1857, when Buchanan became President, the doctrine was reasserted in all its force.1 The increase of immigration, with the growing demand for the protection of naturalized citizens returning to their native countries, also influenced the views of the Executive, until finally in 1868, following the arrest in Ireland as British subjects of certain naturalized American citizens of British origin, implicated in the Fenian agitation, Congress passed an Act in which it was declared that "the right of expatriation is a natural and inherent right of all people" and that "any declaration, instruction, opinion, order, or decision of any officer of this government which denies, restricts, impairs, or questions the right of expatriation" is "inconsistent with the fundamental principles of this government."3 Almost at the same time a number of naturalization treaties with various states of Europe were concluded and in 1870 Great Britain departed from its timehonored position by recognizing the right of voluntary expatriation of British subjects.

Since 1868, the courts and the Executive 5 have with practical uniformity sustained the right of an alien to abjure his native allegiance and by becoming a citizen of the United States to clothe himself with the right of American citizenship and protection as against all nations. While the legislative declaration of the equality of native and naturalized citizens abroad was confirmed in numerous expressions of executive opinion, nevertheless, as has already been observed, a distinction was made between persons who emigrated to the United States under a prospective liability to military service which had not yet

1 Moore's Dig. III, § 437.

2 The expressions of executive opinion during Buchanan's administration are set forth in Moore's Dig. III, § 437. See especially Atty. Gen. Black's opinion in Ernst's case, July 4, 1859, 9 Op. 356. See also Moore, American diplomacy, 178-182. For the position of the U. S. during the Civil War, see Moore's Dig. III, § 438.

15 Stat. L. 223, R. S., § 1999, 1 Fed. Stat. Ann. 788. The language of R. S., §§ 2000 and 2001 (supra, p. 460) was also included in the Act of 1868. For the history of the Act of 1868 see Moore's Dig. III, § 439 and American diplomacy, 183-188.

4 Green v. Salas (1887), 31 Fed. 106, 113; In re Look Tin Sing (1884), 21 Fed. 905, 908; Browne v. Dexter (1884), 66 Cal. 39 (expatriation of American citizen); In re Rodriguez (1897), 81 Fed. 337, 354; Boyd v. Nebraska (1892), 143 U. S. 135, 161. * Extracts printed in 2 Wharton, § 171 and in Moore's Dig. III, § 440. Supra, p. 539.

COUNTRIES NOT RECOGNIZING EXPATRIATION AS INDIVIDUAL RIGHT 677 matured, and those who emigrated to evade military duties which had already been fixed upon them. It was admitted that upon return to their native countries the latter class could not make use of their American naturalization to escape obligations and penalties incurred prior to their original emigration to the United States. Even in the naturalization treaties, beginning with the epoch-making Bancroft treaties, which the United States has succeeded in concluding with various countries,1 and in which the right of expatriation under certain conditions is recognized, this principle of continued liability in the native country for obligations incurred prior to emigration is admitted.2

§ 316. Diplomatic Relations with Countries not Recognizing Expatriation as Individual Right.

In its diplomatic relations with countries with which no naturalization treaties have been concluded, the United States has often been unsuccessful in securing recognition for its supposedly traditional doctrine of voluntary expatriation.3 This is due to the fact that every independent state possesses exclusive territorial sovereignty and is entitled to its own views as to the nature and extent of the right of expatriation, and as international law embodies no rules concerning naturalization, the effect of naturalization upon previous citizenship is a matter governed by the municipal law of the states directly concerned. Thus, however morally wrong may be the Russian and Turkish principle of perpetual allegiance, the United States has been unable to impress its views as to the right of voluntary expatriation upon the Russian and Turkish governments so as to secure for naturalized American citizens of Russian or Turkish origin a release from their native allegiance. Similarly, in countries like France, Servia and others, where by municipal law governmental consent or the performance of military duty is a condition precedent to a change of allegiance, mere naturalization in the United States is regarded as without effect upon native allegiance when the preliminary condi

2 Supra, p. 549.

Supra, §§ 237, 238.

Taylor, 227; Halleck, 3rd ed., I, 411; Oppenheim, I, 359.

tion remains unfulfilled.1 It would seem, therefore, that in the absence of consent or treaty, naturalization abroad has within the limits of the country of origin no other effect than the government of that country may be willing to concede.

§ 317. Inconsistencies of Law and Practice with Principles of Act of 1868.

2

Attention may be called to various inconsistencies, in the law and practice of the United States, with the high-sounding phrases of the Act of 1868. Inasmuch as expatriation has been said to include both emigration and naturalization, it seems clear that laws which restrict naturalization to free white persons and those of African nativity, excluding other races, violate the declaration that expatriation "is a natural and inherent right of all people." Again, the occasional executive admission that naturalized citizens, natives of a country which does not recognize the validity of their expatriation, owe in international law a dual allegiance would signify a contradiction to the doctrine embodied in the Act of 1868 that naturalization invests the individual with a new and single citizenship and absolves him, therefore, from the obligations of any former allegiance. So again, while the courts have found in the Act of 1868 that governmental consent to expatriation, the absence of which, prior to 1868, led the courts generally to deny the right of expatriation, the Act of March 2, 1907 would seem to repudiate that unqualified consent and right by providing "that no American citizen shall be allowed to expatriate himself when this country is at war." 3 However strongly we may uphold the principle that it is the duty of governments under proper restrictions to permit the expatriation of their nationals, a duty which most governments now fulfill, the conclusion is inevitable, both under international and municipal law, that there is no such thing as the inalienable and inherent right of a citizen to expatriate himself.

1 Supra, § 238.

2 Black, Atty. Gen., in Ernst's case, 9 Op. 356, Bluntschli, 5th ed., art. 371 and Fiore, 4th ed., art. 654, to the effect that the old nationality subsists until a new one is acquired. Supra, p. 567. Other publicists, more in conformity with the practice of most states, dispute that expatriation requires naturalization abroad. E. g., Bar, § 60 and note, in which he criticizes the views of Stoerk.

3 Act of March 2, 1907, § 2; 34 Stat. L. 1228.

§318. Expatriation of American Citizen.

2

Turning now to the special question of present interest-the right of an American citizen to expatriate himself-it will be found, as already observed, that the courts prior to 1868 appear in several cases to have denied the right in the absence of an authorizing statute of Congress.1 Chief Justice Marshall in 1804, however, declared that a citizen who made himself the subject of a foreign power, thereby placed himself out of the protection of the United States. Before 1868, there was no federal legislation concerning expatriation, and the Act of that year, apart from its high-sounding preamble, deals only with the protection of aliens by birth who have become citizens of the United States. Since 1868, the courts have generally held that the Act declares the right of an American citizen to expatriate himself.3 But a change of domicil has been held essential to a change of allegiance,1 and it has been noted that with one exception, up to 1907, in the case of the marriage of an American woman to an alien-in which denationalization is now almost universally admitted-no change of citizenship without change of domicil was recognized. The preamble of the Act of 1868 was held by Attorney-General Williams in 1873 to comprehend our own citizens as well as aliens,5 and the Executive had in fact from the beginning recognized that an American citizen could by appropriate steps divest himself of his American citizenship. Nor is proof of the acquisition of another nationality any longer required as a condition of expatriation.

1 Supra, p. 675, notes 2 and 3.

2 Murray v. The Charming Betsy (1804), 2 Cranch, 64, 119 (dictum). He had reference, however, to commercial domicil only.

3 Jennes v. Landes (1897), 84 Fed. 73; Browne v. Dexter (1884), 66 Cal. 39; U. S. v. Wong Kim Ark (1898), 169 U. S. 649, 704 (dictum).

4 Talbot v. Janson, 3 Dall. 133; The Santissima Trinidad, 7 Wheat. 283, 9 Op. Atty. Gen. 62. Except in the case of women married to aliens, this is practically a universal rule. The question whether the American-born wife of an alien who remains within the jurisdiction of the United States can legally be deprived of her citizenship, i. e., expatriated, as Congress has provided by the Act of 1907, will be squarely presented to the U. S. Supreme Court in the appeal from the decision of the California Supreme Court in McKenzie v. Hare, supra, p. 602.

14 Op. Atty. Gen. 295.

§ 319. Methods of Expatriation.

Although Congress in 1868 asserted the abstract right of expatriation, it did not until 1907 declare when and under what circumstances. a native citizen of the United States shall be deemed to have lost his citizenship.1 The Department of State, therefore, in the absence of any statutory definition of the modes of expatriation had to determine each case on its particular merits, with results by no means consistent. As will be observed hereafter, prolonged residence abroad has often been held to create a presumption, rebuttable by appropriate evidence, of the renunciation of citizenship and protection.2

The Act of March 2, 1907 prescribes four methods by which expatriation may be effected; (1) by naturalization in a foreign state; (2) by taking the oath of allegiance to a foreign state; (3) by marriage of an American woman to a foreigner; and (4) by residence abroad, for certain periods of time, on the part of a naturalized citizen. The principal provisions of the Act read:

"That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state (§ 2).

"That any American woman who marries a foreigner shall take the nationality of her husband (§ 3).

"When any naturalized citizen shall have resided for two years in the foreign state from which he came, or for five years in any foreign state, it shall be presumed that he has ceased to be an American citizen... Such presumption may be overcome on the presentation of satisfactory evidence . . ." (§ 2).

It is expressly provided "that no American citizen shall be allowed to expatriate himself when this country is at war." It has also been held that a corporation cannot expatriate itself.4

1 President Grant urged Congress to define the acts which shall work expatriation. For. Rel., 1875, I, vii; 1874, x.

2 Infra, § 326.

The public policy upon which this provision is based is set forth in H. Doc. 326, 59th Cong., 2nd sess., 28. See also Cockburn, Nationality, 201-202; Halleck, International law, London, 1908, I, ch. XII, § 29. Duer on Marine Insurance, I, lecture 5, § 35. The Santissima Trinidad, 7 Wheat. 283, 347 (dictum). A somewhat similar rule appears to prevail in Great Britain. R. v. Lynch (1903), 1 K. B. 444; Foote, J. A., Foreign and domestic law, 3rd ed., London, 1904, pp. 4, 7.

'North and South American Construction Co. (U. S.) v. Chile, Aug. 7, 1892, Moore's Arb. 2319.