him by his primitive country in the form which the laws establish. Thus, a deserter from the military service, who becomes naturalized in the state to which he flies, though not subject to extradition without special treaty authorizing it, if, nevertheless, he come within the jurisdiction of the authorities of his primitive country, cannot be reclaimed by his new one, but remains bound to fulfill the obligations of his service. While the law of nations concedes to individuals the liberty of changing their nationality, it also empowers a state to restrict this faculty in certain circumstances, as in case of war and others, in return for the services and protection which it bestows on the citizen or subject; and when he changes his nationality in contempt of the laws, he gives occasion for the disregard of his new nationality." (Derecho Internacional, tom. i, p. 319.)

In the absence of general prohibition, general consent of the state is presumed. "Vel si consenu expresso aut tacito." (Puffendorf, De Officio Hominis et Civis, lib. ii, cap. 18.) Or, in the words of Bynkershoek, "Si non sit lex quæ prohibeat, utique licet subditi conditionem exuere, et civitatem ut lubet mutare." (Quæstiones Juris Publici, lib. i, cap. 22.)

Of course, the citizen cannot apply such implied consent to any act of pretended emigration, which is itself a violation otherwise of the law, either public or municipal, as in the case of illegal military enterprises; nor, by it, can he escape the punishment of crime or the performance of local contracts, nor appeal to it as a mask to cover desertion or treasonable aid of the public enemy. I am not prepared to say that the right of a citizen of the United States to expatriate himself, implied in the absence of any prohibition, may not be exercised in time of war; but, if so, it would have to be done with attendant circumstances, clearly showing good faith, in order to be justifiable; and it is not easy to see how citizenship could be transferred in time of war to the foreign enemy in such way as to escape reprehension, if the party should afterward return to the United States.

And, whether in peace and war, the expatriation would have to be an actual one, by foreign residence, and with authentic renunciation of the pre-existing citizenship. Under the circumstances and with the conditions thus indicated, and subject to such others as the public interest might seem to Congress to require to be imposed, it seems to me that the right of expatriation exists, and may be freely exercised by the citizens of the United States.

I have the honor to be, very respectfully,

Hon. WILLIAM L. MARCY,

C. CUSHING.

Secretary of State.

(B.)

UNITED STATES NATURALIZATION ACT, 1802.

[N. B. This law has been already printed.]

(C.)
"ANN," SMITH.

This ship, under American colors, was seized in the river Thames, by the marshal of the admiralty, on the 1st of August, 1812. A claim was given by the master, who was also sole owner of the ship, describing himself to be a British subject, and as such entitled to the benefit of the order in council of November, 1812, directing the restitution of British ships under the American flag. It appeared that he was a native of Scotland, and that his wife and family resided in that country, but that he had himself been admitted a citizen of America about sixteen years ago, upon taking an oath that he had been sailing out of the American port for two years; that from the year 1799 till 1805 he had been connected with a house of trade at Glasgow, which had an establishment at New York, and another at Charlestown, and that he had occasionally resided at each of the last-mentioned places; that he had purchased this vessel at public auction in America, and had made three voyages in her, the two first from Charlestown to Kingston, in Jamaica, returning each time in ballast, and the last from Charlestown to the river Thames. The question was, whether, from the residence and employment of this man, he was, quoad this vessel, to be considered as a British subject.

JUDGMENT.

Sir W. SCOTT. This ship, when seized by the marshal in the river Thames, was under the American flag, but, according to the account given by the master, was not furnished with the American, or indeed with any pass whatever. It is very difficult to conceive that this was the true state of the case, since the ship was not only Americanbuilt but likewise American-owned, as far, at least, as the ostensible character of the claimant is concerned; for though he could not altogether throw off his allegiance to his native country, he had been admitted a citizen of the United States. I cannot conceive, therefore, why the pass was not granted, or what obstacle prevented this man from obtaining so important a document. I must presume that the vessel was furnished with an American pass; but, supposing the case to be otherwise, still, if the ship was furnished with the documents usually granted to American ships, the same rule of law must be applied as if she had been furnished with a regular flag and pass. The ship must be conclusively held to be American property, and consequently subject to condemnation.

It is said, however, that this ship is protected by the order in council issued on the 28th of November, 1812, by which it is directed "that all vessels under the flag of the United States of America which are bona fide and wholly the property of His Majesty's subjects, and not purchased by them subsequent to the date of hostilities on the part of the United States of America, and which shall have been detained in port under the embargo, or shall have sailed to or from the ports of this kingdom previous to the knowledge of hostilities, and shall have been captured on such voyage, shall be restored to the British owners, upon satisfactory proof being made to the high court of admiralty or the courts of vice-admiralty, to which they shall be taken for adjudication, that the said vessels are bona fide and wholly the property of His Majesty's subjects as aforesaid, and had been engaged in trade as above described." A claim has been given for this ship by Mr. Smith, describing himself to be a British subject; and, if he is a British subject, he will, under this order in council, be entitled to restitution. The question, therefore, comes to this, whether the claimant is, quoad this property, to be considered a British subject. For some purposes he is undoubtedly so to be considered. He is born in this country, and is subject to all the obligations imposed upon him by his nativity. He cannot shake off his allegiance to his native country, or divest himself altogether of his British character by a voluntary transfer of himself to another country. For the mere purposes of trade he may, indeed, transfer himself to another state, and may acquire a new national character. An English subject, resident in a neutral state, is at liberty to trade with the enemy of this country in all articles, with the exception of those which are of a contraband nature; but a trade in such articles would be contrary to his allegiance. Now, the account which he gives of himself is, "that he was born at Falkirk, in Scotland; that during the last seven years he has been chiefly at sea, but, when at home, he has lived, and still lives, at Bathgate, in the shire of Linlithgow, in North Britain; that he is the subject of our sovereign lord the King, but about sixteen years ago he was admitted a citizen of the United States of America, for the purpose of commerce only." Why, this transaction is for the purpose of commerce. According to his own account, then, he ceased to be a British subject for commercial purposes. He goes on to say, that he was admitted "for the purpose of covering a ship of his own, to enable her to sail without risk of capture, and he was so admitted by the magistrates of Philadelphia, on oath being made that he had sailed out of an American port for two years; that he hath never been admitted a burgher or freeman of any city or town, but, from the year 1799 to the year 1805, the deponent having been connected in a house of trade at Glasgow, which had a house at New York, and another at Charlestown in South Carolina," so that, from the year 1799 to the year 1805, he might, as far as he was connected with the house at Glasgow, and for that particular branch of his trade, be considered a British subject. But since that time I understand him to say that he has withdrawn altogether from that connection. He says afterward, in answer to the ninth interrogatory, "that he is a North Briton by birth, and when he is at home his place of residence is Bathgate, in the shire of Linlithgow, in North Britain, where his wife and family reside, and where he the deponent hath always resided from the time he was ten or eleven years of age, when he was not at sea or in foreign parts." The affirmative part of his history, as far as it goes, shows that he lived very much abroad, and principally at New York or Charlestown, in America. True it is that he had no house in either of these places, but he was there as a single man. It is not the mere circumstance of leaving a wife and family in Scotland that will avail him for the purpose of retaining the benefit of his national character. He cannot be permitted to take the advantage of both characters at the same time, and in the same adventure. The utmost that can be allowed to him is, that he should be entitled to the one character or the other, according to the cir cumstances of the transaction. When the vessel herself is American-built, when the personal residence of the owner, as far as he has any, is in America, (for it does not ap pear that this man at all resided in Scotland,) it would be difficult to say that it could

be any other than an American transaction. Since the purchase of this ship by Mr. Smith, he has made three voyages: two of them to Kingston in Jamaica, and one to the port of London; but to the ports of Scotland he has never sailed, nor does it appear that he has even visited his wife and family in that country. He has been sailing constantly out of American ports, and his prevailing destination has been to the West India Islands. It is quite impossible that he can be protected under the order in council, which applies only to those who are clearly and habitually British subjects, having no intermixture of foreign commercial character. It never could be the intention of His Majesty's government that the benefit of this order should be extended to a person who has thrown off his allegiance, and estranged himself from his British character, as far as his own volition and act could do. I am of opinion that Mr. Smith is not entitled to the benefit of the order in council, and therefore I reject the claim. Ship condemned.

(D.)

Extrait des minutes du greffe 'du tribunal civil de première instance de l'arrondissement de Wissembourg, département du Bas-Rhin.

Le tribunal civil de première instance de l'arrondissement de Wissembourg à rendu le jugement suivant:

Audience du vingt-cinq avril, mil huit cent soixante:

Entre Michel Zeiter, cultivateur, domicilié aux États-Unis de l'Amérique, demandeur, comparant par Maitre Volpert, son avoué;

Contre M. le préfet du Bas-Rhin, défendeur.

Après avoir ouï à l'audience du vingt courant, les conclusions de M. de Ring, substitut du procureur impérial, et après en avoir délibéré en la chambre du conseil:

Attendu que les tribunaux sont compétents d'après l'article vingt-six de la loi du vingt-un mars, mil huit cent trente-deux, pour décider les questions relatives à l'état ou aux droits civils des jeunes gens appelés à faire partie du contingent de l'armée; attendu que, d'après l'article deux de la même loi, nul ne peut être admis dans les troupes françaises s'il n'est français:

Que le demandeur prétendant qu'il a perdu sa qualité de Français par sa naturalisation en pays étranger, il n'y a pas à s'inquiéter si cette naturalisation en pays étranger a eu lieu sans l'autorisation du gouvernement français, contrairement aux préscriptions du decret du vingt-six août, mil huit cent onze, mais seulement si, au moment actuel, le demandeur est encore Français.

Attendu que le demandeur rapporte un certificat constatant qu'il s'est présenté devant la cour des plaids communs du comté d'Essex, état de New Jersey, et a fait la demande d'être admis à devenir citoyen des Etats-Unis d'Amérique, mais qu'il n'est pas justifié que cette formalité suffise pour conférer cette qualité; que le tribunal doit exiger un supplément de renseignements, tel, par exemple, qu'une attestation du consul des Etats-Unis en France de reconnaissance du titre de citoyen des États-Unis d'Amérique.

Par ces motifs, le tribunal surseoit à statuer sur la demande jusqu'à ce que le demandeur rapporte une attestation du consul des États-Unis en France, constatant qu'il a rempli toutes les formalités nécessaires pour devenir citoyen des États-Unis, ou toute autre pièce justificative de sa nouvelle nationalité et le condamne dès à présent aux dépens.

Jugé et prononcé à l'audience publique du tribunal civil de l'arrondissement de Wissembourg: présents, Messieurs Bardy, president; Lanth et Stoffel, juges; et Richert, procureur impérial.

N. BARDY, ET
VOGT,

Commis Greffier.

Extrait des minutes du greffe du tribunal civil de première instance de l'arrondissement de

Wissembourg, Bas-Rhin.

Le tribunal civil de première instance de l'arrondissement de Wissembourg a rendu le jugement suivant:

Audience du deux juin, mil huit cent soixante:

Entre Michel Zeiter, cultivateur, domicilié aux États-Unis d'Amérique, demandeur, comparant par Maître Volpert, avoue;

Contre M. le préfet du Bas-Rhin, défendeur, représenté par M. le procureur impé

rial.

Après avoir ouï les conclusions respectives des parties, ainsi que celles du ministère public:

Attendu que, par la production du certificat qui lui a été delivré le vingt-huit mai dernier, par le consul des États-Unis à Paris, et qui a été enregistré à Wissembourg aujourd'hui, le demandeur a justifié qu'il est citoyen américain:

Le tribunal donne acte au demandeur de ce que, par la production du dit certificat, il a satisfait au jugement rendu en ce siège le vingt-cinq avril dernier.

En conséquence dit et reconnait que le demandeur, Michel Zeiter, par sa naturalisation en pays étranger, a perdu la qualité de Français, et le condamne aux dépens.

Jugé et prononcé à l'audience publique du tribunal civil de l'arrondissement de Wissembourg: presents, Messieurs Bardy, président; Lanth et Stoffel, juges; et De Ring, substitut du procureur impérial.

N. BARDY, ET
VOGT,

Commis Greffer.

NOTE.-M. Treitt, who has procured the copy of this paper, states that the judgment attracted little attention at the time it was given, and that it must not be accepted as a definitive exposition of French law on a point which, as he believes, is still open to controversy.

(E.)

Extracts of an opinion of Mr. Attorney-General Bates, dated November 29, 1862.

Who is a citizen? What constitutes a citizen of the United States? I have often been pained by the fruitless search in our law books and the records of our courts for a clear and satisfactory definition of the phrase citizen of the United States. I find no such definition, no authoritative establishment of the meaning of the phrase, neither by a course of judicial decision in our courts, nor by the continued and consentaneous action of the different branches of our political government. For aught I see to the contrary, the subject is now as little understood in its details and elements, and the question as open to argument and to speculative criticism, as it was at the beginning of the Government. Eighty years of practical enjoyment of citizenship, under the Constitution, have not sufficed to teach us either the exact meaning of the word, or the constituent elements of the thing we prize so highly.

In most instances, within my knowledge, in which the matter of citizenship has been discussed, the argument has not turned upon the existence and the intrinsic qualities of citizenship itself, but upon the claim of some right or privilege as belonging to and inhering in the character of a citizen. In this way we are easily led into errors both in fact and principle. We see individuals, who are known to be citizens, in the actual enjoyment of certain rights and privileges, and in the actual exercise of certain powers, social and political, and we, inconsiderately, and without any regard to legal and logical consequences, attribute to those individuals, and to all of their class, the enjoyment of those rights and privileges, and the exercise of those powers, as incidents to their citizenship, and belonging to them only in their quality of citizens.

In such cases it often happens that the rights enjoyed and the powers exercised have no relation whatever to the quality of citizen, and might be as perfectly enjoyed and exercised by known aliens. For instance, General Bernard, a distinguished soldier and devoted citizen of France, for a long time filled the office of general of engineers in the service of the United States, all the time avowing his French allegiance, and, in fact, closing his relations with the United States by resigning his commission and returning to the service of his own native country. This and all such instances (and they are many) go to prove that in this country the legal capacity to hold office is not confined to citizens, and therefore that the fact of holding any office for which citizenship is not specially prescribed by law as a qualification is no proof that the incumbent is an American citizen.

Again, with regard to the right of suffrage, that is, the right to choose officers of gov ernment, there is a very common error, to the effect that the right to vote for public officers is one of the constituent elements of American citizenship, the leading faculty indeed of the citizen, the test at once of this legal right and the sufficient proof of his membership of the body-politic. No error can be greater than this, and few more inju rious to the right understanding of our constitutions, and the actual working of our political government. It is not only not true in law or in fact, in principle or in practice, but the reverse is conspicuously true; for I make bold to affirm that, viewing the nation as a whole, or viewing the States separately, there is no district in the nation in which a majority of the known and recognized citizens are not excluded by law from the right of suffrage. Besides those who are excluded specially on account of some personal defect, such as paupers, idiots, lunatics, and men convicted of infamons crimes, and, in some States, soldiers, all females, and all minor males are also excluded. And

these, in every community, make the majority; and yet, I think, no one will venture to deny that women and children, and lunatics, and even convict felons, may be citizens of the United States.

Our code (unlike the codes of France, and perhaps some other nations) makes no provision for loss or legal deprivation of citizenship. Once a citizen, whether natus or datus, (as Sir Edward Coke expresses it,) always a citizen, unless changed by the volition and act of the individual. Neither infancy nor madness nor crime can take away from the subject the quality of citizen. And our laws do, in express terms, declare women and children to be citizens. See, for one instance, the act of Congress of February 10, 1855, 10 Stat., 604.

The Constitution of the United States does not declare who are and who are not citizens, nor does it attempt to describe the constituent elements of citizenship. It leaves that quality where it found it, resting upon the fact of home, birth, and upon the laws of the several States. Even in the important matter of electing members of Congress it does no more than provide that "the House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in the several States shall have the qualifications requisite for the electors of the most numerous branch of the State legislature." Here the word citizen is not mentioned, and it is a legal fact, known of course to all lawyers and publicists, that the constitutions of several of the States, in specifying the qualifications of electors, do altogether omit and exclude the words citizen and citizenship. will refer, in proof, to but three instances.

1. The constitution of Massachusetts, adopted in 1779-'80, in article 4 of section 3, cap. 1, provides as follows: "Every male person, being twenty-one years of age, and resident of a particular town in this Commonwealth for the space of one year next preceding, having a freehold estate within the same town of the annual income of three pounds, or any estate of the value of sixty pounds, shall have the right to vote in the choice of representative or representatives for said town."

2. The constitution of North Carolina, adopted in 1776, after a bill of rights, and after reciting that "whereas allegiance and protection are, in their nature, reciprocal, and the one should of right be refused where the other is withdrawn," declares, in section 8, that all freemen at the age of twenty-one years, who have been inhabitants of any one county within the State twelve months immediately preceding the day of any election, and shall have paid public taxes, shall be entitled to vote for members of the house of commons for the county in which he resides."

3. The constitution of Illinois, adopted in 1818, in article 2, section 27, declares that "in all elections all white male inhabitants above the age of twenty-one years, having resided in the State six months next preceding the election, shall enjoy the right of an elector; but no person shall be entitled to vote except in the county or district in which he shall actually reside at the time of the election."

These three constitutions belong to States widely separated in geographical position, varying greatly from each other in habits, manners, and pursuits, having different climates, soils, productions, and domestic institutions, and yet not one of the three has made citizenship a necessary qualification for a voter; all three of them exclude all females, but only one of them (Illinois) has excluded the black man from the right of suffrage. And it is historically true that the practice has conformed to the theory of those constitutions respectively; for, withont regard to citizenship, the colored man has not voted in Illinois, and freemen of all colors have voted in North Carolina and Massachusetts.

From all this it is manifest that American citizenship does not necessarily depend upon nor co-exist with the legal capacity to hold office, and the right of suffrage, either or both of them. The Constitution of the United States, as I have said, does not define citizenship; neither does it declare who may vote, nor who may hold office, except in regard to a few of the highest national functionaries. And the several States, as far as I know, in exercising that power act independently, and without any controlling authority over them, and hence it follows that there is no limit to their power in that particular but their own prudence and discretion; and therefore we are not surprised to find these faculties of voting and holding office are not uniform in the different States, but are made to depend upon a variety of facts, purely discretionary, such as age, sex, race, color, property, residence in a particular place, and length of residence there. On this point, then, I conclude that no person in the United States did ever exercise the right of suffrage in virtue of the naked, unassisted fact of citizenship. In every instance the right depends upon some additional fact and cumulative qualification, which may as perfectly exist without as with citizenship.

I am aware that some of our most learned lawyers and able writers have allowed themselves to speak upon this subject in loose and indeterminate language. They speak "of all the rights, privileges, and immunities guaranteed by the Constitution to the citizen," without telling us what they are. They speak of a man's citizenship as defective and imperfect, because he is supposed not to have "all the civil rights," (all the jura civitatis, as expressed by one of my predecessors,) without telling what particu