§ 318. Expatriation of American Citizen.

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.2 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, 4 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

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. 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."3 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.

3 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.

Full consideration has already been given to the citizenship of married women, and in a subsequent section 2 the effect of prolonged residence abroad upon citizenship and protection, both in the case of native and of naturalized citizens, is to be discussed, together with the methods. of overcoming any resulting presumption of expatriation. For the present, therefore, attention will be confined to the two most direct methods, foreign naturalization and oath of allegiance to a foreign. state, by which expatriation may be effected.

Even before the Act of 1907, the political department of the government uniformly recognized foreign naturalization as a valid method of expatriation.3 Other formal acts of renunciation of American citizenship with intent to become a citizen of a foreign country had also been admitted as having this effect. While the forms of naturalization abroad may differ from those known to our law, if they are voluntarily undertaken by an American citizen with knowledge of their legal effect his denationalization will be recognized. Although requests have frequently been made upon the Department of State for certificates admitting the renunciation of American allegiance on the part of a particular citizen, these have always been refused on the ground that expatriation is freely recognized by the United States, and that by the mere fact of naturalization in a foreign country the in

1 Supra, § 263 et seq.

2 Infra, § 326 et seq.

3 Mr. Bayard, Sec'y of State, to Count Sponneck, Apr. 10, 1888, For. Rel., 1888, I, 489; Mr. Gresham, Sec'y of State, to Mr. White, Oct. 2, 1894, For. Rel., 1894, 557; Moore's Dig. III, 714. It was recognized by the courts after 1868. Browne v. Dexter (1884), 66 Cal. 39; Newcomb v. Newcomb (1900), 57 S. W. 2; and in some cases even before 1868; Murray v. The Charming Betsy, 2 Cranch, 119 (dictum).

Williams, Atty. Gen., in 14 Op. 295, and in 14 Op. 154.

Mr. Hay, Sec'y of State, to Mr. Smith, Nov. 6, 1898, Moore's Dig. III, 730 (taking out an allotment of land in Liberia, open to citizens only); Mr. Seward, Sec'y of State, to Mr. Foster, August 13, 1879, For. Rel., 1879, 824 (taking military service in Mexico, thus becoming a naturalized Mexican); Martin (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2467; Prim (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2482; von Bar, § 59; Kircher v. Murray, 54 Fed. 617; Mr. Hay, Sec'y of State, to Mr. Turley, Apr. 6, 1899, Moore's Dig. III, 735. In Martin (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2467 and in Greene (U. S.) v. Mexico, ibid. 2756 it was held that where military service in Mexico conferred Mexican citizenship, American citizenship was lost during the time of the service. It is believed that American citizenship was confused by the Commission with diplomatic protection.

dividual is to be regarded as having lost his rights as an American citizen.1

The circular instruction of April 19, 1907 on expatriation provides that

"whenever it comes to the knowledge of a diplomatic or consular officer that an American citizen has secured naturalization in a foreign state in conformity with its laws, or has taken an oath of allegiance to a foreign state, such diplomatic or consular officer should certify to the facts under his seal and should transmit the certification to [the] Department. If the citizen who has thus acquired foreign naturalization was a naturalized citizen of the United States, the fact should be stated in the certification and the certificate of American naturalization should, if possible, be taken up and forwarded to the Department with the certification."

A second mode of expatriation provided for by the Act of 1907 is by taking an oath of allegiance to a foreign state. From previous departmental rulings as to the effect upon citizenship of an oath of allegiance to a foreign country, it may be said that the oath which operates as a method of expatriation must involve the acquirement of citizenship in the foreign state and renunciation of American citizenship. Thus, at different times it has been held that the oath taken as a prerequisite to obtain certain local privileges in a foreign country, such as the right to fly the flag of the country,3 the right to enter certain lines of business, or to practice certain professions, or other qualified oath which did not involve the acquirement of local citizen

2

4

1 Moore's Dig. III, 714-715; For. Rel., 1908, 29–31.

5

2 Mr. Forsyth, Sec'y of State, to Mr. Emerson, Jan. 23, 1839, Moore's Dig. III, 719. See also Lord Enfield to Mr. Rickmers, Feb. 4, 1871, 61 St. Pap. 1091.

3 Extract from Life and Writings of B. R. Curtis, set forth in Moore's Dig. III, 721. In this case, however, the citizen did not become domiciled in the state of the flag, Hamburg, which fact had an important bearing on the opinion rendered.

4 The letters of domiciliation issued in Cuba in the middle of the last century. Webster's final opinion in Thrasher's case, quoted in Moore's Dig. III, 720-721, and by J. Hubley Ashton, in Moore's Arb. 2702-2703. Sec'y Buchanan regarded the oath of fidelity necessary to obtain the letters as a deprivation of diplomatic protection during the residence in Cuba. Moore's Dig. III, 719. See Machado (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2567.

5 To become a Presbyterian pastor (Sec'y Fish to Mr. Whiting, March 6, 1873) or a teacher in the public schools (Act'g Sec'y Davis to Mr. Barnett, Aug. 20, 1884) in Canada. Moore's Dig. III, 722.

ship or the renunciation of American citizenship did not amount to an act of expatriation. Even the oath of an American citizen to serve a foreign sovereign faithfully while in his military service may not constitute expatriation, unless the citizen so intends, although it may result in a temporary withdrawal of protection so long as the foreign military service lasts.

In several cases in Hawaii prior to its annexation, the taking of an oath of allegiance to support the constitution and laws of Hawaii and bear true allegiance to the King-which the Hawaiian courts had construed as naturalization, notwithstanding a reservation of original citizenship-was held by Secretaries Gresham, Olney and Sherman as an effective loss of American citizenship.1 Mr. Olney's ruling leaves some doubt as to whether he may not, in view of the reservation of native allegiance, have regarded American citizenship as merely temporarily lost during the period of foreign residence.2 An oath of allegiance forced upon an American citizen will be considered equally as ineffective upon his status as compulsory naturalization.

EXPATRIATION-COMPARATIVE LEGISLATION

§ 320. Types of Legislation.

3

It may not be without interest to make a brief comparative survey

1 Cases in Hawaii, Moore's Dig. III, 725-729. See also Sec'y Hay in certain cases in Liberia, ibid. 730. Secretaries Frelinghuysen and Bayard had held that the oath, involving no renunciation of but expressly reserving American citizenship, and being required merely as a condition for the exercise of local political privileges, could not be construed as an act of expatriation. For. Rel., 1882, 346 and For. Rel., 1888, I, 833, also printed in Moore's Dig. III, 723-725. The oath at best was anomalous in form and intent.

2 Mr. Olney, Sec'y of State, to Mr. Willis, November 13, 1895, For. Rel., 1895, II, 867.

In the following works on nationality the statutory provisions of the municipal laws of various countries concerning expatriation are printed. Lehr, E., La nationalité dans les principaux états du globe, Paris, 1909; Sieber, J., Das Staatsbürgerrecht im internationalen Verkehr, Bern, 1907, v. 2; Bisocchi, Carlo, Acquisto e perdita della nazionalità, Milano, 1907, ch. 23 (the author in some cases has failed to use the most recent statutes); Cogordan, George, La nationalité, Paris, 1890, 2nd ed., pp. 455 et seq. (antiquated for many countries); Zeballos, E. S., La nationalité au point de vue de la législation comparée et du droit privé humain, Trad. par. A. Bosq., Paris, 1914, 2 v. See also Parl. Pap., Great Britain, v. 89, Cd. 7027, 1893-1894;