Ex parte Griffin

• Citation: 237 F. 445
• Parties: Ex parte GRIFFIN.
• Decision Date: 02 December 1916
• Court: U.S. District Court — Northern District of New York

237 F. 445

Ex parte GRIFFIN.

United States District Court, N.D. New York.

December 2, 1916

John O'Leary, of Clayton, N.Y., for petitioner.

D. B Lucey, U.S. Atty., of Ogdensburg, N.Y., for the United States.

RAY District Judge.

The questions involved are important, especially for the reason if a citizen of the United States by voluntarily going to Canada and there enlisting in its army and taking the oath of allegiance to the king of England and serving in such army does not lose his citizenship in the United States he may serve in the English army for months and perhaps years, sustain injuries in such service which forever totally disable him from earning a support for himself or family, and then return to the United States and here become a public charge. There is before this court an original paper, the authenticity of which is not questioned, as follows:

Attestation Paper. No. 640184

156th Overseas Battalion, C.E.F.

Canadian Overseas Expeditionary Force.

Questions to be Put before Attestation.

(Answers.)

1. What is your surname? Griffin.

1a. What are your Christian names? Edward Dempster.

1b. What is your present address? Gananoque.

2. In what town, township, or parish, and in what country, were you born? Adams, Jefferson Co., U.S.

3. What is the name of your next of kin? Abia Griffin.

4. What is the address of your next of kin? Gananoque.

4a. What is the relationship of your next of kin? Wife.

5. What is the date or your birth? Nov. 3rd, 1873.

6. What is your trade or calling? Farmer.

7. Are you married? Yes.

8. Are you willing to be vaccinated or revaccinated and inoculated? Yes.

9. Do you now belong to the active militia? Yes.

10. Have you ever served in any military force? Yes. (If so, state particulars of former service.)

11. Do you understand the nature and terms of your engagement? Yes.

12. Are you willing to be attested to serve in the Canadian Overseas Expeditionary Force? Yes, for artillery.

Declaration to be Made by Man on Attestation.

I, Edward Dempster Griffin, do solemnly declare that the above are answers made by me to the above questions, and that they are true, and that I am willing to fulfill the engagements by me now made, and I hereby engage and agree to serve in the Canadian Overseas Expeditionary Force, and to be attached to any arm of the service therein, for the term of one year, or during the war now existing between Great Britain and Germany, should that war last longer than one year, and for six months after the termination of that war, provided His Majesty should so long require my services, or until legally discharged.

E. D. Griffin. (Signature of Recruit.) R. W. Wood. (Signature of Witness.)

Date, July 14th, 1916.

Oath to be Taken by Man on Attestation.

I, Edward Dempster Griffin, do make oath, that I will be faithful and bear true allegiance to His Majesty King George the Fifth, his heirs and successors, and that I will as in duty bound honestly and faithfully defend His Majesty, his heirs and successors, in person, crown, and dignity, against all enemies, and will observe and obey all orders of His Majesty, his heirs and successors, and of all the generals and officers set over me. So help me God.

E. D. Griffin. (Signature of Recruit.) R. W. Wood. (Signature of Witness.)

Date, July 14th, 1916.

Certificate of Magistrate.

The recruit above named was cautioned by me that if he made any false answer to any of the above questions he would be liable to be punished as provided in the Army Act.

The above questions were then read to the recruit in my presence.

I have taken care that he understands each question, and that his answer to each question has been duly entered as replied to, and the said recruit has made and signed the declaration and taken the oath before me at Bannfield, this 14th day of July, 1916.

T. C. D. Bedell, Lt. Col. (Signature of Justice.)

On the back thereof is Griffin's descriptive list, certificate of medical examination, and certificate of the officer commanding unit, which last certificate reads as follows:

Edward Dempster Griffin, having been finally approved and inspected by me this day, and his name, age, date of attestation, and every prescribed particular having been recorded, I certify that I am satisfied with the correctness of this attestation.

T. C. D. Bedell. (Signature of Officer.)

Date, July 17th, 1916.

The petitioner does not deny that he gave the information contained in this paper, or that he signed the declaration and oath July 14, 1916, but contends, first, that if he did do so intelligently and voluntarily he did not thereby expatriate himself and lose his citizenship in the United States; and, second, that he was so intoxicated when he enlisted in such Canadian service and executed such papers that he did not know and understand what he was doing, or the nature and character of his acts, and is not bound thereby; that when he became sober and possessed of his faculties he left the service and Canada at the first opportunity and returned to the United States.

At this time we will consider the effect of the acts above set forth on the assumption they were voluntary and knowingly and intelligently done. If, when so done, such acts did not amount to expatriation and loss or deprivation of his citizenship in the United States, he is illegally held by the immigration officers and cannot be deported as an alien. If such acts, assuming they were knowingly, intelligently, and voluntarily done, did amount to expatriation and loss of citizenship in the United States, then evidence will be taken on the question of Griffin's mental and physical condition at the time of his enlistment and at the time he took the oath above quoted.

There can be no serious question that the acts of Griffin, assuming such acts were knowingly and voluntarily done, amounted to expatriation and loss of citizenship in the United States. The Congress of the United States has expressly affirmed and declared the natural and inherent right of a citizen to expatriate himself. R.S.U.S. Sec. 1999, 2 U.S.Comp.St. 1913, Sec. 3955, p. 1589; Act July 27, 1868, c. 249, Sec. 1, 15 Stat. 223. That act declares as follows:

'Whereas, 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; and whereas in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the republic.'

The common-law rule of England is that once a citizen always a citizen, and that no citizen can expatriate himself, except with the consent of his sovereign or government. 1 B1. Com. 369. At one time this was recognized as the law in the United States. Talbot v. Jansen, 3 Dall. 133, 1 L.Ed. 540; U.S. v. Gillies, Fed. Cas. No. 15,206, 1 Pet.C.C. 159; 2 Kent, 49; The Fifteenth Amendment, Brannon, 20, 21; opinion of Chief Justice Fuller in U.S. v. Wong Kim Ark, 169 U.S. at page 711, 18 Sup.Ct. 456, 42 L.Ed. 890; 7 Cyc. 144, and cases cited note 37. But at an early day the courts of the United States, both state and federal, began to question and repudiate this doctrine. 7 Cyc. 144, and cases cited. 'The consent of the United States is not necessary to enable a citizen thereof to expatriate himself and become a citizen of another country. ' Jennes v. Landes (C.C.) 84 F. 73.

Not only has Congress recognized and declared this 'natural and inherent right of expatriation' without the express consent of the government, but it has also enacted that 'any 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: * * * Provided also, that no American citizen shall be allowed to expatriate himself when this country is at war.' 2 U.S.Comp.St. 1913, Sec. 3959, p. 1591; Act March 2, 1907, c. 2534, Sec. 2, 34 St. 1228. The king of England is 'the state,' and England is a 'foreign state.' It is perfectly clear that Griffin went into a foreign country, represented himself as residing at Gananoque with his wife, and regularly enlisted in the Canadian army, and subscribed and took the oath of allegiance to the king of Great Britain, a foreign state and government. This was complete expatriation, and so declared by the act of Congress above quoted. Mackenzie v. Hare, 239 U.S. 299, 36 Sup.Ct. 106, 60 L.Ed. 297.

In 'The Fourteenth Amendment,' by Brannon, page 20, citing Santissima Trinidad, Fed. Cas. No. 2,568, 1 Brock. (U.S.) 478, it is said:

'Federal citizenship is lost by expatriation; the citizen by it becomes an alien, and loses all rights adhering to him as a citizen, and is released from his obligations as such.'

In Comitis v. Parkerson (C.C.) 56 F. 556, 559, it was held that:

'Expatriation can be effected only in accordance with law (and that) under our government Congress must be the source of that law.'

This cannot be sound law if expatriation be a natural and inherent right, as Congress says it is; but, assuming it to be true this petitioner went to Canada with his family,...