File No. 136/194

The Acting Secretary of State to the British Chargé ( Lindsay)

Sir: I have the honor to acknowledge your note of April 23, 1919, enclosing certain copies of communications addressed to His Excellency the Governor General of the Union of South Africa by the American Consul General at Cape Town, South Africa, relating to the recognition by this Government of the attempted expatriation by naturalization of certain citizens of this Government, Joel Cannon Bull and Robert James Mahaffery, in contravention of the last clause of section 2 of the act of March 2, 1907.

That clause explicitly forbids expatriation in time of war, and seems to have been enacted by Congress as declaratory of a generally accepted principle of public law of vital importance to this [Page 828] country in time of war. The Supreme Court of the United States very early enunciated this principle as follows: “The duty of a citizen when war breaks out, if it be a foreign war and he is abroad, is to return without delay.”

Halleck in his International Law confirms this as follows: “The right of voluntary expatriation exists only in time of peace and for lawful purposes.”

The Executive branch of this Government has said: “No subject of a belligerent can transfer his allegiance or acquire another citizenship, as the desertion of one’s country in time of war is an act of criminality.”

It would seem that at least one of the British Dominions has informally recognized the principle in question as it exists in the municipal law of this Government through a recent communication from the Under Secretary of State for Canada to the Consul General of the United States at Ottawa in the following language:

I have the honor to refer to correspondence with you which originated with your letter of the 22d of November, 1917, upon the subject of the naturalization of persons of United States citizenship, and to inform you that a very large number of applications of this class have been received by this Department, and that, in accordance with the intimation of the United States Government that the expatriation of the United States citizens during war time is illegal, certificates have not been granted to such applicants.

The principle involved herein is so fundamental and so well established that there is little room for the contention that it was rendered inoperative by the general language of article 1 of the naturalization convention of 1870. In view of the explicit holdings of the various branches of this Government, some of them antedating the convention, and some being contemporaneous, I am not prepared to concede that this principle of public law was thus inferentially abrogated. Had it been the intention of the contracting parties to produce so strange a result, that intention would be expressed explicitly and unequivocally in the language of the convention, and would scarcely be inferred from a general wording designed to meet a situation entirely distinct from that in question. I therefore feel constrained to adhere to the position set forth by the American Consul General at Cape Town in his communication of December 28, 1918, as consistent with the municipal law of this Government, article 1 of the naturalization convention of 1870, and generally accepted principle of international law.

Accept [etc.]

William Phillips