CHAPTER II

FORFEITURE OF PROTECTION BY ACT OF CITIZEN. EXPATRIATION

§ 315. Recognition as an Individual Right. History in United States. Expatriation, or the voluntary renunciation or abandonment of citizenship and allegiance, is obviously the most direct method by which diplomatic protection may be forfeited. As in the case of emigration,1 it is only within the last fifty years that states have come to recognize that the feudal theory of indissoluble allegiance is an anachronism, and that the individual has the right to change his domicil and nationality, although the reciprocity of obligation between the individual and the state of which he is a member still requires, in many states, the consent of the government to a recognition of the change of allegiance.2

1 Bar, L. von, Theory and practice of private international law, Edinburgh, 1892, pp. 145-147.

2 The countries of Europe in which military service is compulsory do not recognize, except so far as they have become bound by treaty, the expatriation of their subjects, without the consent of the state or the prior performance of military duty. Supra, § 238. Even the naturalization treaties recognizing expatriation do not relieve the expatriated person from obligations incurred prior to emigration, should he return to his native country. The following countries of Europe have not concluded naturalization treaties with the U. S. recognizing the expatriation of their subjects: France, Italy, Switzerland, The Netherlands, Roumania, Servia, Spain, Russia and Turkey, Supra, § 239. Russia and Turkey still maintain the doctrine of indelible allegiance, and deny the right of voluntary expatriation, except in the case of the marriage of native women to aliens. In practically all the other countries of Europe, the consent of the state is obtainable upon proof of the fulfillment of military obligations. The various attitudes of governments on the question of expatriation are set forth in H. Doc. 326, 59th Cong., 2nd sess., 12 and are discussed supra, p. 544 and infra, p. 684.

Publicists now universally admit that a citizen has the general right of expatriation in time of peace, and in the absence of prohibition or qualification, the assent of the government is implied. E. g., Bluntschli, art. 372; Bar, § 60; Fiore, 4th ed.,

RECOGNITION AS AN INDIVIDUAL RIGHT. HISTORY IN UNITED STATES 675

In the development of the policy of the United States the doctrine of expatriation has experienced numerous vicissitudes.1 The courts of the United States, prior to 1868,2 generally accepted the common law doctrine of perpetual allegiance, Chancellor Kent laying down the rule "that a citizen cannot renounce his allegiance to the United States without the permission of government."3 While the views of the executive department of the government were by no means consistent, the opposite doctrine, namely, the freedom of expatriation, was generally maintained. In this connection, it must be remembered that the question was considered by the executive practically always from the point of view of a foreigner abjuring his native allegiance to become a citizen of the United States. In some cases the United States disavowed any intention to protect a naturalized citizen in his native country when the latter, by its municipal law, still considered him as its subject. Buchanan during the years 1845-1848 was the first Secretary of State to announce the unqualified right of expatriation, namely, that naturalization clothes the individual with a new allegiance and releases him from the obligation of the old; 5 and after art. 653; Bonfils, § 417; Stoerk, in 2 R. G. D. I. P. (1895), 287; Halleck, 1908 ed., I, ch. XII, § 29.

1 On the American law governing expatriation see Van Dyne, Citizenship, Rochester, 1904, §§ 89–99; Van Dyne, Naturalization, Washington, 1907, pp. 333–362; Moore's Dig. III, §§ 431-440; 466-473; Moore, J. B., American diplomacy, New York, 1905, chap. VII; Report of Citizenship Board, H. Doc. 326, 59th Cong., 2nd sess., 12-13, 23-28; 160-168; Opinions of executive officers, and appendixes, For. Rel., 1873, II, 1185 et seq.

Inglis v. Trustees of the Sailor's Snug Harbor, 3 Pet. 99; Shanks v. Dupont, 3 Pet. 242, 246; The Santissima Trinidad, 7 Wheat. 283. Contra, Alsberry v. Hawkins, 9 Dana (Ky.), 178. These and some other cases are considered in Comitis v. Parkerson, 56 Fed. 556, 558-561. See also Moore's Dig. III, § 432, and H. Doc. 326, 59th Cong., 2nd sess., 160-161.

32 Kent's Commentaries, marg. 49. See also the views of Story set forth in Moore, American diplomacy, 171-172. It was recognized by Kent and by the Supreme Court in Shanks v. Dupont that this theory of perpetual allegiance was inconsistent with our naturalization laws, but it was said that only Congress could correct the inconsistency.

See Mr. Wheaton's celebrated declaration in Knoche's case in Prussia, July 24, 1840, Moore's Dig. III, 564 and supra, p. 542. See also Sec'y of State Webster, Everett and Marcy, Moore's Dig. III, § 436. See also Cushing, Atty. Gen., Oct. 31, 1856, in 8 Op. 139 and Moore, American Diplomacy, 177.

'Moore's Dig. III, § 435.

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.

315 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.

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. 5 Extracts printed in 2 Wharton, § 171 and in Moore's Dig. III, § 440.

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 condi1 Supra, § 239.

2 Supra, p. 549.

3 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.

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.