At the commencement of the last war between the United States and Great Britain, this question again presented itself in two cases of great interest, where, however, the main question being of the effect of commercial domicile on the national character, the doctrine of expatriation was touched only, without being elucidated. (The Venus, 8 Cranch, p. 253; the Francis, ibid., p. 335.) In each of these cases, the party concerned was a native of Great Britain, who, after coming to the United States and being naturalized here, returned to Great Britain, and there resided at the time of the declaration of war. Laying aside all consideration, either of naturalization or of expatriation, the Supreme Court, in discussing the effect of their commercial domicile in the enemy's country, conceded to them, for the argument's sake, all the rights of native Americans.

Soon after this, in the question of the ownership of a vessel as bearing upon the question of domestic or foreign bottom, Mr. Justice Washington said:

"I do not mean to moot the question of expatriation, founded on the self-will of a citizen, because it is entirely beside the business before the court. It may suffice for the present to say that I must be 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 alle giance to his country without some law authorizing him to do so." (United States ts. Gillies, 1 Peters's C. C. Rep., p. 159, 161.)

Finally, at a later period, the same question came before the Supreme Court, and was argued by eminent counsel, including Mr. Tazewell and Mr. Webster, in exposition of a clause of the existing treaty between the United States and Spain, which pro hibits the citizens or subjects of the respective contracting parties from taking commissions to cruise in private armed vessels against the other, under penalty of being considered pirates. On this occasion Justice Story, in delivering the opinion of the court, made the following observations:

"This view of the question renders it necessary to consider another, which has been discussed at the bar, respecting what is denominated the right of expatriation. It is admitted by Captain Chayton, in the most explicit manner, that, during this whole period, his wife and family have continued to reside at Baltimore; and, so far as this fact goes, it contradicts the supposition of any real change of his own domicile. Assuming, for the purposes of argument, that an American citizen may, independently of any legislative act to this effect, throw off his own allegiance to his native countryas to which we give no opinion-it is perfectly clear that this cannot be done without a bona-fide change of domicile, under circumstances of good faith. It can never be asserted as a cover for fraud, or as a justification for the commission of a crime against the country, or for a violation of its laws, when this appears to be the intention of the act. It is unnecessary to go into a further examination of this doctrine; and it will be sufficient to ascertain its precise nature and limits when it shall become the leading point of a judgment of the court." (The Santisima Trinidad, 7 Wheaton, pp. 23, 357.)

There is one other important relation of the subject in which it has come before the Supreme Court of the United States, and that is in the discussion of questions of allegiance as bearing on the rights of property of persons who, though natives of the United States, yet left the country on its revolutionary separation from Great Britain. It is the celebrated question of the ante-nati, discussed in Calvin's case, (7 Co. R., p. 18 b.,) and previously determined by Bracton. (De Legibus Angliæ, fol. 427 b.)

In disposing of such cases, the Supreme Court has occasionally, and at a relatively late time, referred to the question in very expressive language. Thus, in one of them, Justice Thompson assumes that "allegiance may be dissolved by the mutual consent of the Government and its citizens and subjects," (Inglis vs. Sailors' Snug Harbor, 3 Peters's R., pp. 99, 125;) and in another Justice Story says, "The general doctrine is, that no persons can, by any act of their own, without the consent of the Government, put off their allegiance and become aliens." (Shanks v. Dupont, ibid., pp. 242, 247.) Here, in so far as regards the views of the Supreme Court or its members, the matter stands; unadjudicated as decision, but not undetermined as opinion. After carefully reviewing the whole subject, Chancellor Kent pronounces the better opinion to be, that a citizen cannot renounce his allegiance to the United States without permission of the Government, to be declared by law. (Commentaries, vol. 2, p. 49.) It is a significant fact, at all events, that, on so many occasions when the question presented itself, not one of the judges of the Supreme Court has affirmed, while others have emphatically denied, the unlimited right of expatriation from the United States.

This exposition of the opinions on the question of the right of expatriation by the judicial authorities of the United States would be incomplete without some brief statement of what has occurred on the subject in the courts of the States.

Observations on the subject occur in sundry cases of the class already spoken of, where the main question was of land belonging to persons who were born in the United States before their separation from Great Britain, but adhered to the mother-country. As the law of England maintains the unalterable perpetuity of allegiance, and as that of England, transmitted to many of the States of the Union, denies the capacity of aliens to hold lands, the question of citizenship repeatedly came before the courts in the early years of the republic.

In such a case in the State of Massachusetts, its supreme court, by Chief Justice Parsons, say:

"Protection and allegiance are reciprocal. The sovereign cannot refuse his protection to any subject, nor discharge him from his allegiance against his consent; and he will remain a subject, unless disfranchised as a punishment for some crime. So, on the other hand, he can never discharge himself from his allegiance to his sovereign, unless the protection which is due to him from the laws is unjustly denied him." (Ainslie v. Martin, 6 Mass. R., p. 460.)

Here a most important feature of the rightfulness of the claim of society, as against the citizen, is indicated, namely, that the laws of the country afford him due protec

tion.

In a case of the same character in the State of Pennsylvania, her supreme court, by Chief Justice Tilghman, speaks of a “principle not compatible with the constitution of Pennsylvania or her sister States; that is to say, that no man can, even for the most pressing reasons, divest himself of the allegiance under which he was born." (Jackson v. Burns, 3 Binney's R., pp. 75, 85.)

Allusions to the point as being yet unsettled occur in the State of Alabama, in a case where distinction between emigration and expatriation is well suggested. (Beavers v. Smith, Ala. R., N. S., vol. 11, pp. 20, 29.)

The doctrine is touched, also, in several cases involving matrimonial rights, as affected by domicile or citizenship; but without any result of importance. (See Bishop on Marriage, b. 7.)

But, of the cases in the several States, those adjudged by the courts of Virginia and Kentucky are the most important, because of the special laws of those two States on the subject of citizenship; and these cases also possess intrinsic interest.

Controversy arose in the State of Virginia, in a matter not material to be here explained, which presented the immediate question of expatriation from the State, but involved in argument that of expatriation generally. (Murray v. McCarty, 2 Mumford's R., p. 393.)

In this case Judge Cabell, with concurrence of his associates of the court, affirms the general right of expatriation in these words:

"Nature has given to all men the right of relinquishing the society in which birth or accident may have thrown them, and of seeking subsistence and happiness elsewhere; and it is believed that this right of emigration, or expatriation, is one of those inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity. But, although municipal laws cannot take away or destroy this great right, they may regulate the manner and prescribe the evidence of its exercise; and in the absence of these regulations, juris positivi, the right must be exercised according to the principles of general law." (Ibid., pp. 396, 397.)

The same judge suggests reasonable doubt of the effect of that provision of the law of Virginia which requires a formal declaration of the purpose of change of citizenship. "If," he says, "arguments drawn from the long and uniform practice of a country are ever allowed to have any influence on a question concerning the construction of its laws, they might here be urged with much force. For, of the innumerable emigrants from Virginia who have overspread the Southern and Western States and Territories, and filled their highest offices, it is believed that not one has ever deemed it necessary to conform to our act concerning expatriation. Are they still citizens of the State ?" (Ibid., p. 399.)

And he adds expression of opinion that, "if a citizen of Virginia shall have departed out of this commonwealth with an open and avowed, fair and bona fide, intention of quitting it, and of becoming a citizen of some other State, and shall, in fact, have become a citizen thereof, that, from thenceforth, he ceased to be a citizen of Virginia, notwithstanding he may have omitted to comply with the requisites of our expatriation act." (Ibid., p. 400.)

Judge Roane, another member of the court, dwells on the important fact of the diference between citizenship of a State and that of the United States; the consideration of which leads him to say, among other things:

"I entirely subscribe to the doctrine that the situation of America, in this particular, is new and may produce new and delicate questions; that we have sovereignties moving within sovereignties; that allegiance to a particular State is one thing, and that to the United States is another; that a renunciation of the former allegiance does not draw after it a renunciation of the latter; and that a statute of the United States on the subject of expatriation is much wanted.” (Ibid., 403.)

And the same distinction draws after it the following reflection:

"The power of expatriation, in relation to the commonwealth of Virginia, is one with which Congress had certainly nothing to do; it is not granted in the instrument of government; and it is a fundamental principle in our system that each State retains every power, jurisdiction, and right, which is not delegated to the United States by the Constitution, nor prohibited by it to the States. The power of legisla

tion on the subject of expatriation from the commonwealth of Virginia has not and ought not to have been given up by Virginia to the United States." (Ibid., p. 405.)

As to which it may be observed that, undoubtedly, the State of Virginia may determine who is a citizen of that State, in relation to any matter of the proper jurisdiction of the State, but not in matters of the jurisdiction of the United States. The question of citizenship, for instance, as affecting the right to hold lands in the State, the State itself may decide, without interference on the part of the United States. Not so in regard to Federal citizenship.

Indeed, in one great class of cases, that of suits in the courts of the United States by the citizens of one State against the citizens of another, as provided for by the Constitution, it has been adjudged that mere simple removal to one State from another, and residence in the former, constitutes a change of citizenship in that respect within the meaning of the Constitution and the acts of Congress. (Cooper r. Gilbraith, 3 Washington's C. C. R., p. 546; Case v. Clark, 5 Mason's R., p. 70.) The party must of course be otherwise a citizen of the United States. (Gassies r. Ballon, 6 Peters, 761.)

Finally, the members of the court affirm, with one accord, that, conceding the right of expatriation, however regulated, its effective exercise depends on the completeness, publicity, and good faith of the assumed act of expatriation.

Views to the same effect, in substance, appear to have been entertained by the courts of the State of Kentucky. In one case, to be sure, the court merely refer to this matter as a "litigated question," and refuse to pass upon it without necessity. (Brooks r. Clay, 3 A. K. Marshall's R., p. 545. See S. C., Shearer v. Clay, 1 Littell's R., p. 261.) But, in a later case, the court of appeals of that State, by Chief Justice Robertson, met the great question directly, and placed it on what are, in my judgment, its true foundations.

In the first place, the court construe the law of Virginia reasonably, suggesting that the mode of expatriation prescribed by that law is very proper, but “is not, of course, the only admissible or satisfactory evidence of the fact that the admitted right has been exercised."

In the second place, the court say:

"Whatever may be the speculative or practical doctrine of feudal governments or ages, allegiance, in these United States, whether local or national, is, in our judgment. altogether conventional, and may be repudiated by the native as well as adopted citizens, with the presumed concurrence of the Government, without its formal or express sanction. Expatriation may be considered a practical and fundamental doctrine of America. American history, American institutions, and American legislation, all recognize it. It has grown with our growth, and strengthened with our strength. The political obligations of the citizen, and the interests of the republic, may forbid a renunciation of allegiance by his mere volition or declaration, at any time, and under all circumstances. And, therefore, the Government, for the purpose of preventing abuse and securing the public welfare, may regulate the mode of expatriation. But when it has not prescribed any limitation on the right, and the citizen has in good faith abjured his country, and become a subject or citizen of a foreign nation, he should, as to his native government, be considered as denationalized, especially so far as his civil rights may be involved, and at least, so long as that government shall seem to acquiesce in his renunciation of his political rights and obligations." (Alsberry r. Hawkins, 9 Dana's R., p. 177.)

These are intelligent views: expatriation a general right, subject to regulation of time and circumstance according to public interests; and the requisite consent of the State presumed where not negatived by standing prohibitions.

In conclusion of this part of the subject, it seems proper to add, that the juridical authorities of the United States admit that a party may by his own act be subject to the conflicting obligations of two different allegiances. (United States r. Williams, 2 Cranch, p. 82, note; Ainslie v. Martin, 9 Massachusetts R., p. 453; Sergeant's Constitutional Law, p. 319.)

A meritorious writer on constitutional law (Mr. Rawle) has devoted some pages to the discussion of the question. He maintains, with reason, that no such thing as absolute or indefeasible right of expatriation exists, any more than absolute or indefeasible right of allegiance; and suggests consideration of the distinction between mere emigration, involving question of domicile only, and expatriation, involving of necessity change of allegiance. (Rawle on the Constitution, ch. 9. See also Duer's Lectures, p. 302.)

Another legal commentator has been disposed to affirm, with more absoluteness, the right of expatriation, and with perhaps insufficient regard for the contingent rights of the State. (Tucker's Blackstone, vol. ii, pt. 2, p. 90.)

There is a small but well-written treatise on the question by Mr. Hay, elicited by the circumstances in which the second war between the United States and Great Britain originated, and which involved, among other things, extravagant assertions of the doctrine of indefeasible allegiance, as against British emigrants to the United States. In truth, opinion in the United States has been at all times a little colored on the

subject by necessary opposition to the assumption of Great Britain to uphold the doctrine of indefeasible allegiance, and in terms to prohibit expatriation. Hence we have been prone to regard it hastily as a question between kings and their subjects. It is The true question is of the relation between the political society and its members, upon whatever hypothesis of right, and in whatever form of organization, that society may be constituted.

not so.

The assumption of a natural right of emigration, without possible restriction in law, can be defended only by maintaining that each individual has all possible rights against society, and the society none with respect to the individual; that there is no social organization, but a mere anarchy of elements, each wholly independent of the other, and no otherwise consociated save than by their casual co-existence in the same territory. (Ahrens, Droit Natural, p. 324.)

Accordingly through all the diversities of opinion respecting the question, the true doctrine of our law is readily distinguishable, as it appears to me, and is not in contradiction with jurisprudence, theroetical or positive, of the enlightened nations of Europe.

If we cursorily inspect the existing laws of different countries, we discern in them three aspects of the main question.

In Great Britain the professed theory and the actual law combine to prohibit expatriation in terms. (Act of 3 James I, cap. 4.) In practice, however, emigration is permitted, nay encouraged. And, on the other hand, the most striking negation of the indefeasibility of allegiance as a principle is afforded by the act of Parliament of 7 and 8 Victoria, cap. 66, which makes permanent a general provision for the naturalization of aliens in Great Britain. (See Bowyer's Const. Law of England, p. 406.) Thus it is that the jurisprudence of England, little capable of generalization, asserts an assumed rule of public law, or denies it, according to the caprices of apparent local interest; and her diplomacy, with characteristic inconsequence and partiality of thought, upholds abroad, while it repudiates at home, the saying of the great republican jurisconsult, civitas carcer non est. (Bynkershoek, Quæst. J. Pub., lib. i., cap. 22.)

The singularity of the law of England consists in the doctrine, that, as explained by Sir William Blackstone, a natural subject cannot by any possibility or for any reason cease to be a subject, save by the permission of his liege lord. (Blackstone's Com., vol. i, p. 369.) And this, adds Blackstone, is a "principle of universal law;" in support of which strange assertion he cites, not any of the great authorities of universal or public law-all of whom, as we shall presently see, maintain the contrary-but a common lawyer of his own country, namely, Sir Matthew Hale. (Pleas of the Crown, vol. i, p. 68.) And a very modern commentator on the laws of England (Mr. Anstey) adheres to the doctrine, applying to every Englishman who leaves the country the phrase of amittit regnum sed non regem. (Lectures on the Laws of England, p. 94.)

In other countries, the party emigrating contrary to law may lose the civil rights of his birthplace, and become liable to forfeitures of a local description, but without drawing upon himself the extreme consequences involved in the doctrine of the laws of England.

Thus, the Code Napoléon provides that "The quality of Frenchmen will be lost: 1, by naturalization acquired in a foreign country; 2, by the acceptance, without anthority of the government, of public functions conferred by a foreign government; 3, by establishment in a foreign country without purpose of return." (Art. 17.) It also provides the means of recovering the lost quality, except in the case of the party bearing arms against his country. (Arts. 18, 20, 21.) There are several decrees, one of the reign of Louis XIV, and two of that of Napoleon I, which add confiscations and loss of civil rights, as the penalty of any Frenchman expatriating himself without public authority. But some doubt exists whether these decrees are now in force, and at any rate they are not so as respects the provision of confiscation; the doctrine of the general right of expatriation being maintained in France. (Dalloz, Dic. Jur. voc. Droit Civil, 53.)

Spain and the Spanish American Republics contemplate and provide for voluntary expatriation. (Escriche, Dic. sub. voce. Espanol, Natural.)

It is a curious fact that, at the time when Bynckershoek wrote, the governments which prohibited expatriation under penalties were Great Britain, Russia, France, and China. (Qæst. Juris. Publ., lib. i., cap. 22.)

Then, as now, expatriation was lawful in Spain, as it now is in the Spanish American Republics. (Escriche, ubi. supra.) And the public policy of Spain has never been otherwise in this relation. (Dou, Derecho Publico, lib. i, tit. 7.)

But the most explicit and complete enactments on the subject are those of some of the States of the Germanic Confederation. I take as example the legislation of Austria and Prussia.

In each of these countries emigration is permitted by law, but regulated. In neither of them can expatriation take place legally in evasion of military duty. In both special conditions apply to the time of war. In Prussia permission to emigrate is not refused unless for prescribed causes, appertaining to military or civil obligations; in

Austria it may be refused at discretion. In Prussia ten years' residence in a foreign country, with some exceptions, effects the result of expatriation; this provision is omitted in Austria. Of each system, the common and essential feature is a standing provision for emigration on application to the public authorities. (Decree of the Emperor Francis I, of March 24, 1832; Circular of King Frederick William, of December 31, 1842.)

In the United States, as we have seen, there is no provision of federal law which defines citizenship; and none which expressly forbids or expressly authorizes the expatriation of citizens of the United States.

On several occasions, when the question was before Congress, doubts were suggested whether the Federal Government has power to legislate on the subject. I cannot perceive the force of these doubts. Citizenship is a federal qualification for the tenure of office, and for the enjoyment of many other rights under the Constitution of the Union. What constitutes citizenship of the United States cannot be determined by the several States. If they were to undertake it, they would be found to differ radically and irreconcilably in the matter. If Congress cannot do it, then the Union is in the singular predicament of the constitutional impossibility of ascertaining who compose it, who may be its President, Senators, and Representatives. No such impossibility exists. When Congress enacts that only citizens of the United States are competent to do certain things, it may well proceed to say, if it choose, who the persons thus designated are, and to define them by classes or description of inclusion or exclusion. If it could not say this directly, and by systematic definition, in the way other nations do, it could say it indirectly by acts of penalty; it could say what are the circumstances of time or manner in which the act of emigration would or would not deprive an American of rights, or subject him to penalties and forfeitures. But the idea that citizenship, or the loss of it, cannot be defined by Congress, is one of the lingering prejudices of the common law, which relies upon judicial exposition to deduce general rules from particular cases, instead of laying down general rules by previous legislative survey of the subject-matter. Thus it is that Congress leaves this question to the fortuitous occurrence of some judicial contingency, in which it may be definitely disposed of by decision of the Supreme Court.

In the absence of such a decision, we are compelled to reason out a conclusion in the premises, with aid of analogies of our own or of the public law applicable thereto.

The doctrine of absolute and perpetual allegiance the root of the denial of any right of emigration-is inadmissible in the United States. It was a matter involved in, and settled for us by, the Revolution, which founded the American Union.

Moreover, the right of expatriation, under fit circumstances of time and of manner, being expressly asserted in the legislation of several of the States, and confirmed by decisions of their courts, must be considered as thus made a part of the fundamental public law of the United States.

Most of the jurisconsults and judges who have had occasion to discuss the subject admit, as we see, either directly or indirectly, that it is a question of circumstances and conditions.

The admissibility of change of allegiance in the United States without necessary express co-operation of the foreign government, is implied by the naturalization acts, which require conditions of residence, of personal character, of publicity, and of actual abjuration of the foreign allegiance, as indispensable to the consummation of an act of expatriation.

I think, in consideration of these premises, that the omission of the federal laws to enact any express or specific restraints on expatriation is tacit or implied consent, subject only to such conditions of good faith, of discharge of subsisting obligations to the society left, and of consummated expatriation in fact, as the principles of international right require to observed.

As a question of natural right, emigration belongs to the general category of those elements of individual happiness which every citizen is entitled to pursue, but in subordination, always, to the general welfare. (Grotius, De Jure Bell, ac Pacis, lib. ii, ch. 5, No. 24; Wolff, Jus Naturæ, part vii, cap. i. s. 186, 187; Burlamaqui, Droit de la Nature, p. 2, ch. 5, s. 13; Almeda, Derecho Publico, tom. i, cap. 17.)

The society cannot absolutely take away this right, but may regulate it in such way as to reconcile the interest of the individual and of the community. (Wolff, Jus Naturæ, pars viii, cap. 3, s. 415; Vattel, Droit des Gens, liv. i, ch. 19, s. 10.)

In fine, the present state of the law of nations and of nature on this point is well stated by D. Antonio Riquelme, as follows:

"It is a recognized principle of the law of nations that all can change their primitive nationality, according to their convenience. This principle, admitted by all the world, and in virtue of which every individual may renounce the nationality which birth combined with parentage gives him, does not release him who avails himself of it of the obligations which he owes to his country; so that the citizen or subject who, without authorization of his government, accepts the nationality of a foreign state, may be called upon for the performance of the personal charges imposed upon