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powers inconsistent with the sovereignty of the United States within the territory subject to the exclusive jurisdiction of the United States.
It makes no difference whether Ambassador Dumba merely sought to instigate strikes of his fellow-countrymen residing within the United States, because every alien within the United States owes a temporary allegiance to the United States. The allegation that Austro-Hungarians, engaged in the production of munitions of war, violated the law of Austria-Hungary, and that they were liable to punishment for their acts if they returned to Austria-Hungary, does not affect the question, because the law of the United States, not the law of Austria-Hungary, obtains in the United States, and the rightfulness or wrongfulness of the action of an Austro-Hungarian subject within the United States is to be decided solely by American law. The Austrian writ does not run in the United States. It is true that foreign governments claim and exercise the right to punish their subjects or citizens upon their return to their native jurisdictions for acts committed in foreign jurisdiction, but the citizen or subject is not liable to punishment nor to proceedings against him in the foreign country, although he may be subject to both when he returns to the jurisdiction of the home country.
It has been stated that a diplomatic agent could not pass upon the legitimacy or illegitimacy of acts committed within the United States, and in the present instance Ambassador Dumba could not allege that there was any reasonable doubt in his mind, or anybody's mind, as to the decision of the American Government that the production of munitions of war in the United States was lawful, and that their sale to any belligerent and their export from the United States was lawful. This very question had been raised by Austria-Hungary in the note of its Minister of Foreign Affairs dated June 29, 1915, and the legitimacy of each act complained of by Austria-Hungary was affirmed, in express, positive and unmistakable terms, by Secretary Lansing in his note of August 12, 1915. The attitude of the United States was therefore taken, and it was known to Ambassador Dumba before he made the proposal to his Government, contained in his note to the Minister of Foreign Affairs dated August 20, 1915.
The statement that the American Government decides whether or not a particular act can be done within its jurisdiction does not mean that the foreign government is bound to accept its decision. The foreign government protests through diplomatic channels, and if its protest is unavailing it may tax the American Government with responsibility for the act, just as the United States taxed Great Britain with responsibility for the Alabama claims. The dispute may be referred to arbitration, or the countries may go to war if the foreign government considers it to be its interest so to do. The case, therefore, is not one without a remedy, and because Ambassador Dumba chose a remedy inconsistent with the sovereignty of the United States, his recall was asked, and the Austro-Hungarian Government complied with the request.
THE GERMAN IMPERIAL AND STATE CITIZENSHIP LAW
From time to time the press has referred to the German Imperial and State Citizenship Law of July 23, 1913, calling particular attention to the provisions thereof, which permit a German, naturalized in a foreign country, to resume his original citizenship without returning to the country whereof he was a citizen, and to the provisions enabling a German about to become naturalized in a foreign country to retain, so far as Germany is concerned, his German, notwithstanding the acquisition of foreign, citizenship.
An article by Mr. Richard W. Flournoy, entitled "Observations on the New German Law of Nationality," was printed in the American Journal of International Law, Vol. 8, pp. 477^485. In view of this fact, and in view of the further fact that the law itself is printed in the Supplement to Volume 8 of the Journal, pp. 217-227, the comment on this law and its underlying purpose will be confined to §§ 13 and 25, which have aroused the interest of American publicists and the American press.
Section 13 reads:
A former Gorman who has not taken up his residence in Germany may on application be naturalized by the State [of Germany] of which he was formerly a citizen, provided his case fulfils the requirements of Nos. 1 and 2 of paragraph 1 of § 8; the same applies to one who is descended from a former German or has been adopted as a child of such. Prior to naturalization a report must be made to the Imperial Chancellor; if he raises objections, naturalization does not take place.1
1 The text of § 8 of the law referred to in the section just quoted is as follows:
1. If he is legally competent in accordance with the laws of his former home or would be legally competent in accordance with the laws of Germany; or if the application is made by his legal representative or with the latter's consent in accordance with the second sentence of paragraph 2 of § 7;
2. If he has led a blameless life; * * *
The reason for this section is thus stated by Delius, a German publicist, in his Reichs und Staal&angehorigkeitsgesetz, 1913:
Section 13 aims to facilitate as far as possible the reinstatement of lost members of our population as citizens again. The Federal State may (not must), accordingly, renaturalize its former citizens, their descendants, etc., who have not resumed their residence in Germany. In contrast to the citizens of other countries, Germans are not in the habit, after they have established themselves abroad, of returning permanently to their homes. Reference is made especially to representatives of commerce, to members of the German communities in Palestine, to missionaries, and in general to persons who, by being especially active in the fostering of German-dom abroad, for example, in German societies, and particularly by maintaining German schools and churches, do a worthy service.
The possibility of reinstatement as citizens extends not only to persons who have no citizenship, but also to such former Germans and their descendants as have acquired a foreign citizenship.
That is to say, Germans who have been naturalized in the United States and their descendants, and who have been "especially active in the fostering of German-dom abroad," to quote Delius, may acquire German citizenship without taking up their residence in the Fatherland, as would be ordinarily required in the case of naturalization.
It is proper enough for the home country to facilitate the naturalization of former citizens or subjects, but residence for a specified time, however short, would seem a reasonable requirement; and the foreign state in which the German has been naturalized, or in which his descendants live, would seem to be entitled to know whether it was harboring a citizen of its own country who owes no allegiance to another country, or a citizen who has pledged his allegiance to a foreign state while enjoying the hospitality of his adopted country.
Section 25 reads as follows:
A German who has neither his residence nor permanent abode in Germany loses his citizenship on acquiring foreign citizenship, provided the foreign citizenship is acquired as a result of his own application therefor or the application of the husband or legal representative; but in the case of a wife or one having a legal representative, only when the conditions exist under which expatriation may be applied for according to §§ 18 and 19.'
8 § 18. The expatriation of a married woman may be applied for only by the husband and when he is a German only simultaneously with an application for his own expatriation.
§ 19. The expatriation of a person who is under parental tutelage or guardianship may be applied for only by the legal representative and only with the consent of the German court having jurisdiction in guardianship matters. * * *
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
> 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.4
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.