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2336 S T A T U S a l i e n s OF w h R E S I D E A R E o NT S U B J E C T S 0 R i C I T I Z E N S A T O F W A R N A T I O N S W I T H THE U N I T E D May 10, 1917 S T 2 T E S I 433? X-138 STATUS OF RESIDENT ALIENS WHO ARE SUBJECTS OR CITIZENS OF NATIONS AT WAR WITH -theUNITED STATES, * * * * * Mr. President, and Members of the Richmond Bar Association • Aside from the interest which necessarily attaches to ques tions directly or indirectly involved in th3 present war, the deter mination of thw status of resident aliens who are subjects or citi zens of nations at war with the United States makes it necessary to consider certain legal questions which are of independent interest t i because they lhvolve the reconcilement of three distinct proposi tions or principles of law - each apparently supported by authority which on their face are incapable of reconcilement. The first is, that as soon as war is declared between the United States and a foreign country all business intercourse and com munication between tho citizens of the two nations must immediately cease, whether the subjects of the hostile nation are residents of this country, or of the enemy nation. The second is, that citizens or subjects of an enemy na tion, who are domiciled m the United States, become to all intents and purposes citizens of tho United States after war is declared m so far as their right to enter into contracts and to have busi ness intercourse with citizens of the United States is concerned. •/ 2338 \ -2The third is, that no resident or domiciled alien can become a citizen of the United States without complying with the naturalization laws of the United States. That no subject of an enemy nation can become naturalized after war is declared and that all subjects, denizens or citizens of an enemy nation may be treat ed as alien enemies after a declaration of war. Each of these propositions is apparently supported by authority but it is evident that all three Can not be consiutflntly sustained. In order to reconcile them it is necessary to analyze the authorities which seem to support them. In the case of United States v. G-rossmayer.76 U. S. 72, 73, the court said : "It has been found necessary,as soon as war is oommenced, that business intercourse should cease be tween citizens of the respective parties engaged m it, and this necessity is so great that all writers on public law agree that it is unlawful, without any express declaration of the sovereign on the subiect. " In Montgomery v. United States. 82 U S. 395. 400. the court said * "Nothing is clearer, says President Woolsey (In ternational Law, Sec. 117), than that all commercial transactions of whatever kind (except, ransom con tracts ), with the subjectsr or is. the territory of the enemy, whatever direct or indirect, as through an agent or partner who is neutral, are illegal and void." Again in United States v. La-pans. 84 U. S . . 601. 602. the court said : 1 2339 -3 "All contracts with the subjects or in the ta r n tory oi th3 enemy, whether made directly by one per son, or indirectly through an agent, who is neutral , are illegal and void This pnncipla is now too well settled to justify discussion. No property passes and no rights are acquired under such contracts " Similar language is used m a number of other cases which it is not necessary to quote, (l) Construing this language literally, it would seem to bo clearly established that no citizen or subject of a nation with which the United States is at war has any right to enter into contractual relations or to have<aiy business intercourse of any sort with a citizen of the United States. It will be observed that this pro hibition, according to the language of the courts, extends to con tracts "with the subjects or m the territory of tne onemy. " This would seem to include those subjects or citizens of an enemy nation m which are domiciled m the United States, as well as those residing within the jurisdiction of the enemy nation. In support of the second proposition and in direct con flict with this view, however, we find that the text writers apparent ly treat all citizens of an enemy nation who are domiciled in the United States at tho outbreak of war as entitled to the privileges of citizenship m tnis country, m so far as their right to contract and deal with citizens of the United States is concerned President Woolsey of Ya.le, who was an acknowledged auth ority on International Law, states that : <2340 4- "The nationality of individuals in war* depends not on their origin or upon their naturalization, hut upon their domicile." (2 ) If this he literally accepted as the true principle it would seem to follow that a citizen of an enemy nation domiciled m the United States would inm*dlately, or within a reasonable time, after the outbreak of wax' oeSSeto he a citizen or subject of that country and become a citizen of the United States* It could hardly have been the intention of President Woolsey, nowever, to subscribe to the view that a declaration of war by a foreign nation could have the legal effect of making its citizens or subjects domiciled in the United States ipso facto citizens of the United States, and the word "nationality" was no doubt used m a more restricted sense* It would perhaps be more accurate to say that the enemy status of an alien after the outbreak of war is determined by domicile rather than by citizenship. According to the text of the American & English Encyclopedia of Law, the authorities hold that - "Apart from cases of direct assistance to the enemy, the question of domicile is controlling m determining whether one is to be considered an enemy or a neutral, the theory being that one contributes to the resources of the country in which he is domi ciled, and is consequently to be considered as a subject thereof." (3) The rule as stated m Livingston v. Maryland Ins « Co. is that • 2341 -5- "Whenever a person is bona fide domiciled in a particular country, the character of the country irresistibly attaches to him. The rule has been applied with equal impartiality in favor of and against neu trals and belligerents. It is perfectly inmaterial what is the trade m which the party is engaged, or whether he be engaged m any. If he be settled bona fide in a country with the intention of indefinite residence, he is, ^s to. all foreign countries, to be deemed a subject of that country. Without a doubt, in order to ascertain this 1domicile1 it is proper to take into consideration the situation, the employ ment, and the character of the individual. The trade in which he is engaged, the family that he possesses, and the transitory or fixed character of his business are ingredients which may properly be weighed in de ciding on the nature of an equivocal residence or domicile. But when once that domicile is fixed and ascertained all other circumstances become inmate rial." (4) This rule seems to be borne out by a long line of decisions, but while it establishes the principle that a citizen of the United States acquires the status of an enemy if he is domiciled in a for/ eign country with which the United States is at war, and remains there more than a reasonable time after war is declared, it does not justify the assumption that such a citizen becomes a citizen of the enemy nation. Nor can it be accepted as authority for the proposition that a citizen of a hostile nation domiciled m the United States at the outbreak of war becomes entitled to the privileges of citizenship m this country even though he is treated as an enemy of his own country if he does not return within a reasonable time after war is declared. A number of cases are cited in the American & English ' 11 * l ' t' 2342 Encyclopedia of Law m support of this general statement but when analyzed it is found that they deal with the status of a citizen of the United States who remains within the jurisdiction of a hostile nation after a declaration of war and not with the status of a citi zen of a hostile nation who remains m the United States after war is declared* In analyzing cases cited as authority for the proposition under consideration, ve find that oar Supreme Court has been called upon to pass upon this question m cases growing out of the war with England; the wax with Mexico, the Civil war and the war with Spain* The principles established m the earlier cases have been followed with more or less uniformity and reference to the later cases is hardly necessary, except as a matter of historical interest. One of the earliest cases is that which is entitled flThe Venus", reported in 12 U. S. 253* In that case, a citizen of the United States had acquired a business or commercial domicile in England and before the outbreak of the war shipped goods to himself and associates m the United States. These goods were seized after war was declared and condemned as enemy property on the ground that the shipper, who was also a consignee, had acquired an enemy status by remaining out of the United States after the outbreak of war* Chief Justice Marshall, while upholding this principle, dissented on the ground that he should have been given a reasonable tim3 within which to return to the United States before his enemy status became fixed* 2343 -7\ The oases of “The Vowles" (5) and " Tho Frances" (6), re ported m the same volume of United States Reports involved similar transactions. A case growing out of the Mexican War was that of the United States v. Guillam. (7) In this case a citizen of France had acquired a domicile m Mexico. When war was declarod he attempted to return to Franco on a ship which was seized while running the biocksyde. The court held that although he was a citizen of a neu tral country he became impressed with an enemy status by being domiciled m a hostile country after the outbreak of the war but that he lost this hostile character when he attempted to return to France on a French ship immediately following the outbreak of the war., that while the ship was subject to seizure for running the blockade tho person and property of the Frenchman were not* Among the Civil War cases, cited m support of the propo sition that domicile must determine enemy status, we find the cases i of "The William BagaleyIT(8) and nMiller v. The United States"(9). In the first case a citizen of th3 North owned an interest m a vessel which was used by the Confederacy and was seized as a prize of war by the Federal Government. His interest was held to be enemy property and subject to confiscation. In the case of Miller v. United States a citizen of the Confederate States ovtmcd stock in two Northern railroads and this ,2344 ' 8- - interest was likewise confiscated on the ground that it belonged to an enemy of the United States and was being used for purposes inimcal to the United States* The latest reported case dealing with this subject ap pears to be that of Jaragua Iron Co, v. United States cided in February, 1909. (9j) de In this case the Jaragua Iron Company was domiciled in the United States and had its main office in Pennsylvania. It was, however, engaged in business in Cuba and had acquired a commercial ee/cicilo thoroe Its property was destroyed for sanitary reasors under order of Genex'al Miles as an incident of the war with Spain. The Court held its Cuban property to be an enemy property and declined to allow compensation. It will be observed that each of these cases deals with the status of .American citizens who have acquired domiciles in coun tries with which iho United States is at war, or who have property which is susceptible of use :‘n aid or comfort of enemies of the Unitod States. it may* of course, be reasonably argued that if a subject of an enemy nation,domiciled in the United States and thereby be comes an enemy of his own country, he should not be treated as an enemy of the United States. This is no doubt true as a matter of comity or of in ternational hospitality but it can hardly be claimed that an alien £345 -9~ under such circumstances is inherently, or as a matter of right, en titled to th3 privileges of citizenship. Such a presumption is rebutted by tho statutes of the United States which sustain the third proposition, namely, that no alien can become a citizen of the United States without complying with the naturalization laws of this country. To advert for the moment to certain elementary principles of law, we find that a citizen is defined by the authorities as one who by birth> naturalization, or otherwise, is a member of an independent poli tical society and, as such, is subject to its laws and entitled to its protection-in the enjoyment of civil or private rights. (10) Naturalization is defined as 11 the act of adopting a foreigner sind clothing‘him with the privileges of a nativo citizen." In the United States the power of naturalization is vested exclusively in Congress and can not b3 exercised by any of the States, (ll) By the Act of April 14, 18C2, as amended, Congross has de clared that "an alien may bo admitted to become a citizen of the United States in th3 following manner and not otherwise." The provisions of the Act which proscribe the manner in which naturalization may be af fected are substantially, as follows : That a circuit or district court of th3 United States or a district or circuit court of tho territories or a court of record of any of tho States having common law jurisdiction and a soal and clerk may receive the declaration of an alien of his intention to becomo a citi zen of the United States. (12) The same courts have power to ontortain and pass upon applications for haturalization. (13) 2346 -1&. The alien seeking admission to citizenship must declare upon oath before a competent court at least two years prior to his admis sion to citizenship that it is his bona fide intention to become a citizen, (lU) and to renounce his allegiance to any prince, poten tate, or state, particularly by name to the prince, or state whereof he is at the time a subject or citizen. This preliminary declaration of intention is, however, dispensed with in certain cases @r Sr \ in the case of honorably discharged aliens who have enlisted and served in the United States Army or in the case of minors who have lived in the United States three years before reaching their majority). At the time of his application fog citizenship the alien must declare on oath that he will support the Constitution of the United States; that he renounces and abjures all allegiance and fidelity to every foreign prince, potentate, or state; and these proceedings must be recorded.(IS) Th$ alien must prove that he has resided within the United States five years at least, and within the state or territory where the court sits for one year, and that during, that time he has behaved as a nan of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. other than by his oath. His residence must be proved The courts acting upon such application 2347 -13consider tooth the law and the facts, and the decision of the court has tro effect of a jv gmsrt and is conclusive as to all matters nec essarily before the court and involved in the issue. (17)* It is obvious tnat under our naturalization laws enacted toy Congress, no alien can acquire citizenship toy proof of domicile in the United States, acquired prior to the outbreak of war. On the con trary, it is specifically provided by Sec. 21fl, Revised Statutes, that : 11No alien who is a native citizen or subject or a denizen of any country, state or sovereignty with which the United States are at war, at the time of his application, shall be then admitted to become a citizen of the United States , * * * nor shall anything herein contained toe taken or Construed to interfere with or prevent the appre hension and removal, agreeably to law, of any alien enemy at any time previous to the actual naturali* zation of such alien. n As such aliens are not entitled to citizenship and are not,therefore, inherently and as of right entitled to the protection of our laws in the enjoyment of civil or private rights, the only question for determination appears to toe — Does a declaration of war have the effect of converting them from friendly strangers to alien enemies, or are they still to toe regarded as entitled to the same international hospitality that is afforded neutral aliens ? In other words, does the fact that they are citizens or subjects of an enemy government cause them to acquire an enemy status ? 4 2348 -12While the cases actually cited to support the proposition that domicile 13 controlling in determining enemy status may he said to create a strong presumption m favor of the friendly status of subjects of enemy governments domiciled m the United States,, the acts of Congress dealing with this subject do not specifically recognize any distinction between tne subjects which are domiciled and tnose which are temporarily residing in this country. Sections ho67 and U068 Revised Statutes of the United States provide as follows 5 Section Uo 67« "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 hos tile nation or government, being males of the age of fourteen years and upwatd, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed as alien enemies. The President is authorized, m any such event, by his proclamation thereof, or other public act, to dir ect the conduct to t>e observed, on the part of the United States, toward the aliens who become so liable, the man ner and degree of the restraint to which they shall be sub ject, and m what cases, and upon what security their residence shall be permitted, and to provide for the re moval of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found ' necessary in the premises and for the public safety." Section Uo 68. "When an alien who becomes liable as an enemy, m the manner prescribed m the preceding section, is not chargeable with actual hostility, or other crime against public safety, he shall be allowed, for the re covery, disposal, and removal of his goods and effects, and for his departure, the full time which is or shall be stipulated by any treaty then m force between the United - -13States and the hostile nation 'or government of which he is a native citizen, denizon, or subject; and where no such treaty exists, or is in force, the President may ascertain and declare such rea sonable time as may be consistent with the public safety, and according to the dictates of humahity and national hospitality.11 It will be observed that Section Uo6j provides in terms thati "All nativesi citizens, denizens, or subjects of the hostile nation or government * * *, wfrio shall be within the .United States and not actual ly naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies*R Congress has not excepted from the provisions of this Act subjects of enemy governments which are domiciled ill the United States • It is true that the Act does not declare all subjects of enemy nations to be alien enemies. It merely pro vides that they shall be liable to be treated as such and those vAiich have acquired a domicile in the United States are includ ed in this class. It may be contended, with reason, that the status of such subjects, particularly those which have ac quired a domicile here, remains that of friendly aliens until they are declared to be otherwise. to justify this conclusion. The authorities would seem In any event, however, the courts and text writers are agreed that any nation at war may permit such limited or restricted intercourse between its citizens and the citizens of a nation with which it is at war as it deems necessary or advisable. (18) 3349 In some instances our courts have expressed doubt as to whether this restricted commercial intercourse between our citizens and the citizens of an enemy nation should be allowed by proclamation of the President or by ; act of Congress. In dealing with this question in Hamilton v. Dillin, (19) 0 the court aaid : nIn England this power to remit the restrictions on commercial intercourse-with a hostile nation is exercised by the. crown* Lord St6weii :Sayai*By the law and constitution of this c&untry, the sovereign alone has the power of declaring war oi* $eace» Ke alone therefore, who has the power of entirely 'removing a state of war; has the power of rem&ving it in part/ by permitting/where he sees proper,that commercial intercourse which is a partial suspension of the war. * * * By the Consti. tution of the United States the power to declare war is con fided to Congress. The executive power and the command of the military and naval forces is vested in the President; Whether, in the absence of Congressional action, the power of permitting partial intercourse with a public enemy may or may not be exer cised by the President alone, who is Constitutionally invested with the entire charge o'f hostile operations, it is not now nec essary to decide,although it would seem that little doubt could be raised on the subject. * * * "But without pursuing this inquiry and whatever view may be taken as to the precise boundary between the legislative and executive powers in referehce to the question under consideration there is no doubt that a concurrence of both affords ample foun dation for any regulations- on the subject. 11 As Congress has specifically authorized the President to "direct i the conduct to be observed on'the part of the United States" towards resi dent subjects of enemy rations, his power in this regard is unequivocal. In determining, the ref ore, the present status of such subjects it is necessary to consider any proclamationsmade by the President since war was declared.In the proclamation issued on April 6, he says in part : "All alien enemies are enjoined to preserve the peace towards the United States and to refrain from crime against the public safety, and from violating the laws of the United States and of the States and territories thereof, and to refrain from actual '.^ostiia-^T or giving information,aid or comfort to the enemies of the United States, and to comply strictly with the regulations which are hereby or which may be from time to time promulgated by the President;and so long as they shall conduct themselves in accordance with law- they shall be undisturbed in the peaceful pursuit-of their lives and occupations, and be 3351 i accorded, the consideration due to all peaceful and law-abiding persons, except so far as restrictions may be necessary for their own protection and for the saf ety of the United States, and towards such alien enemies as conduct themselves m accordance with law, all cit izens of the Unit 3d States are enjomad to preserve the peace sixtx and to treat them with all such fnendlinsss as may be compatible with loyalty and allegi ance to the United States." * So long as the subjects of enemy nations preserve the P 3 ac3 , refrain from crime against the public safety, from actual hostility and from giving information, aid or comfort to the ene mies of the United States and obey the Stat3 and F3deral laws and regulations from time to tur3 prescribed by the President, they ar3 authorized by this proclamation to pursue thoir peaceful oc cupations . As such peaceful occupations will necessarily involve entry into contractual relations and having business intercourse with citizens of the United States, it would S3em that until Con gress by legislative action, or the President by proclamation or regulation, imposes restrictions, citizens of the United States may continue their ordinary transactions with those resident sub jects of on3my nations who have not acquired an enemy status. If citizens of the United States should be prombitod from having any business intercourse of any kind with subjects of enemy nations domicil3d or residing in the United States it would be difficult for such subjects to obtain the ordinary necessities of life and the Government might thsrefors be called upon in the interest of humanity to segregate and provid3 for th3 support of such subjects. 2352 -icBusiness intorcourse botwoon tho citizens of two nations at war, however, appears to bo a matter of privilege rather than of right and is subject to such restrictions as either sovereign may impose. It is probable that Congress will pass a "Trading with tho Enemy Act," which will deal with this general subject. 0O0 (l) Hamilton v. Dillin, 88 U. S. ,73; Mitchell v. United States, 88 U. S. 350; The William Bagaley, 72 U. S. 377 Woods v. Wilder, 43 N. Y. Rep. 164 Scholfield v. Eichelberger, 32 U. S. 586; Burbank v. Conrad, 96 U. S. 291. (2) Wools ey on int. Lav, 6th ed., Sec. 183. (3) Vol. 16, page 1146, 2d. ed., Am. & Eng. Enc (4) 7 Cranch (U.S.) 542. (5) 12 U. S. 347. (6) 12 U. S. 371. (7) 52 U. S. 60. (8) 72 U. (9) 78 U. S. 306. s. 408. l&) 212 U . S . 309. (10) Blanck v . Fausch, 113 111. 60; Walsh v. Lallande, 25 La. Ann. 188 Lyons v. Cunningham, 66 Cal. 42; State v. Fairlamb, 121 Mo. 150; 3 Am. & Eng. Ency. of Law (1st ed.) 242; 2353 » • -.7- (11) United States v. Villato, 2 Dali (Pa) 373. Thurlo/ v. Conn. 5 How (U.S.) 504, Smith v. Turner, 7 How (U.S.) 283, Minneapolis v Reum 12 U. S. App. 446. (12) U. S. Revised Statutes, 2165 (13) Spratt v. Spratt, 4 Pat (14) Revised Statutes 2165. (15) Revised Statutes 2166, 2167. (16) Revised Statutes 2165, subdivision 24 (17) Stark v. Chesapeake Ins. Co. 7 Cranch, (U S Spratt v Spratt, 4 Pst. (US.) 406, The Acorn, 2 Abb (U S.) 434. (18) Hamilton v. Dillm, 88 U. S. 73. Burbank v. Conrad, 96 U S. 291. (19) Hamilton v. Dillin, 88 U. S. 87. 5-14-17 ( U S ) 393, 420,
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