TURKEY.

The question as to the protection of British subjects in the East does not come within the scope of this memorandum, but it would require careful attention in case any alteration of the present law of allegiance were contemplated.

The following instruction was addressed, in 1849, to Mr. Murray respecting the amount of protection to be granted, in Egypt, to aliens who had obtained letters of naturalization in England:1

"Your inquiry arises out of three questions which have been put to you by Mr. Walne, Her Majesty's consul at Cairo; and I will give answers to those questions. "The first question is, whether Greek houses in Egypt, being branches of establishments belonging to Greeks who have been naturalized in England, are entitled to protection?

"Upon this point I have to answer that those members of such houses who are not naturalized British subjects cannot claim for themselves nor for their branch house British privileges, merely because another member of the house residing elsewhere has been naturalized in England.

"The second question is, whether British protection is to be extended in Egypt to subjects of the kingdom of Greece who have obtained letters of naturalization in England and have returned to the Levant?

"The answer to this is, that, if these persons have been legally naturalized in England, they are entitled everywhere but in the kingdom of Greece to the privileges of British subjects.

"The third question is, whether Greek rayahs, resuming their residence in the Ottoman territory, after having obtained naturalization in England, are to be protected! "The answer is, that these persons cannot, within the country of their natural allegiance, that is to say, within the Ottoman Empire, claim to be considered British subjects, because natural allegiance in the country of a man's birth overrides privileges obtained by naturalization elsewhere."

In 1851 this instruction was modified as regards Mr. Cassavetti, a Greek naturalized British subject resident in London, and Her Majesty's consul-general in Egypt was instructed to afford to his branch establishments at Cairo and Alexandria the same protection as would have been afforded to the branch establishments of an English firm. A similar instruction was sent to Mr. Consul Brant in the case of Mr. Calimachi, a Greek, the agent, at Trebizond, of Mr. Mathew Schilizzi, a resident in London. 3 In 1855 like protection was extended to Messrs. Bogni and Kotti, Greek agents, at Galatz, for M. Theologo.

In 1856 Mr. P. Theologo was informed that his naturalization would not entitle him to protection in Turkey, he having been born in Broussa in Asia Minor."

In 1858 protection in Egypt was refused to Mr. Giro, a native of Lemnos; but, in the following year, it was decided that, bearing in mind the peculiar relations between Egypt and the Porte, he might properly receive British protection in Egypt, unless the Egyptian authorities objected.

In October, 1859, a question was raised as to the nationality of Mr. John Aslan, born at Cerigo, but who had not complied with the provisions of the Ionian law in order to constitute himself an Ionian citizen.

Eventually it was arranged that protection should be afforded to him until he had an opportunity of returning to the Ionian Islands and completing his naturalization

there.7

In 1861 Mr. Sophocles Theologo was informed that his agent at Galatz was not entitled to personal protection for himself or his concerns; but that the interests he represented, as the agent of a naturalized British subject resident in London, would be entitled to such protection.8

In April, 1861, an application was made for British protection on behalf of the estate of a bankrupt, Mr. Rodocanachi, a native of Scio, who had been naturalized as a British subject in 1855.9

As his certificate of naturalization contained an express exception of "any rights and capacities of a natural-born British subject out of or beyond the dominions of the British Crown and the limits thereof," (the usual clause at that date,) and Mr. Rodocanachi was at Constantinople in no danger of molestation, Her Majesty's government refused to interfere.

In the case of Themistocles George Aslan, who claimed to have his declaration of part-ownership in a British vessel registered at the Cairo consulate in 1861, it was decided that the question of Mr. Aslan's right to have his declaration of part-ownership in British vessel attested at the British consulate at Cairo depended not upon the terms of his letters of naturalization, nor upon the circumstance of his having or not having a

To Mr. C. Murray, consular, No. 13, November 17, 1849. To Mr. D. Cassavetti, February 1-51 To Mr. Brant, consular. No. 4, August 26, 1852. To Mr. Theologo, January 12, 1835, #T©M® P. Theologo, February 8, 1856. To Mr. Giro, September 7, 1858; to Mr. Muller, No. 2 February 14, 1-39. 7 To Mr. Colquhoun, consular, No. 36, December 9, 1850. To Mr. Theologo, November 11, 11 "Messrs. Wilson, Dodgshun, and Papayanni, April 2, 1861.

foreign passport, but upon the provisions of "the Merchant Shipping Act, 17 and 18 Vic., cap. 104, sec. 18." By that act persons who are naturalized by or pursuant to statute are rendered capable of being owners or part-owners of a British ship only if they "are and continue to be, during the whole period of their so being owners, first, resident in some place within Her Majesty's dominions, or second, if not so resident, members of a British factory or partners in a house actually carrying on business in the United Kingdom, or in some other place within Her Majesty's dominions." Mr. Aslan, it appeared, was not a person fulfilling the first of these conditions, but it did not appear whether he was or was not a member of a British factory, or a partner in a house actually carrying on business within Her Majesty's dominions. If he was, the application made by him to the British consul at Cairo ought to be complied with; if not, he was by law incapable of being owner or part-owner of a British ship, and the ship of which he was owner or part-owner could not be deemed to be British; in which case the consul ought not to attest his declaration.'

The clause in Mr. Aslan's letters of naturalization excepting from the grant "any rights and capacities of a natural-born British subject out of and beyond the dominions of the British Crown and the limits thereof," was intended only to prevent the person thereby naturalized from claiming, by virtue of his naturalization, as against foreign governments while within their territories, the benefit of the status of a British subject. It was not intended to be applicable to the right and capacity of the person naturalized, (provided he fulfills the requirements of the Merchant Shipping Act,) to be and continue, while locally resident beyond the limits of Her Majesty's dominions, an owner or part-owner of a British ship, and to do, while there, all acts proper to be done by him in that character. Such a right is not one of which any foreign locality can be predicated, merely because the person entitled to it may happen to be residing abroad; it is in its nature essentially a British right, its subject being a British ship having its port of registry within the dominions of the British Crown, and, if locality was to be ascribed to it at all, it must follow the port or domicile of the ship, and not the residence of the owner.

In December, 1862, Mr. Sophocles Theologo was informed "that a foreign house, having foreign interests, although connected with the English house, and being conducted by foreigners and in a foreign country, cannot claim the protection of a British consul, except in so far as the direct interests of British subjects, apart from those of foreigners, are involved."

In 1864 Sir E. Hornby was authorized to register Messrs. Cuppa as British subjects, reserving any rights of allegiance which might be preferred against them by the country of their birth.

These gentlemen were Ionians by birth, sons of an Ionian who had commanded, as a British naval officer, a scamparia or gunboat, in the war with France, and they claimed, accordingly, to be British subjects, under the act 13 Geo. II., cap. 3.3

In the case of M. Mavrogodato,1 in 1866, it was decided that “although in strictness a foreigner who is merely naturalized in Great Britain has no title to British protection abroad, the good offices of Her Majesty's representatives may as a general rule be properly extended to such persons elsewhere than in the dominions of the state to which they owe natural allegiance;" and that such claim as M. Mavrogodato might have to those good offices in the Ottoman dominions must be "subject to the determination of any question which may be raised by the Turkish government, arising out of his place of birth, and that if that question is raised M. Mavrogodato must be prepared to establish to his excellency's satisfaction that he forms one of a class of persons over whom the Porte has renounced its right of regarding them as its subjects, notwithstanding their birth in its territory."

VENEZUELA.

A question arose in 1851 whether the illegitimate children of British parents, born in Venezuela, were entitled to be registered as British subjects at Her Majesty's consulates.5

Sir John Dodson, then Queen's advocate, considered that such persons might be taken to be British subjects for the purposes of registration only, but that their claim to British nationality could not be asserted against an actual adverse claim of the Venezuelan government to treat them as natural-born citizens.

It having been pointed out to Sir John Dodson that this opinion seemed to be at variance with a report which he had previously made in the case of a Mr. Stratford, when he had stated that the illegitimate children of British parents born abroad were not en

1 Acting consul at Cairo, No. 25, May 30, 1861. Law officers, August 9, 1861. 2 To Mr. Theologo, De cember 24 1862. 3 Sir E. Hornby, No. 42: June 22. 1864. Law officers: July 23, 1864. 4 May 14, 1866. Mr. Riddel, consular, No. 42; August 12, 1.51. Queen's Advocate; January 19, 1852. Law officers; February 3, 1852.

titled to be considered as British subjects in foreign countries, Sir John Dodson replied that the question was one of much difficulty, in which the other law officers should be consulted.

This was accordingly done, and on the 3d of February, 1852, the law officers advised that illegitimate children born abroad, of English parents, are not British subjects, and therefore not entitled to British protection. By the common law children born abroad of English parents were not, except in certain special cases, English subjects. Acts of Parliament have been passed to remedy this inconvenience, but these acts, from their particular purposes and wording, can only be held to apply to legitimate children. During the discussion of the British claims on Venezuela, in 1865, the Venezuelan government objected to the insertion of certain claims in the British schedule, on the ground that the claimants were citizens of Venezuela.

In support of the principle on which this objection was based, they quoted at considerable length passages from Wheaton, Blackstone, Sir R. Phillimore, and other jurists, showing the doctrine of native nationality held by England.'

With regard to the particular case of Venezuela, the foreign secretary stated, (July 27, 1865:) "Now, in this country it has been judged suitable, for many reasons, to establish that all that are born in its territory are Venezuelans. It has been thus declared in the constitutions that have ruled the country since 1821. In the long process of time which has elapsed, it has been understood that the fact of being born in Venezuela carries with it the obligation of naturalization. A controversy which origi nated with the Spanish legation in 1847 for pretending to include in the matriculation of subjects of Her Catholic Majesty persons born in Venezuela, although of Spanish parents, might be cited.

66

'During the war of five years, on an occasion which created difficulties, and to avoid others, the executive power deviated, in one single instance, from the common prae tice, that of the young man Alexander d'Empaire, and declared him exempt from military service, as a minor, being under the protection of his father, and not having sig nified his wish to become a citizen of Venezuela. But that resolution cannot be considered definite, for it is not given to the executive power to point out the sense of the constitution. The President understood it to be so, and mentioned it in his message to Congress in 1861, asking that a law should interpret the constitutional rule. Nothing was then resolved. The question was still undecided when the constituent assembly met in 1863; the government insisting for a termination, it pronounced itself in this manner in article 6 of the federal constitution:

"Venezuelans are: 1. All persons born, or who may be born, in the territory of Venezuela, whatever may be the nationality of their parents.

"2. The children of a Venezuelan father, or of a Venezuelan mother, born in other territories, who may fix their residence in this country, and shall express their desire to be considered as such.'

"It therefore appears that there can be no doubt as to the meaning of the legislators, and if a more explicit declaration has been asked for, it is owing to its being considered that it should come directly from them."

On the 23d of October, 1865, Mr. Edwardes, under instructions from Lord Russell, replied: "Her Majesty's government are of opinion that the general principles on which his excellency founds his particular position are sound; though it is to be ob served that by treaty stipulation, and by long usage, one state may concede to the subjects of another privileges which are not accorded to its own subjects. Many circumstances may make such a usage not impolitic or unreasonable.”

"Her Britannic Majesty's government are, moreover, of opinion that when such usage is abrogated by the municipal law, ample time should certainly be given to the subjects of the state from whom the privilege is withdrawn to make up their minds whether they will remain in, or leave, the country in which this change in their former relation to it has been effected.

"M. Seijas will perceive, from the foregoing opinions, that although her Britannic Majesty's government offer no opposition to the change which the Venezuelan government desire to make in the position of children born to British subjects in Venezuela, they are far from admitting its power of retroaction.

"The undersigned, therefore, being unable to see how the solution of the question at issue can possibly affect the settlement of claims already pending, avails himself, &c."3

The Venezuelan government rejoined, on the 22d of November, 1865, that it was not a question of passing a new law, but of interpreting a principle which had been (with the exception of the French case previously referred to) maintained since the foundation of the republic.

In January, 1866, Lord Clarendon instructed Mr. Fagan, "that Mr. Edwardes appears to have stated the matter very properly to the Venezuelan government. It seems clear that the new law ought not to affect the position of British claimants

Mr. Edwardes, No. 66; August 23, 1865. Mr. Edwardes. No. 89; October 25, 1865. Mr. Harrison, No. 5; December 9, 1865. 4To Mr. Fagan, No. 3, January 16, 1:66.

whose claims had accrued previously to the passing of this law; and the argument that the law is not retroactive, but explanatory, is inadmissible.

"Previously to the passing of it, practice and usage had interpreted the law as treating the children of foreign subjects, though born in the Venezuelan territory, as foreigners. To pass a law now, explaining that the law had never meant to consider such persons as foreigners, is substantially to pass a retroactive law to the injury of foreigners."

In November, 1865, Mr. Edwardes1 forwarded a list of claims admitted by the Venezuelan government. This list includes the claims of persons alleged to be British subjects, although born in Venezuela, and a note is appended to their names showing that these claims were admitted subject to their nationality being proved.

Negotiations are now pending for the settlement of these admitted claims, together with any other claims not yet investigated, by a mixed commission, when the right of these Venezuelan natives to British nationality will again come under discussion.3 CHAS. S. A. ABBOTT. FOREIGN OFFICE, March 5, 1868.

ADDENDA.
(A.)

OPINION OF MR. CALEB CUSHING.

RIGHT OF EXPATRIATION.

Citizens of the United States possess the right of voluntary expatriation, subject to such limitations, in the interest of the state, as the law of nations or acts of Congress may im

pose.

ATTORNEY-GENERAL'S OFFICE, October 31, 1856.

SIR: I have to apologize to you for having omitted to reply at an earlier day to your communication, inclosing extract from a letter addressed to Mr. Vroom, minister of the United States in Prussia, by the Count de Montgelas, minister of Bavaria at the same court, and requesting me to consider the question of law propounded by the Count de Montgelas.

The question is, "Whether, according to the laws of the United States of America, a citizen thereof, when he desires to expatriate himself, needs to ask either from the Government of the United States, or of the State of which he is the immediate citizen, permission to emigrate; and, if so, what are the penalties of contravention of the law ?"

It might suffice, perhaps, for me to say that there is no provision of law on the subject in the Constitution of the United States, or in any act of Congress; and that, therefore, a citizen of the United States, desiring to emigrate, is free to do so, without express consent of the Government of the Union; and that no law of any one of the States forbids the citizen thereof to emigrate, or imposes any penalties on him if he do so without the consent of such State.

This naked statement, however, though a substantial response to the inquiry, leaves out of view some relations of the subject, which, in deference to the possible wishes of the Count de Montgelas, it may be desirable to expose.

In the popular discussions of the United States, it is common to assume that the theory of their political organization requires, and that their laws admit, unlimited right of emigration.

This impression is partly derived from the fact that the United States, having so recently by force made themselves independent of Great Britain, ideas of right, which belong to revolutionary epochs, still predominate over those of duty, which belong to the regular action of all political society, and the importance of which grows more and more apparent with every year's duration of the Union.

To justify the supposition of unlimited right of emigration, it is common to appeal to the provisions of the Constitution of the United States, and of its laws regulating the naturalization of foreigners. These provisions do, indeed, show that the encouragement of foreign emigration is a feature of the public policy of the United States, and suggest implication that, in the spirit of international equity, we shall concede to our own citizens a reciprocal faculty of emigration, and of foreign naturalization, involving abjuration of allegiance to the Union.

Mr. Edwardes, No. 93; November 9, 1865. Mr. Edwardes, No. 97; November 22, 1865. Mr. Irving's memorandum; February 2, 1867. To Mr. Fagan, No. 4; January 30, 1868.

Acting on these impressions, attempts have been made from time to time in the Congress of the United States to legalize the right of emigration; but, on all such occasions, careful scrutiny has made evident the fallacy of the popular assumption, and has caused the whole subject to be left, as it now stands, as a question of our public law, unsolved in its complete ganerality-but with elements of solution, which have not failed to strike the observation of many jurists and statesmen of the United States.

To begin it is true, as the tenor of the question of the Count de Montgelas implies he presumed might be the case, that the conditions of citizenship of the United States and of any one of the States are not identical; that is to say, it may happen that by the laws of a given State a person shall be a citizen thereof, and still not be a citizen of the United States. Nor does it follow, because he is a citizen of a given State by the very letter of its laws, that therefore he is of every or any other State. Persons may be, and in fact are, citizens of the State of Massachusetts, that is, invested with all the rights, political and municipal, which its institutions can bestow, without being citizens of the State of Virginia, or of the United States. But the distinctions which exist in this respect are not very important in international relations; and so far as they are anywise material they will come up incidentally in considering the duties and the rights of citizens of the United States.

Neither in the Constitution nor in the laws of the United States is there any definition of citizenship. The Constitution, which is the organic law of the Union, contines the exercise of all the great functions of state to citizens, and some of these functions to natural citizens; and it empowers Congress to enact laws of naturalization. Such laws have been enacted, and provide in effect that any free white alien, after five years' residence in the country, and two years' intermediate declaration of intention to become a citizen, may become such on his making proof of good character, and abjuring, in certain prescribed forms, all foreign allegiance, and taking oath of allegiance to the United States. And many ordinary municipal rights are, by other laws, capable of being enjoyed by citizens alone: such as the ownership of merchant-ships, the command and in part the manning of such ships, and the purchase of public lands by preemption.

To this may be added, that in many of the States the right to own land within the same is by their laws restricted to citizens of the United States. But I repeat, citizenship, whether acquired by birth or by naturalization, is not a thing specifically defined in its elements, either by the Constitution or by the laws of the Union.

Nor is there in the Constitution or laws of the United States any general provision to define how the rights of citizenship may be lost, or its duties be made to cease, whether by one's own act or by that of the Government.

And in the codes of the States there is occasional confusion of thought, arising from the want of proper attention to the difference between the enjoyment of mere civil rights, the right of suffrage, and the right of citizenship as a political status of persons, independent of their sex, age, or condition. Thus women, minors, and some other persons, do not possess the right of suffrage in any of the States, although citizens of the United States, and it is possessed in some of the States by persons who are not citizens of the United States.

As to citizenship and its termination, though we do not find them defined by any law of the Union, still we may gather the prevailing thought of the nation on the subject, by inspecting the legislation of some of the States.

In truth, we must divide the people of the United States into two classes: those in the full enjoyment of all the rights of citizenship, and those deprived of some or all of those rights; and then we must distinguish between such of the inhabitants of the country as are citizens, and such as are subjects only, and whether capable or not of becoming citizens, yet not so at the present time. I allude, in the latter case, to the Indians who, in some of the States, are the subjects of the State in which they exist, but who are in general subjects of the United States; and to the Africans, or persons of African descent, who, being mostly of servile condition, are of course not citizens, but subjects, in reference as well to the respective States in which they reside as to the United States.

In the sequel of these remarks it will be seen that the distinction between citizens and subjects in the United States is material to the just appreciation of the question of the right of emigration in its domestic relations, and still more in its foreign rela tions, and especially as admonitory of candid consideration of the laws regulating emigration, which exist in some of the countries of Europe.

These are prefatory considerations. I proceed now to state how far limitations of the right of emigration are imposed in fact by the laws either of the Union or of individual States.

The Union, as already explained, has not as yet undertaken to formalize any general law, either of citizenship or of emigration. One of the States, Virginia, has done this; and its express legislation on the subject, though imperfect, is quite suggestive, and leads directly to important reflections.