No. 143.
Mr. Frelinghuysen to Mr. Lowell.

No. 784.]

Sir: Referring to your dispatch No. 350, of the 4th of May, 1882, in relation to the case of John E. McCormack, who was at that time a prisoner in the jail of Clonmel, county Tipperary, Ireland, I now transmit [Page 217] to you a copy of a letter of 28th of November last, addressed by Mr. McCormack to the President, in which he invokes the action of this Government to secure for him from that of Great Britain $50,000, as indemnity for five months’ imprisonment in the jails of Clonmel and Naas. You have in the records of your legation a certificate of the naturalization of John McCormack in the justices’ court of Troy, Rensselaer County, New York, on the 25th of October, 1867. His explanation of the apparent discrepancy in the name under which he goes and under which he was arrested, namely, that he adopted the middle initial R, as representing the name of his mother, whose maiden name was Ryan, in order to distinguish himself from several other John McCormack’s residing in the county Tipperary, three of whom were first cousins of his own, appears to be reasonable, and, assuming that it was at the time satisfactory to you, I proceed upon the hypothesis that the John McCormack naturalized in Troy in 1867 and the present claimant are identical.

From the statements made to you by Mrs. McCormack, the wife of the claimant, it appears that her husband returned to Ireland in 1869, and that, with the exception of a brief visit to the United States in 1873, he had resided there from that time (1869) up to the time of his arrest, in the latter part of 1881 or the beginning of 1882. He still resides there, as his letter to the President is dated from the “People Office,” a local newspaper in Tipperary of which he is and for many years has been the publisher and proprietor and presumably the editor, although that fact is not stated. He has thus been for a period of over fourteen years absent from his adopted country, and, moreover, a voluntary resident of the country of his birth, and within the jurisdiction, territorial, political, and judicial, of the Government of his original allegiance, under whose flag he was born and grew to manhood. He has during all this period been relieved from his proper share of the duties and obligations that attach to and may be imposed on a citizen of the United States. He pays no taxes, either State or Federal, in this country, and does not allege that he has one dollar’s worth of property, real or personal, within the territorial jurisdiction of the United States; he is not within the call or control of this Government if he were needed for its defense, still further, he has not only failed during all these years to express any intention of ever returning to the United States, but he has also failed, in his acts, his general conduct, and his pursuits, to give any sign or manifestation of such intention to return to the country which he claims as that of his adoption. He writes and talks as a man who considers himself domiciled for life in the country of his birth and original allegiance. These facts form very strong evidence of voluntary expatriation.

The Congress of the United States has clearly recognized, in its declaratory act of the 27th of July, 1868 (Revised Statutes, section 1999), the right of voluntary expatriation as an inherent right of every American citizen. He may denationalize himself at any time he sees fit, and the same law expressly forbids any executive or ministerial officer of this Government from questioning the right.

It is true, as you state in your No. 350, of the 4th of May, 1882, that with some continental powers the United States have concluded conventions on the subject of citizenship and naturalization by the terms of which two years’ voluntary residence of a naturalized citizen of the United States in the country of his origin is to be taken as presumptive evidence of his renunciation of United States allegiance and citizenship. We have, however, no treaty on the subject with Great Britain. The supplemental convention of February, 1871, which provided a [Page 218] mode and farm for renunciation of citizenship for the citizens and subjects of either country naturalized in the other, expired by limitation in August, 1872. Therefore, the case of British subjects naturalized in the United States, who return to and voluntarily resume a permanent residence within the territorial jurisdiction and dominions of Her Britannic Majesty, must rest for settlement and determination upon the facts and upon general but well understood and settled principles. Thus, an American citizen may travel or reside in a foreign country indefinitely for the purposes of education, health, business, or of pleasure, and continued absence from the United States, not accompanied by any act inconsistent with his allegiance to his country, will not cause a forfeiture of citizenship; If, however, such citizen removes his family and property from the United States, enters into business and settles permanently in a foreign country, neither expressing nor manifesting by his acts any intention of returning permanently to the United States, and if under the latter circumstances he wishes the protection of this Government against the Government or laws of the Country in which he has residence, it becomes a proper subject of inquiry whether he has not voluntarily abandoned his right to such protection. The active exertion of the Government in the protection of a citizen may also be influenced by the acts of the individual; even if he has not technically forfeited his citizenship.

This Government recognizes neither by its laws nor its practice any distinction between a native and a naturalized citizen. Both are alike entitled to the protection of the Government, abroad as well as at home, and each has such protection extended to him in the Same measure under proper conditions. Each ease must of course rest on its own facts and circumstances, but we are not without at least analogous executive precedents bearing with more or less pertinency upon the case of Mr. McCormack.

In 1866 Mr. Seward, then Secretary of State, received an application for passports from five brothers residing in Curçao, who were born in that island; of parents citizens of the United States. The young men had always resided in Curaçao, had all their property there, and had never been in the United States. The passports were refused, on the ground that they were not entitled to the protection of this Government.

In 1873 the son of John Peppin, a Frenchman by birth, invoked the protection of this Government against the operation of French military law. The circumstances of his case were these: Peppin when a young man emigrated to the United States, was educated in Kentucky, became a citizen of the United States, resided in Kew Orleans several years, returned to France, married a French woman, and remained in France until his death. Some eight years after his return to France two children were born to him, one of them the son in question, who at the time of his application was eighteen years old. Protection in this ease was refused by my predecessor, Mr. Fish.

In 1856 Mr. Gushing, then Attorney-General of the United States, in a learned opinion, maintains the right Of expatriation, and places the evidence in support thereof on a hypothetical basis, and in all respects similar to the facts in Mr. McCormack’s case; that is, that when the individual removed himself, his family, and his property from the country, and takes up his residence in a foreign country, manifesting no intention to return to the United Stated, he is to be considered as having renounced his allegiance to this Government (8 Opinions, page 130). And Mr. Black, the successor of Mr. Gushing, in 1857, holds the same doctrine (9 Opinions, page 63).

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It would be superfluous to multiply these precedents. The action of the executive branch of the Government has been uniform on the subject. When a citizen of the United States voluntarily places himself within the jurisdiction of a foreign Government, and subjects himself and his property to its laws, and when such citizen afterwards seeks the interference of the United States to redress some wrong which he may have suffered at the hands of such foreign Government, this Government reserves, to itself the right of determining not only on the merits of the particular claim, but also on the claimant’s right to its protection. It is for this Government to say whether the claim shall be presented or not to the foreign Government.

In the case of Mr. McCormack, however, it is not necessary to decide whether he has technically lost his adopted citizenship. He is at liberty, and peacefully following his occupation in the country of which he complains, and to which he returned two years after his naturalization in the United States. He asks a money indemnity for imprisonment suffered under the laws of the country where he lives, and asks the United States to procure it for him. To the United States, for over fourteen years, he has rendered no service, he has paid no taxes, has not been available for the defense of his adopted country in case of possible war; neither has he been accessible for jury duty, and he has no personal or material interests here.

After a careful consideration of the facts and, circumstances of the case, it is not conceived that the claim is one which can with propriety be presented by this Government to that of Great Britain. No suggestion of this instruction, however, is to be taken as expressing an opinion as to what Mr. McCormack’s political status would be should he return permanently to the United States, nor as to the action of this Government were he suffering present unjust personal treatment.

I am, &c.,

[Inclosure in No. 784.]

Mr. McCormack to the President.

Sir: I beg to inform you that I am a citizen of the United States; I have been incarcerated in a British bastile for nearly five months by the British Government, without knowing for what. My case I shall prove in due course, but in the interval I shall ask you to take the same care of me as has the British Government in the case of the Rev. Mr. Shaw.

In my case you will be good enough to ask of the British Government £10,000, and shall it not be forthcoming in due course, I will have to appeal to my fellow citizens of the United States.

I send a copy of this to Mr. Lowell, and to many of my fellow-citizens at your side of the Atlantic.

I am, &c.,