(dissenting) .
This decision of the court is another long step in a progression of court decisions away from the terms of the applicable statutes. I think that step ought not to be taken.
We start consideration with the statutes themselves. Two are involved, one of 1907 and the other of 1940.1 They are quite simple and unqualified. The 1907 Act provided:
“Sec. 2. 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.”
That statute obtained until January 13, 1941, the effective date of the 1940 Act. The latter Act provided:
“A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:
******
“(b) Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state; or
“(c) 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 *248acquires the nationality of such foreign state; or
* '* * * # *
“(e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory; or * * *”
Both of these Acts are quite direct. The 1907 Act says that an American citizen “shall be deemed to have expatriated himself” when he takes an oath of allegiance to a foreign state. The 1940 Act says a national of the United States “shall lose his nationality” by doing the specified acts. There are no qualifications in the provisions.
The courts have held 2 that the acts of expatriation specified in the statutes must be voluntary. That was one step away frpm the terms of the statutes. Of course an act performed under actual duress would be deemed to be of no effect, but the doctrine that the act must be “voluntary” was a broader concept and has been so regarded. It seems to me, as I read the cases, that there is a tendency to expand the term “voluntary” so as to make it mean specifically intentioned; that, to be effectively expatriating, not only must an act be voluntary in the ordinary meaning of that term but the person doing the act must specifically intend to relinquish his American citizenship thereby. It is true that in several opinions, including two of the Supreme Court3 and two of this court,4 it has been said that intention is immaterial in these cases. But in Alata,5 for example, the court discussed in some detail the applicant’s “own intention and state of mind” and concluded that the oath-taking there “was not such a voluntary or willful act of renunciation of American citizenship as the statute or decisions' require to effect its loss.” (Emphasis mine.) The extreme breadth evidently applied to the term “voluntary” in reaching the decisions in some cases seems to me to indicate this tendency. Under such an extended meaning of the word “voluntary", if a person were to perform an act for expediency’s sake but not mean thereby to give up American citizenship, the act would not be “voluntary”. This is indeed a long step from the statutes.
The courts have held that acts done prior to age twenty-one are' not to be considered as expatriating. The 1940 statute specified as an act of expatriation “entering” the armed forces of a foreign state, and Congress must have known that men eighteen years old are liable to military service in many countries, as they are in this one. Then courts have held that the voluntary nature of an alleged act of expatriation is part of the burden of proof on the Government and that its proof must be clear, unequivocal and convincing.6 Some courts have declined to take this latter step and hold that when the act of expatriation, as specified in the statute, is proved, the burden of going forward to show its involuntary nature is thereafter upon the individual.7 This court has held in this connection that proof of the involuntary nature of an expatriating act is upon the individual, but at the same time it held that, when reasonable inferences from the evidence create substantial doubt of the voluntariness of the act, this burden is met. In other words the rule here is *249that the burden of proof is met by the creation of a substantial doubt.8
The courts, or some of them, seem to have held that the ruthlessness of the Fascist regime in Italy was such that opposition to military service there would have been futile and so service in that army could not have been voluntary.9 This step seems to have stricken from the statute, at least so far as Italy under Fascism is concerned, that provision which says a national of the United States loses his nationality by entering or serving in the armed forces of a foreign state.
The present opinion of this court takes one more step. To understand this step we must turn to the facts of the case. Soccodato actually performed five acts specified in the statute as acts of expatriation. He took the oath of allegiance when he was twenty years old upon entering the Italian army. He entered that army twice, once when he was twenty years old and again when he was twenty-five years old — his official military record says “spontaneously” as to the first time and “upon his own application” as to the second. He voted in two elections, one in 1946 when he was thirty-one and again in 1948 when he was thirty-three.
Soccodato was born in New York, was taken to Italy when he was six, married there, raised a family there, and served some six years in the Italian army without protest or affirmation of his American citizenship, the last five years while Italy was at war with the United States and he was a prisoner of war. He did not attempt to return to the United States until 1947, and he did not seriously press his effort until 1952.
Upon the trial in the District Court the court had before it various items of evidence. It is not necessary to go into all of it. There were two affidavits by Soccodato, executed at the American Consular Service at Naples, one dated October 8, 1947, and the other May 19, 1952. In the latter he stated that in 1940 “I asked again to join the army because I was unemployed and I found no way out to support my wife and four children.” That explanation coincides with the notation on his military record, to which I have referred. In respect to voting he stated: “I desire to clarify anyhow that while personally I was not threatened by anyone, I voted because of all the electoral propaganda and what they were saying around.” And again he stated: “I voted on April 18,1948, because I desired to give my contribution against Communism.” There was an affidavit of a village priest at Salerno, in which the affiant stated “That in the two political elections of the years 1946 and 1948, I persuaded Mr. Enrico Soccodato, son of the late Nicola, who absolutely did not want to vote, to comply with that duty, in order to save the sure votes of the Christian Democracy.” Nothing was said in these affidavits of Soccodato and the priest concerning compulsion upon the second entry into the army, or upon voting, or as to any sanctions applicable for failure to vote. Indeed quite the contrary impression is conveyed by these documents.
Upon the trial in the District Court Soccodato took the stand and testified as to his second entrance into the army: “There was a general call to the Army. There were posters all over in our little town to call everybody to active duty. * * * They called me automatically. * * * If I did not report, I would have been declared a deserter. * * * I would have been arrested and my family would have lost the food ration coupons that they needed to live.” In respect to voting he testified: “If I did not vote, I would lose my civil rights, my certificate of good behaviour would have been disqualified and I do not find any more job. * * * They [relatives] would have been deprived of their ration *250card. * * * I was compelled by the law to vote. There were signs and posters that we were to vote.” A witness who was a lawyer admitted to the bar in Italy testified that all citizens were compelled to serve in the Italian army. Soe-codato’s brother-in-law testified that one who did not vote in the national elections in 1946 “would be punished with sanctions, different sanctions, such as a fine, or by losing his food ration cards.”
The trial judge saw the witnesses on the stand and observed their demeanor while testifying. At the end of the hearing the judge said: “With those affidavits, as compared to the testimony that he has given today, I can do only one thing, and that is to enter judgment for the defendant * * In short the trial judge simply did not believe the oral testimony but believed the affidavits filed officially and the official documents. He specifically found the service in the Italian army to have been voluntary and the voting in 1946 to have been without coercion or compulsion. He based his judgment upon those two acts of expatriation. On that record this court reverses. It does so by application of a rule which it says applies in expatriation cases and is in addition to the “clearly erroneous” rule laid down by the Rules of Civil Procedure. It does not say precisely what that rule is, and so the terms of the rule must be derived from what the court is doing.
The opinion says that, unless the evidence of expatriation is clear, unequivocal and convincing — not only clear and convincing but also unequivocal — in the opinion of the appellate court, a finding of expatriation by the trial court is clearly erroneous and will be reversed. The most that could possibly be said of the evidence favoring the applicant at bar is that it created a conflict. Viewed in the light of this record the opinion and decision mean that, if there is a conflict in the evidence sufficient to raise a substantial doubt in the mind of this court, a finding of fact by the trial judge adverse to the applicant is clearly erroneous, no matter how the trial judge evaluates the conflicting evidence.
This opinion of this court, as I have already said, is another long step away from the clear provisions of the statutes. Maybe this is not the actual step; maybe it is merely the frank and lucid statement of a step already taken. In either event in my opinion this additional step should not be taken. The universally applicable rule as to this court’s function in respect to findings of fact ought to apply to the findings in this case. To my way of thinking, the determination of the District Court as to whether the service in the Italian army and the voting were voluntary was a resolution of an issue of fact upon conflicting evidence. The judge said the evidence left him with but one thing to do; he had no doubt upon the matter. This court is saying that he should have had a doubt; he should have believed the oral testimony, in part at least; and since he should have had a doubt his finding of fact was clearly erroneous, he should have made the opposite finding, and his judgment should have been against expatriation and for the applicant.
I do not see that the present opinion leaves anything to the statutes, so far as Italians in the Fascist period are concerned. Certainly there was in all cases a call to the army. Certainly most of the men called were less than twenty-one years old. Certainly if they reenlisted after unlimited discharge they did not take another oath of allegiance — one oath of allegiance is surely good until repudir ated by some word or action. And certainly there was vast public appeal for people to vote in the elections in 1946 and 1948.
I quite agree that American citizenship is a precious possession and ought not to be withdrawn lightly. But precious possessions ought to be cherished manifestly, even protected, by the possessors thereof. Moreover this citizenship is a hard-bought heritage; it is not a free gift of some inexhaustible and indestructible supplier of gifts. Those *251who have it ought to regard and treat it with care. I think we are not too callous if we view with a skeptical eye the claims of a person who lives from childhood to middle manhood in a foreign country, swears allegiance to it, fights in a war for it, raises a family there, votes in its elections, repeatedly asserts his citizenship in it — and all without once asserting, or claiming, or seeking to preserve his American citizenship. I think he owes his American citizenship at least some slight semblance of a duty.
I think that on this record the findings of the trial court were not clearly erroneous, and I would not write a new rule in this regard for expatriation cases. I find myself in agreement on the point with the Second,10 the Ninth,11 and the Tenth12 Circuits.
. The 1907 Act is at 34 Stat. 1228. The 1940 statute is Section 401 of an Act of Oct. 34-, 1940, 54 Stat. 1168, which was codified as 8 U.S.C. § 801. This section was superseded by an Act of June 27, 1952, 66 Stat. 267, and is now codified as 8 U.S.C. § 1481(a).
. The cases to which reference is made in this opinion are cited in the court’s opinion and need not be discussed in detail here.
. Mackenzie v. Hare, 1915, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297; Savorgnan v. United States, 1950, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287.
. Acheson v. Wohlmuth, 1952, 90 U.S. App.D.C. 375, 196 E.2d 866, certiorari denied, 1952, 344 U.S. 833, 73 S.Ct. 40, 97 L.Ed. 648; Biseeglia v. Acheson, 1952, 91 Ü.S.App.D.C. 1, 196 F.2d 865.
. Alata v. Dulles, D.C.Cir.1955, 95 U.S. App.D.C. 182, 221 F.2d 52.
. Bauer v. Clark, 7 Cir., 1947, 161 F.2d 397, certiorari denied, 1947, 332 U.S. 839, 68 S.Ct. 210, 92 L.Ed. 411; Lehmann v. Acheson, 3 Cir., 1953, 206 F.2d 592.
. E. g., Pandolfo v. Acheson, 2 Cir., 1953, 202 F.2d 38.
. Alata v. Dulles, supra.
. Acheson v. Maeuza, D.C.Cir.1953, 92 U. S.App.D.C. 85, 202 F.2d 453; Augello v. Dulles, 2 Cir., 1955, 220 F.2d 344; Alata v Dulles, supra.
, Pandolfo v. Acheson, supra note 7.
. Lew Wall Fook v. Brownell, 1955, 218 F.2d 924; Attorney General of United States v. Ricketts, 1947, 165 F.2d 393.
. Zimmer v. Acheson, 1951, 191 F.2d 209.