not be a German national. Neither the British Nationality and Status of Aliens Act, 1918, nor the Aliens Restriction (Amendment) Act, 1919, threw light on the question.

The definition of "former enemy alien" in section 15 of the latter Act, which was passed on December 23, 1919, after the Treaty of Peace had been signed, but before it came into force, might include denationalized Germans. It was not surprising that authority could not be found, as the question was seldom of importance, but it would appear that a "stateless person" might be an alien, and he (his Lordship) held that a "stateless person" was not unknown to English law. Whether a person was a national of any country must be decided by the municipal law of that country. It might be said that a person was to be "deemed to be" or "treated as" a national of another country, but he could not be made such a national. By German law the plain. tiff was not a German national and he could not be made one by English law. He would make a declaration that the plaintiff was not a German national within the Treaty of Peace Order, 1919, or within the sections of the Treaty of Peace that were set out in the schedule to the Order. As the plaintiff had failed in one part of his claim and succeeded in the other there would be no order as to costs.

In re CHAMBERLAIN'S SETTLEMENT.
(Chancery Division, 1921. 37 Times L. Rep. 966.)

See post, p. 478, for a report of the case.

FASBENDER v. ATTORNEY GENERAL.

(Chancery Division, 1921. 38 Times L. Rep. 114.)

See post, p. 480, for a report of the case.

CASE OF LUCIAN ALIBERT.

(Superior Military Court at Toulon, 1852. Foreign Relations of the United States, 1873, Part 1, vol. 2, p. 1301.)

Alibert was a native of Digne, Basses Alpes. He went to the United States in 1838, at the age of 18, and, after going through the usual formalities, was naturalized in 1846. In 1852 he returned to France and was arrested while on a visit to Dignes as an "insoumis" of 1839, and pleaded his naturalization as exempting him from service. The United States consul at Marseilles applied to the general commanding the district, who informed him that Alibert's claim was founded in right, if his naturalization was really dated in 1846, as his naturalization would incapacitate him from serving in the French army, and the date of it would prove that more than three years had elapsed since the offense was committed, (that being the period of limitation required by the penal code,) and that he could not consequently be proceeded against for insubordination. Nevertheless Alibert was brought before a "conseil de guerre" at Marseilles, and condemned to a month's imprisonment.

The cause was then brought by appeal before a superior military court at Toulon, and the sentence quashed, thereby establishing Alibert's immunity from conscription.15

15 "Article 17. The following lose their French nationality:

"1. A Frenchman naturalized in a foreign country or who acquires foreign nationality at his own request by the effect of the law.

"If he is still subject to the obligations of military service in the active army, his naturalization abroad will not work a loss of his French nationality unless it has been authorized by the French Government." Article 17, Law of Nationality of June 26, 1889. Report on the subject of Citizenship, Expatriation, and Protection Abroad, Document 326, H. R. 59th Congress, 2d Session, 1906, p. 318.

The subject or citizen owes permanent allegiance to his country, and, in return, his country owes protection. Allegiance and protection are correlative. While the government of a country should protect its subjects or citizens in all quarters of the globe, great difficulty is often experienced in securing to naturalized subjects or citizens protection which would be accorded as of right to the native born. This is especially the case with naturalized subjects or citizens upon their return to their country of origin. Some leading cases of this kind are stated in the following note:

Hausding's Case (1885), in which it was held that children born in the United States of alien parents, and never dwelling in the United States, are not citizens thereof (3 Moore's Digest, 278); Emden's Case (1885) held that children born abroad of citizens of the United States, and continuing to reside abroad, are not citizens thereof unless they elect to become such on coming of age (3 Moore's Digest, 466); and in A Prussian Subject's Case (1875), it was held by the Attorney General that under the treaty of 1868 between the United States and the North German Confederation, a Prussian by birth, naturalized in the United States, is presumed to have renounced his American citizenship if he returns to Prussia, and resides there two years (3 Moore's Digest, 539).

In the United States there are two classes, native and naturalized citizens. These possess equal rights under the law, Osborn v. U. S. Bank, 9 Wheat. 738, 827, 6 L. Ed. 204 (1824), but by the Constitution only the native-born are eligible to the presidency and vice-presidency. "It seems to have grown into a rule," says Attorney General Bradford, in 1794, "that a nation ought not to interfere in the causes of its citizens brought before foreign tribunals, excepting in the case of a refusal of justice-palpable and evident injustice-or a violation of rules and forms," and in Murray v. Charming Betsy, 2 Cr. 64, 120 (1804), Chief Justice Marshall says: "The American citizen who goes into a foreign country, although he owes local and temporary allegiance to that country, is yet, if he performs no other act changing his condition, entitled to the protection of his own government; and if, without the violation of any municipal law, he should be oppressed unjustly, he would have a right to claim that protection, and the interposition of the American Government in his favor would be considered as a justifiable interposition. But his situation is completely changed where, by his own act, he has made himself the subject of a foreign power."

After speaking of the protection the citizen enjoys in the United States, Mr. Justice Miller says: "Another privilege of a citizen of the United States is to demand the care and protection of the federal government over his life, liberty and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States." Slaughter House Cases, 16 Wall. 36, 79, 21 L. Ed. 394 (1872). See, also, the case of The Leghorn Seizures, 27 Ct. of Cl. 224, 235, 236, 241 (1892). And in De Bode v. Reg., 3 H. L. C. 449, 465 (1851), Lord Chancellor Truro held: "It is admitted law that if the subject of a country is spoliated by a foreign government he is entitled to obtain redress from the foreign government through the means of his own government. But if, from weakness, timidity, or any other cause on the part of his own government, no redress is obtained from the foreigner, then he has a claim against his own country."

The alien, as well as his property, enjoys an equal protection before the

law; for the temporary allegiance which he owes demands in return protection from the government. To what extent this protection is enjoyed the above cases show. If the alien temporarily or permanently residing in foreign parts is not reciprocally well treated, the government whose citizens are injured may expel or place under corresponding disability citizens of the offending nation within its limits, or it may demand through diplomatic channels their protection. In case of the native-born, this is a perfect right; in case of naturalized citizens the right is perfect as against third parties. but imperfect as against the mother country, while in cases of mere “declaration of intention" and incomplete naturalization the claim is of the slightest. The following cases will perhaps serve to make this clear:

Wagner's Case, 1883 (3 Moore's Digest, 627), to the effect that a foreign minor who emigrates to and becomes naturalized in the United States, may on returning to his original state be forced to perform military service due at time of his original departure, but that it would be highly unreasonable to exact the performance of a service or duty non-existent or inchoate at the time of his emigration.

Koszta's Case, 1853 (Cockburn's Nationality, 118), was one of imperfect naturalization, in that the claimant had merely declared his intention to become a citizen, but had not as yet fully complied with final requirements of the law. It appears that he was a Hungarian refugee of 1848-49; that he was domiciled in the United States; that he had previously declared his intention to become an American citizen; that he was temporarily absent from the United States; that he was furnished with a consular traveling pass, stating that he was entitled to American protection.

The subsequent proceedings are thus described by Mr. Justice Miller, in Re Neagle, 135 U. S. 1, 64, 10 Sup. Ct. 658, 34 L. Ed. 55 (1890): "One of the most remarkable episodes in the history of our foreign relations, and which has become an attractive historical incident, is the case of Martin Koszta, a native of Hungary, who, though not fully a naturalized citizen of the United States, had in due form of law made his declaration of intention to become a citizen. While in Smyrna he was seized by command of the Austrian consul-general at that place and carried on board the Hussar, an Austrian vessel, where he was held in close confinement. Captain Ingraham, in command of the American sloop of war St. Louis, arriving in port at that critical period, and ascertaining that Koszta had with him his naturalization papers, demanded his surrender to him, and was compelled to train his guns upon the Austrian vessel before his demands were complied with. It was, however, to prevent bloodshed, agreed that Koszta should be placed in the hands of the French consul, subject to the result of diplomatic negotiations between Austria and the United States. The celebrated correspondence between Mr. Marcy, Secretary of State, and Chevalier Hülsemann, the Austrian minister [chargé d'affaires] at Washington, which arose out of this affair and resulted in the release and restoration to liberty of Koszta attracted a great deal of public attention, and the position assumed by Mr. Marcy met the approval of the country and of Congress, who voted a gold medal to Captain Ingraham for his conduct in the affair." For the diplomatic correspondence between the two governments, see 2 Wharton's Digest, §§ 175, 198.

Koszta's Case excited at the time and since much unfavorable and some favorable criticism and comment, for which see Hall's Int. Law, 251-254 and Calvo, vol. II, pp. 45-47, 66, 142–145. Professor Pomeroy's position is as follows: "The discussion between the two cabinets was long and somewhat acrimonious. But I believe that Mr. Marcy conducted the correspondence with so much ability that he convinced even his opponents. Now, although Koszta's crime was a political one, I see no reason why the same doctrine would not apply to the case of any other offender. Doubtless, indeed, our government would not have exhibited as much alacrity, in case the man had been a common murderer or thief, but they certainly might have done so with the same result." International Law, 254.

*

Tousig's Case, 1854 (Lawrence's Wheaton, 1863, 929), was simple: he was an Austrian by birth who had acquired a domicile in the United States, and although unnaturalized, had been improperly furnished with an American passport. On his return to Austria he was arrested and charged with offences committed before emigrating from Austria. The difference between the two cases is sufficiently plain. Tousig voluntarily subjected himself to Austrian

CHAPTER III

TERRITORY OF STATES

SECTION I.-MODES OF ACQUISITION

I. DISCOVERY AND OCCUPATION

In re DELAGOA BAY.

GREAT BRITAIN v. PORTUGAL.

(Award of the President of the French Republic, 1875. Martens, 3 Nouveau Recueil Général de Traités [2d Series] 517.)1

We, Marie Edme Patrice Maurice de MacMahon, Duke of Magenta, Marshal of France, President of the French Republic, declare that by reason of the powers which have been conferred on the President of the French Republic as expressed in the terms of the protocol signed at Lisbon the 25th of September, 1872, by which the Government of Her Majesty the Queen of Great Britain and of Ireland and that of His Majesty the King of Portugal, have agreed to submit to the President of the French Republic, to be settled by him finally and without appeal, the controversy which has been pending since 1823 in relation to the possession of the territories of Tembe and of Maputo and of the Islands of Inyack and the Elephants situated upon Delagoa or Lorenzo Marquez Bay on the east coast of Africa;

In view of the cases submitted to the arbitrator by the counsel of the two parties on the 15th of September, 1873, and the counter cases also submitted by them the 14th and 15th of September, 1874;

In view of the letters of His Excellency the Ambassador of England and of the Minister of Portugal at Paris dated February 8, 1875;

The commission created March 10, 1873, in order to study the papers and documents respectively submitted having made known to us the result of their examination;

Whereas, the controversy which it is intended to settle by the cases submitted to the arbitrator and finally by the letters cited above of the representatives of the two parties at Paris, deals with the right to the following territories, namely:

jurisdiction; Koszta wisely kept away from the fatherland, and was apprehended by Austrian authorities in neutral territory. In Tousig's case the American Government neither should nor did offer protection; in Koszta's case it protected Koszta's "inchoate rights"-a phrase much employed by Fuller, C. J., in Boyd v. Thayer, 143 U. S. 135, 12 Sup. Ct. 375, 36 L. Ed. 103 (1891)-against violation in a neutral port. If Koszta had returned to Austria, the cases would have been on all fours.

1 See, also, 66 British and Foreign State Papers, 554.

1. The territory of Tembe, bounded on the north by the river Espirito Santo or English river, and by the river Lorenzo Marquez or Dundas, on the west by the Lebombo Mounts, on the south and east by the river Maputo and from the mouth of this river to that of the Espirito Santo by the shore of the bay of Delagoa or Lorenzo Mar

quez:

2. The territory of Maputo, in which are contained the peninsula and island of Inyack, also the Island of the Elephants, and which is bounded on the north by the shore of the Bay, on the west by the river Maputo from its mouth to the parallel 26° 30′ of south latitude, on the south by the same parallel and on the east by the sea.

Whereas, the Delagoa or Lorenzo Marquez Bay was discovered in the 16th century by Portuguese mariners and in the 17th and 18th centuries Portugal occupied several places on the north shore of this bay and upon the island of Inyack, of which the Islet of the Elephants is a dependancy;

Whereas, since its discovery, Portugal has continuously claimed rights of sovereignty over the whole of the Bay and the bordering territories, as well as the exclusive right to trade there, and furthermore, supported this claim by force of arms against the Dutch about 1732, and against the Austrians in 1781;

Whereas the acts by which Portugal has supported its claim have never given rise to any counterclaim on the part of the government of the United Provinces, and in 1782 these claims were tacitly accepted by Austria following diplomatic arrangements exchanged between that power and Portugal;

Whereas, in 1817 England herself did not dispute the right of Portugal when she concluded with the Government of His Most Faithful Majesty the Convention of July 28 for the suppression of the slave trade; and in fact the second article of this Convention should be interpreted in the sense that it designates as part of the possessions of the Crown of Portugal the whole of the Bay to which is applied indifferently either the names Delagoa or Lorenzo Marquez;

Whereas, in 1822 the Government of Her Britannic Majesty, when it delegated to Captain Owen the hydrographic survey of Delagoa Bay and of the rivers which empty therein, commended him to the good offices of the Portuguese Government;

Whereas, if the accidental weakening of Portuguese authority in this quarter had created in 1823 an error in the mind of Captain Owen and made him in good faith treat as really independent of the Crown of Portugal the native chiefs of the territories now in dispute, nevertheless the agreements concluded by him with those chiefs were no less contrary to the rights of Portugal;

Whereas, almost immediately after the sailing of the English ships, the native chiefs of Tembe and Maputo renewed their allegiance to the Portuguese officials, thereby themselves attesting that they had not had the power to enter into contracts;