Now, as to section 401, which seems to be the bone of contention here--I beg your pardon. Just a moment. I did not ask Mr. Butler whether or not he has any further comment on the amendment which has been presented.

Mr. HENRY F. BUTLER. No, Mr. Chairman. I have no further comment.

Mr. REES. All right. What further now do you have to suggest in reference to section 401?

Mr. FLOURNOY. At the last meeting and the one before that, we were all in accord, I think, on that-this has relevance to expatriation through (a) obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such person

Provided (1) that nationality shall not be lost as the result of the naturalization of parent unless and until the child shall have attained the age of 23 years without having acquired a permanent residence in the United States.

I think we all agree to ask that. I believe the Department of Labor discussed that. We had in mind there cases in which the naturalization of the parent is to take place in the future, after the effective date of this act. Then Mr. Shoemaker at our last meeting raised the question, What are we to do with those whose parents have already obtained naturalization, and they themselves having been naturalized in the foreign state through the parents in the past, prior to the effective date of this act? We ought to take care of that, and there was general agreement that that was so. But we have been unable to reach any agreement upon between our Department and the Department of Labor as to what the provision should be. Our proposal is as follows:

That, in the case of one who, on the effective date of this act, shall have obtained naturalization in a foreign state through the naturalization of a parent but is under the age of 23 years, nationality shall not be lost until such person shall have attained the said age without having acquired permanent residence in the United States.

There must be large numbers of persons now in that position. They have been naturalized through parents in foreign countries in many cases when very young and they themselves have not yet reached the age of 23 years. According to this proposal, they will not lose their citizenship unless, upon reaching the age of 23 years, they failed to come to the United States. I do not believe there is any disagreement as to that. It fits in with the other, but that leaves out entirely that class of persons who, upon the effective date of this act, have been naturalized in foreign countries and many years ago have reached their majority and have passed the age of 23. Some of them may be 40 or 50 or 60 years of age, or more, and are still living in the foreign country.

Mr. Shoemaker will present their view. It is my understanding that their proposal is that these persons are still citizens. They may have been naturalized 50 years ago and live in the foreign country, but they are still citizens of the United States, and they will have some period of time in which they can come here as citizens.

As I pointed out last week, any provision of that kind would be directly contrary to several treaties to which we are a party, and I may say it seems to me it is directly contrary to common sense. seems to me to question the Americanism of thousands or hundreds

It

of thousands living in this country who have been naturalized in this way. Do we admit that the foreign government can still claim them? I do not think so. But our proposal is not an attempt by any legislature now to say what the law was which affected those people by our legislation now, retroactively to say that they lost citizenship years ago—or the opposite, to say that they retained it—but to leave that open and to say that they can apply to the courts or to the proper administrative officials.

As I read the opinion of the Chief Justice in the Elg case he certainly did not mean that a person could obtain naturalization in a foreign state through the naturalization of the parents and remain there the rest of his life and still retain his citizenship in the United States. As I read that opinion, it is that a woman had retained her citizenship upon the principle of election or selection; that a person in that situation, upon reaching majority, should elect one citizenship or the other, and if that person wanted to be an American, should come here very quickly or very soon after the naturalization, to reside, and we think it is absurd to pass any legislation now, even if you could pass retroactive legislation so far as I can see, you haven't any power to do it and to say that a person did not lose citizenship 40 years ago, or any number of years, but to leave that open and decide those cases as they came up, leaving as the criteria the decision of the courts concerning such cases. So that this is designed to leave the question open and to apply only to children who are under 23 when this act goes into effect.

Mr. REES. In other words, you are trying to save the situation from now on?

Mr. FLOURNOY. Yes; and to cover those who have been naturalized abroad, provided they are under 23.

Furthermore, they are to have 1 year under another provision, and in no case will any of them lose citizenship as the result of the naturalization until after the lapse of 1 year following the effective date of the act. Such a person may have been naturalized, say, 10 years ago in Great Britain, and may be going on 23 years of age when the act goes into effect, and it may be unreasonable to say that that person should leave within a few days in order to come to this country, and that citizenship will not be lost in any of those cases until the lapse of 1 year after the effective date of the act.

Mr. SHOEMAKER. Mr. Chairman, I am sure I can convince Mr. Flournoy, if he will just listen to me for a few minutes, that our premises are not based on absurdities. I am confident that I can demonstrate it to anyone's satisfaction, and will do it.

In the first place, a person might have acquired a foreign allegiance and might at the same time be an American citizen prior to the rendition of the Elg opinion. There were thousands of them and there are thousands today, many thousands of them, who have returned to the United States, but they came after they were 23 years of age and they have lived here for years. They are here today. They have been under the impression, some of them, that they were American citizens at all times, others have not, and they have been under the impression that they were Canadian citizens or citizens of some other country; but in any event they came after they were 23 and they were admitted by the immigration authorities, and some were not. To say that a man who has lived here for many years is not to be given the oppor

tunity to assert his American citizenship is to deny him something to which he is entitled, but what objection can there be to the inclusion in this code of a provision which will give to all men, whether they are in the United States or abroad, who have believed themselves to be American citizens, the opportunity to assert that right within the period of 2 years? That was our idea.

So far as the Elg opinion is concerned, we have never had the slightest doubt in our Department that when the Elg opinion was given they did not consider it on moral lines. They considered it on broad principles and they decided several broad principles. They decided that there was dual citizenship. They decided first that there might be an election or a selection, and we have never contested that, because a man lived abroad, he, for instance, could not elect or select about his American citizenship. That has been our position and we maintain it now. But we say this, that there may be American citizens abroad who did not come here, and we know there are thousands in the United States who come here after the age of 23 years and have asserted American citizenship and will continue to assert it. We are deciding those cases every day on application of the Elg opinion. Mr. Butler, as I know and perhaps you know, argued the Elg case before the Supreme Court, and I think he knows as much about it as any man in the world-he certainly knows more about it than I do-but I am satisfied that if we do not give these people 2 years to assert their citizenship, that it would be an injustice. If they do not come here after 2 years, let them lose their citizenship; I do not care. But those men have believed themselves to be American citizens and they should be given an opportunity to establish that fact,

Mr. FLOURNOY. I think that is a mistake.

Mr. SHOEMAKER. No. I can assert that as a fact.

Mr. FLOURNOY. As to the Chief Justice's opinion, he quoted with approval and as a basis for his conclusion the following statement of the Secretary of State, the Acting Secretary of State Uhl, to Mr. Rudolph concerning the case of one Jacob Bohn, who was born in the United States of German parents and was taken to Germany during childhood, referring to this kind of case:

Such child upon arriving of age, or within a reasonable time thereafter, must make election between the citizenship which is his by birth and the citizenship which is his by parentage. In case a person so circumstanced elects American citizenship he must, unless in extraordinary circumstances, in order to render his election effective, manifest an intention in good faith to return with all convenient speed to the United States and assume the duties of citizenship.

There are several statements he quoted in his opinion. He quoted statement after statement just along that line.

Mr. SHOEMAKER. May I say something in connection with that? Mr. REES. Certainly.

Mr. SHOEMAKER. You recall that when you were up here sometime ago you took the position-if I am wrong, you can so state—that when the Supreme Court considered the Elg opinion they were not asserting that a man or woman would lose American citizenship by living abroad because there was no statute which expressly provided for their loss of citizenship, and therefore, notwithstanding the Elg opinion, there would still be the right to election at any time. Didn't you say that?

Mr. FLOURNOY. I beg your pardon. We have not held in our Department that there is no statute. We have held that the act of March 2, 1907, applies to the child. A child could lose his citizenship when he is still under twenty-one, and the Supreme Court has overruled that. And we based that on an opinion of Attorney General Mitchell and on three decisions of the courts, that that much of it has been overruled, but we have not concluded that the act of March 2, 1907, had no application.

Mr. SHOEMAKER. We took the view that the voluntary action was the same thing as that referred to by Chief Justice Hughes in his opinion when he stated that it stated a principle. We are not in disagreement with the opinion, but we hold that they lost it or they had not lost it, they had given up one and taken the other. As I understand the facts, when you were here before, we had an argument on this point.

Mr. FLOURNOY. You misunderstood me. I said there was no express opinion definitely pointing out the minor, but we in the Department do say that the act applies to the child as well as the parents. I would like to point out what the Chief Justice himself said, after citing case after case, after the State Department has said that the person must make an election. He said:

There is no basis for invoking the doctrine of expatriation where a native citizen who is removed to his parents' country of origin during minority returns here on his majority and elects to remain and to maintain his American citizenship. Instead of being inconsistent with the right of expatriation, the principle which permits that election conserves and applies it.

All the way through it is perfectly clear that it is on the principle of election that he bases his conclusion, and that such election must be manifested by a return to this country and performance of the duties of citizenship, and I would like once more to emphasize the fact that we have three treaties in which we definitely recognize naturalization of the minor through the parents as well as the naturalization of the person by his own application.

Mr. SHOEMAKER. Let me add also that Mr. Chief Justice Hughes was well acquainted with the fact that we had a treaty with Great Britain, and said that it did not apply.

The CHAIRMAN (Mr. Dickstein). What is the principle involved between the two Departments, so that I may have an inkling of what you are trying to bring out-a man who has lost his citizenship because of his parents?

Mr. B. W. BUTLER. I think we are concerned with this proviso here; that second proviso is what the argument is all about, and persons who have passed the age of 23 are going to be affected.

The CHAIRMAN. What would you do with persons who have passed the age of 23?

Mr. B. W. BUTLER. That is what they are arguing about.

Mr. FLOURNOY. Take a man who was naturalized abroad 40 years ago and has lived there ever since, the State Department thinks that he is not a good citizen but is a citizen in that country. We think he should be regarded as an alien. The Labor Department differs with us on that. The proposal here is not to attempt to decide that question, but to leave that open and to decide the cases as they came up, using, I suppose, the principle announced in the Elg case.

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The CHAIRMAN. Suppose a man is born here and had been away so long that he might not be a good citizen. He was born in this country. If he decides to surrender the citizenship in the country where he was living all of these years, to what quota should we charge him? How could he get in? What process would he go through to repatriate himself?

Mr. FLOURNOY. I should say he would be an alien.

The CHAIRMAN. What process would he go through to become a citizen of the United States?

Mr. FLOURNOY. We will decide those things as we come to them. It seems to me the immediate thing is to consider whether it is reasonable. We are interested in the State Department on account of the claims that they make. These people get into trouble. They are living in the other country, and naturalized there, and as manifested in election to use the principle laid down by the Chief Justice, who accepts that nationality, they get into some difficulty, and want us to support a claim, and we should be able to say "You are not entitled to protection."

The CHAIRMAN. I grant you all of that. Let us forget that giving any protection at all, and let us get right down to the essence of the thing. We are doing a job. If we do it properly, let us say so. Even that would be poor legislation. Let us assume that he has been there 25 years or more, he is no longer a citizen of the United States. Now, he decides to come back-how is he going to come back and under the quota of what country?

Mr. SHAUGHNESSY. I can answer that. An immigrant born in the United States shall be considered as having been born in the country of which he is a citizen or subject.

The CHAIRMAN. I see.

Mr. SHAUGHNESSY. Or if he is not a citizen or subject of any country

The CHAIRMAN (interposing). That would answer my question. Mr. SHOEMAKER. There are thousands of these people who have been living in the country for years and who came to be 23 years of age and have regarded themselves as American citizens, and under this proviso, they would lose their citizenship.

Mr. FLOURNOY. If you want to put in a proviso which would cover those people, I would be agreeable to that.

Mr. SHOEMAKER. Our idea is to let a man come back in 2 years.
The CHAIRMAN. You cannot after the age of 23.

Mr. SHOEMAKER. You can after the age of 23, if that man has not expatriated himself and has otherwise been regarded as an American citizen. Of course, if he has expatriated himself, he cannot come back, but if otherwise he does not come back within 2 years, wipe the slate clean and say that he is an alien.

Mr. FLOURNOY. That would be one way of saying that by the naturalization principle and the long residence abroad he did not lose his citizenship, and I do not think we have the power to do that. He either did or did not. We cannot change that now.

The CHAIRMAN. Let me ask you-I agree and understand the clear contention of the Department of Labor. Is it your contention that if he does not return at the age of 23, that he is a practical stranger and should have no place in our law? Is that it?