public opinion, and a consolidated nationality under one lord paramount. Tenures changed from feudal to allodial, and fealty was transferred from the liège lord to the lord paramount. Thus came national strength, local tranquillity, security of estates and the personal freedom of the masses. In every instance the mass of the people have sided with the national sovereign in effecting this change.

But systems of thought, of government, and of education, often leave an influence or an idea to survive them long after they are in their main features abandoned. When feudalism and its tenure, its service, its remorseless caste, were gradually undermined and finally broken down by the combined force of the benign and elevating influences just_named, it left as an evil legacy this idea of the perpetuity of natural allegiance, transferred from the liege lord to the state.

And that was not the only evil it left to the world. Out of its abundant storehouse of untruth, error, born of force and made insolent by prescription, a system of legal and political metaphysics, artful and seductive in proportion as it lacked the real natural bottom of right, there were transplanted across the Atlantic the germs of those ideas of the separateness, the completeness, the rivalry, the chivalry of neighboring communities as to each other, and their jealousy of a predominant nationality; and also those ideas of caste, of land and land owners as the rightful political power of a state, and of land tillers as a class politically and socially degraded; those fears of being overshadowed or absorbed, so naturally inherent in the system, and that idea of local allegiance as being the first and highest duty of the follower, all which, under different names, culminated in our own great war. In that contest a great majority of those who were engaged against the government earnestly believed in the cause they had espoused, and fought bravely for local dominion and feudal ideas, and thus, if there was some wickedness in the attempt, there was far more that was the natural production of historical causes. But the good and the bad combined fought against the whole tendency of modern civilization and political development, with tolerably even physical chances, yet morally they contended against destiny, and the battle was lost before it was fought. By a singular and enormous growth from those unobserved political seeds planted in the western hemisphere in our very origin; in the discovery, conquest, and settlement of the continent; in its division and government by grants, charters, plantations, and colonies; and the introduction of a colored serfdom after the white slaves of England had been set free, it has happened that a great democratic republic, in order to achieve a real and substantial nationality, a real and substantial equality and freedom of citizenship, has lately had to pass through the same conflict with the spirit of feudalism, caste, and local allegiance, which the great monarchies of Europe had, each at different times, partially accomplished in the 15th, 16th, 17th, and 18th centuries.

Long since most of the governments of Europe, by an alliance between crown and people, have triumphed over the idea of a local, feudal allegiance. In Germany and Italy, where this consummation has been delayed by causes too prolix to be here discussed, the twin spirits of national union and personal liberty have lately achieved the same great result. But the monarchies, many of them mild and constitutional, which have been thus built, in one sense on the will of the people, and certainly on the ruins of feudal arrogance and feudal allegiance, have not always accorded to the citizen an increase of personal liberty in full proportion and correspondence with this increased development of political nationality; and one of the most notable exceptions is this claim to perpetual and indissoluble allegiance— this refusal to admit, in all its political consequences, that while a man must obey some one government, and that the government of his residence, he may live and labor wherever his inclinations and his interests dictate. That great and most gratifying progress has been made is most undoubtedly true. For ourselves we claim, not with boasting, that we have now realized in fact the idea of a positive, undisputed nationality, based on free and equal citizenship. The form of political structure is immaterial, in its relation to the international rule here contended for. We have never asked others to adopt our ideas of internal government; only we proclaim our country a home and a field for useful and remunerative labor for all who come, exacting of them loyalty and obedience while they accept our protection, and granting them the right of dissolving the relation at pleasure, by removal to another country. It is upon this broad, simple, and natural basis we ask others to settle with us the question in hand.

I cannot regard this part of the discussion as a digression, or as being immaterial. The question is one of such extreme interest that we cannot well and safely ignore its history in the past or its relations with present tendencies. Everywhere in the civilized world the people are showing a marked preference for great and vigorous national governments, especially when this nationality can be built upon identity of race and language. In that direction the citizen moves with even more enthusiasm than the government. Great national governments and a high degree of natural personal freedom are twin and indissoluble parts of the modern political systems that have succeeded the feudalism of the middle ages. This is no accident, any more than the commercial and mechanical activity and success of the century are accidents. And those governments in whose greatness the citizen finds at once his pride and his protection can well afford to cast away the last material political remnant of feudalism and grant to each citizen a degree of liberty in choosing his residence commensurate with their own real greatness. They depreciate rather than minister to their power when they deem it necessary to resort to the harsh claim in question.

While most European governments cling with great tenacity to the theory of an indissoluble natural allegiance and the right to enforce the rendition of military service to them by our own naturalized citizens, we do them the justice to say that few of them enforce it rigidly and uniformly. Yet it is sometimes enforced, men are sometimes imprisoned for refusing it, and some avoid the service and the prison by the employment of a substitute, and yet far more frequently American ministers and consuls are put to the humiliation of asking or in any event of accepting as a favor or courtesy a release which ought to be due as a matter of right. It is submitted that the time has come when if, after due and careful investigation of the facts, interference is deemed proper, the release should be demanded as a matter of right. If estimated by the real number of soldiers which this claim enables the sovereigns of Europe to put into their armies, it has to them no practical value whatever, and they would lose no material force by promptly and frankly abandoning it. But if estimated by its effects upon the person, the feelings, the happiness and the liberty of the citizen when it is enforced, its importance cannot be exaggerated. For a man who thinks he is a citizen of the United States and whom we have solemnly declared such, who has lived in our midst as such for years, and who left his native country in conformity with a custom so undoubted and general that the jurists say it amounts to a public law, and left it with no complaint or undischarged duty hanging over him to return with a sense and conviction of security as they do to visit relations or transact temporary business in Europe, and be arrested and constrained to render years of military service to a government whose protection and allegiance he has renounced, or to lie for months in a loathsome prison for his refusal, is a bitterness and a cruelty that does not find adequate expression in language. Heaping upon it epithets only hides with words the enormity of the fact. It is a thing that ought not to occur, and it is believed that there is not now a government in Europe that would insist upon doing it if thoroughly satisfied that it could only be done at the risk of war with a republic fighting for the personal liberty of its citizens. Much as they might believe in the right to do so it would also be considered that no monarch would increase the affections of his people, so many of whom contemplate emigration or have friends who have emigrated, by engaging in such a contest. Several governments of Europe have a law whereby a man desiring to expatriate himself can make application for that purpose to the executive government, and, no objection appearing, he may be absolved from his allegiance, to go into effect, of course, only upon his emigration from the country. From the custom of unimpeded emigration, from inattention, and often from positive ignorance of the law, the instances are comparatively rare of such applications being made. The result is that foreigners, on being naturalized in the United States, naturally suppose that the change is a real one, and that their new citizenship inheres in them as a quality, from the date of the oath and certificate, and goes with them and hangs over them as a substantial protection wherever they go. It is only upon revisiting the land of their birth that informers and the secret service of the police department awake them to the most unwelcome surprise and disappointment that could possibly overtake a man. Some of them grow indignant and defiantly flaunt their papers into the faces of the authorities. All ultimately seek the assistance of consuls and ministers. In a case coming under the cognizance of the late Mr. Wright, while minister at Berlin, less than two years ago, the emigrant was thirteen years old when he left Prussia with his brother for the United States. If he had emigrated or been carried from the country while at his mother's breast, the legal claim to his service would have been just as strong. If one is valid the other is. The harshness and absurdity of such a case may more sensibly arouse our indignation, but it is as strong in law as that of the grown up man who emigrates without being indebted for a definite term of unperformed military service. The cases all rest alike on the fact of the birth and the theory of the perpetuity of allegiance. It is unworthy of the subject to say that a man goes back to Europe with his eyes open, and if he would avoid trouble let him stay away. He may have good and sufficient reasons for going; it may be necessary for him to go, and the only question is has he a right to go as an American citizen.

When these cases are brought to the knowledge of American ministers and consuls, these officials always in a proper way protest against the proceeding and ask for the discharge of the unhappy man. Then naturally comes a discussion in which the American view is insisted upon, the right of expatriation is defended, and the liberality of the American theory in the matter in dispute is affirmed. Then he is politely reminded that the government claiming the service and making the arrest had a law by which the detained man probably would have been allowed to absolve himself, if he had applied for that purpose, and that we have no such law; and, it is alleged that there is no mode provided or known by which a man born a citizen of the United States can cease to be such. In vain do we reply that he may go where he pleases, and that the right of expatriation is with us so universally recognized, and practiced so entirely without restriction, that no law upon the subject is deemed necessary; and if the fact is hinted that there is neither so much desire nor so much necessity for leaving the United States as other countries, it takes more the form of pleasantry than serious argument. The foreign diplomatist thinks he sees, perhaps does see, an immaterial technical advantage, one which sounds well or reads well, though it may be without reaching the marrow of the case, and we cannot complain if he uses it. He thus claims to show that so far as municipal law is concerned, his own government is more consistent than ours, and that, much as we complain of his practice, his laws are, more nearly

than our own, conformed to our more advanced ideas of the law of natural right involved. However immaterial this polemic advantage may be, it is one which ought not to be allowed to exist a day beyond the adjournment of the next session of Congress.

The opinion has been attributed to several of our most noted and learned statesmen that an American citizen cannot, as to his own country, cast off his citizenship, and that though we regard his expatriation as a right to be exercised at his option, it is effectual only while he remains abroad; gives him, as to his own government, only domiciliation in another country, and that immediataly upon his return to the United States he is clothed with all the rights and held subject to all the duties of citizenship; and this though he may have been regularly and formally naturalized in another country. It is difficult to discover any sufficient reason for this opinion. It is inconsistent with the position we assume in regard to our own naturalized citizens, and their relations to their former governments. It is very much the same position assumed by those governments. It differs only in the perfect freedom with which we allow the citizen to depart from our midst and live and labor elsewhere in the world. But this theory gives no more political or legal effect to the change than other governments accord to it. The opinion is quite easily sustained by a reference to the British or common law doctrine of allegiance, which it is said we have inherited as a part of the common law of England. But there are two sufficient answers to this course of reasoning: the common law of England is not the international law of the world; and we have inherited and adopted the common law of England only in so far as its provisions and its reasoning are adapted to our new situation and our political institutions. Therefore the common law doctrine of indestructible allegiance is not a part of the system of American law any more than it is of the international law.

The non-professional reader who does not wish to pursue the subject through Foster, Hale and Blackstone will find a very good statement of the English doctrine in the Encyclopedias under the title of "Allegiance. "The allegiance of a subject, according to the law of England, is permanent and universal; he can by no act of his own abjure or repudiate the duties which it involves; nor can he, by emigration, or any voluntary change of residence, escape its legal consequences."

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"The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors under the feudal system, &c. * Allegiance, both express and implied, is divided by the law into two sorts or species: the one natural, the other local; the former being also perpetual, the latter temporary. For it is a principle of universal law that the natural-born subject of one prince cannot by any act of his own, no not by swearing allegiance to another, put off or discharge his natural allegiance to the former, for this natural allegiance was intrinsic and primitive, and antecedent to the other, and cannot be divested without the concurrent act of that prince to whom it was first due. Indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another, but it is his own act that brings him into those straits and difficulties of owing service to two masters; and it is unreasonable, that by such voluntary act of his own he should be able at pleasure to unloose those bands by which he is connected to his natural prince."t

This is a correct and logical statement of the English doctrine, and the reason and the origin of the thing sufficiently appear in the statement. There is no difficulty in understanding it. There is an "intrinsic, "". primitive, ," "perpetual" quality in "natural allegiance that is outside of and higher than the reciprocity of obligation between citizen and government. It is the relation between the "natural-born subject" and the "natural prince," and prince is used synonymously with "master." It is a natural and symmetrical part of the theory of divine right, non-resistance and passive obedience. It is a correct legal deduction from premises which assume, in relation to the particular subject-matter, that the rights and prerogatives are all on the side of the prince, and nought on the side of the subject. It is intensely feudal in its character, and is therefore consistent with the obsolete system of which it is a surviving fragment, but plainly inconsistent with that splendid and solid fabric of personal liberty, and of constitutional, responsible government based upon public opinion, which is the glory of the British isles and a wholesome influence over the civilized world.

We have now, at some length, prepared the way for stating in a few words what is meant when it is proposed that we shall be consistent with ourselves upon this subject. First, in regard to our own laws: either repeal our naturalization laws, thus only allowing foreigners to become domiciled among us, extending to them the protection of our laws, and demanding of them obedience while in the country, but allowing them to carry with them not a particle of our obligation beyond our territorial limits and jurisdiction; or enact, as a part of our system of laws upon the subject, a suitable well-considered expatriation act that will make our statutes applicable to both sides of the matter, consistent with themselves, as broad as the convictions and the practice of the American people, in harmony with the position we assume towards other nations and the concession we seek to obtain from them; will put us on a footing of reciprocity, and thus will give us a vantage ground which at present we do not occupy. The fact of removal, residence, and the assumption of other allegiance should be held a sufficient dissolution of his obligation of allegiance to our government, without the

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formality of a previous permission and release. A fraudulent or pretended removal, naturalization and return, by which a native might seek to reside among us as a foreigner to avoid military service, or for other purpose, would be a question of fact to be determined upon the evidence. And so in an emergency of war the government could prevent all emigration or departure by proclamation or suspension of the law. If we have no naturalization laws, let it be understood that foreigners, domiciled in our midst, though protected while so domiciled, go abroad at their own risk. But if we continue, as at present, to assume to make a foreigner a citizen, and to accept his oath of fidelity as such, and to impose on him the burdens of citizenship, then we should extend to him its rights and protection wherever he goes, and should plant ourselves without compromise on the position that a bona fide naturalized citizen of the United States shall neither be punished for serving in our armies, nor compelled to serve, against his will, in the armies of any other government, nor be imprisoned or otherwise punished for refusing to do so. A perfect willingness and readiness to insist upon this position just so far and in just such forms as others may make proper and necessary, will make it the accepted undoubted law of the world without a blow struck or a shot fired.

In adopting an expatriation law there must be some cardinal principles observed, and they should be the same of which we demand or concede the observance by other nations. The rule of right in each case is necessarily the same. Every government has powers and rights appertaining to it as such, as well as having duties towards the several persons of the community, and it is not competent for any individual to avoid the exercise and discharge of these by merely retiring from that government and becoming a member of another. There are three matters that come naturally to be considered in this connection:

First. As to debts. Every man must be held responsible in the civil courts of a country for the debts he contracted there before he retired from it, and therefore may be proceeded against for them upon his return, as he may be for all debts contracted during his temporary sojourn there. As nations, by comity, allow foreigners access to their own courts against their own citizens, so foreigners must be held liable to answer in those courts, when found within their jurisdiction, to the complaints of the citizens. A man does not discharge a debt by becoming a foreigner through the process of naturalization, and so plain a matter is mentioned only to keep clearly in mind the reason of the thing, and to avoid confounding this just jurisdiction, by any false analogy, with the right to demand and the duty of rendering military service.

Secondly. As to crimes. As a man is amenable to the laws of any country where he may choose to go for crimes and offences committed while there, so, being charged with the commission of an offence while a subject of the government complaining of the infraction of its laws, he cannot escape liability to punishment by removing himself from that country and taking upon himself allegiance to another government, but must be held answerable whenever found within the jurisdiction of the government whose laws he has violated. Here too we must avoid confusion, for the ground upon which this rests is totally different from that of military service. In addition to Mr. Marcy's observations in Tousig's case, those who wish to peruse a complete essay upon this branch of the question will find it in the report of Mr. Webster, as Secretary of State, to the President in response to a resolution of inquiry by Congress in the case of John S. Trasher.*

Thirdly. As to the rendition of military service, which is the only real difficulty in the way. Every subject or citizen of a government owes that government military service when needed to defend the country, or to execute the laws of the government. If that service is not voluntarily rendered when asked for, the government has the right to enforce its rendition. This need not be enlarged upon. Whether force, express compact, prescription, or tacit consent be the foundation of any government; the use of force, when needed for the legitimate purpose of protection, which embraces punishment and all just compulsion, is the last and highest object of its existence, to which all other means are subsidiary or preparatory; and without this capacity of force on the part of the government, and the corresponding duty on the part of the citizen, he is a greater loser than the government. How the relation of allegiance may be dissolved we have attempted to point out. But just at this point some foreign governments affirm that this duty to the government of one's native allegiance is so innate and permanent that it cannot be dissolved at the option of the subject or citizen, even by permanent removal to another country and the solemn engagement of loyalty to another government. This is the position or assumption we combat, and it is the point upon which the whole question turns. A subject or citizen surely cannot absolve himself from the duty while he remains such. Neither will a foreign naturalization, manifestly sought for the purpose of avoiding the service, or any other obligation of citizenship and loyalty, have any such effect in favor of one who returns to remain or even to sojourn within the government of his native allegiance. Such a change may be treated as fraudulent and absolutely null and void. But such cases would be so rare that they scarcely deserve to be considered as any impediment to a just understanding and a satisfactory practice upon the subject. The change must be in good faith and accompanied with corresponding action and residence; and while the effect of such a real change ought to be an admitted rule of law, the good or bad faith of the transaction ought to be only a question of fact. There being no room for dispute about the law, self-interest would make it incumbent on each government to avoid

* Webster's Works, vol. vi, p. 521.

carefully the appearance of straining the facts to find a wrongful intention of avoiding a rightful service. If two governments differ about the facts, having opposite opinions of what is the truth, it is no more than happens in many other cases. Every government may prohibit expatriation or abandonment of the country, or even departure from it, by able-bodied arms-bearing men, during war. It would not be fair to allow a man to run off and take an oath to another power, and return to remain an exempted foreigner in our midst, or, remaining abroad during the war, to return and simply resume, without further change, all his rights as a citizen.

If these observations have been well founded, it results that the true line of distinction would be to put such cases, as near as possible, on the same footing with that of crimes or offences committed before emigration and naturalization. European governments adopting in some measure this line of reasoning, draw too broad a conclusion from it. They hold that the government having the right to demand, and the citizen being undoubtedly under a general obligation to render the service, and some governments requiring that a certain term of service shall be rendered by every man fit for military duty, in person or by substitute, that emigration from the country before that service is rendered is in the nature of an offence or crime for which the party may be punished on his return; and emigration, before a certain term of service is performed, is too apt to be held a conclusive presumption that to avoid the service was the object of emigration. This is only running round a circle, the central idea of which is that each nation may, by its own municipal laws and regulations, determine the whole question, as to its own native citizens, without regard to international law, and without regard to the municipal or statute law of other governments; an assumption which, we have already submitted, other governments are not bound to regard as true or conclusive. The right to require the service is based on the relation of the citizen or subject to his government; but this relation does not exclude the right of the citizen to cease to be such by changing his nationality. The two rights must both be observed, and the two rules of law are not at all incompatible. It is observed that in practice the arrests are not generally, though occasionally, made for the purpose of punishing the former subject for not having served a given term, but he is arrested for the purpose of enforcing the service. It is a forcible conscription more often than a punishment for an alleged desertion. War, military service, being the exceptional and not the normal condition and business of mankind, and the duty of the citizen or subject to fight for the government, or to drill for a certain number of years in its armies, being, by the common consent and practice of mankind, a duty to be performed on demand made, and at a time and place fixed by law or summons, so that what of a man's time is not thus needed and demanded may be devoted to the support of himself and family by ordinary labor, it would seem just that if the subject has emigrated at a time and in a manner not prohibited by his government, (a prohibition that can be made justly only to meet the exigencies of actual war,) so that in the mere act of leaving the country he violated no law, and has become a naturalized citizen of the United States, then the only pertinent inquiry would be whether he was, at the time of emigration, in default of the rendition of service due or demanded, and not whether, in general terms, he was of an age and physical capacity that made him liable to be called into service, or had not served that term of months or years to which he might be held by his government. There must be a distinction, a line of division somewhere, for if a foreign government may rightfully compel military service of every man who was born under its allegiance, and may pursue him with this claim throughout his life, regardless of the length of time he has lived elsewhere, and regardless of the allegiance he has sworn to another government, it is difficult to see why the principle may not be extended still further and applied to the children of such born subject, though his children were born in the United States. It is no material or logical difference to say that he was born in Europe but that his children were born in the United States. The point in the case is that his birth is claimed to have made him a subject in such irrevocable fashion that he cannot cease to be such, therefore he was such during his entire residence in the United States. Then as children of a subject or citizen born abroad are generally held and admitted to follow the allegiance of the parent, it is precisely the argument of birth that gives the foreign government the right to claim the allegiance and demand the military service of the American born children of the naturalized citizen of the United States. Any other conclusion, following the line of the argument we combat, would make the father subject to one government and the children of his family subject to another, and a family divided in their allegiance and therefore divided in their duties in case of war between the two governments. The absurdity and enormity of such a thing, and of the idea that foreign governments have any valid claim to the allegiance and military service of a fourth or a third of the people of the United States, so far from showing that the conclusion just stated is not a logical result of the pretensions set up, only shows that those pretensions have already been carried too far. The necessity and advantage of an expatriation law has attracted the attention of the Supreme Court of the United States,* and it is curious, considering the nature of our differences with foreign governments upon the subject, that such a law has not before now obtained the earnest and practical attention of the legislative department of the government.

*See Inglis v. Trustees of Sailor's Snug Harbor, 3 Peters, 99, and Shanks v. Dupont, 3 Peters, 242, for much interesting matter upon the subject of allegiance, and the election and change of nationality.