No. 362.
Mr. Seward
to Mr. Foster.
Washington, August 13, 1879.
Sir: Your dispatch, No. 996, of the 18th ultimo presents an interesting question concerning the citizenship and rights of the minor children of the late James W. Smith, which had been submitted to you by the late consul-general.
It appears that, after lending important services to the republicans of Mexico during the French intervention, and the empire of Maximillian 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 [Page 825] 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 understanding 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.
I am, &c.,
Acting Secretary.