Loss of American Nationality: the Years of Confusion

• DOI: 10.1177/106591295100400205
• Date: 01 June 1951
• Author: John P. Roche
• Published date: 01 June 1951
• Subject Matter: Articles

LOSS OF AMERICAN NATIONALITY:
THE YEARS OF CONFUSION
JOHN P. ROCHE
Haverford College
HE
NATURE of United States citizenship was vague and undefined
in the early days of our history,’ but even less definitive was the
’*’
concept of loss of citizenship. The executive and judicial arms of
the government were left to fumble with the problem until finally, in
1907, Congress defined by statute the ways in which American citizenship
could be lost. Quantitatively speaking, the problem of loss of citizenship
was minute, for between 1790 and 1907 the ratio of immigrants to emi-
grants was literally a thousand to one. But, in the conduct of American
foreign relations, the existence or non-existence of the &dquo;right of expatria-
tion&dquo; created many thorny problems.
When the Congress passed, and President Washington approved, the
Naturalization Act of 1790, the United States adopted as public policy
one facet of the doctrine of expatriation. The naturalization statute
assumed that immigrants from foreign shores possessed the right to abjure
their previous allegiance and become citizens of the United States. With
regard to the other aspect, that a citizen of the United States could assume
foreign nationality at will, the Congress was silent. Political leaders were
split into two groups over the question. Jefferson and his followers held
expatriation to be a &dquo;natural and inherent right&dquo; of the individual.~
2
Hamilton and the Federalists opposed expatriation as contrary to the
common law and law of nations.3
3
The Hamiltonian attitude towards
expatriation was vigorously stated by the Connecticut Federalist Zephaniah
Swift:
Allegiance is a duty which mankind own and which they can never renounce and
disclaim without the consent and concurrence of the supreme power of the state....
It is therefore a settled doctrine that, let a man remove himself into whatever country
he pleases, he continues to owe allegiance to his native country, and is punishable for
high treason for joining its enemies and levying war upon it. This doctrine of the
common law has been adopted in all civilized nations, and no government has ever pre-
scribed ariy mode by which a subject can be discharged from this natural allegiance.’
1
See John P. Roche, Early Development of United States Citizenship (Ithaca: Cornell University Press,
1949) for a discussion of the reasons for this vagueness and lack of definition.
2
This "natural right" was derived from John Locke. See Of Civil Government (Everyman’s Ed.; New
York: E. P. Dutton, 1924), p. 152. However, those who used Locke to buttress the right of expatri-
ation apparently overlooked his statement that "he that has once, by actual agreement and any
express declaration, given his consent to be of any commonweal, is perpetually and indispensably
obliged to be, and remain unalterably, a subject to it... " Ibid. at p. 178. Locke considered
ownership of property in a society symbolic of this "actual agreement."
3
Rising L. Morrow, "Early American Attitudes towards the Doctrine of Expatriation," 26 American
Journal of International Law 552 (1932).
4 Zephaniah Swift, A System of the Laws of the State of Connecticut (1795-6), Vol. I, p. 164, cited in
Morrow, op. cit., p. 555.
268

---

269
Swift’s statement is not quite accurate, since the state of Virginia
had passed an expatriation law in 1779. The Virginia statute, reflecting the
liberalism of Jefferson, provided that whenever a citizen of that state made
an affidavit, or a verbal declaration before a court of record, of his
intention to relinquish Virginia citizenship and then departed from the
state, he should be considered &dquo;as having exercised his right of expatriation,
and shall thenceforth be deemed no citizen.&dquo; 5 The Jeffersonians claimed
credit not only for the legislative precedent on the subject, but also for
coining the term &dquo;expatriation.&dquo; s Although the Virginia statute was not
utilized by many citizens of that state,7 it served as a model for many
proposed national enactments.
The Federalist viewpoint prevailed in all three branches of the govern-
ment until the election of 1800. During this period expatriation was
discussed at some length in Congress. The first notable instance was the
debate on the Naturalization Act of 1790. Two southern congressmen,
White of Virginia and Page of North Carolina, suggested modes of ex,
patriation. White offered an amendment, &dquo;depriving persons of the privi-
lege of citizenship who left the country and staid abroad for a given length
of time.&dquo; 8 Page, angered by some New England slurs on the character
of post-Mayflower immigrants, advised that
If we make use of the Grand Jury ... [to recommend and pass upon the character of
prospective citizens] ... we must, to complete the plan, authorize the Grand Jury to
indict such emigrants [sic] as are unworthy to become citizens and expel them. We must
add an inquisition, and, as it will not be sufficient for our views of having immaculate
citizens, we should add censors and banish the immoral from amongst us.’
It is interesting that both suggestions envisaged denationalization by
the government as a penalty measure. This emphasis was to assume
growing significance as a result of the international situation. The forty
years following the adoption of the Constitution first saw Britain locked
in a death struggle with Napoleon, and then a series of revolutions in
Latin America. The situation was ideal for piratically inclined American
sea captains, who sailed the seas flying the French, British, or Buenos
Airean flag as the occasion warranted. These privateers, claiming natural-
ized citizenship in the country which had granted them letters of marque,
frequently came into American harbors to refit. When arrested for
violation of American neutrality laws, they denied United States juris-
diction on the ground that they had exercised their right of expatriation.
5
Hening’s Statutes 129 (1779). This law did not grant the right of expatriation; it merely established
procedures for the exercise of what was regarded as an inherent power.
6 George Hay, A Treatise on Expatriation (Washington: A. & G. Way, 1814), pp. 2-3.
7
Congressman Giles of Virginia stated in the debate on the bill to prevent United States citizens from
entering the service of a foreign power (June 21, 1797), that "only two citizens had taken advantage
of that right in the State of Virginia ... in twelve years." 5 Annals of Congress p. 355.
8
1
Annals
of Congress p. 1149.
9
Ibid., p. 1153.

---

270
Henfield’s Case’O put the problem squarely before the judiciary. Hen-
field, American born, had served on a French privateer raiding British
shipping. Arrested for violating American neutrality, he claimed French
citizenship and questioned the jurisdiction of the United States court.
Justice James Wilson, charging the jury, distinguished between emigration
and expatriation. Although he agreed that &dquo;emigration is undoubtably
one of the natural rights of man,&dquo; he added that emigrants still retain
allegiance to the country of their origin.ll Jefferson, then Secretary of
State, agreed that Henfield had committed a crime, but disagreed with
Wilson’s reasoning. In a note to Ambassador Morris in Paris, Jefferson,
commenting on Henfield’s Case, said,
citizens
...
can emigrate, but the laws do not admit that the commission of treason, for
example, dissolves the obligations of a person to his country and makes his act innocent.&dquo;
Expatriation, in the eyes of Jefferson, had to be undertaken in good faith
to be valid.
In the following year, 1794, a similar case arose in Charleston, South
Carolina. Talbot and Ballard, American-born captains of two French
privateers, were arrested for neutrality violations. Both claimed French
citizenship, but Judge Bee found them guilty. He stated:
I do not deny Talbot’s right to expatriate himself and become a citizen of another coun-
try. But I assert that he has no right in his new character to injure the country of his
first and native allegiance.... If he does this, he makes himself amenable to the justice
of that country.l3
A complicating factor in this case was that Ballard had complied in full
with the Virginia expatriation law. Thus the relationship between state
and national citizenship became involved in the situation. 14 When the
case was appealed to the Supreme Court, Ballard’s lawyer argued that
&dquo;not being a citizen of Virginia, he cannot be deemed a citizen of the
United States.&dquo; 15 The Court sustained Judge Bee’s decision, but avoided
any ruling on the validity of expatriation. Two of the Justices appealed
to Congress for guidance on the matter. In doing so, Justice Patterson
raised the following points:
If the Act of Virginia affects Ballard’s citizenship so far as respects that state, can it touch
his citizenship so far as it regards the United States? Allegiance to a particular state is
one thing; allegiance to the United States is another. Will it be said that the renuncia-
tion of allegiance to the former implies or draws after it a renunciation of allegiance to
the latter? The sovereignties are different; the right too may be different.... A statute
of the United States, relative to expatriation is much wanted.&dquo;
10
11 Federal Cases 1099 (1793).
11
Ibid
.,
p. 1120..
12
Ibid
.,
p. 1123.
13
Jansen v. Vrow Christina Magdalena, 13 Federal Cases 356, 360-361 (1794).
14
See John P. Roche, op. cit., passim.
15
Talbot v. Jansen, 3 Dallas 133, 145 (1795).
...