Hostname: page-component-586b7cd67f-dsjbd Total loading time: 0 Render date: 2024-11-24T04:01:58.374Z Has data issue: false hasContentIssue false
  • English
  • Français

Collective Naturalization after Conquest—Its Inapplicability to Non-Residents

Published online by Cambridge University Press:  12 April 2017

Edwin Borchard
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Editorial Comment
Information
American Journal of International Law , Volume 37 , Issue 4 , October 1943 , pp. 634 - 640
Copyright
Copyright © American Society of International Law 1943

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 United States ex rel. Paul Schwarzkopf v. Uhl, District Director of Immigration.

2 50 U.S.C.A. § 21. This section reads:

Section 21. Restraint, regulation, and removal. Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

3 6 Fed. Reg. 6323.

4 As in United States v. Repentigny, 5 Wall. 211 (U. S. 1866); Jones v. McMasters, 20 How. 8 (U. S. 1857); Boyd v. Thayer, 143 U. S. 135 (1892).

5 Early decisions to this effect are: McIlvaine v. Coxe’s Lessee, 2 Cranch 280, 4 Cranch 209 (U. S. 1805); Respublica v. Chapman, 1 DaU. 53 (U. S. 1781); Inglis v. Trustees of Sailor’s Snug Harbour, 3 Pet. 99, 122, 123 (U. S. 1830); Kent, Commentaries, Vol. II, §§ 40, 41.

6 Said Marshall, J. in American Ins. Co. v. 356 Bales of Cotton (Canter), 1 Pet. 511, 542 (U. S. 1828): “On such transfer of territory, it has never been held, that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved. . . . The same Act which transfers their country, transfers the allegiance of those who remain in it.” (Italics supplied.) Halleck adds that “the allegiance of those who do not remain, of course, is not so transferred with the territory.” (International Law, 4th ed., Vol. II, p. 509). The American diplomatic practice is in accord with this view. See Moore’s Digest of International Law, §§ 379, 380, and Van Dyne, Naturalization, pp. 275–276.

7 International Law, 5th ed., by Lauterpacht, London, 1937, Vol. I, § 240.

8 Droit International, Vol. II, p. 438.

9 International Law, 4th ed., (London 1908), Vol. II, p. 506 et seq., at p. 511.

10 See also Brown v. United States, 5 Ct. CI. 571, 573 (1869), in which the same annexation was involved. Brown was a native of Hanover, domiciled in Savannah, Georgia, since 1860. To maintain his suit in the Court of Claims, he had to prove that he was a citizen of a government which permits American citizens to bring suit against it. He offered evidence that Prussia accorded such a privilege. Nott, J. remarked that merger of territory carries even absent subjects with it, since the tie which carries them to the new state is not bodily presence but allegiance. This is about the only American authority that believes election or assent, express or tacit, is not material. But Brown was asserting that he was a subject of Prussia, and Prussia (or the United States) was not seeking to force on him an allegiance which he repudiated, as in the Schwarzkopf case.

11 In Strupp, Wörterbuch des Völkerrechts, Vol. II, p. 271 (1927). Cf. Kunz, J., Die völkerrechtliche Option, Breslau, 1925, Vol. I, pp. 100–110.

12 Holtzendorff in Handbuch des Vdlkerrechts, Berlin, i885, Vol. II, pp. 42–43. Stoerk, Option und Plebiscit, bei Eroberungen und Gebietscessionen, Leipzig, 1879, pp. 150–155.

13 Über den Einfluss der Einverleibungen auf das Unterthanenverhältniss, Allgemeine Deutsche Strafrechtszeitung, Vol. VIII, pp. 304–320 (1868), opinions summarized by Halleck, op. cit. Vol. II, p. 510.

14 Cf. Hula, , “National Self-Determination Reconsidered,” in Social Research, Vol. 10, Feb. 1943, pp. 1–21 Google Scholar.

15 United States ex rel. Ivan J. Zdunic v. Uhl.

16 United States ex rel. Frederic Wakler D’Esquiva v. Uhl.