and nativity or to any other country and take up a foreign residence, he is presumed to have gotten his naturalization by fraud, and that is a ground for the institution of cancellation proceedings.

Mr. RAKER. Have our courts held that after a man has resided here for five years and received his final certificate of citizenship and goes abroad and lives there 5 or 20 years that he loses any ingredients of his citizenship or rights of American citizenship?

Mr. CRIST. If he has gone abroad within five years after his naturalization. In other words, he must live here for 10 years continuously.

Mr. RAKER. Where is that law?

Mr. CRIST. I will read it. It is section 15:

If any alien who shall have secured a certificate of citizenship under the provisions of this act shall, within five years after the issuance of such certificate, return to the country of his nativity or go to any other foreign country and take permanent residence therein, it shall be considered prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for citizenship, and, in the absence of countervailing evidence, it shall be sufficient, in the proper proceeding, to authorize the cancellation of his certificate of citizenship as fraudulent.

The Supreme Court of the United States has held that to be constitutional in its application. In applying this last portion of the section it says:

The provisions of this section shall apply not only to certificates of citizenship issued under the provisions of this act, but to all certificates of citizenship which may have been issued heretofore by any court exercising jurisdiction in naturalization proceedings under prior laws.

In the case of Luria v. United States, it appeared that he came to this country and went to live in New York for the five-year period and was naturalized. During the period of his residence he studied medicine, was graduated, and within a few months afterwards went to South Africa to practice his profession. Seventeen years afterwards the American consul, under the provisions of this section which says that consular officers shall furnish information with regard to this kind of residence abroad, took up his certificate and forwarded it to this country. Proceedings were instituted in New York City, the last place of residence of the man in this country, and the case prosecuted there. He appealed to the Supreme Court of the United States, and the Supreme Court of the United States said that this was simply a method of procedure, a judicial procedure, and that it did not negative his right to defend himself. The law having previously been held constitutional in the Mansour Case, the Supreme Court, in affirming the decision of the United States District Court for the Eastern District of New York, held that this provision making this virtually a retroactive statute was constitutional and canceled his certificate.

Mr. RAKER. That is somewhat different, and it seems to me you went too far in the statement you made before, because it appears that there must be a proper proceeding against such a man, with opportunity to be heard and an adjudication before the certificate of naturalization is set aside.

Mr. CRIST. Yes. I did not mean to imply that any administrative officer could, without the judgment of a court, set aside a man's cer

tificate. These certificates are only set aside after judgment has been rendered by the court, and they can only be set aside after judicial proceedings have been held. So that in the application of the act of 1907, so far as residence abroad is concerned, it applies only to naturalized citizens; American citizens by birth may reside abroad as long as they choose. They are called expatriates, because they render no service to this country, which is a requisite.

Mr. RAKER. How is that?

Mr. CRIST. They are termed "expatriates."

Mr. RAKER. Who?

Mr. CRIST. The native-born citizens who go abroad and live continuously are termed "expatriates" as a term of opprobrium. Mr. RAKER. There is no law on that?

Mr. CRIST. Yes.

Mr. RAKER. Where is that?

Mr. CRIST. There is no law which says that they are expatriated themselves, but there is a law which deals with that in this way: Notwithstanding the fact that they live in this country they are refered to colloqually, as Mr. Slayden has said, as expatriates. Congress passed a law over a hundred years ago saying that they shall be considered citizens-not only they but their children born abroad, shall be considered citizens of the United States. It goes further and says that the children of those children shall not be held. In other words, it shall not descend to the next generation, but those who live abroad-native-born American citizens may live there all of their natural lives and not forfeit their American citizenship, although we term them in speaking as expatriates, because that is a term of opprobrium. They have their American citizenship preserved, and not only is its preserved to them, but it descends to their children born abroad.

The CHAIRMAN. After they become expatriates, the children born after that condition would not be American citizens?

Mr. CRIST. Not if they take up allegiance and become subject of the country in which they reside. Then the children born to them are born subjects of the country in which they reside, and they retain, of course, their native allegiance.

Mr. RAKER. Is there any other law on expatriation, except this section, that you are familiar with?

Mr. CRIST. I think not.

The CHAIRMAN. Mr. Crist has made a very interesting statement in regard to the constitutional provision, and I notice that this constitutional provision provides that persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. Has the question as to the constitutionality of the act of March, 1907, ever been passed on? It looks to me as if when it is fixed by the Constitution, Congress would not have a right to deny the right conferred by the Constitution by passing a law decitizenizing, because that status is fixed by the Constitution itself.

Mr. RAKER. That is why I asked the question whether there was any other law of expatriation except this. There are two cases, "Any American citizen shall be deemed to have expatriated himself

when he has been naturalized in any foreign state in conformity with its laws."

Mr. CRIST. Yes, sir.

Mr. RAKER. That would apply to native and naturalized citizens? Mr. CRIST. Yes, sir.

Mr. RAKER. And, second, "When he has taken an oath of allegiance to any foreign State"?

Mr. CRIST. Yes, sir.

Mr. RAKER. Those are the only provisions under which a man evpatriates himself?

Mr. CRIST. Yes, sir.

Mr. RAKER. He does that voluntarily and under the power of Congress he then becomes a citizen of the other country and not of the United States?

Mr. CRIST. There is only one other provision, and that is in section 5, I think, of the same act.

Mr. SLAYDEN. The naturalization act?

Mr. CRIST. Yes, sir. Page 24 of this pamphlet, section 3, "That any American woman who marries a foreigner shall take the nationality of her husband." There is an expatriation.

The CHAIRMAN. Mr. Parker has just called my attention to the decision of the Supreme Court in the Mackenzie case.

Mr. CRIST. I was going to refer to the Mackenzie case. That is where a woman in San Francisco wanted to register and vote. The election officials refused to allow her to register when they learned that she was married to a British subject. She appealed through the various State courts to the Supreme Court of California and up to the Supreme Court of the United States. The Supreme Court of the United States held that she was a foreign subject and not an American citizen, and that she had forfeited her American citizenship by marrying a British subject.

The CHAIRMAN. Yes; that is what they held.

Mr. CRIST. It seems to me that as we are here to consider a modification there are two ways by which the force and effect of this may be avoided. One of them is by this bill which we have been discussing, introduced by Representative Rogers, H. R. 3647, and another is by the bill H. R. 4629, also introduced by Representative Rogers on the 22d of May, with some changes that are slight and of which I have several copies here.

Mr. RAKER. Mr. Chairman, I suggest that a copy of that proposal be inserted in the record.

The CHAIRMAN. Certainly.

(The changes suggested by Mr. Crist follows:)

A bill defining section 2 of the act approved March 2, 1907 (34 Stat. L., pt. 1, p. 1228).

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in any case where any American citizen has heretofore taken an oath of allegiance to any foreign State in order to be enabled to serve in the armed forces of such foreign State, and who actually served in the armed forces of such foreign State, the provisions of section two of the act approved March second, nineteen hundred and seven (Thirty-fourth Statutes at Large, part one, page twelve hundred and twentyeight) shall not be construed or held to be applicable, if that foreign State was, at the time when such service began, engaged in war with a country with 13884-17-4

which the United States is at war, nor shall it be held to apply to any American citizen who, prior to April sixth, nineteen hunded and seventeen, entered the armed service of any country now engaged in the European war.

The CHAIRMAN. Section 4 of the act of 1907 evidently applies to expatriation where a foreign woman marries an American citizen? Mr. CRIST. Yes, sir.

The CHAIRMAN. And after his death she renounces her citizenship? Mr. CRIST. Yes, sir. That is the correlative of section 4, which says that any foreign woman who acquires American citizenship by marriage to an American citizen shall be assumed to retain the same, etc. That is under section 1993 of the Revised Statutes, which has been on the statute books for many years.

Mr. RAKER. After having read the decision of the Supreme Court in the Mackenzie case, your view of it, from your work in the department, indicates that it is a very necessary and proper legislative and judicial determination?

Mr. CRIST. Yes, sir. It seems to me that is the only way to have that question finally settled.

Mr. RAKER. Otherwise there would be international as well as all other kinds of complications?

Mr. CRIST. The international observance of it is that way, that the woman's nationality follows that of her husband. There are other decisions of courts of orginal jurisdiction, where a foreign woman, for instance, tries to become an American citizen on her declaration and petition and the courts denied her petition, and in a decision which was rendered in 1908 or 1909, the court said that the allegiance of the wife followed that of her husband and that she could not become an American citizen without the action of her husband who was foreign born.

Mr. SLAYDEN. If she had been a widow she could?

Mr. CRIST. Yes, sir; unmarried or a widow.

The CHAIRMAN. That is a question that I want to hear the gentleman on. In this Mackenzie case it seems that he voluntarily entered into the service and took the oath and voluntarily expatriated himself, and that therefore the provision of the Constitution as to those rights does not operate against it.

Mr. CRIST. I do not think it does. The only question was as to the penalty for taking the oath. This provides that this section shall not apply to those who have entered the foreign armies, regardless of the country they went to serve, excepting they entered the army of an enemy nation of this country and do so or did so after April 5, 1917. If one should do that, enter an enemy army since war has been declared, he is a traitor; that is treason under our Constitution, so that the question of whether he expatriated himself is submerged in the greater question of treason.

Mr. RAKER. What about those men who entered the army of Germany, they are traitors now?

Mr. CRIST. If they went into the army of Germany before war was declared, they went in from the same impulse that other American citizens went into the other armies, and being in the army of the Kaiser, I do not see how they could get out.

Mr. RAKER. Is there that fine distinction as to what a traitor is? Mr. CRIST. Giving comfort to the enemy.

Mr. RAKER. If an American citizen took the oath and is in the Kaiser's Army at this time, when we are at war with Germany, is he not a traitor, and if he comes to this country should he not be tried and shot?

Mr. CRIST. It might be construed that way. There is, however, the other point which will come in, he went in at a time when friendly relations existed between Germany and this country and therefore he never dreamed, having gone in at the early stage of the war, that this condition would exist.

Mr. SLAYDEN. There was no treasonable intent?

Mr. CRIST. No.

Mr. RAKER. If the man was an American citizen, born in the United States, and he went and took the oath in the German Army and is in that army now, is he not a traitor to this country?

Mr. CRIST. Yes; he is giving aid and comfort to the enemy; there is no question about that.

Mr. SLAYDEN. How could he get out?

Mr. CRIST. There is the question of intent and that would be a question for some higher authority to decide. He may be at this time performing service that he would not perform if he could get

away.

Mr. RAKER. Suppose that up to this time he has been in the army and in the trenches fighting, but by some hook or crook does get away and comes to this country, is he not a traitor under every conceivable rule of law, and upon trial should be executed?

Mr. CRIST. I think the question of treason is one of heart.
Mr. RAKER. That is hard to prove.

Mr. CRIST. Suppose that he had been in the German Army for two years and that there is contact between the two forces and he escapes and is captured and proceeds at once to come back and says, "I have been trying to get here. I came here the first chance I could this morning; here I am."

Mr. SLAYDEN. Let me ask you a question in connection with this suggestion: At this time, if the newspapers tell the truth-and I would not insinuate that they do not-Belgians and French are performing involuntary service in the German Army, and in the other armies farther east that is true on even a larger scale. There is no treasonable intent on the part of any of those people. If a young man, an American citizen, but who, under the same sort of impulse that you said a moment ago carried other American citizens into the armies of the allies, had gone back to the country of his birth, or of his father, and had gone into the army while we were still in friendly relations, he would not be guilty of treason, and now he might be very anxious and probably would be, as a matter of fact-to get out of that service for many reasons, but he might specially want to get out because the United States, the country of his adoption and of his citizenship, had gone into war, and he could not do it. That young man would not be guilty of treason, would he?

Mr. CRIST. NO; I do not think he would be convicted and the penalty carried out.

Mr. SLAYDEN. That is certain; and I doubt if he would be guilty technically.

Mr. CRIST. It is a matter of the heart.