Where a statute of limitation requires action to be brought within twenty years, or some other period after the owner or his predecessor shall have been seised or possessed of the premises, a different result may possibly be reached than where the statute runs from the time when the right of action accrues. It was held in Michigan,102 under such a statute, that a party must bring his action within twenty-five years after his disseisin, whether the persons in possession claimed through or from each other or not. The object of such a statute, it was said, is to compel every party disseised to use some diligence and to bar a right of entry after twenty-five years' practical abandonment of the possession to strangers. This distinction, however, has not been followed in other jurisdictions.

UNIVERSITY OF ILLINOIS, URBANA.

Henry W. Ballantine.

102 Riopelle v. Gilman, 23 Mich. 33 (1871). See also 5 CAL. L. Rev. 429.

HARVARD LAW REVIEW

Published monthly, during the Academic Year, by Harvard Law Students

NATURALIZATION OF ALIENS.

As Professor Valery has pointed out,1

one effect of the war is quite certain to be a heightened interest in the question of each individual's nationality. Incidentally, it is worthy of note that the existence of war and the passage of certain legislation relating to it have raised old questions concerning naturalization in a rather novel way.

Naturalization of an alien in the United States involves two legal acts. First, the express and absolute renunciation by the applicant of his old

allegiance. Second, his assumption of the new allegiance and this country's acceptance of him as a citizen.2

The proper performance of the first act necessarily involves a decision in favor of the applicant's right to expatriate himself, for the United States has never tolerated the notion that a naturalized citizen may retain even a shred of fealty to his former sovereign. Now foreign countries have generally been unwilling to relinquish their subjects or citizens. At one time or another, practically every European nation has denied or clogged expatriation. England, clinging to the feudal law, proclaimed and enforced until 1870 the doctrine of indelible allegiance. The German States and Austria seem always to have asserted the power to retain their nationals. With them, as with other countries having enforced military service, such power has usually been manifested in the cases of men of military age, who are likely to be the most valuable emigrants.

The United States has had collision after collision with foreign powers over this matter. But its own attitude has not been free from uncertainty. There were, and possibly still are, sharp differences of opinion between the three branches of the government. The judiciary, following common-law precedent, early embraced indelible allegiance." The executive, represented by the Department of State, pursued a wavering policy until 1859.7 Since then it has quite consistently championed an unlimited or at least a very broad right of expatriation. It may fairly be argued that Congress, by passing naturalization acts which paid no attention to restrictions advanced by other countries, early implied its

* See the form of petition and oath. Act of June 29, 1906, 34 Stat. At L., pt. I, 596, § 4, subdivisions First, Second, and Third.

It might be argued that the subject could relinquish the sovereign without the sovereign's relinquishing the subject. This seems unworthy hair-splitting. Besides, it would permit the discarded sovereign to enforce unwilling obedience from the expatriate, if jurisdiction over the latter could be obtained. But our laws require the protection of naturalized citizens, even when abroad, as fully as if they were native born. U. S. REV. STAT., § 2000, Act July 27, 1868, c. 249, § 2, 15 STAT. 224; 14 Opinions Attorneys General, 298-99 (1873); H. R., Doc. 326, 59th Cong., 2d Session, 25; In re Haas, 242 Fed. 739, 740 (1917).

The British, however, under the Naturalization Act of 1870 conceded that their adopted subjects should not be deemed Britishers when within the limits of the foreign states of which they were subjects previously to obtaining their certificates of naturalization, unless they had ceased to be subjects of such states in pursuance of municipal law or treaty. In re Bourgoise, L. R. 41 Ch. D. 310 (1889). The Act of 4 & 5 Geo. V, c. 17, pt. II, § 3 (August 7, 1914), has revoked this concession.

An outline of the state of law about 1869 is given by COCKBURN ON NATIONALITY, 50 et seq. The House Document referred to in the first paragraph of note 3 outlines the situation as of about 1906. This House Document is a mine of information, rather poorly arranged.

A sharp distinction must be drawn between laws which merely penalize illegal emigration or expatriation, and those which refuse to recognize expatriation without consent. COCKBURN, supra, 55, 134.

5 COCKBURN, supra, 63-64. The allegiance is not really "indelible" and never was. The author admits that Parliament could have wiped it out. This doctrine of Great Britain's was one cause of the War of 1812. COCKBURN, supra, 70.

Shanksv. Dupont, 3 Pet. (U. S.) 242 (1830). See, for a more discreet modern view under the statute, Mackenzie v. Hare, 239 U. S. 308 (1915).

7 TAYLOR ON INTERNATIONAL PUBLIC LAW (1901), § 183. This is a good summary which can easily be elaborated by reference to the sources given.

belief in an unrestricted right to shake off foreign sovereignty. Whatever doubt existed as to the legislative view in the middle of the nineteenth century was dispelled by the Act of July 27, 1868.9 This somewhat flamboyant statute declares expatriation to be "a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness"; it further asserts that "any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions" the right, is "inconsistent with the fundamental principles of the Republic.” This act was sufficient to settle United States municipal law for the time being, but of course it could not of itself affect foreign municipal law. At this very time, however, the series of reciprocal naturalization agreements known as the Bancroft treaties was being negotiated.10 It might be argued that this negotiation per se was a surrender of free expatriation, the more so as the treaties impose substantial conditions upon the exercise of the right. It seems fairer, though, to deem them discreet concessions to convenience. In diplomacy, half a loaf is far better than no bread at all. The United States has not been successful in making such conventions with all nations, France, Italy, Serbia, Turkey, and numerous others remaining outside the fold. By its own municipal law, Great Britain has adopted an extremely liberal policy with respect to foreign naturalization of its subjects."

Divorced from the heat and prejudice of the times in which it was passed,12 the Act of 1868 does not seem an entirely safe star by which to set one's course. The vigorous caveat against contesting its utter validity is somewhat repulsive to legal common sense, which prefers logic to bull-dozing. Many of the better writers on public or international law deny flatly and with good reason that there is any such thing as an unrestrictable right of expatriation.13 To those taking this point of view it is gratifying and significant to find Congress eating some of its own words by passing the Act of March 2, 1907,14 which in laying down general rules as to what constitutes expatriation declares "That no American citizen shall be allowed to expatriate himself when this country is at war." The prohibition gains a more than municipal significance from the fact that its framers stated it to be "declaratory of a principle of public law which should be placed on the statute books, so that no

8 VAN DYNE ON NATURALIZATION IN THE UNITED STATES (1907), 333 et seq. Now U. S. REV. STAT., § 1999.

10 These are conveniently collected in MALLOY'S TREATIES, CONVENTIONS, ETC., BETWEEN THE UNITED STATES AND OTHER POWERS (1776-1909).

11 33 & 34 Vict. c. 14, § 6 (1870). And see 4 & 5 Geo. V, c. 17, pt. III, § 13.

12 The days of the Fenian uprising. COCKBURN, supra, 86 et seq., shows what the English thought of the American attitude. Oddly enough, Cockburn seems not to have known of the Act of 1868, although his book was published in 1869. See his acid comment on page 106.

13 For example, BORCHARD ON DIPLOMATIC PROTECTION OF CITIZENS ABROAD, § 317, says: "... the conclusion is inevitable, both under international and municipal law, that there is no such thing as the inalienable and inherent right of a citizen to expatriate himself." See also Attorney General Cushing's very elaborate opinion, 8 OPINIONS ATTORNEYS GENERAL, 139, 152, 153, and 168 (1856). Compare Professor Valery's remarks in the BULLETIN MENSUEL DE LA SOCIÉTÉ DE LÉGISLATION COMPARÉE, AVRIL-JUIN (1917), 161.

doubt can ever be raised on a point which may be vital to the United States." 15 Sound authority is cited for the proposition, and more might be adduced.16

Applying this modification of the Act of 1868 to a supposititious case will indicate the kind of complication which may result from naturalization in war time. During 1915 a German of military age, who has resided in the United States for more than five years but who has no discharge from his nationality of birth, applies for and receives his final naturalization papers. It may be assumed that he gets them as a matter of course, for there appears to be nothing questionable about the man and nothing unusual about the case. But if the judge had examined the new German Imperial and State Law of Nationality 17 he would have found that while a discharge from nationality "may not be refused in time of peace" except for certain specified reasons, "In time of war and danger of war the right is reserved to the Emperor to issue special regulations." Looking further, he would have discovered that on August 3, 1914, the Emperor did issue a special regulation to the effect that persons under obligation to serve in the army were not to be discharged from either State or direct Imperial allegiance until further notice.18

This puts our hypothetical naturalized citizen in an uncomfortable position. To take the least likely and perhaps the least hurtful possibility first, an active United States attorney may endeavor to have his certificate canceled.19 The attorney would argue that the Act of 1907 read into our corpus juris and specifically into the naturalization act of the preceding year the "principle of public law" which forbids the desertion of one's country flagrante bello and that the German applicant obtained his papers fraudulently or illegally. If the attorney felt unkindly toward the respondent, he would point out to the court how unlikely it is that a German would disregard the law of his Fatherland; and he would suggest that possibly this German saved his skin by taking advantage of that wicked provision of the Delbrück Law which enabled him to retain his original nationality.20 Numerous defenses to such a proceeding may

15 H. R., Doc. 326, 59th Cong., 2d Session, 28. The opinions of the Secretary of the Treasury and the Secretary of State referred to therein may be found in 2 Foreign Relations (1873), 1187 and 1204.

16 See note 13; also HALLECK ON INTERNATIONAL LAW (1908), § 29, 462.

17 This law is commonly known as the Delbrück Law. "Vor der Erteilung der Genehmigung ist der d. Konsul zu hören," REICHS-GESETZBLATT (1913), 583, 589, quoted In re Haas, 242 Fed. 739 (1917). The translation quoted is that presented in 1914 to both Houses of Parliament.

18 REICHS-GESETZBLATT (1914), 323. To avoid any chance of faulty translation, the original text is quoted: "Wehr pflichtige sind bis auf weiteres nicht aus der Staatsangehörigkeit oder unmittelbaren Reichsangehörigkeit zu entlassen."

19 In accordance with § 15 of the Naturalization Act of June 29, 1906, 34 STAT. 601. 20 Paragraph second of § 25: "A person does not lose his nationality if, before acquiring a foreign nationality, he has applied for, and received, the written permission of the competent authorities of his home state to retain his nationality. Before the grant of such permission, the German consul is to be consulted." (Die Staatsangehörigkeit verliert nicht, wer vor dem Erwerbe der ausländischen Staatsangehörigkeit auf seinen Antrag die schriftliche Genehmigung der zuständigen Behörde seines Heimatstaats zur Beibehaltung seiner Staatsangehörigkeit erhalten hat. Vor der Erteilung der Genehmigung ist der deutsche Konsul zu hören.)