No. 498.
The Secretary of the Treasury to the President.

To the President:

I have the honor to acknowledge the receipt of your letter of the 6th August, 1873.

In this letter you desire my answer to eight questions, each of which bears in some form upon the question of expatriation.

These questions are as follows:

  • “I. The law-making power having declared ‘that the right of expatriation is a natural and inherent right of all people, indispensable to 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?
  • “II. May a formal renunciation of United States citizenship, and a voluntary submission to the sovereignty of another power, be regarded otherwise than as an act of expatriation?
  • “III. Can an election of expatriation be shown or presumed by an acquisition of domicile in another country with an avowed purpose not to return?
  • “IV. 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?
  • “V. What should constitute evidence of the absence of an intent to return in such cases?
  • “VI. 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?
  • “VII. 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?
  • “VIII. Can a person who has formally renounced his aliegiance to the United States, and assumed the obligations of a citizen or subject of another power, become again a citizen of the United States in any other way than in the manner provided by general laws?”

To reach a satisfactory answer to these questions it becomes necessary to consider with some precision whether a citizen of the United States could, before the passage of the act of July 27, 1868, expatriate himself; and, if so, what steps must be taken by him before he could carry his purpose in this regard into effect.

It is a rule of the common law that a natural-born subject owes an allegiance which is intrinsic and immutable. This allegiance cannot be forfeited, canceled, or altered by any change of time, place, or circumstance, nor by anything but the united concurrence of the legislature. Thus it is held that the natural-born subject cannot by an act of his own, nor by swearing allegiance to another, put off or discharge his natural allegiance to the country of his birth, for this natural allegiance was intrinsic and primitive and antecedent to the other, and cannot be divested without the concurrent act of the prince to whom it was first due. In McDonald’s case, who was tried in 1846 for high treason, it was held that it was not in the power of any subject to shake off his allegiance and transfer it to another, nor could a foreign prince by naturalizing a British subject dissolve the bond of allegiance between that subject and the Crown. Entering into foreign service or refusing to leave that service when commanded to by the King is held to be a misdemeanor, and by a proclamation on the 16th of October, 1807, when the kingdom of Great Britain was menaced, all seamen who were natural-born subjects were, on pain of contempt, ordered to withdraw themselves and return home; and it was further declared that naturalization [Page 1194] did not alter their duty to their lawful sovereign. In later discussions, however, which have taken place between the British and American Governments, the practical application of the doctrine of indefeasible allegiance would seem to be confined to cases of return to Great Britain, and not to operate on their assumed obligation to their adopted country. In a note of Lord Palmerston, August 16, 1849, to Mr. Bancroft, minister to London, it is said: “It is well known that by laws of Great Britain no restraint can, except in very special cases, be placed upon the perfect liberty of every British subject to leave the realm when and for whatever period of time he chooses. So long as he remains in the United States, or in any other country, he is amenable to the laws of the country in which he resides.” (Lawrence’s Wheaton, page 927.)

Publicists assert a doctrine in this respect different from that established by the common law. They hold whenever a person attains his majority he becomes free to change his nationality and abandon his native country, unless there be some positive restraint by law, or unless his country be in distress, or in war, and stands in need of his assistance. Cicero regarded it as one of the firmest foundations of Roman liberty that the Roman citizen had the liberty to stay or abandon his residence at pleasure. “Haec sunt enim fundamenta firmissima nostræ libertatis, sui quemque juris retinendi et dimittendi esse dominum.”

“The laws of European countries contemplate and provide for expatriation. Thus the code Napoleon provides ‘that the quality of Frenchmen will be lost—first, by naturalization acquired in a foreign country; second, by acceptance without authority of the government of public functions conferred by a foreign government; third, by establishment in a foreign country without purpose of return.”

Expatriation is also lawful in Spain and the Spanish-American Republics.

“In Prussia the law is similar, and in all the German states emigration is permitted, with the express leave from the government. This permission cannot be granted to males between seventeen and twenty-five years unless they produce a certificate from the commission for recruiting the army testifying that they do not propose to expatriate themselves for the sole purpose of evading their military obligations. (Section 17 of the law of 31st of December, 1842.) This certificate serves also as a guide when it is required to determine if there is reason to grant to minors authority to emigrate with their parents.

“In Austria emigration is not permitted without consent of the proper authorities; but the emigrant who has obtained permission and who quits the empire, sine animo revertendi, forfeits the privileges of an Austrian citizen.

“In Bavaria citizenship is lost—first, by the acquisition without the special permission of the King of the jus indigenatus in another country; second, by emigration; third, by the marriage of a Bavarian woman with a foreigner.

“In Wurtemberg citizenship is lost by emigration authorized by the government, or by the acceptance of a public office in another state.” (Phillimore on International Law, loc. cit.)

“In Russia the quality of a subject is lost by a residence abroad; by voluntary expatriation without the intention of return; by disappearance. Every individual subject to the capitation-tax is considered to have disappeared who during ten years has not been heard of in the place of his domicile.” (Rev. Etr. et Fr., tom. iii, p. 267).

“In Spain the quality of Spaniard is lost by acquiring naturalization in a foreign country, and by entering into the employment of another government without the consent of the King.” (Cos Gayon, Diccionario [Page 1195] de Derecho Administrativo Español, p. 360; Constitution de la Monarquia Espanola, Art. 1, § 4.

In the United States there were, prior to 1868, no laws which either expressly forbade or expressly authorized the expatriation of citizens of the United States, and it was a question which had commanded the serious consideration of the American Government, whether the English doctrine of perpetual allegiance obtained in its fullest extent in this country.

As far as the opinion of the executive branch of the Government can be ascertained from the discussions which arose, it would seem that the doctrine of perpetual allegiance was not in force in this country.

The views of that branch of the Government, in the year 1793, were thus expressed in a letter from Mr. Jefferson, then Secretary of State, to Mr. Morris: “Our citizens are certainly free to divest themselves of that character by emigrating, and other acts manifesting their intention, and may then become the subjects of another power, and free to do whatever the subjects of that power may do.”

Again, in the year 1794, Mr. Randolph, Secretary of State, thus expressed himself relative to the alleged expatriation of one Captain Talbot: “I cannot doubt that Captain Talbot has taken an oath to the French Republic, and at the same time I acknowledge my belief that no law of any of the States prohibits expatriation. But it is obvious that, to prevent frauds, some rules and ceremonies are necessary for its government. It then becomes a question, which is also an affair of the judiciary, whether those rules and ceremonies have been complied with.” (Letter to M. Fauchet, October 28, 1797.)

General Cass, while Secretary of State, held that “the moment a foreigner becomes naturalized his allegiance to his native country is severed forever. He experiences a new political birth; a broad and impassable line separates him from his native country.”

In a report, presented in December, 1851, by Mr. Webster, Secretary of State, in the case of John L. Thrasher, in obedience to a resolution of the House of Representatives, he says:

There is no doubt that John L. Thrasher is a citizen of the United States by birth, nor is there any doubt that he has resided in the island of Cuba for a considerable number of years, engaged in business transactions, sometimes as a merchant, and sometimes as the conductor of a newspaper press, although the precise period and duration of such residence are not known.

“In a letter from the governor of Cuba to Her Catholic Majesty’s minister in the United States, it is stated that he has not only been a resident in Havana for a considerable time, but domiciled there by regular proceeding, and that he has in a solemn form sworn allegiance to the Spanish Crown.

“It appears that soon after the failure and breaking up of the late expedition of Narciso Lopez, in the invasion of Cuba by him and the troops under his command, Mr. Thrasher was arrested and tried for high treason or conspiracy against the Crown of Spain, condemned to eight years’ imprisonment to hard labor, and sent to Spain in execution of that sentence.

“The first general question is as to this right of exemption from Spanish law and Spanish authority on the ground of his being a native-born citizen of the United States.

“The general rule of public law is, that every person of full age has a right to change his domicile, and it follows that when he removes to another place with the intention to make that place his permanent residence, [Page 1196] or his residence for an indefinite period, it becomes instantly his place of domicile, and this is so notwithstanding he may entertain a floating intention of returning to his original residence or citizenship at some future period.

“The Supreme Court of the United States has decided ‘that a person who removes to a foreign country, settles himself there and engages in trade of the country, furnishes by these acts such evidence of an intention permanently to reside in that country as to stamp him with its national character,’ and this undoubtedly is in full accordance with the sentiments of the most eminent writers as well as those of other high judicial tribunals on the subject. No government has carried this general presumption further than that of the United States, since it is well known that hundreds of thousands of citizens are now living in this country who have not been naturalized according to the provisions of law, nor sworn allegiance to this government, nor been domiciled among us by any regular course of proceedings. What degree of alarm would it not give to this vastly numerous class of men actually living among us as inhabitants of the United States to learn that by removing to this country they had not transferred their allegiance from the government of which they were originally subjects to this Government.”

* * * * * * *

In Martin Koszta’s case, a Hungarian by birth, who had on the 31st of July, 1852, made a declaration of his intention to become a citizen of the United States, and who while in Turkey on private business of a temporary character was seized, at the instigation of the consul-general of Austria, and confined in irons on board the Austrian brig-of-war the Huzar, and released on the demand of Captain Ingraham, who intimated that he should resort to force if the demand was not complied with by a certain hour, the principles which apply to allegiance and expatriation are there stated by Mr. Secretary Marcy in answer to Mr. Hülseman’s demand that the President should surrender Koszta, disavow the acts of the American captain, and give satisfaction for the alleged outrage on Austria.

“There is great diversity and much confusion of opinion as to the nature and obligations of allegiance. By some it is held to be an indestructible political tie, and though resulting from the mere accident of birth, yet forever binding the subject to the sovereign. By others it is considered a political connection in the nature of a civil contract, dissoluble by mutual consent, but not so at the option of either party. The sounder and more prevalent doctrine, however, is that the citizen or subject having faithfully performed the past and present duties resulting from his relation to the sovereign power, may at any time release himself from the obligation of allegiance, freely quit the land of his birth or adoption, seek through all countries a home, and select anywhere that which offers him the finest prospect of happiness for himself and posterity. When the sovereign power, wheresoever it may be placed, does not answer the ends for which it is bestowed, when it is not extended for the general welfare of the people, or has become oppressive to individuals, this right to withdraw rests on as firm a basis, and is similar in principle, to the right which legitimates resistance to tyranny.”

It is said that the naturalization laws of the United States proceed upon the principle that every individual has a right to change his allegiance, and such has been the language of diplomatic communications, in accordance with the doctrine of publicists, that whenever a child attains his majority according to the law of his domicile or origin, he becomes free to change his nationality. In the instructions from Mr. [Page 1197] Cass to the minister at Berlin, July 8, 1859, it is said “the right of expatriation cannot at this day be doubted or denied in the United States. The idea has been repudiated ever since the origin of our Government, that a man is bound to remain forever in the country of his birth, and that he has no right to exercise his free will, and consult his own happiness by selecting a new home. The most eminent writers on public law recognize the right of expatriation. This can only be contested by those who, in the nineteenth century, are still devoted to the ancient feudal law with all its oppression. The doctrine of perpetual allegiance is a relic of barbarism which has been gradually disappearing from Christendom during the last century.”

The question of expatriation has been frequently discussed by the courts of the United States, and though no judicial determination has, so far as I know, ever been had, I think that a review of these discussions will show what is the opinion of those tribunals.

The question first arose in the case of Talbot vs. Janson, decided in August, 1795. Talbot, an American by birth, captured a vessel and cargo belonging to citizens of the United Netherlands, a nation at peace with the United States. Talbot claimed that he had been admitted a citizen of the French republic, had therefrom received a commission as captain, and as such had taken as prize the vessel in question as the property of subjects of the United Netherlands with whom France was at war.

The case came by appeal to the Supreme Court. In deciding it one of the judges (Iredell, J.) said: “The first point to be considered is whether Talbot, at the time of receiving his commission, or at the time of the capture, was a French citizen. This involves the great question as to the right of expatriation, upon which so much has been said in this court. Perhaps it is not necessary it should be explicitly decided on this occasion, but I shall freely express my sentiments on the subject.

“That a man might not be a slave; that he should not be confined against his will to a particular spot because he happens to draw his first breath upon it; that he should not be compelled to continue in a society to which he is accidentally attached, when he can better his situation elsewhere, much less when he must starve in one country and may live comfortably in another, are positions which I hold as strongly as any man, and they are such as most nations in the world clearly recognize.

“The only difference of opinion is as to the proper manner of executing this right.”

The conclusion of the learned judge is, that the right of expatriation ought not to be restrained, but that it can be permitted only by an act of legislature, which, as the guardian of the public interest, is the only power that can take cognizance of the subject. It is not a natural right. As every man is entitled to claim the rights of society, he is in turn under a solemn obligation to discharge to society all his duties faithfully. If, therefore, he is in the exercise of a public trust, he cannot leave his country until he has fully discharged it. If he owes money he ought not to quit the state and carry his property with him without the consent of his creditors. Though a man may be naturalized abroad, yet, if he has not been discharged from his allegiance at home, it will remain, notwithstanding disagreeable dilemmas may be occasioned by the taking upon himself this double citizenship.

The judgment of the court was that, under the circumstances of the case, Talbot must be considered a citizen of the United States, but they gave no decided opinion upon the question of expatriation. The opinion, however, seems to have been that though the general right [Page 1198] of expatriation existed, it could not be exercised without the sanction of the legislature.

The point arose again in Isaac Williams’s case, in the circuit court of the United States, in 1797. Williams was indicted for accepting a commission under the French government, and under the authority thereof committing acts of hostility against Great Britain. His defense was that he had expatriated himself and become a citizen of France. Upon the question of expatriation then raised, Judge Ellsworth is said to have held that the common law of this country remains the same as it was before the Revolution. The question, therefore, was to be settled by the application of two principles. “One is that all the members of a civil community are bound to each other by compact; the other is, that one of the parties to this compact cannot dissolve it by his own act.” The compact is that society shall protect its members, who on their part are bound, at all times, to be obedient to it, and faithful to its defense. The necessary result is that a member cannot dissolve the compact without the consent or default of the community. The most visionary writers do not contend that a citizen may at any and at all times renounce his own and join a foreign country, and the fact that the government permits the naturalization of foreigners implies no consent on its part “that its own citizens should expatriate themselves.”

The question again arose in the Supreme Court of the United States in the case of the Charming Betsey, and though the point was earnestly argued the court again avoided expressing an opinion upon it. They say, “Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of that character otherwise than in such a manner as may be prescribed by law, is a question which it is not necessary at present to decide.”

This was in 1804. In 1805, Judge Washington, in the case of United States vs. Gillies, heard in the circuit court at Philadelphia, said: “I do not mean to moot the question of expatriation founded in the self-will of a citizen. It may suffice for the present to say that I must be more enlightened on this subject than I have yet been before I can admit that a citizen of the United States can throw off his allegiance and his country without some law authorizing him to do so. It is true a man may obtain a foreign domicile which will impress upon him a national character for commercial purposes, and may expose his property found upon the ocean to all the consequences of his new character, in like manner as if he were in fact a subject of the government under which he resides. But he does not on this account lose his original character, or cease to be a subject or citizen of the country where he was born, and to which his perpetual allegiance is due.”

The question was again presented to the Supreme Court of the United States in 1822, in the case of the Santissima Trinidad; but Judge Story, in delivering the opinion of the court, allows the same uncertainty to remain in respect to the solution of it. “Assuming,” he says, “for the purpose of argument, that an American citizen may, independently of any legislative act to this effect, throw off his own allegiance to his native country, as to which we give no opinion, it is perfectly clear that this cannot be done without a bona-fide change of domicile under circumstances of good faith. It can never be asserted as a cover of fraud or as a justification for the commission of crime against the country, or for a violation of its laws when this appears to be the intention of the act. It is unnecessary to go further into the examination of the doctrine. It will be sufficient to ascertain its precise nature and limits when it shall become the leading point of a judgment of the court.”

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In the case of Stoughton vs. Taylor, however, determined in the circuit court of the United States, held at New York about 1828, a more liberal view of the right of expatriation was taken.

In this case it is said, “The general evidence of expatriation is actual emigration, with other concurrent acts, showing a determination and intention to transfer allegiance.

“The evidence in this case is emigration more than twelve years since, swearing allegiance to another government eight years ago, entering into its service and continuing in it uniformly from that time to this. On this evidence I cannot hesitate to say that the defendant has lost his character as a citizen of the United States; he has abandoned his rights as such; he cannot now claim them, and cannot be called upon to perform any of the duties incident to that character. It may, perhaps, be said that the government to which he has sworn allegiance is not independent, and that the act is therefore inoperative and void. If that were so, yet the fact of emigration and the evidence of the animus manendi, the intention to remain abroad and to abandon his citizenship here, as manifested by his oath of allegiance to another government claiming to be independent, are sufficient to sustain his expatriation. In whatever light the government to which he professes to belong may be viewed by other nations, it is independent in fact, and may forever remain so, although not recognized in form.”

Finally, in 1830, in the case of Inglis vs. Trustees of Sailors’ Snug Harbor, the Supreme Court of the United States say: “It cannot, I presume, be denied but that allegiance may be dissolved by the mutual consent of the Government and its citizens or subjects. The Government may release the governed from their allegiance. This is ever the British doctrine.” And in the case of Shanks vs. Dupont, decided in the same court, Judge Story, who delivered the opinion, said: “The general doctrine is that no persons can, by any act of their own, without the consent of the Government, put off their allegiance and become aliens.” Judge Thompson, who delivered a dissenting opinion, not, however, upon this point, said: “There is not a writer who treats upon the subject who does not qualify the exercise of the right to emigrate, much more that of putting off or changing an allegiance, with so many exceptions as to time and circumstance as plainly to show that it cannot be considered as an inalienable or even perfect right. A state of war, want of inhabitants, indispensable talents, transfer of knowledge and wealth to a rival, and various other grounds are imagined by writers on public law, upon which nature may lawfully and reasonably limit and restrict the exercise of individual volition in putting off allegiance. All this shows that whenever an individual proposes to remove, a question of right or obligation arises between himself and the community, which must be decided in some mode, and what other mode is there but a reference to the positive legislation or received principles of the society itself? It is, therefore, a subject for municipal regulation.”

The cases cited comprise all which have arisen in the Supreme or other courts of the United States in which the question of expatriation has been discussed, and it will be seen that they have studiously avoided a decision of it.

The State courts, however, have not been so reticent in expressing an opinion on this question.

As early as 1813 Chief Justice Parsons, in the case of Anslie vs. Martin, said: “This claim of the commonwealth to the allegiance of all persons born within its territories may subject some persons who, adhering to their former sovereign and residing within his dominions, are [Page 1200] recognized by him as his subjects, to great inconveniences, especially in time of war, when the opposing sovereigns may claim their allegiance. But the inconvenience cannot alter the law of the land. Their situation is not different in law, whatever may be their equitable claims, from the situation of those citizens of the commonwealth who may be naturalized in the dominion of a foreign prince. The duties of these persons, arising from their allegiance to the country of their birth, remain unchanged and unimpaired by their foreign naturalization. For by the common law no subject can expatriate himself.”

As far, therefore, as an opinion has been expressed in Massachusetts, the vigorous doctrine of the common law governs. Foreign naturalization is no evidence of expatriation.

Two years before this suit the contrary opinion was expressed by the supreme court of appeals in Virginia. It was held in that State, in the case of Murray vs. McCarty, that nature had given to all men the right of relinquishing at pleasure the society in which birth or accident had thrown them. The court say: “It is believed that this right of emigration or expatriation is one of those inherent rights of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity. But although municipal laws cannot take away or destroy this right, they may regulate the manner and prescribe the evidence of its exercise; and in the absence of the regulations, juris positivi, the right must be exercised according to the principles of general law.”

A temporary absence, however, will not divest a man of the character of citizen or subject of the State or nation to which he may belong. There must be a removal, with an intention to lay aside that character, and lie must actually join himself to some other community.

The State of Virginia also, by an act of the legislature, has defined citizenship, and has in terms provided for expatriation.

This act declares that all free white persons, born in that or any other State, all aliens, being free white persons naturalized under the laws of the United States, who become residents, all persons who were citizens under former laws, and all children, wherever born, whose father—or, if he be dead, whose mother—shall be a citizen of the State at the time of the birth, shall be deemed citizens of the State.

And it provides that, whenever a citizen, by deed in writing, proved in court or by open declaration made in court and entered of record, shall declare that he relinquishes the character of a citizen and shall depart out of the State, he shall be considered as having exercised the right of expatriation, and shall thenceforth be deemed no citizen thereof.

The decision in Murray vs. McCarty was followed by the court of appeals in Kentucky, in 1839, and the right of expatriation declared in the strongest manner: “Whatever may be the speculative or practical doctrine of the feudal governments or ages, allegiance in these United States, whether local or national, is, in our judgment, altogether conventional, and may be repudiated by the native as well as by the adopted citizen with the presumed concurrence of the Government without its formal or express sanction. Expatriation maybe considered a practical and fundamental doctrine of America. American history, American institutions, and American legislation all recognize it. It has grown with our growth and strengthened with our strength. The political obligations of the citizen and the interests of the republic may forbid a renunciation of allegiance by his mere volition or declaration at any time and under all circumstances; and therefore the Government, for the purpose of preventing absence and securing the public welfare, may regulate the mode of expatriation. But when it has not prescribed any limitation on the right, [Page 1201] and the citizen has in good faith abjured his country and become a subject of a foreign nation, he should as to his native Government be considered as denationalized, especially so far as his civil rights may be involved, and at least as far as that Government shall seem to acquiesce in his renunciation of Ms political rights and obligations.”

This certainly is a plain enunciation of the principle. Expatriation is a fundamental right, but circumstances may prevent the exercise of it, and the legislature may therefore regulate it, but unless they do, it is to be exercised at the discretion of the citizen.

In the case of Lynch vs. Clark, decided in New York, in 1844, the court say, notwithstanding the conclusions of Mr. Chancellor Kent, that the doctrine of expatriation does not stand upon the same foundation as that of allegiance by birth, and does not follow from the adoption of the latter the common-law rule, “the right to expatriate was recognized in Pennsylvania and Virginia while they were colonies. The constitution of Pennsylvania prohibited laws restraining emigration from the State, and Virginia enacted a law as recently as the year 1792 providing for expatriation and prescribing its forms. Kentucky followed Virginia in this as well as in many other questions of national policy. This diversity prevailing in the colonies and States prior to 1784 would afford strength to the argument that in the National Government the common-law rule of perpetual allegiance did not prevail.”

As late, however, as 1863, the law upon this question seems to have been in doubt and unsettled in that State. In Ludlam vs. Ludlam it is said, “that the right of expatriation on the part of citizens of the United States, without the consent of the Government, has never been recognized by the courts of this country or by any of the writers upon public law.” The court, however, do not admit unqualifiedly the statement of Chancellor Kent, that the better opinion would seem to be that a citizen cannot renounce his allegiance, and that the rule of the English common law remains unaltered in this country. They say, “whether this statement of the law is to be considered as in all respects correct, may perhaps admit of doubt, as some courts and statesmen have been disposed to regard the right of expatriation as existing where the government has taken no steps to prohibit or limit it.” On the other hand, they do not fully concur in the opinion expressed by the court of appeals of Kentucky, and by Secretary Cass, that a citizen has a right to renounce his allegiance at pleasure. They say that the argument of Mr. Rutherford possesses much force, which is in substance that if an individual was at liberty to leave the State when he pleased, civil society would be nothing but a rope of sand; every member of society would be at liberty either to continue in it and advance its general interests, or leave it in order to advance a separate interest of his own. But the great end of forming civil society is to promote the common good and to guard against a common mischief. Certainly, therefore, the nature of civil society can never allow this liberty to its members, because it is inconsistent with the end which civil society proposes to itself; and they add that “without, however, pursuing the subject further, it is sufficient for the present case, that all writers, including those who would give the greatest license to the citizen in the exercise of the power of expatriation, agree that no person casts off his allegiance to his native country before he becomes a citizen or subject of another country.”

In Jackson vs. Burns, decided in the supreme court of Pennsylvania, Chief Justice Tilghman speaks of a “principle not compatible with the constitution of Pennsylvania or her sister States, that is to say, that no [Page 1202] man can, even for the most pressing reasons, divest himself of the allegiance under which he was born.”

In Beavers vs. Smith, decided by the supreme court of Alabama, in 1847, it is said that “it would seem to follow, necessarily, from our naturalization laws, that our people can emigrate and transfer their allegiance at their pleasure to a foreign government, as our laws do not require the consent of the former sovereign to the expatriation of a foreigner as a condition of his becoming a citizen of the United States. They hold, however, that a mere removal is not enough, and that the general question is unsettled.

In Fish vs. Stoughton, where the defendant, a British subject, became a naturalized citizen, and took the oaths of abjuration and allegiance to the State of New York in 1794, and in 1795 took an oath of allegiance to the King of Spain, and was appointed a consul by the Spanish King, and continued to reside in New York without ever changing his domicile, he was still to be considered an American citizen. Without considering the general right of expatriation, the court were of the opinion that to divest himself of his character of an American citizen he must at least change his domicile.

There is this much to be said of the question, in the light of the conflicting opinions declared by the different courts. It is evident that the common law of England, based upon allegiance in the feudal sense, arising out of the doctrine of tenures, is not the law here. The right which that law absolutely denies, viz, the right of expatriation, is conceded in all. The question which remains undecided is whether this right can be exercised without legislative enactment. As a result of the cases cited, it is not, perhaps, unreasonable to hold that when the case is presented to the highest court of judicature it will, inasmuch as it has abandoned the fundamental principle of the common law, refuse to be guided by its strict teachings, and under the influence of more liberal views than feudal ones, hold that, in the absence of legislation, a citizen may, with certain necessary limitations, abjure his own and become, in accordance with its laws, a citizen of another country.

“It is the recognized principle of the law of nations that all can change their primitive nationality according to their convenience. This principle, admitted by all the world, and in virtue of which every individual may renounce the nationality which birth combined with parentage gives him, does not release him who avails himself of it of the obligations which he owes to his country. So that the citizen or subject who, without authorization of his government, accepts the nationality of a foreign state, may be called upon for the performance of the personal charges imposed upon him by his primitive country, in the form which the law established. Thus a deserter from the military service, who becomes naturalized in the state to which he flies, though not subject to extradition without special treaty authorizing it, if nevertheless he comes within the jurisdiction of the authorities of his primitive country, cannot be reclaimed by his new one, but remains bound to fulfill the obligations of his service.

While the law of nations concedes to individuals the liberty of changing their nationality, it also empowers a state to restrict this faculty in certain circumstances, as in case of war and others, in return for the services and protection which it bestows upon the citizen or subject; and when he changes his nationality in contempt of the laws, he gives occasion for the disregard of his new nationality.” (Derecho International, tom. 1 p. 319.)

In October, 1856, the Hon. Caleb Cushing, then Attorney-General, in [Page 1203] a very elaborate review of the subject, expressed the opinion that the right of expatriation exists, and may be freely exercised by the citizens of the United States, holding that in the absence of legislation the consent of the government is to be implied. In this connection he says: “of course the citizen cannot apply such implied consent to any act of pretended emigration which is itself a violation of the law either public or municipal, as in the case of illegal military enterprises, nor by it can he escape the punishment of crime or the performance of local contracts, nor appeal to it as a mask to cover desertion or treasonable aid of the public enemy. I am not prepared to say that the right of a citizen of the United States to expatriate himself, implied in the absence of any prohibition, may not be exercised in time of war, but if so it would have to be done with attendant circumstances clearly showing good faith in order to be justifiable, and it is not easy to see how citizenship could be transferred in time of war to the foreign enemy in such a way as to escape reprehension if the party should afterwards return to the United States. And whether in peace or war, the expatriation would have to be an actual one by foreign residence, and with authentic renunciation of the pre-existing citizenship. Under the circumstances, and with the conditions thus indicated, and subject to such others as the public interest might seem to Congress to require to be imposed, it seems to me that the right of expatriation exists and may be freely exercised by the citizens of the United States.”

Again, in the case of Christian Ernst, the right of expatriation was asserted by the Attorney-General: “Christian Ernst was a native of Hanover, and emigrated to this country in 1851, when he was about nineteen years of age. In February, 1859, he was naturalized, and in March, after procuring a regular passport, he went back to Hanover on a temporary visit. He had been in the village where he was born about three weeks, when he was arrested, carried to the nearest military station, forced into the Hanoverian army, and there he is at the present time, unable to return home to his family and business, but compelled against his will to perform military service.”

Upon this state of facts the Attorney-General says: “The natural right of every free person, who owes no debts and is not guilty of any crime, to leave the country of his birth in good faith and for an honest purpose, the privilege of throwing off his natural allegiance and substituting another allegiance in its place—the general right, in one word, of expatriation, is incontestable. I know that the common law of England denies it; that the judicial decisions of that country are opposed to it; and that some of our courts, misled by British authority, have expressed, though not very decisively, the same opinion. But all this is very far from settling the question. The municipal code of England is not one of the sources from which we derive our knowledge of international law. We take it from natural reason and justice, from writers of known wisdom, and from the practice of civilized nations. All these are opposed to the doctrine of perpetual allegiance. It is too injurious to the general interests of mankind to be tolerated; justice denies that men should either be confined to their native soil or driven away from it against their will.

Expatriation includes not only emigration out of one’s native country, but naturalization in the country adopted as a future residence.

“When we prove the right of a man to expatriate himself, we establish the lawful authority of the country in which he settles to naturalize him if its government pleases. What, then, is naturalization? There is no dispute about the meaning of it. The derivation of the word alone [Page 1204] makes it plain. All lexicographers and all jurists define it in one way. In its popular, etymological, and legal sense, it signifies the act of adopting a foreigner and clothing him with all the privileges of a native citizen or subject.”

Such was the law before the passage of the act of July 27, 1868.

The just conclusion from it all is, that a citizen of the United States in time of peace, not deserting a public trust, nor being a fugitive from justice, by renouncing allegiance to this, and becoming in good faith a citizen of another country, in accordance with the laws thereof, is denationalized.

The act of July 27, 1868, therefore is, so far as the right of expatriation is concerned, only declaratory of what was the law of the land.

But the act does not attempt to define what steps must be taken by a citizen before he can be held to have become denationalized.

This being so, whether an act of expatriation has been accomplished in any particular case, must be left to the decision of the Executive or the courts, when such case shall arise, and their decision must be based substantially on the law as it is set forth in the cases cited. Upon an application of the principles established by these cases, I have to say, in answer to the first question asked by you, that the law-making power having declared by the act of July 27, that 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, the Executive, when satisfied that a citizen, under the limitations I have set forth, has become denationalized, should not refuse to give effect to such an act of expatriation.

Upon an application of the same rules, the second question must be answered in the affirmative, if “voluntary submission to the sovereignty of another power” is understood to be the becoming a citizen of another power in accordance with the naturalization laws thereof.

But an expatriation cannot, I think, be shown or presumed by an acquisition of domicile in another country, with an avowed purpose not to return only.

The rule of public law is that every person of full age has a right to change his domicile, and it follows that when he removes to another place with the intention to make that place his permanent residence, or his residence for an indefinite period, it becomes instantly his place of domicile. (Thrasher’s case.)

Under the liberal influence of commerce, the strict rule of the common law with regard to allegiance has been relaxed; and thus, though a natural-born subject cannot throw off his allegiance by change of domicile merely, and is always amenable for criminal acts against his native country, yet for commercial purposes he may acquire the rights of a citizen of another country by change of domicile. And the place of domicile determines the character of the party as to trade. (2 Kent, 49.)

Under the state of facts set out in the third question, an American citizen would therefore undoubtedly obtain a foreign domicile, which would impress upon him a national character for commercial purposes only, in like manner as if he were a subject of the government under which he resided, without losing on that account his original character, or ceasing to be bound by the allegiance due to the country of his birth. (1 Peters, C. C., 161; 2 Cranch, 120.)

The principle that for all commercial purposes the domicile of the party, without reference to the place of his birth, becomes the test of national character, has been repeatedly admitted in the courts of the United States. (Sloop Chester, 2 Dallas, 41; Murray vs. Schooner [Page 1205] Betsey, 2 Cranch, 64; Manly vs. Shattuck, 3 Cranch, 488; Livingston vs. Maryland Insurance Company, 7 Cranch, 506; the Venus, 8 Cranch, 253; the Frances, 8 Crunch, 363.)

But this national character which a citizen acquires by residence “may be thrown off at pleasure by a return to his native country, or even by turning his back on the country in which he had resided on his way to another.” To use the language of Sir William Scott, “it is an adventitious character gained by residence, and which ceases by non-residence.”

Such was the opinion of the court in the case of the Venus, (8 Cranch, 280,) and in United States vs. Guillem, (11 Howard, 47.)

Such is now the rule in England. It is there held that a British subject may acquire the rights, for commercial purposes, of a citizen of another country, and the place of the domicile determines the character of the party as to trade. (Wilson vs. Maryat, 8 T. R., 31.)

In the case of the Danaos, cited in 4th Robinson Adm., 255, the rule was declared that an Englishman residing in a neutral country was entitled to the privileges of a neutral character, and a British-born subject resident in Portugal was allowed the benefit of the Portuguese character so far as to render his trade with Holland, then at war with England, not impeachable as an illegal trade.

In the case of the Indian Chief, (3 Rob. Adm., 12,) Mr. Johnson, a citizen of the United States, was domiciled in England, and engaged in a mercantile enterprise to the British East Indies, prohibited to British subjects, but allowed to American citizens.

In delivering judgment the court said: “Taking it to be clear that the national character of Mr. Johnson was founded in residence only, it must be held that from the moment he turned his back on the country where he resided, on his way to his own country, he was in the act of resuming his original character, and must be considered an American. The character that is gained by residence ceases by non-residence. It is an adventitious character, and no longer adheres to him from the moment that he puts himself in motion bona fide to quit the country sine animo revertendi.”

Such being the law, the fourth question becomes one of easy solution. It must be considered, however, with regard to two classes of citizens, viz, natural-born and naturalized.

It has been seen that a mere residence abroad, with no apparent intention of returning, does not denationalize an American-borncitizen; it only impresses upon him a national character for commercial purposes. He is still bound by the allegiance due to the country of his birth. By virtue of that allegiance that country can demand his services whenever they are needed. For this reason he is, it seems to me, entitled to its protection.

In the case of the Charming Betsey, (2 Cranch, 120,) Chief Justice Marshall said: “The American citizen who goes into a foreign country, although he owes local and temporary allegiance to that country, is yet, if he performs no other act changing his condition, 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.”

This doctrine of the Supreme Court seems to have been regarded by the Department of State as the true rule, and was declared to be the rule of the Government in the most emphatic manner by Mr. Webster, in the case of John S. Thrasher.

There seems, however, to be a doubt with regard to the right of the [Page 1206] United States to protect a naturalized citizen when lie returns to the country of his birth, the doctrine of the State Department seeming to be, up to the year 1852, that if a foreign state did not admit the right of one of its subjects to sever his allegiance, it may lawfully claim his services when found within its jurisdiction, and that the Government of the United States will not interfere to protect him.

The question first arose, I think, in 1840, in the case of a Prussian who had become a naturalized citizen of the United States, and who claimed to be exempt from military draft on his return to his native country.

Mr. Wheaton, at that time the American minister, in reply to the party, wrote that it was not in his power to protect hm. “Had you remained in the United States, or visited any other foreign country except Prussia on your lawful business, you would have been protected by the American authorities at home and abroad in the enjoyment of all your rights and privileges as a naturalized citizen of the United States. But having returned to the country of your birth, your natural domicile and natural character revert, (so long as you remain in the Prussian dominions,) and you were bound in all respects to obey the laws exactly as if you had never emigrated.”

These views were adopted by Mr. Everett, Secretary of State, in instructions to Mr. Barnard, January 14, 1853. He said: “If a Prussian subject chooses to emigrate to a foreign country without obtaining the certificate which alone can discharge him from the obligation of military service, he takes that step at his own risk. He elects to go abroad under the burden of a duty which he owes to his government. His departure is in the nature of an escape from her laws, and if at any subsequent period he is indiscreet enough to return to his native country, he cannot complain if those laws are executed to his disadvantage. His case resembles that of a soldier or sailor enlisted by conscription or other compulsory process in the army or navy. If he should desert the service of his country and thereby render himself amenable to the military laws, no one would expect that he could return to his native land and bid defiance to its laws, because in the mean time he had become a naturalized citizen of a foreign state.”

This view was accompanied by a note from Mr. Webster when Secretary of State, in June 1852, to the effect that if a government of a country does not acknowledge the right of natives of that country to renounce their allegiance, it may lawfully claim their services when found within its jurisdiction.

A distinction was taken, however, in 1859, by the State Department, which limited this view, and which confined the foreign jurisdiction in regard to naturalized citizens to such of them as were in the army or actually called into it at the time they left the country; that is, to the case of actual desertion or refusal to enter the army after having been regularly drafted and called into it by the government to which at the time they owed allegiance.

In accordance with this view, Mr. Faulkner, minister of the United States at Paris in 1860, said, in reference to the case of a naturalized citizen who had emigrated before the period of military service, “the doctrine of the United States is that the naturalized emigrant cannot be held responsible, upon his return to his native county, for any military duty the performance of which has not been actually demanded of him prior to his emigration. A prospective liability to service in the army is not sufficient. The obligation of contingent duties depending upon time, sortition, or events thereafter to occur, is not recognized. To subject him to such responsibility, it should be a case of actual desertion [Page 1207] or refusal to enter the army after having been actually drafted into the service of the government to which he at the time owed allegiance.”

The Secretary of State under Mr. Buchanan made the same distinction between the contingent liability of those naturalized citizens who left the country of their origin before the age of military service without the consent required by law, and those who escaped after they were actually enrolled. He claimed that the former were, irrespective of the obligations arising from the contingent liability, which in the interim had become complete, entitled even in their native country to the full protection of American citizens.

This doctrine is in entire harmony with the views of the Attorney-General, expressed in 1859, in the case of Christian Ernst, and may, I think, be considered the views of the Government of the United States. (9 Opin.)

That officer says that a naturalized citizen who returns to his native country “is liable, like anybody else, to be arrested for a debt or crime; but he cannot rightfully be punished for the mere non-performance of a duty which is supposed to grow out of that allegiance which he has abjured and renounced. If he was a deserter from the army, he may be punished when he goes back, because desertion is a crime. On the other hand, if he was not actually in the army at the time of his emigration, but merely liable like other members of the state to be called on for his share of military duty, which he did not perform because he left the country before the time for its performance came around, he cannot justly be molested.”

In deciding the question contained in your fifth interrogatory, viz, what should constitute evidence of the absence of an intent to return, I must first consider whether, in any given case, a domicile has been acquired in another country, for the reason that the evidence of an absence of intent to return can only be determined by the fact whether a foreign domicile has been acquired. If such a domicile has been acquired, the intent to return is gone; if not, the intent to return still remains.

Whether or not a domicile has been obtained, is purely a question of fact.

It is said by the Supreme Court in the case of the Venus, before referred to, that whether a person had sufficiently made known his intention of fixing himself permanently in a foreign country, must depend upon all the circumstances of the case. “If he has made no express declaration on the subject, and his secret intention is to be discovered, his acts must be attended to as affording the most satisfactory evidence of his intention. On this ground it is that the courts of England have decided that a person who removes to a foreign country, settles himself there, and engages in the trade of the country, furnishes by these acts such evidence of an intention permanently to remain there as to stamp him with the national character of the state where he resides.”

It will be seen from my discussion of the proposition contained in the third interrogatory that the doctrine once held was that a naturalized citizen could not be protected by the Government of the United States, if he returned to the country of his birth, on the ground that his native domicile and national character reverted. It is also seen that this doctrine has of late been a good deal modified—the foreign jurisdiction over a naturalized citizen being limited to those who were in the army or drafted, or were owing some accrued obligation at the time they left their native country.

A native or a naturalized citizen, therefore, may now go forth with [Page 1208] equal security over every sea and into every land, including the country where the latter was born. They are both American citizens, and their exlusive allegiance is due to the Government of the United States. One of them owed no fealty elsewhere; the other by his naturalization renounced and abjured all allegiance to the sovereignty whose subject he had been. This worked a dissolution of every political tie which bound him to his native country. (Ernst’s case, 9 Opin. Att’ys-Gen., 357.)

This being so, it follows that if a naturalized citizen returns to his native country, and resides there for a series of years with no apparent purpose of returning, he only acquires, just as a native citizen of the United States would, a national character for commercial purposes, without losing his character of citizenship acquired by naturalization or ceasing to be bound by the allegiance thereby due from him. His original character does not under these circumstances revert, and therefore he does not become expatriated.

The sixth question must, therefore, be answered in the negative.

7th. Are the children born abroad of a citizen who has expatriated himself citizens of the United States, and entitled to its protection?

By the common law a person born out of the dominions and jurisdiction of the United States, and under the actual obedience of a foreign king, is an alien, though his parents were American citizens.

In Calvin’s case it was held that “an alien is a subject that is born out of the ligeance of the king and under the ligeance of another.” (7 Rep., 16.)

“There be regularly three incidents to a subject born: that the parents be under the actual obedience of the king; that the place of the birth be within the king’s dominion; and that the time of his birth is chiefly to be considered, for he cannot be a subject born of one kingdom that was born under the ligeance of a king of another kingdom.” (7 Rep., 17.)

In Doe vs. Jones (4 Dumford and East, 308) it is said “the character of a natural-born subject, anterior to any of the statutes, was incidental to birth only; whatever were the situation of his parents, the being born within the allegiance of the king constituted a natural-born subject.”

Such was the common law of the United States anterior to the passage of the act of 1804.

Chancellor Kent says, “An alien is a person born out of the jurisdiction and allegiance of the United States. There are some exceptions to this rule, he says, by the ancient English law, as in the case of the children of public ministers abroad, (provided their wives be English women,) for they owe not even a local allegiance to any foreign power. So also it is said that in every case the children born abroad of English parents were capable of inheriting as natives, if the father went and continued abroad in the character of an Englishman with the consent of the sovereign.”

This last proposition is an extremely doubtful one.

Chancellor Kent gives as authority for it only the following cases, viz: Hyde vs. Hill, Cro. Eliz. 3, Bro. Abr., tit. Descent, pl. 47, and tit. Denizen, pl. 14. But it is clear, from what he says further on, that little reliance can be placed upon this alleged doctrine. For in commenting upon the fact that the period will soon arise when there will be no statutory provisions in the United States in relation to the status of children born abroad of American parents, from the fact that the act of 1804 in relation to this question not being prospective will soon be inoperative, [Page 1209] he says such children will be obliged to resort to the dormant and doubtful principles of the English common law.

The rule, however, laid down in Calvin’s case, and in Doe vs. Jones, makes it clear that such children would be aliens in the absence of a statute to the contrary.

It was because such was the common law that there arose the necessity in England of the statute of 25 Edw. In relation to this statute Chancellor Kent says, “It appears to have been made to remove doubts as to the certainty of the common law on this subject.”

This statute settled the law in England.

But in the United States the rule of the common law was supposed still to have effect. For Congress in 1804 enacted that “the children of persons who now are or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered citizens of the United States.” The act was not prospective, however, and its benefits were soon lost.

In 1854 the question again arose, in the absence of every statutory provision, what was the condition of children of American citizens born abroad?

In an article published in February, 1854, in the American Law Register, and attributed to Mr. Horace Binney, it was contended with great force that such children were aliens. Alf the authorities on the question were reviewed, the position taken by Chancellor Kent that such children might be citizens criticised, and the conclusion I have stated reached. The view contained in this article seems to have been adopted by Congress, for soon after its appearance a bill passed, based substantially upon the idea contained in the article referred to.

A case involving this question has, however, since arisen in New York, and the doctrine of Chancellor Kent maintained. (See Ludlam vs. Ludlam, 26 N. Y., 357; Lynch vs. Clark, 1 Sandf., ch. 583.)

The act provided 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 this country, shall be deemed and are declared to be citizens of the United States.”

If the father, therefore, was a citizen of the United States, his children born are now citizens by force of the statute.

So much is settled. But the father must be a citizen. If the father was not a citizen, then his children born abroad are undoubtedly aliens.

Upon the principles laid down in the cases cited, a citizen of the United States who has expatriated himself is no longer a citizen, and consequently his children born abroad are aliens, and not entitled to be protected by the United States.

The eighth question must, upon the principles laid down in the cases I have cited, be answered in the negative.

Upon these principles a native-born citizen of the United States cannot become expatriated until he has become a citizen of another country in accordance with the naturalization laws thereof. When this has been done, he is from that time no more a citizen of the United States than a foreign-born subject.

According to the same law, laid down in my answer to the sixth question, his original character does not, therefore, revert on his return to the United States, and before he can be regarded as a citizen he must again be naturalized.

I have the honor to be, very respectfully,

WILLIAM A. RICHARDSON,
Secretary of the Treasury.