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OF ALIENS AND NATIVES.
We are next to consider the rights and duties of citizens in their domestic relations, as distinguished from the abso lute rights of individuals, of which we have already treated. Most of these relations are derived from the law of nature, and they are familiar to the institutions of every country, and consist of husband and wife, parent and child, guardian and ward, and master and servant. To these may be added, an examination of certain artificial persons created by law, under the well known name of corporations. There is a still more general division of the inhabitants of every country, under the comprehensive title of aliens and natives, and to the consideration of them our attention will be directed in the present lecture.
(1.) Natives are all persons born within the jurisdiction of the United States. If they were resident citizens at the time of the declaration of independence, though born elscwhere, and deliberately yielded to it an express or implied sanction, they became parties to it, and are to be considered as natives; their social tie being coeval with the existence of the nation. If a person was born here before our independence, and before that period voluntarily withdrew into other parts of the British dominions, and never returned; yet, it has been held, that bis allegiance accrued to the state in which he was born, as the lawful successor of the king; and that he was to be considered a subject by birth. It was admitted, that this claim of the state to the allegi
a Ainslie v. Martin, 9 Mass. Rep. 454..
ance of all persons born within its territories prior to our revolution, might subject those persons who adhere to their former sovereign, to great inconveniences in time of war, when two opposing sovereigns might claim their allegiance; and, under the peculiar circumstances of the case, it was, undoubtedly, a very strong application of the common law doctrine of natural and perpetual allegiance by birth. The inference to be drawn from the discussions in the case of M'Ilvaine v. Coxe,a would seem to be in favour of the more reasonable doctrine, that no antenatus ever owed any allegiance to the United States, or to any individual state, provided he withdrew himself from this country before the establishment of our independent government, and settled under the king's allegiance in another part of his dominions, and never afterwards, prior to the treaty of peace, returned and settled here. The United States did not exist as an independent government until 1776; and it may well be doubted whether the doctrine of allegiance by birth be applicable to the case of persons who did not reside here when the revolution took place, and did not, therefore, either by election or tacit asseut, become members of the newly created state. The ground of the decision in the latter case was, that the party in question was not only born in New-Jersey, but remained there as an inhabitant until the 4th of October, 1776, when the legislature of that state asserted the right of sovereignty, and the claim of allegiance over all persons then ahiding within its jurisdiction. By remaining there after the declaration of independence, and after that statute, the party had determined his right of election to withdraw, and had, by his presumed consent, become a member of the new government, and was, consequently, entitled to protection, and bound to allegiance. The doctrine in the case of Respublica v. Chapman,b goes also to deny the claim of allegiance, in the case of a person who, though born here, were not here, and assenting to our
a 2 Cranch, 280. 4 Ibid. 209:
1 Dallas, 53.
new governments, when they were first instituted. The language of that case was, that allegiance could only attach upon those persons who were then inhabitants. When an old government is dissolved, and a new one formed, "all the writers agree," said Ch. J. M'Kean, "that none are subjects of the adopted government who have not freely assented to it." The same principle was declared by the Supreme Court of this state, in Jackson v. White, and it was held, that though a British subject resided here as a freeholder on the 4th of July, 1776, and on the 16th of July, 1776, when the convention of this state asserted the right of sovereignty, and the claim of allegiance over all persons, was abiding here; yet that, under the eircumstances, the person in question being a British officer, and a few weeks thereafter placed on his parole, and in December, 1776, joining the British forces, was to be deemed an alien, and as having never changed his allegiance, or elected to become a party to our new government. The doctrine in the case of Ainslie v. Martin, was contrary also to what had been held by the same court in the cases of Gardner v, Ward, and Kilham v. Ward,b where it was decided, that persons born in Massachusetts before the revolution, who had withdrawn to a British province before our independence, and returned during the war, retained their citizenship; while the same persons, had they remained in the British province until after the treaty of peace, would have been British subjects, because they had chosen to continue their former allegiance, and there was but one allegiance before the revolution. This principle was asserted by the same court in the case of Phipps, and I consider it to be the true and sound law on the subject.
"It is the doctrine of the English law, that natural born subjects owe an allegiance, which is intrinsic and perpetual,
a 20 Johns. Rep. 313.
b 2 Mass. Rep. 236. 244. note.
c2 Pickering, 394. note.
and which cannot be devested 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, however, said, it had never been doubted, that a subject born, taking a commission from a foreign prince, 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.c
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 favour 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
a 1 Hale's P. C. 68. Foster's Crown Law, 7. 59. 183.
b Foster, ibid. 59.
c 1 East's P. C. 81. 1 Hawk. P. C. b. i. ch. 22. sect. 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 a contempt. It was further declared, that no foreign letters of naturalization could, in any manner, devest his natural born subjects of their allegiance, or alter their duty to their lawful sovereign.
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 plea--sure. The 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 still to be definitively settled by judicial decision.
A review of those discussions cannot be uninstructive.
In the case of Talbot v. Janson, the subject 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
a Grotius, b. 2. c. 5. s. 24. Puff. Droit des Gens, liv. 8. ch. 11. s. 2, 3. Vallel, b. 1. ch. 19. s. 218. 223, 224, 225. 1 Wyckefort L'Embass. 117. 119.
b Ne quis invitus civilate 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, c $ Dallas, 133,