany, Wurttemberg, and Sweden and Norway.

The case of one who goes to a third country is different. Our practice now places him in the distressing attitude of having no government from which he can claim protection. Our laws have required him to declare that he intends to renounce allegiance to his parent government, and after he has done this the parent government can not be expected to extend him its protection, nor should he be encouraged to seek such protection. It may well be questioned whether if he did so it would not be considered as having vitiated his declaration of intention. As he has formally sworn that he intends permanently to reside in the United States and is actually domiciled in the United States, it is this Government to which he must look for that protection, which he should obtain nowhere else.

Residents of the United States who have made the declaration and are required for good and sufficient reasons thereafter to make a trip abroad frequently apply to the Department of State for some document to protect them in their travels, and these requests are always denied. It is specifically forbidden by law to issue a passport to anyone who is not a citizen of the United States (act of August 18, 1856) or a loyal resident of our insular possessions (act of June 14, 1902), and a passport is the only document issued by this Government to protect one who is proceeding abroad and the only document generally recognized by foreign governments as attesting the right of the holder to American protection.

Under the law any alien may make the declaration of intention at any time before a clerk of a court having jurisdiction to naturalize aliens. He may make it immediately upon his arrival in the United States or he may have resided here for many years before making it. It follows that if this Government should protect those who make the declaration and go abroad it would be liable to be imposed upon by aliens not domiciled in the United States, who might make the declaration falsely soon after their arrival so as immediately to proceed abroad under our protection. To guard against this imposition it would seem to be reasonable to require, as evidence that domicil in the United States has been really acquired, that the declarant who applies for our protection should be required to prove that he has resided in the United States for at least three years: and in order that the continuance of residence required by law before naturalization might not be disturbed, the passport which this Government might issue should be limited to a period not exceeding six months.

Until recent years the practice was not uniform in the matter of protecting those who had made the declaration, and there are notable instances where such protection was extended. The rule in effect at one time is thus stated by Secretary Marcy in an instruction dated September 14, 1854:

The declaration, indeed, is prima facie evidence that the person making it was at its date domiciled in the United States, and entitled thereby, though not to all, to certain rights of a citizen, and to much more consideration when abroad than is due to one who has never been in our country; but the declarant, not

being a citizen under our laws, even while domiciled here, can not enjoy all the rights of citizenship either here or abroad. He is entitled to our care, and in most circumstances we have a right to consider him as under our protection, and this Government is disposed and ready to grant him all the benefits he can or ought to receive in such a situation. (Moore's Digest, III, p. 839.)

The rule now in effect was thus stated by Secretary Olney in 1896: It is established by the practical interpretation and application of domestic statutes, and by various treaties of naturalization concluded with foreign states, that a mere declaration of intention to become a citizen can not clothe the declarant with any of the international rights of citizenship. (Van Dyne on Citizenship, p. 75.)

The unsatisfactory status of the declarant was set forth by President Cleveland in his annual message of 1885:

The rights which spring from domicile in the United States, especially when coupled with a declaration of intention to become a citizen, are worthy of definition by statute. The stranger coming hither with intent to remain, establishing his residence in our midst, contributing to the general welfare, and by his volunary act declaring his purpose to assume the responsibilities of citizenship, thereby gains an inchoate status which legislation may properly define.

The feasibility of granting a temporary protection to a declarant finds an additional justification if we consider the matter of domicil. It is of course evident that mere residence, however long continued, can not, in the absence of a statute, invest such resident with the rights and corresponding duties of citizenship; but it is not unreasonable that residence extended over a long period of time, by which the person and fortune of such resident becomes incorporated, as it were, into the population and resources of our country, gives to such an one a claim upon the good will and protection of the country, based upon the fact of residence.

Indeed, it is not too much to say that the oath of the declarant may be taken as evidence of domicil, and that domicil depending upon actual residence with intent to continue such residence is therefore shown conclusively by the oath of the declarant. Domicil, as such, can not, any more than mere residence, as such, confer the rights of citizenship, but permanent residence may well be considered as giving a person so domiciled greater claims upon the country of his residence than a person temporarily sojourning would be justified in claiming.

Viewed in this light, the declarant is not only making evident an intent to become a citizen, but it is evidence of the most solemn kind of the establishment of a permanent domicil. If the subject be so considered, it will be seen that the attitude of Secretary Marcy, in the celebrated Kosta case, may be well supported and cited as an authority for protecting persons domiciled in this country who may temporarily find themselves in a foreign country other than the land of their birth.