Most European countries apply the doctrine of jus sanguinis in fixing citizenship. That is, they treat as their own citizens persons wherever born, whose parents are their citizens. In some cases also, they apply the jus soli as well, claiming as their own citizens persons born upon their soil of alien parents. This, for example, is the practice of France. Many States permit after majority an election to one born in one country of parents who are citizens of another; for example, France, Spain, Belgium, Greece, Bolivia, Italy, Portugal, Mexico, and Great Britain. The British Act of 1870 declares that " any person who is born out of Her Majesty's dominions, of a father being a British subject, may, if of full age, and not under any disability, make a declaration of alienage, and, from and after the making of such declaration, shall cease to be a British subject." In default of such declaration he remains, by birth, a British subject.

Double citizenship is also created, as we shall see in those cases in which one country naturalizes the citizens of another country which does not admit the right of the individual to expatriate himself without the consent of the State of his natural allegiance.

The difficulties and conflicting claims arising out of these cases of double allegiance have been numerous, and have usually been settled, each case upon its own merits, by way of compromise and upon doctrines of comity, rather than by the establishment of any very general principles. Thus it has been held upon numerous occasions by the executive branch of our government that our law cannot operate to relieve such persons from their allegiance to the countries in which they are born so long as they remain in such countries. It has also been generally held that where a naturalized American citizen returns to his native country, he may be held bound by such obligations, as, for example, the rendition of military service, as may have been due by him at the time of his departure from his native country.13

13 Cf. W. S. Tingle, Germany's Claims Upon German Americans in Germany, Philadelphia, 1903.

CHAPTER XIX.

EXPATRIATION.1

§ 135. Denial of Right of Expatriation.

Until comparatively recent times, except in the United States, the right of a citizen to cast off his natural allegiance, the allegiance into which he is born, was generally denied by the States of the world.

This denial was made, but not always enforced in practice, in England down to the time of her Naturalization Act of 1870. Blackstone in his Commentaries declared: "It is a principle of universal law that the natural-born subject of one prince cannot, by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former; for this natural allegiance is intrinsic, and primitive, and antecedent to the other, and cannot be divested without the concurrent act of that prince to whom it was first due. Indeed, the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands by which he is connected to his natural prince."

The statute 3 Jac. 1, chap. 4, provided that promising obedience to any other prince, State, or potentate, subjected the person so doing to be adjudged a traitor, and to suffer the penalty of high

treason.

In respect to the naturalization law of the United States, passed in 1795, Lord Grenville wrote to our minister, Rufus King: "No British subject can, by such a form of renunciation as that which

1 In addition to the general authorities on citizenship, see chapter VII of Moore's American Diplomacy, and the address of Hon. Oscar S. Straus entitled "The United States Doctrine of Citizenship and Expatriation" before the American Social Science Association. 1901.

is prescribed in the American law of naturalization, divest 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.2

The assertion by England of this principle with reference to her subjects who had become naturalized American citizens was one of the causes of the War of 1812.3

In a proclamation issued in 1807, the King declared: "Now we do hereby warn all mariners, seafaring men, and others our natural-born subjects, that no such letters of naturalization or certificates of citizenship do or can in any manner divest our natural-born subjects of the allegiance or in any degree alter the duty which they owe to us, their lawful sovereign."

In the treaty of Ghent which marked the conclusion of this war no mention, one way or the other, was made of this English doctrine; but in future England ceased to enforce her claims in an arbitrary manner against English born, but American naturalized, citizens.

By the act of 1870 England definitely abandoned the doctrine. By that statute it is recognized that by voluntarily assuming citizenship in another State, British citizenship is lost, though such change of allegiance is not to operate to discharge the expatriated one from liability for acts or defaults committed prior

22 Am. State Pap., p. 149; Fitch v. Weber, 6 Hare, p. 51.

3 Moore (Op. Cit., p. 173) calls attention to the fact that the dispute over impressment as a whole did not involve the crucial point of the later controversies as to expatriation. "The burden of the complaint in regard to impressment," writes Moore, "as defined in Madison's war message of June 1. 1812, was that Great Britain sought, under cover of belligerent right, to execute her municipal law of allegiance on board the ships of other countries on the high seas, where no laws could operate but the laws of the country to which the vessels belong.' Precisely the same position was maintained by Webster in his correspondence with Lord Ashburton in 1842. Ships on the high seas are treated, for purposes of jurisdiction, as if they were part of the territory of the nation to which they belong. The complaint that the British Government enforced the English law of allegiance on board of American vessels on the high seas was manifestly a different theory from objecting to her enforcement of the same law within British jurisdiction."

to expatriation. The act also provides for the naturalization of resident aliens of countries whose laws or treaties permit expatriation, and declares such naturalized citizens entitled to the protection of Great Britain everywhere except in the respective countries of their original allegiance.

By a number of foreign States, among them Turkey and Russia, the doctrine of inalienable allegiance is still asserted. In many others it is partially upheld. With most of these countries the United States has entered into special treaties governing the subject of naturalization.*

§ 136. Right Recognized by United States.

Since 1868 the right of expatriation has been uniformly asserted by all the departments of the United States Government. Prior to that time, the executive, judicial, and legislative branches were not always in harmony upon this point. During the early years, the executive branch of the government, while asserting the right of aliens to become naturalized citizens of the United States, did not affirm that this change in political status should be recognized by the States of their respective original allegiance. Mr. Jefferson as Secretary of State in 1793 wrote: "Our citizens are certainly free to divest themselves of that character by emigrating, and other acts manifesting their intention, and may then become the subjects of another power, and free to do whatever the subjects of that power may do."5 A little later, Marshall, as Secretary of State, while affirming the right of an alien without the consent of his native State to seek naturalization, observed that other States should recognize such naturalization "unless it be one which may have a conflicting title to the person adopted." At various times the Executive Department of the United States Government asserted that a naturalized American citizen was entitled,

4 For the various attitudes of, and treaty relations with, foreign States, see Moore, Digest of International Law, Vol. III; Van Dyne, Citizenship, Pt. IV, Chap. II; The American Passport, pp. 127 et seq.; and Report on Citizenship of the United States, Expatriation, and Protection Abroad, 59th Cong., 2d Sess., Doc. 324.

5 Jefferson's Works (Washington ed.), IV, 37.

while abroad, to the same protection at the hands of the American Government as that to which a native-born citizen was entitled. Mr. Buchanan was, however, the first Secretary of State to declare in unqualified terms that the naturalized American citizen was entitled to the full protection of the American Government while abroad, and even in the State of his original allegiance, whatever might be the doctrines and laws of that country with reference to expatriation.

Later Secretaries of State did not continue to state the American doctrine as absolutely as had Buchanan. Since 1868, however, an express legislative declaration has prevented the Executive Department from qualifying the doctrine in words, but in fact, it has not been rigorously applied in cases where neither justice nor expediency has demanded it.

Since the first years of the Constitution the legislation of Congress upon the subject of naturalization has implied the right of expatriation. By the act of 1868 which is still in force, the right of expatriation was explicitly declared in the most unqualified manner. "Whereas," the act reads, "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; and whereas, in the recognition of this principle the government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas, it is claimed that

6 Moore (Am. Dip., p. 174) writes: "A comprehensive examination of our unpublished diplomatic records enables me to say that the first Secretary of State to announce the doctrine of expatriation in its fullest extent the doctrine that naturalization in the United States not only clothes the individual with a new allegiance but also absolves him from the obligations to the old-was James Buchanan."

66

In 1848, writing to the American minister in London, Buchanan said: We can recognize no difference between the one and the other, nor can we permit this to be done without protesting and remonstrating against it in the strongest terms. The subjects of other countries who from choice have abandoned their native land, and, accepting the invitation which our laws present, have emigrated to the United States and become American citizens, are entitled to the very same rights and privileges as if they had been born in the country. To treat them in a different manner would be a violation of our plighted faith as well as our solemn duty."