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de Derecho Administrativo Español, p. 360; Constitucion de la Monar-. quia Espanola, Art. 1, § 4.)
In the United States there were, prior to 1868, no laws which either expressly forbade or expressly authorized the expatriation of citizens of the United States, and it was a question which had commanded the serions consideration of the American Government, whether the English doctrine of perpetual allegiance obtained in its fullest extent in this country.
As far as the opinion of the executive branch of the Government can be ascertained from the discussions which arose, it would seem that the doctrine of perpetual allegiance was not in force in this country.
The views of that branch of the Government, in the year 1793, were thus expressed in a letter from Mr. Jefferson, then Secretary of State, to Mr. Morris : “Our citizens are certainly free to divest themselves of that character by emigrating, 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."
Again, in the year 1794, Mr. Randolph, Secretary of State, thus expressed himself relative to the alleged expatriation of one Captain Talbot: “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 gov. ernment. It then becomes a question, which is also an affair of the judiciary, whether those rules and ceremonies have been complied with." (Letter to M. Fauchet, October 28, 1797.)
General Cass, while Secretary of State, held that “the moment a foreigner becomes naturalized his allegiance to bis native country is severed forever. He experiences a new political birth; a broad and impassable line separates him from his native country.”
In a report, presented in December, 1851, by Mr. Webster, Secretary of State, in the case of John L. Thrasher, in obedience to a resolution of the House of Representatives, he says:
“There is no doubt that John L. Thrasher is a citizen of the United States by birth, nor is there any doubt that he has resided in the island of Cuba for a considerable number of vears, engaged in business transactions, sometimes as a merchant, and sometimes as the conductor of a newspaper press, although the precise period and duration of such residence are not known.
“In a letter from the governor of Cuba to Her Catholic Majesty's minister in the United States, it is stated that he has not only been a resident in Havana for a considerable time, but domiciled there by regular proceeding, and that he has in a solemn form sworn allegiance to the Spanish Crown.
" It appears that soon after the failure and breaking up of the late expedition of Narciso Lopez, in the invasion of Cuba by him and the troops under his command, Mr. Thrasher was arrested and tried for bigh treason or conspiracy against the Crown of Spain, condemned to eight years' imprisonment to hard labor, and sent to Spain in execution of that sentence.
“The first general question is as to this right of exemption from Spanish law and Spanish authority on the ground of his being a nativeborn citizen of the United States.
"The general rule of public law is, that every person of full age has a right to change his domicile, and it follows that when he removes to another place with the intention to make that place his permanent resi.
dence, or his residence for an indefinite period, it becomes instantly his place of domicile, and this is so notwithstanding he may entertain a floating intention of returning to his original residence or citizenship at some future period.
“ The Supreme Court of the United States has decided that a person who removes to a foreign country, settles himself there and engages in trade of the country, furnishes by these acts such evidence of an intention permanently to reside in that country as to stamp him with its pational character, and this undoubtedly is in full accordance with the sentiments of the most eminent writers as well as those of other high judicial tribunals on the subject. No government has carried this general presumption further than that of the United States, since it is well known that hundreds of thousands of citizens are now living in this country who have not been naturalized according to the provisions of law, nor sworn allegiance to this government, nor been domiciled among us by any regular course of proceedings. What degree of alarm would it not give to this vastly numerous class of men actually living among us as inhabitants of the United States to learn that by removing to this country they had not transferred their allegiance from the government of which they were originally subjects to this Government."
In Martin Koszta's case, a Hungarian by birth, who had on the 31st of July, 1852, made a declaration of his intention to become a citizen of the United States, and who while in Turkey on private business of a temporary character was seized, at the instigation of the consul-general of Austria, and confined in irons on board the Austrian brig-of-war the Huzar, and released on the demand of Captain Ingraham, who intimated that he should resort to force if the demand was not complied with by a certain hour, the principles which apply to allegiance and expatriation are there stated by Mr. Secretary Marcy in answer to Mr. Hülseman's demand that the President should surrender Koszta, disavow the acts of the American captain, and give satisfaction for the alleged outrage on Allstria.
“ There is great diversity and much confusion of opinion as to the na: ture 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, dissoluble by mutual consent, but not so at the option of either party. The soundet and more prevalent doctrine, however, is that the citizen or subject har ing 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 or adoption, serk through all countries a home, and select anywhere that which offers him the finest prospect of happiness for himself and posterity. When the sovereign power, wheresoever it may be placed, does not answer the ends for which it is bestowed, when it is not extended for the general welfare of the people, or has become oppressive to individuals, this right to with draw rests on as firm a basis, and is similar in principle, to the right which legitimates resistance to tyranny.”
It is said that the naturalization laws of the United States proced upon the principle that every individual has a right to change his alle giance, and such has been the language of diplomatic communications in accordance with the doctrine of publicists, that whenever a child attains his majority according to the law of his domicile or origin, he becomes free to change his nationality. In the instructions from Ir. Cass to the minister at Berlin, July 8, 1859, it is said " the right of expatriation cannot at this day be doubted or denied in the United States. The idea has been repudiated ever since the origin of our Government, that a man is bound to remain forever in the country of his birth, and that he has no right to exercise his free will, and consult his own happi. ness by selecting a new home. The most eminent writers on public law recognize the right of expatriation. This can only be contested by those who, in the nineteenth century, are still devoted to the ancient feudal law with all its oppression. The doctrine of perpetual allegiance is a relic of barbarism which has been gradually disappearing from Christendom during the last century."
The question of expatriation has been frequently discussed by the courts of the United States, and though no judicial determination has, so far as I know, ever been had, I think that a review of these discussions will show what is the opinion of those tribunals.
The question first arose in the case of Talbot vs. Janson, decided in August, 1795. Talbot, an American by birth, captured a vessel and cargo belonging to citizens of the United Netherlands, a nation at peace with the United States. Talbot claimed that he had been admitted a citizen of the French republic, had therefrom received a commission as captain, and as such had taken as prize the vessel in question as the property of subjects of the United Netherlands with whom France was at war.
The case came by appeal to the Supreme Court. In deciding it one of the judges (Iredell, J.) said : “ The first point to be considered is whether Talbot, at the time of receiving his commission, or at the time of the capture, was a French citizen. This involves the great question as to the right of expatriation, upon which so much has been said in this court. Perhaps it is not necessary it should be explicitly decided on this occasion, but I shall freely express my sentiments on the subject.
" That a man might not be a slave; that he should not be contined against his will to a particular spot because he happens to draw his first breath upon it; that he should not be compelled to continue in a society to which he is accidentally attached, when he can better his situation elsewhere, much less when he must starve in one country and may live comfortably in another, are positions which I hold as strongly as any man, and they are such as most nations in the world clearly recognize.
“ The only difference of opinion is as to the proper manner of executing this right."
The conclusion of the learned judge is, that the right of expatriation ought not to be restrained, but that it can be permitted only by an act of legislature, which, as the guardian of the public interest, is the only power that can take cognizance of the subject. It is not a natural right. As every man is entitled to claim the rights of society, he is in turn under a solemn obligation to discharge to society all his duties faithfully. If, therefore, he is in the exercise of a public trust, he cannot leave his country until he has fully discharged it. If he owes money he ought not to quit the state and carry his property with him without the consent of his creditors. Though a man may be naturalized abroad, yet, if he has not been discharged from his allegiance at home, it will remain, notwithstanding disagreeable dilemmas may be occasioned by the taking upon himself this double citizenship.
The judgment of the court was that, under the circumstances of the case, Talbot must be considered a citizen of the United States, but they gave no decided opinion upon the question of expatriation. The opinion, however, seems to have been that though the general right
of expatriation existed, it could not be exercised without the sanction of the legislature.
The point arose again in Isaac Williams's case, in the circuit court of the United States, in 1797. Williams was indicted for accepting a commission under the French government, and under the authority there. of committing acts of hostility against Great Britain. His defense was that he had expatriated himself and become a citizen of France. Upon the question of expatriation then raised, Judge Ellsworth is said to have held that the common law of this country remains the same as it was before the Revolution. The question, therefore, was to be settled by the application of two principles. « One is that all the members of a civil community are bound to each other by compact; the other is, that one of the parties to this compact cannot dissolve it by his own act." The compact is that society shall protect its members, who on their part are bound, at all times, to be obedient to it, and faithful to its defense. The necessary result is that a member cannot dissolve the compact without the consent or default of the community. The most visionary writers do not contend that a citizen may at any and at all times renounce his own and join a foreign country, and the fact that the government permits the naturalization of foreigners implies no consent on its part " that its own citizens should expatriate themselves."
The question again arose in the Supreme Court of the United States in the case of the Charming Betsey, and though the point was earnestly argued the court again avoided expressing an opinion upon it. They say, “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 a manner as may be prescribed by law, is a question which it is not necessary at present to decide.”
This was in 1804. In 1805, Judge Washington, in the case of United States vs. Gillies, heard in the circuit court at Philadelphia, said: “I do not mean to moot the question of expatriation founded in the selfwill of a citizen. It may suffice for the present to say that I must ho more enlightened on this subject than I have yet been before I can admit that a citizen of the United States can throw off his allegiance and his country with out some law authorizing him to do so. It is true a man may obtain a for eign domicile which will impress upon him a national character for COILmercial purposes, and may expose his property found upon the ocean to all the consequences of his new character, in like manner as if he well in fact a subject of the government under which he resides. But he does not on this account lose his original cbaracter, or cease to be a subject or citizen of the country where he was born, and to which his perpetual allegiance is due.”
The question was again presented to the Supreme Court of the t'nitei States in 1822, in the case of the Santissima Trinidad; but Judge Story, in delivering the opinion of the court, allows the same uncertainty to remain in respect to the solution of it. “Assuming," he says, “ for the purpose of argument, that an American citizen may, independently of any legislative act to this effect, throw off his own allegiance to be native country, as to which we give no opinion, it is perfectly clear tha this cannot be done without a bona fide change of domicile under din cumstances of good faith. It can never be asserted as a cover of fruit or as a justification for the commission of crime against the country, tif for a violation of its laws when this appears to be the intention of the act. It is unnecessary to go further into the examination of the do trine. It will be sufficient to ascertain its precise nature and limits wben it shall become the leading point of a judgment of the court."
In the case of Stoughton vs. Taylor, however, determined in the circuit court of the United States, held at New York about 1828, a more liberal view of the right of expatriation was taken.
In this case it is said, “The general evidence of expatriation is actual emigration, with other concurent acts, showing a determination and intention to transfer allegiance.
“The evidence in this case is emigration more than twelve years since, swearing allegiance to another government eight years ago, entering into its service and continuing in it uniformly from that time to this. On this evidence I cannot hesitate to say that the defendant has lost his character as a citizen of the United States ; he has abandoned his rights as such; he cannot now claim them, and cannot be called upon to perform any of the duties incident to that character. It may, perhaps, be said that the government to which he has sworn allegiance is not independent, and that the act is therefore inoperative and void. If that were so, yet the fact of emigration and the evidence of the animus manendi, the intention to remain åbroad and to abandon his citizenship here, as manifested by his oath of allegiance to another government claiming to be independent, are sufficient to sustain his expatriation. In whatever light the government to which he professes to belong may be viewed by other nations, it is independent in fact, and may forever remain so, although not recognized in form."
Finally, in 1830, in the case of Inglis vs. Trustees of Sailors' Snug Harbor, the Supreme Court of the United States say: " It cannot, I presume, be denied but that allegiance may be dissolved by the mutual consent of the Government and its citizens or subjects. The Government may release the governed from their allegiance. This is ever the British doctrine.” And in the case of Shanks vs. Dupont, decided in the same court, Judge Story, who delivered the opinion, said : “ The general doctrine is that no persons can, by any act of their own, without the consent of the Government, put of their allegiance and become aliens." Judge Thompson, who delivered a dissenting opinion, not, however, upon this point, said : “ There is not a writer who treats upon the subject who does not qualify the exercise of the right to emigrate, much more that of putting off or changing an allegiance, with so many exceptions as to time and circumstance as plainly to show that it cannot be considered as an inalienable or even perfect right. A state of war, want of inhabitants, indispensable talents, transfer of knowledge and wealth to a rival, and various other grounds are imagined by writers on public law, upon which nature may lawfully and reasonably limit and restrict the exercise of individual volition in putting off allegiance. All this shows that whenever an indi. vidual proposes to remove, a question of right or obligation arises between himself and the community, which must be decided in some mode, and that other mode is there but a reference to the positive legislation or receired principles of the society itself? It is, therefore, a subject for municipal regulation."
The cases cited comprise all which have arisen in the Supreme or other courts of the United States in which the question of expatriation has been discussed, and it will be seen that they have studiously avoided a decision of it.
The State courts, however, have not been so reticent in expressing an opinion on this question.
As early as 1813 Chief Justice Parsons, in the case of Anslie vs. Martin, said: “ This claim of the commonwealth to the allegiance of all persons born within its territories may subject some persons who, adhering to their former sovereign and residing within his dominions, are