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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 incontestible, if exercised in due conformity with the moral and social ebligations; 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 ir tually implies that our citizens may become subjects or a foreign power by the same means.
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 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.
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 them" observed, that admitting the inten
a Paterson, J.
tion of expatriation had been legally declared, it was neces sary 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 eivil conduct on this very interesting subject of expatria tion. Another of the judges admitted the right of individual emigration, to be recognised 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 become naturalized abroad, yet if he has not been legally discharged of his allegiance at home, it will remain, notwithstanding the party may have placed himself in difficulty, by double and conflicting claims of allegiance
The majority of the Supreme Court gave no opinion upon the question; but the inference, from the discussion, would seem to be, that a citizen could not devest himself of his allegiance, except under the sanction of a law of the United States; and that until some legislative regulations on the subject were prescribed, the rule of the common law must prevail.
In 1797, the same question was brought before the Cir
a Iredell, J.
euit Court of the United States for the district of Connec→ ticut, in the case of Isaac Williams,a and Ch. J. Elsworth ruled, that the common law of this country remained as it was before the revolution. The compact between the community and its members was, that the community should protect its members, and that the members should at all times be obedient to the laws of the community, and faithful to its defence. No member could dissolve the compact without the consent or default of the community, and there had been no consent or default on the part of the United States. No visionary writer carried the principle to the extent, that a citizen might, at any, and at all times, renounce his own, and join himself to a foreign country; and no inference of consent could be drawn from the act of the government in the naturalization of foreigners, as we did not inquire into the previous relations of the party, and if he embarrassed himself by contracting contradictory obligations, it was his own folly, or his fault.
The same subject was again brought before the Supreme Court in the case of Murray v. The Charming Betsey, in the year 1804. It was insisted, upon the argument, that the right of expatriation did exist, and was 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. court, however, in giving their opinion, avoided any deci sion 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 devest 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, Judge Washington observed, that he did not then mean to moot the question, of
a Cited in 2 Cranch, 82. note.
b 2 Cranch,
e United States v. Gillics, 1 Peters' C. C. Rep. 159.
expatriation, founded on the self-will 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. The question arose again before the Supreme Court of the United States, so late as February, 1822, in the case of The Santissima Trinidada,b 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 his country and his allegiance at his own will and pleasure, were equally removed from the truth.. Mr. Justice Story, în 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.
From this historical review of the principal discussions
a 9 Mass. Rep. 461.
b7 Wheaton, 283.
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.
There is, however, some relaxation of the old and stern 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. Schwartz, it was decided, in the Exchequer, the 13 Geo. II., that a residence in Russia gave the 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, 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. So, an American citizen may obtain a foreign domicil, which will impress upon him a national character for commercial purposes, in 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. The subject who emigrates bona fide, and procures a foreign naturalization, may entangle
a See vol. 1. p. 71.
b Comyn's Rep. 677.
c 8 Term Rep. 31. 1 Bos. & Pull. 430. S. C.
d United States v. Gillies, 1 Peters' C. C. Rep. 159. Murray v. The Schooner Charming Betsey, 2 Cranch, 64.