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to renounce allegiance to any foreign sovereignty; he shall make his declaration of intention to become a citizen of the United States at least two years prior to his admission; and residence within the jurisdiction of the United States, owing such permanent allegiance, shall be regarded as residence within the United States within the meaning of the five years' residence clause of the existing law.”
g. Rights Conferred by Declaration of Intention.
(A.) Under Federal laws. One who has declared his intention to become a citizen may, under the preemption and homestead laws of the United States, preempt and acquire public lands. Rev. Stat. 2259, 2289.
(B.) Under state laws.
He may, under state laws, 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 rights in the acquisition of real property that other aliens do not enjoy. In some states he may be employed upon public works and other aliens
(C.) Citizenship not conferred by.
Mere declaration of intention does not confer citizenship upon the declarant. The declaration is merely an expression of purpose, and has not the effect, either of naturalization or expatriation. By it, the alien simply records his intention to renounce his present allegiance on becoming a citizen of the United States. He remains an alien until naturalization is complete according to our laws. Lanz v. Randall, 4 Dill. 425; Maloy v. Duden, 25 Fed. 673; Re Moses, 83 Fed. 995.
The law, justly regarding a change in his allegiance by a foreigner as an act of grave importance, wisely provides that there shall be two steps in the process. By the first, the purpose of change is announced. Between this and actual naturalization the lapse of a considerable interval is required in order that the final step may be taken with due deliberation. For. Rel. 1871, 253, Sec'y Fish to Mr. Wing, Inst. to Ecuador.
From the standpoint of the government, also, it is undesirable that persons inexperienced in our institutions should take part in matters which they do not understand. The period of probation is designed to afford them an opportunity to become familiar with our mode of government, and to fit themselves for the performance of the duties of citizenship. Upon final hearing, the court, for good reasons, may refuse to complete the naturalization.
Does the declaration of intention confer the rights of citizenship upon an alien ? While the laws of several of the states of the Union extend the right of suffrage to aliens who have declared their intention to become citizens of the United States, a state can not make the subject of a foreign government a citizen of the United States, or confer on him the rights and privileges appertaining to such citizenship.
As is said by the Circuit Court of the United States in the case of Minneapolis v. Reum, 6 C. C. A. 31, 12 U. S. App. 446, 56 Fed. 580: "A state may confer on foreign citizens or subjects all the rights and privileges it has the power to bestow, but when it has done all this, it has not naturalized them. They are foreign citizens or subjects still, within the meaning of the Constitution and laws of the United States.” See, also, Boyd v. Nebraska, 143 U. S. 135, 36 L. ed. 103, 12 Sup. Ct. Rep. 375; In re Moses, 83 Fed. 995; White v. White, 2 Met. (Ky.) 185; Dorsey v. Brigham, 177 Ill. 250.
A mere“ declaration of intention " by a foreigner to become a citizen does not deprive a court of the United States of jurisdiction over a suit to which he is a partyas a suit against a foreign citizen or subject. The final renunciation of his foreign allegiance is necessary. Baird v. Byrne, 3 Wall. Jr. 1, Fed. Cas. No. 757.
Is a person who has declared his intention to become a citizen clothed with the rights of citizenship while without the United States? Upon principle, it seems clear that this question should be answered in the negative. As he is not a citizen, and is not invested with the rights of Federal citizenship while in the United States, it is not perceived upon what ground he can claim the privileges of American citizenship while in a foreign country. As we have seen, the declarant does not renounce his original allegiance, but remains an alien until his naturalization is completed. If he goes back to his native country, he returns as a subject or citizen thereof.
By treaties with Austria, Baden, Bavaria, Hesse, North Germany, Sweden and Norway, and Württemberg, it is expressly provided that a declaration of intention to become a citizen shall not have the effect of naturalization.
It has been repeatedly held by the Department of State that the declaration of intention to become a citizen does not so clothe the individual with the nationality of this country as to enable him to return to his native land without being subject to all the laws thereof. 2 Wharton's. Int. Law Digest, 359.
Where declarant, a native Turk, contemplating a visit to Turkey, inquired whether he could count upon the intervention of this government in his behalf, Mr. Bayard held that, “so far as political rights are concerned, a mere declaration of intention to become a citizen of the United States would give
[declarant] no title to claim *The Act of March 2, 1907, appears to contemplate a liuiited protection for these persons in certain exceptional circuinstances. See p. 74, post.
the intervention of the United States should he return to his native land." 2 Wharton, International Law Dig. 360.
And in a similar case it was held: "Until the declarant has perfected his naturalization by due course of law, and obtained his final papers, he can not claim the protection of this government in case of his voluntary return to Turkey.” Mr. Bayard to Mr. Crain, January 28, 1886, MSS. Dom. Let. See also, Mr. Hay to Mr. Bell, April 7, 1899, MSS. Dom. Let.
(i.) Burnato's Case.
With the exception of the case of Burnato, no instance is found where this government has intervened, in the country of his origin, in behalf of an alien who has merely declared his intention to become a citizen. This case is sometimes cited as a precedent for extending protection to such persons, but an examination of the correspondence shows that it is subject to considerable qualification. Burnato, a native of Mexico, came to Texas in 1866, and in 1872 declared his intention to become a citizen of the United States. In 1879 he was arrested by the Mexican authorities at Piedras Negras for smuggling liquor across the border, was tried and sentenced to five years' service as a soldier in the Mexican Army. In October, 1880, the impressment of Burnato and several others, citizens of the United States, having come to the notice of our government, the Department of State directed the United States Minister to demand of the Mexican government their instant release. “If the fact of Burnato's not being a citizen of the United States should be brought up by the Mexican government” (wrote Assistant Secretary Hunter) "you will suggest that for fourteen years he has been a permanent resident of this country, of which he had declared his intention to become a citizen, and has thus been under the protection of this government, its laws and treaties, and it would seem very ungracious for the Mexican government to insist, under these circumstances, on making any unfavorable distinction in his case.” Acting Sec'y Hunter to Mr. Morgan, For. Rel. 1880, 777.
Mr. Morgan in his note to the Mexican government refers to the men as “citizens of the United States," and it does not appear that the question of Burnato's citizenship was raised at all. It transpired that he had been dismissed from the army some months previous. Subsequently Mr. Morgan wrote the Department asking instructions in regard to demanding an indemnity, and expressing doubts as to Burnato's title to protection. The Department, under date of September 14, 1881, replied as follows: “Adverting to your inquiries respecting Felipe Burnato, one of the persons impressed, I have to state that he will not be entitled to the protection of this government without having acquired full citizenship.” Acting Sec'y Hitt to Mr. Morgan, MSS. Dip. Inst. to Mexico.
Although a mere declaration of intent does not confer citizenship, yet, under peculiar circumstances in a Mohammedan or semi-barbarous land, it may sustain an appeal to the good offices of a diplomatic officer of the United States in such land. Sec'y Cass to Mr. De Leon, U. S. Consul General at Alexandria, Egypt, August 18, 1858.
(ii.) Koszta's Case.
In a few instances the Department of State has held that the declarant acquires, by his declaration of intention, a quasi right to the protection of this government while in a third country. Of these cases, the best known is that of Martin Koszta, in which an extreme position was taken by this Government. This case has been criticised, and has been explained and qualified by the Department of State. Koszta was an Austrian subject, who engaged in the Hungarian rebellion of 1848–9. At