1. Under the Expatriation Act of 1907, a United States citizen
by birth who by foreign law derives from his parents citizenship of
a foreign nation held
not to have lost his United States
citizenship by foreign residence long continued after attaining his
majority. Pp. 344 U. S.
(a) In such case, the native-born citizen, by continuing to
reside in the foreign country after attaining his majority, cannot
be deemed to have elected between his dual citizenships in favor of
that of the foreign country; and, when he attained his majority, he
was under no statutory duty to make an election and to return to
this country for permanent residence if he elected United States
citizenship. Pp. 344 U. S.
(b) Perkins v. Elg, 307 U. S. 325
not to the contrary. Pp. 344 U. S.
(c) The dignity of citizenship which the United States
Constitution confers as a birthright upon every person born within
its protection is not to be withdrawn or extinguished by the courts
except pursuant to a clear statutory mandate. P. 344 U. S.
2. One of the grounds of decision relied on by the District
Court, based on the citizen's having served in the army of the
foreign country and taken an oath of allegiance to that country,
was abandoned by the Government, the Attorney General having ruled
that such service and oath had been taken under legal compulsion
amounting to duress. P. 344 U. S.
90 U.S.App.D.C. 1121, 193 F.2d 920, reversed.
In an action brought by petitioner to establish his citizenship,
the District Court gave judgment against him. The Court of Appeals
affirmed. 90 U.S.App.D.C. 1121, 193 F.2d 920. This Court granted
certiorari. 343 U.S. 976. Reversed,
p. 344 U. S.
Page 344 U. S. 134
MR. JUSTICE JACKSON delivered the opinion of the Court.
This case presents but a single question, upon which petitioner
and the Government are substantially agreed that the judgment of
the Court of Appeals should be reversed. [Footnote 1
] Does a United States citizen by birth who
by foreign law derives from his parents citizenship of a foreign
nation lose his United States citizenship by foreign residence long
continued after attaining his majority?
Petitioner Mandoli was born in this country, of unnaturalized
Italian parents. These circumstances made him a citizen of the
United States by virtue of our Constitution, and a national of
Italy by virtue of Italian law. While he was a suckling, his
parents returned to Italy, taking him with them. At about the age
of fifteen, he sought to come to the United States, but permission
was refused by the American Consul at Palermo upon the ground that
he was too young to take the journey unaccompanied.
In 1931, Mandoli saw brief service in the Italian army. In 1937,
being 29 or 30 years of age, he attempted to come to the United
States, but was rejected because of such army service. He renewed
the effort in 1944, with the same result. In 1948, he was granted a
certificate of identity which permitted him to enter the United
Page 344 U. S. 135
States for prosecution of an action to establish his
Judgment in the District Court went against him on the ground
that expatriation had resulted from two causes: first, contrary to
his contentions, it found that his service in the Italian army was
voluntary, and that he then took an oath of allegiance to the King
of Italy; second, that he continued to reside in Italy after
attaining his majority, thereby electing between his dual
citizenships in favor of that of Italy. [Footnote 2
The Government abandoned the first ground because the Attorney
General ruled that such service in the Italian army by one
similarly situated could "only be regarded as having been taken
under legal compulsion amounting to duress." He said, "The choice
of taking the oath or violating the law was, for a soldier in the
army of Fascist Italy, no choice at all." [Footnote 3
] The Court of Appeals, however, relying
largely on Perkins v. Elg, 307 U.
, affirmed upon the ground that failure to return
to the United States upon the attainment of his majority operated
to extinguish petitioner's American citizenship. [Footnote 4
] We conclude that Mandoli has not
lost his citizenship.
It would be as easy as it would be unrewarding to point out
conflict in precept and confusion in practice on this side of the
Atlantic, where ideas of nationality and expatriation were in
ferment during the whole Nineteenth Century. Reception of the
common law confronted American courts with a doctrine that a
national allegiance into which one was born could be renounced only
with consent of his sovereign. European rulers, losing subjects
(particularly seamen) to the New World, adhered fiercely to the old
doctrine. On the other hand, the
Page 344 U. S. 136
United States, prospering from the migrant's freedom of choice,
became champion of the individual's right to expatriate himself,
for which it contended in diplomacy and fought by land and by sea.
However, this personal freedom of expatriation was not always
recognized by our own courts, because of their deference to common
law precedent. Finally, Congress, by the Act of July 27, 1868,
"the right of expatriation is a natural and inherent right of
all people, indispensable to the enjoyment of the rights of life,
liberty, and the pursuit of happiness,"
"any declaration, instruction, opinion, order, or decision of
any officers of this government which denies, restricts, impairs,
or questions the right of expatriation is hereby declared
inconsistent with the fundamental principles of this government.
But this statute left unanswered many questions as to the overt
acts that would effect a voluntary expatriation by our own citizens
or would cause an involuntary forfeiture of citizenship. Prior to
1907, courts and administrators were left to devise their own
Preparatory to legislative action on the subject, Congress
sought and received a report of a special citizenship board.
Reviewing judicial decisions, this report concluded that the courts
recognized well established doctrines of election in cases dealing
with rights of person with dual citizenship. This board recommended
that Congress follow what it assumed to be established decisional
law and enact, among other things, that expatriation be assumed as
to any citizen who became domiciled in a foreign state, with a
rebuttable presumption of foreign domicile from five years of
residence in a foreign state. [Footnote 6
] This was proposed as to all citizens and
Page 344 U. S. 137
merely those possessing dual citizenship. Congress, however,
instead of accepting this broad doctrine of expatriation, by the
Expatriation Act of 1907 limited the presumption of expatriation
from foreign residence to the case of naturalized but not of
native-born citizens. [Footnote
If petitioner, when he became of full age in 1928, were under a
statutory duty to make an election and to return to this country
for permanent residence if he elected United States citizenship,
that duty must result from the 1907 Act then applicable. In the
light of the foregoing history, we can find no such obligation
imposed by that Act; indeed, it would appear that the proposal to
impose that duty was deliberately rejected. [Footnote 8
The Nationality Act of 1940, [Footnote 9
] though not controlling here, shows the
consistency of congressional policy not to subject a citizen by
birth to the burden and hazard of election at majority. This
comprehensive revision and codification of the laws relating to
citizenship and nationality was prepared at the request of Congress
by the Departments of State, Justice, and Labor. The State
Department proposed a new provision requiring an American-born
national taken during minority to the country of his other
nationality to make an election and to return to the United States,
if he elected American nationality, on reaching majority. The
Departments of Justice and Labor were opposed and, as a
consequence, it was omitted from the proposed bill. This
disagreement between the Departments was called to the attention of
the Congress. [Footnote
Page 344 U. S. 138
While in some other respects Congress enlarged the grounds for
loss of nationality, it refused to require a citizen by inactivity
to elect between dual citizenships upon reaching a majority.
The Court of Appeals, however, applied such a rule because it
understood that this Court, in Perkins v. Elg, supra,
declared it to be the law. Miss Elg was American-born, of
naturalized parents Swedish in origin. They took her to Sweden when
she was but four years old, where she remained during her nonage.
By virtue of a Swedish-American Treaty of 1869, this resumption of
residence in Sweden repatriated the parents, which carried with it
Swedish citizenship for their minor child. Under the Act of 1907,
any American citizen is deemed expatriated if naturalized in a
foreign state in conformity with its laws. Undoubtedly, Miss Elg
had become naturalized under the laws of Sweden. But it was not by
any act of her own or within her control, and, about eight months
after she became twenty-one, she sought and obtained an American
passport and returned to this country, where she resided for
something over five years. American immigration officials then
decided that her derivative naturalization had deprived her of
American citizenship and put their harsh and technical doctrine to
test by instituting proceedings to deport her. That case did not
present, and the Court could not properly have decided, any
question as to consequences of a failure to elect American
citizenship, for Miss Elg promptly did so elect and decisively
evidenced it by resuming residence here. What it held was that
citizenship conferred by our Constitution upon a child born under
its protection cannot be forfeited because
Page 344 U. S. 139
the citizen during nonage is a passive beneficiary of foreign
naturalization proceedings. It held that Miss Elg had acquired a
derivative dual citizenship, but had not suffered a derivative
expatriation. In affirming her right to return to and remain in
this country, it did not hold that it was mandatory for her to do
We find no warrant in the statutes for concluding that
petitioner has suffered expatriation. And, since Congress has
prescribed a law for this situation, we think the dignity of
citizenship which the Constitution confers as a birthright upon
every person born within its protection is not to be withdrawn or
extinguished by the courts except pursuant to a clear statutory
mandate. [Footnote 12
judgment of the Court of Appeals should be reversed, with
directions to remand the case to the District Court for the entry
of an order declaring that the petitioner is a citizen of the
Reversed and so ordered.
Certiorari was granted without opposition, 343 U.S. 976.
D.C. opinion not reported.
41 Op.Atty.Gen., Op.No.16.
90 U.S.App.D.C. 1121, 193 F.2d 920.
15 Stat. 223, 8 U.S.C. § 800.
H.R.Doc.No.326, 59th Cong., 2d Sess., p. 23; see also
74, 79, 160 et seq.
34 Stat. 1228.
Administrative practice, when involving protections abroad,
involves very different policy considerations, and is not
controlling here. However, while not always consistent, it seems to
have settled to the rule we apply in this case. 3 Hackworth, Digest
of International Law, 371; see also
Vexatious Questions Relating to Nationality, 20 Col.L.Rev. 840,
8 U.S.C. c. 11.
Hearings before House of Representatives Committee
on Immigration and Naturalization on H.R. 9980, 76th Cong., 1st
Sess., p. 32.
§ 350 of Pub.L. No.414, 82d Cong., 2d Sess.,
66 Stat. 163, 269.
The question of whether the statutory grounds under the 1940 Act
exclude other acts that will amount to voluntary expatriation was
reserved in Kawakita v. United States, 343 U.
, 343 U. S.
-732. It is not present in this case.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
REED, and MR. JUSTICE CLARK concur, dissenting.
At the times relevant here, Congress made the taking of "an oath
of allegiance to any foreign state" the ground for loss of American
citizenship. 34 Stat. 1228, 8 U.S.C. § 17. The findings of the
District Court in this case state that, "On May 24, 1931, the
plaintiff took an oath of allegiance to the King of Italy." That
finding is uncontroverted here, and the precise circumstances
surrounding the taking of the oath are unexplained. All we know is
that plaintiff, without protest, was inducted into the
Page 344 U. S. 140
Italian Army and served there from April 14, 1931, to September
If we are to base our decision on the record, we would be
compelled to affirm. For it is plain that petitioner did take an
oath of allegiance to a foreign state. The Court, however, ignores
the record and rests on an opinion of the Attorney General in
another case (cf.
MR. JUSTICE JACKSON concurring,
McGrath v. Kristensen, 340 U. S. 162
340 U. S.
), saying that one who took an oath in the Army of
Fascist Italy did so under duress. We have no basis for knowing
that every inducted soldier who took an oath in Mussolini's army
did so under duress. For all we know, this American citizen took
the oath freely and gladly. At least, he took it. If we acted in
the role of Secretary of State or Attorney General, we might
exercise our discretion in favor of the citizen and decide not to
move against him on such a showing. But we sit not as cabinet
officers but as judges to decide cases on the facts of the records