740.00111A Recruiting/183
The Department of State to the Department of the Navy
The situation relating to the service of American citizens in the armed forces of foreign states may be summarized as follows:
- (1)
- Chapter IV of the Nationality Act of 194095 (effective 90 days from October 14, 1940)
provides, inter alia, that “A person
who is a national of the United States, whether by birth or
naturalization, shall lose his nationality by:
- (a)
- “Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state; or
- (b)
- “Entering, or serving in, the armed forces of a foreign state unless expressly authorized by the laws of the United States, if he has or acquires the nationality of such foreign state; or
- (c)
- “Accepting, or performing the duties of, any office, post, or employment under the government of a foreign state or political subdivision thereof for which only nationals of such state are eligible.”
- (2)
- Sections 21 and 22 of Title 18, U. S. Code, provide penalties for entry or the hiring of others for entry into the armed forces of a foreign state when such acts are committed within the territory or jurisdiction (not extra-territorial jurisdiction) of the United States, but there is no penalty in the general laws of the United States where citizens of the United States go abroad and while abroad enter the armed forces of a foreign state.
- (3)
- Section 4090 of the United States Revised Statutes contains authority under which the United States Court for China “may issue all manner of writs, to prevent the citizens of the United States from enlisting in the military or naval service” of China, but that law provides no penalty and, so far as is known, no action has ever been taken under it and it seems unlikely that any action would be taken.
- (4)
- Steamship companies as a rule will not accept as passengers American citizens intending to proceed to countries of the Eastern Hemisphere without passports or, in the cases of persons born in the United States of Chinese parents, without Form 430 issued by the Immigration and Naturalization Service. Passports valid for travel to China are now issued only in cases where there is impelling need. The present policy of the Department is to refuse passports to persons who state that they desire to go abroad for the purpose of enlisting in the armed forces of a foreign state.
- (5)
- The question of the liability of young men (and perhaps particularly aviators trained in war flying) to service in the armed forces of the United States under the Selective Service Law96 would presumably have to be considered and disposed of prior to the departure from the United States of American volunteers for service in the armed forces of foreign states.
The situation as above outlined is generally applicable to persons proceeding abroad for the purpose of serving in the armed forces of foreign states. It is understood that American citizens who have (at least prior to the passage of the American Selective Service Law) desired to serve in the British forces in the present war in Europe have in most cases proceeded to Canada without passports and have enlisted there without being required to take the oath of allegiance to the British Government. So far as is known there has been no violation by persons acting on behalf of the British authorities of the law against recruitment in the United States.
The only factor in the situation with regard to which the Department of State has discretionary authority is the factor relating to the issuance of passports. Decision with regard to that factor, being discretionary and based upon policy, is naturally subject to reexamination and reconsideration should there appear to be sound reason therefor.