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quired all the commercial rights of his domicil before the occurrence of those circumstances which occasioned the acts of Congress," and that the case of the Charming Betsy determined that the vessel and cargo were not liable to forfeiture under those acts. (Maley v. Shattuck (1806), 3 Cranch, 458.)
C., a native of New Jersey, resided therein till some time in 1777, when he removed to Philadelphia and joined the British forces. He ever afterwards adhered to the British cause, and at the close of the American Revolution settled in London, where he always conducted himself as a British subject. Did he thereby become incapable, as an alien, of inheriting lands in New Jersey in 1802? It appeared that by an act of the legislature of New Jersey of October 4, 1776, it was declared that all persons abiding there not only owed allegiance to the State, but were also members of its existing government. By an act of June 5, 1777, a pardon was offered to such“ subjects” of the State as had been seduced from their allegiance to it; and it was enacted that their personal estate should be forfeited unless they should return to their duty by August 1, 1777. Many of the persons intended to be affected having failed to return, a new act was passed April 18, 1778, under which the real as well as the personal estates of such persons were to be seized, the personalty to be sold and the realty to be rented out. By this act the persons in question were termed“ offenders.” December 11, 1778, yet another act was passed, by which the estates of the “ fugitives and offenders ” mentioned in the prior acts were declared forfeited; and by section 2 every inhabitant of the State who had joined the enemy between April 19, 1775, and October 4, 1776, and who had not since returned and become a subject in allegiance to the existing government by taking the oaths of abjuration and allegiance, was declared guilty of high treason. Held, Mr. Justice Cushing delivering the opinion, that as, by these laws of New Jersey, which were still in force and were not affected by the treaty of peace, C. was incapable of throwing off his allegiance to that State, he did not become an alien to it, but retained his capacity to take lands within its limits.
McIlvaine 1. Coxe's Lessee (1808), 2 Cranch, 280, 4 Cranch, 209. This
was an action of ejectment. In the course of the argument, Mr. Justice Paterson said: “ Suppose he [C.] expatriated himself since the peace, what is the consequence? Does he thereby become a complete alien, so as not to be capable of taking lands by descent afterwards ?." W. Tilghman, counsel for defendant, replied : “ So I contend." Rawle, counsel for ('., argued the matter upon the laws of New Jersey, maintaining that they were conclusive on the subject. W. Tilghman, as reported, admitted that by the laws of New Jersey C. was “to be considered as a subject of New Jersey by force; and that the State had a right to make such a law. Ile had argued only upon the gen
eral ground, independent of the law of New Jersey." H. Doc. 551-vol 336
Article III. of the treaty between the United States and Würtemberg of April 10, 1844, provided that the “citizens or subjects" of each contracting party should have the power to dispose of their personal property within the jurisdiction of the other, and that their heirs, legatees, and donees, being “ citizens or subjects” of the other contracting party, might take and dispose of such property, paying only such duties as would be paid in like cases by inhabitants of the country in which the property lay. It was held that this stipulation did not apply to property of a native subject of Würtemberg who, after having been naturalized as a citizen of the United States, died in Louisiana, bequeathing legacies to kindred residing in Würtemberg, the fact that he was formerly a subject of Würtemberg giving him no rights under the treaty.
Frederickson v. Louisiana, 23 How. HJ.
(2) SINCE 1868.
The consent of government is not necessary to enable a citizen voluntarily to expatriate himself and become a citizen of another country.
Green 1'. Salas, 31 Fed. Rep. 106, and cases cited; Comitis v. Parkerson,
56 id. 556; Jennes 1. Landes, 84 id. 73; In re Look Tin Sing, 10 Sawyer C. C. 353; Browne 1'. Dexter, 66 Cal. 39.
3. GOVERNMENTAL DOCTRINE.
(1) EXECUTIVE UTTERANCES DOWN TO 1815.
Our citizens are certainly free to divest themselves of that character by emigration and other acts manifesting their intention, and may then become the subjects of another power, and free to do whatever the subjects of that power may do."
Mr. Jefferson, Sec. of State, to Mr. G. Morris, Aug. 16, 1793, 4 Jeff.
Works (Washington's ed.), 37.
A claim was presented by certain persons in the character of American citizens to the mixed commission under Article XXI. of the treaty between the United States and Spain of October 27, 1795. An award in favor of the claimants was made by a majority of the commission, but the Spanish commissioner declined to sign it on the ground that the claimants, who were British subjects by birth, were not citizens of the United States at the time of the acknowledgment of independence by Great Britain. The Spanish Government suspended
payment of the award because the Spanish commissioner had not signed it. The United States protested against the action of the Spanish Government, saying: "The persons who claim were, not only when the treaty was made, but also when the injury was sustained, according to our laws citizens of the United States. The right of naturalizing aliens is claimed and exercised by the different nations of Europe, as well as by the United States. When the laws adopt an individual no nation has a right to question the validity of the act, unless it be one which may have a conflicting title to the person adopted. Spain therefore cannot contest the fact that these gentlemen are American citizens."
Mr. Marshall, Sec. of State, to Mr. Humphreys, Sept. 23, 1800, Moore, Int.
Arbitrations. II. 1001; MS. Inst. U. States Ministers, V. 383. See remarks of Nott, C. J., in The Conrad (1902), 37 Ct. Cl. 459.
“Your proffered exertions to procure the discharge of native American citizens from on board British ships of war, of which you desire a list, has not escaped attention. It is impossible for the United States to discriminate between their native and naturalized citizens, nor ought your Government to expect it, as it makes no such discrimination itself. There is in this office a list of several thousand American seamen, who have been impressed into the British service, for whose release applications have from time to time been already made; of this list a copy shall be forwarded you, to take advantage of any good offices you may be able to render."
Mr. Monroe, Sec. of State, to Mr. Foster, British minister, May 30, 1812.
Am. State Papers, For. Rel. III. 454.
cases to treat persons who, though born in Great Britain, had been
United States, 11. 332-339; supra, $ 317. " It is known that almost all seamen in the service of Colombia are foreigners, and many of them citizens of the United States, enlisted in the Colombian service in violation of the laws of their own country.
By the present constitution of Colombia, the rights of citizenship are confined to natives of the territory and their children, landholders at the commencement of the revolution who have adhered to the cause of independence, and strangers after obtaining letters of naturalization. You will ascertain how these letters of naturalization are obtained. If they are granted, of course, to every sailor who enlists in their service, you will take some proper occasion to represent that this system interferes with the rights of other nations; and that although the United States freely admit the right of their native citizens to expatriate themselves, yet they cannot admit the exercise of that right by the violation of their laws or of the contracts of the expatriated individuals with others of their citizens."
Mr. J. Q. Adams, Sec. of State, to Mr. Anderson, May 27, 1823, MS. Inst.
to U, S. Ministers, IX. 274, 303.
“ I transmit the passports requested in your letter of the 9th instant, for Mr. Charles Brundock and Jasper Christianson, and return their certificates of naturalization. You will please have the blanks filled up with the description of their persons and transmit a copy thereof to this Department. Whether those persons, upon returning to the countries within whose allegiance they were born, will be liable to perform military duty, will depend upon the laws of those countries respectively, and upon circumstances [on] which this Department is not willing to express an opinion in anticipation.”
Mr. Forsyth, Sec. of State, to Mr. Strobecker, April 15, 1835, 27 MS. Dom.
John Philipp Knoche, a native of Prussia, emigrated to the United States in 1834, being then twenty-one years of age. He remained in the United States six years and became a naturalized citizen, and then returned to Prussia, where he was compelled to enter the army. He applied to the American legation at Berlin for its interposition. Mr. Henry Wheaton, who was then American minister to Prussia, replied: “ It is not in my power to interfere in the manner you desire. 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 domicil and national character revert (so long as you remain in the Prussian dominions), and you are bound in all respects to obey the laws exactly as if you had never emigrated.”
Mr. Wheaton, min. to Prussia, to Mr. Knoche, July 24, 1840, enclosed
with Mr. Wheaton's No. 157, to Mr. Forsyth, Sec. of State, July 29, 1840, S. Ex. Doc. 38, 36 Cong. 1 sess. 6, 7.
Replying to a complaint of the Mexican Government that the revolution in Texas was aided by persons from the United States, Mr. Webster said: “ These persons, so far as is known to the Government of the United States, repair to Texas, not as citizens of the United States, but as ceasing to be such citizens, and as changing, at the same time, their allegiance and their domicil.
The Government of the United States does not maintain, and never has maintained, the doctrine of the perpetuity of natural allegiance. And surely Mexico maintains no such doctrine; because her actually existing government, like that of the United States, is founded in the principle that men may throw off the obligation of that allegiance to which they are born.
Mexico herself has laws granting equal facilities [with those of the United States to the naturalization of foreigners. On the other hand, the United States have not passed any law restraining their own citizens, native or naturalized, from leaving the country and forming political relations elsewhere. Nor do other Governments in modern times attempt any such thing. It is true that there are Governments which assert the principle of perpetual allegiance; yet, even in cases where this is not rather a matter of theory than of practice, the duties of this supposed continuing allegiance are left to be demanded of the subject himself, when within the reach of the power of his former Government, and as exigencies may arise, and are not attempted to be enforced by the imposition of previous restraint, preventing men from leaving their country."
Mr. Webster, Sec. of State, to Mr. Thompson, min. to Mexico, July 8, 1812.
6 Webster's Works, 445, 454. The Government of the United States have no power to extend protec
tion to naturalized citizens who voluntarily return to their native country.” (Mr. Webster, Sec. of State, to Mr. Bryan, March 21, 1813, 33 MS. Dom. Let. 117.)
" From these provisions [of the naturalization laws] it would seem, by necessary implication, that our laws presuppose a right on the part of citizens and subjects of foreign powers to expatriate themselves and transfer their allegiance, and, although the abstract right has not to my knowledge been settled by any authoritative decision, I feel no difficulty in expressing the opinion that the United States, acting upon these principles in reference to the citizens and subjects of other countries, would not deny their application to cases of naturalization of their own citizens by foreign powers, and, of course, to the case of Demerlier, who, if he should be naturalized by France, would, on this view of the subject, be absolved from his allegiance to the United States."
Mr. Calhoun, Sec. of State, to Mr. Pageot, French min., Nov. 30, 1814, MS.
Notes to French Leg. VI. 84.