Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Third Session of the Fortieth Congress, Part I
Mr. Moran to Mr. Seward
Sir: News reached London by the cable, on Tuesday, of the passage through both houses of Congress, in a modified form, of Mr. Banks’s bill for the protection of naturalized citizens abroad. The proceeding has been commented upon in the leading newspapers of London, and I have the honor to inclose herewith the articles upon it which appeared in the Times and Morning Post of to-day. Both journals concede the right of expatriation. The Times, it will be noticed, hints at the possible repeal of the statutes granting juries de mediatate linguœ as a simple way of getting rid of what is now regarded by many as a difficulty. That such a step will be recommended by the House of Commons commission on the question of naturalization, now sitting, is almost certain.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
[Untitled]
The passing by the two houses of Congress of the bill for the protection of naturalized American citizens abroad will not take any one by surprise. The capture, trial, and punishment of several Irishmen, who, having lived some time in America, returned for the purpose of exciting a rebellion in their native country, have naturally made some stir in the States, The foreign-born citizens are sensitive on the subject of their acquired rights, and the native-born have the ordinary patriotic feeling concerning the power of their country to defend all who belong to it. The jealousy which is always latent between nations, and which can hardly be said to be latent in the disposition of Americans towards England, has been in this case skillfully instigated by politicians. First come the Fenians themselves, whose single desire, in their action on American [Page 334] politics, is to provoke a breach with England. While they try to the utmost the forbearance of this country, while they violate the law of nations and of the Union, by projects of armed invasion devised and executed on American soil, they lose no opportunity of representing their agents as American citizens condemned by British courts on the ground that they are still British subjects, and as now undergoing punishment for acts done beyond the limits of the British empire. The Irish vote is powerful, and neither party in the republic can afford to disregard it. Political men in America have therefore acted as if they believed that the Fenian representations gave an accurate view of what has passed in Ireland. A great deal of indignation has been expressed at the supposed violation by the English government of the rights of American citizens, and both parties have taken up the matter with an appearance of earnest, furthered no doubt by the necessities of the coming election for President. In the democratic platform a paragraph is devoted to the assertion of—
“Equal rights, and protection for naturalized and native-born citizens at home and abroad, * * * and the maintenance of the rights of naturalized citizens against the absolute doctrine of immutable allegiance, and the claims of foreign powers to punish them for alleged crime committed beyond their jurisdiction.”
At the same time the republican majority in Congress pass a bill declaring that the right of expatriation is an essential principle of the government, and enacting that—
“All naturalized citizens of the United States shall be entitled to and shall receive from this government the same protection of person and property that is accorded to native-born citizens in like situation and circumstance.”
The large questions which enter into the contest between these two conflicting principles of immutable allegiance and the right of expatriation have been frequently discussed, and we do not know that anything new can be said on the subject. The conclusion to which most thinking men have come is that, whatever may be the moral tie which binds a man to the land of his birth and the institutions of his fathers, it is expedient that he should be allowed to divest himself of his allegiance when he has become actually and bona fide an inhabitant of another country. The old doctrine of permanent and hereditary allegiance might have been easily reduced to the absurd in any age by very probable instances of its results, but it is utterly untenable at the present time, when the political divisions of the world are broken up and whole populations are transferred across the ocean to new homes. The Irish and Germans in America, the Chinese in America and Australia, must be held to have merged themselves into the new communities, and it would be a foolish pedantry to maintain any other test of nationality than is involved in residence and citizenship. Indeed, this would in practice be admitted by any power. If Great Britain and the United States were unfortunately to be involved in war, no English officer would look upon an Irishman settled in the States as a traitor if he took up arms for his new country. There is nothing in the doctrine propounded by the American politicians that this country need deny or oppose. If Irishmen go to America they are at full liberty, so far as English opinion is concerned, to consider themselves Americans, to take out American passports, and to comport themselves as Americans, should they think fit to revisit these islands. If technically they are now held to be British subjects, this is because the old doctrines concerning nationality have not been overruled in a matter which in ordinary times is not of much practical importance. If it be thought right that, in consequence of the great displacements of population new principles shall be explicity declared, the British Parliament and people will in no way object. Provided the foreign citizenship is honest, and not adopted to evade some duty or to gain some privilege, this country will be disposed to recognize it readily in the case of any expatriated native of the empire.
What we deny, however, is that the law has been put in force to the practical injury of the American Irish, or that the American government has any just grounds of complaint against us in respect of the treatment of the captured conspirators. The inconvenience we should suffer by considering the American Irish as foreigners is the measure of the injury which they have received in the late trials. In the first place, the fact that a man is a foreigner makes no difference in the legal guilt of levying war against the Queen in her own dominions. If he be found in arms in Ireland, or plotting an outbreak, or committing any other treasonable act, he is equally guilty, whether he be a British subject or a foreigner; for though a foreigner, he owes temporary allegiance to the British Crown while he is on British soil. Substantially, therefore, the persons who have been convicted, whether we hold them to be Irish or Americans, have been justly dealt with; for they undoubtedly came of their free will to Ireland or England, and there endeavored to raise an insurrection against the established government. The form in which the doctrine of immutable allegiance appeared was the refusal of a jury de mediatate linguœ; for, if a prisoner could not satisfy the court that he was an American born, his claim to a mixed jury was rejected. But it must be remembered that this mode of trial is a matter of purely national regulation, and might be abolished to-morrow without giving any ground of complaint to foreign powers. The purposes for which it was instituted were probably not those by which it might be defended at the present time. It was seemingly intended in its origin rather to insure the due comprehension [Page 335] of the proceedings, than as the acknowledgment of a right attaching to foreigners, and in the case of Americans, who speak the same language as ourselves, the withholding of the privilege could inflict no real wrong. It is a very proper subject for consideration whether the mixed jury might not be abolished with advantage. It is by no means necessary as a means of doing justice to the alien prisoner; it is not granted to British subjects of a different race to Englishmen—a class who require it at least as much as aliens; and it, moreover, is always likely to produce such controversies as have arisen out of the late trials. If the mixed jury were abolished, the question as to the nationality of a Fenian leader would fall to the ground, for, whether a British subject or a foreigner, he would equally be liable to the penalties of treason, and would be equally tried by the ordinary jury. It is evident, therefore, that the maintenance of order would lose nothing by the admission of the right of expatriation, and that the law could reach as well as now any one who carried on treasonable practices within the British dominions.
The democratic politicians have protested against the alleged punishment of Fenians for acts done on American soil. On what instances they ground their charge we are not aware. The case of the Jacmel comes nearest to it; but even in that case it might be technically held that the vessel was brought by her crew within British jurisdiction. We suspect, however, that the Americans take exception to a proceeding which was perfectly justifiable on the part of the British government. The words and acts of several of the prisoners while in America were put in evidence at their trials, and sometimes constituted the principal testimony against them. But these acts were proved not as constituting the offense itself, but as showing the intention with which the prisoners came to the United Kingdom and committed other overt acts, for which acts alone they were convicted. The distinction is obvious to every lawyer, and, indeed, to every person of ordinary sense. It is perfectly legitimate as a means of showing the purpose with which a man is buying arms and powder in England or Ireland to prove that he was a member of a Fenian society in New York, and was deputed by his comrades to do what he has been actually detected in doing. Although it may be beyond the limits of natural justice for a nation to consider a hostile act, even when committed in a foreign country, to be rightly punishable by itself should the offender voluntarily come under its jurisdiction, yet we have no objection to admit the American principle. It must, however, be borne in mind that it will not protect even born foreigners, if, after conspiring against the British government in their own country, they come here to carry out their hostile designs.
[Untitled]
The question whether a natural-born subject of a state can divest himself of his allegiance to the sovereign of his native country by the process of naturalization in another state, is one which until lately failed to interest any except writers on international law. Recent events, however, have invested it with an importance, or at all events have attached to it a significance, which it is no longer possible to ignore. The Fenian conspiracy having taken its origin on the other side of the Atlantic, it followed almost in the necessity of things that several of those who were arraigned in British courts were enabled to allege with truth that at the time of the commission of the offenses with which they were charged they were naturalized citizens of the American republic, although natural-born subjects of the sovereign of this realm. Assuming such to be the case, two very material points presented themselves for consideration: first, whether the prisoners were to be considered aliens, for, if so, they were entitled, if they so desired it, to be tried by a mixed jury of natives and foreigners; and, secondly, whether they could be made amenable for overt acts of treason-felony committed out of the jurisdiction of the British tribunals. So far as the English judges were concerned, the course to be pursued was very clear. All text writers, both on our own law and on the law of nations, were unanimous in declaring that no one could divest himself of the allegiance which he owed to the sovereign of his native country, and that no political status acquired by him in a foreign state could acquit him of obligations imposed upon him at the very instant of his birth. And accordingly it was held, whenever these points were raised on behalf of English-born subjects, though naturalized Americans, that they stood in precisely the same position as if they had never left their native shores. Long, however, before Fenianism was ever thought of, the same question of international law was raised in a matter even more intimately concerning the political and personal rights of foreigners naturalized in the United States by the strict application by the European continental states of this established principle. In Prussia, for example, every citizen is obliged to devote a portion of his lifetime to the military service. Children born in Prussia, but naturalized in America, have, during temporary visits to their fatherland, been compelled to submit to this harsh law of conscription, and appeals to the American minister at Berlin have always remained without redress. [Page 336] It would be needless to multiply examples. Suffice it to say that the common consent of all nations has till recently ratified the doctrine that naturalization does not extinguish native allegiance.
The soreness created in the United States by the liability of their naturalized citizens to be enrolled as soldiers in a European army was, however, as nothing compared with the irritation caused by the alleged right of English tribunals to try them by native juries, or to make them amenable for acts of hostility towards the English government committed in America. The long-standing antipathy entertained towards the mother country was enhanced by an exercise of jurisdiction which it was not difficult for stump orators to show was intended as a direct attack on the political rights of American citizens, whilst the Irish section of the American population, for reasons still more intelligible, though equally unjust, protested against anything and everything which brought their co-patriots within the reach of the English law. Obeying a pressure which became practically irresistible, and yielding to a current of popular opinion which it would have been most impolitic to oppose, both republicans and democrats joined in demanding a revision of the existing principle of international law; and it is a significant fact that the “platforms” respectively issued at Chicago and New York by the two great parties in the republic, contain clauses specially affirming the principle that a naturalized American citizen acquires the same privileges and the same immunities from foreign interference as if he had been born in the United States. On this side of the Atlantic men also began to inquire into the grounds on which the contested principle reposed, and, viewing the vast change which has been effected in international relations by the greater facilities for intercommunication which now exist, an idea sprung up that it might with propriety be greatly modified. Notes were exchanged between the governments of the European powers and that of the United States, proposals for mutual concessions were made, and the ground was, so to speak, cleared for the amicable arrangement of an inconvenient dogma of international law.
It is under these circumstances, that both houses of the American Congress have thought proper to pass a measure which, in distinct terms, affirms that very principle which, if it is to be established at all, can only be so by the comity of nations. The preamble states that it is necessary for the maintenance of the public peace that the claims of foreign governments to the allegiance of naturalized American citizens should be promptly and finally disavowed; and it is then enacted that any direction or decision of any of the authorities of the United States denying or restricting the right of expatriation is inconsistent with the fundamental principles of the American government, and therefore void. A second clause declares that all naturalized citizens are entitled to the same protection from the government as those who are native born. A third clause provided that if any citizen was detained by a foreign government, on the allegation that naturalization did not dissolve his native allegiance, the President should be empowered to arrest any subject of such power in the United States; but it was subsequently struck out. Now, it is perfectly needless to point out that no state has authority to legislate for another, and that this measure, so far as it affects to tie up the hands of foreign governments, or restrict the powers exercised by foreign judges, is absolutely void. But, knowing this, as both houses of Congress must have done, it is impossible to conceive how they could have been so blinded by the desire of conciliating the mob as to pass a bill which must have the effect of delaying that settlement of an important question which every one in Europe is desirous of seeing completed. Such a law, however inoperative, must give umbrage to foreign states, whilst on the other hand it has no redeeming merit. Great allowance must be made for American politicians on the eve of a presidential election; but, then, they on their part should have some respect for the susceptibilities of states which, though not republics, at all events claim to be considered independent.