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officers of the United States, who seek his deportation to Canada on the ground that he (Griffin) is not a citizen of the United States, or entitled to be in the United States, but is a deserter from the British Army, he having voluntarily expatriated himself, by voluntarily removing to the Dominion of Canada with his family and then and there voluntarily enlisting in the 156th Overseas Battalion, Canadian Expeditionary Force, and by complying with the laws of Canada, and by taking the oath of allegiance to His Majesty King George the Fifth, king, etc., after which, and after a few weeks' or days' service, he deserted such service and surreptitiously came into the United States, where he was apprehended.

John O'Leary, of Clayton, N. Y., for petitioner.

D. B. Lucey, U. S. Atty., of Ogdensburg, N. Y., for the United States. Ray, District Judge. The questions involved are important, especially for the reason, if a citizen of the United States by voluntarily going to Canada and there enlisting in its army and taking the oath of allegiance to the king of England and serving in such army does not lose his citizenship in the United States, he may serve in the English Army for months, and perhaps years, sustain injuries in such service which forever totally disable him from earning a support for himself or family, and then return to the United States and here become a public charge. There is before this court an original paper, the authenticity of which is not questioned, as follows:

[Attestation Paper. No. 640184. 156th Overseas Battalion, C. E. F. Canadian Overseas Expeditionary Force.]

QUESTIONS TO BE PUT BEFORE ATTESTATION.

(Answers.)

1. What is your surname? Griffin.

1a. What are your Christian names? Edward Dempster.

1h. What is your present address? Gananoque.

2. In what town, township, or parish, and in what country were you born? Adams, Jefferson Co., U. S.

3. What is the name of your next of kin? Abia Griffin.

4. What is the address of your next of kin? Gananoque. 4a. What is the relationship of your next of kin? Wife. 5. What is the date of your birth? Nov. 3rd, 1873.

6. What is your trade or calling?

7. Are you married? Yes.

Farmer.

8. Are you willing to be vaccinated or revaccinated and inoculated? Yes. 9. Do you now belong to the active militia? Yes.

10. Have you ever served in any military force? Yes. (If so, state particulars of former service.)

11. Do you understand the nature and terms of your engagement? Yes.

12. Are you willing to be attested to serve in the Canadian Overseas Expeditionary Force? Yes; for artillery.

DECLARATION TO BE MADE BY MAN ON ATTESTATION.

I, Edward Dempster Griffin, do solemnly declare that the above are answers made by me to the above questions, and that they are true, and that I am willing to fulfill the engagements by me now made, and I hereby engage and agree to serve in the Canadian Overseas Expeditionary Force, and to be attached to any arm of the service therein, for the term of one year, or during the war now existing between Great Britain and Germany, should that war last longer than one year, and for six months after the termination of that war, provided His Majesty should so long require my services, or until legally discharged.

Date, July 14th, 1916.

E. D. GRIFFIN.
R. W. WOOD.

[Signature of recruit.] [Signature of witness.]

OATH TO BE TAKEN BY MAN ON ATTESTATION.

I, Edward Dempster Griffin, do make oath that I will be faithful and bear true allegiance to His Majesty King George the Fifth, his heirs and successors, and that I will as in duty bound honestly and faithfully defend His Majesty, his heirs and successors, in person, crown, and dignity, against all enemies,

and will observe and obey all orders of His Majesty, his heirs and successors, and of all the generals and officers set over me. So help me God.

E. D. GRIFFIN.
R. W. WOOD.

[Signature of recruit.] [Signature of witness.]

Date, July 14th, 1916.

CERTIFICATE OF MAGISTRATE.

The recruit above named was cautioned by me that if he made any false answer to any of the above questions he would be liable to be punished as provided in the Army act.

The above questions were then read to the recruit in my presence.

I have taken care that he understands each question, and that his answer to each question has been duly entered as replied to, and the said recruit has made and signed the declaration and taken the oath before me at Bannfield, this 14th day of July, 1916.

T. C. D. BEDELL, Lt. Col.' [Signature of Justice.] On the back thereof is Griffin's descriptive list, certificate of medical examination, and certificate of the officer commanding unit, which last certificate reads as follows:

"Edward Dempster Griffin, having been finally approved and inspected by me this day, and his name, age, date of attestation, and every prescribed particular having been recorded, I certify that I am satisfied with the correctness of this attestation.

"Date, July 17th, 1916."

“T. C. D. BEDELL. [Signature of officer.]

The petitioner does not deny that he gave the information contained in this paper or that he signed the declaration and oath July 14, 1916, but contends, first, that if he did so intelligently and voluntarily he did not thereby expatriate himself and lose his citizenship in the United States; and, second, that he was so intoxicated when he enlisted in such Canadian service and executed such papers that he did not know and understand what he was doing or the nature and character of his acts and is not bound thereby; that when he became sober and possessed of his faculties he left the service and Canada at the first opportunity and returned to the United States.

At this time we will consider the effect of the acts above set forth on the assumption they were voluntary and knowingly and intelligently done. If when so done such acts did not amount to expatriation and loss or deprivation of his citizenship in the United States, he is illegally held by the immigration officers and can not be deported as an alien. If such acts, assuming they were knowingly, intelligently, and voluntarily done, did amount to expatriation and loss of citizeship in the United States, then evidence will be taken on the question of Griffin's mental and physical condition at the time of his enlistment and at the time he took the oath above quoted.

[1, 4] There can be no serious question that the acts of Griffin, assuming such acts were knowingly and voluntarily done, amounted to expatriation and loss of citizenship in the United States. The Congress of the United States has expressly affirmed and declared the natural and inherent right of a citizen to expatriate himself. R. S. U. S., § 1999, 2 U. S. Comp. St. 1913, § 3955, p. 1589; act July 27, 1868, c. 249, § 1. 15 Stat.. 223. That act declares as follows:

"Whereas 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 this Government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation is declared inconsistent with the fundamental principles of the Republic."

The common-law rule of England is that once a citizen always a citizen, and that no citizen can expatriate himself, except with the consent of his sovereign or Government. 1 Bl. Com. 369. At one time this was recognized as the law

in the United States. Talbot r. Jansen, 3 Dall. 133, 1 L. Ed. 540; U. S. 1. Gilles, Fed. Cas. No. 15206, 1 Pet. C. C. 159; 2 Kent, 49; the fifteenth amendment, Brannon, 20, 21; opinion of Chief Justice Fuller in U. S. r. Wong Kim Ark, 169 U. S., at page 711, 18 Sup. Ct. 456, 42 L. Ed. 890; 7 Cyc. 144, and cases cited note 37. But at an early day the courts of the United States, both State and Federal, began to question and repudiate this doctrine. 7 Cyc. 144, and cases cited. "The consent of the United States is not necessary to enable a citizen thereof to expatriate himself and become a citizen of another country.” Jennes r. Landes (C. C.) 84 Fed. 73.

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Not only has Congress recognized and declared this “natural and inherent right of expatriation without the express consent of the Government, but it has also enacted 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: Provided also, that no American citizen shall be allowed to expatriate himself when this country is at war." 2 U. S. Comp. St. 1913, § 3959, p. 1591; act March 2, 1907, c. 2534, § 2, 34 St. 1228. The King of England is "the State," and England is a "foreign State." It is perfectly clear that Griffin went into a foreign country, represented himself as residing at Gananoque with his wife, and regularly enlisted in the Canadian army, and subscribed and took the oath of allegiance to the King of Great Britain, a foreign State and Government. This was complete expatriation, and so declared by the act of Congress above quoted. Mackenzie v. Hare, 239 U. S. 299, 36 Sup. Ct. 106, 60 L. Ed. 297. In "The Fourteenth Amendment," by Brannon, page 20, citing Santissima Trinidad, Fed. Cas. No. 2,568, 1 Brock, (U. S.) 478, it is said:

"Federal citizenship is lost by expatriation; the citizen by it becomes an alien, and loses all rights adhering to him as a citizen, and is released from his obligations as such."

In Comitis v. Parkerson (C. C.) 56 Fed. 556, 559, it was held that:

"Expatriation can be effected only in accordance with law [and that] under our Government Congress must be the source of that law."

This can not be sound law if expatriation be a natural and inherent right, as Congress says it is; but, assuming it to be true, this petitioner went to Canada with his family, enlisted in a foreign army, and took an oath of allegiance to a foreign government, or state, and thereby expatriated himself by a course of conduct and the doing of acts which an act of Congress says is allsufficient and effectual to constitute expatriation.

The United States has always insisted that a citizen of a foreign country has the natural and inherent right to leave that country, emigrate to the United States, and become a resident and a citizen here on compliance with our naturalization laws, regardless of the wishes or consent of the Government from which he came. If such be the natural and inherent right of an Englishman, it is difficult to understand why it is not the natural and inherent right of a citizen of the United States.

[3] The right of expatriation has constantly been recognized by the Federal Department of State, and those citizens of the United States who have taken upon themselves a foreign allegiance are denied the protection due American citizens. Steinkauler's Case, 15 Op. Attys. Gen. 15; Right of Expatriation, 9 Op. Attys. Gen. 356, 362; Id., 8 Op. Attys. Gen. 139.

[6] Expatriation is the voluntary loss or abandonment, or, more properly speaking, renunciation, of citizenship. This may be a completed act, and complete in its effect as to the status of a person, even if he has not become naturalized in some other country according to its laws. Persons born in the United States, subject to its jurisdiction, are citizens of the United States. If one of these persons goes to England and is there naturalized, he becomes a citizen of England, regardless of the wishes or consent of the United States. He is exercising a natural and an inherent right, says the Congress of the United States. In such case he loses his citizenship in the United States on becoming a naturalized citizen of England. This is distinguished from expatriation, which may consist solely in the abandonment and renunciation of citizenship in the United States, without being naturalized in some other country. Of course, a citizen of the United States expatriates himself when he voluntarily goes to England, and there applies for citizenship and becomes naturalized. He has not only abandoned, but renounced, his citizenship in the United States, and become a citizen of another country. Suppose a citizen of the United States

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.

A citizen of the There may be a limited and qualified allegiance, of course. United States owes to his Government full, complete, and true allegiance. He 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 such foreign government that he "will be faithful and bear true allegiance" to such foreign government, and "as in duty bound honestly and faithfully defend "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 In August, 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. 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 She had all the qualifications of a voter, applied to be registered as 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:

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.

"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: Prorided, 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.

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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:

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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:

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That any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign State, ** or when he has taken

an oath of allegiance to any foreign State."

This language is definite, certain, and unequivocal. Concede that a sovereign 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

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