33. One general provision containing flexible penalties for offenses against the naturalization or citizenship laws, applicable to both minor and major offenses (sec. 345 (d)).

34. Provision for punishment of witnesses subpenaed in naturalization cases who neglect or refuse to respond (sec. 345 (e)).

35. Making admissible in evidence under the penal or criminal provisions of the naturalization or citizenship laws statements voluntarily made to officers or employees of the United States in the performance of their official duties (sec. 345 (1)).

CHAPTER IV. LOSS OF NATIONALITY

Sec. 401. A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:

(a) Obtaining naturalization in a foreign state, either upon his own application or through the naturalization of a parent having legal custody of such person; or

Subsection (a) is a corollary of a principle for which the Government of the United States has stood for many years past; that is, the so-called right of expatriation, which was the subject of noted opinions by Attorneys General Cushing and Black, dated October 31, 1856 (8 Op. Atty. Gen. 139), and July 4, 1859 (9 Op. Atty. Gen. 356), respectively, and which was confirmed by the act of Congress of July 27, 1868 (15 Stat. 223), subsequently embodied in the Revised Statutes of the United States, as sections 1999-2001. These related primarily to cases of persons of foreign birth who had obtained, or should obtain, naturalization as citizens of the United States. The Government of the United States took the position that such naturalization should be regarded as having terminated their original nationality and allegiance. It necessarily followed that this Government was obligated to recognize the naturalization of citizens of the United States in foreign countries as having the effect of terminating their American nationality and allegiance. This principle in its full application has been confirmed in various treaties concluded by the United States with foreign states, beginning with the well-known Bancroft treaties with the German States in the year 1868. The last treaty on this subject concluded by the United States was the treaty with Czechoslovakia, signed July 16, 1928, and proclaimed in the United States November 14, 1929 (46 U. S. Stat., pt. 2, p. 2424). The text of these treaties, exclusive of the one last mentioned, may be found in Flournoy and Hudson, Collection of Nationality Laws, Part II.

Attention is also called to the first paragraph of section 2 of the Expatriation Act of March 2, 1907, which reads as follows:

"SEC. 2. That an American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state" (34 Stat. 1228; U. S. C., title 8, sec. 16).

In an opinion of June 16, 1932, concerning the citizenship of Ingrid Therese Tobiassen (36 Op. Atty. Gen. 535), Attorney General Mitchell expressed the view that the statutory provision just quoted was applicable not only to persons who had reached their majority and had obtained naturalization in their own right but also to their minor children naturalized through their naturalization, and this view was confirmed by a recent decision of the United States Circuit Court of Appeals for the Ninth Circuit in the case of a native American girl who had been naturalized in Canada during her minority through the naturalization of her father (United States v. Reid, 73 F. (2d) 153). The Government of the United States has always insisted that persons naturalized in this country during minority through the naturalization of their parents should be regarded as being on a par with their parents as to their citizenship. Thus subsection (a), including the words "through the naturalization of a parent having legal custody of such person," merely serves to state in clearer language the rule now contained in the first paragraph of section 2 of the act of March 2, 1907.

The reasonableness of the proposed provision, which is based upon the principle of singleness of allegiance, will hardly be questioned.' It might be desirable, however, to amend the Immigration Act of 1924 by adding a provision under which nonquota status would be given to persons of the class mentioned

1 As to the authority of a parent to control his child's nationality, see Inglis v. Trustees of Sailors Snug Harbor, 3 Pet. 99, 123, 124.

in case they should desire to return to the United States for permanent restdence and with a view to obtaining naturalization therein.

(b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state; or

It will be observed that this subsection is also merely a restatement of the rule now contained in the first paragraph of section 2 of the act of March 2, 1907, quoted above. As the governments of some states, notably Russia, do not recognize the "oath," which has a religious connotation, it seems desirable to expand the rule expressly to include "an affirmation or other express declaration of allegiance to a foreign state."

This provision is of considerable importance for the reason that the governments of foreign states frequently require that aliens entering their military or other service should take an oath or make a formal declaration of allegiance. Thus, before the United States entered the World War, large numbers of Americans lost their American nationality by taking foreign oaths of allegiance upon entering foreign armies.

(c) Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States; or

This provision is based upon the theory that an American national who, after reaching the age of majority (see proviso (2) to this section, infra) voluntarily enters, or continues to serve in, the army of a foreign state, thus offering his all in support of such state, should be deemed to have transferred his allegiance to it. The words "serving in" would apply to the case of one who had entered the army of a foreign state before attaining the age of majority but who, after reaching such age, had continued to serve in it.

The above rule would be applicable not only to a person having American nationality alone, but also to one having the nationality of the foreign state as well as that of the United States. The words "unless expressly authorized by the laws of the United States" would relate not only to statutes of the United States providing for the service of American nationals in foreign armies, but also to conventions such as those concluded during the World War between the United States on the one part and France, Great Britain, Canada, Greece, and Italy on the other, under which either party was allowed to draft, under certain conditions, persons having the nationality of the other (3 Malloy, Treaties, Conventions, etc., pp. 2592, 2650, 2654, 2663, 2708).

(d) Accepting, or performing the duties of, any office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible; or

The meaning and desirability of this provision seem to require little explanation. It will be observed that it applies solely to cases of Americans who obtain employment under foreign states "for which only nationals of such state are eligible." Thus, this provision would be applicable to persons who acquired at birth the nationality of the United States and that of a foreign state, and to naturalized citizens of the United States who came from states which do not recognize the right of expatriation or which have declined to enter into treaties of naturalization with the United States. It may also be applied to a citizen of the United States who has no foreign nationality but who holds himself out as a national of a foreign state in order to obtain employment by the government thereof.

With reference to subsections (c) and (d) attention is called to the following statement in an opinion of Attorney General Williams, dated August 20, 1873 (14 Op. Atty. Gen. 295, 297):

*

"My opinion * * is that, in addition to domicile and 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 military services, etc., may be treated by this Government as expatriation, without actual naturalization. Naturalization is without doubt the highest, but not the only evidence of expatriation."

(e) Voting in a political election in a foreign state, or participating in an election or plebiscite to determine the sovereignty over foreign territory; or The meaning of this subsection also seems clear. It is applicable to any case of an American who votes in a political election in a foreign state, whether or not

he is a national thereof. Taking an active part in the political affairs of a foreign state by voting in a political election therein is believed to involve a political attachment and practical allegiance thereto which is inconsistent with continued allegiance to the United States, whether or not the person in question has or acquires the nationality of the foreign state. In any event it is not believed that an American national should be permitted to participate in the political affairs of a foreign state and at the same time retain his American nationality. The two facts would seem to be inconsistent with each other.

The final clause in this subsection is applicable to the case of one participating in any election or plebiscite to determine the sovereignty over foreign territory, whether such plebiscite is held under the terms of a treaty between two or more states or an arbitral award. If this provision had been in effect when the Saar Plebiscite was held, Americans voting in it would have been expatriated.

(f) Using a passport of a foreign state as a national thereof; or

In general, the above remarks concerning subsection (d) are applicable also to this subsection.

This and the other subsections under section 401 ought to be considered in connection with the provisos thereto hereinafter quoted. As it no doubt frequently happens that minors who, having acquired at birth the nationality of a foreign state as well as that of the United States, maintain their residence in the foreign state of which they are nationals and use the passports of that state, it is particularly important to note with reference to this subsection the statement in proviso (2), "That no national under 18 years of age can expatriate himself under subsections (b) to (h), inclusive."

(g) Making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or

This provision is designed especially for the use of persons who shall have acquired at birth the nationality of a foreign state, as well as that of the United States, and who, upon reaching majority, elect the nationality of a foreign state. It is obvious that such persons cannot obtain naturalization in the foreign state, since they are nationals thereof, and it frequently happens that there are no provisions in the laws of the foreign state of which they are nationals under which they may take an oath or make a formal affirmation of allegiance thereto, and thus divest themselves of their American nationality under the provision of subsection (b), discussed above.

This provision may also be of use to American nationals who, upon marrying aliens, acquire the nationality of their alien husbands or wives and who may desire to have their American nationality terminated.

As this provision is intended for the benefit of persons who desire voluntarily to cast off their American allegiance, there is no apparent reason why rules for putting it into effect, with particular reference to the form of the renunciation, should not be made by the Secretary of State.

(h) Deserting the military or naval service of the United States in time of war, provided he is convicted thereof by a court martial:

The existing law penalizing desertion is found in section 1998 of the Revised Statutes of the United States, which was originally taken from an act of Congress of March 3, 1865 (13 Stat. 490), and, as amended by an act of August 22, 1912 (37 Stat., pt. 1, 356, R. S. 1998), reads as follows:

"SEC. 1998. That every person who hereafter deserts the military or naval service of the United States, or who, being duly enrolled, departs the jurisdiction of the district in which he is enrolled, or goes beyond the limits of the United States, with intent to avoid any draft into the military or naval service, lawfully ordered, shall be liable to all the penalties and forfeitures of section nineteen hundred and ninety-six of the Revised Statutes of the United States: Provided, That the provisions of this section and said section nineteen hundred and ninety-six shall not apply to any person hereafter deserting the military or naval service of the United States in time of peace: And provided further, That the loss of rights of citizenship heretofore imposed by law upon deserters from the military or naval service may be mitigated or remitted by the President where the offense was committed in time of peace and where the exercise of such clemency will not be prejudicial to the public interests: And provided further, That the provisions of section eleven hundred and eighteen of the Revised Statutes of the United States that no deserter from the military service of the United States shall be enlisted