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lost his German citizenship, and might be expelled as an alien. It seems that he had attained his majority two and a half years before the question of expulsion was raised, and that he had spent the interval chiefly or wholly in Alsace. The question, therefore, to be determined was whether his “ domicil abroad for some two and a half years after attaining majority operates as a positive abandonment of his American status." This question was reserved, to be determined upon the duly ascertained circumstances of the case, if it should be presented in such a way as to require a decision, e. g., by an application for a passport.

Mr. Olney, Sec. of State, to Mr. Uhl, amb. to Germany, Nov. 20, 1896, MS.

Inst. Germany, XIX. 684. See also, Mr. Olney, Sec. of State, to Mr.
von Reichenau, No. 247, Nov. 20, 1896, MS. Notes to German Leg.

XI. 683.
Mr. Olney observed that in most of the cases that had arisen the law of

the foreign country had required an election to be made “ within one
year after attaining majority, as is the rule in France." In other
cases, where there was no local law or regulation on the subject, a
relinquishment of the right to protection as an American citizen,
while continuing to reside abroad, had been inferred from circum-
stances, the party having had an opportunity to dispute the adverse

presumption and establish good faith. W., sr., was born in Alsace in 1831, emigrated to the United States in 1847, and in due time was naturalized. In the latter part of the

sixties" he returned to Alsace and settled there permanently. There, in 1875, was born W., jr., whom the German authorities in 1899, on his asserting American citizenship, threatened to expel as an alien. He had never been in the United States. It was held that, even conceding that his father at the time of his birth still remained an American citizen, W., jr., " did not evidence an election of American nationality by coming to the United States when he arrived at the age of 21, three years ago, nor does he now evince any intention of coming to the United States to reside," and that he therefore was not entitled to the intervention of this Government in his behalf."

Mr. Hay, Sec. of State, to Mr. White, amb. to Germany, No. 959, Nov. 4,

1899, MS. Inst. Germany, XXI. 104.

66

David Marks, 26 years of age and a native of Guatemala, where he still lived, although the son of a naturalized citizen of the United States, was held not to be entitled to a passport, because he has, by his permanent residence in Guatemala, the land of his birth, where he intends to remain, inferentially elected other nationality than that of the United States."

Mr. Adee, Acting Sec. of State, to Mr. Combs, No. 71, Sept. 15, 1903, For.

Rel. 1903, 595.

XII. QUESTION OF EXPATRIATION.

1. COMMON-LAW DOCTRINE.

$ 431.

The Declaration of Independence enumerates as among the “unalienable rights” with which "all men " are "endowed by their Creator," “ life, liberty, and the pursuit of happiness.” Whether these comprehended, incidentally, the right of the individual to renounce his allegiance at will, is a question on which opinions differed. The courts of the United States, prior to 1868, often implicitly accepted the common-law doctrine that a citizen can not at will renounce his allegiance.

2 Kent's Comm. 49; 3 Story's Constitution, 3, note 2; Whart. State Trials,

654; Whart. Confl. of Laws, $ 5; Lawrence's Wheaton (1863), 918; Inglis 14. Trustees of the Sailor's Snug Harbor, 3 Pet. 99; Shanks t'. Dupont, 3 Pet. 242, 246; The Santissima Trinidad, 7 Wheat. 283 ; Portier 1". Le Roy, 1 Yeates (Penn.) 371. Contra, Alsberry 1. Hawkins, 9 Dana (Ky.), 178. The utterances of the Executive Department, down to 1868, were by no means consistent. But by Mr. Buchanan, as Serretary of State, the right of voluntary expatriation was broadly asserted ; and, during his Presidency, it was reannounced in the form

in which it has since been affirmed, especially by the act of 1868.a See Moore's American Diplomacy, chap. vii., on the Doctrine of Expa

triation.

The idea of expatriation comprehends not merely the loss, but the change, of home and allegiance; it includes not only emigration, but naturalization.

Black, At. Gen., 1859, 9 Op. 356.

A citizen of the United States, whether native or naturalized, who expatriates himself and becomes a citizen of another country, can reacquire American citizenship only by complying with the laws relating to the naturalization of aliens.

Williams, At. Gen., 1873, 14 Op. 295; Mr. Fish, Sec. of State, to Mr.

Carpenter, Feb. 5, 1873, 97 MS. Dom. Let. 407; Mr. Fish, Sec. of State, to Mr. Whiting, Feb. 6, 1873, 97 MS. Dom. Let. 427; Mr. Rives, Assist. Sec. of State, to Mr. Richards, May 23, 1888, 108 MS. Dom. Let. 41; Mr. Wharton, Act. Sec of State, to Mr. Hirsch, min. to Turkey, July 10, 1891, For. Rel. 1891, 752 ; Mr. Olney, Sec. of State, to Mr. Weltner, Nov. 19, 1896, 214 MS. Dom. Let. 80; Mr. Hill, Assist. Sec. of State, to Mr. Navarro, Jan. 20, 1899, 234 MS. Dom. Let. 172.

“No British subject can, by such a form of renunciation as that which is prescribed in the American law of naturalization, divest himself of his allegiance to his sovereign. Such a declaration of renunciation made by any of the King's subjects would, instead of operating as a protection to them, be considered an act highly criminal on their part.”

a Infra, 8 435.

Lord Grenville to Mr. King, Am. min., March 27, 1797, Am. State Papers,

For. Rel. II. 148, 149.
The doctrine of perpetual allegiance was not applied by the British

courts to persons born in the United States before, and remaining
here after, the acknowledgment of their independence. (Doe v.
Acklam, 2 B. & C. 779.) See supra, $ 376.

“To the Lords of His Majesty's most Hon'ble Privy Council. May

it please Your Lordships,

In obedience to your Lordships' order of the 16th inst., referring to us the petition of John Montgomery, the representative of Simon Cook, and papers accompanying the same to your Lordships' order annexed, and requiring us to consider thereof, and report whether Alexander Smith, therein named, is to be considered according to the construction of His Majesty's order in council of 31st May, 1797, for regulating the trade between Great Britain and the Territories belonging to the United States of America, as a subject of the United States of America, and whether he is entitled to be master of a ship belonging to the said United States trading to this country and to confer on said ship the benefit of said order in council; We have considered the papers so referred to us and we are of opinion that Alexander Smith, being a natural born subject of His Majesty and not having been admitted a citizen of the United States of America until 6th May, 1796, cannot be considered with respect to this country as a citizen of the United States so as to entitle him to be a master of a ship belonging to the said United States trad

ng to this country or to confer on such ship the benefit of said order
of council. We apprehend this point was submitted to opinion of
Sir Philip Yorke in 1732 in the case of a Scotchman who had been a
Burgher of Stockholm and was master of a Swedish ship navigated
with Swedish mariners; and that he thought this would not entitle
the Scotchman to be considered as a Swede in Great Britain, his
native country. All which we humbly submit to your Lordships'
consideration.
19th June 1797.
(Signed)

WM. SCOTT.
Jyo. SCOTT.

JNO. MITFORD,"
MSS. Dept. of State.

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2. JUDICIAL DECISIONS.

(1) PRIOR TO 1868.

$ 432.

A brought an action against B in Pennsylvania. B objected to the jurisdiction of the court on the ground of Article XII. of the consular convention between the United States and France, under which all differences and suits between citizens of France in the United States or citizens of the United States in France were to be determined by consular officers. It appeared that A was a native of France, and resided in San Domingo at the period of the French Revolution. After the introduction of the republican system in France he came to America and took an oath of allegiance to the State of Pennsylvania under the act of March, 1789 (2 Dall. 676), and purchased a tract of land, on which he resided. That act was, however, at the time obsolete, and he was never naturalized under the act of Congress; but he was frequently heard to express his abhorrence of the condition of things in France, and he declared an intention to settle permanently in America. The supreme court of Pennsylvania held that he was not a citizen of France. It was true, said the court, that it did not appear that he had acquired rights of citizenship in the United States or in any other country; but he had an undoubted right to dissent from the revolution and to refuse allegiance to the new government and withdraw from the territory of France. Everything that could be said or done to manifest such a determination had been said and done by A, except the act of becoming a citizen or subject of another country. No argument seems to have been made on the law of France; but the court seems to have proceeded on the ground that the plaintiff was not, as the idea was expressed by counsel, “ a citizen of the French Republic."

Caignet 1. Pettit, supreme court of Pa. (1795), 2 Dallas, 234.

1

Edward Ballard, a native of Virginia, and a citizen and inhabitant of the United States, captured, while in command of L'Ami de la Liberté, an American-built vessel, owned by citizens of the United States, and mlawfully armed and equipped in the United States, but cruising under the pretended authority of France, a vessel and cargo belonging to citizens of the Netherlands. A question being raised as to Ballard's citizenship, it appeared that in April, 1794, he renounced, in the court of Isle of Wight county, his allegiance to Virginia and to the United States, under a Virginia statute of December 23, 1792, which provided that whoever should, in a prescribed form, declare that he relinquished the character of a citizen and should " depart out of" the commonwealth, should " from

the time of his departure" be " considered as having exercised his right of expatriation," and thenceforth“ be deemed no citizen." He subsequently went on a cruise in the vessel in question, under a commission eminating from the French admiral, but did not become naturalized in any other country.

After his capture of the Dutch vessel, Ballard was assisted to bring her in by one Captain Talbot, of L'Ami de la Point-a-Petre. A question was raised as to Talbot's citizenship. A native of Virginia, he went late in 1793 to Point-a-Petre, island of Guadaloupe, where he took an oath of allegiance to the French Republic, and was naturalized by the municipality as a French citizen. He then sailed on a cruise in L'ami de la Point-a-Petre. This vessel was American built, and was formerly called the Fairplay, under which name Talbot made his voyage in it to Guadaloupe. It then belonged to two American citizens, named Sinclair and Wilson, under a power of attorney from whom Talbot, after his arrival at Guadaloupe, sold the vessel to one Redick, a native citizen of the United States, who had just been naturalized at Point-a-Petre, on the same day as Talbot, as a citizen of the French Republic. They were naturalized three days before the sale. The sale having been made, the governor of Guadaloupe authorized Redick to send out the vessel as L'Ami de la Point-a-Petre, under Talbot's command.

As to Ballard's citizenship, Mr. Justice Paterson declared that he was a citizen of the United States; for, though he had “ renounced his allegiance to Virginia, or declared an intention of expatriation,

yet he had not emigrated to, and become a subject or citizen of, any foreign kingdom or republic. He was domiciliated within the United States, from whence he had not removed and joined himself to any other country, settling there his fortune and family. From Virginia he passed into South Carolina, where he sailed on board the armed vessel called the Ami de la Liberté. He sailed from and returned to the United States without so much as touching at any foreign port during his absence. In short it was a temporary absence, and not an entire departure from the United States; an absence with intention to return.

Ballard was, and still is, a citizen of the United States; unless, perchance, he should be a citizen of the world. The latter is a creature of the imagination, and far too refined for any republic of ancient or modern times. . . . But what is conclusive on this head is that Ballard sailed from this country with an iniquitous purpose, cum dolo et culpa, in the capacity of a cruiser against friendly powers.

An act of illegality can never be construed into an act of emigration or expatriation. • The act of the legislature of Virginia does not apply. Ballard was a citizen of Virginia, and also of the United States. . Allegiance to a particular State is one thing; allegiance to the United States is anotier. Will it

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