*42

"To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a state while abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law, that during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.b

It is the doctrine of the English law, that natural born subjects owe an allegiance, which is intrinsic and perpetual, and which cannot be divested by any act of their own. In the case of Macdonald, who was tried for high treason, in 1746, before Lord Ch. J. Lee, and who, though born in England, had been educated in France, and spent his riper years there; his counsel spoke against the doctrine of natural allegiance as slavish, and repugnant to the principles of their *revolution. The court, *43 however, said, that it had never been doubted, that

a subject born, taking a commission from a foreign prince,

1776, to all the inhabitants; and that the only difficulty was, as to the time and as to the evidence of the election, so as to determine the question of allegiance and alienism. There was a reasonable time allowed for to elect to remain a subject of Great Britain, or to become a citizen of the United States. Ibid. 160.

a Vattell, b. 1, ch. 19, sec. 217; b. 3, ch. 13, sec. 199.

b Calvin's case, 7 Co. 18 a. Vaughan, Ch. J., in Craw v. Ramsey, Vaugh. Rep. 281. Dyer's Rep. 224 a. pl. 29. An alien, says Lord Coke, in Calvin's case, is a person out of the ligeance of the king. It is not extra regnum, nor extra legem, but extra ligeantiam. To make a subject born, the parents must be under the actual obedience of the king, and the place of birth be within the king's obedience, as well as within his dominions.

Story's case, Dyer's Rep. 298 b. 300 b. 1 Blacks. Com. 370, 371. 1 Hale's P. C. 68. Foster's Crown Law, 7, 59, 183.

and committing high treason, was liable to be punished as a subject for that treason. They held, that it was not in the power of any private subject to shake off his allegiance and transfer it to a foreign prince; nor was it in the power of any foreign prince, by naturalizing or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the crown." Entering into foreign service, without the consent of the sovereign, or refusing to leave such service, when required by proclamation, is held to be a misdemeanor at common law.b

It has been a question, frequently and gravely argued, both by theoretical writers, and in forensic discussions, whether the English doctrine of perpetual allegiance applies in its full extent to this country. The writers on public law have spoken rather loosely, but generally in favor of the right of a subject to emigrate, and abandon his native country, unless there be some positive restraint by law, or he is at the time in possession of a public trust, or unless his country be in distress, or in war, and stands in need of his assistance. Cicero regarded it as one of the firmest foundations of Roman *liberty, that the Roman citizen had the privilege to stay or renounce his residence in the state at pleasure.d The

*44

a Foster's Crown Law, 59.

b 1 East's P. C. 81. 1 Hawk. P. C. b. 1, ch. 22, sec. 3. On the 16th of October, 1807, the King of England declared, by proclamation, that the kingdom was menaced and endangered, and he recalled from foreign service all seamen and seafaring men, who were natural born subjects, and ordered them to withdraw themselves, and return home, on pain of being proceeded against for contempt. It was further declared, that no foreign letters of naturalization could, in any manner, divest his natural born subjects of their allegiance, or alter their duty to their lawful sovereign. c Grotius, b. 2, ch. 5, sec. 24. Puff. Droit des Gens. liv. 8, ch. 11, sec. 2, 3. Bynk Q. J. Pub. ch. 22. Vattel, b. 1, ch. 19, sec. 218, 223, 224, 225. 1 Wyckefort L'Embass. 117, 119.

a Ne quis invitus civitate mutetur: neve in civitate maneat invitus. Hæc sunt enim fundamenta firmissima nostræ libertatis, sui quemque juris et retinendi et dimittendi esse dominum. Orat. pro L. C. Balbo, ch. 13.

principle which has been declared in some of our state constitutions, that the citizens have a natural and inherent right to emigrate, goes far towards a renunciation of the doctrine of the English common law, as being repugnant to the natural liberty of mankind, provided we are to consider emigration and expatriation, as words, intended in those cases to be of synonymous import. But the allegiance of our citizens is due, not only to the local government under which they reside, but primarily to the government of the United States; and the doctrine of final and absolute expatriation requires to be defined with precision, and to be subjected to certain established limitations, before it can be admitted into our jurisprudence, as a safe and practicable principle, or laid down broadly as a wise and salutary rule of national policy. The question has been frequently discussed in the courts of the United States, but it remains to be definitely settled by judicial decision.a

A review of those discussions cannot be uninstructive.

In the treaty between the United States and Saxony in 1846, it was declared that every kind of droit d'Aubaine, droit de retraite, and droit de detraction, or tax on emigration, was abolished between the contracting parties and their subjects.

a In the case of The State v. Hunt, in South Carolina, in 1835, (2 Hill's S. C. Rep. 1,) the subject of allegiance, and to whom due under the constitution of the United States, was profoundly discussed, and it was declared by a majority of the court of appeals that the citizens owed allegiance to the United States, and subordinately to the state under which they lived that allegiance was not now used in the feudal sense, arising out of the doctrine of tenure, and that we owed allegiance or obedience to both governments, to the extent of the constitutional powers existing in each. The court held, that an oath prescribed by an act of the legislature of December, 1833, to be taken by every militia officer, that he should be faithful, and true allegiance bear to the state of South Carolina, was unconstitutional and void, as being inconsistent with the allegiance of the citizen to the federal government. The court consequently condemned the ordinance of the convention of South Carolina of November, 1832, as containing unsound and heretical doctrine, when it declared that the allegiance of the citizens was due to the state, and obedience only, and not allegiance, could be due to any other delegated power.

In the case of Talbot v. Janson, the doctrine was brought before the supreme court of the United States, in 1795. It was contended, on one side, that the abstract right of individuals to withdraw from the society of which they were members, was antecedent and superior to the law of society, and recognized by the best writers on public law, and by the usage of nations; that the law of allegiance was derived from the feudal system, by which men were chained to the soil on which they were born, and converted from free citizens, to be the vassals of a lord or superior; that this country *was colonized and settled upon the doctrine of the right of emigration; that the right was incontestable, if exercised in due conformity with the moral and social obligations; that the power assumed by the government of the United States of naturalizing aliens, by an oath of allegiance to this country, after a temporary residence, virtually implies that our citizens may become subjects of a foreign power by the same means.

*45

The counsel on the other side conceded, that birth gave no property in the man, and that upon the principles of the American government, he might leave his country when he pleased, provided it was done bona fide, and with good cause, and under the regulations prescribed by law; and that he actually took up his residence in another country, under an open and avowed declaration of his intention to settle there. This was required by the most authoritative writers on the law of nations; and Heineccius, in particular, required that the emigrant should depart with the design to expatriate, and actually join himself to another state; that though all this be done, it only proved that a man might be entitled to the right of citizenship in two countries, and proving that he had been received by one country, did not prove that his own country had surrendered him; that the locomotive right

■ 3 Dallas, 133.

finally depended upon the consent of the government; and the power of regulating emigration, was an incident to the power of regulating naturalization, and was vested exclusively in congress; and until they had prescribed the mode and terms, the character and the allegiance of the citizen continued.

*46

The judges of the supreme court felt and discovered much embarrassment in the consideration of this delicate and difficult question, and they gave no definitive opinion upon it. One of thema observed, that admitting the intention of expatriation had been legally declared, it was necessary *that it should have been carried into effect, and that the party should have actually become a subject of the foreign government; that the cause of removal must be lawful, otherwise the emigrant acts contrary to his duty; that though the legislature of a particular state should, by law, specify the lawful causes of expatriation, and prescribe the manner in which it might be effected, the emigration could only affect the local allegiance of the party, and not draw after it a renunciation of the higher allegiance due to the United States; and that an act of congress was requisite to remove doubts, and furnish a rule of civil conduct on this very interesting subject of expatriation. Another of the judges admitted the right of individual emigration to be recognized by most of the nations of the world, and that it was a right to be exercised in subordination to the public interest and safety, and ought to be under the regulation of law; that it ought not to be exercised according to a man's will and pleasure, without any restraint; that every man is entitled to claim rights and protection in society, and he is, in his turn, under a solemn obligation to discharge his duty; and no man ought to be permitted to abandon society, and leave his social and political obligations unperformed. Though a person may

a Paterson, J.

b Iredell, J.