No. 499.

The Secretary of War to the President.

WAR DEPARTMENT,

Washington City, November 6, 1873. SIR: In response to your request of August 6, addressing to me certain questions concerning the relations between the Government and persons who may claim its protection as citizens of the United States, I have the honor to reply as follows:

First question. The law-making power having declared that "the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness," (15 Stat. Large, 223,) should the Executive refuse to give effect to an act of expatriation of a citizen of the United States ?

Answer. In my opinion the Executive should not refuse.

Second question. May a formal renunciation of United States citizenship, and a volun untary submission to the sovereignty of another power be regarded otherwise than an act of expatriation ?

Answer. In my opinion it may not.

Third question. Can an election of expatriation be shown or presumed by an acquisition of domicile in another country with an avowed purpose not to return? Answer. It can.

Fourth question. Ought the Government to hold itself bound to extend its protection, and consequently exert its military and naval power for such protection in favor of persons who have left its territories, and who reside abroad, without an apparent intent to return to them, and who do not contribute to its support?

Answer. It ought not. Such a residence abroad, prolonged and accompanied by no avowed, known, or apparent intent to return, would constitute a prima-facie case of expatriation which would justify the Government in withholding its protection until explained away and overcome by counter satisfactory testimony.

Fifth question. What should constitute evidence of the absence of an intent to return in such cases?

Answer. The evidence indicating an absence of an intention to return may consist of a great number of particulars, which it would be diffi cult to enumerate. The question is purely one of fact, to be determined by testimony, and each case must be decided on its peculiar circumstances, since it is clear that Congress, in its declaration on the subject, neither required nor contemplated any special form or mode in which the right of expatriation, so broadly recognized by it, should be exer cised. Long residence abroad, accompanied by an absence of business relations with and a failure to assert and exercise the political rights of citizenship in the country left, would naturally be among the most conclusive indicia of expatriation.

Sixth question. When a naturalized citizen of the United States returns to his native country, and resides there for a series of years, with no apparent purpose of returne ing, shall he be deemed to have expatriated himself where the case is not regulated by treaty?

Answer. This, like the former, is a question of fact, to be determined on the testimony. The naturalized citizen may expatriate himself, and thut lose his newly-acquired citizenship, in the same manner as the citizen born can do. Perhaps, in his case, a smaller measure of proof as to the animus of his continued residence in his native country would be required than might be deemed necessary in the case of the citizen born.

Seventh question. Are the children born abroad of a person who has been a citizen of the United States, but who has become a subject or citizen of another power, or who has expatriated himself, citizens of the United States, and entitled to its protection? Answer. This question is supposed to relate to children born abroad, and who are minors at the time their parent expatriates himself. Under such circumstances, his domicile being theirs, in contemplation of law, it is believed that they would necessarily share the change wrought in his status by expatriation. In our country minors become citizens through the act of their parents in bringing them here, and their resulting residence, and there seems to be no reason why they should not equally abide the effect of his action when it results in their expatriation.

Eighth question. Can a person who has formally renounced his allegiance to the United States, and assumed the obligations of a citizen or subject of another power, become again a citizen of the United States in any other way than in the manner provided by general laws?

Answer. He cannot. A citizen who expatriates himself becomes, it is thought, to all intents and purposes, an alien, and, like all other aliens or subjects of a foreign government, he can only become again a citizen of the United States by a compliance with our naturalization laws. Very respectfully, your obedient servant,

To the PRESIDENT,

WM. W. BELKNAP,

Secretary of War.

(Through the honorable the Secretary of State.)

No. 500.

The Secretary of the Navy to the President.
NAVY DEPARTMENT,

To the President of the United States.

November 1, 1873.

SIR: I have the honor to acknowledge the receipt, through the Secretary of State, of your letter requesting my opinion, in writing, upon certain questions therein stated concerning the relations between the Government and persons who may claim its protection as citizens of the United States, and in reply I beg to submit the following:

Some general observations are proper before examining each question in detail.

Every government may make such laws as it sees fit in regard to the expatriation of its own citizens, and may also enforce within its own jurisdiction such laws as it makes in regard to the naturalization of foreigners.

These subjects belong, within the limits here indicated, to the municipal laws of each nation.

It follows from the first proposition that, on the subject of the right of expatriation, the declaration of Congress in the act of July 27, 1868, is law as to our own citizens, while as to the rights of citizens of other countries, in reference to their allegiance, it is only a declaration of opinion as to what is the law of nature or of nations, and is binding on other nations so far only as they assent to it by treaty, or as it may, in truth, accord with the law of nations. Being law as to the right of our own citizens to expatriate themselves, it must, of course, be given full effect by the Executive as regards them; the only question which can arise in this application of the doctrine being the question of fact as to whether a citizen has actually expatriated himself.

But as regards the application of the principle declared in the act to persons bearing other natural relations and having original duties to other nations, the subject is much more complicated and difficult.

While the act of 1868 is declaratory of what is considered the American doctrine, it must be remembered that Congress cannot alter the law of nations; and anything contained in the act contrary thereto is not binding on the President, who is charged with the administration of our foreign relations.

If, for example, Congress should declare that the President must interfere to protect a naturalized citizen contrary to the tenor of treaties or contrary to the law of nations, the enactment would pro tanto be void. Therefore the declaration of the act and the references and the conclusions which follow them must be considered subject to certain qualifications of the right of protection and interference, which grow out of the rights of other governments and are still recognized by the law of nations. In considering these it must be borne in mind that the rights of expatriation and naturalization are not strictly correlative rights. A man may have a right, by the laws of the country to which he emigrates, to be naturalized, and yet may not have a right, by the laws of his own country, to expatriate himself; and much more clear, though not more true, is the principle that a man may have the right of expatriation from one country without the right of naturalization in another.

As every country makes such laws on these several subjects as it sees fit, without inquiring as to the laws of other countries, it may be considered settled that the assent of a man's mother country to his change of allegiance is not regarded as necessary in the country which naturalizes him.

This is so universally the principle on which all nations act, that it may be assumed to be in conformity with international law.

After a man is naturalized in the country to which he emigrates, he is then, admittedly, entitled to all the protection, at home and abroad. (excepting only the country from which he emigrated,) which is accorded. to a natural-born citizen.

As regards the country from which he emigrated, if he returns there. the question of the protection to be given by his adopted country becomes again complicated with other questions of natural rights and duties. He cannot justly claim to be discharged from obligations or penalties which he actually incurred before his emigration, unless they are discharged by lapse of time, or other intrinsic reason. This is generally conceded in all the treaties which our Government has effected on the subject. (See the treaties mostly collected in the note to Chap. I of Wharton's Conflict of Laws, pp. 1-20.)

In the simple case where a naturalized emigrant returns to his native country with the purpose of remaining there permanently and never returning to his adopted country, he is considered as having relinquished his acquired citizenship and re-assumed the duties of his natural one. In such case, of course, all obligation to protect him, on the part of his adopted country, ceases. This is also provided in most of the treaties. (See Halleck's International Law, 692-700. Wharton's Conflict of Laws, pp. 1-20; Wheaton's International Law, by Lawrence, appendix. pp. 891, &c.)

But if he returns to the jurisdiction of his native country without re turning to his natural allegiance, the question of opposing existing rights arises. The right of expatriation, it is seen, is not entirely abso lute; but is somewhat qualified. An emigrant, notwithstanding he be comes naturalized, may be liable to some obligations to his mother country actually incurred.

Formerly the governments of Europe, which were mostly founded on feudal principles, regarded the sovereign as having a kind of property in his subjects, or lieges, which bound them to him for life. Liegeance, or allegiance, therefore, was a tie which the subject could not sunder at his pleasure. But the practice of all nations to naturalize the subjects of other nations without inquiry as to the will of their former sovereign, shows that the doctrine of the law of nations, as now accepted, really is, that a man may throw off his old allegiance and embrace a new one. This has always been the American doctrine, and has now become a subject of treaty with Great Britain, all the German states, Denmark, and Sweden. These treaties, recently effected, dispose of many of the intricate questions which formerly arose out of the claim of perpetual allegiance put forth by foreign nations. (See these treaties; Wharton's Conflict of Laws, pp. 1-20, and Statutes United States, vols. xvi, xvii.) By these treaties, the rule now prevailing may be expressed generally thus: Continuous residence in this country for five years, and naturali zation, effects an entire change of citizenship and allegiance, and all obligations to the mother coontry are extinguished, except those actually incurred before emigration; these remain if the emigrant return to his native country; but all liability to military duty which he evaded by emigration is discharged. But if an emigrant return to his native country, without the intent to return to his adopted country, he is held to have renounced his naturalization. Two years, residence in the native country manifest such intent not to return.

The following references will be useful in examining the history of the controversy respecting perpetual allegiance and the right of expatriation: Lawrence's tract on the subject, appendix to Wheaton's International Law.

Halleck's International Law, 692-700.

Wharton's Conflict of Laws, pp. 1–20

Marcy's letter to Hulseman, in Koszta's case, September 26, 1853.

Marcy's letter to Jackson, in Tousig's case, January 10, 1854.

Cass's letter to Wright, in Tousig's case, July 9, 1859.

Cushing's opinion on the right of a citizen of the United States, to expatriate himself, 1856, Attorney General's Opinion, viii, 139.

Black's opinion's, on expatriation, Attorney General's Opinions, ix, 62–356.

Grot, 1, 5, 24. Puff, 8, 11, 2. Vattel, 1, 222, p. 105. Foelix, Droit, Int. Priv., § 28. With these preliminary remarks I make the following replies to the questions respectively:

Question 1. The law-making power having declared that "the right of expatriation is a national and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness," (15 Stat. at Large, 223,) should the Executive refuse to give effect to an act of expatriation of a citizen of the United States?

Answer. Ifa citizen of the United States should expatriate himself so absolutely that he remains under no obligation of citizenship incurred before such expatriation, then the answer is, No; the President should not refuse to give effect to the act of expatriation. But the act of expatria tion must of course be established by proper proofs, on which it is unnecessary to make a prolonged discussion. Suffice it to say, that naturalization in another country is plenary proof; and in case of a naturalized citizen then resident in his native country, without any intent to return to the United States, is sufficient proof.

Question 2. May a formal renunciation of United States citizenship, and the voluntary submission to the sovereignty of another power, be regarded otherwise than as an act of expatriation?

Answer. Such renunciation and submission cannot be regarded otherwise. But what will constitute them is a question of some uncertainty. A formal renunciation of United States citizenship includes, I assume,

a renunciation of all claims upon the Government of the United States for future protection, and places the party under the protection of the government he adopts. Our own laws do not prescribe any special form of renunciation. The proper and most effective form would be a natur alization in another country; and wherever, and by whatever means, a citizen properly assumes the status of a new citizenship, there he may be considered as having renounced the status and relinquished the rights of his old one. It is difficult to say what form can be adopted short of that which will preclude the party from afterwards demanding United States protection. How could the formal renunciation be authenticated against him?

It seems to me that until a citizen of the United States becomes a citizen of some other country he remains a citizen of the United States. If he takes initiatory and inchoate proceedings to change his citizenship he must follow them up. Within reasonable limits of time it may be presumed that he will do so. But if that be not done, the presumption fails.

Question 3. Can an election of expatriation be shown, or presumed, by an acquisition of domicile in another country, with an avowed purpose not to return?

Answer. As to naturalized citizens, if they return to their native country with an avowed purpose never to return they are to be deemed as having renounced their acquired citizenship; but in case of a native citizen, I do not think that an election of expatriation can be shown, or presumed, simply by an acquisition of domicile in another country, even with an avowed purpose not to return. Such a person, by long residence abroad, may lose all claim of the Government to protect him, but cannot be said to have changed his citizenship. A claim of protection is not of absolute right. It may be much modified by the conduct of the citizen. He may be estopped to claim protection by his own conduct without the loss of citizenship. Thus, where he plots against, or abuses and vilities, his own Government, or plots against or attacks a friendly one, he may lose all absolute claims on his Government, and yet he may not lose his citizenship.

Question 4. Ought the Government hold itself bound to extend its protection, and consequently exert its military and naval power for such protection, in favor of persons who have left its territories and who reside abroad, without an apparent intent to return to them, and who do not contribute to its support ?

Answer. As before said, the duty of protection depends much on the conduct of the citizen abroad. If he manifests a contempt or hostility to his own Government or country, and avoids every duty of a citizen, the Government is not bound to protect such person. The Government is left to its own discretion in such cases, and must act, under its responsi bility, in each particular case. A request for protection is always to be listened to with attention, and not denied to a citizen, unless such citizen, by his conduct, has forfeited clearly his claim to it. If by absence in time of war or distress he has avoided every obligation and duty which a good citizen owes to his country, he cannot demand its protection as a matter of right when he is in distress. If he has been absent on account of business or recreation, or travel, or other fair and legitimate object of pursuit, the case and the conclusion will be different. (See Vattel, Book I, sec. 220, p. 103.)

Question 5. What should constitute evidence of the absence of an intent to return, in such cases?

Answer. The evidence of want of intent to return depends on so many circumstances that it is difficult to lay down a definite rule as to what