Betsey, 2 Cranch, 64; Manly vs. Shattuck, 3 Cranch, 488; Livingston es. Maryland Insurance Company, 7 Cranch, 506; the Venus, 8 Cranch, 253; the Frances, 8 Cranch, 363.)

But this national character which a citizen acquires by residence "may be thrown off at pleasure by a return to his native country, or even by turning his back on the country in which he had resided on his way to another." To use the language of Sir William Scott, "it is an adventitious character gained by residence, and which ceases by non-residence." Such was the opinion of the court in the case of the Venus, (8 Cranch, 280,) and in United States res. Guillem, (11 Howard, 47.)

Such is now the rule in England. It is there held that a British subject may acquire the rights, for commercial purposes, of a citizen of another country, and the place of the domicile determines the character of the party as to trade. (Wilson vs. Maryat, 8 T. R., 31.)

In the case of the Danaos, cited in 4th Robinson Adm., 255, the rule was declared that an Englishman residing in a neutral country was entitled to the privileges of a neutral character, and a British-born subject resident in Portugal was allowed the benefit of the Portuguese. character so far as to render his trade with Holland, then at war with England, not impeachable as an illegal trade.

In the case of the Indian Chief, (3 Rob. Adm., 12,) Mr. Johnson, a citizen of the United States, was domiciled in England, and engaged in a mercantile enterprise to the British East Indies, prohibited to British subjects, but allowed to American citizens.

In delivering judgment the court said: "Taking it to be clear that the national character of Mr. Johnson was founded in residence only, it must be held that from the moment he turned his back on the country where he resided, on his way to his own country, he was in the act of resuming his original character, and must be considered an American. The character that is gained by residence ceases by non-residence. It is an adventitious character, and no longer adheres to him from the moment that he puts himself in motion bona fide to quit the country sine animo revertendi."

Such being the law, the fourth question becomes one of easy solution. It must be considered, however, with regard to two classes of citizens, viz, natural-born and naturalized.

It has been seen that a mere residence abroad, with no apparent intention of returning, does not denationalize an American-borncitizen; it only impresses upon him a national character for commercial purposes. He is still bound by the allegiance due to the country of his birth. By virtue of that allegiance that country can demand his services whenever they are needed. For this reason he is, it seems to me, entitled to its protection.

In the case of the Charming Betsey, (2 Cranch, 120,) Chief Justice Marshall said: "The American citizen who goes into a foreign country, although he owes local and temporary allegiance to that country, is yet, if he performs no other act changing his condition, entitled to the protection of our Government; and if, without the violation of any mu nicipal law, he should be oppressed unjustly, he would have a right to claim that protection, and the interposition of the American Government in his favor would be considered a justifiable interposition."

This doctrine of the Supreme Court seems to have been regarded by the Department of State as the true rule, and was declared to be the rule of the Government in the most emphatic manner by Mr. Webster, in the case of John S. Thrasher.

There seems, however, to be a doubt with regard to the right of the

United States to protect a naturalized citizen when he returns to the country of his birth, the doctrine of the State Department seeming to be, up to the year 1852, that if a foreign state did not admit the right of one of its subjects to sever his allegiance, it may lawfully claim. his services when found within its jurisdiction, and that the Govern ment of the United States will not interfere to protect him.

The question first arose, I think, in 1840, in the case of a Prussian who had become a naturalized citizen of the United States, and who claimed to be exempt from military draft on his return to his native country.

Mr. Wheaton, at that time the American minister, in reply to the party, wrote that it was not in his power to protect him. "Had you remained in the United States, or visited any other foreign country except Prussia on your lawful business, you would have been protected by the American authorities at home and abroad in the enjoyment of all your rights and privileges as a naturalized citizen of the United States. But having returned to the country of your birth, your natural domicile and natural character revert, (so long as you remain in the Prussian dominions,) and you were bound in all respects to obey the laws exactly as if you had never emigrated."

These views were adopted by Mr. Everett, Secretary of State, in instructions to Mr. Barnard, January 14, 1853. He said: "If a Prussian subject chooses to emigrate to a foreign country without obtaining the certificate which alone can discharge him from the obligation of military service, he takes that step at his own risk. He elects to go abroad under the burden of a duty which he owes to his government. His departure is in the nature of an escape from her laws, and if at any subsequent period he is indiscreet enough to return to his native country, he cannot complain if those laws are executed to his disadvantage. His case resembles that of a soldier or sailor enlisted by conscription or other compulsory process in the army or navy. If he should desert the service of his country and thereby render himself amenable to the military laws, no one would expect that he could return to his native land and bid defiance to its laws, because in the mean time he had become a naturalized citizen of a foreign state."

This view was accompanied by a note from Mr. Webster when Secre tary of State, in June 1852, to the effect that if a government of a country does not acknowledge the right of natives of that country to renounce their allegiance, it may lawfully claim their services when found within its jurisdiction.

A distinction was taken, however, in 1859, by the State Department, which limited this view, and which confined the foreign jurisdiction in regard to naturalized citizens to such of them as were in the army or actually called into it at the time they left the country; that is, to the case of actual desertion or refusal to enter the army after having been regularly drafted and called into it by the government to which at the time they owed allegiance.

In accordance with this view, Mr. Faulkner, minister of the United States at Paris in 1860, said, in reference to the case of a naturalized citizen who had emigrated before the period of military service, "the doc trine of the United States is that the naturalized emigrant cannot be held responsible, upon his return to his native county, for any military duty the performance of which has not been actually demanded of him prior to his emigration. A prospective liability to service in the army is not sufficient. The obligation of contingent duties depending upon time, sortition, or events thereafter to occur, is not recognized. To subject him to such responsibility, it should be a case of actual deser

tion or refusal to enter the army after having been actually drafted into the service of the government to which he at the time owed allegiance."

The Secretary of State under Mr. Buchanan made the same distinction between the contingent liability of those naturalized citizens who left the country of their origin before the age of military service without the consent required by law, and those who escaped after they were actually enrolled. He claimed that the former were, irrespective of the obligations arising from the contingent liability, which in the interim had become complete, entitled even in their native country to the full protection of American citizens.

This doctrine is in entire harmony with the views of the AttorneyGeneral, expressed in 1859, in the case of Christian Ernst, and may, I think, be considered the views of the Government of the United States. (9 Opin.)

That officer says that a naturalized citizen who returns to his native country "is liable, like anybody else, to be arrested for a debt or crime; but he cannot rightfully be punished for the mere non-performance of a duty which is supposed to grow out of that allegiance which he has abjured and renounced. If he was a deserter from the army, he may be punished when he goes back, because desertion is a crime. On the other hand, if he was not actually in the army at the time of his emigration, but merely liable like other members of the state to be called on for his share of military duty, which he did not perform because he left the country before the time for its performance came around, he cannot justly be molested."

In deciding the question contained in your fifth interrogatory, viz, what should constitute evidence of the absence of an intent to return, I must first consider whether, in any given case, a domicile has been acquired in another country, for the reason that the evidence of an absence of intent to return can only be determined by the fact whether a foreign domicile has been acquired. If such a domicile has been acquired, the intent to return is gone; if not, the intent to return still remains. Whether or not a domicile has been obtained, is purely a question of fact.

It is said by the Supreme Court in the case of the Venus, before referred to, that whether a person had sufficiently made known his intention of fixing himself permanently in a foreign country, must depend upon all the circumstances of the case. "If he has made no express declaration on the subject, and his secret intention is to be discovered, his acts must be attended to as affording the most satisfactory evidence of his intention. On this ground it is that the courts of England have decided that a person who removes to a foreign country, settles himself there, and engages in the trade of the country, furnishes by these acts such evidence of an intention permanently to remain there as to stamp him with the national character of the state where he resides."

It will be seen from my discussion of the proposition contained in the third interrogatory that the doctrine once held was that a naturalized citizen could not be protected by the Government of the United States, if he returned to the country of his birth, on the ground that his native domicile and national character reverted. It is also seen that this doctrine has of late been a good deal modified-the foreign jurisdiction over a naturalized citizen being limited to those who were in the army or drafted, or were owing some accrued obligation at the time they left their native country.

A native or a naturalized citizen, therefore, may now go forth with

equal security over every sea and into every land, including the country where the latter was born. They are both American citizens, and their exlusive allegiance is due to the Government of the United States. One of them owed no fealty elsewhere; the other by his naturalization renounced and abjured all allegiance to the sovereignty whose subject he had been. This worked a dissolution of every political tie which bound him to his native country. (Ernst's case, 9 Opin. Att'ys-Gen., 357.) This being so, it follows that if a naturalized citizen returns to his native country, and resides there for a series of years with no apparent purpose of returning, he only acquires, just as a native citizen of the United States would, a national character for commercial purposes. without losing his character of citizenship acquired by naturalization or ceasing to be bound by the allegiance thereby due from him. His original character does not under these circumstances revert, and therefore he does not become expatriated.

The sixth question must, therefore, be answered in the negative. 7th. Are the children born abroad of a citizen who has expatriated himself citizens of the United States, and entitled to its protection?

By the common law a person born out of the dominions and jurisdiction of the United States, and under the actual obedience of a foreign king, is an alien, though his parents were American citizens.

In Calvin's case it was held that "an alien is a subject that is born out of the ligeance of the king and under the ligeance of another.” (7 Rep., 16.)

"There be regularly three incidents to a subject born: that the parents be under the actual obedience of the king; that the place of the birth be within the king's dominion; and that the time of his birth is chiefly to be considered, for he cannot be a subject born of one kingdom that was born under the ligeance of a king of another kingdom." (7 Rep.. 17.)

In Doe vs. Jones (4 Dumford and East, 308) it is said "the character of a natural-born subject, anterior to any of the statutes, was incidental to birth only; whatever were the situation of his parents, the being born within the allegiance of the king constituted a natural-born subject."

Such was the common law of the United States anterior to the passage of the act of 1804.

Chancellor Kent says, "An alien is a person born out of the jurisdiction and allegiance of the United States. There are some exceptions to this rule, he says, by the ancient English law, as in the case of the children of public ministers abroad, (provided their wives be English women,) for they owe not even a local allegiance to any foreign power. So also it is said that in every case the children born abroad of English parents were capable of inheriting as natives, if the father went and continued abroad in the character of an Englishman with the consent of the sovereign."

This last proposition is an extremely doubtful one.

Chancellor Kent gives as authority for it only the following cases, viz: Hyde vs. Hill, Cro. Eliz. 3, Bro. Abr., tit. Descent, pl. 47, and tit. Denizen, pl. 14. But it is clear, from what he says further on, that little reliance can be placed upon this alleged doctrine. For in commenting upon the fact that the period will soon arise when there will be no stat utory provisions in the United States in relation to the status of children born abroad of American parents, from the fact that the act of 1804 in relation to this question not being prospective will soon be inop

erative, he says such children will be obliged to resort to the dormant and doubtful principles of the English common law.

The rule, however, laid down in Calvin's case, and in Doe vs. Jones, makes it clear that such children would be aliens in the absence of a

statute to the contrary.

It was because such was the common law that there arose the necessity in England of the statute of 25 Edw. In relation to this statute Chancellor Kent says, "It appears to have been made to remove doubts as to the certainty of the common law on this subject." This statute settled the law in England.

But in the United States the rule of the common law was supposed still to have effect. For Congress in 1804 enacted that "the children of persons who now are or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered citizens of the United States." The act was not prospective, however, and its benefits were soon lost.

In 1854 the question again arose, in the absence of every statutory provision, what was the condition of children of American citizens born abroad?

In an article published in February, 1854, in the American Law Register, and attributed to Mr. Horace Binney, it was contended with great force that such children were aliens. All the authorities on the question were reviewed, the position taken by Chancellor Kent that such children might be citizens criticised, and the conclusion I have stated reached. The view contained in this article seems to have been adopted by Congress, for soon after its appearance a bill passed, based substantially upon the idea contained in the article referred to.

A case involving this question has, however, since arisen in New York, and the doctrine of Chancellor Kent maintained. (See Ludlam vs. Ludlam, 26 N. Y., 357; Lynch vs. Clark, 1 Sandf., ch. 583.)

The act provided that "persons heretofore born or hereafter to be born out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of this country, shall be deemed and are declared to be citizens of the United States." If the father, therefore, was a citizen of the United States, his children born are now citizens by force of the statute.

So much is settled. But the father must be a citizen. If the father was not a citizen, then his children born abroad are undoubtedly aliens.

Upon the principles laid down in the cases cited, a citizen of the United States who has expatriated himself is no longer a citizen, and consequently his children born abroad are aliens, and not entitled to be protected by the United States.

The eighth question must, upon the principles laid down in the cases I have cited, be answered in the negative.

Upon these principles a native-born citizen of the United States cannot become expatriated until he has become a citizen of another country in accordance with the naturalization laws thereof. When this has been done, he is from that time no more a citizen of the United States than a foreign-born subject.

According to the same law, laid down in my answer to the sixth question, his original character does not, therefore, revert on his return to the United States, and before he can be regarded as a citizen he must again be naturalized.

I have the honor to be, very respectfully,

WILLIAM A. RICHARDSON,
Secretary of the Treasury.