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in Hungary, had reared and educated his son there, and declared that he never had had any intention to return to the United States, unless for a visit, since he left it in 1878. In 1895 Edward, being then 21 years of age, was summoned to appear for examination as a soldier in the Hungarian army. The father appealed to the United States legation for its intervention, on the ground that his son was an American citizen. The son declared that he did not intend to go to America to reside, but expected to remain in Hungary during his natural life. The minister of the United States at Vienna refused to issue him a passport or otherwise to intervene in his behalf, unless he would elect to go to America and in good faith take upon himself the duties of citizenship there. This condition having been declined, the minister refused to interfere, saying that he would accept nothing less" than an actual renouncement of the domicil so long maintained in Hungary and a return to the United States in good faith to make it his permanent home." His action was approved.

Mr. Tripp, min. at Vienna, to Mr. Olney, Sec. of State, June 30, 1895; Mr.
Adee, Act. Sec. of State, to Mr. Tripp, July 23, 1895; For. Rel. 1895,
I. 20-22.

"As you allege that your father, a naturalized citizen of the United States,' settled' in Cuba in 1820, where he married, reared his family and apparently resided until his death, there may be some question whether at the time of the birth of his children he had not abandoned his American citizenship. Admitting, however, that your father was a citizen of the United States at the date of your birth, you and your brothers, in order to conserve your American citizenship, should, on reaching your majority, have come to the United States to reside. You are no longer children.' Your citizenship is no longer derivative, but a matter of personal election. You did not come to the United States on attaining your majority, nor do you now express any intention of ever coming to this country to reside. You are therefore, in the Department's opinion, clearly not entitled to claim the protection of this Government."

Mr. Olney, Sec. of State, to Mr. Ory, Dec. 27, 1895, 206 MS. Dom. Let. 609. See, to the same effect, Mr. Olney, Sec. of State, to Mr. Desvignes, April 2, 1896, 209 MS. Dom. Let. 139.

As a rule, the question of election assumes a practical form, in consequence of a claim made to the individual's allegiance by the country in which he actually resides. In 1896, however, the question of renunciation was mooted, in a case where, the two original allegiances being American and German, the German Government held that the individual, who was then residing in Alsace, had, by reason of previous residence as a minor with his father for twelve years in France,

lost his German citizenship, and might be expelled as an alien. It seems that he had attained his majority two and a half years before the question of expulsion was raised, and that he had spent the interval chiefly or wholly in Alsace. The question, therefore, to be determined was whether his "domicil abroad for some two and a half years after attaining majority operates as a positive abandonment of his American status." This question was reserved, to be determined upon the duly ascertained circumstances of the case, if it should be presented in such a way as to require a decision, e. g., by an application for a passport.

Mr. Olney, Sec. of State, to Mr. Uhl, amb. to Germany, Nov. 20, 1896, MS.
Inst. Germany, XIX. 684. See also, Mr. Olney, Sec. of State, to Mr.
von Reichenau, No. 247, Nov. 20, 1896, MS. Notes to German Leg.
XI. 683.

Mr. Olney observed that in most of the cases that had arisen the law of
the foreign country had required an election to be made “within one
year after attaining majority, as is the rule in France." In other
cases, where there was no local law or regulation on the subject, a
relinquishment of the right to protection as an American citizen,
while continuing to reside abroad, had been inferred from circum-
stances, the party having had an opportunity to dispute the adverse
presumption and establish good faith.

W., sr., was born in Alsace in 1831, emigrated to the United States in 1847, and in due time was naturalized. In the latter part of the "sixties" he returned to Alsace and settled there permanently. There, in 1875, was born W., jr., whom the German authorities in 1899, on his asserting American citizenship, threatened to expel as an alien. He had never been in the United States. It was held that, even conceding that his father at the time of his birth still remained an American citizen, W., jr., " did not evidence an election of American nationality by coming to the United States when he arrived at the age of 21, three years ago, nor does he now evince any intention of coming to the United States to reside," and that he therefore was 66 not entitled to the intervention of this Government in his

behalf."

Mr. Hay, Sec. of State, to Mr. White, amb. to Germany, No. 959, Nov. 4, 1899, MS. Inst. Germany, XXI. 104.

David Marks, 26 years of age and a native of Guatemala, where he still lived, although the son of a naturalized citizen of the United States, was held not to be entitled to a passport," because he has, by his permanent residence in Guatemala, the land of his birth, where he intends to remain, inferentially elected other nationality than that of the United States.”

Mr. Adee, Acting Sec. of State, to Mr. Combs, No. 71, Sept. 15, 1903, For.
Rel. 1903, 595.

XII. QUESTION OF EXPATRIATION.

1. COMMON-LAW DOCTRINE.

§ 431.

The Declaration of Independence enumerates as among the "unalienable rights" with which "all men are "endowed by their Creator," "life, liberty, and the pursuit of happiness." Whether these comprehended, incidentally, the right of the individual to renounce his allegiance at will, is a question on which opinions differed. The courts of the United States, prior to 1868, often implicitly accepted the common-law doctrine that a citizen can not at will renounce his allegiance.

2 Kent's Comm. 49; 3 Story's Constitution, 3, note 2; Whart. State Trials, 654; Whart. Confl. of Laws, §5; Lawrence's Wheaton (1863), 918; Inglis . Trustees of the Sailor's Snug Harbor, 3 Pet. 99; Shanks v. Dupont, 3 Pet. 242, 246; The Santissima Trinidad, 7 Wheat. 283; Portier v. Le Roy, 1 Yeates (Penn.) 371. Contra, Alsberry v. Hawkins, 9 Dana (Ky.), 178. The utterances of the Executive Department, down to 1868, were by no means consistent. But by Mr. Buchanan, as Secretary of State, the right of voluntary expatriation was broadly asserted; and, during his Presidency, it was reannounced in the form in which it has since been affirmed, especially by the act of 1868.a See Moore's American Diplomacy, chap. vii., on the Doctrine of Expatriation.

The idea of expatriation comprehends not merely the loss, but the change, of home and allegiance; it includes not only emigration, but naturalization.

Black, At. Gen., 1859, 9 Op. 356.

A citizen of the United States, whether native or naturalized, who expatriates himself and becomes a citizen of another country, can reacquire American citizenship only by complying with the laws relating to the naturalization of aliens.

Williams, At. Gen., 1873, 14 Op. 295; Mr. Fish, Sec. of State, to Mr. Carpenter, Feb. 5, 1873, 97 MS. Dom. Let. 407; Mr. Fish, Sec. of State, to Mr. Whiting, Feb. 6, 1873, 97 MS. Dom. Let. 427; Mr. Rives, Assist. Sec. of State, to Mr. Richards, May 23, 1888, 168 MS. Dom. Let. 441; Mr. Wharton, Act. Sec of State, to Mr. Hirsch, min. to Turkey, July 10, 1891, For. Rel. 1891, 752; Mr. Olney, Sec. of State, to Mr. Weltner, Nov. 19, 1896, 214 MS. Dom. Let. 80; Mr. Hill, Assist. Sec. of State, to Mr. Navarro, Jan. 20, 1899, 234 MS. Dom. Let. 172.

"No British subject can, by such a form of renunciation as that which is prescribed in the American law of naturalization, divest

a Infra, § 435.

himself of his allegiance to his sovereign. Such a declaration of renunciation made by any of the King's subjects would, instead of operating as a protection to them, be considered an act highly criminal on their part."

Lord Grenville to Mr. King, Am. min., March 27, 1797, Am. State Papers,
For. Rel. II. 148, 149.

The doctrine of perpetual allegiance was not applied by the British
courts to persons born in the United States before, and remaining
here after, the acknowledgment of their independence. (Doe v.
Acklam, 2 B. & C. 779.) See supra, § 376.

"To the Lords of His Majesty's most Hon'ble Privy Council. May it please Your Lordships,

"In obedience to your Lordships' order of the 16th inst., referring to us the petition of John Montgomery, the representative of Simon Cook, and papers accompanying the same to your Lordships' order annexed, and requiring us to consider thereof, and report whether Alexander Smith, therein named, is to be considered according to the construction of His Majesty's order in council of 31st May, 1797, for regulating the trade between Great Britain and the Territories belonging to the United States of America, as a subject of the United States of America, and whether he is entitled to be master of a ship belonging to the said United States trading to this country and to confer on said ship the benefit of said order in council; We have considered the papers so referred to us and we are of opinion that Alexander Smith, being a natural born subject of His Majesty and not having been admitted a citizen of the United States of America until 6th May, 1796, cannot be considered with respect to this country as a citizen of the United States so as to entitle him to be a master of a ship belonging to the said United States trading to this country or to confer on such ship the benefit of said order of council. We apprehend this point was submitted to opinion of Sir Philip Yorke in 1732 in the case of a Scotchman who had been a Burgher of Stockholm and was master of a Swedish ship navigated with Swedish mariners; and that he thought this would not entitle the Scotchman to be considered as a Swede in Great Britain, his native country. All which we humbly submit to your Lordships' consideration.

"19th June 1797. (Signed)

"WM. SCOTT.

JNO. SCOTT. "JNO. MITFORD."

MSS. Dept. of State.

2. JUDICIAL DECISIONS.

(1) PRIOR TO 1868.

§ 432.

A brought an action against B in Pennsylvania. B objected to the jurisdiction of the court on the ground of Article XII. of the consular convention between the United States and France, under which all differences and suits between citizens of France in the United States or citizens of the United States in France were to be determined by consular officers. It appeared that A was a native of France, and resided in San Domingo at the period of the French Revolution. After the introduction of the republican system in France he came to America and took an oath of allegiance to the State of Pennsylvania under the act of March, 1789 (2 Dall. 676), and purchased a tract of land, on which he resided. That act was, however, at the time obsolete, and he was never naturalized under the act of Congress; but he was frequently heard to express his abhorrence of the condition of things in France, and he declared an intention to settle permanently in America. The supreme court of Pennsylvania held that he was not a citizen of France. It was true, said the court, that it did not appear that he had acquired rights of citizenship in the United States or in any other country; but he had an undoubted right to dissent from the revolution and to refuse allegiance to the new government and withdraw from the territory of France. Everything that could be said or done to manifest such a determination had been said and done by A, except the act of becoming a citizen or subject of another country. No argument seems to have been made on the law of France; but the court seems to have proceeded on the ground that the plaintiff was not, as the idea was expressed by counsel," a citizen of the French Republic."

Caignet r. Pettit, supreme court of Pa. (1795), 2 Dallas, 234.

Edward Ballard, a native of Virginia, and a citizen and inhabitant of the United States, captured, while in command of L'Ami de la Liberté, an American-built vessel, owned by citizens of the United States, and unlawfully armed and equipped in the United States, but cruising under the pretended authority of France, a vessel and cargo belonging to citizens of the Netherlands. A question being raised as to Ballard's citizenship, it appeared that in April, 1794, he renounced, in the court of Isle of Wight county, his allegiance to Virginia and to the United States, under a Virginia statute of December 23, 1792, which provided that whoever should, in a prescribed form, declare that he relinquished the character of a citi zen and should "depart out of the commonwealth, should "from

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