States or (in the case of women marrying aliens) have never left it.

The Immigration and Naturalization Service has regarded the acts of these citizens, or former citizens, as amounting to attempted expatriation which never became effective. I quote from a memorandum prepared by the Solicitor of the Department of Labor in 1938:

"If it is to be kept effective for all cases, it would seem that the statute should be held to nullify the attempted expatriation and to render impossible any benefit from wartime naturalization at any time. If the naturalization is recognized automatically upon the termination of the war, the citizen desiring to escape his responsibilities to this country will benefit from the wartime act which the statute refuses to recognize and seeks to prevent. On the other hand, if the wartime naturalization is held ineffectual at all times, it can never inure to the benefit of an erring citizen. If that act is invalid at its inception, our law does not provide that it may be made valid by an implied ratification."

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Your Legal Adviser in a memorandum submitted with your letter holds that expatriation became effective upon termination of the war and indicates that this view has prevailed in your Department for many years. His conclusions are as set forth below:

(1) "Since naturalization gives rise to a status of a continuing character, this Department holds that, while the naturalization of an American citizen in a foreign country when the United States was at war, that is, between April 6, 1917, and July 2, 1921, did not result in the loss of American citizenship so long as the United States continued to be at war, it did result in such loss when the United States ceased to be at war, unless the person in question had ceased to be a national of the foreign state, under its law or a treaty to which the United States was a party. * *

(2) "For the reasons mentioned, and in view of the decisions cited, it seems proper to hold that an American woman who married an alien while the United States was at war and was still the wife of such alien when the United States ceased to be at war should be regarded as having lost

her citizenship of the United States at that time, under the provisions of section 3 of the act of March 2, 1907, regardless of the place of her residence.

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(3) "To sum up, if an oath taken by an American national while the United States was at war was clearly an 'oath of allegiance,' within the meaning of section 2 of the act of March 2, 1907, and if the person taking the oath indicated by his conduct, after the termination of the war, continued adherence to the foreign state to which the oath was taken, as, for example, by protracted residence within its territory after the close of the war, even though the nationality of the foreign state was not acquired through the taking of the oath, it would seem reasonable to hold that such person has expatriated himself under the statutory provision in question. It is believed, however, that a different conclusion should be reached if the person who took the oath refrained, after the United States had ceased to be at war, from doing anything which indicated continued allegiance to the foreign state, but on the contrary acquired a permanent residence in the United States before, or very shortly after, the United States had ceased to be at war and thereafter acted consistently as a citizen of the United States. Such action might in itself be regarded as indicative of a practical disaffirmance of the obligation to the foreign government involved in an oath of allegiance. Since the nationality of a foreign state is not acquired in cases of this kind, it does not seem reasonable to apply precisely the same rule which is applied in cases involving naturalization, as indicated above."

The Legal Adviser also points out that if we refuse to recognize the expatriation as ever becoming effective we do, in effect, accord these persons, who may have acted in defiance of the statutory inhibition, special privileges denied to those who expatriate themselves lawfully in time of peace-that the latter clearly lose all rights of citizenship whereas the former, under the view which the Legal Adviser rejects, while perhaps acquiring a foreign citizenship also retain their American citizenship and may claim its privileges when they find it convenient to do so.

In 1938 the Secretary of Labor presented the matter to the Attorney General. At that time it appeared that the question had been dealt with by some State, Territorial, and United States District Courts in a limited number of cases and conflicting conclusions reached. There was no decision by an appellate court. The Secretary was advised: "It is obvious that the question of the effect of the act of March 2, 1907, upon attempted expatriations during times when this country was at war can be finally determined only by the courts. In the meantime, however, I advise that you continue to maintain the view heretofore adopted in your Department that attempted expatriation during wartime is ineffective in so far as this Government is concerned."

Since that time, and particularly during the present year, applications for repatriation under the special naturalization statutes have become much more numerous. All, or practically all, recent ones have involved women who married aliens during the World War. Out of approximately 60 cases decided during a recent 4-month period, as indicated by reports received up to this time from field representatives of this Department, only 7 denied relief on the ground that there had been no loss of citizenship, although in each case the Immigration and Naturalization Service had entered formal objection on this ground. The decisions are mostly unreported and without written opinions.

The Legal Adviser cites the following cases, in which opinions were written, as involving conclusions that women who married aliens during the war lost their citizenship upon its termination: In re Chamorra (N. D. Calif., 1924), 298 Fed. 669; In re Varat (E. D. N. Y., 1932), 1 Fed. Supp. 898; North German Lloyd v. Elting (Cir. Ct. of App., 2d Cir., 1936), 86 Fed. (2d) 93; In the Matter of the Petition for Naturalization of Anna Stone (W. D. Pa., June 12, 1940). He also cites Petition of Prack (W. D. Pa., 1932), 60 F. (2d) 171, which held that an American who was naturalized abroad during the war lost his citizenship.

In the Chamorra case and in North German Lloyd v. Elting it may perhaps be said that loss of citizenship upon termination of the war was assumed, but the point is not mentioned in the opinions.

In the Varat case the court at first entered an order, on motion of the naturalization examiner, denying the petition on the ground that there had been no loss of citizenship although indicating that there was considerable doubt as to the correctness of the ruling. The Department of State declined to recognize Mrs. Varat as a citizen and on motion by her the prior order was set aside and the question reconsidered. The court held:

"From the provisions of the aforesaid act, section 3, it was clearly the intention of Congress to make the marital state rather than the act of marriage a ground for expatriation, since the provisions of the act prior to the passage of the act of September 22, 1922, automatically restores American citizenship to an expatriate by marriage at the termination of the marital relation if she is residing in the United States. "The provisions of section 2 that no American citizen shall be allowed to expatriate himself while this country is at war ceased to apply at the formal termination of the war in 1921, and, since the petitioner continued as the wife of an alien husband subsequent to this date, the only logical conclusion to be drawn is that she lost her status as an American citizen with the termination of the war."

The same conclusion has now been reached in the Stone case with the stated concurrence of three judges.

In the Prack case there is a more extended discussion of the question and the conclusion reached is indicated by the following excerpt from the opinion:

"The purpose of the act of 1907, setting a limitation on expatriation, was clearly to protect the United States during a period of war, against any citizen who might attempt to evade military service by acquiring the nationality of another country. Should such question be raised between our country and such derelict citizen, the limitation against his attempted self-expatriation could be unanswerably and successfully interposed. But the right of the government to up this limitation for its own protection is one thing, and the right of the petitioner to assert such limitation in his own favor is a wholly different thing. This shall not and cannot be permitted. The petitioner is justly barred from

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setting up the limitation by his own voluntary acts. He must stand by the record which he has made."

I have also noticed In re Grant (S. D. Calif., 1923), 289 Fed. 814, and In re Bishop (W. D. Wash., 1927), 26 F. (2d) 148, which dismissed applications for repatriation by persons who had taken a foreign oath during the World War, holding in each case that the applicant had not lost his citizenship. In one case it clearly appears that the applicant had returned to the United States before the war ended; in the other case the opinion states no fact concerning this; neither opinion dealt with the question of loss of citizenship upon termination of the war.

The United States District Court for the Territory of Hawaii, in 1931, in three separate naturalization proceedings expressly indicated its disagreement with the views of the Department of State and, relying partly, but not wholly, upon In re Grant and In re Bishop, concluded that women who married aliens during the war did not lose their citizenship when the war ended. The court stated that the statute did not prohibit in time of war the acts which otherwise would effect expatriation but changed their effect.

Aside from the possibility above mentioned that loss of citizenship upon termination of the war may have been assumed in North German Lloyd v. Elting, it does not appear that this question has been considered by an appellate court. I note, however, that in Thorsch v. Miller, 5 Fed. (2d) 118, 121, the Court of Appeals of the District of Columbia approved as "manifestly correct" the position of the Department of State that the presumption of expatriation resulting from specified residence abroad by naturalized citizens was postponed and became effective only when the war had ended in cases where such residence occurred wholly or partly during the war period. This arose under the same act herein considered and must be regarded as a related question.

So far as our statutes are concerned it has always been within the power of any of these persons to remove all doubt about the accomplishment of his expatriation, as, for example, by taking an oath of allegiance to a foreign nation