No. 502.
The Attorney-General to the President.
August 20, 1873.
Sir: I have the honor to acknowledge the receipt of your communication of the 6th instant, submitting for my official opinion certain questions hereinafter stated, to which I respectfully make answer as follows:
Question I. 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 U. S. Stat., p. 223,) should the Executive refuse to give effect to an act of expatriation of a citizen of the United States?
Answer. My opinion is that the affirmation by Congress that the right of expatriation is “a natural and inherent right of all people,” includes citizens of the United States as well as others, and the executive should give to it that comprehensive effect.
Question II. May a formal renunciation of United States citizenship, and a voluntary submission to the sovereignty of another power, be regarded otherwise than as an act of expatriation?
Answer. Congress has made no provision for the formal renunciation of citizenship by a citizen of the United States while he remains in this country; but if such citizen emigrates to a foreign country, and there, in the mode provided by its laws, or in any other solemn or public manner, renounces his United States citizenship, and makes a voluntary submission to its authorities with a bona fide intent of becoming a citizen [Page 1217] or subject there, I think that the Government of the United States should not regard this proceedure otherwise than as an act of expatriation.
Question III. Can an election of expatriation be shown or presumed by an acquisition of domicile in another country, with an avowed purpose not to return?
Answer. Residence in a foreign country and an intent not to return are essential elements of expatriation; but to show complete expatriation as the law now stands, it is necessary to show something more than these. Attorney-General Black says (IX Opinions, p. 359) that expatriation includes not only emigration out of one’s native country, but naturalization in the country adopted as a future residence. My opinion, however, is that, in addition to domicile and an intent to remain, such expressions or acts as amount to a renunciation of United States citizenship and a willingness to submit to or adopt the obligations of the country in which the person resides, such as accepting public employment, engaging in a military service, &c., may be treated by this Government as expatriation, without actual naturalization. Naturalization is, without doubt, the highest but not the only evidence of expatriation.
Question IV. Ought the Government to hold itself bound to extend its protection, and exert its military and naval power for such protection, in favor of persons who have left its territories, and who reside abroad, without an apparent intent to return to them, and who do not contribute to its support?
Answer. Persons born in the United States, who, having left them, reside abroad with no apparent intention of returning, and who do not contribute to their support, do not necessarily discharge the United States Government from its obligation to interpose for their protection in proper cases. Foreign domicile, which is substantially described in this inquiry, is not the equivalent of expatriation. When a citizen of the United States becomes domiciled in a foreign country he becomes, as a general rule, subject to its laws and its authorities like one of its citizens; but if, by his acts or declarations, he continues to assert his United States citizenship, and takes no oaths, or public or official obligations inconsistent therewith, it is the duty of the Government of the United States, though he may have at the time no real or apparent intent to return to them, to protect him against special acts of wrong or injustice by the Government of the country in which he resides, and from the imposition upon him by that government of duties which are exclusively due from its own citizens or subjects, or which may be inconsistent with his allegiance to the United States.
Question V. What should constitute evidence of the absence of an intent to return in such cases?
Answer. When a citizen of the United States goes abroad without intending to return, he takes one indispensable step toward expatriation; but to effect a complete annihilation of all duties and obligations between the government of his native country and himself, which extradition implies, it is necessary that he should become a resident in some foreign country with an intent to remain there, superadded to which there must be acts in the direction of becoming a citizen or subject of such foreign country, amounting at least to a renunciation of United States citizenship. Absence of an intent to return to one’s native country, or to speak, perhaps, with more accuracy in considering a question of expatriation, an intent to remain in a foreign country, may be evidenced in various ways and by a great variety of circumstances, and though it might not be difficult to determine from the facts in a specific case as to the intent of a party changing his domicile, it is impossible to lay down any general rule upon the subject by which all cases can be decided. Intent is the great criterion by which the character [Page 1218] of domicile is determined. When a person avows his purpose to change his residence and acts accordingly, his declarations upon the subject are generally received as a satisfactory evidence of his intent; but in the absence of such evidence the sale of his property and the settling up of his business before emigration, the removal of his family, if he has one, arrangements for a continuing place of abode, the acquisition of property after removal, the formation of durable business relations, and the lapse of a long period under such circumstances are among the leading considerations from which the intent to make a permanent change of domicile is inferred.
Question VI. When a naturalized citizen of the United States returns to his native country, and resides there for a series of years with no apparent purpose of returning, shall he be deemed to have expatriated himself where the case is not regulated by treaty?
Answer. Conflicting views have been advanced upon this question by distinguished lawyers and statesmen of this country; but I know of no principle upon which it can be held that, with respect to protection in foreign countries, the rights of a naturalized are different from those of a native-born citizen. Domicile in his native country without an intent to return to the United States, by a naturalized citizen, would not of themselves, so long as he maintains his claim and distinctiveness as such naturalized citizen, deprive him of his right of protection in proper cases by the Government of the United States. But less evidence would perhaps be requisite to show that a person residing in his native country had thrown off a foreign citizenship acquired by naturalization, or, in other words, had expatriated himself from his adopted country, than to show that a person born in the United States, but residing elsewhere, had expatriated himself from his native country. Naturalization effected in the United States without an intent to reside permanently therein, but with a view of residing in another country, and using such naturalization to evade duties and responsibilities that would otherwise attach to the naturalized person, ought to be treated by the Government of the United States as fraudulent, and as imposing upon it no obligation to protect such person; and as to this the Executive must judge from all the circumstances of the case. Section 2 of the act of July 27, 1867, (supra,) as to protection in foreign countries, puts naturalized and native-born citizens upon the same ground.
Question VII. Are the children born abroad of a person who has been a citizen of the United States, but who has become a subject or citizen of another power, or who has expatriated himself, citizens of the United States, and entitled to its protection?
Answer. Section 1 of the act of February 10, 1855, (10 U. S. Stat., p. 604,) provides that “persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were, or shall be at the time of their birth, citizens of the United States, shall be deemed and considered, and are hereby declared to be, citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States;” from which, as well as from other considerations, it is evident that children born abroad of persons once citizens of the United States, but who have become citizens or subjects of a foreign power, are not citizens of the United States, or, as such, entitled to their protection.
Question VIII. Can a person who has formally renounced his allegiance to the United States, and assumed the obligations of a citizen or subject of another power, become again a citizon of the United States in any other way than in the manner provided by general laws?
Answer. Persons born in the United States who have, according to the laws of a foreign country, become subjects or citizens thereof, must [Page 1219] be regarded as aliens; and section 1 of the act of April 14, 1802, (2 U. S. Stat., p. 153,) declares that an alien maybe admitted to become a citizen of the United States as provided in said act, and not otherwise. Actual naturalization abroad would seem to be necessary to make a person born in the United States an alien.
Section 1 of the fourteenth amendment to the Constitution declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” But the word “jurisdiction” must be understood to mean absolute or complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.
I have made the foregoing answers as specific as I can to what are abstract propositions; but beg to add, generally, that, in the absence of treaties and legislation by Congress touching the subjects involved in said questions, the rules of law relating thereto are to be drawn from writers upon international and public law, who do not always agree, and therefore it will be difficult for the Government to act upon any such rules without a chance of controversy.
Legislation is needed to declare by what acts United States citizenship is lost. According to the French code, not only naturalization in a foreign country, but a fixed residence there without the intention of returning, destroys the quality of a Frenchman; and regulations to the effect that a subject by acts other than naturalization in a foreign country may expatriate himself have been adopted by Russia, Austria, Italy, and other countries of Europe. I can see no good reason why Congress may not put an end to controversy upon the subject by declaring that a citizen of the United States who emigrates to a foreign country with the avowed purpose of remaining there, or who resides abroad for a definite period without an avowed purpose of returning to the United States, shall be considered as thereby expatriating himself or losing the right to call upon the Government of the United States for protection during such foreign residence. Several treaties have been made with European powers to the effect that when a naturalized citizen renews his residence in his native country with intent to remain, he shall be held to have renounced his naturalization; and something like this, it seems to me, might with great propriety be incorporated into the laws of this country, to be applied as well to our citizens who, having been naturalized abroad, return to reside in the United States, as to those who, naturalized here, return to reside in their native country.
Very respectfully,
Attorney-General.
The President.