Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1873

No. 497.
The Secretary of State to the President.

Department of State,
Washington, August 25, 1873.

To the President:

I have had the honor to receive your communication, dated the 6th instant, requiring my opinion as the principal officer of one of the Executive Departments respecting several questions which accompanied your communication.

In obedience to that requirement I respectfully submit my opinion, in answer to the several questions, as follows:

“Question 1. The law-making power having declared that ‘the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness,’ (15 Stat. at Large, 223,) should the Executive refuse to give effect to an act of expatriation of a citizen of the United States?”

The act of Congress of 27th July, 1868, (15 Stat. at Large, 223,) disposed of the contradictory opinions and decisions of officers of this Government as to the right of expatriation (so far as it concerns citizens of the United States) by declaring in its preamble that “the right of extradition is a natural and inherent right of all people.”

This is the legislative declaration of the principle on which the naturalization laws of the United States have ever rested; and is the legislative sanction of the doctrine which has, almost without exception, been uniformily held in the diplomatic correspondence, and by the executive and political branch of the Government.

There seems, therefore, to be no difficulty in answering to the first question that the Executive should not refuse to give effect to an act of expatriation of a citizen of the United States.

But the legislative authority which declared it “to be a natural and inherent right of all people,” has failed to define “expatriation,” or to declare how or under what circumstances it may be exercised, what is essential to its full attainment, or what shall be the evidence of its accomplishment.

The absence of authoritative or of legislative definition on these points has given rise to much doubt and correspondence on the part of the Executive Departments of the Government.

Expatriation, I understand to mean, the quitting of one’s country with an abandonment of allegiance, and with the view of becoming permanently a resident and citizen of some other country, resulting in the loss of the party’s pre-existing character of citizenship. The quitting of the country must be real, that is to say, actual emigration for a lawful purpose, and should be accompanied by some open avowal or other attendant acts showing good faith, and a determination and intention to transfer one’s allegiance.

It cannot be exercised by one while residing in the country whose allegiance he desires to renounce, nor during the existence of hostilities; no subject of a belligerent can transfer his allegiance or acquire another citizenship, as the desertion of one’s country in time of war is an act of criminality, and to admit the right of expatriation “flagrante bello” would be to afford a cover to desertion, and treasonable aid to the public enemy.

It can be exercised only by persons of lawful age, and not by those who leave their country under the charge or conviction of crime, or other disabilities. And the same considerations of public policy which deny the right of any citizen in time of war, would seem to justify its denial to any citizen while in the actual service of his country; and it will be remembered that Congress has asserted its right to denationalize its own citizens, and has defined one mode whereby the right of citizenship shall be forfeited, in the act of March 3, 1865, (13 Stat., p. 490,) which provides that, in addition to the other lawful penalties of desertion from the military or naval service of the United States, all persons who shall desert such service, or who, being enrolled, shall depart the jurisdiction of the district in which he is enrolled, or go beyond the limits of the United States with intent to avoid any draft into the military or naval service, duly ordered, shall be deemed to have voluntarily relinquished and forfeited their rights of citizenship, or to become citizens, and shall be forever incapable of holding any office of trust or profit under the United States, or of exercising any rights of citizens thereof.

“Question 2. May a formal renunciation of United States citizenship, and a voluntary submission to the sovereignty of another power, he regarded otherwise than an act of expatriation?”

This question is understood to presuppose an actual change of residence; inasmuch as no person can make himself subject to another power while domiciled and resident within one to which he owes allegiance.

Chief Justice Marshall (2 Cranch, p. 119) says that when a citizen by his own act has made himself the subject of a foreign power, his situation is completely changed, and that the act certainly places him out of the protection of the United States while within the territory of the sovereign to whom he has sworn allegiance.

This opinion is in conformity with public policy and right, and is sustained by the general authority of the writers on public law.

The fourteenth amendment to the Constitution makes subjection to the jurisdiction of the United States an element of citizenship of the United States.

If, then, to this act of voluntary submission of himself to the sovereignty of another power be added a formal renunciation of American citizenship, I cannot see that it can be regarded otherwise than as an act of expatriation.

Hence, it would seem that the marriage of a female citizen of the United States with a foreigner, subject of a country by whose laws marriage confers citizenship upon the wife of its subject, and her removal to and residence in the country of her husband’s citizenship, would divest her of her native character of an American citizen.

A Frenchman loses his native character by foreign naturalization, or by accepting office under a foreign government without permission of the State, or by so establishing himself abroad as to evidence an intention of never returning to his country.

The Austrian and Prussian emigrant who has obtained permission and quits his country “sine animo revertendi,” forfeits the privilege of citizenship.

Bavarian citizenship is lost by the acquisition, without the special permission of the King, of “jura indigenatus” in another country, by emigration, and by the marriage of a Bavarian woman with a stranger.

Würtemberg citizenship is lost by emigration sanctioned by government, or by the acceptance of a public office in another state.

In Spain citizenship is lost by foreign naturalization, or by entering the service of another state without permission of government.

In Portugal, by foreign naturalization; by acceptance, without permission of the King, of a pension and of a decoration from a foreign state, and by judicial banishment.

“Question 3. Can an election of expatriation be shown or presumed by an acquisition of domicile in another country with an avowed purpose not to return?”

Protracted absence from the country of one’s allegiance is not of itself evidence of abandonment or of intentional change of allegiance.

But in answering this question with reference to the policy or practice of the United States, regard must be had to the change which late years have brought about with respect to the doctrine of perpetual allegiance, for a long time persistently maintained by Great Britain at least, and with reference to which doctrine many of the opinions and decisions of jurists and of courts have been framed, as also to the facility which the policy of this Government in its naturalization laws has extended to the subjects of other powers to throw off their previous allegiance, and to the earnestness with which the United States, in all branches of its Government, asserts and enforces the right of expatriation and of renunciation of pre-existing citizenship.

The international treaties of naturalization of late years make an entire change of doctrine from that laid down by jurists, and held by courts, before the overthrow and abandonment of the doctrine of perpetual allegiance.

This question, therefore, presents itself for consideration somewhat in the nature of one of first impression, and to be answered with reference to a policy and to principles but recently of general acceptance, rather than to the dogmas of books.

If government assume the duty of protection, the citizen must be ready to support the government with his services, his fortune, and his life even, should the public exigencies be such as to require them.

He may reside abroad for purposes of health, of education, of amusement, of business, for an indefinite period; he may acquire a commercial or a civil domicile there; but if he do so sincerely and bona fide animo revertendi, and do nothing inconsistent with his pre-existing allegiance, he will not thereby have taken any step towards self-expatriation.

But if, instead of this, he permanently withdraws himself and his property, and places both where neither can be made to contribute to the national necessities, acquires a political domicile in a foreign country, and avows his purpose not to return, he has placed himself in the position where his country has the right to presume that he has made his election of expatriation.

In several of the treaties of naturalization of this with other powers, the residence of a naturalized citizen in the land of his nativity without intent to return to the United States, is declared to work of itself a renunciation of the citizenship acquired by naturalization, and such intent may be held to exist when the residence continues for more than two years.

The fourteenth amendment of the Constitution makes personal subjection to the jurisdiction of the United States an element of citizenship. The avowed, voluntary, permanent withdrawal from such jurisdiction would seem to furnish one of the strongest evidences of the exercise of that right which Congress had declared to be the natural and inherent right of all people.

But in the absence of legislative definition of what constitutes “expatriation,” and of the mode whereby it is to be effected, the experience of the Government has made manifest that while expatriation is declared to be a right, which may be converted into a fact, it is, like other facts, to be established in each individual case by evidence peculiar to itself; and each case to be decided upon its own merits.

“Question 4. Ought the Government to hold itself bound to extend its protection, and consequently exert its military and naval power for such protection, in favor of persons who have left its territories, and who reside abroad, without an apparent intent to return to them, and who do not contribute to its support?”

It does not necessarily follow that a citizen has lost his right to the protection of his Government because he may have left its territories and resides abroad without apparent intent to return and without contributing to its support.

The intent to return, although not apparent, may be really and bonafide entertained, and it does not necessarily follow that he is avoiding any obligation to his country because he does not contribute to its support. There may be no contributions at the time required of the citizen.

While thus resident or “domiciled” in another country he becomes amenable to its laws; but unless he assume some position or commit some act inconsistent with his pre-existing citizenship he does not forfeit that citizenship, or his right to look to his Government to extend to him all the protection which the nature of any wrong or injustice inflicted upon him by the Government within whose territories he may be domiciled may justify. In connection with this question, and with reference to the exertion of military and naval power for the protection or in favor of citizens of the United States who may be unjustly deprived of their liberty by the authority of foreign governments, it may be remarked that while the act of July 27, 1868, (15 Stat., 223,) declares it to be the duty of the President to demand the reasons of such imprisonment, it prohibits his use of the military or naval power of the Government to obtain his release.

“Question 5. What should constitute evidence of the absence of an intent to return, in such cases?”

By some of the recent naturalization treaties two years’ continued residence of a naturalized citizen in the country of his nativity after his naturalization may be regarded as evidence of intent not to return to the United States. The strongest evidence of such intent would be the solemn declaration of intention of remaining abroad.

Naturalization, or taking preliminary steps to become naturalized in a foreign country, voluntary entrance into the civil or military service of another government, express renunciation, or acts amounting thereto, or indicating a fixed intention of renunciation of pre-existing citizenship, might be regarded as evidence of the absence of intent to return, which might also be otherwise indicated by a variety of facts or of circumstances.

When a person who has attained his majority removes to another country and settles himself there, he is stamped with the national character of his new domicile; and this is so notwithstanding he may entertain a floating intention of returning to his original residence or citizenship at some future period; and the presumption of law, with respect to residence in a foreign country, especially if it be protracted, is that the party is there “animo manendi,” and it lies upon him to explain it.

It is probably not possible to lay down any general rule in answer to this question, and it results that each case must be decided upon its own merits.

“Question 6. When a naturalized citizen of the United States returns to his native country and resides there for a series of years, with no apparent purpose of returning, shall he be deemed to have expatriated himself, where the case is not regulated by treaty?”

A person of foreign birth once duly naturalized is a citizen, entitled to all the privileges and protection which may be claimed by one born within the territory of the United States. He may, however, divest himself of his acquired citizenship, or may lose his character as such, either in accordance with treaty regulations, or in the same mode by which a native-born citizen becomes expatriated or denationalized.

The act of July 27, 1868, (15 Stat. at Large, p. 223,) enacts that all naturalized citizens of the United States while in foreign states shall be entitled to and shall receive from this Government the same protection of persons and property that is accorded to native-born citizens in like situations and circumstances.

The question recognizes the fact, already alluded to, that our treaties with some powers make a residence in the country of nativity, without intent to return to the country of adoption, to work a renunciation of the citizenship acquired by naturalization.

By some treaties no fixed period of residence in the country of nativity works of itself a renunciation of the acquired citizenship, while by others the intent not to return may be held to exist when the residence continues more than two years.

By the treaty with Great Britain of 13th May, 1870, the British subject naturalized in the United States after its date who renews his residence within the British Dominion may, on his own application, and on such conditions as the British government may impose, be re-admitted to the character of a British subject. Residence alone, however long continued, without a direct application to be re-admitted to British citizenship, and without the assent thereto of the British governmet, will not rehabilitate him as a British subject.

The adoption in numerous treaties of this period of two years as that when the intent not to return to the United States may be held to exist on the part of the naturalized citizen who has returned to his native country, indicates that while the principle on which rests the right of protection while in foreign countries of the naturalized is the same with that of the native-born citizen, there is an appreciation of the strong proclivity to resume his original citizenship on the part of him who, having wandered from home, returns to find the attractions of early associations and of family ties enticing him at a period, perhaps, when the restlessness and spirit of adventure of the fresher years of life have passed, to rest and to end his days amid the scenes of his childhood or youth and among those who claim the strong ties of common blood.

Hence, probably, even when not regulated by treaty, the evidence would be more readily obtained to determine that a naturalized citizen who had returned to the country of his nativity should be deemed to have expatriated himself—or, perhaps it would be more proper to say, to have rehabilitated himself with his original citizenship—than to show that a native-born citizen had expatriated himself by the same period of foreign residence.

It not infrequently happens that naturalization is almost immediately followed by the return of the naturalized person to his native country, and his continued residence there, without having acquired property or established any permanent relations of family or of business in the United States.

Again, cases are of constant occurrence of naturalized persons who have resided for years in the country of nativity, manifesting no purpose of returning to the United States and exhibiting no interest in the Government, but who assert American citizenship only when called upon to discharge some duty in the country of their residence; thus making the claim to American citizenship the pretext for avoiding duties to one country, while absence secures them from duties to the other.

These are among the class of cases where the continued residence in the country of nativity, and the absence of apparent purpose of returning, may be taken at least as prima facie evidence of expatriation.

But generally, when not regulated by treaty, the mere absence of apparent purpose of returning to the United States on the part of a naturalized citizen who has returned to his native country and resided there for a series of years, does not of itself constitute evidence of his self-expatriation.

The presumption of law to which reference has already been made, viz, that he is there animo manendi, applies, however, to him equally with the native-born citizen, and it rests with him as with the native-born to explain it; and here, again, in the absence of some prescribed rule, the circumstances attending each case must control its decision.

“Question 7. Are the children born abroad of a person who has been a citizen of the United States, but who has become a subject or citizen of another power, or who has expatriated himself, citizens of the United States and entitled to its protection?”

If born after the father has become the subject or citizen of another power, or after he has in anyway expatriated himself, the children born abroad are to all intents and purposes aliens, and not entitled to protection from the United States.

The act of 10th February, 1855, (10 Stat. at Large, 604,) provides that “persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered, and are hereby declared to be, citizens of the United States: Provided, however, That the right of citizenship shall not descend to persons whose fathers never resided in the United States.”

It will be noticed that the act professes to extend citizenship only to those born abroad whose fathers at the time of their birth are citizens.

Every independent state has as one of the incidents of its sovereignty the right of municipal legislation and jurisdiction over all persons within its territory, and may therefore change their nationality by naturalization, and this, without regard to the municipal laws of the country whose subjects are so naturalized, so long as they remain, or exercise the rights conferred by naturalization, within the territory and jurisdiction of the state which grants it.

It may also endow with the rights and privileges of its citizenship persons residing in other countries, so as to entitle them to all rights of property and of succession within its limits, and also with political privileges and civil rights to be enjoyed or exercised within the territory and jurisdiction of the state thus conferring its citizenship.

But no sovereignty can extend its jurisdiction beyond its own territorial limits so as to relieve those born under and subject to another jurisdiction, from their obligations or duties thereto; nor can the municipal law of one state interfere with the duties or obligations which its citizens incur, while voluntarily resident in such foreign state and without the jurisdiction of their own country.

It is evident from the proviso in the act of 10th February, 1855, viz, “that the rights of citizenship shall not descend to persons whose fathers never resided in the United States,” that the law-making power not only had in view this limit to the efficiency of its own municipal enactments in foreign jurisdiction, but that it has conferred only a qualified citizenship upon the children of American fathers born without the jurisdiction of the United States, and has denied to them, what pertains to other American citizens, the right of transmitting citizenship to their children, unless they shall have made themselves residents of the United States, or, in the language of the fourteenth amendment of the Constitution, have made themselves “subject to the jurisdiction thereof.”

The child born of alien parents in the United States is held to be a citizen thereof and to be subject to duties with regard to this country which do not attach to the father.

The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are born to claim them as citizens and to subject them to duties to it.

Such children are born to a double character: the citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned and within the jurisdiction of that country; but the child, from the circumstances of his birth, may acquire rights and owes another fealty besides that which attaches to the father.

“Questions 8. Can a person who has formally renounced his allegiance to the United States, and assumed the obligations of a citizen or subject of another power, become again a ctizen of the United States in any other way than in the manner provided by general laws?”

Persons who have formally renounced their allegiance to the United States and have assumed the obligations of citizen or subject of another power—in other words, persons who have denationalized or expatriated themselves—are aliens to the United States, and can become citizens only by virtue of the same laws, and with the same formalities, and by the same process, by which other aliens are enabled to become citizens.

Having replied to the several questions submitted, I may be permitted to express my opinion of the necessity of legislation to define how and by what acts, whether of commission or of omission, or of both, United States citizenship is lost.

It has been shown that in some instances recent treaties provide one test; but even in these cases further legislation is needed to relieve the decision in each case of much embarrassment and of much doubt.

I have the honor to be, sir, with great respect, your obedient servant,

HAMILTON FISH.