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persons who leave their native land and settle permanently in a foreign country, without acquiring its citizenship or taking part in its political life. When such persons settle in large numbers in any country, the question becomes vitally important, especially when the immigrants and their children form a distinct community, which, as in some cases, becomes practically an imperium in imperio. As a result of the "new immigration” this has become an important problem in our own country. While it is true that our Government has more than once protested against the application to our own citizens residing in foreign countries of laws under which they are naturalized against their will, there is certainly something to be said in favor of such laws, provided they are not too stringent and make exceptions in cases of persons residing abroad as representatives of commercial or other concerns of their native lands. It is difficult to understand how such laws can be reasonably objected to when applied to ordinary immigrants or "settlers.”
As to the right of an individual to throw off his original allegiance at will in acquiring a new citizenship the laws of different nations vary widely. In our own country applicants for naturalization were never required to obtain the consent of their original sovereigns before acquiring American citizenship, but our courts for some years questioned or actually denied the right of Americans to throw off their citizenship and acquire another nationality. Considering the fact that our nation was largely made up of voluntary expatriates, this view now seems inconsistent and unreasonable. In a joint resolution of July 27, 1868, Congress declared that "the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness" 6 and finally in Section 2 of the Expatriation Act of March 2, 1907, it was definitely declared that “any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state, or when he has taken an oath of allegiance to any foreign state.” This, however, is qualified in the second paragraph, in which it is provided “that no American citizen shall be allowed to expatriate himself when this country is at war." In other words, the right of Americans to expatriate themselves
6 See Moore's International Law Digest, Vol. III, pages 302–311. 6 Revised Statutes, 1999.
is absolute during the continuance of the normal condition of peace, but this right is suspended when the country is in the abnormal condition of war. The reasons for the limitation are obvious. Such is also British law as interpreted and applied in the case of Rex v. Lynch (L. R. 1903, 1 K. B. 444). The law of Italy permits an Italian to change his nationality at will, but denies that his doing so relieves him from the obligation of military service in Italy. Under French law a Frenchman cannot expatriate himself unless he has performed the prescribed military service in France or has obtained the express permission of the government. A Swiss citizen, to effectively renounce his allegiance, must obtain the approval, not of the Federal Government, but of the Canton to which he belongs. Russia and Turkey still hold fast to the doctrine of indissoluble allegiance, denying their subjects the right to cast off their allegiance without special permission. 10 A British subject expatriates himself by obtaining naturalization as a citizen of another country. The present British law of nationality also contains a peculiar provision according to which an alien who acquires British nationality “shall not, when within the limits of the foreign state of which he was a subject previous to obtaining his certificate of naturalization, be deemed to be a British subject unless he has ceased to be a subject of that state in pursuance of the laws thereof or in pursuance of a treaty to that effect.” 11 This provision will be abandoned if the British Nationality and Status of Aliens Act, now before Parliament, becomes a law, for Part II, Section 3, Sub-section (1) provides as follows:
A person to whom a certificate of naturalization is granted by a Secretary of State shall, subject to the provisions of this Act, be entitled to all political and other powers and privileges, and be subject to all obligations, duties and liabilities, to which a natural-born British subject is entitled or subject, and as from the date of his naturalization have to all intents and purposes the status of a natural-born British subject. This change, it will be observed, is in the contrary direction from the change in the new German law mentioned above.
7 Civil Code, Articles XI and XII.
Naturalization Law of 1903, II, Arts. XIII and IX.
The United States has treaties of naturalization with Great Britain, Austria-Hungary, German States, Belgium, Denmark, Norway, Sweden, Portugal and most of the Latin American countries, and it is much to be desired that similar treaties be obtained with France, Italy, Switzerland, Turkey, and Russia, and indeed all of the countries of the world which have not yet consented to enter into agreements calculated to put an end to controversies concerning expatriation. It is also to be hoped that other disputed questions of citizenship, some of which have been touched upon above, may be settled, and that a harmony which does not now exist may be attained, through legislation and international agreements. If such a consummation is to be reached the interests of the countries of immigration and the interests of the countries of emigration must be equally considered, and a reasonable compromise sought between the rights of nations and the rights of individual members thereof. The whole subject of the law of citizenship, in which there is now so much confusion, or at least, in particular phases of it, might well be made a topic of discussion by the Hague Conference.
RICHARD W. FLOURNOY, JR.
NOTES ON THE EXTRADITION TREATIES OF THE UNITED
1. POLICY The extradition conventions of the United States, from the Jay treaty concluded with Great Britain November 19th, 1794, down to the present time have, with a single exception, contained the requirement that the surrender of a fugitive should be conditioned upon the production and presentation to the country of asylum of such evidence of criminality as would, according to the law of the place where the accused might be found, justify his apprehension and commitment for trial. This implies, therefore, that the conduct of the accused must have been such as to violate the criminal laws of the country of asylum. Only upon such a theory could he be there held for commitment and trial.2
The general requirement respecting evidence of criminality necessitates, furthermore, a decision by some authority in the country of asylum as to whether the evidence presented justifies the apprehension
1 The exception is the convention with Uruguay, March 11, 1905, Malloy's Treaties, II, 1825. Notwithstanding the singular omission, it is not believed that the high contracting parties contemplated any departure from the existing practice, or a lessening of the requirement respecting the sufficiency of evidence to be presented by a demanding government. Arts. IV and V justify this conclusion.
In his work on extradition, $ 77, Professor Moore adverts to the fact that Thomas Pinckney, in his negotiations that resulted in the treaty with Spain of October 27, 1795 (which contained no provisions relative to extradition), declined to accede to the Spanish suggestion that transgressors should be surrendered "upon a single demand”; and that he proposed, on the other hand, that any demand should be “supported by testimony of the commission of the crime which should be sufficient in the country to which the fugitive has flown to cause him to be arrested and brought before the tribunals of justice if the crime had there been committed," citing despatches from Madrid, Vol. VI, MSS. Department of State.
2 "The general principle of international law is that in all cases of extradition the act done on account of which extradition is demanded must be considered a crime by. both parties, and as to the offence charged in this case the treaty of 1889 with Great Britain embodies that principle in terms. The offence must be 'made criminal by the laws of both countries.'” (Fuller, C. J., in Wright v. Henkel, 190 U. S. 40, 58.)
and commitment of the accused for trial according to the local law. This involves the exercise of an essentially judicial function.
Although the early treaties of the United States made no provision respecting procedure, and although no Act of Congress offered guidance or direction, the weight of opinion sanctioned the view that judicial rather than executive authority should, in the first instance, pass upon the sufficiency of the evidence presented. An Act of Congress of 1848 supplemented by later legislation has since that time provided for the performance of the judicial function by the judicial rather than the executive branch of the Government of the United States. All extradition treaties subsequent thereto have been regarded as having been concluded with reference to and in harmony with the statutory law.4
2. OFFENSES GENERALLY
Since the earliest agreements with England of 1794 and 1842, and with France of 1843 and 1845, there has been a constant and natural increase in the number of offenses made extraditable. Numerous treaties of the Twentieth Century such as those with France of 1909, and with El Salvador of 1911, are fully responsive to the elaborate and intricate needs of the present time. Thus, for example, among the offenses specified are "the willful and unlawful destruction or obstruction of railroads, which endangers human life,” and under certain circumstances, the "breach of trust by a bailee, banker, agent, factor, executor, administrator, guardian, trustee or other person acting in a fiduciary capacity.” 5 In the more recent treaties the offenses set forth are described
3 See the Matter of Metzger, 5 How. 176, 188–189, where the Supreme Court of the United States in 1847 approved the action of the President in referring to the judgment of a judicial representative the evidence offered by the French diplomatic officer to secure the extradition of an individual charged with forgery under treaty with France of November 9, 1843.
See also case of Nash under Art. XXVII of the Jay treaty November 19, 1794, Wharton's State Trials, 392.
See Mr. Bayard, Secy. of State, to Mr. Romero, Mexican Minister, Feb. 19, 1889, For. Rel. 1889, 620-621, Moore, Dig., IV, 273.
5 Convention with France, Jan. 6, 1909, Arts. II, secs. 12 and 7, Charles' Treaties, 34. See also editorial comment, this JOURNAL, V, 1060. See also convention with Honduras, Jan. 15, 1909, Charles' Treaties, 71.