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admitted by all the writers upon general law, but that its exercise must be accompanied by three circumstances, viz. fitness in point of time, fairness of intent, and publicity of the act. The court, however, in giving their opinion, avoided any decision of this great and litigated point, by observing, that, “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 law, is a question which it was not necessary to decide.” Afterwards, in the circuit*court of the United States at Philadelphia, a *48 Judge Washington observed, that he did not mean to moot the question of expatriation, founded on the selfwill of a citizen, because it was beside the case before the court; but that he could not admit that a citizen of the United States could throw off his allegiance to his country without some law authorizing him to do so. This was the doctrine declared also by the chief justice of Massachusetts.b The question arose again before the supreme court of the United States, in February, 1822, in the case of The Santissima Trinidad, and it was suffered to remain in the same state of uncertainty. The counsel on the one side insisted, that the party had ceased to be a citizen of the United States, and had expatriated himself, and become a citizen of Buenos Ayres, by the only means in his power, an actual residence in that country, with a declaration of his intention to that effect. The counsel on the other side admitted, that men may remove from their own country in order to better their condition, but it must be done for good cause, and without any fraudulent intent; and that the slavish principle of perpetual allegiance growing out of the feudal system, and the fanciful idea that a man was authorized to change
a United States v. Gillies, 1 Peters' C. C. Rep. 159.
his country and his allegiance at his own will and pleasure, were equally removed from the truth. Mr. Justice Story, in delivering the opinion of the court, waived the decision of the question, by observing that the court gave no opinion whether a citizen, independent of any legislative act to that effect, could throw off his own allegiance to his native country; that it was perfectly clear it could not be done without a bona fide change of domicil, under circumstances of good faith; and that it would be sufficient to ascertain the precise nature and limits of this doctrine of expatriation, when it should become a leading
point for the judgment of the court. 49* *From this historical review of the principal
discussions in the federal courts on this interesting subject in American jurisprudence, the better opinion would seem to be, that a citizen cannot renounce his allegiance to the United States without the permission of government, to be declared by law; and that, as there is no existing legislative regulation on the case, the rule of the English common law remains unaltered.a
There is, however, some relaxation of the old and stern
a This rule was admitted in Inglis v. The Trustees of the Sailor's Snug Harbor, 3 Peters U. S. Rep. 99, and expressly declared in Shanks v. Dupont, Ibid. 242, where it was held, by the supreme court of the United States, that the marriage of a feme sole with an alien produced no dissolution of her native allegiance; and that it was the general doctrine that no persons could, by any act of their own, without the consent of the government, put off their allegiance and become aliens. The court of appeals of Kentucky, in Alsberry v. Hawkins, 9 Dana's Rep. 178, so late as 1839, did indeed consider expatriation a practical and fundamental American doctrine, and that, if there be no statute regulation on the subject, a citizen may, in good faith, abjure his country, and that the assent of the government was to be presumed, and he be deemed denationalized. But from the cases already referred to, the weight of American authority is in favor of the opposite doctrine, and which is founded, as I apprehend, upon the most safe and practicable principles. The naturalization laws of the United States are however inconsistent with this general doctrine, for they require the alien who is to be naturalized to abjure his former allegiance, without requiring any evidence that his native sovereign has released it.
rule of the common law, required and admitted under the liberal influence of commerce. Though a natural born subject cannot throw off his allegiance, and is always amenable for criminal acts against his native country, yet for commercial purposes he may acquire the rights of a citizen of another country, and the place of domicil determines the character of a party as to trade. Thus, in the case of Scott v. Schawartz,b it was decided, in the exchequer, the 13 Geo. II., that a residence in Russia gave the English mariners of a Russian ship the character of Russian mariners, within the meaning of the British navigation act. And in the case of Wilson v. Marryat,e it was decided by the court of K. B., that a natural born British subject might acquire the character, and be entitled to the privileges of an American citizen, for commercial purposes.
purposes. So, an American citizen may obtain a foreign domicil, which will impress upon him a national character "for commercial purposes in *50 like manner as if he were a subject of the government under which he resided ; and yet without losing on that account his original character, or ceasing to be bound by the allegiance due to the country of his birth.d The subject who emigrates bona fide, and procures a foreign naturalization, may entangle himself in difficulties, and in a conflict of duties, as Lord Hale observed ;e but it is only in very few cases that the municipal laws would affect him. If there should be war between his parent state and the one to which he has attached himself, he must not arm himself against the parent state ; and if he be recalled by his native government, he must return, or
a See vol. i. p. 74–76.
Comyn's Rep. 677. € 8 Term. Rep. 31. i Bos. f Pull. 430, S. C.
a United States v. Gillies, 1 Peters C. C. Rep. 159. Murray v. The Schooner Charming Betsey, 2 Cranch, 64. By the original Magna Char. ta, granted by king John, art. 33, it was declared, Ut liceat unicuique exire de regno et redire salva fide Domini regis. Vide supra, p. 33.
• 1 Hale's C. C. 68.
incur the pain and penalties of a contempt. Under these disabilities, all the civilized nations of Europe adopt (each according to its own laws) the natural born subjects of other countries.
The French law will not allow a natural born subject of France to bear arms, in the time of war, in the service of a foreign power, against France; and yet, subject to that limitation, every Frenchman is free to abdicate his country.a
(2.) An alien is a person born out of the jurisdiction and allegiance of the United States. There are some exceptions, however, to this rule, by the ancient English law, as in the case of the children of public ministers abroad, (provided their wives be English women,) for they owe not even a local allegiance to any foreign power.b So, also it is said, that in every case, the children born abroad, of English parents, were capable, at common law, of inheriting as natives, if the father went and continued
abroad in the character of an Englishman, and *51 *with the approbation of the sovereign.c The
statute of 25 Edw. III. stat. 2, appears to have been made to remove doubts as to the certainty of the
a Pothier's Traité du Droit de Propriété, No. 94. Code Napoleon, No. 17, 21. Toullier, Droit civil Francais, tom. i. No. 266. By a decree of the Emperor of Austria, of March 24th, 1832, Austrian subjects, leaving the Austrian dominions without permission of the magistrates and release of Austrian citizenship, and with an intention never to return, become unlawful emigrants, and lose all their civil and political rights at home. Accepting foreign citizenship, or entering into foreign service without leave, are decisive proofs of such intention. Encyclo. Amer., tit. Emigration. This is understood to be the consequence attached by the law in France to Frenchmen entering foreign service without leave. They lose their nationality, or civil and political rights as Frenchmen. In the case of the United States v. Wyngall, 5 Hill, N. Y. Rep. 16, it was held to be lawful to en list aliens into the army of the United States, and the contract would be valid.
b Calvin's case, 7 Co. 18 a. • Hyde v. Hill, Cro. Eliz. 3. Bro. tit. Descent, pl. 47, tit. Denizen,
common law on this subject, and it declared, that children thereafter born without the ligeance of the king, whose father and mother, at the time of their birth, were natives, should be entitled to the privileges of native subjects, except the children of mothers who should pass the sea without leave of their husbands. The statute of 7 Anne, ch. 5, was to the same general effect; but the statute of 4 Geo. II. ch. 21, required only that the father should be a natural born subject at the birth of the child, and it applied to all children then born, or thereafter to be born. Under these statutes it has been held, a that to entitle a child born abroad to the rights of an English natural born subject, the father must be an English subject; and if the father be an alien, the child cannot inherit to the mother, though she was born under the king's allegiance.
The act of congress of the 14th of April, 1802, establishing a uniform rule of naturalization, affects the issue of two classes of persons: (1.) By the 4th section, it was declared, that "the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the government of the United States, may have become citizens of any one of the states, under the laws thereof, being under the age of twenty-one years, at the time of their parents being so naturalized, or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States." This provision appears to apply only to the children of persons naturalized, or specially admitted to citizenship; and there is color for the construction, that it may have been intended to be prospective, and to apply as well to the case of *persons thereafter to be natu *52 ralized, as to those who had previously been naturalized.b It applies to all the children of “persons duly
Doe v. Jones, 4 Term Rep. 300. b The provision has been since adjudged to be prospective. West v.