No. 503.
The Secretary of the Interior to the President.

Sir: I have the honor to acknowledge the receipt of your communication of the 6th of August last, which requests me to answer certain [Page 1220] interrogatories relative to the rights and duties of citizens of the United States and the manner in which, under our institutions, citizenship may be acquired and lost.

This communication came to hand during my absence from the city, which was protracted longer than I anticipated by providential circumstances over which I had no control. Since my return I have considered, as fully as time and official engagements would permit, the important subject embraced in your interrogatories, and now have the honor to express in writing my opinion upon the questions referred to, which 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 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?
  • “II. May a formal renunciation of United States citizenship, and 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 allegiance 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?”

These questions open an interesting field of inquiry, and render it proper to consider what is citizenship of the United States, where is the power which can confer or take it away, and how may it be acquired or lost.

It is not easy to define citizenship, and but few have done it, although the general idea of what is included in the term citizen is pretty well understood. All agree that it includes males and females and minors. It includes all those who owe allegiance, fidelity, and support to the Government, and who, in return for the same, are entitled to be protected and defended by it. “Allegiance,” says Blackstone, “is the tie or ligament that binds every subject to be true and faithful to his sovereign in return for protection which is afforded him.” “The duty of allegiance,” says Attorney-General Bates, “and the right to protection are correlative obligations, the one the price of the other, and they constitute the bond between the individual and his country.” “If the body of society,” says Vattel, “or he who represents it, (the government,) absolutely fail to discharge their obligations toward the citizen, the latter may withdraw himself, for if one of the contracting parties does not observe his engagements the other is no longer bound to fulfill his, as the contract is reciprocal between society and its members

I would define a citizen of the United States to be a native-born or naturalized person, of either sex, who owes allegiance to and is entitled to protection from the United States, or a person who is made a citizen by treaty stipulations or statutory or constitutional law.

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The power of conferring or taking away citizenship rests in Congress. The Constitution has conferred upon it the power “to establish a uniform rule of naturalization.” (Article 4, section 8.) It is impossible to execute this power and make citizenship uniform unless the United States have exclusive control over the subject; and hence it must be admitted that all the powers which the States previously had were surrendered and vested in the nation. This seems so palpably just and necessary that it requires no argument or authority in its support; but, as it may be denied, I venture to refer to the following authorities:

In 2 Kent Com., 30, it is said, “The question of citizenship is one of national, and not of individual (or State) sovereignty.”

Judge McLean, in the Dred Scott case, 19 How., 533, declares, “that a State may authorize a foreigner to hold real estate, but it has no power to naturalize foreigners and give them the rights of citizens. Such a right is opposed to the acts of Congress and subversive of the Federal powers.”

Attorney-General Bates, (10th Opinions, 382,) says: “Every person who is a citizen of the United States, whether by birth or naturalization, holds his great franchise by the laws of the United States, and above the control of any particular State.”

It has frequently been held that no State can confer the elective franchise upon one who is not a citizen of the United States. Citizenship is national. It is the nation, and the nation only, that can make and unmake citizens. If the elective franchise can be conferred by a State upon persons not citizens of the United States, it would enable the State to subvert and overthrow the institutions and form of the National Government. Upon this point I will refer to the opinions of some of our ablest jurists and statesmen.

Judge Curtis, in 19 How., 581, before quoted, says: “The enjoyment of the elective franchise is not essential to citizenship. It is one of the chiefest attributes of citizenship under the American Constitution; and the just and constitutional possession of this right is decisive evidence of national citizenship.”

Judge Story illustrates this point with admirable power. He says: “If aliens might be permitted indiscriminately to enjoy all the rights of citizens at the will of a single State, the Union itself might be endangered by the influx of foreigners, hostile to its institutions, ignorant of its forms, and incapable of a due estimation of its privileges.” (1 Story on Const., 1103.)

In Wheaton, page 910, Mr. Lawrence says: “If the States can admit to the elective franchise those who are not citizens, thereby neutralizing the votes of citizens, not only the federal power of the nation becomes a nullity, but a majority of actual citizens, by the aid of aliens, may control the government of the States, and through the States the government of the Union.”

Mr. Calhoun (Wheaton, 905) has stated the point very clearly, and, without intending to indorse his opinions on all other subjects, I heartily approve of what he has said on this. I quote: “Whatever difference of opinion there may be as to what other rights appertain to a citizen, all must agree that he has the right to petition, and also to claim the protection of the Government. These belong to him as a member of the body-politic, and the possession of them is what separates citizens of the lowest condition from aliens and slaves. To suppose that a State can make an alien a citizen, or confer on him the right of voting, would involve the absurdity of giving him the direct and immediate control over the action of the General Government, from which he can claim no protection, and to which he has no right to present a petition.”

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“Now, admit that a State may confer the right of voting on aliens, and it follows that we might have among our constituents persons who have not the right to claim the protection of the Government nor present a petition to it. But a still greater difficulty remains. Suppose a war should be declared between the United States and the country to which the aliens belong. They, as alien enemies, would be liable to be seized under the laws of Congress, and to have their goods confiscated, and themselves imprisoned or sent out of the country.”

The power being with Congress, as I have attempted to show above, to regulate, control, confer, and take away citizenship, has it acted or done anything to indicate its will upon this subject? It has from the origin of the Government provided by law for the naturalization of foreigners, and thus conferring citizenship upon them. It has required of them to renounce all allegiance to any foreign prince or potentate. The fact that such renunciation is required by Congress is satisfactory evidence to my mind that Congress regarded the foreigner as having the lawful right to renounce such allegiance, and thereby to expatriate himself. After practically recognizing this doctrine for three-fourths of a century, Congress expressly declared it by the act of July 27, 1868, (15 Stat., 224.) It enacted—

“That any declaration, instruction, or opinion, order or decision of any officers of this Government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this Government.

“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.”

It would be difficult to frame a more stringent legislative declaration of the right of expatriation. If a foreigner has the right to renounce allegiance to his government and assume that of our own, then, to be consistent, it must be conceded, e converso, that a citizen of our Government has the right to throw off his allegiance and transfer it to that of another government, provided it be done bona fide. I think this may be done. In my opinion, man has the natural right to relinquish the society in which he was born and seek his home and happiness elsewhere. In other words, he has the natural and inherent right to expatriate himself. How this may be done has not been defined by Federal legislation. The method is left to the individual. It must be done in good faith, with an actual change of residence, without the purpose to evade responsibility for criminal acts, or to escape duties already imposed, and, in general, in time of peace. When thus done, allegiance is ended, and the right of protection and defense gone.

Attorney-General Black, in speaking of a native or naturalized citizen, says:

“In my opinion, if he emigrates, carries his family and effects along with him, manifests a plain intention not to return, takes his permanent residence abroad, and assumes the obligation of a subject of a foreign government, this would imply a dissolution of his previous relations with the United States; and I do not think we could or would afterward claim from him any of the duties of a citizen.” (9 Op. Atty.-Gen., 63.)

Believing, as I do, that the citizen has the right to expatriate himself, I must answer your first interrogatory that, in my opinion, the Executive should not refuse to give effect to an act of expatriation of a citizen of the United States.

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I answer your second interrogatory, that a formal renunciation of United States citizenship and a voluntary submission to the sovereignty of another power should, in my opinion, be regarded as an act of expatriation.

I answer your third interrogatory that, in my opinion, an election of expatriation can be shown by an acquisition of domicile in another country with an avowed purpose not to return.

I answer your fourth interrogatory that, in my opinion, the Government is not bound to extend its protection or to exert its military or naval power for the protection of persons who have left its territories and reside abroad without an apparent intent of returning and who do not contribute to its support.

The duty of protection is correlative with that of support, and the voluntary withdrawal of support by the citizen releases the Government from its duty to defend and protect such citizen.

I answer your fifth interrogatory, that it is very difficult, if not impossible, to lay down any general rule that will apply to all cases. Each case must stand upon its own circumstances. They must be such as to fairly satisfy a reasonable man that the citizen has gone abroad with intent to remain and without intent to return. The best evidence of this would be the declaration of the party, accompanied by an actual removal. But declarations are not absolutely essential. Acts may be entirely satisfactory. For example, if a citizen who is the head of a family and the owner of property in this country should dispose of all his property here, take his family with him and go to a foreign state, and there purchase a home, or such other property as the owner ordinarily looks after in person, and should remain with his family some considerable time, without any avowed purpose of return, I think that would be sufficient evidence that he had expatriated himself.

I answer your sixth interrogatory that, in my opinion, a naturalized citizen, who has returned to his native country and resided there for a series of years, without any apparent purpose of returning to this, and whose case is not regulated by treaty, should be deemed to have expatriated himself.

I answer your seventh interrogatory that, in my opinion, children born abroad of parents who have been citizens of the United States, but have become subjects or citizens of another power, or who have expatriated themselves, are not citizens of the United States, and are not entitled to its protection.

I answer your eighth and last interrogatory that, in my opinion, a person who has formally renounced his allegiance to the United States, and assumed the obligations of a citizen or subject of another power, cannot become again a citizen of the United States in any other way than that provided by general laws. If a person may rightfully expatriate himself and become the subject of another power, then he is no longer a citizen of the United States, but a citizen of such other power, and it follows logically that, if he would again become a citizen of the United States, he must pursue the method pointed out by law, which enables a person who is not a citizen of the United States to become one. This is the dictate of common sense, and should be, and is, the law.

Very respectfully, your obedient servant,

C. DELANO,
Secretary of the Interior.

The President.