any property not already the subject matter of a demand. Had he issued demands at this time he would have acquired nothing. His act would have been nullity. He simply agreed to do that which under the law he was bound to do.

"He waived no right he was not compelled to waive by law".

The Alien Property Custodian is evidently referring to the fact that his right to make further seizures of enemy property terminated on July 2nd, 1921. In these circumstances, it is clear that any assistance which the Alien Property Custodian may thereafter have rendered to the Public Trustee by informing American Corporations that he (the Alien Property Custodian) made no claim to various securities then in the hands of the Public Trustee (which the Public Trustee desired to have transferred on the books of the Corporations) was a matter purely of voluntary courtesy and was not required by the actual terms of the correspondence.

In point of fact the various Corporations, whether so requested or not, refused not unnaturally to enter the Public Trustee upon their registers unless and until he had established in the Supreme Court of the United States his legal right to be registered.

(2) It is stated in the State Department's memorandum that the Alien Property Custodian handed over to the Public Trustee certificates issued by a British Corporation where demand for the stock had been made by the Public Trustee on the Company. The Administrator of German Property has been unable to trace the delivery by the Alien Property Custodian to the Public Trustee of the certificates relating to any stock or shares in British Corporations which had been seized by both Custodians. In this connexion, it may be pointed out that the certificates of registered stock or shares issued by British Corporations differ from those issued by American Corporations in that they contain no endorsement of a transfer, and thus, unlike those of American Corporations, confer no title upon and are of no value to the person into whose possession they may come.

Moreover, even if there were any shares in British Corporations claimed by the Alien Property Custodian as well as by the Public Trustee, the seizure by the British Custodian would, owing to the fact of the earlier entry of Great Britain into the war, have been prior to the claim of the Alien Property Custodian. The legal right of the British Government to priority with respect to such securities was therefore quite clear and this principle has been expressly recognised in the present claim by the Public Trustee, who has refrained from making any claim to American securities which had been seized by the Alien Property Custodian prior to the seizure of the certificates by the Public Trustee. The delivery by the Alien Property Custodian of securities to which he had no title, even if effected, could, therefore,

have constituted no consideration for the delivery by the British Public Trustee of securities to which he had a legal title and which he was therefore under no obligation to surrender.

(3) Reference is made in the memorandum of the State Department to the suit now pending in Canada between the Alien Property Custodian of the United States and the Canadian Custodian, in which the situation presented in the action brought by the Public Trustee is, it is alleged, reversed, the Canadian Custodian claiming title by virtue of vesting orders to securities of Canadian corporations as against the American Alien Property Custodian, who has seized the certificates situated in the United States. The memorandum claims that the contentions of the Canadian Custodian are diametrically opposed to those of the Public Trustee. Such a claim appears to overlook the fact that this argument is equally applicable to the Alien Property Custodian, as the contentions of the Alien Property Custodian, vis-a-vis the Public Trustee, are diametrically opposed to his contentions in the case which he has instituted in the Canadian Courts. This fact only throws into stronger relief the desirability of securing a definitive legal decision on these difficult and highly abstruse questions of jurisprudence. It may be remarked here, however, that there is one not unimportant difference between the position in the Canadian case and that in the case brought by the Public Trustee. In the memorandum of the State Department it is stated that Mr. Swain agreed that, where the Public Trustee held certificates of stock and the Alien Property Custodian had demanded of the companies the right, title and interest in the shares represented thereby, the Public Trustee should forward such certificates to the Alien Property Custodian "for his use and benefit.” So long as the Government of the United States were holding all German property as security for the claims of United States nationals against Germany, His Majesty's Government might have felt impelled to permit the situation to stand, however mistakenly created and however unevenly it may have operated against British interests. The United States Government have, however, been directed by Congress to return the proceeds in question to German nationals, and His Majesty's Government, therefore, now find themselves in the position of having, under a mistake as to their title, delivered the possession of the securities for the ultimate benefit of German nationals and not "for the use and benefit of" the Alien Property Custodian. No parallel situation exists in the case of the Canadian securities, for these are claimed by the Canadian Custodian as subject to the charge imposed pursuant to the Treaty of Versailles, and there is no question of the property being claimed with a view to its ultimate release to German nationals.

In the action which he has taken, the Public Trustee is merely exercising the same right which might be exercised by a citizen of the United States or by certain classes of neutrals who desired to claim

that some particular property, which was in the physical possession of the Alien Property Custodian, was not, in fact, enemy property. The whole procedure under the American Trading with the Enemy Acts was based upon the theory that the Alien Property Custodian was entitled to possession of anything that he might see fit to demand, but that all questions of title were reserved for the ultimate determination of the Court upon the application of any interested party.

In the circumstances referred to above, the Public Trustee delivered certain securities to the Alien Property Custodian, who does not appear to have given any legal consideration for or to have changed his position in any way by reason of such delivery. The decision of the United States Supreme Court in the case of Direction der Disconto Gesellschaft versus United States Steel Corporation, Public Trustee, et al indicates that a large part of the securities so delivered were not enemy owned at the time when the Alien Property Custodian made claim to them, or even at the time when the United States entered the war. The Public Trustee has accordingly brought a suit for the purpose of determining which securities or which categories of securities had been divested of all enemy character, either before the entry of the United States into the war or before the enactment of the American Trading with the Enemy legislation or before the American Custodian, in fact, made any claim. The submission of these questions to the American Court especially charged by the Trading with the Enemy Act with the function of determining all questions of title under that Act cannot, in the view of His Majesty's Government, be properly regarded as departing in any way from any agreement or understanding existing between the two governments. His Majesty's Government have given the matter most careful consideration but, for the reasons explained above, they regret that they do not see their way to instruct the Public Trustee to discontinue the Court actions. WASHINGTON, October 30, 1928.

PROPOSALS TO EUROPEAN COUNTRIES FOR AGREEMENTS AND TREATIES REGARDING NATURALIZATION, DUAL NATIONALITY, AND MILITARY SERVICE

711.004/9

The Secretary of State to the Honorable Stephen G. Porter 45

WASHINGTON, March 1, 1928. MY DEAR MR. PORTER: I have received your letter of February 23 46 enclosing a copy of H. J. Res. 195, introduced by Mr. Kelly on February

Chairman of the Committee on Immigration and Naturalization of the House of Representatives.

40 Not printed.

7, and asking for a report or recommendation of the Department concerning the same. The Resolution in question provides as follows:

"That the President be, and he is hereby, authorized and requested to at once begin negotiations looking to agreements and treaties with the other nations that persons born in the United States of foreign parentage, and naturalized American citizens of foreign birth, who have possessed certificates of citizenship for more than five years, shall not be held liable for military service or any other act of allegiance during a stay not exceeding one year in duration in the territory subject to the jurisdiction of such nations."

It seems desirable to consider separately the cases of persons of foreign birth who have acquired citizenship of the United States through naturalization and persons who are born in the United States of alien parents and who claim citizenship of the United States under the provision of the Fourteenth Amendment to the Constitution.

As to the cases of naturalized citizens attention is called to the fact that there are at present valid treaties of naturalization between the United States and certain foreign countries, under which the latter have agreed to recognize the American nationality of their former nationals who have obtained naturalization in this country. Under the provisions of these treaties it is possible for naturalized American citizens to visit their countries temporarily without molestation, although they may be punished for offenses committed before their emigration. Most of these treaties, however, contain provisions to the effect that, if a naturalized citizen resumes residence of a permanent character in the country of his origin, he shall be deemed to have abandoned his naturalization.

The countries with which the United States has treaties of naturalization are as follows: Belgium, Denmark, Great Britain, Sweden, Norway, Haiti, Portugal, Honduras, Peru, Salvador, Uruguay, Nicaragua, Costa Rica, Brazil and Bulgaria. The United States is also a party to the Pan American Convention of 1906 concerning the status of naturalized citizens who again take up their residence in the country of their origin," which has also been adhered to by Ecuador, Paraguay, Colombia, Honduras, Panama, Peru, Salvador, Costa Rica, Mexico, Guatemala, Uruguay, the Argentine Republic, Nicaragua, Brazil and Chile. This Convention is similar in substance to the provisions contained in the naturalization treaties mentioned above concerning the status of naturalized citizens who resume residence of a permanent character in the countries of their origin. The United States formerly had treaties of naturalization with the German States and AustriaHungary, which treaties were terminated as a result of the World War. However, the United States, under provisions in the Treaties of Peace with Germany, Austria and Hungary, is entitled to the advantage of

"Signed at Rio de Janeiro, Aug. 13, 1906; Foreign Relations, 1913, p. 1352.

the provisions contained in the Treaties of Versailles, St. Germain and Trianon, under which Germany, Austria and Hungary agreed to recognize the naturalization of their former nationals under the laws of the Allied and Associated Powers.

48

Since the close of the World War the Government of the United States has endeavored to conclude naturalization treaties with a number of European countries, but so far has succeeded in concluding such a treaty only with Bulgaria. Efforts in this direction will be continued. As the principal complaints on account of impressment into the military service of foreign countries in cases of persons naturalized in this country have been received from persons of Italian and French origin, special efforts have been made to procure naturalization treaties with Italy and France.

It is the opinion of this Department that it would not be advisable to enter into agreements of the kind proposed in the Resolution concerning naturalized citizens, since an agreement to the effect that such persons might visit their countries of origin for a period of one year without molestation under the military service laws would seem to carry an inference that they could properly be regarded as having retained their original allegiance and that they could be compelled to perform military service after a stay of more than one year in their countries of origin. This would seem contrary to the principle of the right of expatriation as declared by Congress in the Joint Resolution of July 27, 1868, and subsequently embodied in Sections 2000-2001, inclusive, of the Revised Statutes.

As to the provision in the Joint Resolution concerning persons born in the United States of foreign parentage, it may be observed that, while such persons are citizens of the United States under the provision of the Fourteenth Amendment to the Constitution, they may also be regarded as citizens of the countries of their parents' nationality under the laws thereof, thus having dual nationality. It is obvious that the United States is not in a position to deny the right of the foreign countries concerned to claim such persons as their nationals, in view of the fact that persons born abroad of American fathers may be claimed by this country as American nationals under the provision of Section 1993 of the Revised Statutes.

The Department's attention is daily called to numbers of cases in which persons born in the United States of foreign parentage are impressed into the military service of the countries of their parents' nationality. The greatest number of cases of this kind are those of persons of Italian parentage, although many cases of the same kind relate to persons of Polish, Czechoslovak, Greek, Portuguese, French, Turkish and Yugoslav parentage. It has been estimated that between three and four thousand cases of the kind mentioned are

48 Treaty of Nov. 23, 1923; Foreign Relations, 1923, vol. I, p. 464.