mine for himself if his interest is to remain a member of the society in which he was born, and if he thinks not he may quit it; for the obligations of a man to his country may naturally change, alter, or vanish when he quits it legitimately and with reason.* That there are three cases where the citizen has absolutely the right to renounce and abandon his country: 1. When he cannot find subsistence in it. 2. When society absolutely fails to discharge its obligations to the citizen; for, he says, the contract between society and its members is reciprocal, and when one fails to fill the engagement the other is discharged. 3. When the nation or sovereign establishes laws upon matters in regard to which the nature of the social compact does not oblige a member to submit himself, as in matters of conscience, by prescribing one religion and prohibiting others. Speaking of the right of emigration he says it may be derived from several sources, as laws, treaties and the express grant or license of the sovereign, but that in the cases he has just discussed it is a natural right reserved in the agreement of civil compact. That the citizen or subject of a state who absents himself temporarily without intention of abandoning the society of which he is a member, does not lose his quality of citizen by his absence, but preserves his rights and remains bound by the same obligations. Received in a foreign country, in virtue of the natural society, of the communications and the commerce which nations are obliged to cultivate among themselves, he ought there to be considered as a member of his nation and treated as such. Vattel correctly thinks that the duty of defending a country devolves upon all who are permanently domiciled there and accept its protection, and denounces as infamous deserters those who abandon their country in time of need; to whom he might have added those who seek to avoid all nationality, and are therefore unworthy of any; the rascals, for instance, who declared their intention with us, then in the midst of our troubles ran off to Europe to avoid service in the Union army, and in Europe pleaded their American citizenship to avoid service there. It is only the legal effect of a bona fide change that ought to be held beyond doubt or dispute. The change itself may, in each case, be properly held a question of fact. Fraud and pretence will vitiate it as in other matters, and in the cases just referred to either government should be at liberty to hold the swindler to service so that he would lose rather than gain by his wrong. The responsibility of deciding the fact of each case correctly and justly is with each nation, subject to the equally independent judgment of its neighbor and to the last and highest appeal of independent equals. Among more modern writers, Kluber, without discussing the questions of natural and public right involved, merely alleges, in a very few words, the right of the state to prevent emigration. He says nothing of those cases in which, emigration not being prohibited, the subject becomes a naturalized citizen of a foreign government and returns temporarily to his native country || Martens says it is a public right, universal and positive, for a state to determine at what point it is authorized to restrain or prevent the emigration of the natives of the country. Although the tie which attaches a subject to the state of his birth, or that has received him as a citizen, may not be indissoluble, each state has the right to be informed previously of a subject's design of expatriating himself, and to examine if for cause of crime, debts, or engagements not yet fulfilled towards the state, it is authorized still to retain him. These causes excepted, it is not authorized to prohibit his emigration." It is submitted that a better statement would be that only these causes limit the right or vitiate the legal and political effect of emigration; that when they exist the right of the government reverts whenever it can lawfully acquire possession or jurisdiction of the person; and that the mere fact of emigration without permission, without the license prescribed by law, is not itself a sufficient ground for continuing jurisdiction and subjection, without the existence of some of these causes of complaint. If leaving the state is not absolutely prohibited, then the forms for obtaining a discharge from allegiance ought to be held directory in their effect, not as creating or vesting a right, but pointing out a mode for exercising it, and that exercising it in another and innocent mode is not a wrongful or a void act. In other words, if the subject neglects what would be advantageous to himself, he ought yet to have the right to show that he had done no wrong to the state, or even to demand that the state shall show that he has done a wrong. Fœlix, the highest modern European authority upon that branch of jurisprudence which we generally denominate "the conflict of laws," while observing_that most ancient writers have limited themselves to stating the right of changing a man's domicile, omitting the question of a change of nationality, yet states himself, broadly and apparently without restriction, the right of a free man, of full age, to change his nationality.*** It will appear, from a fair review of the reasoning and the authorities applicable to the * Le Droit des Gans, Liv. I, Chap. XIX, Section 220. ↑ Le Droit des Gans, Liv. I. Chap. XIX, Section 223. ** La soumission au pouvoir souverain de sa patrie existe depuis la naissance de l'individu et continue aussi longtemps qu'il ne change pas de nationalité. La nationalité et le domicile d'origine se conservent * pendant tout le temps que'l enfant reste dans l'etat de minorité; car durant cette periode il n'a légalement parlant, aucune volonté. Mais aussitot que, conformément à la loi du domicile d'origine, l'enfant a atteint l'age de le majorité, il devient libre de changer de nationalité et de choisir un autre domicile. * + changement de nationalité résulte, ou de la seule force de la loi, ou bien de faits de l'individu.-Droit International Privé. * Le question, that those writers, statesmen, diplomatists, and legislators who have treated allegiance, which is imposed by benefits and protection, and is made definite or particular by the accident of birth as an indestructible political tie, have labored against reason, against nature, against the highest authority, and against the common sense and common practice of mankind. The states which adopt this theory are far more obnoxious to the charge of arrogance than those who accept and act upon the idea that a man has a right to choose his own nationality. They attempt to give their own will, their own municipal regulations, an extraterritorial effect, in this: that though they may enforce them only within their own territorial jurisdiction, they enforce them against those who, under the laws of nations, have become foreigners, and in matters wherein the public law of nations does not subject a foreigner to any but the command of his own government. Those matters of police, of civil order, and the administration of justice, in which all men found within the limits of a country are rightfully, for the time being, subjected to the government of that country, are indicated with sufficient clearness by the public law. There is also no question as to the duty of every man to do military service in the defence of that civil society of which he is a member. The question is, can he change that membership? change his nationality? And if he rightfully can, and if another nation or civil society may rightfully accept his proffered allegiance, then, both these things being done, it is a pure and arbitrary assumption in his native government to attempt to hold him longer. They would make their own regulations higher and broader than the laws of nature, and such attempts are never permanently successful. The duty of military service will itself help to illustrate the subject. The duty is to the nation, government, or society which renders protection and defence to the person and goods of the man. Then, by fact, by custom, and by the reason of the thing, he owes it to his adopted country. He cannot owe it as a legal and political duty to two countries at the same time, for this might work an irreconcilable conflict of jurisdiction and the most melancholy consequences, as in case of war between his native and adopted country. The latter would punish him for refusing to fight in its defence, and the former would shoot him as a traitor or a deserter for being found in arms against his native government. Such a predicament is not in accordance with reason or natural right, and it cannot be too often impressed that the real question, upon which all the others turn, is the right of the man to change his nationality and adopt another. And just so far as a free human being, endowed with affections and with reason, is superior to the soil from which he digs his sustenance, the territorial jurisdiction of a particular government, just so far, is the lawfully adopted citizenship superior to that which was lawfully, of choice, and without impediment, abandoned. Nearly all nations recognize this right of removal by permitting it. Not that all have formal statutes under which it may be granted upon application; some have and some have not; but in practice it is nearly universally admitted. Occasionally it has been forbidden, and in some countries it is exercised under restrictions; but these regulations are the exceptions, while the exercise of the natural right has been the rule, both in ancient and modern times. The mere fact of allowing a man peaceably and openly to remove ought to be held a consent by his government to his removal which it could not subsequently revoke or ignore. It is not sufficient to say that his government had a law, by which, if he desired, he might apply and be formally released from his bond of allegiance, so that its duties could not be afterwards required of him. Had it a law prohibiting his removal and change of allegiance? And if it had, was he yet in point of fact allowed to exercise his own option to make the change or not? Was he in default in his relations to the state in any of those matters mentioned by Martens ? And from the strength and clearness with which the best authors put the natural right, which is the main foundation of international law and duties, it is worthy of consideration whether each nation would not be justified in determining for itself how far it would regard or disregard the prohibitive policy of other nations, when that policy, and the municipal law or regulation for its enforcement, are based upon mere opposition to emigration, or upon a claim of continuing rightful power over the emigrant, or upon both, without the existence of those conditions named by Martens as exceptions to the right. The old exploded idea that a nation may impoverish itself, and give its fields and manufactures up to waste, by allowing its artizans and agricultural laborers to remove from its borders, is not fit to be urged at this day when the real sources and causes of permanent national prosperity are so much better understood than they formerly were. The idea is only a modified form of slavery, and slavery is no longer approved. If all the people of a country would voluntarily leave it, that is proof sufficient, either that the country itself is not a fit abode for man, or that its government is such as men ought not to live under; and to compel a man and his descendants to live in such a country against his will is to a certain extent enslaving him that a government may exist on a certain part of the earth's surface-a good illustration of the idea, not yet entirely abandoned, that the people were made for the government, rather than the government for the people. But all of the people, nor too many of the people, will not leave any country, allowing that happiness is the chief and the highest earthly object of existence. The limit and the remedy are entirely natural; they are founded on the laws of population, production, and exchange. When such a proportion of the inhabitants of any district of the earth have abandoned it as will make or leave labor nearly as profitable there as in the countries which attract the emigrant, then (political and religious causes aside) emigration will cease. The profitableness of labor is here used with reference to its capacity or efficiency in obtaining for the laborer the necessaries of life; and in this view the price and quality of land are primary considerations in determining the real productiveness of labor. The wit of man will not devise any other remedy or regulator of the course and numbers of emigration than this natural one, the law of values, of production and exchange. It is a law higher than edicts and statutes. It is the law of nature and of nations, a condition of human existenice. It may be compared to those rights which the jurists say were not acquired or granted, but were born with the man. All nations and governments have practically acknowledged its paramount authority by their own general course of conduct. All free peoples have exercised it. And aside from the right, the impolicy of attempting to constrain any large number of persons to reside where they do not wish to remain is too apparent for discussion. The right to go elsewhere implies the right to seek for admission into other civil societies, and, upon admission, to become a citizen and be the recipient of the benefits of another government. By permanently settling in another country and adopting the forms prescribed by its laws, the immigrant either becomes a citizen of that country or he does not. If he does, he is a citizen without qualification, as to other nations, both in his duties and in his rights, and is entitled to the full benefit of the protecting arm of the government. If he does not thus become a citizen, he remains a subject or citizen, though residing in a foreign land, of the country of his birth, the government of his native allegiance. He cannot owe allegiance to both. This observation is made with reference to the external relations of independent and equal sovereignties. It has no reference to an internal dual system of government, under which in some things the general or national, and in some things the local or municipal government commands the obedience of the citizen, whether this be considered as being really a duality, or only the different forms of expression for different purposes of the one sovereignty, the details being merely matter of arrangement and convenience. But the idea of a double allegiance and citizenship united in the same person, and having reference to two separate, independent, and sovereign nations or governments, is simply an impossibility. And those writers and jurists, some of them of our own country, who have spoken of a double or dual citizenship and allegiance, have not, it will be found upon examination, meant really to define any such impossible thing. The cases will be found to be only those of native allegiance and foreign domicile, or the allegiance of birth and an inchoate adopted citizenship, or that temporary state of suspense and transition (sometimes happening in the case of civil convulsion and revolution) during which the right of election to become the adherent of one government or the other may be exercised. But this right of election cannot remain unexercised for indefinite length of time at the pleasure of the party. It will be presumed to have been made within a reasonable time; this presumption must be held conclusive, only allowing it to be a question of fact how the choice was made. If, then, a citizen or subject has the right of removal, and if another nation has the right to make him a citizen by naturalization, when emigration and naturalization are both accomplished, what should be the effect? In accepting the offer of the duties of allegiance we assume the reciprocal duty of protecting the citizen in all the rights and immunities of citizenship. We require him to renounce all former allegiance, and especially to the king or potentate under whom he was born. In assuming to do this, and in accepting his oath of allegiance, his covenant of citizenship, the evidence of his membership of our civil society, we also, of necessity and in fact, and not by mere implication, covenant to afford him protection as a citizen. The difficulty in the way of the performance of this duty is that the government of the naturalized citizen's native allegiance claims, and occasionally exercises, the right of coercing him to the performance of military or naval service when he is again found within its jurisdiction. It is said we may protect him against this claim and in all respects regard him as a citizen wherever he may go in the world, except within the borders of the land of his birth, within the territorial jurisdiction of his native allegiance, where, if he returns or goes there voluntarily, he is held accountable to its laws and the burdens of the allegiance to which he was born. The distinction cannot be maintained on principle. Either he had a right to become an American citizen, or he had not. If he had that right and has exercised it, he is no longer a citizen or subject of any other country. Either we had a right to make him a citizen and to accept his proffered allegiance, or we had not. If we had that right and have exercised it, he is thenceforth a citizen of the United States to all intents and purposes wherever he goes on the face of the earth, until he again exercises the right of expatriation. Why do we demand of him to renounce especially his natural allegiance? If he may be seized whenever found within the limits of his government, it had been sufficient for us, and certainly better for him, that we had simply required of him an oath of fidelity so long as he chose to remain in our midst. I speak now of the one question of military service as resulting from or depending upon the fact of citizenship or nationality. In regard to punishment for crimes or offences committed before expatriation, there is no difficulty. The government of the United States approved the conduct of Captain Ingraham in defending and releasing Martin Koszta, an Austrian subject by birth, but who had declared his intention to become a citizen of the United States, and who had been arrested outside of Austria by the officers of an Austrian man-of-war, to be transported to Austria and there tried for participation in the Hungarian insurrection. He was at the time outside the territorial limits of Austria, outside the jurisdiction of that government, and within the well-known limits and jurisdiction of a third power; and our government and people deemed the case a proper one for interference.* It is true European publicists have generally condemned the conduct of Captain Ingraham, not only on the merits of the question involved, (the facts of which they state quite differently from any version generally known to the American public,) but also because Captain Ingraham was about to, and had threatened and prepared to inaugurate an armed naval conflict between the public armed vessels of two nations not at war, and (upon which they put more stress) within neutral waters, within the maritime jurisdiction of a third power, within which it is not lawful to commit hostilities. Whatever consideration this objection may be worth, those who have urged it with so much confidence seem to have forgotten that the first use of force, and the first approbation of lawless force already used, and within the same neutral jurisdiction, was by the Austrian officers in getting possession of the person of Koszta, and that it was to prevent the continuation of this force by the consummation of the deportation of Koszta, that the American frigate brought her guns to bear and hreatened to use them. But when Simon Tousig, another subject of Austria, who had declared his intention under the naturalization act, voluntarily returned within the jurisdiction of the Austrian empire, and was arrested for the same cause of offence, participation in the Hungarian insurrection, the government of the United States, after mature consideration, declined to interfere; upon the ground that the charge against him was that he had committed an offence against the government and laws of Austria, while an undoubted subject of that empire, and had voluntarily placed himself again within its jurisdiction. Mr. Marcy said: Tousig voluntarily returned to Austria, and placed himself within the reach of her municipal laws. He went by his free act under their jurisdiction, and thereby subjected himself to them. If he had incurred penalties or assumed duties while under these laws, he might have expected they would be enforced against him, and should have known that the new political relation he had acquired, if indeed he had acquired any, could not operate as a release from these penalties. Having been once subject to the municipal laws of Austria, and while under her jurisdiction violated these laws, his withdrawal from that jurisdiction and acquiring a different national character would not exempt him from their operation whenever he again chose to place himself under them. Every nation, whenever its laws are violated by any one owing obedience to them, whether he be a citizen or a stranger, has a right to inflict the penalties incurred upon the transgressor, if found within its jurisdiction. The case is not altered by the character of the laws, unless they are in derogation of the well-established international code." These were cases of offence, and it is deemed material to note carefully the ground upon which they were placed, to avoid confounding them with the case of military service. But suppose the case of Koszta had been a claim of military service, merely upon the ground that he was an Austrian subject by birth, and not that he had ever failed or refused to render any term of service due or demanded; and suppose there had been a treaty of extradition between Austria and Turkey providing for the rendition and delivery of such persons, from whom such services were claimed, on such grounds, and that under such a treaty Koszta had been demanded by Austria and delivered by Turkey? Against whom would we have had a complaint? Austria, Turkey, both, or neither? In general terms each power is the sole judge of what laws it will make for the government of its own subjects, and each state must judge what extraditions it will grant. And if it grant them in the case of a demand of military service against the naturalized citizens of a third power what remedy has that power? It has a very plain remedy. Its own laws are of as much force and dignity as the laws of any other nation. Neither can give laws to the other, but in case of conflict each may and must judge for itself whether its own laws or those of its neighbor are more in accordance with natural right and the laws of nations, and act accordingly. This does not signify, as some have thought, that there is no such thing as the law of nations. It only signifies that there is no tribunal over the two nations to decide between them which is right. And if this must sometimes lead to the last resort, it is yet true that this right of independent judgment, vested in each independent nation, is the surest means yet discovered of securing respect for the rules of the international code and the reasoning upon which those rules are founded. So that in effect the whole question is whether a man is a fit subject for the protection of the United States, and has a right to that protection as a citizen, not against his former crimes, but against a continuing claim of military service after he has changed his citizenship and nationality. Or, to make it shorter, can he change, and has he in reality changed, his citizenship and nationality? If he has, then that protection must logically follow him wherever he goes, for the manifest reason that it is a political status, a legal right, a personal quality, and not an accident of time or of place. A great European writer, in discussing elementary principles, has well and beautifully remarked that it is a poor justice that is bounded by rivers and mountains. The remark was not made, and is not now referred to, *Mr. Marcy, as Secretary of State, also correctly put the case upon the ground that Koszta had been banished by Austria, and that banishment, under the laws of nations, operates a release of allegiance. In thi position he is sustained by reason and the highest authorities. 66 in any spirit of propagandism or national egotism. For the administration of municipal justice, forms and even legal rights may, and often ought to, vary, in different countries, on different banks of the same river, and even upon different sides of an imaginary line upon land. But there are some principles of elementary right and justice, too large, too fundamental, too vital to be thus bounded. Citizenship is one of them. Just as a national public vessel of war carries with her a little atmosphere and a little sea of her own, just as the decks of a merchantman are the terra firma of her government, so a citizen should be a citizen wherever he goes for a legitimate purpose and with no act or intention of expatriation. Who was a Roman citizen, whether by birth, by choice, by conquest and adoption, or by emancipation, was a Roman citizen wherever choice, or accident, or the command of his American government carried him. Civis Romanus sum was his passport and his shield. citizenship is as noble as Roman and should command no less deference among the nations. There is in print an extract from one of Mr. Wheaton's MS. despatches, while he was minister at Berlin, that may be thought not to coincide with the view of the law here contended for; though in his standard work he adopts the opinion of Felix and states that: "The allegiance to the sovereign power of his native country exists from the birth of the individual, and continues till a change of nationality.' The extract referred to is from a letter addressed by him to Mr. J. P. Knocke in 1840 in answer to his application for protection from military service demanded of him by Prussia. He wrote to Mr. Knocke: Had you remained in the United States or visited any other foreign country (except Prussia) on your lawful business, you would have been protected by the American authorities, at home and abroad, in the enjoyment of all your rights and privileges as a naturalized citizen of the United States. But having returned to the country of your birth, your native domicile and national character revert, (so long as you remain in the Prussian dominion,) and you are bound in all respects to obey the laws exactly as if you had never emigrated." Taken literally, by itself and without reference to the facts of the case or to his opinions as expressed at other times, this language would seem to be sufficiently broad. But Mr. Wheaton was then disposing of a given case, and to appreciate the precise meaning of his language we must take it as we do the opinion or judgment of a court, with reference to the facts and questions before it. The writer has not now access to all the facts or the entire despatch in that case. If Mr. Knocke had left Prussia in default of having rendered service due and demanded, then, as applicable to that state of fact, the language of Mr. Wheaton is only an expression, But if Mr. in a different form of words, of the opinion of Mr. Marcy in Tousig's case. Knocke was in no such default, and the action of the Prussian government was based generally on the supposed immutability of natural allegiance, then the opinion of Mr. Wheaton was error and is not consistent with other opinions expressed by that great jurist. Besides the position stated in the text of his standard work, his biographer states that before he was sent abroad in a diplomatic capacity he had published an argument in the United States, advocating the right of expatriation, in response to a contrary opinion by Gouverneur Morris, at a time when British authorities were threatening to execute for treason the naturalized citizens of the United States of British origin, who might be taken prisoners of war, at the same time that "military service was exacted from natives of the United States domiciled in Canada." Such a threat, coupled with such treatment of domiciled Americans, is not prop erly described by calling it illegal, inconsistent and arrogant; it was to the last degree barbarous, and any government that should tamely submit to such treatment of its naturalized citizens would be as hopelessly covered with shame as the government that should inflict it. If that argument of Mr. Wheaton's is still in existence it would be of no less interest now than when it was first made. There is little difficulty in discerning the origin of this idea of an irrevocable natural allegiance. It is eminently feudal in its nature, and, as to the modern western nations of Europe, purely of feudal origin. The born vassals, villeins, followers, attached to the soil and sometimes transferred with it, the fighting machines who went to the wars of ambition, spite, rivalry and gallantry of their masters, were not citizens or free men. They held by the tenure of military service, and they owed a personal fealty to the liege lord that could not be shaken off at pleasure. Such a practice or such an idea would have been a logical, perhaps a practical, dissolution of the whole system, and therefore the system could not have tolerated it, for the system was one of gigantic proportions and of tenacious vitality, grasping with an iron hand and repressing with an iron will. The idea of loyalty to the person and fortune and to the family of a chief, and of the indissolubility of that allegiance, were fit and appropriate parts of such a system. They were necessary to its existence. The idea of loyalty to a government as distinguished from the person of the governor, to a government as the embodiment and operation of certain principles, to a government as a thing of compact, positive or implied, was more than the mind of that age could reach, and had the conception been possible it would have been deemed an atrocious crime against the rights of That organization was hose who were the born lords of that social and political structure. incompatible with the personal freedom of the masses, with the expression and dominance of anything like a public opinion, and with any healthy and efficient nationality. And it crumbled, not suddenly but stubbornly, before the advance and increase of personal liberty, *Elements of International Law, part II, chap. II. |