In the case of Corfield v. Coryell, Judge Washington, in considering the question, what are the privileges and immunities in the several States, said he had no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental, which belong of right to the citizens of all free governments, and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign; and of these fundamental principles, he enumerated such as, the right of protection by the government, the enjoyment of life and liberty, to acquire and possess property, to pursue and obtain happiness and safety, to pass through or reside in any other State, to institute and maintain actions, to be exempt from higher taxes than are imposed upon others, enjoy the elective franchise, &c.; but he at the same time decided that these immunities do not apply to every right, and that there are some rights which belong exclusively to resident citizens, under the laws of the State. 4 Wash. C. C. Rep., 381. See also case of Buckner v. Finley, 2 Peters, 586. Aliens, too, have certain privileges conferred upon them by the respective State authorities in which they reside, but they are civil privileges, dictated by a just and a liberal policy, and of a strictly local character. No foreigner, unless duly naturalized, according to the laws of Congress, is entitled to any other privileges than those which the laws of the State in which he resides allow to him; and no other State is bound to admit, nor would the United States admit, to him any privileges to which he is not entitled by treaty, the laws of nations, or the laws of the United States, or the State in which he dwells. 2 Kent, 71.

In the case of Lynch v. Clarke, 1 Sandford, ch. Rep., 584, the doctrine relative to the distinction between aliens and citizens in the jurisprudence of the United States was ably discussed, and it was adjudged that the subject of alienage, under our national compact, was a national subject, and the law which prevailed on this subject in all the United States, became the common law of the United States when the union of the States was consummated. According to this governing principle, all those born within the jurisdiction and allegiance of the United States, without any regard or reference to the political condition or allegiance of their parents, except the children of ambassadors, are natives. The right of citizenship, as distinguished from alienage, is a national right, character or condition, and does not pertain to the individual States, separately considered. The question is of national, and not individual sovereignty, and is governed by the principles of the common law which prevail in the United States, and became under the Constitution, to a limited extent, a system of national jurisprudence. It was accordingly held in that case, that the complainant, who was born in New York, of alien parents, during their temporary sojourn there, and returned while

an infant, being the first year of her birth, with their parents to their native country, and always resided there afterwards, was a citizen of the United States by birth. This was the principle of the English common law in respect to all persons born within the king's allegiance, and was the law of the colonies, and became the law of each and all of the States when the Declaration of Independence was made, and continued so until the establishment of the Constitution of the United States, when the whole exclusive jurisdiction of this subject of citizenship passed to the United States, and the same principle has there remained. Kent., vol. ii., 39.

In the case of The State v. Hunt, in South Carolina, in 1835, (2 Hills, 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.

The question as to the right of citizens of the United States to expatriate themselves, has been a subject of much embarrassment to the courts, and has been very fully discussed in Talbot v. Jansen, 3 Dallas, 133; case of Isaac Williams, 2 Cranch, 82 (note); and The Charming Betty, 2 Cranch, 64; Santissima Trinidad, 7 Wheaton, 283; United States v. Gillies, 1 Peters, C. C. R., 161; 3 Peters, 99, 242; United States v. Williams, 4 Hall's L. Journal, and 9 Mass. Rep., 461. From a historical review of the principal discussions in the federal courts on this subject, Chancellor Kent arrives at the conclusion, that 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 in the case, the rule of the English common law remains unaltered. 2 Kent, 48. This was admitted to be the rule in the Sailor's Snug

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 whensoever 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 witnesses, 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 obligations 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.