Sir: I have to apologize to yon for having omitted to reply at an earlier day to your communication, inclosing extract from a letter addressed to Mr. Vroom, minister of the United States in Prussia, by the Count de Montgelas, minister of Bavaria at the same court, and requesting me to consider the question of law propounded by the Count de Montgelas.
The question is, “Whether, according to the laws of the United States of America, a citizen thereof, when he desires to expatriate himself, needs to ask either from the Government of the United States, or of the State of which he is the immediate citizen, permission to emigrate; and, if so, what are the penalties of contravention of the law?”
It might suffice, perhaps, for me to say that there is no provision of law on the subject in the Constitution of the United States, or in any act of Congress; and that, therefore, a citizen of the United States, desiring to emigrate, is free to do so, without express consent of the Government of the Union; and that no law of any one of the States forbids the citizen thereof to emigrate, or imposes any penalties on him if he do so without the consent of such State.
This naked statement, however, though a substantial response to the inquiry, leaves out of view some relations of the subject, which, in deference to the possible wishes of the Count de Montgelas, it may be desirable to expose.
In the popular discussions of the United States, it is common to assume that the theory of their political organization requires, and that their laws admit, unlimited right of emigration.
This impression is partly derived from the fact that the United States, having so recently by force made themselves independent of Great Britain, ideas of right, which belong to revolutionary epochs, still predominate over those of duty, which belong to the regular action of all political society, and the importance of which grows more and more apparent with every year’s duration of the Union.
To justify the supposition of unlimited right of emigration, it is common to appeal to the provisions of the Constitution of the United States, and of its laws regulating the naturalization of foreigners. These provisions do, indeed, show that the encouragement of foreign emigration is a feature of the public policy of the United States, and suggest implication that, in the spirit of international equity, we shall concede to our own citizens a reciprocal faculty of emigration, and of foreign naturalization, involving abjuration of allegiance to the Union.
[Page 1354]Acting on these impressions, attempts have been made from time to time in the Congress of the United States to legalize the right of emigration; hut, on all such occasions, careful scrutiny has made evident the fallacy of the popular assumption, and has caused the whole subject to be left, as it now stands, as a question of our public law, unsolved in its complete ganerality—but with elements of solution, which have not failed to strike the observation of many jurists and statesmen of the United States.
To begin: it is true, as the tenor of the question of the Count de Montgelas implies he presumed might be the case, that the conditions of citizenship of the United States and of any one of the States are not identical; that is to say, it may happen that by the laws of a given State a person shall be a citizen thereof, and still not be a citizen of the United States. Nor does it follow, because he is a citizen of a given State by the very letter of its laws, that therefore he is of every or any other State. Persons may be, and in fact are, citizens of the State of Massachusetts, that is, invested with all the rights, political and municipal, which its institutions can bestow, without being citizens of the State of Virginia, or of the United States. But the distinctions which exist in this respect are not very important in international relations; and so far as they are anywise material they will come up incidentally in considering the duties and the rights of citizens of the United States.
Neither in the Constitution nor in the laws of the United States is there any definition of citizenship. The Constitution, which is the organic law of the Union, confines the exercise of all the great functions of state to citizens, and some of these functions to natural citizens; and it empowers Congress to enact laws of naturalization. Such laws have been enacted, and provide in effect that any free white alien, after five years’ residence in the country, and two years’ intermediate declaration of intention to become a citizen, may become such on his making proof of good character, and abjuring, in certain prescribed forms, all foreign allegiance, and taking oath of allegiance to the United States. And many ordinary municipal rights are, by other laws, capable of being enjoyed by citizens alone: such as the ownership of merchant-ships, the command and in part the manning of such ships, and the purchase of public lands by preemption.
To this may be added, that in many of the States the right to own land within the same is by their laws restricted to citizens of the United States. But I repeat, citizenship, whether acquired by birth or by naturalization, is not a thing specifically defined in its elements, either by the Constitution or by the laws of the Union.
Nor is there in the Constitution or laws of the United States any general provision to define how the rights of citizenship may be lost, or its duties be made to cease, whether by one’s own act or by that of the Government.
And in the codes of the States there is occasional confusion of thought, arising from the want of proper attention to the difference between the enjoyment of mere civil rights, the right of suffrage, and the right of citizenship as a political status of persons, independent of their sex, age, or condition. Thus women, minors, and some other persons, do not possess the right of suffrage in any of the States, although citizens of the United States, and it is possessed in some of the States by persons who are not citizens of the United States.
As to citizenship and its termination, though we do not find them defined by any law of the Union, still we may gather the prevailing thought of the nation on the subject, by inspecting the legislation of some of the States.
In truth, we must divide the people of the United States into two classes: those in the full enjoyment of all the rights of citizenship, and those deprived of some or all of those rights; and then we must distinguish between such of the inhabitants of the country as are citizens, and such as are subjects only, and whether capable or not of becoming citizens, yet not so at the present time. I allude, in the latter case, to the Indians who, in some of the States, are the subjects of the State in which they exist, but who are in general subjects of the United States; and to the Africans, or persons of African descent, who, being mostly of servile condition, are of course not citizens but subjects, in reference as well to the respective States in which they reside as to the United States.
In the sequel of these remarks it will be seen that the distinction between citizens mid subjects in the United States is material to the just appreciation of the question of the right of emigration in its domestic relations, and still more in its foreign relations, and especially as admonitory of candid consideration of the laws regulating emigration, which exist in some of the countries of Europe.
These are prefatory considerations. I proceed now to state how far limitations of the right of emigration are imposed in fact by the laws either of the Union or of individual States.
The Union, as already explained, has not as yet undertaken to formalize any general law, either of citizenship or of emigration. One of the States, Virginia, has done this; and its express legislation on the subject, though imperfect, is quite suggestive, and leads directly to important reflections.
[Page 1355]The code of Virginia contains the following provisions:
“All free white persons horn in this State, all free white persons born in any other State of this Union, who may be or become residents of this State, all aliens being free white persons naturalized under the laws of the United States, who may be or become residents of the State; all persons who have obtained a right to citizenship under former laws, and all children, wherever born, whose father, or if he be dead, whose mother shall be a citizen of this State at the time of the birth of such children, shall be deemed citizens of this State.
- “2. Whensoever any citizen of this State, by deed in writing, executed in the presence of and subscribed by two witnesses, and by them proved in the court of the county or corporation where he resides, or by open verbal declaration made in such court and entered of record, shall declare that he relinquishes the character of a citizen of this State, and shall depart out of the same; such person shall, from the time of such departure, be considered as having exercised his right of expatriation, so far as regards this State, and shall thenceforth be deemed no citizen thereof.
- “3. When any citizen of this State, being twenty-one years of age, shall reside elsewhere, and in good faith become the citizen of some other State of this Union, or the citizen or subject of a foreign state or sovereign, he shall not, while the citizen of another State, or the citizen or subject of a foreign state or sovereign, be deemed a citizen of this State.
- “4. No such act of becoming the citizen or subject of a foreign state or sovereign, and no act under the second section shall have any effect if done while this State or the United States shall be at war with any other foreign power.” (Revised Code, tit. ii.)
Without stopping to comment on the conditions of citizenship here laid down, let us attend to the conditions of its relinquishment. These are two, namely: 1. Solemn declaration of intention to emigrate, with actual emigration. 2. Residence elsewhere, that is, actual emigration from the State, and the assumption in good faith of citizenship in some other State of the Union, or of allegiance to a foreign state or sovereign.
Bat the rights thus defined are of the change of citizenship, which involves emigration; not of pure emigration. The law does not comprehend the case of subjects of the State.
And the rights accorded are with significant restriction: they cannot be exercised in time of war. That is, the legislator, while nominally admitting the general rights of citizens to emigrate, reflected that it would not answer to leave the right without such limitation, at least, as to deprive the citizen of the power to abstract himself from the public service in certain emergencies by emigration, or under the same emergencies to shelter acts of treason under pretenses of emigration.
Thus, in the very act of legalizing emigration, the State of Virginia declares expressly that the right is, in its judgment, subject to the paramount rights of the State.
How could it be otherwise? If the state owes protection to the citizen, does not the citizen owe service to the state? Above all, in a republican country, in which the state is but the congregation of the citizens, are not the interests of all bound up together into a unity of common interest, so that rights are but correlative to obligations? The assumption of the unlimited right of emigration would make of the inhabitants of a country a mere collection of individuals each pursuing blindly his own passionate or narrow view of his apparent personal interests, instead of an organized political society combining individual right with public power, and maintaining the true rights of individuals as well against individual wrong-doers as foreign foes, by means of the aggregate force of the state. But of this more hereafter.
To return to the actual laws of Virginia. These, in formalizing the right of emigration, impose restrictions upon it, and thus recognize the public right of restriction.
But other restrictions of the right are found in the laws of the same State.
A citizen of Virginia, it is clear, does not effectually cast off any private obligations of his, whether relating to person or property, by pretense of emigration. He may, it is true, be sheltered by the foreign jurisdiction, and thus enabled to evade legal obligations existing in the State of Virginia; but those obligations do not the less continue in force within that State until discharged by its laws. This doctrine comprehends citizens of that State a fortiori its subject.
But the more material question is of the obligations of citizens to the State itself. And here, the proposition is a general one; thus, a citizen of the State of Virginia cannot, by emigration, discharge himself of any obligation to the State, the nonperformance of which involves by its laws any penal consequence. If he leave the State under any such circumstances, though under pretense of expatriation, he is a fugitive from justice, not a lawful emigrant; the State will demand his extradition from the State to which he assumes to emigrate, and obtain it, in virtue of an express provision of the Constitution of the United States; and the State will itself deliver up, on demand, any such person undertaking to emigrate to it from any other State. (Code, tit. x, ch. 17, § 8–16.)
The State of Kentucky imitated the State of Virginia in this respect, repeating in [Page 1356] substance, and almost in the same words, the enactment of the latter as well as to citizenship as expatriation.
No other State of the Union has, so far as my observation extends, attempted to solve these interesting questions by express legislation.
The constitution of the State of Pennsylvania declares that “emigration from the State shall not be prohibited,” (art. ix, § 25.) The same provision is contained in the constitution of the State of Indiana, and, it may be, of some other States. But this declaration is to be taken subject to all the qualifications which have been exhibited in discussing the institutions of the States of Virginia and Kentucky.
The nature of these qualifications may be illustrated further, by supposing the militia of the State of Pennsylvania or of Indiana to be in the field. If a discontented soldier in the ranks undertakes to escape his duties by professed emigration, will that profession be admitted by the State? Undoubtedly not. It will reply that desertion cannot be covered up under the cloak of emigration; in a word, that emigration or expatriation cannot shelter a criminal act, and is of necessity subject to conditions of the service of the State.
If we pass now to the legislation of the United States we shall encounter a series of provisions which confirm the conclusions already drawn from the legislation of the States, involving the general doctrine that a citizen of the United States cannot, of right, discharge himself by emigration from subsisting obligations, either private ones or to the Union.
In the first place, the Federal Government recognizes the general doctrine that a citizen or subject cannot, by pretense of expatriation, relieve himself from any existing penal liability to the Union, or to any one of its States. It provides by the Constitution and by laws for the extradition of fugitives from service or crime as between the States respectively; and it provides, by numerous treaties and by laws for the extradition of fugitives from justice as between the United States and foreign governments.
Nor, in the second place, can it be doubted that the same doctrine may be applied in the United States to some cases in which the act of expatriation is itself, in motive as in fact, an evasion of duties to the state. Thus, we should not be prepared to admit that a soldier in the Army, or a seaman in the Navy, can, by pretense of expatriation, relieve himself from the charge of desertion; or an officer of the Army or Navy on the same pretense anticipate and escape a charge of treason involved in the very act of expatriation.
To the contrary of this, we have the case reported of one Elijah Clark, who was tried and sentenced as a spy during the last war between the United States and Great Britain, although he had professedly emigrated to Canada. (Breckenridge’s Miscellanies, p. 409.)
For there is unanimity of opinion among jurists and statesmen alike, that expatriation, even if admitted of general right, must not involve any collateral violation of law or of duty to the State or to fellow-citizens. “The laws do not admit,” says Mr. Jefferson, “that the bare commission of crime amounts, of itself, to a divestment of the character of citizen, and withdraws the criminal from their coercion.” (Letter to Mr. Morris, August 16. 1793. American State Papers, Foreign Relations, vol. 1, p. 169.)
This remark of Mr. Jefferson’s is the more significant, inasmuch as he applied it to the very case of alleged emigration as the cover of acts in violation of the neutrality of the United States.
But here debate opens. The Government of the United States commenced with successful revolution; it was organized on the hypothesis of allowing the largest range to individual volition compatible with public safety; the people of the United States are composed of emigrants from Europe, most of whom expatriated themselves in order to escape from oppression, or, if you please, legal impediments to personal action, in the countries of their birth—and many of whom were the actors and the victims of revolutions or of civil wars. Thus it happens that the sympathies of the people of the United States, and to a certain degree their laws, tend to admit full freedom of expatriation, under all circumstances, where the inducement is political opinion or action.
Accordingly, the United States, while readily entering into treaty stipulations with foreign governments for the reciprocal extradition of persons accused of mere municipal offenses, have never conceded, and, of course, never asked the extradition of persons accused of political offenses, or other acts in derogation of mere allegiance.
Meanwhile, in matters akin to this in principle, though apparently distinct, the legislators and the courts of the United States have exhibited much uncertainty of opinion, consequent on the popular assumption of a theory of unlimited right of emigration, and the undeniable difficulty of reconciling that theory to some of the exigencies of public security and peace.
For the preservation of the neutrality of the United States, we have enacted laws which forbid foreign recruitments in the country, or the equipment of expeditions [Page 1357] therein, by land or sea, for the purpose of hostilities against any government with which the United States are at peace. These enactments proceed on the sound hypothesis that the right of war belongs only to States, not to individuals. These enactments also recognize the fact that no country can permit its inhabitants to make war on the inhabitants of another country, without giving just umbrage to the latter, violating the principles of natural justice and of international law, and thus in the end super-inducing war between the two governments. Nothing can be plainer than the position that the body-politic should determine the question of peace or war through its appointed agents, legislative or executive. And no government, which respects its own dignity, or desires to maintain its independence and sovereignty, will suffer unauthorized individuals to wield at will this the highest of all the political functions of a state.
The remarks of Mr. Jefferson are pertinent and conclusive on this point. In a dispatch of his already quoted, he says:
* * * “If one citizen has a right to go to war of his own authority, every citizen has the same. If every citizen has that right, then the nation (which is composed of all its citizens) has a right to go to war by the authority of its individual citizens. But this is not true, either on the general principles of society or by our Constitution, which gives that power to Congress alone, and not to the citizens individually. Then the first position was not true, and no citizen has a right to go to war of his own authority; and for what he does without right he ought to be punished.
“Indeed nothing can be more obviously absurd than to say all the citizens may be at war, and yet the nation at peace.” ( Ubi supra, p. 161.)
Of course, laws of this description are just in themselves and conformable to reason; and, as such, have been constantly maintained by the United States.
In this condition of the law, a case of prize, in Which one of the questions was whether the capture was invalidated by reason of the cruiser having been fitted out in the United States, in violation of law, came up for adjudication in the Supreme Court of the United States; and, as incidental to this question, there was elaborate discussion at the bar, of the right of expatriation, induced by the fact that the commander of the cruiser assumed, as preparation for that command, to have renounced his allegiance to the United States. (Talbot vs. Janson, iii Dallas’s Rep., p. 383.)
It clearly appeared in the case that the cruiser was armed and fitted out in fraud of the law; and for that reason the prize was restored to her owners. Two of the judges, Chief Justice Rutledge and Justice Wilson, rested on this point, with but brief allusion to the question of expatriation; but the other three spoke of this in terms not to be mistaken.
Justice Patterson made the significant remark, “It is an obvious principle, that an act of illegality can never be construed into an act of emigration or expatriation. At that rate treason and emigration, or treason and expatriation would, in certain cases, be synonymous terms.”
To which he added the query, “Can that emigration be legal and justifiable which commits or endangers the neutrality, peace, or safety of the nation of which the emigrant is a member?”
Justice Cashing calls attention to the necessity of proving the bona fides of an alleged act of expatriation; which is the more essential in the case of persons who engage in illegal military enterprises under the guise of emigration, and who do not, in purpose or fact, renounce their allegiance to their native government, and do not hesitate to claim its protection when they become involved in difficulties by reason of their illegal undertaking.
But Justice Iredell entered fully into the general merits of the subject, as follows: “That a man ought not to be a slave; that he should not be confined, against his will, to a particular spot, because he happened to draw his first breath upon it; that he should not be compelled to continue in a society to which he is accidentally attached, when he can better his situation elsewhere, much less when he must starve in one country, and may live comfortably in another, are positions which I hold as strongly as any man, and they are such as most nations in the world appear clearly to recognize.
“The only difference of opinion is as to the proper manner of executing this right.
“Some hold that it is a natural, unalienable right in each individual; that it is a right upon which no act of legislation can lawfully be exercised, inasmuch as a legislature might impose dangerous restraints upon it; and, of course, it must be left to every man’s will and pleasure to go off, when, and in what manner, he pleases.
“This opinion is deserving of more deference, because it appears to have the sanction of the constitution of the State, (Pennsylvania,) if not of some other States in the Union.
“I must, however, presume to differ from it, for the following reasons:
- “1. It is not the exercise of a natural right in which the individual is to be considered as alone concerned. As every man is entitled to claim rights in society, which it is the duty of the society to protect, he in his turn is under a solemn obligation to discharge all those duties faithfully which he owes as a citizen to the society of which he is a member, and, as a man, to the several members of the society, individually [Page 1358] with whom he is associated. Therefore, if he has been in the exercise of any public trust, for which he has not fully accounted, he ought not to leave the society until he has accounted for it. If he owes money he ought not to quit the country and carry all his property with him, without leave of his creditors. Many other cases might be put, showing the importance of the public having some hold of him until he has fairly performed all those duties which remain unperformed, before he can honestly abandon the society forever. But, it is said, his ceasing to be a citizen does not deprive the: public, or any individual of it, of remedies in these respects. Yet, the right of emigration is said to carry with it the right of removing his family and effects. What hold have they of him afterward?
- “2. Some writers on the subject of expatriation say a man shall not expatriate in a time of war, so as to do a prejudice to his country. But, if it be a natural unalienable right, upon the footing of mere private will, who can say this shall not be exercised in time of war as well as in time of peace, since the individual upon that principle is to think of himself only? I therefore think, with one of the gentlemen for the defendant, that the principle goes to a state of war as well as peace, and it must involve a time of the greatest public calamity as well as the profoundest tranquillity.
- “3. The very statement of an exception in time of war shows that the writers on the law of nations, upon the subject in general, plainly mean, not that it is a right to be always exercised without the least restraint of his own will and pleasure, but that it is a reasonable and moral right, which every man ought to be allowed to exercise, with no other limitation than such as the public safety or interest requires, to which all private rights ought and must forever give way.
- “And if in any government principles of patriotism and public good ought to predominate over mere private inclination, surely they ought to do so in a republic founded on the very basis of equal rights, to be perfectly enjoyed in every instance where the public good does not require a restraint.
- “4. In some instances, even in time of war expatriation may fairly be permitted. It ought not, then, to be restrained. But who is to permit it 1 The legislature, surely, the constant guardian of the public interest where a new law is to be made or an old one dispensed with. If they may take cognizance in one instance, (as, for example, in time of war,) because the public safety may require it, why not in any other instance, where the public safety for some unknown cause may equally require it? Upon the eve of a war it may be still more important to exercise it, as we often see in case of embargoes.
- “5. The supposition that the power may be abused is of no importance if the public good require its exercise. This feverish jealousy is a passion that can never be satisfied. No man denies the propriety of the legislature having a taxative power. Suppose it should be seriously objected to, because the legislature might tax to the amount of 19s to the pound. They have the power, but does any man fear the exercise of it? A legislature must possess every power necessary to the making of laws. When constructed as ours is, there is no danger of any material abuse. But a legislature must be weak, to the extremest verge of folly, to wish to retain any man as a citizen whose heart and affections are fixed on a foreign country in preference to his own. They would naturally wish to get rid of him as soon as they could, and therefore, perhaps, the proper precaution would be to restrain acts of banishment, (if such could be at all permitted,) rather than to limit the legislative control over expatriation. But is there no danger of abuse on the other side? Have not all the contentions about expatriation in the courts arisen from a want of the exercise of this very authority? For if the legislature had prescribed a mode, every one would know whether it had or had not been pursued, and all rights, private as well as public, would be equally guarded; but upon the present doctrine no rights are secured but those of the expatriator himself. I, therefore, have no doubt that, when the question is in regard to a citizen of any country whose constitution has not prohibited the exercise of the legislative power in this instance, it not only is a proper instance in which it may be exercised, but it is the duty of the legislature to make such provision, and for my part I have always thought the Virginia assembly showed a very judicious foresight in this particular.”
It is impossible to misapprehend the general effect of the opinion expressed by Mr. Justice Iredell. It disaffirms unlimited right of expatriation. It reserves all the rights of the State in the premises. (Sergeant’s Constitutional Law, p. 319.)
Indeed, when this case first made its appearance in the admiralty court of the State of South Carolina, under all the influences of local sympathies to bias him, the judge (Bee,) in maintaining the right of expatriation and emigration, expressly adds the conditions “Where no legal prohibition exists, and no prejudice is done thereby.” (Jansen v. The Christina Magdalena, Bee’s Rep., pp. 11, 23.)
This was in the year 1794. In the year 1799 the same question recurred, but under different circumstances. Indictment was found in the proper court of the United States against a person, a natural citizen of the United States, charged with acts of hostility against a foreign government, who pleaded that he had expatriated himself, and become the subject of the belligerent state, in whose service he committed the acts of hostility. But the plea was overruled by the court, (Chief Justice Ellsworth,) [Page 1359] and the party was convicted and sentenced. (The United States v. “Williams, 2 Cranch’s Rep., p. 82, note.)
In this case the Chief Justice said, and said truly, that the political society, that is, the whole body of the citizens associated in a government, had rights as well as its individual citizens and that the latter had no rights to he enjoyed to the destruction of the whole society. He also said with truth that “The most visionary writers on this subject do not contend for the principle in the unlimited extent that a citizen may at any and at all times renounce his own and join himself to a foreign country.” These views, it is clear, are in accordance with the spirit and letter of the existing laws of the States of Virginia and Kentucky.
The opinion expressed by the Chief Justice on this occasion was much criticised at the time; but with the less reason, considering, as the facts in the case indicate, that the party assumed foreign allegiance only for the special purpose, and then returned to reclaim his ancient rights as a citizen of the United States.
No laws in any country would be capable of execution if men were allowed to oscillate thus between different allegiances, at the dictate of caprice or self-interest.
There was another act of Congress, in the execution of which questions of the same class came once again before the Supreme Court of the United States.
During the partial estrangement which occurred between the United States and the French Republic, at the close of the last century, an act of Congress was passed which for the time being prohibited all commercial intercourse with France on the part of persons resident within the United States, or under their protection; and subjected to forfeiture all vessels employed in the prohibited commerce, and belonging to persons residing in the United States, or to citizens thereof residing elsewhere. It contained other provisions in the same spirit, not material to the present question.
While such was the law a vessel was captured, and came before the courts of the United States for adjudication under circumstances which raised the question whether the owner fell within the scope of persons to whom commerce with France was prohibited.
This person was born in the State of Connecticut before it became independent of Great Britain, and thus might, perhaps, have claimed the rights of citizenship in the United States. But he went to the Danish island of Saint Bartholomew’s at an early age, married, and was domiciled there, and became a subject of Denmark.
Upon these facts, the whole question of expatriation passed in review before the Supreme Court. The court, by Chief Justice Marshall, disposed of it in these words:
“Jared Shattuck, having been born within the United States, and not being proved to have expatriated himself according to any form prescribed by law, is said to remain a citizen, entitled to the benefit and subject to the disabilities imposed upon American citizens; and, therefore, to come expressly within the description of the act which comprehends American citizens residing elsewhere.
“Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of that character, otherwise than in such manner as may be prescribed by the law, is a question which it is not necessary at present to decide. The cases cited at bar, and the arguments drawn from the general conduct of the United States on this interesting question, seem completely to establish the principle that an American citizen may acquire, in a foreign country, the commercial privileges attached to his domicile, and be exempted from the operation of an act expressed in such general terms as that now under consideration. Indeed, the very expressions of the act would seem to exclude a person under the circumstances of Jared Shattuck. He is not a person under the protection of the United States. The American citizen who goes into a foreign country, although he owes local and temporary allegiance to that country, is yet, if he performs no other act changing his condition, entitled to the protection of our Government; and if, without the violation of any municipal law, he should be oppressed unjustly, he would have a right to claim that protection; and the interposition of the American Government in his favor would be considered a justifiable interposition. But his situation is completely changed where, by his own act, he has made himself the subject of a foreign power. Although this act may not be sufficient to rescue him from punishment for any crime committed against the United States, a point not intended to be decided, yet it certainly places him out of the protection of the United States while within the territory of the sovereign to whom he has sworn allegiance, and consequently takes him out of the description of the act.
“It is, therefore, the opinion of the court, that the Charming Betsy, with her cargo, being at the time of her recapture the bona-fide property of a Danish burgher, is not forfeitable in consequence of her being employed in carrying on trade and commerce with a French island.” (Murray vs. Schooner Charming Betsy, 2 Cranch, pp. 64, 119.)
It is observable that the court carefully abstain from asserting any unlimited right of expatriation. Nor was any such right pretended among the eminent counsel, Messrs. Key, Alexander J. Dallas, and Martin, who argued the case. On the contrary, it was conceded on all hands, in the words of Mr. Dallas, “that a man cannot expatriate himself unless it be done in a fit time, with fairness of intention, and publicity of act.”
[Page 1360]At the commencement of the last war between the United States and Great Britain, this question again presented itself in two cases of great interest, where, however, the main question being of the effect of commercial domicile on the national character, the doctrine of expatriation was touched only, without being elucidated. (The Venus, 8 Cranch, p. 253; the Francis, ibid., p. 335.) In each of these cases, the party concerned was a native of Great Britain, who, after coming to the United States and being naturalized here, returned to Great Britain, and there resided at the time of the declaration of war. Laying aside all consideration, either of naturalization or of expatriation, the Supreme Court, in discussing the effect of their commercial domicile in the enemy’s country, conceded to them, for the argument’s sake, all the rights of native Americans.
Soon after this, in the question of the ownership of a vessel as bearing upon the question of domestic or foreign bottom, Mr. Justice Washington said:
“I do not mean to moot the question of expatriation, founded on the self-will of a citizen, because it is entirely beside the business before the court. It may suffice for the present to say that I must be more enlightened on this subject than I have yet been, before I can admit that a citizen of the United States can throw off his allegiance to his country without some law authorizing him to do so.” (United States vs. Gillies, 1 Peters’s C. C. Rep., p. 159, 161.)
Finally, at a later period, the same question came before the Supreme Court, and was argued by eminent counsel, including Mr. Tazewell and Mr. Webster, in exposition of a clause of the existing treaty between the United States and Spain, which prohibits the citizens or subjects of the respective contracting parties from taking commissions to cruise in private armed vessels against the other, under penalty of being considered pirates. On this occasion Justice Story, in delivering the opinion of the court, made the following observations:
“This view of the question renders it necessary to consider another, which has been discussed at the bar, respecting what is denominated the right of expatriation. It is admitted by Captain Chayton, in the most explicit manner, that, during this whole period, his wife and family have continued to reside at Baltimore; and, so far as this fact goes, it contradicts the supposition of any real change of his own domicile. Assuming, for the purposes of argument, that an American citizen may, independently of any legislative act to this effect, throw off his own allegiance to his native country—as to which we give no opinion—it is perfectly clear that this cannot be done without a bona-fide change of domicile, under circumstances of good faith. It can never be asserted as a cover for fraud, or as a justification for the commission of a crime against the country, or for a violation of its laws, when this appears to be the intention of the act. It is unnecessary to go into a further examination of this doctrine; and it will be sufficient to ascertain its precise nature and limits when it shall become the leading point of a judgment of the court.” (The Santisima Trinidad, 7 Wheaton, pp. 283, 357.)
There is one other important relation of the subject in which it has come before the Supreme Court of the United States, and that is in the discussion of questions of allegiance as bearing on the rights of property of persons who, though natives of the United States, yet left the country on its revolutionary separation from Great Britain. It is the celebrated question of the ante-nati, discussed in Calvin’s case, (7 Co. R., p. 18 b.,) and previously determined by Bracton. (De Legibus Angliæ, fol. 427 b.)
In disposing of such cases, the Supreme Court has occasionally, and at a relatively late time, referred to the question in very expressive language. Thus, in one of them, Justice Thompson assumes that “allegiance may be dissolved by the mutual consent of the Government and its citizens and subjects,” (Inglis vs. Sailors’ Snug Harbor 3 Peters’s R., pp. 99, 125;) and in another Justice Story says, “The general doctrine is, that no persons can, by any act of their own, without the consent of the Government, put off their allegiance and become aliens.” (Shanks v. Dupont, ibid., pp. 242, 247.)
Here, in so far as regards the views of the Supreme Court or its members, the matter stands; unadjudicated as decision, but not undetermined as opinion. After carefully reviewing the whole subject, Chancellor Kent pronounces the better opinion to be, that a citizen cannot renounce his allegiance to the United States’ without permission of the Government, to be declared by law. (Commentaries, vol. 2, p, 49.) It is a significant fact, at all events, that, on so many occasions when the question presented itself, not one of the judges of the Supreme Court has affirmed, while others have emphatically denied, the unlimited right of expatriation from the United States.
This exposition of the opinions on the question of the right of expatriation by the judicial authorities of the United States would be incomplete without some brief statement of what has occurred on the subject in the courts of the States.
Observations on the subject occur in sundry cases of the class already spoken of, where the main question was of land belonging to persons who were born in the United States before their separation from Great Britain, but adhered to the mother-country. As the law of England maintains the unalterable perpetuity of allegiance, and as that of England, transmitted to many of the States of the Union, denies the capacity of aliens to hold lands, the question of citizenship repeatedly came before the courts in the early years of the republic.
[Page 1361]In such a case in the State of Massachusetts, its supreme court, by Chief Justice Parsons, say:
“Protection and allegiance are reciprocal. The sovereign cannot refuse his protection to any subject, nor discharge him from his allegiance against his consent; and he will remain a subject, unless disfranchised as a punishment for some crime. So, on the other hand, he can never discharge himself from his allegiance to his sovereign, unless the protection which is due to him from the laws is unjustly denied him.” (Ainslie v. Martin, 6 Mass. R., p. 460.)
Here a most important feature of the rightfulness of the claim of society, as against the citizen, is indicated, namely, that the laws of the country afford him due protection.
In a case of the same character in the State of Pennsylvania, her supreme court, by Chief Justice Tilghman, speaks of a “principle not compatible with the constitution of Pennsylvania or her sister States; that is to say, that no man can, even for the most pressing reasons, divest himself of the allegiance under which he was born.” (Jackson v. Burns, 3 Binney’s R., pp. 75, 85.)
Allusions to the point as being yet unsettled occur in the State of Alabama, in a case where distinction between emigration and expatriation is well suggested. (Beavers v. Smith, Ala. R., N. S., vol. 11, pp. 20, 29.)
The doctrine is touched, also, in several cases involving matrimonial rights, as affected by domicile or citizenship; but without any result of importance. (See Bishop on Marriage, b. 7.)
But, of the cases in the several States, those adjudged by the courts of Virginia and Kentucky are the most important, because of the special laws of those two States on, the subject of citizenship; and these cases also possess intrinsic interest.
Controversy arose in the State of Virginia, in a matter not material to be here explained, which presented the immediate question of expatriation from the State, but involved in argument that of expatriation generally. (Murray v. McCarty, 2 Mumford’s R., p. 393.)
In this case Judge Cabell, with concurrence of his associates of the court, affirms the general right of expatriation in these words:
“Nature has given to all men the right of relinquishing the society in which birth or accident may have thrown them, and of seeking subsistence and happiness elsewhere; and it is believed that this right of emigration, or expatriation, is one of those inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity. But, although municipal laws cannot take away or destroy this great right, they may regulate the manner and prescribe the evidence of its exercise; and in the absence of these regulations, juris positivi, the right must be exercised according to the principles of general law.” (Ibid., pp. 396, 397.)
The same judge suggests reasonable doubt of the effect of that provision of the law of Virginia which requires a formal declaration of the purpose of change of citizenship. “If,” he says, “arguments drawn from the long and uniform practice of a, country are ever allowed to have any influence on a question concerning the construction of its laws, they might here be urged with much force. For, of the innumerable: emigrants from Virginia who have overspread the Southern and Western States and Territories, and filled their highest offices, it is believed that not one has ever deemed it necessary to conform to our act concerning expatriation. Are they still citizens of the State?” (Ibid., p. 399.)
And he adds expression of opinion that, “if a citizen of Virginia shall have departed out of this commonwealth with an open and avowed, fair and bona fide, intention of quitting it, and of becoming a citizen of some other State, and shall, in fact, have become a citizen thereof, that, from thenceforth, he ceased to be a citizen of Virginia, notwithstanding he may have omitted to comply with the requisites of our expatriation act.” (Ibid., p. 400.)
Judge Roane, another member of the court, dwells on the important fact of the difference between citizenship of a State and that of the United States; the consideration of which leads him to say, among other things:
“I entirely subscribe to the doctrine that the situation of America, in this particular, is new and may produce new and delicate questions; that we have sovereignties moving within sovereignties; that allegiance to a particular State is one thing, and that to the United States is another; that a renunciation of the former allegiance does not draw after it a renunciation of the latter; and that a statute of the United States on the subject of expatriation is much wanted.” (Ibid., 403.)
And the same distinction draws after it the following reflection:
“The power of expatriation, in relation to the commonwealth of Virginia, is one with which Congress had certainly nothing to do; it is not granted in the instrument of government; and it is a fundamental principle in our system that each State retains every power, jurisdiction, and right, which is not delegated to the United States by the Constitution, nor prohibited by it to the States. The power of legislation [Page 1362] on the subject of expatriation from the commonwealth of Virginia has not and ought not to have been given up by Virginia to the United States.” (Ibid., p. 405.)
As to which it may be observed that, undoubtedly, the State of Virginia may determine who is a citizen of that State, in relation to any matter of the proper jurisdiction of the State, but not in matters of the jurisdiction of the United States. The question of citizenship, for instance, as affecting the right to hold lands in the State, the State itself may decide, without interference on the part of the United States. Not so in regard to Federal citizenship.
Indeed, in one great class of cases, that of suits in the courts of the United States by the citizens of one State against the citizens of another, as provided for by the Constitution, it has been adjudged that mere simple removal to one State from another, and residence in the former, constitutes a change of citizenship in that respect within the meaning of the Constitution and the acts of Congress. (Cooper v. Gilbraith, 3 Washington’s C. C. R., p. 546; Case v. Clark, 5 Mason’s R., p. 70.) The party must of course be otherwise a citizen of the United States. (Gassies v. Ballon, 6 Peters, 761.)
Finally, the members of the court affirm, with one accord, that, conceding the right of expatriation, however regulated, its effective exercise depends on the completeness, publicity, and good faith of the assumed act of expatriation.
Views to the same effect, in substance, appear to have been entertained by the courts of the State of Kentucky. In one case, to be sure, the court merely refer to this matter as a “litigated question,” and refuse to pass upon it without necessity. (Brooks v Clay, 3 A. K. Marshall’s R., p. 545. See S. C., Shearer v. Clay, 1 Littell’s R., p. 261.) But, in a later case, the court of appeals of that State, by Chief Justice Robertson, met the great question directly, and placed it on what are, in my judgment, its true foundations.
In the first place, the court construe the law of Virginia reasonably, suggesting that the mode of expatriation prescribed by that law is very proper, but “is not, of course, the only admissible or satisfactory evidence of the fact that the admitted right has been exercised.”
In the second place, the court say:
“Whatever may be the speculative or practical doctrine of feudal governments or ages, allegiance, in these United States, whether local or national, is, in our judgment, altogether conventional, and may be repudiated by the native as well as adopted citizens, with the presumed concurrence of the Government, without its formal or express sanction. Expatriation may be considered a practical and fundamental doctrine of America. American history, American institutions, and American legislation, all recognize it. It has grown with our growth, and strengthened with our strength. The political obligations of the citizen, and the interests of the republic, may forbid a renunciation of allegiance by his mere volition or declaration, at any time, and under all circumstances. And, therefore, the Government, for the purpose of preventing abuse and securing the public welfare, may regulate the mode of expatriation. But when it has not prescribed any limitation on the right, and the citizen has in good faith abjured his country, and become a subject or citizen of a foreign nation, he should, as to his native government, be considered as denationalized, especially so far as his civil rights may be involved, and at least, so long as that government shall seem to acquiesce in his renunciation of his political rights and obligations.” (Alsberry v. Hawkins, 9 Dana’s R., p. 177.)
These are intelligent views: expatriation a general right, subject to regulation of time and circumstance according to public interests; and the requisite consent of the State presumed where not negatived by standing prohibitions.
In conclusion of this part of the subject, it seems proper to add, that the juridical authorities of the United States admit that a party may by his own act be subject to the conflicting obligations of two different allegiances. (United States v. Williams, 2 Cranch, p. 82, note; Ainslie v. Martin, 9 Massachusetts R., p. 453; Sergeant’s Constitutional Law, p. 319.)
A meritorious writer on constitutional law (Mr. Rawle) has devoted some pages to the discussion of the question. He maintains, with reason, that no such thing as absolute or indefeasible right of expatriation exists, any more than absolute or indefeasible right of allegiance; and suggests consideration of the distinction between mere emigration, involving question of domicile only, and expatriation, involving of necessity change of allegiance. (Rawle on the Constitution, ch. 9. See also Duer’s Lectures, p. 302.)
Another legal commentator has been disposed to affirm, with more absoluteness, the right of expatriation, and with perhaps insufficient regard for the contingent rights of the State. (Tucker’s Blackstone, vol. ii, pt. 2, p. 90.)
There is a small but well-written treatise on the question by Mr. Hay, elicited by the circumstances in which the second war between the United States and Great Britain originated, and which involved, among other things, extravagant assertions of the doctrine of indefeasible allegiance, as against British emigrants to the United States.
In truth, opinion in the United States has been at all times a little colored on the [Page 1363] subject by necessary opposition to the assumption of Great Britain to uphold the doctrine of indefeasible allegiance, and in terms to prohibit expatriation. Hence we have been prone to regard it hastily as a. question between kings and their subjects. It is not so. The true question is of the relation between the political society and its members, upon whatever hypothesis of right, and in whatever form of organization, that society may be constituted.
The assumption of a natural right of emigration, without possible restriction in law, can be defended only by maintaining that each individual has all possible rights against society, and the society none with respect to the individual; that there is no social organization, but a mere anarchy of elements, each wholly independent of the other, and no otherwise consociated save than by their casual co-existence in the same territory. (Ahrens, Droit Natural, p. 324.)
Accordingly through all the diversities of opinion respecting the question, the true doctrine of our law is readily distinguishable, as it appears to me, and is not in contradiction with jurisprudence, theroetical or positive, of the enlightened nations of Europe.
If we cursorily inspect the existing laws of different countries, we discern in them three aspects of the main question.
In Great Britain the professed theory and the actual law combine to prohibit expatriation in terms. (Act of 3 James I, cap. 4.) In practice, however, emigration is permitted, nay encouraged. And, on the other hand, the most striking negation of the indefeasibility of allegiance as a principle is afforded by the act of Parliament of 7 and 8 Victoria, cap. 66, which makes permanent a general provision for the naturalization of aliens in Great Britain. (See Bowyer’s Const. Law of England, p. 406.) Thus it is that the jurisprudence of England, little capable of generalization, asserts an assumed rule of public law, or denies it, according to the caprices of apparent local interest; and her diplomacy, with characteristic inconsequence and partiality of thought, upholds abroad, while it repudiates at home, the saying of the great republican jurisconsult, civitas carcer non est. (Bynkershoek, Quæst. J. Pub., lib. i., cap. 22.)
The singularity of the law of England consists in the doctrine, that, as explained by Sir William Blackstone, a natural subject cannot by any possibility or for any reason cease to be a subject, save by the permission of his liege lord. (Blackstone’s Com., vol. i, p. 369.) And this, adds Blackstone, is a “principle of universal law in support of which strange assertion he cites, not any of the great authorities of universal or public law—all of whom, as we shall presently see, maintain the contrary—but a common lawyer of his own country, namely, Sir Matthew Hale. (Pleas of the Crown, vol. i, p. 68.) And a very modern commentator on the laws of England (Mr. Anstey) adheres to the doctrine, applying to every Englishman who leaves the country the phrase of amittit regnum sed non regem. (Lectures on the Laws of England, p. 94.)
In other countries, the party emigrating contrary to law may lose the civil rights of his birthplace, and become liable to forfeitures of a local description, but without drawing upon himself the extreme consequences involved in the doctrine of the laws of England.
Thus, the Code Napoléon provides that “The quality of Frenchmen will be lost: 1, by naturalization acquired in a foreign country; 2, by the acceptance, without authority of the government, of public functions conferred by a foreign government; 3, by establishment in a foreign country without purpose of return.” (Art. 17.) It also provides the means of recovering the lost quality, except in the case of the party, bearing arms against his country. (Arts. 18, 20, 21.) There are several decrees, one of the reign of Louis XIV, and two of that of Napoleon I, which add confiscations and loss of civil rights, as the penalty of any Frenchman expatriating himself without public authority. But some doubt exists whether these decrees are now in force, and at any rate they are not so as respects the provision of confiscation; the doctrine of the general right of expatriation being maintained in France. (Dalloz, Die. Jur. voc. Droit Civil, 53.)
Spain and the Spanish American Republics contemplate and provide for voluntary expatriation. (Escriche, Die. sub. voce. Espanol, Natural.)
It is a curious fact that, at the time when Bynckershoek wrote, the governments which prohibited expatriation under penalties “were Great Britain, Russia, France, and China. (Qæst. Juris. Publ., lib. i., cap. 22.)
Then, as now, expatriation was lawful in Spain, as it now is in the Spanish American Republics. (Escriche, ubi. supra.) And the public policy of Spain has never been otherwise in this relation. (Dou, Derecho Publico, lib. i, tit. 7.)
But the most explicit and complete enactments on the subject are those of some of the States of the Germanic Confederation. I take as example the legislation of Austria and Prussia.
In each of these countries emigration is permitted by law, but regulated. In neither of them can expatriation take place legally in evasion of military duty. In both special conditions apply to the time of war. In Prussia permission to emigrate is not refused unless for prescribed causes, appertaining to military or civil obligations; in [Page 1364] Austria it may be refused at discretion. In Prussia ten years’ residence in a foreign country, with some exceptions, effects the result of expatriation; this provision is omitted in Austria. Of each system, the common and essential feature is a standing provision for emigration on application to the public authorities. (Decree of the Emperor Francis I, of March 24, 1832: Circular of King Frederick William, of December 31, 1842.)
In the United States, as we have seen, there is no provision of federal law which defines citizenship; and none which expressly forbids or expressly authorizes the expatriation of citizens of the United States.
On several occasions, when the question was before Congress, doubts were suggested whether the Federal Government has power to legislate on the subject. I cannot perceive the force of these doubts. Citizenship is a federal qualification for the tenure of office, and for the enjoyment of many other rights under the Constitution of the Union. What constitutes citizenship of the United States cannot be determined by the several States. If they were to undertake it, they would be found to differ radically and irreconcilably in the matter. If Congress cannot do it, then the Union is in the singular predicament of the constitutional impossibility of ascertaining who compose it, who may be its President, Senators, and Representatives. No such impossibility exists. When Congress enacts that only citizens of the United States are competent to do certain things, it may well proceed to say, if it choose, who the persons thus designated are, and to define them by classes or description of inclusion or exclusion. If it could not say this directly, and by systematic definition, in the way other nations do, it could say it indirectly by acts of penalty; it could say what are the circumstances of time or manner in which the act of emigration would or would not deprive an American of rights, or subject him to penalties and forfeitures. But the idea that citizenship, or the loss of it, cannot be defined by Congress, is one of the lingering prejudices of the common law, which relies upon judicial exposition to deduce general rules from particular cases, instead of laying down general rules by previous legislative survey of the subject-matter. Thus it is that Congress leaves this question to the fortuitous occurrence of some judicial contingency, in which it may be definitely disposed of by decision of the Supreme Court.
In the absence of such a decision, we are compelled to reason out a conclusion in the premises, with aid of analogies of our own or of the public law applicable thereto.
The doctrine of absolute and perpetual allegiance—the root of the denial of any right of emigration—is inadmissible in the United States. It was a matter involved in, and settled for us by, the Revolution, which founded the American Union.
Moreover, the right of expatriation, under fit circumstances of time and of manner, being expressly asserted in the legislation of several of the States, and confirmed by decisions of their courts, must be considered as thus made a part of the fundamental public law of the United States.
Most of the jurisconsults and judges who have had occasion to discuss the subject admit, as we see, either directly or indirectly, that it is a question of circumstances and conditions.
The admissibility of change of allegiance in the United States without necessary express co-operation of the foreign government, is implied by the naturalization acts, which require conditions of residence, of personal character, of publicity, and of actual abjuration of the foreign allegiance, as indispensable to the consummation of an act of expatriation.
I think, in consideration of these premises, that the omission of the federal laws to enact any express or specific restraints on expatriation is tacit or implied consent, subject only to such conditions of good faith, of discharge of subsisting obligations to the society left, and of consummated expatriation in fact, as the principles of international right require to observed.
As a question of natural right, emigration belongs to the general category of those elements of individual happiness which every citizen is entitled to pursue, but in subordination, always, to the general welfare. (Grotius, De Jure Bell, ac Pacis, lib. ii, ch. 5, No. 24; Wolff, Jus Naturæ, part vii, cap. i, s. 186, 187; Burlamaqui, Droit de la Nature, p. 2, ch. 5, s. 13; Almeda, Derecho Publico, tom, i, cap. 17.)
The society cannot absolutely take away this right, but may regulate it in such way as to reconcile the interest of the individual and of the community. (Wolff, Jus Naturæ, pars viii, cap. 3, s. 415; Vattel, Droit des Gens, liv. i, ch. 19, s. 10.)
In fine, the present state of the law of nations and of nature on this point is well stated by D. Antonio Riquelme, as follows:
“It is a recognized principle of the law of nations that all can change their primitive nationality, according to their convenience. This principle, admitted by all the world, and in virtue of which every individual may renounce the nationality which birth combined with parentage gives him, does not release him who avails himself of it of the obligations which he owes to his country; so that the citizen or subject who, without authorization of his government, accepts the nationality of a foreign state, may be called upon for the performance of the personal charges imposed upon [Page 1365] him by his primitive country in the form which the laws establish. Thus, a deserter from the military service, who becomes naturalized in the state to which he flies, though not subject to extradition without special treaty authorizing it, if, nevertheless, he come within the jurisdiction of the authorities of his primitive country, cannot be reclaimed by his new one, but remains bound to fulfill the obligations of his service. While the law of nations concedes to individuals the liberty of changing their nationality, it also empowers a state to restrict this faculty in certain circumstances, as in case of war and others, in return for the services and protection which it bestows on the citizen or subject; and; when he changes his nationality in contempt of the laws, he gives occasion for the disregard of his new nationality.” (Derecho Internacional, tom. i, p. 319.)
In the absence of general prohibition, general consent of the state is presumed. “Vel si consenu expresso ant tacito.” (Puffendorf, De Officio Hominis et Civis, lib. ii, cap. 18.) Or, in the words of Bynkershoek, “Si non sit lex quæ prohibeat, utique licet subditi conditionem exuere, et civitatem ut lubet mutare.” (Quæestiones Juris Publici, lib. i, cap. 22.)
Of course, the citizen cannot apply such implied consent to any act of pretended emigration, which is itself a violation otherwise of the law, either public or municipal, as in the case of illegal military enterprises; nor, by it, can he escape the punishment of crime or the performance of local contracts, nor appeal to it as a mask to cover desertion or treasonable aid of the public enemy. I am not prepared to say that the Tight of a citizen of the United States to expatriate himself, implied in the absence of any prohibition, may not be exercised in time of war; but, if so, it would have to be done with attendant circumstances, clearly showing good faith, in order to be justifiable; and it is not easy to see how citizenship could be transferred in time of war to the foreign enemy in such way as to escape reprehension, if the party should afterward return to the United States.
And, whether in peace and war, the expatriation would have to be an actual one, by foreign residence, and with authentic renunciation of the pre-existing citizenship. Under the circumstances and with the conditions thus indicated, and subject to such others as the public interest might seem to Congress to require to be imposed, it seems to me that the right of expatriation exists, and may be freely exercised by the citizens of the United States.
I have the honor to be, very respectfully,
Hon. William L.
Marcy,
Secretary of State.