Special mention may also be made of the provision in section 337 of the Code for the revocation of naturalization in the case of a person who takes up a permanent residence in his native land or some other foreign country within 10 years (instead of 5 years, as provided in the existing law) after the date of his naturalization. The problem of the child born abroad to parents of different nationalities was the subject of extended consideration by the committee and finally resulted in the draft of section 201 (g) referred to above which confers American citizenship at birth upon a person born abroad if one of his parents is an American citizen. Prior to the Citizenship Act of May 24, 1934, only the children of American fathers acquired citizenship at birth if they were born abroad. This, however, was changed by the 1934 act so that a woman retaining citizenship after marriage to an alien also transmitted citizenship to her children. In enacting this measure Congress apparently took into consideration the fact that persons born in foreign countries whose fathers were nationals of those countries would be likely to have stronger ties with the foreign country than with the United States, and consequently annexed as a condition for retaining citizenship a 5-year period of residence in this country between the ages of 13 and 18. This condition was equally applicable irrespective of whether the citizen parent was a father or a mother.

It has been recognized, however, that these residence requirements will impose great hardship in some cases. This is especially true where the head of the family is a salaried person residing abroad as a representative of the American Government or some American commercial or other organization. The committee has therefore recommended that in cases of this character the conditions relating to residence during minority shall no longer be imposed. If the citizen parent does not represent the American Government or an American educational, scientific, philanthropic, religious, commercial, or financial organization, the foreign-born child, in order to retain American citizenship, is required under section 201 (g) to reside in the United States 5 years between his thirteenth and his twenty-first birthdays. The committee recommends strengthening the 1934 act in another respect, however, by restricting the right of transmitting citizenship in a case of this kind, through the requirement that the citizen parent should have resided at least 10 years in the United States prior to the birth of the child.

Mention is made above of section 317 of the Code. While probably the majority of former American nationals who have been naturalized in foreign states through the naturalization of their parents therein continue to reside in such foreign states, some of them return to the United States to reside, and it seems only reasonable to adopt special provisions to enable the latter to recover their American citizenship if they so desire.

None of the various provisions in the Code concerning loss of American nationality, such as those applicable to children born abroad to parents only one of whom has American nationality and persons who, after obtaining American nationality through naturalization, establish a residence abroad, is designed to be punitive or to interfere with freedom of action. They are merely intended to deprive persons of American nationality when such persons, by their own acts, or inaction, show that their real attachment is to the foreign country and not to the United States. Important reasons for terminating American nationality in cases of persons who reside in foreign countries and have to all intents and purposes abandoned the United States lie in the fact that it will prevent them from transmitting American nationality to their foreign-born children having little or no connection with the United States, and embroiling this Government in controversies which they may have with the governments of the foreign countries in which they reside. The mere presumption of expatriation provided for in section 2 of the act of March 2, 1907, in cases of naturalized citizens residing for 2 years in the foreign states from which they came or 5 years in other foreign states, has proven inadequate. In general the right to protection should be coexistent with citizenship, and a law under which persons residing abroad are denied the protection of this Government, although they remain citizens of the United States and transmit citizenship to children born abroad, is deemed inconsistent and unreasonable. The admission of an alien to the privilege of American citizenship is subject to the condition that he intends to reside permanently in the United States and perform the duties of citizenship. When a naturalized citizen abandons his residence in the United States and takes up residence in the state of which he was formerly a national, definite termination of his American citizenship should follow.

Further explanations of the various provisions of the Code submitted herewith may be found in the comment on the various articles-appendix 1 herewith. In addition to the Code and appendix 1, we also submit herewith the following: Provisions of the Code and corresponding provisions of the existing nationality laws, arranged in parallel columns (appendix 2), and constitutional, statutory, and treaty provisions relating to nationality (appendix 3).

Your committee, in the light of the experience of the interested departments in handling cases presented to them for action, is convinced that it is most desirable to have the nationality laws of the United States revised, and embodied in a single Code, the meaning of which may be readily understood. We feel that there is no branch of the law of more importance to the country, or requiring more careful attention, than that branch which governs nationality, determining, as it does, what classes of persons shall compose the national society itself.

The proposals contained in the accompanying draft Code are to be regarded merely as suggestions for the use of the appropriate committees of Congress. When the matter is to be considered by these committees, the undersigned will be glad to designate members of their respective departments whose duties involve the handling of citizenship cases to confer with the committees, if that is desired.

Respectfully,

CORDELL HULL,

Secretary of State. HOMER CUMMINGS,

Attorney General

FRANCES PERKINS,
Secretary of Labor.

Enclosures: Draft Nationality Code and appendixes 1, 2, and 3, as above.

REVISION AND CODIFICATION OF THE NATIONAL

ITY LAWS OF THE UNITED STATES

Part 1. Sections of the Proposed Code with Explanatory Comments 1

1

[The part printed in bold-face type shows the sections of the proposed Code; the part printed in roman shows the explanatory comments of each section]

CHAPTER I. DEFINITIONS

Sec. 101. For the purposes of this Act

(a) The term "national” means a person owing permanent allegiance to a state.

This term has come into common use in recent years with reference to the individuals who together compose the people of a sovereign state, regardless of the character of the government thereof. Where the state is represented by a personal sovereign the term "subject" may also be used, and where the government of a state is democratic in form the term "citizen" may likewise be used, but the broader term "national" covers both. This term, with the corresponding term "nationality" has been in use in modern times not only in standard works on international law and nationality (3 Moore, Digest of International Law, 273-276; 1 Hyde, International Law, 610-611; Hall, International Law, 8th ed., pp. 275-276; 1 Oppenheim, International Law, 4th ed., 524-526; Borchard, Diplomatic Protection, pp. 7-24; Cockburn, Nationality; see also McGovney, D. O., American Citizenship, 11 Columbia Law Review, 231; Scott, J. B., Nationality; Jus Soli or Jus Sanguinis, 24 American Journal of International Law (1930), p. 58, but in treaties to which the United States is a party, including the treaty establishing friendly relations with Austria, signed at Vienna, August 24, 1921, Treaty Series No. 659 (Malloy, Treaties, Conventions, etc., vol. III, p. 2493); the treaty restoring friendly relations with Germany, signed at Berlin, August 25, 1921, Treaty Series No. 658 (Malloy, op. cit., p. 2596); the treaty establishing friendly relations with Hungary, signed at Budapest, August 29, 1921, Treaty Series No. 660 (Malloy, op. cit., vol. III, p. 2693); treaty between the United States and Bulgaria, signed at Sofia, November 23, 1923, Treaty Series No. 684; treaty between the United States and Czechoslovakia, signed at Prague, July 16, 1928, Treaty Series No. 804; treaty between the United States and Norway, signed at Oslo, November 1, 1930, Treaty Series No. 832; treaty between the United States and Sweden, signed at Stockholm, January 31, 1933, Treaty Series No. 890.

With reference to the above, particular attention is called to the treaty restoring friendly relations with Germany, signed August 25, 1921, the preamble of which contains a quotation from the joint resolution of Congress, approved by the President July 2, 1921, declaring the state of war between the United States and Germany to be at an end, including the following clause in section 2 thereof:

"SEC. 2. That in making this declaration, and as a part of it, there are expressly reserved to the United States of America and its nationals any and all rights, privileges, indemnities, reparations, or advantages, together with the right to enforce the same, to which it or they have become entitled under the terms of the armistice signed November 11, 1918, or any extensions or modifications thereof; or which were acquired by or are in the possession of the United States of America by reason of its participation in the war or to which its nationals have

1 Submitted with report of Committee of Advisers August 13, 1935; subsequently amended with reference to amended sections of the Code.

thereby become rightfully entitled; or which, under the Treaty of Versailles, have been stipulated for its or their benefit; or to which it is entitled as one of the principal allied and associated powers; or to which it is entitled by virtue of any act or acts of Congress; or otherwise."

Article I of this treaty contains the following important provision: "ARTICLE I. Germany undertakes to accord to the United States, and the United States shall have and enjoy, all the rights, privileges, indemnities, reparations, or advantages specified in the aforesaid joint resolution of the Congress of the United States of July 2, 1921, including all the rights and advantages stipulated for the benefit of the United States in the Treaty of Versailles which the United States shall fully enjoy notwithstanding the fact that such treaty has not been ratified by the United States" (Malloy, op. cit., p. 2598).

The treaties establishing friendly relations with Austria and Hungary, referred to above, contain provisions similar to those quoted above from the treaty with Germany. It may be added that the Treaty of Versailles, referred to in article I of the treaty restoring friendly relations between the United States and Germany, signed August 25, 1921, also uses the term "nationals" to indicate all persons owing permanent allegiance to the respective states (Malloy, op. cit., appendix, pp. 331 et seq.).

The nationals of a state owe permanent allegiance to the state or the personal sovereign thereof, as distinguished from the obligation of aliens temporarily residing or sojourning in the territory of the state, sometimes called "temporary allegiance," to obey the laws (Carlisle v. United States, 16 Wall. 147). The word "permanent" in this connection means continuous, or of a lasting nature, as distinguished from "temporary," but it does not connote an indissoluble relationship. Thus, the "permanent allegiance" owed to the United States by Philippine citizens may continue until terminated at the end of the 10-year period prescribed in the act of Congress of March 24, 1934. It was permanent allegiance which was referred to by Justice Iredell, in Talbot v. Jansen, 1795, 3 Dall. 133, 164, when he said:

"By allegiance I mean the tie by which a citizen of the United States is bound as a member of the society."

(b) The term "national of the United States" means (1) a citizen of the United States, or (2) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

The term "national of the United States," as used in the proposed code, is applicable to any person who owes permanent allegiance to the United States, whether or not he is a "citizen of the United States," as that term is used in the Constitution and in various statutes. The corresponding term "nationality" refers to the status of any persons owing permanent allegiance to the United States and is broader in scope than the term "citizenship." All "citizens of the United States" are also "nationals of the United States," but there are nationals who are not citizens of the United States. Reference is made to the inhabitants of the various outlying possessions who owe permanent allegiance to the United States but have not the status of citizens of the United States (Coudert, F. R., Jr., Our New Peoples, Citizens or Aliens, 3 Columbia Law Review, 13, 17; Burdick, C. K., The Law of the American Constitution, ch. XI, 318-328). This includes citizens of the Philippine Islands, natives of the Panama Canal Zone, and inhabitants of American Samoa and Guam owing permanent allegiance to the United States.

This view was expressed by Judge Parker, umpire in the Mixed Claims Commission, United States and Germany in an opinion of October 31, 1924, in which he said:

"The term 'American national' means a person wheresoever domiciled owing permanent allegiance to the United States of America, and embraces not only citizens of the United States but Indians and members of other aboriginal tribes or native peoples of the United States and of its Territories and possessions" (Administrative Decision No. 5, .p. 193).

From the standpoint of international law noncitizen nationals have the same status and are entitled to the same protection abroad as nationals who are citizens of the United States, but their rights within the territory of the United States, under the Constitution and laws thereof, are not the same.

The nature of citizenship in the United States was discussed by Chief Justice Waite in rendering the opinion of the Supreme Court in Minor v. Happersett, 1874, 21 Wall. 162, 165. After referring to the provisions in the fourteenth

amendment to the Constitution concerning citizens of the United States, he said: 66** * * Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.

"For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words “subject,” “inhabitant,” and “citizen" have been used, and the choice between them is sometimes made to depend upon the form of the government. "Citizen" is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more."

The decision just mentioned was rendered before the expansion of the United States by the acquisition of its insular possessions. Since that time it has been necessary, as indicated above, to use a broader term than the word "citizen" to describe persons owing permanent allegiance to the United States, and the word "national" has thus come into use. (With regard to the status of the outlying possessions and their inhabitants, see 3 Moore, Digest of International Law, ch. X, Nationality, especially pp. 315-318; Van Dyne, Citizenship of the United States, 160-230; Maxson, Citizenship, 193–208; Downes v. Bidwell, 1900, 182 U. S. 244; De Lima v. Bidwell, 1900, 182 U. S. 1; Gonzales v. Williams, 1903, 192 U. S. 1; Coudert, F. R., Jr., op. cit.)

The use of the term "national" as meaning any person owing permanent allegiance to the United States does not, as will be seen, involve abandonment of the term "citizen of the United States" where the latter is applicable.

The terms "American citizen" and "American citizenship" have been in common use since the early days of the Republic, although they are not found in the Constitution of the United States. Originally, these terms were used as the equivalent of the terms "citizen of the United States" and "citizenship of the United States," but since the acquisition of the various outlying possessions having inhabitants who owe permanent allegiance to the United States but are not "citizens of the United States," within the meaning of the Constitution, the terms "American citizen" and "American citizenship" have become ambiguous. When these terms are used, it is not always clear whether they are intended to relate solely to "citizens of the United States" or whether they are intended to relate to all persons having the nationality of the United States. This ambiguity and confusion is illustrated by various provisions of the Citizenship Act of March 2, 1907 (34 Stat. 1229). In sections 2, 3, and 4 of this act the terms "American citizen" and "American citizenship" seem to have reference to American nationals in general, that is, any persons owing permanent allegiance to the United States, but the term "American citizenship" in section 5 seems to relate to "citizenship of the United States" only.

It has been suggested that the term "citizen of the United States" or "American citizen" be applied to all persons who owe permanent allegiance to the United States, although certain classes of these citizens, that is, the inhabitants of certain outlying possessions, would not have the same rights under the Constitution as others, that is, those who are "citizens of the United States" within the meaning of the Constitution (McGovney, D. O., American Citizenship, 11 Columbia Law Review, 231-250, 326-347). It is believed, however, that such terminology would be likely to give rise to misunderstanding and confusion. All things considered, the terminology used in the attached code seems preferable.

(c) The term "naturalization" means the conferring of nationality of a state upon a person after birth.

This definition, while expressly limited to the use of the term "for the purposes of this act," relates to naturalization in foreign states as well as in the United States. Thus it is applicable to the provision of section 401 that an American na