No. 113.
Mr. Fish to Mr. Washburne.
Washington, June 28, 1873.
Sir: In your No. 784 you invite instructions from the Department respecting two cases, stated by you in the following language:
- I.
- Madame Pepin applies, in behalf of her son, a young man eighteen years of age, to have some paper from the legation stating that he is an American citizen, and is to be protected as such. His case is as follows: John Pepin, the husband and father, was a Frenchman by birth. When a young man he emigrated to the United States, was educated in Kentucky, and became a naturalized citizen, residing in New Orleans. In 1850 he returned to France, leaving some property in New Orleans, which is still held by his family, he having died several years ago. After his return to this country he married a French woman, by whom he had a daughter, now twenty years of age, and the son above spoken of. He never returned to the United States to live, but made France his residence up to the time of his death. The boy in question has never been to the United States, though the mother and daughter went there two years ago, and the mother obtained a passport from the State Department as an American citizen. She says that the boy got a passport two years ago from the United States minister in London, but that he has lost it.
- II.
- A man and his wife, Americans by birth, came to Paris forty years ago, and have lived here ever since. This has become their permanent home, and they have never had any intention of returning to the United States. Several of their children have been born here, and have never been to the United States, and never expect to go, and never want to go.
You also state that—
Many questions must arise in regard to persons claiming to be citizens of the United States. As every Frenchman is now held to military service, applications are being made to the legation by young men who have been treated and considered as Frenchmen to declare themselves Americans.
This seems to make it advisable not only to dispose of the particular cases set forth in your dispatch, but also to invite your attention to certain general considerations which may be useful in determining future cases.
The fourteenth amendment to the Constitution declares that—
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.
Every person, therefore, who, in the first place, is entitled to claim [Page 257] the right of citizenship, by reason of birth within the jurisdiction of the United States, or by reason of naturalization therein, whether under the laws of the General Government or by the operation of treaties for the annexation of territory, and who, in the second j)lace, adds to that natural or acquired title the fact of a personal subjection to their jurisdiction, is constitutionally entitled to be recognized as a citizen, with all the consequences which may follow from such recognition. But the two concurrent circumstances must exist in every case in order to make the constitutional right complete.
It is, however, by no means to be assumed that Congress and the several legislatures which assented to the fourteenth amendment contemplated that a temporary withdrawal of the person of the citizen from subjection to national jurisdiction should forfeit the rights of citizenship. Such a construction would do violence to common sense, to the customs of Americans, who, from the foundation of this Government, have been in the habit of residing in foreign countries, and engaging in commerce there, retaining their nationality; and to the general jurisprudence of nations which recognizes such a residence as consistent with the preservation of nationality. The relations of such a citizen to the Government before the passage of the fourteenth amendment were described by Chief Justice Marshall in language which this Department adopts as equally applicable to his present status. “The American citizen,” he says, “who goes into a foreign country, although he owes local and temporary allegiance to that country, yet, if he performs no other act changing his position, is entitled to the protection of our Government; and if, without the violation of any municipal law, he should be oppressed unjustly, he would have a right to claim that protection, and the interposition of the American Government in his favor would be considered a justifiable interposition. But his situation is completely changed where, by his own act, he has made himself the subject of a foreign power. Although this act may not be sufficient to rescue him from punishment for any crime committed against the United States, a point not intended to be decided, yet it certainly places him out of the protection of the United States while within the territory of the sovereign to whom he has sworn allegiance.” (2 Cranch, p. 119.)
It seems to this Department that the individual right of expatriation which was thus referred to by Chief Justice Marshall is recognized by that clause of the fourteenth amendment to the Constitution which makes subjection to the jurisdiction of the United States an element of citizenship. This conclusion is strengthened by the simultaneous action of Congress.
The fourteenth amendment passed Congress “on or about the sixteenth of June, in the year one thousand eight hundred and sixty-six,” (15 St. at Large, p. 706,) in the form of resolution to be proposed to the legislatures of the several States. On the 20th day of July, A. D. 1868, my predecessor, Mr. Seward, made the official announcement that the proposal had received the requisite number of ratifications, and had become a part of the Constitution of the United States. (Ib.) On the 27th day of the same July the Congress of the United States enacted a law, in the preamble of which they declared that “the right of expatriation is a natural and inherent right of all people,” and in the body of which they enacted “that any declaration, instruction, opinion, order, or decision of any officer of this Government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent [Page 258] with the fundamental principles of this Government.”—(15 St. at Large, p. 223.)
Congress did not then define (nor has it since defined) what may constitute expatriation. The Department is, therefore, in its general instructions, forced to look elsewhere for an enumeration of the acts which may certainly be regarded as expatriating a citizen of the United States, so far as to disqualify him from appealing to the authorities of the United States for protection.
Mr. Justice Marshall, speaking for the Supreme Court, has said in the extract above quoted, that when a citizen “has made himself a subject of a foreign power his situation is completely changed.” This judicially-pronounced opinion of one of the most illustrious of my predecessors has been and is a recognized rule for the guidance of this Department.
This proposition is too plain to need further discussion. There are cases, however, resembling those referred to in your dispatch, in which doubts may possibly arise, cases in which the voluntary expatriation is to be inferred, not from an open act of renunciation, but from other circumstances, as, for instance, a residence in a foreign land so constant, and under such circumstances, that a purpose of a change of allegiance may be reasonably assumed.
In regard to such cases, I have to say that the right to be acknowledged as a citizen of the United States must be held as a high privilege and a precious right. When the person who possesses it is untainted by crime, or by the suspicion of expatriation, or by the non-fulfillment of the duties which accompany it, it entitles him abroad to the recognition and protection of a power which is not the least among the powers of the earth, while at home, under general regulations of law, he may participate in the distribution of political rights and privileges, he may enjoy the national guarantees of liberty and of protection to personal property, and he may share the advantages of education and the healthful social and moral influences which result from democratic institutions.
It is provided by the act of 1855 (10 St. at Large, p. 604) that persons born out of the limits and jurisdiction of the United States, whose fathers at the time of their birth are citizens of the United States, shall be deemed and considered to be citizens of the United States, provided that the right of citizenship shall not descend to persons whose fathers never resided in the United States.
I will presently refer to this proviso.
Within the sovereignty and jurisdiction of the United States the persons contemplated by the act are entitled to all the privileges of citizenship; but while the United States may by law fix or declare the conditions constituting citizenship within its own territorial jurisdiction, and may confer the rights of American citizenship everywhere upon persons who are not rightfully subject to the authority of any foreign country or government, it may be safely assumed that Congress did not contemplate the conferring of the full rights of citizenship upon the subject of a foreign nation who had not come within our territory, so as to interfere with the just rights of such nation to the government and control of its own subjects.
It is a well-established principle of public law that the municipal laws of a State have no effect within the limits of another power, beyond such as the latter may think proper to concede to them.
No foreign state can by its municipal legislation release from his obligation to the United States a person born within its territory and its jurisdiction who has continued from his birth to reside therein; and while he resides therein, and if, by the laws of the country of their birth, [Page 259] children of American citizens born in such country are subjects of its government, the legislation of the United States should not be construed so as to interfere with the allegiance which they owe to the country of their birth while they continue within its territory, or until they shall have relieved themselves of that allegiance and have assumed their rights of American citizenship, in conformity with the laws and Constitution of the country, and have brought themselves personally within its jurisdiction.
I have above referred to the proviso to the act of 1855. It is evident from this that the law-making power not only had in view the limit (above referred to) to the efficiency of municipal law in foreign jurisdiction, but intended that a distinction be observed between the right of citizenship, declared by the act of 1855, and the full citizenship of persons born within the territory and jurisdiction of the United States, for those declared to be citizens by the act could not transmit citizenship to their children without having become residents within the United States; the heritable blood of citizenship was thus associated unmistakeably with residence within the country, which was thus recognized as essential to full citizenship.
The provisions of the fourteenth amendment of the Constitution have been considered. This amendment is not only of more recent date, but is a higher authority than the act of Congress referred to, and if there be any conflict between them, or any difference, the Constitution must control, and that makes the subjection of the person of the individual to the jurisdiction of the Government a requisite of citizenship.
It does not necessarily follow from this that the children of American parents born abroad may not have the rights of inheritance, and of succession to estates, although they may not reside within or ever come within the jurisdiction of the United States. That question is not within the present consideration.
But if the citizen, on the one side, has rights which he may claim at the hands of the Government, on the other side there are imperative duties which he should perform toward that Government. If, on the one hand, the Government assumes the duty of protecting his rights and his privileges, on the other hand the citizen is supposed to be ever ready to place his fortune and even his life at its service, should the public necessities demand such a sacrifice. If, instead of doing this, he permanently withdraws his person from the national jurisdiction, if he places his property where it cannot be made to contribute to the national necessities; if his children are born and reared upon a foreign soil, with no purpose of returning to submit to the jurisdiction of the United States, then, in accordance with the principles laid down by Chief Justice Marshall, and recognized in the fourteenth amendment, and in the act of 1868, he has so far expatriated himself as to relieve this Government from the obligation of interference for his protection.
The Executive Department of the Government has had occasion to consider this question in negotiating and concluding treaties on the subject of naturalization. Thus it has been agreed with Bavaria, with Hesse, with Mexico, with North Germany, and with Würtemburg, that the residence of a naturalized citizen in the laud of his nativity, without intent to return to the United States, shall work of itself a renunciation of his naturalization, and that such an intent may be held to exist where the residence is continuous for more than two years.
This Department would not assume to decide that in such cases as are referred to in your dispatch a continuous residence in a foreign country of two or even of many years should of itself work an expatriation, [Page 260] Expatriation is a fact to be established, like any other fact, by external evidence, and such continuous residence, even for a life-time, is capable of being explained on other theories than that of a voluntary denationalization. But when the fact is once established, by whatever proof, it would, in the opinion of this Department, operate to place the expatriated person outside the number of those who can claim the protection of this Government as a right.
The duty of protection as toward the citizen, or the right of its exercise as toward the foreign power, is not always correlative with the fact of citizenship. Thus it was demonstrated by my predecessor, Mr. Marcy, that an extreme case may arise in which a government will be justified in taking upon itself the protection of persons who are not citizens. On the other hand, it is apparent that there may be instances of claims to citizenship which is nominal only, if it have any existence, as where the duties of citizenship have never been performed, where the person of the individual has never been within the national jurisdiction, or is voluntarily removed from it, and purposely kept beyond it; where his movable wealth is purposely placed where it may never contribute to the national necessities, and his income is expended for the benefit of a foreign government, and his accumulations go to swell its taxable wealth; and where from all the surrounding circumstances it must be assumed that he has abandoned the United States, and never intends to return to it.
It cannot be contended that a person with so faint an exercise of the duties of citizenship is entitled to claim the protection of this Government as a right.
Each case as it arises must be decided on its own merits. In each the main fact to be determined will be this, has there been such a practical expatriation as removes the individual from the jurisdiction of the United States?
If there has not been the applicant will be entitled to protection.
Continuous absence from this country does not necessarily presume expatriation. It has always been held to be consistent with a purpose of returning; and in the case of a natural-born citizen, or of a naturalized citizen, so residing in any country, except the country of his nativity, this Department would require its agents to extend the protection of the Government to all citizens, except in the presence of strong affirmative proof of a purpose of expatriation. But when a naturalized citizen returns to his native land to reside, the action of the treaty-making power above referred to would seem to require that such agents be jealous and scrutinizing when he seeks their intervention. Even in such case the purpose of not renouncing the adopted citizenship might be manifested and proved in various ways, such as the payment of an income-tax when such a tax was imposed, the maintenance of a domicile, and the payment of taxes on personal property within the United States, or other affirmative action.
It is the duty of the diplomatic and consular agents of the United States to listen to all facts which may be produced tending to exclude the presumption of expatriation, and to give to them the weight to which in each case they may be entitled.
The particular cases referred to in your dispatch are easily determined on the facts as you state them.
Pepin, the son of a naturalized Frenchman who returned to France and died there, was never in this country. It is alleged that he obtained an American passport from the legation in London some two years since; but it is not produced, and thus leaves him without any [Page 261] one of the indicia necessary to show an intent on his part to assume the duties of citizenship as well as the privileges granted by the act of 1855.
Excepting the alleged application for the passport in London, it would seem quite possible that, were it not for his desire to avoid the performance of duties required by French law, he would perhaps never have dreamed of calling himself an American, that he would remain in France and avoid all duties to the United States, that he would call himself a citizen of the United States and avoid all duties to France.
In the other case, an American, whose name is withheld, has lived with his family forty years in France, has reared his children there, has never proposed to return to the United States, and his children have never been to the United States, and never expect to go, and never want to go.
In each of these cases there is a presumption of a purpose of expatriation so strong that, until it can be rebutted to your satisfaction, you will be justified in concluding that the persons respectively are not entitled to your intervention to protect them against the operation of the laws of the country which they have selected as their place of residence.
I am, &c.,