(257 F.)

the Dutch border. They traveled with American passports, which had been issued to them in November, 1915, by the American ambassador in Berlin, and which before their departure from Berlin were examined and stamped by the German authorities in Berlin, both at the local police precinct, which included their residence, and at the general police headquarters in Berlin. The passports were also examined by the German military and customs authorities at the Dutch border and again upon their arrival in New York by the American authorities.

Prior to December 4, 1915, both Leo Alexander and Walter Alexander, accompanied by their father, had visited the United StatesLeo once and Walter twice; Walter being here when he was a young child of 6 or 8 years of age (about 1899 or 1901), and again when he was 10 or 12 years of age (about 1903 or 1905), staying only a short time on the first trip, of which the young men remember little or nothing, and on the second trip (when Walter Alexander came with his father, but apparently without his brother) staying for about one month, during which time they visited the father's brother Richard at his home in Kingsbridge, New York. Beyond these trips they had never been in the United States until their arrival on December 4, 1915. Their father, Otto Alexander, was born in Breslau, Germany, on October 24, 1858, and came to the United States in 1870, residing in San Francisco from 1870 to 1880 and in New York City from 1881 until 1887, when he went to Germany. On November 17, 1879, being then 21 days over 21 years of age, Otto Alexander was naturalized as a citizen of the United States in the district court of California for the Fifteenth district, covering the city and county of San Francisco, by Judge Samuel H. Dwinnell.

The fact as to naturalization of the father was satisfactorily proved. Leo Alexander impressed me as a truthful witness. Owing to the San Francisco fire, the records were destroyed in 1906, and this record of the naturalization of Alexander, Sr., was never restored, and therefore is not available to relator. Before leaving Berlin, Leo Alexander, however, copied the capiton of his father's naturalization certificate of 1879 and the clerk's certification of 1901 in a small red-covered book in evidence. These papers were kept in a safe at the Alexander home in Berlin, and it would have been practically impossible for Leo Alexander in Berlin in 1915 to know, in any other way, the name of the judge of the California court who officiated in 1879, or the names of the clerk and deputy clerk who certified in 1901. This testimony, together with other testimony, establishes beyond doubt the fact that Alexander, Sr., was naturalized in 1879, as above stated.

In December, 1888, Otto Alexander instituted in the Supreme Court of New York County an action for absolute divorce against his wife, Bertha, whom he married in Hoboken, N. J., in 1886, and a decree of absolute divorce was entered therein in his favor in April, 1889. During the pendency of this action, in February, 1889, he was in Berlin, Germany, and his testimony was taken there by a commission before the United States consul, in which he testified, among other things, that he had resided with his wife in New York City until June 26, 1888, that he left the United States on September 22, 1888, that he was

then temporarily visiting his sister at No. 15 Bluecher street, Berlin, and intended to return to America.

On October 22, 1908, Otto Alexander applied to the State Department at Washington for and obtained a passport as an American citizen, No. 63410 of that date. In his verified application he stated, among other things, that he was born in Breslau on October 24, 1858, was naturalized as a citizen of the United States in San Francisco on November 7, 1879, before the district court of California, and that for 38 years, from 1870 to 1908, he had uninterruptedly resided in the United States in San Francisco and New York; that he was domiciled in the United States, his permanent residence being in New York City; that he intended to go abroad temporarily, and intended to return to the United States within two years.

While his petition for a passport confirms the conclusion that he was naturalized in 1879, his statements as to residence and permanent residence were not correct in a physical sense, but he may have very well intended to claim New York as his domicile, as distinguished from his physical residence.

On December 22, 1882, and again on December 21, 1892, he obtained life insurance from the Equitable Life Assurance Society of the United States, and his applications therefor show his birthplace and his various domiciles between his birth and December 21, 1892.

Including his trips to the United States with his sons, above mentioned, he seems to have been here for short periods at various times, the dates of some of which cannot be definitely fixed, but including, probably, various times between 1889 and 1912. He traveled about a good deal, and had been at Algiers, South and Central America, Honolulu, and many places on the North American continent.

The first step is to determine relator's citizenship as of the date of his birth; i. e., October 23, 1893. His father subsequently might have lost his American citizenship by reason either of treaty provisions or the act of March 2, 1907; but nothing which relator's father did or did not do after that date could deprive relator of his rights. Under section 1993 of the Revised Statutes (Comp. St. § 3947) it is provided as follows:

"All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States.

Under this act, it is entirely clear that Alexander was born an American citizen if, at the time of his birth, his father was still an American citizen. Under the treaty between the United States and the North German Union of 1868 (2 Malloy's Treaties, etc., pages 1298 and 1299), by article 4 (15 Stat. 616) it is provided:

"If a German naturalized in America renews his residence in North Germany, without the intent to return to America, he shall be held to have renounced his naturalization in the United States. Reciprocally: If an American naturalized in North Germany renews his residence in the United States, without the intent to return to North Germany, he shall be held to have renounced his naturalization in North Germany. The intent not to return may be held to exist when the person naturalized in the one country resides more than two years in the other country."

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This treaty continued in force after the formation of the German Empire in 1871, and at least up to the declaration of war between the United States and Germany on April 6, 1917.

Otto Alexander was a native of Prussia, in North Germany, and thus, at the time of relator's birth, the father, Otto Alexander, had lived within the territory covered by the treaty, supra, for some three or four years. The treaty was a recognition of the right of expatriation on the part of both the United States and the North German Union. There had been a considerable amount of discussion between the United States and other countries upon this subject, and the question was definitely disposed of in the United States by Act July 27, 1868, 15 Stat. 223, c. 249; section 1999 of the United States Revised Statutes (Comp. St. § 3955) being part of this act. Its enactment followed shortly after the ratification of the treaty above referred to.

Moore, in his Digest of International Law, sets forth a number of instances and some diplomatic correspondence, which, briefly stated, demonstrates the purpose of the United States government to protect its citizens, whether American-born or naturalized, as against the acts and demands of foreign governments. Sections 2000 and 2001 of the United States Revised Statutes (Comp. St. §§ 3956, 3957), which are parts of the act of July 27, 1868, provide:

"Sec. 2000. All naturalized citizens of the United States, while in foreign countries, are entitled to and shall receive from this government the same protection of persons and property which is accorded to native-born citizens.

"Sec. 2001. Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress."

The treaty above referred to, and similar treaties with German states, are considered in section 471 of Moore's Digest, supra.

Quite a number of instances are cited where our Department of State was called upon to construe the status of some person, and the general trend of the decisions of the State Department is one of great caution in determining whether a naturalized American citizen loses his citizenship by absence from the United States and presence in the country of his birth for more than two years. In communications from Mr. Fish, Secretary of State, to Mr. Davis, the minister to Germany, dated July 30, 1875, and June 26, 1876, the position was taken that two years' residence in North Germany was merely prima facie proof of abandonment of nationality. In a communication between the same officials, dated November 5, 1875, Mr. Fish said:

"The Department has not doubted that the construction given to article 4 of the treaty by both Mr. Bancroft and yourself, viz. that a residence of two years did not of itself forfeit naturalization, but that the question of

the intent of the persons was then presented and to be decided according to the facts, was the correct one, and you are to be congratulated that a result has been reached which, if it does not concede all you have claimed as to the proper construction of this article, at least abandons a practice of enforcing the opposite construction which has been insisted on by the German military authorities."

Mr. Evarts, Secretary of State, in a communication to Mr. Williams, of the House committee on foreign relations, dated February 5, 1879, stated:

"While the intent to remain in the country of birth may be held to exist after two years' continuous residence, it is in reality not so held without special circumstances showing either an intent to remain permanently or the absence of all intent to return to the United States."

It must always be remembered that cases must be decided, if possible, on principle, and not to meet a particular situation. There can be no doubt that one of the principal issues with which the North German Union was concerned in the treaty above referred to was the eligibility of persons of German birth for military service, while, on the other hand, the American government was keen to protect its naturalized citizens against subjection to that or any other laws of the North German Union which, in any manner, invaded the rights of American citizens.

Mere residence in the place of birth, therefore, as amply appears from the face of the treaty, as well as from its practical construction, is not enough to cause loss of citizenship by a naturalized American citizen.

The facts in the case must satisfy the court that the intent not to return exists, and such result, according to Mr. Evarts, must be demonstrated by special circumstances, showing either an intent to remain. permanently or the absence of all intent to return to the United States.

In the case at bar, relator's father's second wife, the mother of relator, was German-born. It is also true that relator's father represented a German insurance company; but, on the other hand, it is apparent that his business was of a character which caused him to travel to a considerable degree in various parts of the world.

Relator's father had shown his keen desire to become a citizen of the United States by becoming naturalized within a few days after he attained his majority, instead of waiting for a considerable period. Further, he had lived continuously in this country for about 17 years, during his earlier manhood, and was too young to have participated in the Franco-Prussian war.

It must also be remembered that in 1893, when relator was born. his father was 35 years of age, and therefore, if a German citizen, still subject to certain military service. It is certainly most unlikely that relator's father wished to lose the protection of his American citizenship as against subjection to military service in Germany. It is true that, after relator's birth, his father continued to live in Germany. A man might very well have the intention of returning to this country after he had been abroad 3 or 4 years, and then find that his business affairs kept him in a foreign land. While the declarations of rela

(257 F.)

tor's father in 1889, in the papers in the divorce suit against his first wife, are self-serving, nevertheless those declarations indicated an insistence by relator's father upon the proposition that he resided in this country. It is peculiarly significant, also, that he obtained a certificate of his naturalization from the clerk of the California court as late as 1901. The application by relator's father for a passport in 1908 is also of much weight. If his statement as to continuous residence in the United States is to be construed synonymously with domicile, then, in his application for a passport, he clearly showed that he considered the United States as his domicile. If, on the other hand, Alexander, Sr., in making the statement as to residence in his application for a passport, stated what was not true, in that he meant physical residence as distinguished from legal residence, then all the more is this evidence. of the fact that it was his intention to hold his American citizenship; because, with that construction upon the language of the application, it is plain that Alexander, Sr., desired to retain his American citizenship, even at the expense of making a false statement.

Therefore, passing the testimony as to the statements to his family to the effect that he was an American citizen, all of the record acts of relator's father fail to show the intent, in October, 1893, not to return, within the principles laid down by Secretaries of State such as Mr. Fish and Mr. Evarts.

It is therefore decided that relator was born a citizen and subject of the United States.

[3] 3. It now becomes necessary to examine the acts and conduct of relator himself. Relator, with the exception of brief visits abroad, lived in Berlin from his birth. At the time of the declaration of war between Germany and Russia, he was a member of the Imperial Automobile Club, evidently a social organization. In September, 1914, he volunteered with other members of the club, in a volunteer body called "Imperial Volunteer Motor Corps," and, according to his testimony, he received no pay and furnished and maintained his own car and uniform-which latter was not the uniform of the German army. While in Berlin, he drove nurses and women of the Red Cross, and occasionally officers, about the city.

In this regard, he did no differently than many young Americans who performed similar services and works of aid and mercy in the countries of the Allies. Until October 23 or 24, 1914, when relator became 21 years of age, he was not competent to renounce his allegiance to the United States of America. In November, 1914, however, he went to Galicia, near the Eastern front. The testimony that he was on the Western front is not credited. While in Galicia he stayed at the hotel which was German Army Division headquarters and usually drove Red Cross women and nurses, and took wounded from the field to the base hospitals. On several occasions he drove the German general, who was the divisional commander, to field headquarters and carried provisions. According to his testimony, he took his orders. from a member of the Automobile Club, who, in turn, received his orders from the motor corps headquarters, but he occasionally also took orders from the general. Late in December, 1914, or early in Jan