Ex parte Garcia

10 P.R. Fed. 516

• Court: District Court, D. Puerto Rico
• Decided: July 30, 1918
• Docket: No. 1248
• Status: Published

Opinion

Hamilton Judge,

delivered fbe following opinion:

1. This is a habeas corpus brought to release petitioner from the training camp where he is serving under the command of Colonel O. P. Townshend, and depends upon the proper construction of art. 9 of the treaty between Spain and the United States signed at Paris December 10, 1898, and proclaimed April 11, 1899.

The making of treaties is a function of the Executive in which the Department of State is largely concerned, although the ratification is by the Senate. The opinion of the Secretary of State upon a treaty is therefore of great importance as showing the understanding of the Department in the execution and in the carrying out of a treaty. Treaty construction by the political department, while not conclusive upon a court, is nevertheless of much weight. Charlton v. Kelly, 229 U. S. 447, 468, 57 L. ed. 1274, 1283, 40 L.R.A.(N.S.) 397, 33 Sup. Ct. Rep. 945. Particularly would this be true if the construction in question had been acquiesced in by the other contracting country; for a treaty is a contract between nations. United States v. Arredondo, 6 Pet. 691, 8 L. ed. 547. It is unquestionably true that courts have no right to amend a treaty by inserting any clause, great or small; for this would be usurpation of power, and not exercise of judicial functions. It would be making, and not construing, a treaty; nor can the court supply a casus omissus. Justice Story, in tbe Amiable Isabella, 6 Wheat. 1, 71, 5 L. ed. 191, 208. So far as regards political questions, tbe construction of tbe political department is not only persuasive but binding upon tbe courts. In external or international matters there can be no uncertainty or division-shown in national acts. Thus United States consistently claimed that tbe purchase of Louisiana from Napoleon extended to tbe Perdido river. Historically it would seem that this was a mistake, and that tbe French and Spanish claim that Louisiana at tbe time it was sold extended only to the Iberville and Lakes was correct. Cox, West Florida Controversy, passion. Nevertheless tbe Federal courts have as a matter of course adopted tbe view of tbe political department and held void all Spanish grants in tbe disputed territory between tbe Pearl and tbe Perdido after 1804. United States v. Lynde, 11 Wall. 632, 20 L. ed. 230; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565.

In tbe question before us Secretary Hay on December 21, 1899, held that tbe rights of tbe sons of Spaniards were to be determined by Congress under art. 9 of tbe treaty, and on April 15, 1918, Secretary Lansing reaffirmed this construction. It is also claimed that tbe Spanish government acceded to this view in tbe time of Premier Sagasta, but, however this may be, such is not tbe view of tbe Spanish government at the present time.

Citizenship is rather a political than a property question, and might well come within tbe exclusive jurisdiction of tbe political department of tbe government. There might have been tbe further difficulty of enforcing an order of this court in hab-eas corpus upon tbe Military. But it would seem that tbe political departments desire tbe judicial determination of the citizenship of tbe applicant, and as tbe case comes before the court in regular course it must be considered and determined upon judicial principles.

The rule that the nationality of the minor son follows that of the father is a general ,one, although it may not be so clear as that regarding the identity of husband and wife. “Undoubtedly by the law of nations an infant child partakes of his father’s nationality and domicil.” This has been repeatedly held by the American Department of State. Wharton, International Law Dig. §§ 183, 186. While it is true the literal wording of the Treaty of Paris may be interpreted to violate this rule, it would, if possible, be more satisfactory to rest the solution of the question at bar upon other principles than an interpretation which will wrest the nationality of a four-year old son away from the father, unquestionably alienigena. (Cal. vin’s Case, 7 Coke, 16a, 11 Eng. Reprint, 395.) If there is any doubt as to the meaning of a treaty, it should be interpreted against the victor, in this case the United States. Taylor, International Pub. Law, § 591.

2. The present case depends upon the proper construction of a part of the Treaty of Paris between the United States and Spain; but treaties like other contracts must be construed in the light of the circumstances surrounding the contracting parties. These should probably be considered first.

The strained relations between the United States and Spain growing out of the long series of Cuban insurrections culminated in war, of which the principal features were the battles, land and naval, about Santiago de Cuba, and Manila in the Philippines. Spain found herself unable to bring supplies to her armies in the colonies and agreed to peace, negotiations being begun at Portsmouth and concluded at Paris December 10, 1898, and proclaimed after ratifications on April 11, 1899., Tbe treaty is in seventeen articles, which, relate respectively to the following subjects: (1) Cuba; (2) Porto Eico, West Indies, and Guam; and (3) the Philippine Islands. Articles 4-7 concern Spanish ships to the Philippines, repatriation of Spanish soldiers, exchange of prisoners, and relinquishment of claims. Articles 8 and 9 will receive subsequent attention. The remaining articles relate to religion, jurisdiction of courts, pending proceedings, copyrights, consular officers, vessels, obligations of Cuba, and time of ratification.' Articles 8 and 9 relate to property and Spanish subjects, art. 9 being as follows: “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 the Congress.” [30 Stat. at L. 1759].

The negotiations show that the intent of the contracting parties was that Spain should surrender tbe sovereignty of all ber foreign colonies, and in particular should devest herself of all interests in territories appurtenant to the Western Hemisphere. On the other hand, while the United States did not assume the sovereignty of Cuba, and in point of fact established an independent government there which still continues, it not only retained Cuba within its sphere of influence, but received the absolute cession and sovereignty of Porto Eico. With this the United States entered upon a new phase of its historical development. Previously there had been large accessions of territory from Spain as the result of war or treaty, but they had always been upon the mainland and adjacent to the original limits of the Union. With Porto Eico the United States acquired the most thickly'populated island in the West Indies, which has become of peculiar importance on account of the subsequent acquisition of the Panama Zone and the construction of the Panama Oanal. Historically it might be said that the result of the Spanish-American War was that Spain absolutely withdrew from the Western Hemisphere, and that the presence of Spaniards remaining in Porto Eico was intended to be. only temporary, like that of all other foreigners in any other portion of the United States. The political future of the Porto Eicans ■ was left entirely to the discretion of the United States, which has by Act of March 2, 1917, made them American citizens, and thus united the Island irrevocably with, the nation. A proper construction of the treaty, therefore, would be in view of these historical facts. Re Ross, 140 U. S. 453, 475, 35 L. ed. 581, 589, 11 Sup. Ct. Rep. 897.

3. In taking up any question of international law the basis upon which to proceed is that of the absolute equality of nations! The nation, regardless of size, is the unit in international matters. Attempts have been made through international associations of different kinds to substitute the basis of class interest. The feasibility or the desirability of this is not a matter of law and need not be discussed; it is clear, however, that so far this effort has not prevailed, and that the basis of international relations is still the absolute equality of nations. The present World War is fought upon that basis and to secure the fuller recognition of that principle.

Each of these nations is absolutely supreme within its own borders so far as relates to outside nations. The nation may have such internal form of government as it seems proper. It may be an absolute empire, a constitutional monarchy, a Federal government with governmental powers divided between the nation and the federated states, or have any other form its people may deem best for its prosperity and development so far as it does not undertake to deny the same right and power 'to other nations. The United States, for instance, is, for international purposes, as fully a unit, fully a nation, as any other country on the globe, while, for internal purposes, national affairs are governed in accordance with a Federal Constitution, state affairs in accordance with state Constitutions, and the intermediate government known as territorial conforms to certain general rules fixed by the Federal government. One result is that territories are either considered as incorporated into the Union and on the way to ultimate statehood, or as having so much of the American constitutional rights as the Organic Act passed by Congress may declare. Of this second class is Porto Bico.. These internal distinctions make no difference whatever so far as regards international relations. From an international point of view Porto Bico is as thoroughly American as the state of New York.

This general subject was discussed and decided by Chief Justice Marshall “in the great case of the Exchange/’ which, as the Chief Justice expresses, “explored an unbeaten path.”' It was declared that “the jurisdiction of the nation, within its own territory, is necessarily exclusive and absolute. It is susceptible of no limitation, not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a dimunition of its sovereignty, to the extent of the restriction, and an investment of that sovereignty, to the same extent, in that power which could impose such restriction.- All exceptions, therefore, to the full and complete power of a nation, within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed, more to the uncertainties of construction; but, if understood, not less obligatory.” The Exchange v. M’Fadon, I Cranch, 116, 135, 136, 3 L. ed. 287, 293.

Similarly in the later case of United States v. Wong Kim Ark it is held incontrovertible that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by itself. 169 U. S. 686, 42 L. ed. 904, 18 Sup. Ct. Rep. 456.

The principles of American citizenship were made clearer between the dates of these two great eases by the adoption of the 14th Amendment to the Constitution, which declares that “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.” Tbe basis of natural citizenship, therefore, is birth (1) within the limits of the United States, and (2) under the jurisdiction or sovereignty of the Union. This would exclude, and is meant to exclude, the children of ambassadors, enemies, or other extraterritorial persons, but would include children even of persons who could not themselves become citizens by naturalization, like a Chinese in the case of Wong Kim Ark, supra. To this must be added a second kind of citizenship, that arising from naturalization. The privileges and results are practically identical.

4. A corollary from the equality of states is that what one nation claims for itself within its boundaries, it must concede as belonging to another nation within the boundaries of such foreign country. United States v. Wong Kim Ark, supra, 672. Birth and allegiance go together. United States v. Rhodes, 1 Abb. (U. S.) 28-40, Fed. Cas. No. 16,151. Subject and citizen are convertible terms; the former being applied to kingdoms and the latter to republics. 2 Kent, Com. 258; The Pizarro, 2 Wheat. 227, 4 L. ed. 226. It follows that a child born abroad of American parents was not American, at least so long as he remained abroad, and it required an Act of Congress of February 10, 1855, to change this, declaring that “the rights of citizens shall not descend to persons whose father never resided -in the United States.” 10 Stat. at L. 604, chap. 71. Citizenship was nevertheless extended to foreign-born children of American parents by Act of Congress, but they were expressly described as born out of the limits and jurisdiction of the United States. Kev. Stat. §§ 1993, 2172, Comp. Stat. 1916, §§ 3947, 4367. This exceptional legislation changes' the common-law principle that a person born in a strange country under the obedience of a strange prince or country is an alien. Co. Litt. 128b. And it is uniformly considered that this legislation applies only so far as concerns such person when he comes to the United States, or his rights within the United States, and was not designed to affect his territorial allegiance to the state of his birth.

5. It will be observed that these principles apply to a child born within the limits and under the jurisdiction of a given country. The petitioner was born within the limits and under the jurisdiction of Spain, and must be considered as being and continuing a Spaniard until by some means Spain has relinquished her sovereignty over- him. By the Treaty of Paris, article 9, his father, being a native of the Peninsula, could remain in the ceded territory of Porto Rico or remove therefrom in the former caise preserving his “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 [his] decision to preserve such allegiance; in default of which declaration they [he] shall be held to have renounced it and to have adopted the nationality of the territory in which they [he] may reside.” It will be seen that this provision is not limited to Porto Rico, but covers also Cuba and the Philippines. It does not in express terms cover the wife or children of such declarant, and the case at bar is one of such child.

6. So far as a case is not governed by special provisions of a treaty, all acts creating rights within the territory of the United States are governed by the common law, - modified, it may be, by statute. The common law is, so to speak, a part of the Constitution. Minor v. Happersett, 21 Wall. 162, 22 L. ed. 627; Moore v. United States, 91 U. S. 270, 274, 23 L. ed. 346, 347. Tbis does not mean, however, that there is a national common law, except perhaps so far as the principles of the common law may be said to be general throughout the United States. Smith v. Alabama, 124 U. S. 465, 478, 31 L. ed. 508, 512, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564; Wheaton v. Peters, 8 Pet. 591, 658, 8 L. ed. 1055, 1079. The common law of'England in regard to citizenship may be said to go back to á statute of 17th Edward III. a. d.1343, and later statutes on the same subject, which determine that children of Englishmen born in parts beyond the seas out of the ligeance of England may inherit in England. United States v. Wong Kim Ark, 169 U. S. 668, 42 L. ed. 897, 18 Sup. Ct. Rep. 456. This was perhaps declaratory of the common law and in America the particular point is covered by Revised Statutes, § 1993, Comp. Stat. 1916, § 3947, a law dating from 1802, which declares that rights of citizenship shall not descend to children whose fathers never resided in the United States. The common-law principle is that all persons born within the King’s allegiance and subject to his protection are Englishmen, that is to say, allegiance and protection are mutual. Calvin’s case, sometimes called the case of the Post Nati, 7 Coke, 1, 4b, 18a, 18b, 77 Eng. Reprint, 377, a. p. 1608. Co. Litt. 8a, 128b. 13 Ops. Atty. Gen. 89. Civil rights, that is to say, as to majority, marriage, succession, and intestacy, depend, upon status as fixed by domicil, but political rights fixing one’s country and nationality depend upon different laws in different, countries. Udny v. Udny, L. P. 1 H. L. Sc. App. Cas. 441, 9 Eng. Rul. Cas. 782. That is to say, naturalization and allegiance is a distinct question from that of domicil.

By tbe Code Napoleon, art. 3, and allied systems, citizenship depends upon paternity as well as tbe place of birth Spanish Civ. Code art. 11. By the common law it depends upon tbe place of birth, and this controls in the-United States. United States v. Wong Kim Ark, supra. Valery in 31 Harvard L. Bev. 984. Germany under her Delbruck Law of 1913 claims anyone bom a German no matter where naturalized, but this is not American. Expatriation is a fundamental American principle.

1. Nevertheless, while citizenship is to be determined by each country for itself,’there is international usage on the subject. Vattel declares that “natives are those who are born in a country of parents who are citizens. Society not being able to sustain and perpetuate itself except through the children of citizens, these children naturally' follow the condition of their fathers and enter into all their rights. Society is supposed to will this, because it owes to it its own preservation and rightfully presumes that each citizen, upon entering into society, reserves to his children the right of also being members. La patrie des peres est done celle des enfans; and they become true citizens by their simple tacit consent. We shall see that when they arrive at the age of reason they can renounce their right and that which they owe to the society in which they were born. I say that to be part of a country one must be born of a citizen father; for if you are born of a stranger, the country will be only the place of your birth, without being your country.-” Vattel, Le Droit des Gens, Bk. 1, chap. 19, § 212.

■ There can be but two kinds of citizenship, — birth or naturalization, — as is also recognized by Vattel, natus or datus as quaintly expressed by Coke in Calvin’s Case. Citizenship by birth is of persons born in the United States subject to the jurisdiction thereof. Slaughter-House Cases, 16 Wall. 36, 73, 21 L. ed. 394, 407. Naturalization when accomplished in accordance with the laws on that subject also makes one completely subject to the political jurisdiction of the United States. Elk v. Wilkins, 112 U. S. 94, 101, 28 L. ed. 643, 645.

Petitioner, not being an American natus, can only become such datus, by some kind of naturalization. If not, he is, under art. 5 of the Treaty of 1903 with Spain, “exempt from all compulsory military service.” 33 Stat. at L. 2105, 2108.

8. Naturalization is generally spoken of in connection with the laws authorizing aliens to become citizens through certain proceedings in court, but it also covers collective naturalization by force of a treaty under ryhieh foreign territory is acquired. Elk v. Wilkins, supra. War., being the ultima ratio regum, has its own rules and cannot be said to be subject to laws of' any kind except the will of the victor. From the beginning of history the conquering nation has imposed what terms it will upon the conquered, and frequently one result has been the acquisition of territory and the people inhabiting it. From this decision there is no appeal except another war, but it cam not be said that the precedents have made binding law. • The United States perhaps introduced a new precedent in the Treaty of Guadalupe Hidalgo in February, 1848, whereby the Union, although the conqueror, taking knd which it claimed against the will of Mexico,' nevertheless paid the conquered country money for it. The same course was followed in the Treaty of Paris when the United States acquired the Philippines and Porto Eico from Spain, and in fact it may be said to be the American procedure; for similar purchases without war bave been made from Russia in 1867 and Denmark in 1917, and bad been made with Spain in tbe purchase of Florida in 1819. Somewhat similar also were tbe annexations of Texas and Hawaii.

It is quite true that such methods have not been general even in modern times, and a strikingly Teutonic method was tbe Treaty of Frankfort in 1871 by which Prussia, improving upon her past acts of a similar character with other countries, tore Alsace and Lorraine from France, besides exacting a crushing war indemnity. Not only has America introduced a new practice in regard to paying for land acquired, but it has disdained forcing the inhabitants of the acquired territory to become subjects. The practice on this subject in Europe, beginning in the 17th century, was to permit those of the old nationality to retire from the annexed territories within a certain limited time. Even Prussia permitted this as to Denmark in 1864 and France in 1871. After the period fixed there could be no question as to nationality. America has of course permitted fhis, but it has in the Treaty of Paris, acting for itself and for Cuba also, allowed the native Spaniards to remain in the annexed territory and still retain their own citizenship, provided they registered to that effect within the period of one year. Treaty of Paris, art. 9; Treaty with Denmark, art. 6, 89 Stat. at L. 1712.

The general principle on acquisition of foreign territory is declared by the Supreme Court in Boyd v. Nebraska, 143 U. S. 135, 162, 36 L. ed. 103, 109, 12 Sup. Ct. Rep. 375, to be as follows: “Manifestly the nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose.dominion they pass, subject to the right of election on tbeir part to retain their former nationality by removal or otherwise, as may be provided.”

The provisions spoken of have now grown into a settled system, and can be better understood by noting the steps of that growth.

The earliest treaty on the, point was that of the acquisition of Louisiana from France. Art. 3 of this Treaty of April 30, 1803, however, provided for the incorporation of the inhabitants into the Union, and did not contemplate their remaining Frenchmen or Spaniards ,as the case may be. 8 Stat. at L. 202. Almost the same phraseology was followed upon the acquisition of Florida from Spain by the Treaty of February 22, 1819, article 6 providing for similar incorporation into the Union. 8 Stat. at L. 252, 256.

It was not until the Treaty of Guadalupe Hidalgo upon the termination of the war with Mexico that the other system, that is, permitting the old inhabitants to elect their citizenship, was introduced, a liberality of treatment quite in keeping with the provision for payment for the lands ceded. Thus art. 8 of the treaty provides that Mexicans within the ceded territories “shall be free to continue where they now reside or to remove at any time to the Mexican Bepublic.” 9 Stat. at4 L. 929; Malloy, Treaties, Conventions, of United States, 1111. “Those who shall prefer to remain in the said territories may either retain the title and rights of Mexican citizens or acquire those of citizens of the United States. But they shall be under the obligation to make their election within, one year from the date of the exchange of ratifications of this treaty; and those who shall remain in the said territories after the expiration of that year without having declared their intention to retain the character of Mexicans shall be considered to have elected to become citizens of the United States.” The right of election, therefore, is conferred upon Mexicans within the ceded territory provided they “declare their intention to retain the character of Mexicans,” but it is not specified how this declaration shall be made, nor does there seem to be a reported decision of any court upon this subject. Being in the nature of naturalization, however, the declaration would probably be held analogous to that required for what are ordinarily called the first papers of citizenship, really, a declaration filed in a court of record. Rev. Stat. § 2165. If one born in Texas before the revolution was taken to Mexico, and remained there after majority, she remained Mexican. Jones v. McMasters, 20 How. 20, 15 L. ed. 810.

The next treaty was that of March 30, 1867, with Russia for the purchase of Alaska. Article 3 provided that “the inhabitants of the ceded territory, according to their choice reserving their natural allegiance, may return to Russia within three years; but if they should prefer to remain in the ceded territory they . . . shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States.” 15 Stat. at L. 539, 542. No provision is herein made for inhabitants to remain Russians except by emigration within three years, and the same reason existed as in the case of Louisiana, the treaty providing for the early incorporation of these people as American citizens.

The only other convention before the Treaty of Paris was the joint resolution of July 7, 1898 (30 Stat. at L. 750), annexing the Hawaiian Islands, and as the whole of the insular state was annexed there was and could be no provision for emigration or for any citizenship except the American.

In none of these cases is any direct provision made as to tbe nationality of the wife and minor children of the inhabitants of acquired territory. As to the wife no question has ever been made that she necessarily follows the nationality of the husband. Mackenzie v. Hare, 239 U. S. 299, 60 L. ed. 297, 36 Sup. Ct. Rep. 106, Ann. Cas. 1916E, 645. The family relation could not exist if the two members of it lived under different laws and customs. An alien woman whose husband is naturalized becomes an American citizen. 2 Cyc. 118. And the same is true of the minor child of an alien dwelling within the United States at the time of naturalization. Campbell v. Gordon, 6 Cranch, 176, 3 L. ed. 190. An American woman marrying a foreigner takes his nationality. 34 Stat. at L. 1228, chap. 2534, Comp. Stat. 1916, § 3958; McKenzie v. Hare, supra. Such was the state of the law when the Treaty of Paris was signed December 10, 1898, and ratified on April 11 following. U. S. Kev. Stat. §§ 2168-2172, Comp. Stat. 1916, §§ 4358, 4360, 4362, 4367.

Before discussing the case under that treaty it may be noted that the treaty with Denmark in 1917 for the cession of the Danish West Indies expressly provided as to election of citizenship in general that “for children under eighteen years the said declaration may be made by their parents or guardians.” It would be strange to find this policy as to Danes and nonexistent as to Spaniards in the next island but a few miles away.

9. After the Treaty of Paris, general order No. 132, dated August 31, 1899, was prescribed by the War Department for the purpose of carrying out the treaty in question, and it was under this that the applicant’s father made the registration set out in tbe petition. . Tbe general order provided, and tbe registration covered:

“II. For tbe purpose of permanent record and tbe protection of tbe parties concerned, a document will be prepared in duplicate in each case by tbe municipal judge setting forth tbe following facts: (a) Tbe name and surname of tbe interested party, bis or ber age, nationality (specifying tbe province), civil status and profession, trade and occupation, (b) Names of wife and children, should there be any, and tbe names of tbe applicant’s parents, (c) Tbe date on which tbe declaration is made and signed. This document shall be subscribed by tbe applicant and witnessed by tbe signature of tbe municipal judge and tbe secretary of bis court.

“III. Unmarried women (natives of tbe Peninsula), of legal age, will make declaration in tbe same manner as men.”

Under this 4,889 Spaniards registered.

Tbe question in tbe case at bar is as to tbe legal effect of this parental registration, which did not pursue tbe words of tbe treaty and call generally for a court of record, but provided for a document before tbe municipal judge. Tbe municipal court was tbe lowest court of the judicial system of Porto Bico. No express reservation was made either in tbe treaty or in tbe military order for a declaration on behalf of a wife or a minor child of tbe Spaniards so reserving bis own citizenship. The only analogous provision is that numbered 4 of tbe military order, to wit: “Guardians may make declarations for their wards (such children being natives of the Peninsula), but any such ward who attains tbe age of twenty-one years before April II, 1900, may renounce such act as be or she becomes of legal age, by appearing before a municipal judge and making declaration of sucb renunciation, and such renunciation will be recorded, indorsed, and returned in tbe same manner as hereinafter prescribed for declarations.”

By its terms, however, this is limited to wards natives of the Peninsula, and does not cover minors of Porto Pico at the time of the treaty.

10. The old idea of the state was that it not only embraced all citizens, but that they existed for the benefit of the state. At least since the American and French Revolutions it has been the basis of sound political thought that the converse is true, that the state is for the benefit of the citizens, and in fact is controlled by them. It is not to be supposed that the United States holds a different theory from this in regard to the new citizens whom it acquires by treaty or desires to force the citizenship of anyone. In the Treaty of Paris it is clear that natives of the Peninsula' may even remain in Porto Pico without becoming citizens at all, provided they merely made a formal registration for purposes of identification. Even in"regard to Americans at large, the American policy is clear in not only recognizing, but in enforcing, the right of expatriation, that is to say, the right of the individual to choose his own country. U. S. Pev. Stat. § 1999, Comp. Stat. § 3955, the law dating from a. d. 1868. The right which the United States claim and enforce for its own citizens it cannot deny to the citizens of other countries. On principle the minor must be held under the Treaty of Paris to have some choice as to his citizenship. It is undoubtedly true that the father cannot decide the .ultimate citizenship of his child, but no reason appears why he cannot in this regard act for his child as he does in every other respect, that is to say, make a provisional choice which the child may ratify or disaffirm upon coming of age; for “whether any act of himself or of his. parents during his minority could have the same effect is at least doubtful.” United States v. Wong Kim Ark, 169 U. S. 704, 42 L. ed. 910, 18 Sup. Ct. Rep. 456. It is true that the treaty does not expressly authorize the father to elect for the son, but this is not conclusive. We are dealing with a case of naturalization, and if that document itself is not clear, the American theory and practice in regard to individual náturalization may be resorted to for further light.

The subject of naturalization is an old one in American law, for its principal provisions go back to the Act of 1802 as amended several times afterwards. The machinery has been altered, but not the principle upon which naturalization is based. To this day it is provided that no alien enemy can be admitted as a citizen, however eligible otherwise. (Rev. Stat. § 2171, Comp. Stat. 1916, § 4362). “The children of persons who have been duly naturalized under any law of the United States . . being under age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof.” [§ 2172], Under this thousands of persons have become citizens of the United Slates, and it may be said to be the settled policy of the United States, as it is of the world at large as shown by Vattel, supra, that children follow the nationality of the father. Campbell v. Gordon, 6 Cranch, 176, 3 L. ed. 190. No reason appears why this policy which is expressly provided for naturalization in court proceedings should not apply to naturalization by treaty where the words of the treaty itself are silent and its general scope'is not inconsistent with such interpretation. The treaty has to be interpreted one way or the other, and it would seem logical to interpret it in accordance with tbe general policy of tbe United States on tbe subject of naturalization;, tbat is, tbat tbe father’s election provisionally elects tbe nationality also of tbe minor child.

There is no question tbat tbe legislation of Congress may override a treaty (Cherokee Tobacco (Boudinot v. United States) 11 Wall. 616, 20 L. ed. 227; Thomas v. Gay, 169 U. S. 264, 42 L. ed. 740, 18 Sup. Ct. Rep. 340), and it is important to see what has been congressional action in regard to citizenship in Porto Bico. Tbe act for a civil government in Porto Bico approved April 12, 1900, generally called the Poraker Act, provides in § 7 a body politic under tbe name of tbe People of Porto Bico made up, besides other Americans, of “all inhabitants continuing to reside therein who were Spanish subjects on tbe 11th day of April,. 1899, and then resided in Porto Bico, and their children born subsequent thereto, shall be deemed and held to be citizens of Porto Bico, and as such entitled -to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain on or before the 11th day of April, 1900, in accordance with the provisions of the treaty of peace between the United States and Spain entered into on the 11th day of April, 1899. . . .” [31 Stat. at L. 79, chap. 191, Comp. Stat. 1916, § 3753],

This makes citizens of those who were Spanish subjects upon the date of the treaty and children born subsequent thereto, excepting those electing to preserve their Spanish allegiance. This cannot be said to clear up the point except negatively that it does not make citizens of Spanish children born prior to the treaty.

■ The recent Organic Act for Porto Bico of March 2, 1917, commonly called tbe Jones Act, in § 5 goes no further, for it expressly makes American citizens out of those who were made Porto Rican citizens by the Foraker Act. It also adds those who have previously been nonresident and allows Porto Ricans to disclaim American citizenship, but these provisions are beside the question. It also provides, however, for any .person who was born in Porto Rico of an alien parent and is permanently residing in that Island, permitting him when he comes of full age to make a sworn declaration of allegiance to the United States. Under this provision the Federal court in Porto Rico has admitted to American citizenship not only the sons of many Frenchmen and other foreign citizens who were clearly aliens, but also the sons and daughters of not a few Spaniards who had preserved their Spanish nationality by registering before the Spanish consulate. So far as this affects the question at all, it would favor the construction of the treaty to the effect that such registration of the father carried with it the retention of citizenship for his minor children as well; for if these were already Americans there would be no occasion to have them made American citizens under § 5. This question, however, was always presented ex parte. The United States government was not represented in such proceedings and was not bound by them. '

This Jones Act does not strictly apply to the case at bar because passed after the rights of the petitioner had accrued, whatever may be its application to later cases. The treaty provides that “the civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.” Unless the petitioner was excepted by his minority — which will be later determined —be comes under tbis provision. In sucb case when tbe Jones Act permits' tbe child of an alien, born in Porto Pico and permanently residing there, which is precisely tbe condition of petitioner, to take the oath of allegiance, it is naturalizing him and as an alien having some peculiar bold upon tbe United States. If be does not take tbe oath be remains sucb an alien still. It is true that tbe act was not passed soon enough for tbe petitioner to take advantage of it, for be was then over twenty-one years of age; but tbe act seems to carry an admission that persons in bis condition if two years younger were aliens. Could be be any less an alien because he bad been one two years longer? Tbe only way to escape tbis conclusion is to suppose that Congress in § 5 was merely passing an act of grace to all aliens, temporary in its nature, that its terms imported no declaration of policy as to past cases, and were not intended to carry out tbe treaty provision as to determining tbe status of persons native to Porto Pico.

American legislation is not systematic like tbe French and Spanish, and, while it means what it says, it does not necessarily negative what it does not say. Negative inferences are unsafe. In tbis state of doubt it is better to consider tbe question upon principle without relying certainly upon § 5 or tbe ex parte admissions to citizenship under it.

11. What has been tbe nationality of tbe petitioner up to tbe time of bis registering at tbe Spanish consulate ? He was born a Spaniard and was a minor at tbe time of tbe Treaty of Paris. Is be to be considered after that time as a Spaniard, an American, or was bis nationality undecided until be decided it at majority?

It would seem that tbis has been settled in tbe case of Inglis v. Sailor’s Snug Harbor, 3 Pet. 99, 7 L. ed. 617, decided by tbe Supreme Court of tbe United States in 1830. There Jones Inglis was born in New York city either before tbe outbreak of tbe Revolution or while tbe city was occupied by tbe British forces. In either case bis father bad been and be consequently was an Englishman. Before tbe city fell into American bands bis father returned to England and lived and died under tbe English flag. Jones never came back to America and tbe question of bis nationality bad to be determined for tbe purposes of tbe case then before tbe court. Tbe Treaty of 1783 says nothing as to citizenship (8 Stat. at L. 80), and, as people on both sides were originally British, nationality for tbe future depends upon their adhering to tbe King or to tbe colonies during tbe war (Shanks v. Dupont, 3 Pet. 242, 7 L. ed. 666). It was held per Justice Johnson that Jones Inglis was born an Englishman, this being founded upon bis birth within tbe British dominions, and that tbe father bad tbe right and the duty of making a provisional election for tbe son. On the one hand, tbe British doctrine is that tbe American Ante-Nati by remaining in America after tbe treaty of peace lost their character of British subjects, and, on tbe other, tbe American doctrine is that by withdrawing from this country and adhering to tbe British government they lost, or perhaps more properly speaking, never acquired, tbe character of American citizens. S. C. page 122. Inglis while a child was incapable of making an election for himself, but after the lapse of time was taken to have adopted and ratified the choice made for him by his father and still to retain the character of a British subject and so never to have become an American citizen. This conclusion was based upon the fact that he was taken from the country by bis father before the treaty of peace and continued long after coming of age to reside within the British dominions without signifying any dissent to the election made for him, and this ratification as to all rights must relate back and have the same effect and operation as if the election had been made by himself at that time. Id. page 123. A good" deal of the case is taken up in determining whether the father was or was not an American citizen, for his citizenship determined that of his son. In the case at bar there is no such difficulty, as it is conceded the father of the petitioner properly retained his Spanish citizenship by conforming to the provisions of the Treaty of Paris. In the Inglis Case the election was made by withdrawing from the United States, while in the case at bar this was not done and was not required to be done by the very terms of the treaty. During the intervening time up to majority, therefore, it must be held that the petitioner was a Spaniard like his father. Such was the decision of this court, per Judge Bodey, in Martinez de Hernandez v. Casabas, as to election for a minor child. It is not necessary for the purposes of the case at bar to discuss the matter of election for a niece, also covered by the Martinez Case. 2 Porto Rico Fed. Rep. 519.

12. There remains to be considered, however, the important point of what duty is incumbent upon the minor himself when he reaches his majority. Under the municipal law the act of the minor during minority, or the act of anyone for him during minority, holds unless it is disaffirmed by the minor at majority ; but there cannot be said to be any rule of international law or of public law to this effect on the subject of citizenship. The Treaty of Paris seems to contemplate that all Spaniards who do not elect otherwise in a certain way become American citizens, and the Inglis Case provides that, while the father can act provisionally for the son, its effects do not outlast minority, and the son must elect for himself upon attaining majority. Statutory extension of time in favor of one under disability does not affect the right, hut only the period. 27 Am. & Eng. Enc. Law, 856. Unless required by treaty, no formal act is needed, but when choice is made what is called double allegiance is ended and the election is final. 3 Moore, International Law Dig. 545.

The treaty requires .Spaniards having the right to act to make “before a court of record within a year ... a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it.” It would be too strict a construction to require the father to make a different declaration from that which was prescribed by the military authorities in control of the Island; and while the wording of it may be construed as being for identification so far as children are concerned, no other method was provided as to children born here, and there is no reason to suppose that any other method was deemed necessary. Either actual withdrawal to Spain or something equivalent to this declaration, therefore, should be required of the son upon attaining majority just as under the treaty it was required of the father himself. The option of the minor at majority must be independent and free. Wharton, Confl. L. 3d ed. § 10-J; Morse, Citizenship, §§ 104, 112, 113.

What the petitioner actually did was to register himself as a Spanish subject on the books of the Spanish consulate. A consul is a public agent who is ordinarily clothed with authority only foi commercial purposes. 2 Cyc. 271. His office is an important one, but it is administrative rather than judicial. As a general rule the principles of international law afford no warrant for the exercise of judicial powers by consuls. 2 Oyc. 274. Such power is usually conferred upon the consuls of Christian nations in heathen lands, and the importance of such courts has been always recognized. In Re Ross, 140 U. S. 453, 35 L. ed. 581, 11 Sup. Ct. Rep. 897. The Treaty of Paris provides in art. 14 that “Spain shall have the power to establish consular officers in the ports and places of the territories, the sovereignty over which has been either relinquished or ceded by the present treaty.” Before the war the consuls had no judicial power, and none is conferred upon them by this treaty. The courts of record are spoken of in art. 8 as already existing, while consuls under' art. 14 were yet to be provided. It has been decided under the Treaty with France, whose principles are not essentially different from the general international law, that while a subpoena duces tecum may issue to a consul it can only be to produce a paper which is not official. Ee'Dillon, 7 Sawy, 561, Fed. Gas. No. 3,914. The constitutional right of an accused to process for the attendance of witnesses extends to their bringing with them such papers as may be material for the defense. Durr’s Trial, 4 Cranch, 470, 2 L. ed. 684, Fed. Cas. No. 14,693. A register of Spanish citizens kept by the consul according to Spanish law must be an official paper, and its production therefore could not be compelled by an American court. It is not a public record for American purposes. This being so, it follows without question that the consular entry in the case at bar is neither such a record nor from such a court as is contemplated by art. 9 of the Treaty of Paris. It is doubtless true that as a treaty is made in general terms, the contemporaneous construction of it by the parties signatory will have great weight. If it. was shown that even the entry in the consular books was notified to the American government and recognized by it as proper record under the treaty, this construction might be accepted; but nothing of the sort is shown, and it is quite probable that nothing of the sort was ever attempted. It follows, therefore, that such a consular entry is not that of a court of record under the treaty.

13. Moreover, the most that can be claimed for such a right of election is that it shall be exercised by the minor upon attaining his majority. It seems that majority under the Spanish law (Civil Code, § 320) is twenty-three years, and that the petitioner exercised his right just within twenty-three years from the ratification of the treaty of peace. On the other hand under the American law, and under the law in Porto Rico as contained in the Civil Code as amended, majority occurs at twenty-one years, and petitioner did not conform to this limitation by almost two years. Which would control ?

Everyone living in America is subject to American laws. This is certainly true of the petitioner as to all civil rights, of inheritance and the like, and this has been interpreted as extending to majority. Udny v. Udny, L. R. 1 H. L. S. C. App. Cas. 411, 457, 9 Eng. Rul. Cas. 782. Story, Confl. L. § 103. The provision of .the treaty is that all Spaniards remaining in Porto Rico become Americans, with the exception of a few who must signify their choice, and it cannot be held that after eighteen years Spanish law controls in the exercise of this or any other fight in Porto Rico. American law is supreme here, and any right dependent upon majority must be decided according to American law. Light is thrown on this by the existing Organic Act, the Jones Bill (§ 5), which allows children of aliens to become Americans by taking the oath of allegiance within a year after attaining majority. This court has construed the provision as meaning twenty-one years, majority under the American law, recognized elsewhere in this act itself. Legislation is not to be construed as providing two different majorities for Frenchmen and Spaniards in this country. Indeed the court has construed § 5 as applicable also to Spaniards,. and cannot now construe the treaty as allowing one age and the Jones Bill as allowing another for the same act of choosing nationality. Under this view the petitioner is too late in making his claim.

The bona fides of the claim when made need not be entered into. It was not made until he had been summoned to the colors of the country which had afforded him protection during practically all his minority,, and thereupon he registers himself with the Spanish consulate as a Spanish subject. Treaties are not designed to protect bad faith. United States v. The Amistad, 15 Pet. 518, 10 L. ed. 826. Without regard to the bona tides, however, it would seem that he registered too late and before the wrong official. In Porto Kico it seems such claims of exemption because of Spanish citizenship are 137 in number, but of these only forty are registered in the consulate. It may be added that no construction will be adopted that will encourage anything like expatriation in war time, for that is illegal. 34 Stat. at L. 1228, chap. 2534, Comp. Stat. 1916, § 3958.

The conclusion seems to be, therefore, that when the Treaty of Paris permitted natives of the Peninsula to retain their nationality, this embraced or implied also the choice provisionally of tbé nationality of tbeir minor children, but that this imposed upon these minors the duty of making a final choice of nationality when they arrived at the age of twenty-one years. The choice was to be made by the father and the child on the respective dates by means of a declaration made before a court of record, and therefore the registry by the son of himself as a Spaniard upon the privileged books of .the Spanish consulate, especially when made two years after he attained his majority, and also after he had been called to the American colors, did not amount to a choice of Spanish citizenship within the purview of the Treaty of Paris.

It is unnecessary, therefore, to rest the decision of the case upon the literal wording of that treaty provision which declares that Congress shall determine the status of the “native inhabitants.” If the petitioner as the son of a Spaniard was during minority of Spanish nationality under the prior clause of the treaty, he has not retained that status, and thus the sáme result follows under either view. The status of one claiming under the native inhabitant clause may be left for consideration when the case arises of a minor who at majority has properly signified his election of Spanish citizenship.

It follows that the petitioner did not take the steps required by the Treaty of Paris, and therefore did not retain Spanish citizenship. His petition must be denied.

It is so ordered.