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Service under foreign

For. Rels., 1879, p. 824.

expatriation, is declared inconsistent with the fundamental principles of the Republic.

It appears that, after lending important services to the government. republicans of Mexico during the French intervention and the Empire of Maximilian in 1866–67, Mr. Smith took active part in 1876 in the successful revolutionary movement of General Diaz, became a colonel in the Mexican army, and was understood to be in such service at the time of his death, of which the date is given as June 5, 1879.

You further quote the provision of the Mexican law of January 30, 1856, enacting the naturalization, apparently without any additional formality beyond the fact of service, of a foreigner who “accepts any public office of the nation, or belongs to the army or navy,” and in view of this you ask in general terms for the views of the Department upon the status of Americans accepting service under the Mexican Government, and also specific instructions on the points presented in Mr. Strother's letter to you of the 15th ultimo, a copy of which you transmit.

In answer to the first point presented by you, I may observe that on the 27th of July, 1868, Congress declared that the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of "life, liberty, and the pursuit of happiness" (section 1999, Revised Statutes). The act of changing allegiance and citizenship must necessarily conform to the laws of the country where the American who voluntarily expatriates himself becomes a citizen or subject. No law of the United States, for instance, can make a Mexican citizen out of one of our own citizens, or prevent him from becoming a Mexican citizen by the operation of Mexican law. Mr. Smith, by the act of voluntarily taking military service under the Government of Mexico while a law was

in existence by which such an act on his part conferred and involved the assumption of Mexican citizenship, must be deemed to have understandingly conformed to that Mexican law, and of his own accord embraced Mexican citizenship. Under the enactment of Congress, previously quoted, no permission of the Government of the United States is necessary to the exercise of the right of expatriation. This answers the first question put by Mr. Strother.

The second and third inquiries respecting the status of the minor children are not so easy to answer. The two sons of Mr. Smith, aged respectively seven and ten years at the time of their father's death, were undoubtedly American citizens by birth, inasmuch as the father's change of allegiance occurred after the birth of the youngest child. If within the jurisdiction of the United States, their right to American citizenship would be unimpaired, and, even if within Mexican jurisdiction during minority, they would, in the absence of any Mexican law specifically attaching the altered status of the father to his minor children within Mexican jurisdiction, be still properly regarded as American citizens. But if there be such a law, or if, on attaining majority, they remain in Mexico and come within any provision of Mexican law making them citizens of that Republic, they could not be regarded as citizens of the United States.

The registration of the younger son, by the widowed mother, after the death of the father, although irregularly and unnecessarily delayed, is in contravention of no rule, the child's citizenship at birth being clear.—Mr. Seward to Mr. Foster, August 13, 1879.


I have had the honor to receive your communication, Fish on expadated the 6th instant, requiring my opinion as the princi

pal officer of one of the Executive Departments respecting

Letter to the


For. Rels., 1873, p. 1186,.

et seq.

several questions which accompanied your communication.

In obedience to that requirement I respectfully submit my opinion, in answer to the several questions, as follows:

"Question 1. The law-making power having declared that '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' (15 Stat. at Large, 223), should the Executive refuse to give effect to an act of expatriation of a citizen of the United States?"

The act of Congress of the 27th of July, 1868 (15 Stat. at Large, 223), disposed of the contradictory opinions and decisions of officers of this Government as to the right of expatriation (so far as it concerns citizens of the United States) by declaring in its preamble that "the right of expatriation is a natural and inherent right of all people."

This is the legislative declaration of the principle on which the naturalization laws of the United States have ever rested and is the legislative sanction of the doctrine which has, almost without exception, been uniformly held in the diplomatic correspondence and by the executive and political branch of the Government.

There seems, therefore, to be no difficulty in answering to the first question that the Executive should not refuse to give effect to an act of expatriation of a citizen of the United States.

But the legislative authority which declared it "to be a natural and inherent right of all people" has failed to define "expatriation" or to declare how or under what circumstances it may be exercised, what is essential to its full attainment, or what shall be the evidence of its accomplishment.

The absence of authoritative or of legislative definition on these points has given rise to much doubt and correspondence on the part of the Executive Departments of the Government.

the word.

Expatriation, I understand to mean the quitting of one's Meaning of country, with an abandonment of allegiance and with the view of becoming permanently a resident and citizen of some other country, resulting in the loss of the party's preëxisting character of citizenship. The quitting of the country must be real, that is to say, actual emigration for a lawful purpose, and should be accompanied by some open avowal or other attendant acts showing good faith and a determination and intention to transfer one's allegiance. It can not be exercised by one while residing in the By whom country whose allegiance he desires to renounce, nor during the existence of hostilities; no subject of a belligerent can transfer his allegiance or acquire another citizenship, as the desertion of one's country in time of war is an act of criminality, and to admit the right of expatriation "flagrante bello" would be to afford a cover to desertion and treasonable aid to the public enemy.

It can be exercised only by persons of lawful age, and not by those who leave their country under the charge or conviction of crime or other disabilities. And the same considerations of public policy which deny the right of any citizen in time of war would seem to justify its denial to any citizen while in the actual service of his country; and it will be remembered that Congress has asserted its right to denationalize its own citizens, and has defined one mode whereby the right of citizenship shall be forfeited, in the act of March 3, 1865 (13 Stat., p. 490), which provides that, in addition to the other lawful penalties for desertion from the military or naval service of the United States, all persons who shall desert such service, or who,


Change of residence.

Marshall quoted.

By marriage.

being enrolled, shall depart the jurisdiction of the district in which he is enrolled, or go beyond the limits of the United States with intent to avoid any draft into the military or naval service, duly ordered, shall be deemed to have voluntarily relinquished and forfeited their rights of citizenship, or to become citizens, and shall be forever incapable of holding any office of trust or profit under the United States, or of exercising any rights of citizens thereof.

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'Question 2. May a formal renunciation of United. States citizenship and a voluntary submission to the sovereignty of another power be regarded otherwise than an act of expatriation?"

This question is understood to presuppose an actual change of residence, inasmuch as no person can make himself subject to another power while domiciled and resident within one to which he owes allegiance.

Chief Justice Marshall (2 Cranch, p. 119) says that when a citizen by his own act has made himself the subject of a foreign power, his situation is completely changed, and that the act certainly places him out of the protection of the United States while within the territory of the sovereign to whom he has sworn allegiance.

This opinion is in conformity with public policy and right, and is sustained by the general authority of the writers on public law.

The fourteenth amendment to the Constitution makes subjection to the jurisdiction of the United States an element of citizenship of the United States.

If, then, to this act of voluntary submission of himself to the sovereignty of another power be added a formal renunciation of American citizenship, I can not see that it can be regarded otherwise than as an act of expatriation. Hence it would seem that the marriage of a female

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