Mr. HENRY F. BUTLER. Which should be amended to read thatno national under 21 years of age can expatriate himself under subsections (b) to (g).

My own opinion on that is that no national can expatriate himself during minority under the Constitution. I do not believe he has the power.

Mr. FLOURNOY. In many cases, Mr. Chairman, it rose under the existing law when the child took the oath of allegiance to a foreign country and was under 21. It was held in those cases it is citizenship. If we put this 21 in, it again nullifies pretty much or to a very great extent the whole provision, because in so many cases where they enter foreign armies they enter between 18 and 20.

Mr. REES. Yes.

Mr. FLOURNOY. So it will practically nullify the thing, and also nullify (b).

Mr. REES. Your contention is he cannot expatriate himself because he is underage?

Mr. HENRY F. BUTLER. He is legally underage. And down to the present time, as I understand it-am I correct, Mr. Flournoy?-the Departments have held that taking an oath of allegiance to a foreign country does not constitute an act of expatriation.

Mr. FLOURNOY. I would have to check up on that.

Mr. HENRY F. BUTLER. I know there are decided cases to that effect. Mr. FLOURNOY. I know it has been so held where it is under duress, but as to the other I do not recall.

Mr. SHOEMAKER. That is our conclusion.

Mr. HENRY F. BUTLER. Is not that your contention? I think there are cases to that effect. I do not think it is merely departmental interpretation, but I think it is a judicial interpretation.

If the child can expatriate himself during minority, certainly he can do nearly anything else during minority.

Mr. FLOURNOY. I am inclined to think there may be one or two cases. Mr. SHAUGHNESSY. They are conversely stated, though.

We permit an alien child at the age of 18 to declare his intention of becoming a citizen.

Mr. FLOURNOY. I should think a young man, after he has reached the age of 18 ought to know what he is doing when he enters an army.

Mr. SHOEMAKER. We permitted them to come in our Army during the World War and serve in the Army.

Mr. HENRY F. BUTLER. That did not divest them of their citizenship, though.

Mr. SHOEMAKER. And we made some of them citizens.

Mr. HENRY F. BUTLER. I would thoroughly oppose any provision for a minor child being able to expatriate himself during his minority. Mr. REES. It may be well to find out about this matter further. Do you understand the courts have held as you suggest?

Mr. HENRY F. BUTLER. That is my recollection, Mr. Chairman. Mr. FLOURNOY. But the existing law does not state any age. I am inclined to think there have been one or two decisions, but it was not upon any constitutional grounds. It was simply as long as the law did not specify any age to follow the common law rule and say the acts of a minor would not be based on that.

Mr. SHAUGHNESSY. Mr. Chairman, to save time, we would not oppose it, but we would not hold out for it to further obstruct the issue. In other words, we would accept it as it is.

Mr. FLOURNOY. I think one Department would oppose any change in it.

Mr. REES. Your Department opposes any change in it?

Mr. SHAUGHNESSY. They suggested 17, but they said in the War Department they would not hold out for 17.

Mr. REES. Are there any other questions now? Mr. Butler, do you have any further questions to raise? Has the State Department any other suggestions?

Mr. FLOURNOY. No, sir.

Mr. REES. Or Labor?

Mr. SHAUGHNESSY. No, sir.

Mr. REES. Or Justice? Do you have, Mr. Butler?

Mr. BUTLER. None.

Mr. HENRY F. BUTLER. Mr. Chairman, if section 401 (a) is amended so that a minor child cannot be expatriated during its minority, it seems proper also to eliminate section 405, which, as introduced, provides a person having American nationality, who is a minor, and who is residing in a foreign country with or under the legal custody of a parent who loses American nationality, and under section 402 of this chapter loses his nationality as such minor, he has or acquires the nationality of a foreign state. That is another section providing for expatriation of minor children.

Mr. FLOURNOY. Mr. Chairman, if that other proposal is agreed to, that is the requirement that the child must come here before reaching the age of 23, I think it would be consistent to put a similar proviso on this, provided such minor fails to take up a permanent residence in the United States before reaching the age of 23 years.

Mr. REES. You would leave section 405 in and add that proviso?
Mr. FLOURNOY. Oh, yes.

Mr. HENRY F. BUTLER. If it is clear that the child is not prejudiced during minority, that seems reasonable.

Mr. REES. All right.

Mr. HENRY F. BUTLER. Then, as to section 406, which provides— the loss of nationality under this chapter shall result solely from the performance by a national of the acts or conditions specified in this chapter

in my opinion it should be stricken out and provision made for a judicial determination of citizenship.

As I interpret section 406 it simply makes it definite that the loss of nationality shall result solely from the performance of an act which will be founded on facts by

Mr. REES (interposing). Some tribunal?

Mr. HENRY F. BUTLER. No; not some tribunal, because the tribunal would have to be determined, but facts found by an employee of one of the Departments.

Mr. FLOURNOY. Mr. Chairman, that is not exactly the case. The law is supposed to be that loss of citizenship is automatic. If a person takes an oath of allegiance to a foreign government it is his act, and it is not a clerk in the department or any consul or anybody else. It is the individual's act. That is the whole principle underlying all of this.

The consul, if he is confronted with a case like this as to a passport application, has to find the facts, and you will find that all through the immigration law, the immigration officials have to find the facts, and then fit the law to the facts, but it is not the finding of fact by somebody in a department or by a consul that terminates the man's citizenship. It is his act, and the individual consul or clerk is merely applying the law to the facts which he finds.

Mr. HENRY F. BUTLER. Mr. Chairman, when one steals he is committing the act which, if he is found guilty of it, may result in his incarceration, but he is not guilty until he is found guilty by a tribunal of competent jurisdiction.

I think the provisions of 406 would be unconstitutional in depriving a person of property without due process of law.

Citizenship has been held to be a thing of great value. It has been treated as a property right. It is perhaps something which has a status of greatest value to any of us, and to suddenly find that we are being deprived of every benefit of it as the result of an ex parte finding that we have committed some act of expatriation with no notice to us in advance, no opportunity to be heard, no right of appeal, I think would be unconstitutional, and I feel it would be absolutely improper.

Mr. FLOURNOY. Mr. Chairman, the Supreme Court went into this whole subject of automatic loss of citizenship in presuming what the law is in McKenzie v. Hare. Mr. Butler will confirm that you will find in that, that is a very definite case on that subject.

Mr. BUTLER. In that case the court said the woman was put on notice by her act, and by marrying the foreigner she knew she would lose her citizenship.

Mr. FLOURNOY. And also in those cases the court considered persons taking an oath of foreign allegiance.

Mr. BUTLER. She had her day in court when the voting officials refused to allow her to vote because she had lost her citizenship. She tested the act that way. She did not need any special legislation.

Mr. HENRY F. BUTLER. The difficulty as I see, in section 406, as to the loss of citizenship, except in very few cases, is to result only when the citizen is abroad. The result here would be an American citizen can go abroad and either justifiably or for an excusable reason commit one of these acts of expatriation under duress or for some other reason, which should not make it an act of expatriation, or a consular officer can mistakenly believe he committed one of these acts and send the report in. In any event, the action is then taken on the report of the consular officer which is sent back across the seas by the State Department and certified back to that consular officer. He thereupon notifies the citizen he has committed an act of expatriation and he is no longer a citizen. If section 401 is enacted it will greatly increase the risk of loss of citizenship. I do not think it ought to be on an ex parte proceeding with no opportunity for the citizen to be heard. As a practical matter, whatever right the citizen might have to sue out a writ of habeas corpus if placed under arrest is gone because he is not here, and he has no possible means for taking any steps while abroad.

Mr. REES. What about the present law?

Mr. SHOEMAKER. That has been the situation since 1907.

Mr. HENRY F. BUTLER. Under the present law numerous acts which we think are inconsistent with maintaining citizenship are declared to raise the presumption of expatriation, and some of them mean that the department will not give the citizen a passport to travel abroad, but will give him a passport to return.

Mr. FLOURNOY. Mr. Chairman, that most unsatisfactory law was the principal cause of this whole movement to revise the nationality laws. The courts held the presumption under section 2 was merely a presumption that the person had lost the right of protection of this Government, and he could stay 20 years in the foreign country and still be a citizen, avoid his duties in time of war, and come back here as a good citizen. That very statute gave rise to so much abuse that the movement to revise the laws related very largely to that.

We feel there is a need of a good definite provision for the determination of citizenship in some of these cases.

One other point is that these provisions are not penal. There is no crime to a man living in his native land. But there should be a result of that. He should not retain his American citizenship. So much of this discussion seems to assume these are penal provisions. They are not penal provisions at all.

Mr. REES. All right. Is there any further discussion on that point? Mr. SHAUGHNESSY. The three Departments, Mr. Chairman, are for retaining 406.

Mr. REES. All right. Is there anything further, now? Mr. Butler, do you have anything further?

Do you have anything at all, Mr. Noel?

Mr. NOEL. No; I have a memorandum here, since I was up here to testify.

Mr. REES. Yes, we have that.

Mr. NOEL. That was the result of work done before I testified. As I told you at that time, my main point was to bring up this discussion. That is what you wanted generally, and I think you have had it. Mr. REES. Yes, that is right.

Mr. HENRY F. BUTLER. Mr. Chairman, were any suggestions made as to 201 (g)?

Mr. HAZARD. That has not been brought up this morning.

Mr. HENRY F. BUTLER. It has not?

Mr. HAZARD. No.

Mr. HENRY F. BUTLER. Mr. Chairman, I would simply say with reference to 201 (g) I still adhere to my contention some provision ought to be made so that a child who acquires citizenship at birth abroad should not lose it during his minority.

Mr. REES. That is your main point, is it not?

Mr. HENRY F. BUTLER. That is my main point, and if such a provision is made so that the child may either retain it by taking some steps after majority or at least not lose it during minority, then it seems to me a matter of policy as to which I have nothing more to say.

The other day we were discussing this one possible suggestion, which was, if a child had not lived here during 5 years of his minority in order to retain his citizenship he must come here within 1 year or within 2 years and thereafter remain 5 years, or say 5 of the following 6 years there was some leeway-and departure would constitute

his election to relinquish his citizenship. I think that is proper. But, I think still he should be protected during his minority.

Mr. REES. Is there any further comment on that?

Mr. FLOURNOY. I think the three Departments are agreed on what we have here.

Mr. REES. All right. Is there anything further?

Mr. NOEL. Mr. Chairman, may I make one suggestion? I have been looking through this testimony. I find there happens to be two Mr. Butlers, and the testimony here appears af is it were from one Mr. Butler all of the time.

Mr. REES. We are glad to have you call that to our attention.

Mr. NOEL. And that will be confusing to members of Congress who read the testimony of Mr. Henry F. Butler as well as the testimony of Mr. Butler, of the Department of Justice.

Mr. REES. Is there any other suggestion? Who is responsible for getting up the amendment in line with the War Department's requirements?

Mr. FLOURNOY. They are getting it up, and I think the three Departments want to look at it.

Mr. SHAUGHNESSY. Could I suggest this, Mr. Chairman, if I may? They will furnish us, as they have said, with a copy of their draft, and then the three, or, possibly four, Departments will get together on that one remaining point that there seems to be disagreement about, and we will try to bring the amendment in by our next meeting, which I hope will be soon, Mr. Chairman. And if we do not agree, if I were chairman of this committee, I would just use the bare fist on us. Mr. REES. That suggestion is a good one, and I think we will follow it.

Mr. SHAUGHNESSY. When will be the next meeting?

Mr. REES. I think perhaps next Tuesday at 10 o'clock.

Mr. SHAUGNESSY. Again, the Departments wish to thank you and Mr. Rockefeller for your extreme patience.

Mr. REES. And we thank you.

(Whereupon, at 12: 25 p. m., a recess was taken until Tuesday, April 16, 1940, at 10 a. m.)