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Opinion of the Court.
prisoners of war who were assigned to work at the mine and in the factory of this company. The treasonable acts for which he was convicted involved his conduct toward American prisoners of war.
In December, 1945, petitioner went to the United States consul at Yokohama and applied for registration as an American citizen. He stated under oath that he was a United States citizen and had not done various acts amounting to expatriation. He was issued a passport and returned to the United States in 1946. Shortly thereafter he was recognized by a former American prisoner of war, whereupon he was arrested, and indicted, and tried for treason.
Petitioner defended at his trial on the ground that he had renounced or abandoned his United States citizenship and was expatriated. Congress has provided by § 401 of the Nationality Act of 1940, 54 Stat. 1137, 1168, as amended, 8 U.S. C. & 801, that a national of the United States may lose his nationality in certain prescribed ways. It provides in relevant part,
“A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
“(a) Obtaining naturalization in a foreign state
"(b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state; or
"(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state; or
“(d) Accepting, or performing the duties of, any office, post, or employment under the government of a
foreign state or political subdivision thereof for which
only nationals of such state are eligible; The court charged that if the jury found that petitioner had lost his American citizenship prior to or during the period specified in the indictment, they must acquit him even if he did commit the overt acts charged in the indictment, since his duty of allegiance would have ceased with the termination of his American citizenship. The court further charged that if the jury should find beyond a reasonable doubt that during the period in question petitioner was an American citizen, he owed the United States the same duty of allegiance as any other citizen. The court also charged that even though the jury found that petitioner was an American citizen during the period in question, they must acquit him if at the time of the overt acts petitioner honestly believed he was no longer a citizen of the United States, for then he could not have committed the overt acts with treasonable intent. The special verdicts of the jury contain, with respect to each overt act as to which petitioner was found guilty, an affirmative answer to an interrogatory that he was at that time “an American citizen owing allegiance to the United States, as charged in the indictment.”
Petitioner asks us to hold as a matter of law that he had expatriated himself by his acts and conduct beginning in 1943. He places special emphasis on the entry of his name in the Koseki. Prior to that time he had been registered by the police as an alien. There is evidence that after that time he was considered by Japanese authorities as a Japanese and that he took action which might give rise to the inference that he had elected the Japanese nationality: he took a copy of the Koseki to the police station and had his name removed as an alien; he changed his registration at the University from American to Japanese and his address from California to Japan;
Opinion of the Court.
he used the Koseki entry to get a job at the Oeyama camp; he went to China on a Japanese passport (see United States v. Husband, 6 F. 2d 957, 958); he accepted labor draft papers from the Japanese government; he faced the east each morning and paid his respects to the Emperor.
The difficulty with petitioner's position is that the implications from the acts, which he admittedly performed, are ambiguous. He had a dual nationality, a status long recognized in the law. Perkins v. Elg, 307 U. S. 325, 344 349. The concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both.
2 For discussions of the subject of dual nationality, see Talbot v. Jansen, 3 Dall. 133, 164-165, 169; Inglis v. Trustees of the Sailor's Snug Harbour, 3 Pet. 99, 126, 157, 161; Shanks v. Dupont, 3 Pet. 242, 247, 249; Perkins v. Elg, 307 U. S. 325, 329, 339, 344-345; Hirabayashi v. United States, 320 U. S. 81, 97-98; Savorgnan v. United States, 338 U. S. 491, 500; United States v. Husband, 6 F. 2d 957, 958; Dos Reis ex rel. Camara v. Nicolls, 161 F. 2d 860; Attorney General v. Ricketts, 165 F. 2d 193; Uyeno v. Acheson, 96 F. Supp. 510, 514-515; Tomasicchio v. Acheson, 98 F. Supp. 166; Kondo v. Acheson, 98 F. Supp. 884, 886-887; Hamamoto v. Acheson, 98 F. Supp. 904, 905; Boissonnas v. Acheson, 101 F. Supp. 138, 147, 151152; Di Girolamo v. Acheson, 101 F. Supp. 380, 382; Coumas v. Superior Court, 31 Cal. 2d 682, 192 P. 2d 449; Doyle v. Ries, 208 Minn. 321, 293 N. W. 614; Ludlam v. Ludlam, 26 N. Y. 356, 376– 377; Lynch v. Clarke, 1 Sandf. Ch. (N. Y.) 583, 659, 677–679; State ex rel. Phelps v. Jackson, 79 Vt. 504, 520, 65 A. 657, 661; Borchard, Diplomatic Protection of Citizens Abroad, 575-591; Flournoy, Dual Nationality and Election, 30 Yale L. J. 545, 693; Hackworth, Digest of International Law, Vol. III, pp. 352-377; Hyde, International Law (2d ed.), Vol. 2, pp. 1131-1143; Moore, International Law Digest, Vol. III, pp. 518-551; Nielsen, Some Vexatious Questions Relating to Nationality, 20 Col. L. Rev. 840; Oppenheim, International Law (7th ed., Lauterpacht), Vol. I, pp. 606-610; Orfield, The Legal Effects of Dual Nationality, 17 Geo. Wash. L. Rev. 427; Van Dyne, Citizenship of the United States, 24, 34.
Opinion of the Court.
The mere fact that he asserts the rights of one citizenship does not without more mean that he renounces the other. In this setting petitioner's registration in the Koseki might reasonably be taken to mean no more than an assertion of some of the rights which his dual citizenship bestowed on him. The deposition of the Attorney General of Japan states that the entry of a person's name in the Koseki is taken to mean that one has Japanese nationality. But since petitioner already had Japanese nationality, he obviously did not acquire it by the act of registration. The Attorney General of Japan further deposed that all Japanese nationals, whether or not born abroad, are duty bound to Japanese allegiance and that registering in the Koseki is “not necessarily a formal declaration of allegiance but merely a reaffirmation of an allegiance to Japan which already exists.” From this it would appear that the registration may have been nothing more than the disclosure of a fact theretofore not made public.
Conceivably it might have greater consequences. In other settings it might be the equivalent of “naturalization” within the meaning of $ 401 (a) of the Act or the making of "an affirmation or other formal declaration of allegiance” to Japan within the meaning of § 401 (b). Certainly it was relevant to the issue of expatriation. But we cannot say as a matter of law that it was a renunciation of petitioner's American citizenship. What followed might reasonably be construed to mean no more than recognition of the Japanese citizenship which petitioner had acquired on birth-nationality that was publicly disclosed for the first time in Japan by his registration in the Koseki. Cf. 3 Hackworth, Digest of International Law (1942), p. 373. The changing of his registration at the police station and at the University, so as to conform those records to the public record of his
Opinion of the Court.
Japanese nationality, might reasonably mean no more than announcing the fact of his Japanese nationality to the interested authorities.
As we have said, dual citizenship presupposes rights of citizenship in each country. It could not exist if the assertion of rights or the assumption of liabilities of one were deemed inconsistent with the maintenance of the other. For example, when one has a dual citizenship, it is not necessarily inconsistent with his citizenship in one nation to use a passport proclaiming his citizenship in the other. See 3 Hackworth, supra, p. 353. Hence the use by petitioner of a Japanese passport on his trip to China, his use of the Koseki entry to obtain work at the Oeyama camp, the bowing to the Emperor, and his acceptance of labor draft papers from the Japanese government might reasonably mean no more than acceptance of some of the incidents of Japanese citizenship made possible by his dual citizenship.
Those acts, to be sure, were colored by various other acts and statements of petitioner. He testified for example that he felt no loyalty to the United States from about March, 1943, to late 1945. There was evidence that he boasted that Japan was winning and would win the war, that he taunted American prisoners of war with General MacArthur's departure from the Philippines, that he expressed his hatred toward things American and toward the prisoners as Americans. That was in 1943 and 1944. This attitude continued into 1945, although in May or June, 1945, shortly before Japan's surrender, he was saying he did not care "which way the war goes because I am going back to the States anyway.”
On December 31, 1945, he applied for registration as an American citizen, and in that connection he made an affidavit in which he stated that he had been "temporarily residing” in Japan since August 10, 1939; that he came to