Comitis v. Parkerson

• Decision Date: 17 June 1893
• Citation: 56 F. 556
• Parties: COMITIS v. PARKERSON et al.
• Court: U.S. District Court — Eastern District of Louisiana

56 F. 556

COMITIS v. PARKERSON et al.

United States Circuit Court, E.D. Louisiana.

June 17, 1893

John Q Flynn, for plaintiff.

E. A O'Sullivan, City Atty., for defendant city of New Orleans.

H. C Miller and Chas. F. Buck, for defendant W. S. Parkerson and others.

BILLINGS District Judge.

This case is submitted on a plea to the jurisdiction of the court. The defendants are citizens of Louisiana. The question is whether the plaintiff is an alien. The admitted facts are these: The plaintiff was a native-born citizen of the state of Louisiana. On the 30th day of July, in the year 1881, in Louisiana, she intermarried with Loretto Comitis, who was a native-born subject of the kingdom of Italy, and had several years previous to that time immigrated from Italy, and established his residence in New Orleans, where he engaged in business, and where he, up to the time of his marriage, and he and his wife, after his marriage, continued to reside, it being at all times after his coming to Louisiana his purpose not to return to Italy to reside, but to continue to reside in Louisiana. After his death his wife continued to reside in Louisiana, and at no time had she the purpose to remove to Italy. The question may be generalized thus: Does a woman who was a citizen of the United States, who never intended to leave it, and never did leave it, become expatriated and become an alien by marriage with a man who had been a subject of Italy, but who, previous to his marriage, had settled in Louisiana, and had forever severed himself from Italy?

The arguments on both sides have conceded (what could hardly be denied) that the tie which binds together a government and its subjects or citizens, and which creates the reciprocal obligations of protection and obedience, can be dissolved only in such a mode as has the assent of both parties; that, so far as concerns the government, this assent must be expressly made, or must be inferred from the fundamental or statutory provisions by which the action of the government involved is regulated. A change of the allegiance due to the United States, a throwing of it off on the part of a citizen, involves on the part of the government an acquiescence from that department of government which, according to its constitution, must acquiesce in it; and, on the part of the citizen, the manifestation of the purpose to expatriate himself by some unequivocal act, which act must also be recognized by the government to be adequate for that purpose.

I shall consider the question in two aspects: First, has the government of the United States in any way authorized or sanctioned the withdrawal of the plaintiff's allegiance to itself? and, secondly, do the facts of the case show a purpose on the part of the plaintiff to withdraw and transfer her allegiance?

First, as to any authority or sanction of the government of the United States. There can be no doubt but that the department of government which, in the distribution of authority under the constitution, has power over the subject of naturalization, has it also over the subject of expatriation. The constitution is silent on the subject of expatriation; but article 1, § 8, par. 4, provides that 'congress shall have power to establish a uniform rule of naturalization.' Where the constitution is thus silent as to who can denationalize, that department which can nationalize must be held to have authority to expatriate. Since the decision of Chirac v. Chirac's Lessee, 2 Wheat. 260, 269, that power has been settled to be vested exclusively in congress.

Down to the act of July 27, 1868, the question of right of expatriation and its limitations had been considered by the supreme court of the United States in the following cases: The Santissima Trinidad, 7 Wheat. 283; Talbot v. Janson, 3 Dall, 133; Inglis v. Trustees, 3 Pet. 99; and Shanks v. Dupont, Id. 242. There is also an able exposition of the subject given by Chief Justice Elsworth in his opinion in the Case of Isaac Williams, 1 Tuck. Bl. Comm. pt. 1, Append. 436, cited in Murray v. The Charming Betsy, 2 Cranch, 82, note. The law established in these cases is thus summarized by Chancellor Kent, 2 Comm. marg. p. 49:

'The better opinion would seem to be that a citizen cannot renounce his allegiance to the United States without the permission of government, to be declared by law; and that, as there is no existing legislative regulation on the case, the rule of the English common law (perpetual allegiance) remains unaltered.'

This doctrine upon the matter of expatriation was declared and reiterated and inflexibly maintained, notwithstanding congress had, from the year 1802, permitted an alien, in being naturalized in the United States, to abjure his native allegiance without any release of it from his former sovereign. The inconsistency of the theory of perpetual allegiance with the admission of foreigners to citizenship by requiring them simply to renounce for themselves all preceding allegiance was admitted by the supreme court in Shanks v. Dupont, supra, and by Judge Kent, but it was tacitly admitted by both the court and the commentator that no power could correct the inconsistency or deal with the subject save congress. Congress, on the 27th of July, 1868, (15 Stat. 223), passed the act entitled 'An act concerning the rights of American citizens in foreign states.' It is to be observed that the act itself, as does its title, deals only with the protection of aliens by birth who have become citizens by naturalization. As to them, it declares it to be the determination of the United States to accord to them, when in foreign states, the same protection as is accorded to nativeborn citizens similarly situated. The whole scope and force of the act, when most liberally construed, even when expanded by the more general terms of the preamble, declares that naturalized citizens, having, according to the principles of our government, the same rights as native-born citizens, shall have by law the same protection abroad. As to whether allegiance can be acquired or lost by any other means than statutory naturalization is left by congress in precisely the same situation as it was before the passage of this act. During the year 1868, and since, five treaties have been entered into between the United States and foreign governments based upon this statute, in which the right of expatriation is dealt with, (which will be referred to hereafter;) and in all these treaties the right is confined, as is the statute, to that of citizens or subjects of our country who have become citizens or subjects of others by direct statutory naturalization. So that with reference to the question before the court the law is left where it was previous to the year 1868, and congress has made no law authorizing any implied renunciation of citizenship.

I think the conclusion might be rested here. But, even if congress, in the preamble to the act of 1868, had meant to declare that there might be expatriation effected in connection with other means than by naturalization abroad, the settled doctrine as to expatriation would prevent the plaintiff from being regarded as expatriated. Expatriation must be effected by removal from the country. It cannot be denied that whatever right of expatriation congress meant to declare by the act of 1868 is in the express language of the preamble based entirely upon the inborn right to seek happiness by free removal from one country to another. It could not, therefore, have been intended by congress in that act that citizens should expatriate themselves, and remain permanently within the country. The right is limited to or conditioned upon actual removal, by the public writers. Puffendorf, in his Law of Nations, (Book 8, c. 11, § 2,) says:

'But now the usual way by which subjection ceases is when a man by permission of his own commonwealth voluntarily removes into another, and settles himself and his effects and the hopes of his fortune there.'

And again, in section 3, he says:

'But then it must be observed that by removing in this place I understand the departing out of the dominions and territories of the commonwealth, and not the changing its authority, and continuing to live in its dominions.'

Some light may be obtained upon the subject by considering the laws of the states before the adoption of the constitution. All were adverse to the right to expatriate save Virginia and Pennsylvania. I have not had access to the act of Pennsylvania. That of Virginia is given in Talbot v. Janson, 3 Dall. 136, note. The words of the law are these:

'Whensoever any citizen of this commonwealth shall, by deed in writing, under his hand and seal, executed in the presence of and subscribed by three witnesses, and by them, or two of them, proved in the general court, any district court, or the court of the county or corporation where he resides, or by open verbal declaration made in either of the said courts, to be by them entered of record, declare that he relinquishes the character of a citizen, and shall depart out of this commonwealth, such person shall, from the time of his departure, be considered as having exercised his right of expatriation, and shall thenceforth be deemed no citizen.'

It will be seen from this statute that to effect the expatriation the citizens must make or have passed in a court of record a public declaration of his renunciation, but that, even after this had been...