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“Mr. Jefferson, when Secretary of State, in his letter to Gouverneur Morris of the 16th of August, 1793, speaking of the right of private citizens to make war upon a country with which the Government of the United States is at peace, says:
“ • It has been pretended, indeed, that the engagement of a citizen in an enterprise of this nature was a divestment of the character of citizen, and a transfer of jurisdiction over him to another sovereign. Our citizens are certainly free to divest themselves of that character by emigration, and other acts manifesting their intention, and may then become the subjects of another power, and free to do whatever the subjects of that power may do. But the laws do not admit that the bare commission of a crime amounts of itself to a divestment of the character of citizen, and withdraws the criminal from their coercion. They would never prescribe an illegal act among the legal modes by which a citizen might disfranchise himself; nor render treason, for instance, innocent, by giving it the force of a dissolution of the obligation of the criminal to his country.'
“ This is in acordance with the opinion of the circuit court of the United States for Pennsylvania, by whom it was stated, in 1793, that, · if one citizen of the United States may take part in the present war, ten thousand may. If they may take part on one side, they may take part on the other; and thus thousands of our fellow-citizens may associate themselves with different belligerent powers, destroying not only those with whom we have no hostility, but destroying each other. In such a case, can we expect peace among their friends who stay behind? And will not a civil war, with all its lamentable train of evils, be the natural effect?
Report of Mr. Webster, Sec. of State, to the President, in Thrasher's case,
Dec. 23, 1851, 6 Webster's Works, 521, 527.
“ In reply to your note dated the 21st inst., I have to inform you that it appears from the report of the American commissioners in the Robinson case, to which you allude, that the only question discussed was that of jurisdiction. It appears to have been contended by the Mexican commissioners that Robinson parted with his nationality on taking a commission in the Mexican army, and therefore his legal representatives could not prosecute his claim before the board. The American commissioners, however, decided that Mrs. Robinson, in whose name the claim was prosecuted, was an American citizen, and that therefore the case came within the jurisdiction of the board. It does not appear that the claim was resisted on its merits.
“ The decision of the umpire was that the board had no jurisdiction of the case.
Mr. Thomas, Assist. Sec. of State, to Mr. Brodhead, M. C., July 23, 1856,
45 MS. Dom. Let. 103, referring to the proceedings of the mixed comMr. F. W. Seward, Act. Sec. of State, to Mr. Foster, min. to Mexico, Aug.
mission under the treaty between the United States and Mexico of 1839. For the history of the commission, see Moore, Int. Arbitrations, 11. 1220-1232.
Enlistment in the military or naval service of a foreign power is not of itself a renunciation of American citizenship.
Mr. Hunter, Second Assist. Sec. of State, to Mr. Green, consul at Cordoba,
Arg. Rep., Sept. 10, 1880, 97 MS. Desp. to Consuls, 261.
It appears that, after lending important services to the 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 ó 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.”
13, 1879, For. Rel. 1879, 824. To the inquiry whether an American citizen, by enlisting in the inilitary
service of a foreign prince, would lose his national character as a citizen of the United States, the following answer was made: “ Volun
tary enlistment in the military service of a nation is one of the highest proofs that a man can give of allegiance and fidelity to th:ut power, and is always accepted as a renunciation of his former nationality unless such service is undertaken with the express permissio: of his own Government. In regard to your further inquiry as to how far this Government might be disposed to interfere in behalf of such person, were his life in danger as a captive to the enemy of the prince in whose service lie was, the Department can not undertake to answer that question in advance of an actual case presented with all its attending facts and circumstances." (Mr. F. W. Seward, Assist. Sec.
of State, to Mr. Thomas, May 5, 1877, 118 MS. Dom. Let. 151.) “I have received your despatch No. 172, of the 28th ultimo, relative to the case of William Sherwell, an American citizen, who has applied to you for protection on account of cruelty and ill treatment which he has suffered at the hands of local authorities at Orizana, State of Vera Cruz, where he resides.
“I desire to approve your unofficial presentation of the case to Mr. Mariscal, and your intimation to him that the United States could not accept his theory that because Mr. Sherwell had served in the Mexican army he had thereby placed himself beyond the pale of United States protection.
You will find not only a mass of unpublished correspondence in the archives of your legation showing this Government's position under such circumstances, but the Foreign Relations of 1882, 1883, 1884, 1885, and 1887 may also be profitably consulted in this respect.
“ This Government maintains that naturalization is a voluntary act, not to be imputed or determined by construction, but to be affirmatively performed by the individual. While it does not deny that a citizen may voluntarily divest himself of his allegiance and acquire a new one, and while it also recognizes that there are certain specific acts which he may perform in a foreign state, and which in themselves are tantamount to a voluntary and open renunciation of his former nationality or allegiance, yet manifestly the allegation of the Mexican Government in Mr. Sherwell's case is not of this nature. A foreign municipal law can not divest an American citizen ipso facto of his allegiance on the ground of his having performed duty in the military service of an alien state, or of having acquired title to real estate under the laws of such state, or of being employed by a chartered corporation thereof.
Besides these generally recognized principles of international usage, there are historical precedents which emphasize the position of this Government in respect of its citizens temporarily abroad.
“As evidence of this it may be stated that entering the military service of a foreign state is by itself in no sense an abjuration of prior nationality. In our Revolutionary war over six thousand Frenchmen were enlisted in our armies, either in our marine forces or as auxiliaries, but the cases in which those thus serving accepted an American nationality were very few. This Government never maintained, nor did France ever concede, that this enlisting into our service had any effect on their nationality; and France afterwards made several applications to this Government through her diplomatie representative for relief to such of those French subjects as, after their return, had claims against the United States. La Fayette was a major-general in our service, but during the diplomatic controversies that arose as to him subsequently, when he was a prisoner in Austria, this Government never claimed that he was a citizen of the United States or that he ever ceased to be a Frenchman. The same may be said of the Orleans princes, who joined General McClellan's army during the late war of the rebellion. An interesting case to the point is that of late Prince Imperial of France, who died fighting in the English service, but whose political status was treated in England as French. Still another striking proof of the general acceptance of this rule is the fact that there are now thousands of foreigners residing in the country of their original allegiance who receive pensions for their services to the United States as soldiers of the late civil war, although they were never naturalized citizens of the United States. Not only did these pensioners never claim that they had become citizens of the United States by their enlisting, but in no case did their home sovereigns, so far as this Department is advised, either object to their enlisting in our armies or claim that by such enlistment any change was effected in their allegiance or their right to protection based on that allegiance.
" To sum up, therefore, as a general rule it may be maintained that the mere fact of entering into a foreign military service does not divest either nationality or domicil.”
Mr. Bayard, Sec. of State, to Mr. Whitehouse, chargé at Mexico, No. 166,
Nov. 14, 1888, MS. Inst. Mexico, XXII. 300.
“ Citizens of the United States do not lose their nationality by enlisting in foreign armies."
Mr. Rives, Assist. Sec. of State, to Mr. Putnam, consul-general at Hono
lulu, Jan. 5, 1888, For. Rel. 1895, Il. 850.
“I have the honor to enclose a copy of my reply to your telegram of yesterday, by which I informed you that service in the English army would not deprive a native American of citizenship, and that he remains a citizen unless formally naturalized in England."
Mr. Foster, Sec. of State, to Mr. Hawley, U. S. S., Nov. 1, 1892, 189 MS.
Dom. Let. 12.
An inquiry having been made whether a citizen of the United States engaged in mercantile business in Nicaragua had forfeited his
American citizenship in consequence of his having accepted a commission to the Nicaraguan army, to aid in the suppression of a rebellion against the Government, the Department of State said: “ There is no statutory provision determining the circumstances under which a citizen of the United States may forfeit his nationality. Should the circumstances of a citizen's accepting military or civil office under a foreign government make him, under the law of the foreign country, a citizen thereof, the act would be deemed a voluntary abandonment of his American status and an assumption of another allegiance."
Mr. Hay, Sec. of State, to Mr. Turley, April 6, 1899, 236 MS. Dom. Let.
XIV. RENUNCIATION OF NATURALIZATION.
1. GENERAL PRINCIPLES.
“There can be no doubt that, on the same principle which admits of aliens being naturalized in the United States, they may afterwards cast off the character of American citizen and resume their former allegiance or take that of any other country. In case of return to the British dominions, under the circumstances which the first question comprehends, and as the doctrine of perpetual allegiance is there maintained, it is highly probable that our tribunals would adjudge the loss of citizenship to be incurred."
Mr. Madison, Sec. of State, to Mr. Murray, June 16, 1803, 1 MS. Desp. to
Consuls, 168. “A vessel is not entitled to be documented as a vessel of the United States, or, if so documented, to the benefits thereof, if owned, in whole or in part, by any person naturalized in the United States and residing for more than one year in the country from which he originated, or for more than two years in any foreign country, unless in the capacity of a consul or other public agent of the United States."
Treasury Regulations, 1884, p. 5; Rev. Stat., $ 4134; act of March 27,
1804, 2 Stat. 296. “ From the documents transmitted with your despatch No. 24, it appears that Mr. Filippi [a native of Italy] was naturalized as a citizen of the United States in the year 1807, and that in the same year he left this country. There is nothing to indicate any intention on his part of returning here, or that he has any tie of interest or of social connection linked with the welfare of this nation. Without recurring to the litigious question, how far his rights as a citizen might be affected in the judicial tribunals of this country, by such a long and continued absence following almost immediately after his