In communicating to Congress the papers respecting the imprisonment, in Cuba, of Mr. John S. Thrasher,5 a native American, domiciled in that island, who had been condemned to eight years’ imprisonment for assisting Lopez’ expedition, Mr. Webster stated, “The first general question then is, as to his right to exemption from Spanish law and authority on the ground of his being a native-born citizen of the United States.
“The general rule of the public law is that every person of full age has a right to change his domicile; and it follows, that when he removes to another place, with the intention to make that place his permanent residence, or his residence for an indefinite period, it becomes instantly his place of domicile; and this is so notwithstanding he may entertain a floating intention of returning to his original residence or citizenship at some future period. * * * * * *
“In questions on this subject the chief point to be considered is the animus manendi, or intention of continued residence; and this must be decided by reasonable rules and the general principles of evidence.
“If it sufficiently appear that the intention of removing was to make a permanent settlement, or a residence for an indefinite time, the right of domicile is acquired by a residence even of a few days. * * * * *
“It is undoubtedly true that an American citizen who goes into a foreign country, although he owes local and temporary allegiance to that country, is yet, if lie performs no other act changing his condition, entitled to the protection of his own government; and if, without the violation of any municipal law, he should be treated unjustly, he would have a right to claim that protection. * * * * But his situation is completely changed when, by his own act, he has made himself the subject of a foreign power. * * * * * *
“But, independently of a residence with the intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance, or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and [Page 1303] may be punished for treason or other crimes, as a native-born subject might be unless his case is varied by some treaty stipulations; but this duty of obedience to the laws, arising from local and temporary allegiance, ceases, of course, the moment he transfers himself back to his original country. * * * * * * * Our citizens who resort to countries where trial by jury is not known, and who may there be charged with crime, frequently imagine, when the laws of those countries are administered in the forms customary therein, that they are deprived of rights to which they are entitled, and therefore may expect the interference of their own government. * * * * They have chosen to settle themselves in a country where jury trials are not known, where the privilege of the writ of habeas corpus is unheard of, and where judicial proceedings in criminal cases are brief and summary. Having made this election they must abide its consequences.
“No man can carry the aegis of his national American liberty into a foreign country, and expect to hold it up for his exemption from the dominion and authority of the laws, and the sovereign power of that country, unless he be authorized so to do by the virtue of treaty stipulations.”
In case of Ignacio Tolen, a native of Spain, but naturalized in the United States, Mr. Webster (June 25, 1852,) said,1 “If that government (Spain) recognizes the right of its subjects to denationalize themselves and assimilate with the citizens of other countries, the usual passport will be a sufficient safeguard to you; but if allegiance to the Crown of Spain may not legally be renounced by its subjects, you must expect to be liable to the obligations of a Spanish subject, if you voluntarily place yourself within the jurisdiction of that government.”
In 1860 a case occurred at Havana, of Sabino de Liaño, a native of Spain naturalized in the United States, being arrested as a conscript.2
In reply to the representations of the United States consul, the captain-general informed him that by a royal decree of the 17th of November, 1852, “the foreigner obtaining naturalization in Spain, as well as the Spaniard obtaining it within the territory of another power, without the knowledge and authorization of his respective government, shall not exempt himself from the obligations which were consequent to his primitive nationality, although the subject of Spain may in other respects lose the quality of Spaniard, conformably to what is prescribed in article 1 of the constitution of the monarchy.”
Eventually, the proceedings taken against Mr. Liaño were suspended, and a bond which he had entered into to provide a substitute canceled by the governor-general.3