MANDOLI v. ACHESON, SECRETARY OF STATE.
No. 15
Supreme Court of the United States
Argued October 17, 1952. Decided November 24, 1952.
344 U.S. 133
Oscar H. Davis argued the cause for respondent. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Murray, Beatrice Rosenberg and John R. Wilkins.
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.1 Does a United States citizen by birth who by foreign law dеrives 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 Italiаn 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
Judgment in the District Court went against him on the ground that expatriation had resulted from two causes: first, cоntrary 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.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.”3 The Court of Appeals, however, relying largely on Perkins v. Elg, 307 U. S. 325, 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.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
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 citizеnship. Prior to 1907, courts and administrators were left to devise their own answers.
Preparatory to legislative action on the subject, Congress sought and received a report of a special citizenship bоard. Reviewing judicial decisions, this report concluded that the courts recognized well-established doctrines of election in cases dealing with rights of persons with dual citizenship. This board recommended that Cоngress 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 prеsumption of foreign domicile from five years of residence in a foreign state.6 This was proposed as to all citizens and not
If petitioner, when he became of full age in 1928, were under a statutory duty to mаke 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 оbligation imposed by that Act; indeed, it would appear that the proposal to impose that duty was deliberately rejected.8
The
The Court of Appeals, however, applied such a rule because it understood that this Court, in Perkins v. Elg, supra, hаd 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
We find no warrant in the statutes for concluding that petitioner has suffered expatriation. And, sinсe 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 pursuаnt to a clear statutory mandate.12 The 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 United States.
Reversed and so ordered.
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.
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, 176), 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 а showing. But we sit not as cabinet officers but as judges to decide cases on the facts of the records before us.