Harbor case, 3 Peters, 99, and expressly declared in Shanks v. Dupont, 3 Peters, 242.

The Court of Appeals of Kentucky held, however, otherwise, as late as 1839. It declared expatriation a practical and fundamental American doctrine, and that, in the absence of a 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. 9 Dana, 172. So in the case of Jackson v. Burns, Chief Justice Tilghman declared that it was not compatible with the Constitution of Pennsylvania, that a man cannot divest himself of his allegiance. 3 Bin., 85; and the same principle seems to be admitted in the case of Fish v. Stoughton, where it was decided that a naturalized citizen must change his domicil, as well as take an oath of allegiance to a foreign government, to render himself an alien. 2 Johnson's cases, 407. Also in the case of Santissima Trinidad, 7 Wheaton, 348.

Jefferson seems to have fully recognized the right of self-expatriation. As early as 1779, he prepared an act which passed the Virginia Legislature, in which it is denominated the "natural right of all men." See Jefferson's Works, vol. i., p. 80-Autobiography. It provided as follows:

"And, in order to preserve to the citizens of this Commonwealth, that natural right which all men have of relinquishing the country in which birth or other accident may have thrown them, and seeking subsistence and happiness wheresoever they may be able or hope to find them; and to declare unequivocally what circumstances shall be deemed evidence of an intention in any citizen to exercise that right: it is enacted and declared, that when soever any citizen of this Commonwealth shall, by word of mouth, in the presence of the court of the county wherein he resides, or of the general court, or by deed in writing under his hand and seal, executed in the presence of three wit nesses, and by them proved, in either of the said courts, openly declare to the same court that he relinquishes the character of the citizens, and shall depart the Commonwealth, such person shall be considered as having exercised his natural right of expatriating himself and shall be deemed no citizen of this Commonwealth from the time of his departure." Hennin's Statute at Large, vol. x., p. 129.

While Secretary of State under the administration of Washington, Mr. Jefferson, in communicating the conduct of Mr. Genet, the French Minister, to Gouverneur Morris, United States Minister at Paris, holds this language on the subject of expatriation:

"It has been pretended, indeed, that the engagement of a citizen in an enterprise of this nature was a divestment of the character of citizen, and a transfer of jurisdiction over him to another sovereign. Our citizens are certainly free to divest themselves of that character by immigration, and other acts manifesting their intention, and may then become the subjects of another power, and free to do whatever the subjects of that power may do. But the laws do not admit that the bare commission of a crime amounts of itself to a divestment of the character of citizen, and withdraws the cri

minal from their coercion. They would never prescribe an illegal act among the legal modes by which a citizen might disfranchise himself; nor render treason, for instance, innocent, by giving it the force of a dissolution of the obligations of the criminal to his country. Accordingly, in the case of Henfield, a citizen of these States, charged with having engaged, in the port of Charleston, in an enterprise against nations at peace with us, and with having joined in the actual commission of hostilities, the Attorney General of the United States, in an official opinion, declared that the act with which he was charged was punishable by law. The same thing has been unanimously declared by two of the Circuit courts of the United States, as you will see in the charges of Chief Justice Jay, delivered at Richmond, and Judge Wilson, delivered at Philadelphia, both of which are herewith sent." See American State Papers, vol i., p. 169.

So Edmund Randolph, who succeeded Mr. Jefferson in the State Department, in reply to a communication of Mr. Fauchet, the French Minister, expressed himself thus:

"I cannot doubt that Captain Talbot has taken an oath to the French republic; and, at the same time, I acknowledge my belief that no law of any of the States prohibits expatriation. But it is obvious that, to prevent frauds, some rules and ceremonies are necessary for its government. It then becomes a question, which is also an affair of the judiciary, whether those rules and ceremonies have been complied with. Should he prove to be a French citizen, he ought and will be acquitted. Should he prove an American citizen, he will be amenable to the laws." See American State Papers, vol. i.

A case presenting the question, how far a naturalized citizen of the United States, on his return to the country of his origin, could claim the interposition of the American Legation to protect him against the performance of the duties imposed on him as a native subject, by the sovereign whose allegiance he had renounced, occurred in 1840, during Mr. Wheaton's residence at Berlin. To the application of a naturalized citizen of the United States, who had been required to perform military duty in Prussia, of which he was a native, he replied: "Had you remained in the United States, or visited any other foreign country (except Prussia) on your lawful business, you would have been protected by the American authorities at home and abroad, in the enjoyment of all your rights and privileges as a naturalized citizen of the United States. But having returned to the country of your birth, your native domicil and national character revert (so long as you remain in the Prussian dominions), and you are bound in all respects to obey the laws, exactly as if you had never immigrated." Wheaton's International Law.

Mr. Marcy, in his reply to Chevalier Hulsemann, the Austrian Minister's demand of the U. S. Government to disavow the acts of the American agents in the Kosta affair, and claim for satisfaction, says:

--

There is great diversity and much confusion of opinion as to the nature and obliga tions of allegiance. By some it is held to be an indestructible political tie, and though resulting from the mere accident of birth, yet forever binding the subject to the sovereign; by others it is considered a political connection in the nature of a civil contract, dissol

uble by mutual consent, but not so at the option of either party. The sounder and more prevalent doctrine, however, is, that the citizen or subject, having faithfully performed the past and present duties resulting from his relation to the sovereign power, may at any time release himself from the obligation of allegiance, freely quit the land of his birth and adoption, seek through all countries a home, and select any where that which offers him the fairest prospect of happiness for himself and his posterity. When the sovereign power, wheresoever it may be placed, does not answer the ends for which it is bestowed, when it is not exerted for the general welfare of the people, or has become oppressive to individuals, this right to withdraw rests on as firm a basis, and is similar in principle to the right which legitimates resistance to tyranny.

The conflicting laws on the subject of allegiance are of a municipal character, and have no controlling operation beyond the territorial limits of the countries enacting them. All uncertainty as well as confusion on this subject is avoided by giving due consideration to the fact, that the parties to the question now under consideration are two independent nations, and that neither has the right to appeal to its own municipal laws for the rules to settle the matter in dispute, which occurred within the jurisdiction of a third independent power.

Neither Austrian decrees nor American laws can be properly invoked for aid or direction in this case, but international law furnishes the rules for a correct decision, and by the light from this source shed upon the transaction at Smyrna are its true features to be discerned.

But the protection which this country affords to naturalized citizens or those who are clothed with its nationality, does not extend to defend them against the authorites of their own country, in cases of their voluntary return to it. In a letter of Secretary Marcy to Mr. Jackson, Chargé d'Affaires at Vienna, on the 10th of January, 1854, that gentleman says:

"I have carefully examined your despatches relating to the case of Simon Towsig, and regret to find that it is one which will not authorize a more effective interference than that which you have already made in his behalf. It is true, he left this country with a passport issued from this department; but as he was neither a native born nor naturalized citizen, he was not entitled to it." See Wheaton's International Law, p. 136.

An absence from one's country with intention to return, cannot be construed to be expatriation, nor even an avowed intent of expatriation, and renunciation of allegiance, unless one become a subject of a foreign State. 3 Dallas, 133. Nor where one sails from his country for iniquitous purposes. It cannot be asserted to cover fraud, or to justify a crime. lbid.

1

CHAPTER XVI.

NATURALIZATION LAW OF 1790.

AN examination of the history of Congressional legislation, on the subject of the naturalization laws, must satisfy every one that the statesmen of the Revolution did not entertain the idea that aliens had an absolute right to participate in the highest prerogatives of the government, but acted upon the subject as a matter of expediency, and treated it as a privilege conferred. Their action was characterized by great deliberation and caution; and, in this respect, their successors in Congress, until 1824, seem to have emulated their example. From the passage of the first act, in 1790, down to 1824, there has been a uniform and constant advance, in the demands of the laws passed by Congress on the subject, upon those on whom they authorized the privilege of citizenship to he conferred. The same cannot, however, be said, with equal truth, of the legislation since 1824.

During the consideration of the bill to establish an uniform rule of naturalization, in 1790, there was a long and animated discussion in the House of Representatives, in which the views of most of the leading members were elicited and made known on the subject, as will be seen by reference to the published Annals of Congress, vol. i., 1146 to 1165. The discussion arose on a motion made by Thomas Tudor Tucker, of South Carolina, to permit aliens to hold lands without having resided any definite period in the country, though he accompanied his motion with the declaration, that "he had no objection to extending the term, entitling them to hold an office under government, to three years." At a subsequent period of the debate, he again took occasion to declare that he "had no object in making his motion, but to enable the people to hold lands, who came from abroad to settle in the United States ;" and he went on to express his views, as to residence being made a qualification for admission to citizenship, as follows:

"As to the privilege of being elected to office, he was of opinion, the term of three or four years was a term sufficiently short to acquire it in; it was a much easier method of obtaining citizenship, than was practiced by other nations: neither would he object to any precaution being introduced into the bill, that had a tendency to prevent the admission of bad men; if such precaution could be devised, consistent with their constitutional power, and could be carried into safe and easy execution."

Thomas Hartley, of Pennsylvania, said:

"He had no doubt of the policy of admitting aliens to the right of citizenship; but

he thought some security for their fidelity and allegiance was requisite besides the bare oath; that is, he thought an actual residence of such a length of time as would give a man an opportunity of esteeming the government from knowing its intrinsic value, was essentially necessary to assure us of a man's becoming a good citizen. The prac tice of almost every State in the Union countenanced a regulation of this nature; and perhaps it was owing to a wish of this kind that the States had consented to give this power to the General Government. The terms of citizenship are made too cheap in some parts of the Union; to say that a man shall be admitted to all the privileges of a citizen, without any residence at all, is what can hardly be expected."

Roger Sherman, of Connecticut, who was one of the framers of the Federal Constitution, said:

“He presumed it was intended by the Convention, who framed the Constitution, that Congress should have the power of naturalization, in order to prevent particular States receiving citizens, and forcing them upon others who would not have received them in any other manner. It was therefore meant to guard against an improper mode of naturalization, rather than foreigners should be received upon easier terms than those adopted by the several States."

James Madison, of Virginia, also one of the framers of the Constitution, and who was foremost among those in favor of liberal legislation for citizens of foreign birth, frankly said, "when we are considering the advantages that may result from an easy mode of naturalization, we ought also to consider the cautions necessary to guard against abuses." He concluded his remarks as follows:

"I should be exceedingly sorry, sir, that our rule of naturalization excluded a single person of good fame that really meant to incorporate himself into our society; on the other hand, I do not wish that any man should acquire the privilege, but such as would be a real addition to the wealth or strength of the United States. It may be a question of some nicety, how far we can make our law to admit an alien to the right of citizenship, step by step; but there is no doubt we may, and ought to require residence as an essential."

James Jackson, of Georgia, was not only in favor of a long residence, but anxious to guard against the admission of improper persons. He said:

"He conceived the present subject to be of high importance to the respectability and character of the American name; the veneration he had for, and the attachment he had to this country, made him extremely anxious to preserve its good fame from injury. He hoped to see the title of a citizen of America as highly venerated and respected as a citizen of old Rome. I am clearly of opinion, that rather than have the common class of vagrants, paupers, and other outcasts of Europe, that we had better be as we are, and trust to the natural increase of our population for inhabitants. If the motion made by the gentleman from South Carolina should obtain, such people will find an easy admission indeed to the rights of citizenship; much too easy for the interests of the people of America. Nay, sir, the terms required by the bill on the table are in my mind too easy I think before a man is admitted to enjoy the high and inestimable privilege of a citizen of America, that something more than a mere residence among us is necessary.