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jurisdiction of a nation, ought to dissolve the allegiance of the banished person thereto, for the period during which the sentence is actually carried into effect, because by banishment the sovereign withdraws his protection, and ought to give up the correlative allegiance.
But to the contrary, see 1 Phillimore's Intern. Law, 349.
Moreover, if the right of expatriation is recognized, as proposed in this Chapter, the exile can dissolve his allegiance by acquiring another nationality.
Renewal of allegiance.
263. Allegiance is revived by the voluntary return of the person to the territorial limits of his former country, and there acquiring a domicil, before natural. ization elsewhere.
SECTION (I I.
ARTICLE 264. Expatriation" defined.
Expatriation" defined. 264. Expatriation is the act of abandoning the territory of the nation of which the person is a member, with intent to become naturalized elsewhere.
265. The intent mentioned in the last article may be formed at the time of the abandonment or afterwards, and may be proved like any other similar fact.
Expatriation a right.
266. Subject to the laws defining civil incapacities depending upon age, mental condition, personal domestic relations, and public service, . every member of a nation, however his national character may have been acquired, has the right of expatriation, which cannot be impaired or denied.
No person is punishable for the act of expatriation, “not even though at a later day he should have lost his adopted citizenship.” Protocol Bavarian Treaty, May 26, 1868, II., 1, 15 U. 8. Statutes at Large, (Tr.,) 149.
The nation of which a person has become a member by naturalization, is bound to allow his subsequent naturalization elsewhere, and to retain him as one of its members until such subsequent naturalization. Protocol Bavarian Treaty, May 26, 1868, III., 2, 15 U. S. Stat. at L., (Tr.,) 149.
Effect of expatriation.
267. Expatriation does not change the national character of the person until completed by naturalization, but meantime he is entitled to be protected by the country whose naturalization he is seeking.
By the treaties of the United States with Prussia and Bavaria, 1868, ¡15 U. 8. Stat. at L., 115, 147,) an exception is made to this rule in the case of a naturalized citizen returning to the nation of his origin. Those treaties in effect provide that where an emigrant who has been naturalized abroad returns to his native country with intent to remain there, his naturalization in his adopted country cannot prevent him from regaining his former citizenship. If he renews his residence in his original country without the intent to return to the former, he shall be held to have renounced his naturalization; and the intent of a naturalized citizen, who has renewed his residence in his original country, may be held to exist when the person naturalized in the one country resides more than two years in the other country.
ARTICLE 268. “Naturalization " defined.
269. Naturalization not obligatory.
268. Naturalization is the act by which membership in one nation, however acquired, is renounced, and merobership in another is assumed.'
Neither the acceptance by a foreigner of the rights and duties of a member of a nation, under article
248, nor the declaration of intention to acquire a new national character, constitutes naturalization, within the meaning of this Section.
This form of expression is used so as clearly to include a re-adoption of the native or other prior national character after naturalization else. where; sometimes styled “repatriation ; e. g., by Lord STANLEY, Annual Register, (N. S.,) 1869, p. 133. * Treaty between the United States and
Baden, July 19, 1868, Art. I., U. S. Cons. Reg., (1870,) T 718. Naturalization not obligatory.
269. Each nation is to judge for itself whom it will receive into naturalization.
Protocol Bavarian Treaty, III., 2, 15 U. 8. Stat. at L., (Tr.,) 149.
By Article III. of the convention between the United States and Great Britain, May 13, 1870, (U. S. Cons. Reg., (1870) T 738,) the re-admission to the character of a citizen of the United States of one who desires to renounce a naturalization in Great Britain is dependent “on such conditions as that government may think fit to impose.”
Effect of naturalization.
270. A person naturalized according to the provisions of this Section, becomes immediately a member of the nation by which the paturalization is conferred, but he must, within a reasonable time thereafter, send a copy of the record of naturalization to a public minister or consul of the nation to which he previously belonged, resident in the territory of the nation which thus adopts him. Till this is done, the nation or sovereign which he has left may reclaim him.
This condition is new. It is proposed in order to prevent the practice of obtaining a naturalization, and subsequently attempting to enjoy the privileges of the previous national character. This fraud is stated to have greatly increased of late. U. 8. Consular Regulations, (1870,) [ 110.
Absentees cannot be naturalized.
271. No person can be naturalized who is not at the time actually within the territorial limits of the nation by which he is naturalized.' But this article does not apply to a person whose last allegiance is extinguished pursuant to the second subdivision of article 262.
1“ The Naturalization Act, 1870,” (33 Vict., c. 14,) $ 6, makes the actual presence of the party within the territory of the nation naturalizing him, an essential requisite.
See an analogous provision as to length of residence in the Protocol of Bavarian Treaty, May 26, 1868, I., 1, 15 U. S. Statutes at Large, (Tr.,)149.
See, also, Fish v. Stoughton, 2 Johnson's Cases, (New York.) 407.
Liability to justice on return.
272. A naturalized person, who voluntarily returns within the territorial limits of the nation of which he was a member before his naturalization, remains liable to trial and punishment for an act punishable by its laws, and committed before his expatriation. But this article does not apply to a case where, by the laws of such nation, the liability is extinguished by limitation or otherwise.
Treaties between the United States and Bavaria, and Prussia, above.
CHAPTER X X.
NATIONAL CHARACTER OF SHIPPING.
In Commercial treaties, by which some of the privileges of domestic vessels are granted by each party to those of the other contracting power, it has been found important to prescribe a definite rule as to what shall constitute or prove national character. The importance of such a definite rule, agreed to by all nations, is enhanced by a consideration of the other questions which turn on the National Character of Shipping ; such as jurisdiction, civil and criminal, over persons and transactions on slipboard ; see Articles 309, 210, 241 and 243; such also, as allegiance of persons born on shipboard ; see Article 251 ; such, also, as the authority of consuls in reference to wrecks; see Chapter XXVII., entitled WRECKS.
As before explained, National Character is used in this Code, as in the commercial treaties, in its proper sense, with reference to Allegiance and Jurisdiction. The condition upon which hostile character depends, in the case of war, which is often called national character, without, however, necessarily implying anything more than a temporary identification with or service of the enemy, are proper subjects for the provisions of the Book on WAR.
Ortolan, (Régles Int. et Dipl. de la Mer, vol. 1, p. 166, &c..) classifies the conditions of nationality, in the commercial laws of all countries, under
four points: 1. Construction or Origin ; 2. Ownership; 3. Master; and 4. Crew,
The tests prescribed by the commercial treaties are various. They may be sufficiently indicated as follows:
By some treaties the national character of its ships is determined by each nation for itself, and will be accordingly recognized by the other nations. Of this class are the following: Treaty between the United States and The Two) Sicilies; }
Oct. 1, 1855, Art. IX., 11 U. 8. Stat. at L., 639.
Confed. July 27, 1853, VI., 10 Id., (Tr.,) 237.
eration, Some earlier treaties limit the privileges of national vessels to those built within the nation's territories, or lawfully condemned as prizes, or adjudged forfeited for breach of municipal laws, and belonging wholly to citizens of the nation.
Several treaties prescribe that a vessel belonging exclusively to one or more citizens of one nation, and whose captain is also a citizen of the same, such having also complied with all the other requisites established by law to acquire a national character, thovgh the construction and crew be foreign, shall be considered a vessel of such nation.
Of this class are the following treati98:
Aug. 27, 1860, Art. VIII., 12 U.S. Stat. at L.,1148.
June 13, 1839, V., 8 Id., 534
July 26, 1851, XI, 10 la., (Tr.,) 2.
May 13, 1858, V., 12 Id., 1003. Dominican Republic, Feb. 8, 1867, VIII., 15 Id., (Tr.,) 167. The treaty between France and Honduras, Feb. 22, 1856, Art. XIII., (7 De Clercq, 10,) and others, substantially similar, provide that vessels shall be considered as having the national character, which were con. structed in the nation, or, having been captured by its forces from an enemy, have been adjudged lawful prizes, or which have been condemned by its tribunals for violation of law; provided, however, that the owners, the master, and three-quarters (half] the crew, be of that nationality. Every such vessel, however, to be furnished with a passport, &c.
The English Shipping Act gives the privileges of national character only to ships wholly owned by its citizens. See Abbott on Shipping, 50 ; Regina 0. Arnaud, 9 Queen's Bench Rep., 817.
In determining the foreign or domestic character of a ship, for the purpose of ascertaining whether it is judicially subject to a maritime lien, the American courts inquire for the residence of the owners, and the enrollment is only prima facie evidence of their residence. Hill v. The Golden Gate, 6 American Lau Register, 273, 302.
Charterers having, by the terms of the charter party, exclusive control, are dermed owners within this rule. Ib.