Page:Harvard Law Review Volume 32.djvu/200

164 i64 HARVARD LAW REVIEW be suggested,*^ but it would be an unhappy ordeal and of uncertain outcome.^ Probably this attack would not have to be faced if our German be- haved himself. But the United States declares war against Germany. He is drafted, goes to France, and is captured in battle; the stone wall and the firing squad may well be his fate. To Germany, under the "principle of public law," he is still a German and emphatically a traitor. He has no clever American lawyer to defend him before the military tribunal. He has not even the cold comfort of expecting to be revenged. How can the United States enter upon reprisals for an act which it would have done itself had the situation been reversed? Or, to close the question with a less painful although serious possi- bility, imagine that our friend returns to Germany for a visit after peace is declared. Will he not taste -of durance vile? And, again, can the United States effectively protest the application of its own "principle of public law" which was indeed "vital to the interests of Germany"? It is now appropriate to turn from the first element of naturalization and consider briefly that aspect of the second which deals with the ac- ceptance of the applicant by the new sovereign of his choice. When war was declared against Germany in April of 191 7 alien enemies, and indeed every alien who was a "native citizen or subject, or a denizen" of the German Empire,^ automatically became barred from naturalization. In December of the same year Austro-Hungarians were likewise barred. But on May 9, 191 8, the naturalization law was radically amended.^ law, as it certainly has a right to do; that the Bancroft treaties cover the case, and § 36 of the Delbriick Law continues treaties in effect; that one needs no "discharge" to lose Germanic nationality by foreign naturaUzation, the questions of discharges and naturalization abroad being treated in entirely different sections of the Delbriick Law. ^ It may be remarked that the powers arrayed against Germany, and even neutral nations, would probably have treated our friend as still a German. During the war between France and England at the end of the eighteenth century a Frenchman emi- grated to the United States and became naturalized. . While the war was still on, he shipped a cargo to some foreign port, warranting the goods neutral. The British cap- tured and condemned them as belligerent. Held, that he cannot recover the insurance because there was a breach of warranty. The covenant of neutrahty was drawn in contemplation of international law and it is a rule of international law that a man may not expatriate himself flagrante bello. Duguet v. Rhinelander, i Johns. Cas. (N. Y.) 360 (1800); Jackson v. New York Insurance Co., 2 Johns. Cas. 191 (1801) ace. The former case was reversed and the latter overruled by a divided court. 2 Johns. Cas. 476; I Caines Cas. XXV gives the majority opinion only. The reasoning which ruled the upper court is not very persuasive. It appears to have been disapproved by contemporary jurists, i Kent Com., 3 ed., 76 (star paging); i Phillips on In- surance, 5 ed., § 166; I DuER ON Insurance, 521; i Arnould on Marine Ins., 9 ed., § 95. The lower court's rule seems also to be accepted by The Dos Hermanos, 2 Wheat. 98 (U. S.) (1817). be a mistake in the pimctuation of the first dozen words. The new act referred to in note 24 cured this mistake. "Alien enemy" may not sound rhetorically correct, but in our statute law it is a phrase of art and just now is particularly dear to those engaged in counter espionage activities. U. S. Rev. Stat., § 4067; Act July 6, 1798, c. 66, § i, I Stat. 577. The definition of the term was extended to women by an amendatory act of Congress, and the President by proclamation put this act into effective oper- ation. The act is dated April 16, 1918, the proclamation, April 19, 1918. " By Pub. No. 144, 6sth Cong., H. R. 3132. The amendatory act is frequently re- ferred to as "The Raker Act."
 * As, for instance, that the United States naturalizes in entire disregard of foreign
 * U. S. Rev. Stat., § 2171, Act April 14, 1802, c. 28, § i, 2 Stat. 153. There seems to