As mentioned last time, the now-outlawed practice of stripping U.S. citizenship from deserters and draft evaders — and the still-current practice of denying them re-entry to the U.S. if they can be convinced to strip themselves of citizenship — goes all the way back to the 1865 “Act to amend the several Acts heretofore passed to provide for the Enrolling and Calling out the National Forces, and for other Purposes”, which in § 21 (13 Stat. 487, 491) provided that:
[I]n addition to the other lawful penalties of the crime of desertion from the military or naval service, all persons who have deserted the military or naval service of the United States, who shall not return to said service, or report themselves to a provost-marshal within sixty days after the proclamation hereinafter mentioned, shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship and their rights to become citizens; and such deserters shall be forever incapable of holding any office of trust or profit under the United States, or of exercising any rights of citizens thereof; and all persons who shall hereafter desert the military or naval service, and all persons who, being duly enrolled, shall depart the jurisdiction of the district in which he is enrolled, or go beyond the limits of the United States, with intent to avoid any draft into the military or naval service, duly ordered, shall be liable to the penalties of this section.
And the President is hereby authorized and required forthwith, on the President to passage of this act, to issue his proclamation setting forth the provisions of this section, in which proclamation the President is requested to notify all deserters returning within sixty days as aforesaid that they shall be pardoned on condition of returning to their regiments and companies or to such other organizations as they may be assigned to, until they shall have served for a period of time equal to their original term of enlistment.
In just one clause, this provided both for stripping of citizenship and prohibition of renaturalisation. These provisions of the Enrollment Act of 1865 were controversial even back when they were introduced, in particular over concerns of due process; I quote the various speeches after the jump.
Table of contents
- Introduced by amendment
- The connection to taxation
- Punishing the innocent
- Attempted repeal
Like most anti-diaspora laws in the U.S., the law to strip citizenship from deserters & draft evaders was not included in a bill as introduced, but rather added later by amendment. The original bill, H.R. 678, started its life on 16 January 1865 with just five sections, none of which covered citizenship issues. By the time a companion bill made it to the Senate the following week, the citizenship-stripping provisions had been added in § 7, though they applied only to deserters. In debate on 7 February, Senator Justin Morrill (R-VT) proposed extending the same punishment to people who left the country or stayed abroad to avoid the draft; the only one of his colleagues who raised an objection, John Conness (R-CA), agreed with the sentiment but merely thought it might be difficult to enforce:
Mr. MORRILL: I propose to amend the seventh section by inserting after the word “service,”, in the thirteenth line, the words “and all persons who being duly enrolled shall depart the jurisdiction and go beyond the limits of the United States with intent to avoid any draft into the military or naval service duly ordered”. It will be seen that the section now provides for disqualifying persons from holding any office of trust or profit who desert the military service. I do not see why the same principle should not extend to those who leave the country to avoid the draft.
Mr. CONNESS: I would remind the Senator that the act of desertion after a sailor or soldier is in the service is an act duly ascertained and proven, while the intent with which a man leaves his home and changes his residence cannot be so easily established. Why not require the person to go to the enrolling office and give notice there after his enrollment, and disfranchise him as proposed if he shall not do that? If you leave it to the proving of the intent I apprehend you will not disfranchise anybody by that means.
Mr. MORRILL: Of course it depends on the intent with which the party leaves. I think it would be a little severe, perhaps, to provide that a man shall be disfranchised upon changing his residence unless he should report himself to the enrolling office.
Mr. CONNESS: He knows whether he is enrolled or not. Otherwise I submit that the proposition will not affect anything.
The amendment to the amendment was agreed to.
Coincidentally, Conness was also the one who asked the question that provoked Jacob Collamer (R-VT) into his infamous defence the previous year of higher taxes on the U.S.-source capital income of citizens abroad as compared to citizens at home. Collamer accused the diaspora of “skulking away from contributing [their] personal support to the Government in this day of its extremity”, and also commented that “this is the law now and has been for two years past” — the exact same blame-shifting excuse which supporters of the U.S.’ ideology of emigrant harassment are still using fourteen decades later.
Interestingly, the original reasoning for imposing higher taxes on citizens abroad than at home (though applicable only to U.S.-source income rather than foreign-source income) in the Revenue Act of 1861 didn’t even make reference to the Civil War; Thaddeus Stevens (R-PA) instead justified the discrimination as punishment for citizens who refused to Buy American. At page 415 of the Congressional Globe for 1861 (in the first paragraph of the rightmost column, with a pencil-marking next to it — apparently this passage caught someone else’s attention too back in the pre-Internet days):
Where persons reside abroad who hold property in this country on which they derive an income, which they spend abroad, we have laid an income tax of five per cent. We thought it right that they should bear more of the burden of the country than those who spend their income in the United States.
This passage was later quoted in a 1919 Attorney-General’s opinion on the taxation of non-resident aliens, mentioning the Supreme Court case Railroad Co. v Jackson 7 Wall. 262 (1868) which elucidated the rather obvious fact that these laws did not apply to non-citizens abroad.
In any case, in February 1865 the citizenship-stripping provision — with Morrill’s amendment — was added back to the House version of the Enrollment Bill of 1865 as § 11. That provoked much lengthier and more heated debate, which you can see starting at page 1155 of the Congressional Globe, on the day the bill was passed — Dwight Townsend (D-NY) wanted to strike the section entirely:
Mr. TOWNSEND. I move to strike out that section. In proposing to do that, Mr. Speaker, I am satisfied, if I understand the clause correctly, that the provision contained in the latter part will, in case the substitute law should ever be repealed, have the effect to deprive fifty thousand, and I do not know but one hundred thousand, people of their rights and privileges. I am disposed to agree with the chairman of the Committee on Military Affairs in every measure calculated to strengthen the armies of the Government, but I am opposed to any measure which is calculated to punish an innocent class of persons, such as clergymen, refugees, aliens, and those who, to escape with their lives and families, took an oath not to bear arms against the confederate government.
The section in the beginning would seem to imply that there was something unjust and unlawful in it. It recites “in addition to all the other lawful penalties,” [emphasis in original] virtually admitting by the phrase that there is here something unlawful. There are persons whose religious convictions will not permit them to engage in this war. The time of peril and danger has also passed, and I have a deep sympathy with the thousands of the various classes I have mentioned who believe that this war should not continue one moment longer than is necessary to re-establish the integrity of the Government and the supremacy of the Constitution, and it does seem as if this were a needless measure. But sir, this provision has a deeper meaning: it is one of the steps toward a consolidated Government in my opinion, a violation of republican principle. If, in the progress of events, there should ever be a division of sentiment upon a question, for instance, of a war of aggrandizement, this would be a dangerous law. There is no tribunal provided for in this section to decide the question, and I, for one, will not consent to what I consider a despotic measure.
Unsurprisingly, Townsend’s arguments failed to convince the majority Republicans, in particular Robert Schenk (R-OH) who accused him of disloyalty and of “sympathiz[ing] with the man who has abandoned his country, his flag, and its cause”, and Townsend withdrew his amendment rather than see it voted down. A last-ditch effort by the Democrats to repeal all the conscription bills failed, and Congress passed the bill by a vote of 83–48 on the same day as Townsend’s speech.
In 1867, future president James A. Garfield, then a representative for Ohio’s 19th Congressional District, introduced H.R. 319, which would have repealed § 21. It provoked extensive debate in the House; see sections starting at pages 257 and 283 of the Congressional Globe for that session of Congress.
Garfield’s proposal to restore citizenship to deserters attracted some support — there were many cases of people who were mistakenly listed as having deserted after they fell out from marches due to injury or illness and their comrades did not report the fact to their officers properly, as well as more general confusion over the standards of evidence (in particular whether a conviction was required or not) and some legislators felt it was worth it to let genuine deserters go unpunished so that the innocent wouldn’t mistakenly lose their rights. However, restoration of citizenship to draft evaders proved to be far more contentious. As Henry Bromwell (R-IL) put it:
… I would like to know what reason there is for excepting that class of men, citizens of this country, who, when the country required their services in the war, skedaddled to Canada and other foreign countries. If there is any class of men who deserve nothing of the country it is that class of men who desert their own country in the day and hour of trial. I understand from the remarks of the gentleman from Ohio [Mr. GARFIELD] that this bill removes the disabilities from that class of men and restores them to all the rights and immunities they would have had if the had remained in the country and taken their chances along with their fellow citizens …
[T]hose men who left for Canada and for other countries, what excuse have they? Let me ask the gentleman from Ohio [Mr. GARFIELD] what will this bill be in the way of warning in case of another war to that class of men who intend to skedaddle the first time there is a draft in this country for its support? If this country passes laws punishing such deserters and skedaddlers at the time for deserting it in the hour of need, and then the moment the necessity is over repeals the law, then those men can and will presume upon a like repeal in another case. And if these men are given to understand that the country does not intend to punish that kind of desertion, whenever we have occasion in the future for a draft gentlemen will find that all the avenues leading out of this country will be crowded by the beneficiaries of this bill — men who will enjoy all the immunities, privileges, and advantages of this government, its laws, and everything pertaining to it, but who will not defend it in the face of its enemies.
Robert Schenk (R-OH), who as mentioned above had excoriated Dwight Townsend (D-NY) for his opposition to § 21, also took a dim view of Garfield’s bill:
Mr. SCHENK: Taking the gentleman’s admission as my starting point, I say that if you repeal that twenty-first section as it now stands all these deserters to Canada, all these deserters to the enemy, will go unwhipped of justice. They cannot be tried by court-martial, for they are no longer in the military service. Hence by this bill we wipe out the distinction between loyalty and disloyalty. Sir, we have had enough of wiping out the distinction between loyalty and disloyalty; and no farther step shall be taken in that direction if my vote or influence can prevent it.
Now, what is the whole effect of this law as it now stands upon your statute-book? It does not affect the right to hold office in the States, except so far as citizenship of the State is in any case by the State constitution dependent upon citizenship of the United States. The gentleman is mistaken on this point. He has not carefully read the section. The whole section is studiously drawn in such a way as, in the first place, not to be ex post facto in its operation, and in the next place so as to touch only the question of United States citizenship. It is not ex post facto. It applies only to those who, having deserted to the enemy or fled to a foreign country to avoid the draft, failed to return within a specified time. That is, the disfranchisement is to be the punishment for the persistency in staying away, for neglecting to return within a certain period after the issuing of a presidential proclamation, for which that act provided, and was issued. The section further provides that those who may desert after the passage of the act shall be liable to the same penalty. Thus it is in no sense ex post facto.
Now, what penalty does this section prescribe? It provides that these deserters, in addition to the military penalties to which they are subjected, and which the gentleman has very properly explained, shall suffer the further penalty of being considered as having declared, when they deserted their country and their country’s cause, that they took no further interest in that country or its defense.
In the end, the bill was recommitted to the Committee on Military Affairs, which took no further action on it.
Townsend’s concerns about due process proved prescient. The Immigration Act of 1924 turned the ban on renaturalisation into a ban on re-entry, and then the Immigration and Nationality Act of 1952 removed the requirement of a conviction in order for the ban on re-entry to take effect (9 FAM 40.82). The Supreme Court ruled in Trop v. Dulles that Congress could not legislate for punitive removal of a person’s citizenship even upon conviction, but they did nothing at all to prevent Congress from giving the executive branch the authority to punish an ex-citizen by fiat.