Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Third Session of the Fortieth Congress
Mr. Adams to Mr. Seward
Sir: I have the honor to transmit a copy of the London Times of this morning, containing a communication from Mr. Vernon Harcourt, who is well known under the signature of Historicus, and also a leading article in the editorial columns on the subject of the law of expatriation. The mode in which this difficult matter is treated by both writers affords encouragement to the belief that something may be done to harmonize the rule as well here as at home into one system. In my opinion nothing is more desirable, in order to remove amicably the causes for future collision on the subject.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
WHO IS A BRITISH SUBJECT?
To the Editor of the Times:
Sir: I am unwilling, upon the strength of a telegraphic report, to animadvert upon the language attributed to the President of the United States. I shall say nothing, [Page 39] therefore, of the tone or the method in which a matter of the most supreme conser quence seems about to be introduced to our attention. Our business in any case is to understand our own situation and to take care that we, at all events, are in the right.
It is quite plain that we are about to be called upon, courteously or otherwise, to consider the principles on which we found the rights and assert the claims of British citizenship. This is a subject so complicated in the double bearing of its legal and political character that I cannot attempt, in the space I could ask at your hands, to treat it in a complete and satisfactory manner. I think, however, that I shall be able in a moderate compass to satisfy your readers that there is much in the existing condition of the question which requires mature revision and fundamental reform.
And first let us ascertain who, according to the law of England, is a natural-born British subject, owing allegiance and entitled to the protection of the British Crown.
I. Every man born within the dominions of the Crown is born within the legiance of the Crown and is a British subject, and that whether the parents are British subjects or aliens.
This was the simple doctrine of the common law. A child born of foreign parents in England was an Englishman. A child born of English parents abroad was a foreigner. (I state the matter broadly, without reference to the limitations of the statute of Edward III, which in some respects may be considered as in affirmance of the common law, and was an enabling, not a compulsory statute.) In the reign of Charles II, a special statute was passed to naturalize the children born abroad to Englishmen who had fled to foreign parts in the Commonwealth.
II. By a statute of George II, (substantially re-enacting a statute of Anne,) all children of natural-born British subjects born abroad were made natural-born subjects, (4th of George II, cap. 21, A. D. 1731:)
All children born, or which shall hereafter be born, out of the legiance of the Crown of Great Britain, whose fathers were or shall be natural-born subjects of the Crown, are hereby declared to be natural-born subjects of the Crown to all intents, constructions, and purposes whatsoever.
The quality of citizenship was carried on to the next generation by a statute of George III. The preamble is so remarkable that I think it right to call special attention to it, (13th of George III, cap. 21, A. D. 1773.) After reciting that divers naturalborn subjects of Great Britain have for lawful causes, especially for carrying on commerce, been obliged to reside abroad, the preamble proceeds: “And whereas it is equally just and expedient that the kingdom should not be deprived of such subjects, nor lose the benefit of the wealth which they have acquired, and therefore that not only the children of such natural-born subjects but their children also should continue under the allegiance of his Majesty;” then enacts that the children of fathers made British subjects by the act of George II (i. e., the grandchildren of a natural-born British father) “are hereby declared to be natural-born British subjects to all intents, constructions, and purposes whatsoever.”
Now, the character and effect of these statutes is singular in the extreme. The persons with whom they deal are persons who, but for those statutes, would be foreigners. Yet, by a municipal law of this country, with which they have nothing to do, we impose upon them, without any option on their part, a citizenship which they very possibly do not at all desire. If the statutes had been of an enabling character alone, or which conferred privileges without imposing liabilities, the thing would have been intelligible; but the words of the preamble I have cited and of the enactment forbid such an interpretation. I will put a case—of course an extreme one—to test the extent to which the English doctrine of citizenship and. allegiance is carried. Suppose the wife of a Frenchman, (who himself has never left France,) traveling in any part of the British empire, is there delivered of a child—that child, though it is conveyed the next day to France, and never revisits British soil, is forever a British subject, and by our law owes an indelible allegiance to the British Crown. But that is not all; by the statute of George II this man’s children are all likewise created natural-born British subjects, and by the statute of George III his grandchildren likewise. Thus it will be seen that the accident of a premature delivery will have created, it may be, 50 natural-born British subjects, who will have all the rights and all the liabilities of English citizenship, though they may have less than nothing in common with the interests of the English empire. Now, suppose one of these 50 grandchildren to be taken in arms in a war between France and England, and to be indicted here for treason against the Britr ish Crown. I know no means by which, in the face of these statutes, he could plead that he was not a natural-born British subject. It may be said that no such indictment would ever be preferred, and that is certainly true. But is it not a good argument against the continuance of a law that it is one which you would never venture to enforce? It may be remarked, however, that at this moment a gentleman holds his seat as a natural-born British subject in the House of Commons whose citizenship was affirmed by the decision of an election committee to rest on the very same foundation as that of the grandchildren I have supposed, So much for the quantity of British citizenship, which I think it will, on reflection, be admitted is scattered broadcast by [Page 40] our present law in a somewhat profuse and inconsiderate degree. Such citizens may well ask, “What have we to do with England?” and England may well ask, “What have I to do with such citizens?”
Now let us examine a not less important point, the quality of British citizenship. Its characteristic and distinctive principle is that of indelible and indefeasible allegiance. The doctrine is stated by Blackstone in all its breadth. But when he affirms that “it is a principle of universal law that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former,” he lays down a proposition which cannot be maintained. I fear I shall be thought by some to intrude on sacred things when I lay profane hands on the time-honored maxim, “Nemo potest exuere patriam;” but when the soundness of the doctrine is challenged, we must see if it is capable of being sustained. Now, so far from this maxim being, as Blackstone asserts, a “principle of universal law,” the principle of universal law is exactly the reverse. The doctrine of that great people who, beyond all others, had cultivated the arts of empire and perfected the science of law, is set forth in a well-known passage of Cicero:
“Ne quis invitus civitate mutetur; neve in civitate maneat invitus. Hæc sunt enim fundamenta fixmissima nostræ libertatis, sui quemque juris et retinendi at dimettendi esse dominum.”—Orat. pro Balbo, cap. 13.
How far from the truth it is that the restrictive principle which the English law has borrowed from the feudal system ever obtained among modern nations sufficiently appears from the following passage of Bynkershoek:
“Ubi ea prohibitio non est, ut non est apud plerasque Europæ gentes, subditis licebit, ut ipse quidem opinor, civitatem suam relinquere, in aliam migrare et ibi sub alio Principe militare. Si ut modo dicebam, non sit lex quæ prohibeat utique licet subditi con-ditionem exuere et civitatem ut lubet mutare. Juris publici scriptores uno ore in id consentiunt neque dissentit Grotius, apud Moschos tamen illud non licere addit ibi Grotius;. non licere etiam apud Chimnses et Anglos, earum gentium sententia est, plus semel publice testata. Et ubique licet ubi civitas non carter est.”—Q. J. P., cap. 22.
The reader will not fail to observe the covert sarcasm which is conveyed by coupling together the English and the Chinese as joint tenants of a doctrine which is said to be held by no nation where the State is not a jail.
I could, if need were, multiply authorities to any extent, from Bynkershoek down to Wheaton, to show that the maxim of indissoluble allegiance has no place in the doctrine of public law. But it is unnecessary to do so, nor no modern jurist will be found to dispute the assertion. The truth in this doctrine had its origin in a system which is obsolete, and found its application in a condition of society which has passed away. The feudal tenure, when every man held mediately of some lord, and ultimately of the king, did, in fact, convert the state into that career at which the Dutch jurist sneers. With the exception of the few persons who resided abroad for commercial objects, Englishmen in the middle ages seldom left the country for any legitimate purpose. Those who withdrew themselves from the realm were regarded as persons who sought to evade services which were due from them, and deserters from the standard to which they could at any instant be summoned. The obligations of feudal service have disappeared, and the principles which pertained to it have become antiquated. But this is not all. There has arisen a state of things in modern society to which our forefathers were strangers. That great and never-ceasing tide of emigration, in which the sons of our soil seek in other lands a fortune which the limited resources of their own country denies them, is a phenomenon for which the conceptions of the feudal law have made no provision. The consequence is that we find ourselves in the presence of political facts which are wholly irreconcilable with our legal theory. It is in vain that we proclaim the doctrine, Nemo potest exuere patriam, while year by year thousands and tens of thousands of our subjects are transferring their allegiance to other governments, and incorporating themselves in other states. These are facts which the technicality of the law may refuse to recognize, but of which an enlightened statesmanship must needs take account.
And, in fact, we have never, and do never, politically attempt to enforce the theory of our law. So long ago as the case of Æneas Macdonald, the English government shrank from carrying into execution the sentence of the law. Macdonald was a native of Great Britain, who had received his education from early infancy in France, and spent his riper years in a profitable employment in that kingdom, and had accepted a commission in the service of the French King. Having, while acting under that commission, been taken in arms—of course in a legitimate war—against the King of England, he was indicted and convicted of high treason; but he was afterwards pardoned on condition of his leaving the kingdom forever. The logical consequence of this ill-omened doctrine was the immediate cause of the unhappy war with America in 1812. In that war, acting upon this theory of citizenship, the English government threatened to punish as traitors its native subjects naturalized in the United States and taken in arms. This menace was met by the arrest of British officers as hostages, on whom the United States announced their intention to retaliate. The English [Page 41] government shrank from carrying out their threat, and these “natural-born British subjects” were afterwards included in the cartels of exchange. These are instances in which the attempts to enforce the doctrince of indissoluble allegiance has broken down, It would be easy to cite many others, and to imagine an infinitude more. Indeed, when we remember that the English law regards not only every person born in any part of the British empire, but their children and grandchildren, as British subjects, owing allegiance to the British Crown, and when we consider how considerable a fraction of the whole population of the United States occupy this situation, the results of the doctrine would be positively ludicrous if they were not imminently dangerous.
I need hardly say that in practice no English government acts upon the legal theory. In the late war in the United States, many persons sought to escape from the conscription on the plea that they were British subjects; but I believe that the English government never attempted to interpose its offices in the case of persons who had clearly exhibited their intention to adopt the nationality of the United States. If the legal theory were adhered to, it would be a curious subject of inquiry how many persons in the American armies on both sides of the late war would be liable to indictment in this country as natural-born British subjects for having taken service with a foreign belligerent.
The evil of the present state of things is that the only principle of law to which the English government can appeal is one on which it cannot in practice take its stand. To treat as British subjects all whom the law calls British subjects is simply impossible. But short of this, whom is it so to treat or not to treat? That is a question of a most embarrassing and dangerous kind, which it has to solve at its own discretion, without the guidance of any fixed principles or settled practice. In the year 1795, one of the judges of the Supreme Court of the United States, in the great case of Talbot vs. Jansen, (3 Dallas’s Reports, p. 154,) thus expressed himself:
“A statute of the United States relative to expatriation is much wanted, especially as the common law of England is, by the constitution of some of the States, expressly recognized and adopted. Besides ascertaining by positive law the manner in which expatriation may be effected, it would obviate doubts and render the subject notorious and easy of apprehension, and furnish the rule of civil conduct on a very interesting point.”
It is a singular circumstance that though 70 years have elapsed since this judgment was pronounced, America is as much as ever, and almost as much as England, without a practical doctrine on this important point. The real situation of this question in America, and the conflict which appears to exist between the judicial and executive doctrine on the subject, are too important to be dealt with now, and I must reserve the fuller discussion of them for another occasion.
But, then, it will be said, to what purpose attack the existing doctrine, unless you are prepared to indicate the principles on which it should be reformed? I entirely admit the justice of the challenge. Nor would I have stated the objections which may be urged against the present state of things, unless I thought I saw my way clearly to a better system. No one will dissent from the observation of Chancellor Kent, “that the doctrine of final and absolute expatriation requires to be defined with precision, and to be subjected to certain established limitations, before it can be admitted into our jurisprudence as a safe and practical principle, or laid down broadly as a wise and salutary rule of national policy.” This is not the place or the occasion to discuss in detail those requisite definitions and limitations. But it will not be difficult to point out the general principles by means of which the whole question might be placed on a solid and practical basis. I would found the doctrine of British citizenship, not on the feudal dogma, “Nemo potest exuere patriam,” but on the enlightened maxim of the Roman law, “Ne quis in civitate maneat invitus.” For why should we confer the privileges and impose the obligations of citizenship on those who do not desire the one or deserve the other? Is it not more consistent with the dignity of our empire as well as with the safety of our policy that we should regard, and cause others to regard, our citizenship as a privilege to be sought rather than a burden to be evaded? Nor have we far to seek for an example which may serve, if not as a precise model, at least as a most instructive lesson. In the Code Napoleon, that masterly system drawn from the fountains of the Roman law, and accommodated with rare sagacity to the conditions of modern civilization, we shall find reduced to practice a theory of citizenship exactly the reverse, and, I venture to think, one far to be preferred to our own.
In the first place, the French doctrine avoids the preposterous consequences of making citizenship dependent on the mere local accident of birth. A stranger born of foreign parents in France is not manufactured by the act of the law into an involuntary French citizen. He enjoys the capacity of citizenship if he elects on his majority to become a Frenchman, and testifies his intention to make his home in France. Thus two things must concur in the case of a foreigner born in France—a deliberate option and a permanent domicile.
The difference is not less marked when we consider the rules according to which French citizenship is forfeited. The following articles of the Code Civil sufficiently explain themselves:
[Page 42]“Art. 17. La qualité de Français se perdra, 1°, par la naturalisation acquise en pays étranger; 2°, par l’acceptation non-autorisée de fonctions publiques conférées par un gouvernement étranger; 3°, enfin, par tout établissement fait en pays étranger sans esprit de retour.
“Art. 18. Le Français qui aura perdu sa qualité” de Français pourra toujours la recouvrir en rentrant en France, avec autorisation, et en déclarant qu’il veut s’y fixer et qu’il renonce à toute distinction contraire à la loi Français.
“Art. 21. Le Français qui sans autorisation prendrait du service chez l’étranger ou s’affilierait à une corporation militaire étrangère perdra sa qualite de Français.”
The principle on which these rules are founded is simple, and, I think, sound. So far from attempting to enforce an involuntary citizenship, they declare that all acts which indicate a deliberate intention to withdraw from the state operate on the part of the subject in forfeiture of his privileges as a citizen. France disclaims all part in a citizen who withdraws himself from her political communion in favor of a foreign state. It is not the subject who casts off France, but France who casts off the subject. Here again it will be observed that deliberate domicile, and not accidental birth, is made the governing test of citizenship. France confers the great privilege of her citizenship upon those who dwell within her borders, if not in body at least in spirit; she does not seek to detain the reluctant fugitive in involuntary fetters. She does not desire to number among her sons men who, in a sense very different from that of Goldsmith—
“Still to their country turn with ceaseless pain, And drag at each remove a lengthening chain.”
This letter is already so long that I cannot venture to enlarge on details. I believe the time is arrived when this question must be dealt with in a large and enlightened spirit. I am sure that the whole matter must be reconsidered, and that when reconsidered it will be found that the whole system must be reconstructed. That reconstruction might be founded upon a few very simple principles, such as the following:
I. With respect to the acquisition of citizenship:
1. British citizenship should belong, as of course, only to persons born of British parents domiciled in the British dominions.
2. The children born to foreigners in the British dominions should, as in France, have the capacity to take up their citizenship.
3. As to descendants born abroad of English parents who are domiciled abroad, an election should be given to become citizens, to be testified by certain prescribed formalities.
II. With respect to expatriation:
1. Every British subject should be allowed to withdraw himself from the state by some formal act disclaiming his citizenship.
2. Certain acts should be defined as constituting in themselves a forfeiture of friendship, whether so disclaimed or not.
It would be necessary, of course, to make provision against a fraudulent expatriation made for the express purpose of injuring the native state, and also for the status of the expatriated citizen in case he returned to his former home. It must be quite obvious to all reflecting persons that, unless some great mischief is to happen, a definite understanding must be come to between the governments of England and America as to the political status of that vast population of English origin and of American domicile which is peopling the further shores of the Atlantic. The doctrine of the English and the American common law is wholly inadequate to solve the question. The present solution of things is irrational and intolerable. While the British law asserts the doctrine of indissoluble allegiance, the American Constitution already demands of the emigrant in the naturalization oath an abjuration of all foreign allegiance. The doctrine of a permanent double allegiance is legal fiction and a political absurdity. It is fraught with every sort of embarrassment to the governments and every species of injustice to subjects. To attempt to enforce against America the doctrine of the Norman lawyers would be a greater blunder than any committed by Lord North.
Do not let us be deterred from dealing with this matter by any notion that it would embarrass the action of the government with respect to the unlawful enterprises of the Anglo-American Fenians. The effect would be exactly the reverse. The more clearly such men are recognized as American citizens the more directly responsible the American government would be for their conduct abroad; and I need not say that for their conduct in this country foreigners are as directly amenable to our laws as native subjects. As to the question of the jury de mediatate linguæ, the practice is of doubtful expediency; it is the creation of a statute, and might be abolished by the same authority which created it.
Lord Stanley has shown himself not unwilling to approach great questions in a spirit of courageous conciliation. Depend upon it no English minister ever had a greater opportunity of removing an inexhaustible source of misunderstanding and of danger than is offered in the settlement of this question. We have an immense advantage in the discussion of this matter with America, in the fact that not only these people but their law has a common origin with our own. On this subject they have little room to [Page 43] reproach us with a doctrine which so nearly approximates to theirs. I believe that a mixed commission of English and American lawyers and statesmen would without difficulty arrive at a common basis which would place this paramount subject on a satisfactory footing. If modern civilization means anything at all, it surely means that nations should be enabled in free and friendly debate to adjust the spirit of their laws to the necessities of modern society and the accommodation of conflicting claims. In laying down by mutual agreements the principles of an international code of citizenship, the justice of which both parties would recognize, we should give to the government of both countries a firm and definite basis for their policy, to the subjects of both nations a new guarantee of their liberties, and to the world a fresh security for peace.
I am, sir, your obedient servant,
Temple, December 7.
[Editorial.]
A short paragraph in the summary of President Johnson’s message is the text of a suggestive letter on personal allegiance, which appears in another part of our impression. According to the telegraphic report, the President “urges Congress to declare that the naturalization of a foreigner as a citizen of the United States absolves the recipient from allegiance to the sovereign of his native country.” We are umvilling to believe that Mr. Johnson has recommended Congress to assume a function which is manifestly beyond its competence, or that Congress will commit itself to a declaration in this naked form. It is within the power of any national legislature to make laws for the naturalization of foreigners. The legislature of the United States is authorized to do so by an express clause of the federal Constitution, in pursuance of which it already requires aliens claiming American citizenship to declare on oath that such is their intention, and to renounce forever all foreign allegiance. So far the action of Congress has been perfectly constitutional, and consistent with the axioms of public law. It is for the United States courts, and for them alone, to decide what effect such a renunciation may have within United States territory. Their jurisdiction, however, Gan extend no further. It is for the courts of England, France, or Prussia, as the case may be, and for them alone, to decide whether an English, French, or Prussian subject can so divest himself of his nationality by the process of naturalization in America as to place him in the position of a foreigner on his return to his native country. This rule, founded alike on reason and necessity, is so well understood, and has been so emphatically asserted by American jurists, that it will hardly be questioned by Mr. Johnson or Congress. The object of the President being, as we presume, to revise those doctrines common to the jurisprudence of both countries which have hitherto governed the rights and liabilities of naturalized citizens, we may expect that our own government will be invited to join with that of the United States in establishing a hew basis for legislation on the subject.
The logical consequences of these ancient doctrines are well illustrated by our correspondent Historicus. The maxims of common law—nemo protest exure patriam—jus originis nemo muture potest—qui abjurat regnum amittit regnum, sed non regem—may be traced back to an essentially feudal conception of personal allegiance. As interpreted and extended by statutes, they go the length of including among “natural-born subjects of the Crown, to all intents and purposes whatsoever,” not only all persons born in the United Kingdom, but even the children and grandchildren of such persons, though themselves born abroad. Assuming that allegiance “for all purposes” must involve all the obligations of allegiance, it would doubtless follow that a Frenchman whose grandfather might have been accidentally born in England would be liable to a prosecution for treasop if taken in arms against England. That a natural-born subject cannot bear arms against his parent state in the event of war has, indeed, been positively laid down in a famous case, and what appears to be a monstrous, though inevitable, result of statutes passed in the last century, was actually affirmed by Lord Bacon in the reign of James I. It is, however, much easier to reduce ad absurdum this principle of indefeasible allegiance than to show that “the principle of universal law is exactly the reverse.” Even municipal law must always be construed with strict refersence to the subject of decision, and if there be such a thing as a proposition of universal law, it can only be stated with extreme qualification. Cicero may disclaim, on behalf of the Roman commonwealth, any right to retain the unwilling allegiance of subjects, and passages may be quoted to the same effect from modern publicists. We cannot, however, conclude that a Roman citizen who should have cast off the civitas and taken service under some enemy of Rome, would have been held exempt by Roman judges from the penalties of treason; nor are we aware that any great publicist has maintained (to borrow Wheaton’s language) that “a natural-born subject of one country can throw off his primitive allegiance so as to cease to be responsible for criminal acts against [Page 44] his native country.” It so happens that when Mr. Wheaton himself was resident at Berlin, he refused the protection of his government to a Prussian naturalized in America, who had been required to perform military duty in his native country. “Having returned,” he said, “to the country of your birth, your native domicile and national character revert, (so long as you remain in the Prussian domains,) and you are bound in all respects to obey the laws exactly as if you had never emigrated.” It may be said, of course, that he was bound to act according to American law, which here coincides with our own; but the fact of this coincidence having been preserved is in itself an evidence of some value. A nation created and recruited by emigration would hardly have acquiesced so long and so patiently in the English theory of allegiance, had an alternative theory of higher authority and far more favorable to American interests been known to the great expositors of her law. The United States protested, indeed, and with good reason, against the vexatious right of visitation and search claimed by this country, for there their territorial sovereignty was impugned. But it remains to be shown that on that or any other occasion they have insisted, in diplomatic negotiation, on the absolute defeasibility of citizenship.
The important question, however, is one of policy rather than of law, and we freely admit that, on grounds of policy, not to say of common sense, the argument for revision is irresistible. There are certainly hundreds of thousands, and probably millions, of citizens of the United States whom our law regards as British subjects to all intents and purposes whatsoever. No statesman can justify such an anomaly, which, it must be remembered, has two aspects. If all these Irish emigrants owe full allegiance to her Majesty, it may also be doubted, at least, whether they are not entitled to our protection against conscription; yet it would have been utterly impossible for our minister at Washington to grant them such protection during the late American war. In short, our present theory is quite untenable when any practicable strain comes to be put upon it, and, as Historicus justly contends, its maintenance may at any moment become the source of very serious embarrassment. We see, then, no good reason why the British government should decline any friendly overtures that may be made by the United States with a view to its amendment. Whether we can adopt the principle ne quis in civitate maneat invitus without some reservation is a matter that will require to be considered. The act of expatriation should at all events be deliberate and well attested, and our correspondent himself contemplates “provision against a fraudulent expatriation made for the express purpose of injuring the native state.” For offenses committed within the United Kingdom, foreigners are already amenable to British jurisdiction by virtue of what lawyers call a temporary allegiance. They can be prosecuted, therefore, under the treason-felony act for crimes committed in Ireland, without reference to their nationality, and this is, after all, the chief safeguard against Fenian designs. For security against raids organized in America we must rely mainly on the good faith of the United States government, and this makes it the more expedient that we should meet them on this point in a spirit of conciliation.