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abandons his residence here and goes to some foreign country, which has no naturalization laws or procedure, and there settles and conforms to its laws in all respects as a citizen thereof, and declares his purpose to remain, and the Congress of the United States by statute declares that such acts constitute expatriation; can it be said that such person remains a citizen of the United States because he has not been naturalized by such foreign government, and that he may claim and be entitled to the protection of the Government of the United States as a citizen thereof? Expatriation is renouncing allegiance to one's own government, accompanied usually by forsaking his own country. In Stoughton r. Taylor, Fed. Cas. No. 7,558, 2 Paine, 562, it was held that an American citizen, by emigrating to a foreign country and entering its military service, completely renounced his American citizenship and was no longer held to its obligations, Can a person owe allegiance to two different, absolute, and independent governments at the same time? Clearly not. 1 Bl. Com. 370.

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There may be a limited and qualified allegiance, of course. A citizen of the United States owes to his Government full, complete, and true allegiance. may renounce and abandon it at any time. This is a natural and an inherent right. When he goes abroad on a visit or for travel he must, while abroad, obey the laws of the foreign country, where he is temporarily. In this sense and to this extent only he owes a sort of allegiance to such government, but to no extent and in no sense does this impair or qualify his allegiance or obligations to his own country or to his own government. But if, when abroad, he enters the military service of the foreign government where he is, and there makes oath that he "will be faithful and bear true allegiance to such foreign government, and as in duty bound honestly and faithfully defend" such foreign government against all enemies, and will observe and obey all orders of such foreign government, etc., he has taken on himself duties and obligations absolutely inconsistent and at war with the duties he owes the home country and government he left, and he has also shown an unequivocal intent to remain abroad. By a change of mind, finding such service irksome and unpleasant, and by desertion from such foreign military service and surreptitious return to the United States, may be rehabilitate and reinstate himself as a citizen of the United States, in face of the statute quoted? In short, by unequivocal acts may he completely expatriate himself the one week and restore himself the next, with all the rights of a citizen? Aliens can only become citizens of the United States by compliance with our laws. Our naturalization statutes prescribe the mode, but the act of March 2, 1907, has a special provision applicable to a woman who marries an alien. There is no provision applicable to a male person who expatriates himself, except our naturalization laws. Is the United States to protect as citizens those who enter a foreign military service, and take an oath of allegiance to such foreign government, and then desert? Does not public policy forbid?

It seems to me very clear that the decision of the Supreme Court of the United States in Mackenzie v. Hare, supra (239 U. S., 299, 36 Sup. Ct., 106, 60 L. Ed., 297), settles the questions involved here against the contention of the petitioner. There this statute (act March 2, 1907, c. 2534, 34 Stat., 1228) was under consideration, and its construction and application before the court. There the plaintiff, who sought by mandamus to enforce her right to vote in California, a right given to all female citizens of the proper age, was born and resided, and always had resided, in the State of California. In August, 1909, while a resident and a citizen of such State, she married in that State one Gordon Mackenzie, who then resided, and who for some considerable time had resided, in California, and who intended to make that State his permanent residence. Mackenzie was a native and subject of the Kingdom of Great Britain, who had not been naturalized, and who had done no act to show an intent to become naturalized in the United States. From the date of their marriage in 1909, the plaintiff and her husband, Mackenzie, had lived together continuously as husband and wife in California. In January, 1913, the plaintiff applied to be registered as a voter. She had all the qualifications of a voter, unless by her said marriage she had taken the nationality of her husband and ceased to be a citizen of the United States. She was denied registration on the ground that by such marriage to Mackenzie, a subject of Great Britain, she had taken the nationality of her said husband and ceased to be a citizen of the United States. This action was approved and held valid by the State courts (Mackenzie v. Hare, 165 Cal., 776; 134 Pac., 713; Ann. Cas. 1915B, 261; L. R. A. 1916D, 127), and the case went to the Supreme Court of the United States, where the decision was affirmed.

The act of March 2, 1907, after providing in section 1 for passports to aliens who have filed a declaration of intention to become citizens of the United States, provides in sections 2, 3, and 4, as follows:

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SEC. 2. 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.

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When any naturalized citizen shall have resided for two years in the foreign State from which he came, or for five years in any other foreign State it shall be presumed that he has ceased to be an American citizen, and the place of his general abode shall be deemed his place of residence during said years: Provided, however, That such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such rules and regulations as the Department of State may prescribe: And provided also, That no American citizen shall be allowed to expatriate himself when this country is at war.

"SEC. 3. That any American woman who marries a foreigner shall take the nationality of her husband. At the termination of the marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to reside in the United States, or if residing in the United States at the termination of the marital relation, by continuing to reside therein.

"SEC. 4. That any foreign woman who acquires American citizenship by marriage to an American shall be assumed to retain the same after the termination of the marital relation if she continue to reside in the United States, unless she makes formal renunciation thereof before a court having jurisdiction to naturalize aliens, or if she resides abroad she may retain her citizenship by registering as such before a United States consul within one year after the termination of such marital relation."

Section 3, above quoted, was involved and under consideration in the Mackenzie case, supra. That section says:

"That any American woman who marries a foreigner shall take the nationality of her husband."

It then provides on what conditions she may resume her American citizenship on the termination of her marriage. The Supreme Court held that, although a citizen of the United States when she married Mackenzie, and although neither she nor her husband had departed from the United States or shown an intent to do so, the mere fact of marriage to such alien was an election and choice to abandon her citizenship in the United States, and so operated; Congress having declared that it should have that effect. The court said:

"It may be conceded that a change of citizenship can not be arbitrarily imposed; that is, imposed without the concurrence of the citizen. The law in controversy does not have that feature. It deals with a condition voluntarily entered into, with notice of the consequences. We concur with counsel that citizenship is of tangible worth, and we sympathize with plaintiff in her desire to retain it, and in her earnest assertion of it. But there is involved more than personal considerations. As we have seen, the legislation was urged by conditions of national moment. And this is an answer to the apprehension of counsel that our construction of the legislation will make every act, though lawful, as marriage, of course, is, a renunciation of citizenship. The marriage of an American woman with a foreigner has consequences of like kind, may involve national complications of like kind, as her physical expatriation may involve. Therefore, as long as the relation lasts it is made tantamount to expatriation. This is no arbitrary exercise of government. It is one which, regarding the international aspects, judicial opinion has taken for granted would not only be valid but demanded. It is the conception of the legislation under review that such an act may bring the Government into embarrassments, and it may be, into controversies. It is as voluntary and distinctive as expatriation, and its consequences must be considered as elected."

Section 2 of this same act of Congress has declared:

"That any American citizen shall be deemed to have expatriated himself when

he has been naturalized in any foreign State,

an oath of allegiance to any foreign State."

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or when he has taken

Concede that a sovereign

This language is definite, certain, and unequivocal. can not discharge a subject from his allegiance and arbitrarily deprive him of his citizenship against his consent, except as a punishment for crime, and that Congress can not abridge or enlarge the rights of citizens, or restrict the effect

of birth in the United States, subject to its jurisdiction; still the right of a citizen to expatriate himself exists; it is a natural and an inherent right, recognized and declared by Congress (and since 1870 recognized by England), and the sovereign power, through Congress, may declare that the doing of certain acts, inconsistent with citizenship in the United States, shall constitute expatriation-loss of or renunciation of citizenship. (Mackenzie r. Hare, supra. ) Congress having declared that naturalization in a foreign country, or the taking of the oath of allegiance to a foreign government, is expatriation, that the one doing the act "shall be deemed to have expatriated himself," it follows that such act, if voluntarily done, constitutes loss and abandonment and voluntary renunciation of citizenship in the United States. If not so, the statute is meaningless and worthless, and Congress is powerless to declare what acts constitute expatriation. Every citizen is presumed to know the law and to understand the effect of his voluntary acts. When he voluntarily does the acts which the law says operate as expatriation, we have the necessary assent. (Mackenzie v. Hare, supra.)

The provisions of the act of 1907 now under consideration have justification in necessity and public policy. Mere enlistment and service in the army of a foreign government is not declared to work expatriation, but the taking of "an oath of allegiance to any foreign State" is. It is evident that it would lead to controversies and national entanglements for the United States to attempt to protect as citizens those who enlist in the English Army, take an oath of allegiance, and then desert. If it be the natural and inherent right of a citizen to expatriate himself or herself, it would seem that the Government should have the right to declare that the doing of acts by the citizen which are inconsistent with the discharge of his duties as such citizen to his Government, accompanied by a departure from its jurisdiction, constitute expatriation-abandonment and renunciation of citizenship. There is no express grant of such power to Congress found in our Constitution. But there are powers implied necessary to the existence of a government or a nation-necessary to the exercise of Sovereignty. This is one. (Mackenzie v. Hare, supra.)

"Alienage may arise in three ways-by birtli, by election, and by operation of law." (2 Corpus Juris., 1044.) "Alienage by election may take place under various conditions, such as when a country is divided into two independent sovereign countries, or when a dependent country proclaims and establishes its independence, or the like. To this class of aliens belong also those persons who have availed themselves of the right to become aliens by expatriation, or by being naturalized as citizens of another country." (2 Corpus Juris.. 1044, 1045; Lynch v. Clarke, 1 Sandf. Ch., 583 (N. Y.), 668.)

In Morse on Citizenship (1881), p. 160, § 129, it is said:

“Every individual must be a member of some political society; but he may not have more than a single citizenship or national character. It would seem to be the doctrine of modern public law that, though a person may apparently have a double citizenship or nationality, yet whenever circumstances arise which make two citizenships inconsistent, he must elect and determine which one he will prefer. The existing rule may be stated as follows: 'A person who has ceased to be a member of a nation, without having acquired another national character, is nevertheless deemed to be a member of the nation to which he last belonged, except so far as his rights and duties within its territory, or in relation to such nation, are concerned.'"

Field's Int. Code (2d Ed.), p. 130, note, is cited.

If this be correct, and Griffin, under our statute, ceased to be a member of the United States, but, not having been naturalized in England or Canada, so as to acquire another national character, was within the exception, so he had no rights and owed no duties as a citizen in the United States, it is difficult to understand what his status was and now is. He has definitely expatriated himself under our statute, but he has not been naturalized in England, although by his oath of allegiance he has made himself subject to that empire. He is not, however, a naturalized subject or citizen of that nation. Did he have two apparent citizenships at the time of his desertion and surreptitious return, the one inconsistent with the other, and could he and did he by such desertion and surreptitious return to the United States elect and determine which he preferred? Could he by such desertion and return nullify the effect of his outh of allegiance to the King of Great Britain and Ireland declared by statute and restore himself to full citizenship in the United States, with all the rights and privileges such status gives? I can not assent to such contention. It may be said, however, that England must take and claim Griffin as a citizen of the

empire, if she claims and takes him, and, as he has not been naturalized in England, he had the legal right to elect citizenship by desertion and return to the United States.

In Mackenzie r. Hare (239 U. S. 299, 36 Sup. Ct. 106, 60 L. Ed. 297), to which attention has been called, Mrs. Mackenzie assumed the marriage relation, which she could not throw off at will. The law of Congress declares that by her marriage to an alien she took on the citizenship of her husband, who was a citizen of Great Britain, and lost her citizenship in the United States. Here there was no naturalization of Mrs. Mackenzie in England, or under the laws of that country; no consent on the part of that empire; no residence or domicile in that country; no oath of allegiance. Still by her marriage with Mackenzie she lost her citizenship in the United States and her rights as such, and we are not informed as to what her rights are under the laws of England. By the terms of the act of Congress she is restored on the termination of the marital relation, by the death of her husband or by divorce, and not otherwise. But in the meantime she is not a citizen of the United States and not a naturalized citizen of England. So far as the laws of the United States are concerned, she is declared to be a citizen of the Kingdom of Great Britain and Ireland, but how is it under the laws of that country?

With Griffin the case is somewhat different, but still he is declared to have lost his citizenship in the United States. Congress could not make Mrs. Mackenzie a citizen of Great Britain, as only that Government could do that. She gained no citizenship in any other country pursuant to its laws, and still she is not a citizen of the United States. So concede that Griffin did not gain citizenship in England, still by the act of Congress he lost his citizenship in the United States by expatriating himself, and by his oath of allegiance to the King of Great Britain he took on citizenship in that kingdom so far as the United States is concerned. In effect, the act of Congress declares that Griffin took on citizenship in Great Britain and lost citizenship in the United States, and the United States must treat him as a citizen of England. This is certainly so if expatriation includes acquiring citizenship in another country.

It is contended by the petitioner's counsel that the oath of allegiance to the King of Great Britain, above quoted, taken by Griffin, is not such an oath of allegiance to a foreign state" as is contemplated by the statute of 1907. The contention is, first, that Griffin did not swear allegiance to the Kingdom of Great Britain and Ireland or the British Empire, but only to the King, and, second, that in such oath he did not abjure allegiance to the United States of America. As already stated, the King of England is the foreign state, and the statute quoted does not require that the oath of allegiance to any foreign state" shall abjure allegiance to the United States. In England nominally all power is centered in the King. To compass the King's death is high treason. It is the army of the King and the King's navy and the King's coin. The oath of allegiance to the kingdom of Great Britain and Ireland or to the British Empire runs to the King, in whom nominally all the executive power of gov ernment is centralized. An oath of allegiance to the King is an oath of allegiance to the kingdom and empire. The King declares war and makes peace. He is the head of the church. Allegiance is due to the King in his political and not his personal capacity. Isaacson r. Durant, L. R. 17, Q. B. D. 54, 65, quoted in U. S. r. Wong Kim Ark, 169 U. S. 663, 18 Sup. Ct. 456, 42 L. Ed. 890; Kilham v. Ward. 2 Mass, 236, 265; St. 4 George II, c. 21, and St. 13 George III, c. 21. Even if expatriation at common law to be complete required naturalization in a foreign country, Congress has declared that the act of taking an oath of allegiance to a foreign state constitutes "expatriation" whether such act amounts to naturalization or not. And this, as stated, is a necessary enactment to avoid national embarrassments and national complications.

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The final question that presents itself is: Did the act of desertion from the service of the King of England, to whom Griffin had sworn allegiance, and his clandestine return to the United States, reinstate and rehabilitate him as a citizen of the United States and give him the right to protection here as such? already stated, I am of the opinion that Griffin became an alien by election, whether he became a citizen of the kingdom of Great Britain and Ireland or not. If the act of expatriation was complete, he lost his status as a citizen of the United States and became an alien. I am not aware of any way for an alien (except in the cases prescribed by statute) to become a citizen of the United States other than by naturalization. The statute of 1907 makes no provision for the restoration to citizenship of one who has expatriated himself by taking the oath of allegiance to a foreign power. Reading the statute as a whole, and

considering the provisions for restoration to citizenship of a woman who marries an alien, is it not fair and just to conclude that one who departs the United States and takes the oath of allegiance to a foreign power must regain his citizenship by naturalization, if at all? It seems to me this must have been in the mind and within the intent of Congress. Otherwise some other mode of restoration to citizenship in the United States would have been prescribed, as was done in the case of a woman who marries an alien and thereby takes on the citizenship and nationality of the husband.

Some of the definitions of "expatriation" state that to constitute "expatriation" there must be an actual change of citizenship, which would mean, in the case of removal to Canada or the British Empire, that to constitute expatriation there must be not only a change of domicile, but naturalization according to the laws of that country. But England for a long time has had statutes declaring that foreigners enlisting into her sea or land armaments and serving for a definite length of time shall be ipso facto thereby naturalized. St. 13 Geo. II, c. 3; St. 2 Geo. III, c. 25; 1 Burge on Colonial and Foreign Law, 713; United States v. Wyngall, 5 Hill (N. Y.) 25.

In Ludlam v. Ludlam, 31 Barb. (N. Y.) 486, 489, it was said that to expatriate is to leave one's country and renounce allegiance to it with the purpose of making a home and becoming a citizen in another country; that it includes more than a change of domicile. This is, of course, true and has never been seriously questioned. In that case a person left the United States in search of employment and a fortune. He not only found employment in South America and there established himself in business, but there married and had children. However, he constantly looked forward to a return to his native country-the United States. Here, of course, there was no expatriation. There was no intent to abandon or renounce citizenship in the United States or to become a citizen of any foreign country; he did no act inconsistent with citizenship in the United States; he took no oath of allegiance to any foreign power; and there was no statute declaring that such residence abroad constituted expatriotism. But in the instant case Griffin removed with his family to Canada, and there enlisted in the army of the King of England and took an oath of allegiance to that foreign power, which oath he, if a citizen of the United States, could not keep in case of trouble with the United States, without committing treason against the United States; and whether such acts made him a citizen of the Kingdom of Great Britain and Ireland, with the rights of a citizen of that country, or not, they were done with the consent and approval of that country, and Griffin became entitled to its protection.

"Emigration, enlistment, and taking the soldier's oath, is effectually a change of allegiance. Though it does not confer all the rights of citizenship, it is a naturalization quoad hoc; and if the expatriation be bona fide, there is nothing contrary either to law or morals in the soldier fighting against his original country, should a war break out between that and the one into whose service he has chosen to enter." United States v. Wyngall, 5 Hill (N. Y.), 16, 23.

Griffin was bound under his oath to serve England faithfully even as against the United States, and the United States in the exercise of its sovereign powers had the right to declare by statute, as it has done, that the acts done by him constitute expatriation; that is, renunciation of citizenship in the United States. Mackenzie v. Hare, supra.

This statute of the United States is a plain recognition of the doctrine of United States v. Wyngall, supra. The statute declares that when Griffin did the acts which he did do he effectually expatriated himself, and under the statutes of England referred to and the decisions he had taken steps in naturalization pursuant to the English laws. He emigrated, enlisted, and took the oath of allegiance required. It follows that Griffin, the petitioner, not only expatriated himself under the statute of the United States but by his oath changed his allegiance to that of the Kingdom of Great Britain and Ireland and necessarily renounced his allegiance to the United States and at least took the preliminary steps to become a naturalized citizen of England. Desertion and clandestine return to the United States could not restore his citizenship or do away with the effect declared by law of his vountary acts. Domicile, unless a law of the country forbids, may be gained at pleasure, but citizenship in an independent and sovereign nation, unless by birth, can not be. Citizenship by birth is, of course, not a voluntary act, but determined by circumstances of birth. I can not see that a citizen of the United States may voluntarily remove with his family to Canada, enlist in her army, take the oath of allegiance to the King of Great Britain, and still retain his citizenship in the Unted States.

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