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The Drafting of Neutral Aliens by the United States

Published online by Cambridge University Press:  12 April 2017

William W. Fitzhugh Jr.  and
Charles Cheney Hyde
William W. Fitzhugh Jr.
Affiliation:
U.S.N.R.,* Hamilton Fish Professor of International Law and Diplomacy, Columbia University
Charles Cheney Hyde
Affiliation:
Hamilton Fish Professor of International Law and Diplomacy, Columbia University
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Extract

The Alien Registration Division of the Immigration and Naturalization Service has announced that there are 695,363 alien Italians in the United States and 314,715 alien Germans. The census of 1940 indicated over eleven million white inhabitants born in a foreign country residing in the United States, and a recent release shows that about 65% of these became naturalized citizens.1 It can be calculated, therefore, that we have in this country, excluding orientals, a neutral alien population of about two millions. Are these persons protected by virtue of alien status from liability to military service? The issue has been confused by claims that rights under international law are violated by forcing neutral aliens to serve. In what follows, attempt is made to show that no controversial issue of international law need be raised, and that no such issue need interfere with the legal and domestic right of the United States to request alien service.

Type
Research Article
Information
American Journal of International Law , Volume 36 , Issue 3 , July 1942 , pp. 369 - 382
Copyright
Copyright © American Society of International Law 1942

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References

1 U. S. Dept. of Commerce, Press Release, Dec. 13, 1941, Census Bureau.

2 IV Moore, International Law Digest, p. 50.

3 New York Times, Sept. 3, 1941.

4 Journal Officiel (1914), 7232.

5 Ibid., Notice, Aug. 7, 1914.

6 New York Times, Apr. 17, 1939, 5:2.

7 Ibid., Apr. 23, 1939, 31:5.

8 Ibid., May 10, 1939, 15:2; Sept. 5, 1939, 14:3; and June 25, 1939, VII, 18:2, respectively.

9 Actes, III, 266, Annex 36, Art. 64.

10 This Journal, Vol. 2 (1908), p. 811.

11 A. S. de Bustamante, in this Journal, Vol. 2 (1908), pp. 100, 115.

12 2 Stat. 132, March 16, 1802, IV Moore, Digest, p. 50, cited by Atty. Gen. Cushing in 1854: 6 Op. 474.

13 May 12, 1898. Moore, op. cit.

14 New York Times, Sept. 3, 1941.

15 Lauterpacht’s 6th ed. of Oppenheim, II, 207.

16 I Oppenheim, 1st ed., 175.

17 Lauterpacht’s 5th ed., I,237. Also Vattel, Law of Nations, 173; In re Siem, 284 Fed. 868, (1922) D. C, Montana; Bluntschli, Art. 391; Bonfils, No. 445; Hall (5th ed.), 207–209; I Halleck, 419–420; Lawrence, Sec. 117; I Westlake, 211–212; II Wharton, Sec. 202. Also S. Edmunds in 5 St. Louis Law Rev., 24 (March, 1920).

18 Although United States policy frequently denied this even with regard to British-born naturalized Americans residing in England. See Henry Clay’s statement dated June 19, 1826, in Instructions to U. S. Ministers, XI, 95, quoted by R. L. Morrow in this Journal, Vol. 30 (1936), p. 656. United States policy oscillated markedly. Note also that in 1846, England, with France, espoused the cause of her drafted nationals, and blockaded the port of Buenos Aires. Fiore, Now. droit int. pub., Sec. 647, quoted by Edmunds, loc. cit.

19 12 Stat. 731, Sec. 1.

20 30 Stat. 361, c. 187.

21 40 Stat. 76, Sec. 2, 5.

22 H. B. Hazard, in this Journal, Vol. 21 (1927), p. 45; 23 ibid., 783; Second Report, Provost Marshal General, Ch. IV, G.P.O. (Washington), 1919; Edmunds, loc. cit.

23 Second Report, Provost Marshal General, ibid., p. 168.

24 According to Edmunds, loc. cit., p. 24.

25 IV Moore, Digest, p. 52.

26 Ibid., pp. 53–54. Quoted approvingly in ex parte Blumer, 27 Texas, 734. This was a letter of Sept. 5, 1862.

27 Letter of Aug. 14, 1862, 58 Ms. Docs., No. 69; IV Moore, Digest, pp. 52–53.

28 Although apparently most foreign governments acquiesced in the view that exercise of suffrage rights forfeited former allegiance. See 2 Wharton, Sec. 202; IV Moore, Digest, p. 54. 2 Halleck, 365, refers to Great Britain’s threat of joint neutral action on this score in 1861.

29 Cf. 12 Stat. 597, July 17, 1862, which allowed only “citizens” to serve in the militia.

30 Communication to Mr. Williams, Nov. 24, 1863, IV Moore, Digest, p. 54. See note 28 above.

31 Signed Feb. 20,1928 (4 Malloy, 4722), Treaty Series No. 815. See Bluntschli, Das mod. Vdlkerrecht der civ. Staaten, § 391 (3rd ed., Nordlingen, 1878); II Hyde, Int. Law, p. 245. Both Seward and Bayard excepted extreme necessity, IV Moore, Digest, pp. 57, 62. Great Britain agreed to this “Transvaal Rule.” U. S. For. Rel. 1894, 253. See Seward to Ashboth, March 27, 1867, in IV Moore, Digest, pp. 56–57.

32 IV Moore, Digest, p. 57.

33 U. S. For. Rel. 1888, I, 510, 512.

34 May 8,1863,13 Stat. 732. “Whereas it is claimed by and on behalf of persons of foreign birth . . . who have heretofore declared on oath their intentions to become citizens under and in pursuance of the laws of the United States, and who have not exercised the right of suffrage or any other political franchise under the laws of the United States or any of the States thereof, that they are not absolutely concluded by their aforesaid declaration of intention from renouncing their purpose to become citizens, and that, on the contrary, such persons, under treaties or the law of nations, retain a right to renounce that purpose and to forego the privileges of citizenship and residence within the United States under the obligations imposed by the aforesaid act of Congress: . . .”

Sixty-five days from the date of the proclamation was allowed the declarant alien to leave the United States or be considered liable to military service. (Italics inserted.)

Messages and Papers of the Presidents, Vol. 5 (1913), p. 3369.

35 Pari. Papers, No. 337, 1863. Some writers have felt that this was an unnecessary concession: see J. W. Cutler, in this Journal, Vol. 27 (1933), pp. 225, 232; Hall, Int. Law (8th ed.), 259–261; 3 Scott, Proceedings of The Hague Peace Conferences, Conference of 1907, p. 188; In re Wehlitz (1863), 16 Wise. 443; Conn. Gen. Stat. (1930), Sec. 746; Ex parte Larrucea, 249 Fed. 981 (decision in this Journal, Vol. 13 (1920), p. 119); 27 Yale Law Journal (1918), 683.

36 IV Moore, Digest, p. 60. The treaty is found in I Malloy, 1085. It was terminated by Mexico Nov. 30, 1881, though apparently not on this issue alone. See U. S. For. Rel. 1881, No. 485.

37 IV Moore, Digest, pp. 60–61.

38 Declared Judge Moore in 1918: “In truth, much confusion in the discussion of this subject has resulted from the supposition that, in making the declaration of intention to become a citizen, the declarant is required to forswear, and in fact does forswear, his allegiance to the government of the country from which he came. Not only is this a popular supposition; it has even found expression now and then in official documents. But it is quite destitute of foundation.” (Principles of American Diplomacy, 299–300.) See averments required in a declaration of intention as laid down in Sec. 331 of the Nationality Act of 1940. 54 Stat. 1153; this Journal, Supp., Vol. 35 (1941), p. 98.

39 The exaction of them violated no requirement of international law.

40 IV Moore, Digest, p. 56 n.

41 United States ex rel. Bartalini v. Mitchell. 248 F. 997. See also H. B. Hazard, in this Journal, Vol. 21 (1927), pp. 40–52, and idem, Vol. 23 (1929), pp. 783–809.

42 See statement in Hearings Before Committee on Military Affairs, House of Representatives, 65th Cong., 1st Sess., on S. J. Res. 84, Sept. 26,1917, p. 10. See also in this connection H. T. Kingsbury, in Proceedings, American Society of International Law, 1911, pp. 214, 220, 223.

43 Although, occasionally, zealous draft boards have done so. See S. Edmunds, in 5 St. Louis Law Rev., 24 (March, 1920).

44 30 Stat. 361.

45 40 Stat. 77.

46 40 Stat. 845, c. 143, subch. 8.

47 Repeated in 40 Stat. 955, c. 166. Code Title 8, Par. 79.

48 See below, p. 12 ff.

49 Ex parte Larrucea, 249 Fed. 981 (1917). In re Dragutin Blazekovic, 248 F. 327 (U. S. District Ct., E. Dist. Mich. S. Div.) likewise.

50 This was stated by the court in Tutun v. United States, 12 Fed. (2d), 763–765 (May 29, 1926). (Advance Sheets.)

51 H. B. Hazard, in this Journal, Vol. 21 (1927), p. 46.

52 This Journal, Vol. 23 (1929), p. 784.

53 Ibid., p. 792, n. 19.

54 Accord: Slade v. Minor, Fed. Cas. No. 12, 937 (C.C.D.C. 1817); Barrett v. Crane (1844), 16 Vt. 246; Kans. Const. (1859), Art. 8, s. 1; Ex’parte Blumer, 27 Tex. 734. See Adv. Opinion of P.C.I.J., Nationality Decrees in Tunis and Morocco (1923), Ser. B., No. 4. Contra: In re Toner (1864), 39 Ala. 454; Ansley v. Timmons, 3 McCord 329 (S. C. 1825); Cf. U. S. v. Wyngall, 5 Hill, 16 (N. Y. 1843); U. S. v. Cottingham, 1 Rob. 615 (Va. 1843). Also see In re Siem, 284 Fed. 868 (Mont. 1922), where Judge Bourquin discusses the political status of persons and the obligations of aliens and citizens under municipal and international law; and In re Naturalization of Aliens, 1 F. (2d) 594 (Wise. 1924), where Judge Geiger gives a comprehensive review of alien status.

Exemption from service was not considered a bar to naturalization if no lack of “attachment to the principles of the Constitution” could be shown. For an analysis of the numerous cases, see Hazard, loc. cit.

55 Public Law No. 783, 76th Cong. Text in C.C.H. War Law Service, Vol. 1, p. 18102.

56 Public Law 360, 77th Cong., approved Dec. 20,1941. Text in C.C.H. War Law Service, Vol. 1, p. 18103.

57 Dept. of State Bulletin, April 19, 1941, 478.

58 2 Malloy, 1233, abrogated by overthrow of the Netherlands Government in 1795.

59 2 Malloy, 1236.

60 2 Malloy, 1731. Treaty expired in 15 years but relevant article revived in subsequent treaties. (Art. 17).

61 2 Malloy, 1482, Art. 16.

62 1 Malloy, 495, Art. 14.

63 2 Malloy, 1643. Art. 7.

64 2 Malloy, 1492, (16). Text quoted taken from Art. 5 of Colombian Treaty of 1824, 1 Malloy, 294, (5).

65 1 Malloy, 1088, Arts. 8, 9.

66 2 Malloy, 1376, Art. 4.

67 1 Malloy, 173, (5);II, 1833, (8); I, 424, (8); I, 304, (8); I, 863, (7); II, 1540, (8); respectively.

68 2 Malloy, 1808, (6).

69 1 Malloy, 911, (8).

70 1 Malloy, 23, (10), and 344, (9), respectively.

71 2 Malloy, 1764, (2). See U. S. For. Rel. 1894, p. 678: the United States was estopped from complaining of this Swiss tax on resident Americans because the State Department had agreed to the Swiss construction of the 1850 treaty. The interesting fact is that the United States was concerned about the matter. Adee was anxious to find out how Swiss citizens in the United States were treated and polled 42 States on the question. His conclusion was “... that the States of this Union do not impose compulsory military service, except in cases of extraordinary emergencies, nor compel the payment of any equivalent tax in money. All militia service is voluntary . . .” Adee to Broadhead (U. S. Minister in Berne), Aug. 10, 1894. For. Rel. 1894, p. 682. Tax liability ended in 1894. See IV Moore, Digest, p. 66.

72 Malloy: 2, 1367, (11); 2, 1846, (2); 1, 922, (5); 1, 955, (9); 1, 404, (2).

73 2 Malloy, 1389, (2). Compare the 1836 treaty.

74 1 Malloy, 114, (3).

75 2 Malloy, 1703, (5).

76 1 Malloy, 970, (3, 4).

77 Malloy: 2, 1282, (9); 2, 1615, (4); 1, 329, (3); 2, 1783, (9); 1, 1029, (1); 3, 2713, (1); 2, 1703, (5); and 3, 2830, (1).

78 2 Malloy, 1432, (2).

79 2 Malloy, 1764, (2); 1311, (2).

80 This Journal, Supp., Vol. 2 (1908), p. 113. The text of the voeu is given in 2 Scotti Acts and Documents of the Hague Conferences, 289.

81 3 Malloy, 2713. Abrogated by United States action six months before Jan. 26, 1941.

82 U. S. Treaties, Vol. Ill, 2830; U. S. Treaty Series, No. 940.

83 U. S. Treaties, Vol. IV, 4193. See in this connection J. W. Cutler, in this Journal, Vol. 27 (1933), pp. 225, 232, who attributes the change in the treaty policy of the United States to the inter-Allied treaties concluded in 1918 with Great Britain, Canada, Greece, France and Italy. It may be greatly doubted whether these arrangements were influential in causing the United States to propose to Germany the text of the article quoted above.

84 See Lincoln proclamation of May 8, 1863.

85 See, for example, Art. 7 of the treaty between Austria and China, ratified June 15,1926, printed in this Journal, Supp., Vol. 21 (1927), p. 55; Art. 7 of the treaty between Germany and Great Britain, ratified Sept. 8, 1925, in ibid., Vol. 20 (1926), p. 86, (cf. U. S.-Germany treaty of 1923, below); Art. 12 of the treaty between Great Britain and Turkey, ratified Sept. 3, 1930, in ibid., Vol. 27 (1933), p. 98; Art. 6 in the 4th Convention of the Treaty of Lausanne, signed July 24, 1923, in ibid., Vol. 18 (1924), p. 69; and Central American Convention of 1923, signed Feb. 7,1923, in ibid., Vol. 17 (1923), p. 119.

86 See TJ. S. Treaties, Vol. IV, 4107, 4320, 4617, 4308, 3932, 4402, 4529 and U. S. Treaty Series, No. 956.

87 U. S. Treaties, Vol. IV, 4529. This provision was also included in the Liberian treaty.

88 U. S. Treaties, Vol. IV, 4723. The United States declined to accept this article.

89 This Journal, Supp., Vol. 17 (1923), p. 119.

90 League of Nations Document, C.97.M23.1930.II.5.