Observations to accompany memorandum on naturalization and allegiance
The practical question at the present time is, whether Great Britain shall adopt the principle of expatriation, advocated by the Government of the United States and incorporated in the recent treaty between that country and Prussia?
In order fully to understand the position occupied by the United States and Great Britain on this matter, it is necessary to consider the principles on which naturalization and expatriation are carried out by different countries.
There are five main systems of naturalization:
- By taking an oath of allegiance and obtaining a certificate, granted at the discretion of the government, as in England.
- By certificate from a court of law, granted on proving residence for a stated period and taking oath of allegiance, as in Canada.
- By residence for a stated period, and certificate from the government, without oath, as in France.
- By employment in the public service, or certificate from the government, as in Prussia.
- By residence for a stated period, renunciation of native allegiance, and by taking an oath of allegiance to adopted country, as in the United States.
Provision is also made by many countries for the exceptional naturalization of aliens, as in England, by two years’ naval service during war, and in the United States by service in the army with one year’s residence.
There are three distinct doctrines of expatriation:
1. The continental, as embodied in the Code Napoléon, by which an emigrant incurs the loss of civil rights in his native country, (“privation des droits civils par la perte de la qualité de Francais;” “perdita della cittadinanza.”) Should the emigrant return to his native country, this loss of civil rights may be accompanied by penal consequences, as in Austria, when the emigration has taken place without the permission of the government.
Looking to the circumstances under which the Code Napoleon was framed, and to the continental practice of conscription, it is obvious that expatriation, as provided for in that code, and in the laws subsequently founded on it, was intended to punish, and not to encourage, emigration.
2. The American, or theoretical. The American doctrine has varied from Mr. Wheaton’s axiom, when minister to Berlin in 1840, that native nationality reverted on return to the native land, to Mr. Cass’s in 1858, that, should a naturalized foreigner “return to his native country, he returns as an American citizen, and in no other character.”
While American politicians argue that “perpetual allegiance is a doctrine of barbarism,” no provision is made in the statutes of that country for the expatriation of Americans. This anomaly has been frequently pointed out, and was remarked upon in the recent debates in the House of Representatives, when one of the speakers urged that, before asking other countries to alter their laws, the United States should set the example by altering their own.
3. The English. Originating in the feudal idea of native and indelible allegiance to the prince of the country in which the subject was born, the English doctrine has been gradually modernized into a system of native nationality adapted to a commercial people.
It is in this latter spirit, with a view to retaining the connection between British subjects residing for mercantile purposes in foreign countries and their native land, that the statutes declaring the sons and grandsons of British subjects born abroad to be British subjects must now be regarded.
There are, therefore, two conflicting principles of expatriation; the continental, which punishes emigration by loss of civil rights, but does not necessarily admit that such emigration can free the emigrant from the obligations of his native nationality; and the American doctrine, which claims for the subjects of other countries (but does not grant by law to Americans) the right of free expatriation.
That this right is denied by most continental countries is shown by the fact that a Frenchman, whose certificate of foreign naturalization is not of three years’ date, is liable to the French conscription Russian, naturalized abroad, may be expelled from Russia; even a Prussian, under the new treaty with the United States, must reside uninterruptedly in America for five years, as well as be naturalized, before he can change his nationality. Each country hampers expatriation with such restrictions as it thinks fit, and this must probably continue to be the case so long as the present conscription laws are retained.
There does not seem any evident reason why such restrictions should be imposed by Great Britain if the principle of expatriation were adopted.
In the Prince Regent’s declaration of 1813, the necessity for maintaining the doctrine of indissoluble allegiance is based upon the right of the Crown to the services of its subjects, specially seamen, in time of war.[Page 1249]
A similar argument was urged by Lord Stowell and at the negotiations for the treaty of Ghent.
In fact, in those days, Great Britain stood toward the United States, as regards maritime conscription, much in the same position as the continental countries now stand with regard to their military conscription.
But the practice of impressment has now fallen into desuetude and is not likely ever to be revived.
The further claim to punish as traitors British, subjects found in arms against their native country, was practically abandoned when the prisoners taken in the United States service were unconditionally exchanged in 1814, without having been brought to trial as threatened.
It must be remembered that the theory of treason is the same in England and in the United States. The law of France punishes with death a Frenchman (whether naturalized abroad or not) who is taken in arms against France.
The right of impressment having been given up, and the doctrine of treason thus modified by practice, there does not now remain any claim which Great Britain need seek to maintain upon the allegiance of British subjects emigrating to foreign countries.
Moreover, the interest of the British colonies in urging the right of free expatriation is only second to that of the United States. Indeed, any privileges or rights which may be accorded to Germans, or others, becoming naturalized in the United States, and which may not be secured equally for emigrants to the colonies, more especially Canada, would offer a direct premium on emigration to the former, to the manifest disadvantage, and probably discontent, of the latter.
The importance of this view of the subject will be seen from the following statistics, taken from the census of 1861:
|Born in the United States||50,758|
|Born in Prussia, German States, and Holland||22,906|
|Born in the United States||13,641|
|Born in Germany, &c||949|
new south wales.
|Born in the Germany||5,467|
|Total population, (exclusive of aborigines)||30,059|
|Born in the Germany||2,124|
|Born in the Germany||10,418|
|Born in the Germany||8,863|
It is stated that Germany affords 7 per cent. of the immigrants to this colony.
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It is to be presumed that if treaties could be agreed upon which would be practicable in operation and acceptable to foreign nations, a corresponding alteration in the law, at all events of this country, would have to be made; and it must be a matter of consideration how such an alteration can be carried out, affecting, as it will do, the rights of property in the colonies as well as in England, and altering the whole system on which the hitherto received doctrine of British protection to British subjects resident abroad rests.
While it seems perfectly fair to expatriate a person who willfully severs his connection with his native country, care should be taken to make a distinction between persons residing temporarily abroad for commercial purposes, and compelled by local laws to take an oath of allegiance in order to carry on their trade or profession, as was formerly the case in Russia and Denmark, and persons permanently incorporating themselves and their interests in a foreign country.
Thus it would be a hardship on British merchants that a person who had taken out a burgher license to enable him to carry on a broker’s agency in Denmark, should be thereby absolutely expatriated and disabled from inheriting real property in England.[Page 1250]
Nor should a British subject be expatriated for haying worn a red waistcoat at Buenos Ayres, (see Memorandum,) or resided two years in Colombia.
The merchant shipping act of 1854 provides that no person who has taken an oath of allegiance to a foreign sovereign shall be entitled to be registered as owner of a British merchant-vessel unless he shall have subsequently taken another oath of allegiance to the British Crown.
The principle of expatriation here recognized could not be carried out without some further provisions, as it will have been already seen that an oath of allegiance is not required for naturalization in France and other countries.
The simplest plan would be to provide that a British subject naturalizing himself in a foreign country should be deemed, from the time of his being so naturalized, to be a subject or citizen of that country. The advantage of making the act of expatriation depend upon the act of naturalization would be that a record of the fact would be preserved; whereas if the expatriation is made to depend also upon domicile (as in the Prussian treaty) the difficulties of subsequently proving such uninterrupted domicile would probably be almost insuperable.
The Prussian treaty likewise contains a provision for repatriation by domicile. In Prussia this may be of importance, as it would no doubt be inconvenient to allow naturalized Prussian-Americans to return to Prussia and to claim continued exemption from the military service to which all their neighbors would be exposed.
The new Italian code enables an expatriated citizen to recover his civil rights: 1. By returning to the realm with the special permission of the government. 2. By relinquishing foreign employment. 3. By declaring before the proper civil authority of the State an intention to re-establish his domicile within the realms, and by so bona fide establishing it within a year. The son of an expatriated Italian can also recover his nationality by making a similar declaration on coming of age, either before the authorities in Italy, or before any Italian diplomatic or consular agent abroad.
Having regard to the British law of alienship, particularly as respects the right to inherit real property, there might be great difficulty in making similar provisions for the repatriation of British expatriates, especially as there is no machinery in England or the colonies for local registration for police and conscription purposes as in Italy, Prussia, and France.
A careful consideration, therefore, of this intricate subject leads to the following conclusions:
- That the time has arrived when the principle of free expatriation may be adopted, and even (in the interests of the colonies) advocated by Great Britain.
- That such expatriation should depend on the expatriate being naturalized by some legal process in a foreign country, and not on domicile; care being taken that the interests of persons resident abroad and assuming local and temporary allegiance for mercantile purposes are not injuriously affected.
- That an expatriate should become from the time of his alien naturalization absolutely an alien, subject both as regards himself and his children (whether minors at the time of his naturalization or born subsequent to it) to all the disabilities of alienship.
- That repatriation should be effected in the same manner as naturalization, i. e., the expatriate having become an alien should only recover the rights and privileges of a British subject by the same process as aliens are admitted to them.