I am of opinion that both questions are to be answered in the negative. The provisions of said decree relate exclusively to citizenship under the Government of Spain. They declare the willingness of that Government to confer citizenship on certain classes of individuals, provided such individuals follow a certain procedure whereby would be evidenced the desire of such individuals to accept such citizenship. No attempt is made to force Spanish citizenship upon any person unwilling to

assume it.

Apparently the decree goes no further than to declare that the provisions of articles 19, 21, and 23 of the civil code of Spain are applicable to the cases of former citizens of Spain whose citizenship and appurtenant rights were affected by the treaty of Paris.

Said articles are as follows (Laws of Cuba, Porto Rico, and the Philippines, vol. 1, War Dept. Trans.):

ART. 19. The children of a foreigner born in Spanish possessions must state, within the year following their majority or emancipation, whether they desire to enjoy the citizenship of Spaniards granted them by article 17.

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ART. 21. A Spaniard who loses his citizenship by acquiring the nationality of a foreign country can recover it upon returning to the Kingdom by declaring to the official in charge of the civil registry of the domicile which he elects that such is his wish, in order that the proper entry may be made, and by renouncing the protection of the flag of said country.

ART. 23. Any Spaniard who loses his citizenship by accepting employment from any other government, or by entering the armed service of a foreign power without the King's permission, can not recover the Spanish nationality without previously obtaining the royal authorization.

The civil code of Spain, including these articles, has been in force in the Spanish Peninsula since May, 1888, and was extended to Cuba, Porto Rico, and the Philippines by decree dated July 31, 1889. The existence and enforcement of said provision of said law of Spain have been acquiesced in by the United States, without challenge, during the period indicated, and at the present time is not objected to when applied to individual residents or citizens of the States of the Union who for any reason desire to be reinstated in Spanish citizenship.

This decree does not ordain new laws nor provide new tests or procedure. It simply declares the willingness of Spain to treat its former subjects in the territories ceded or relinquished in the treaty of Paris in the same way it does its former subjects in other portions of the globe.

In adopting said provisions of said civil code Spain asserts a right which the United States has always contended belonged to each member of the family of nations. From its inception this Government has insisted that the right of a man to confer his permanent allegiance upon a sovereign was a natural right in the exercise of which the man was a free agent. This right of expatriation was the subject of an

elaborate opinion by Attorney-General Cushing in 1856. Therein he said:

The doctrine of absolute and perpetual allegiance, the root of the denial of any right of emigration, is inadmissible in the United States. It was a matter involved in and settled for us by the Revolution, which founded the American Union. (8 Op. Atty. Gen., p. 139. See also 9 Op. Atty. Gen., p. 356; Atty. Gen. Black.)

The right of expatriation was declared by Congress to be a natural and inherent one, in this country, by act of July 27, 1868. (15 Stat. L., p. 223, chap. 249; secs. 1999, 2000, U. S. Rev. Stats.)

The existence of the right of expatriation establishes the correlative right of the sovereign to accept the proffer of allegiance.

The United States is equally committed to the doctrine that an independent state may tender citizenship to any or all persons upon such terms and conditions as it sees fit to adopt, and, in so doing, is not accountable to any other state.

The United States in negotiating and entering into the treaty of Paris did not attempt to limit or prohibit the exercise of said rights by the inhabitants of the territories ceded or relinquished. The treaty provides as follows (Art. IX):

Spanish subjects, natives of the Peninsula residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to other foreigners. In case they remain in the territory they may preserve their allegiance, to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside.

The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress.

Ordinarily, treaties ceding territory contain stipulations intended to protect the civil and political rights of the inhabitants or to afford guaranty of present or prospective citizenship under the new government. But in entering into the treaty of Paris (1898) Spain did not insist upon such guaranties, and willingly committed the inhabitants of the territories ceded and relinquished to the justice and generosity of the sovereign people of the United States. Hence the provision:

The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress.

The United States recognized the right of said inhabitants to continue in allegiance to the Crown of Spain or to confer their permanent allegiance upon the United States. It therefore became necessary to adopt a test or rule of evidence whereby might be ascertained which

course the individual inhabitants had elected to pursue. Hence the provisions of Article IX of the treaty:

In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside.

This provision of the treaty simply declares the ordinary rule that allegiance is presumed from the fact of residence in the country and participation in the protection and other benefits of organized government. In regard to this rule Halleck says:

The transfer of territory establishes its inhabitants in such a position toward the new sovereignty that they may elect to become, or not to become, its subjects. Their obligations to the former government are canceled, and they may or may not become the subjects of the new government, according to their own choice. If they remain in the territory after this transfer, they are deemed to have elected to become its subjects, and thus have consented to the transfer of their allegiance to the new sovereignty. If they leave, sine animo revertendi, they are deemed to have elected to continue aliens to the new sovereignty. The status of the inhabitants of the conquered and transferred territory is thus determined by their own acts. This rule is the most just, reasonable, and convenient which could be adopted. It is reasonable on the part of the conqueror, who is entitled to know who become his subjects and who prefer to continue aliens; it is very convenient for those who wish to become the subjects of the new state, and is not unjust toward those who determine not to become its subjects. According to this rule, domicile, as understood and defined in public law, determines the question of transfer of allegiance, or rather, is the rule of evidence by which that question is to be decided. () (Halleck's Int. Law, vol. 2, sec. 7, p. 475, 3d ed.)

Allegiance," as heretofore used in this report, means the absolute and permanent obligation such as the citizen owes to his government until relieved therefrom by his own act or that of the government. But an alien, domiciled in any country, owes a temporary allegiance to the government of that country, continuing during such residence. (Carlisle. United States, 16 Wall., 147, 154.)

Local or actual allegiance is that which is due from an alien while resident in a country in return for the protection afforded by the government. (Kent's Com., vol. 2, p. 42.)

The inhabitants of the territories ceded or relinquished by Spain in the treaty of Paris, so long as they remain in said territories, are required to yield such temporary allegiance without regard to their citizenship.

The foregoing report being submitted to the Acting Secretary of War was by him transmitted to the State Department with the following communication:

JUNE 24, 1901.

SIR: I have the honor to acknowledge receipt of communication from the Hon. David J. Hill, Acting Secretary of State, dated June 12, 1901, inclosing copy of a dispatch from the United States minister to Spain, forwarding a copy of the royal decree concerra hange of citizenship under the treaty of Paris (1898).

In said letter the Acting Secretary of State says: "Some of the articles of this decree do not appear to be in harmony with the stipulations of the treaty, but the apparent conflict is probably intended to be saved by the provisions of Article V." The doubt suggested by the foregoing caused the matter to be referred to the law officer of the Division of Insular Affairs, War Department, for examination and report. A copy of that officer's report is herewith transmitted. I am inclined to agree with the view taken therein. I should be pleased to have an expression of your views on the matter, as it will be necessary to advise the military governments what course they are to pursue with reference to the matters dealt with in said decree. Very respectfully,

The SECRETARY OF STATE,

WM. CARY SANGER,

Acting Secretary of War.

The State Department concurred in the views expressed in the report, and thereupon the War Department advised the government of the Philippines and the government of Cuba as follows:

JULY 16, 1901.

SIR: I have the honor to transmit copy of the royal decree of Spain, dated May 11, 1901, which said decree declares the terms and conditions under which Spain is willing to accept a renewal of allegiance to it by certain individual inhabitants of the territories acquired by the United States as a result of the Spanish-American war, and to reinstate such individuals in Spanish citizenship.

Upon examination this Department was of opinion that said decree did not infringe upon the rights of the United States in the matters dealt with, nor violate the provisions of the treaty of peace. This view was communicated to the State Department with request for the opinion of that Department, and in response thereto the Acting Secretary of State says:

"The Department thinks there is nothing in the Spanish decree to which this Government can properly object." (State Department's letter of July 3, 1901., I transmit copy of correspondence with State Department and the report of the law officer, Division of Insular Affairs, War Department.

Very respectfully,

Hon. WILLIAM H. TAFT,

Civil Governor of the Philippine Islands.

WM. CARY SANGER,

Acting Secretary of War.

IN RE CLAIM OF THE MANILA RAILWAY COMPANY, LIMITED, FOR PAYMENT BY THE UNITED STATES OF INTEREST ON THE CAPITAL INVESTED IN THE RAILWAY OWNED AND OPERATED BY SAID COMPANY, PURSUANT TO GUARANTY OF SAID INTEREST BY THE SPANISH GOVERNMENT."

[Submitted December 21, 1899. Case No. 849, Division of Insular Affairs, War Department.] [Printed as War Department publication by order of the Secretary of War.] SYNOPSIS.

1. The funds of the United States subject to the orders of the War Department are not available for the payment of claims based upon obligations of the Government of Spain, even though it were conceded that the United States had assumed said obligations or otherwise become liable thereon.

"See opinion of Attorney-General Griggs, July 26, 1900. 13635-02-12

7. The gratuity of tra Bogd uit Government evideo ed by the provisions of the Concesion to the M... Way opany is at a den upon the island of

Luzon

A

8 The revence now being acted by the provisional government of the Philippine. Telande are not burdened with a trust in favor of the Manila Railway Company to secure the performatice of the contract obligations of the Government of jaun

Stic: In response to your request I have the honor to submit the following report on re claim of the Manila Railway Company, Limited, for payment by the United States of interest on the capital invested in the railway owned and operated by said company, pursuant to guarantee of said interest by the Spanish Government.

The fact out of which the claim arises are as follows: The Manila