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(2) MR. BUCHANAN'S ASSERTION OF UNQUALIFIED RIGHT.
“ The fact of your having become a citizen of the United States has the effect of entitling you to the same protection from this Government that a native citizen would receive."
Mr. Buchanan, Sec. of State, to Mr. Rosset, Nov. 25, 1845, 35 MS. Dom.
“ The Government of the United States affords equal protection to all our citizens, whether naturalized or native, and this Department makes no distinction between the one and the other in granting passports.
“ It is right to inform you, however, that difficulties have arisen in cases similar to yours. In more than one instance European governments have attempted to punish our naturalized citizens, who had returned to their native country, for military offences committed before their emigration. In every such case the Government has interposed, I believe successfully, for their relief; but still they have in the meantime been subjected to much inconvenience. Under these circumstances I could not advise you to incur the risk of returning to Oldenburg, if the business which calls for your presence there can be transacted by any other person.
Mr. Buchanan, Sec. of State, to Mr. Iluesman, March 10, 1847, 36 MS.
Dom. Let. 200.
"A native of the island of Cuba, who has been naturalized in the United States, retains his rights as an American citizen upon his return to that island, at least until he has manifested, by unequivocal acts, his intention to become again a Spanish subject.
Mr. Buchanan, Sec. of State, to Mr. Campbell, consul at Havana, July
26, 1818, 10 MS. Desp. to ('onsuls, 473.
“ Whenever the occasion may require it, you will resist the British doctrine of perpetual allegiance, and maintain the American principle that British native-born subjects, after they have been naturalized under our laws, are, to all intents and purposes, as much American citizens, and entitled to the same degree of protection, as though they had been born in the United States."
Mr. Buchanan, Sec. of State, to Mr. Bancroft, min. to England, Oct. 28,
1818, 47 Brit. & For. State Pap. 1236, 1237.
“ Our obligation to protect both these classes [naturalized and native American citizens] is in all respects equal. We can recognize no difference between the one and the other, nor can we permit this to be done by any foreign government, without protesting and remonstrating against it in the strongest terms. The subjects of other countries who, from choice, have abandoned their native land, and, accepting the invitation which our laws present, have emigrated to the United States and become American citizens, are entitled to the very same rights and privileges, as if they had been born in the country. To treat them in a different manner, would be a violation of our plighted faith, as well as of our solemn duty."
Mr. Buchanan, Sec. of State, to Mr. Bancroft, min. to England, Dec. 18,
1818, 47 Brit. & For. State Pap. 1241, 1243.
Bancroft in accordance with his instructions, see S. Ex. Doc. 38, 36
(3) REVERSION TO EARLIER DOCTRINE.
Replying to an inquiry whether Mr. Victor B. Depierre, a native of France, but a naturalized citizen of the United States, could " expect the protection of this Government in that country, when proceeding thither with a passport" from the Department of State, Mr. Webster said: “If, as is understood to be the fact, the Government of France does not acknowledge the right of natives of that country to renounce their allegiance, it may lawfully claim their services when found within French jurisdiction."
Mr. Webster, Sec. of State, to Mr. Nones, June 1, 1852, S. Ex. Doc. 38, 36
Cong. 1 sess. 55; 40 MS. Dom. Let. 162.
1852, 10 MS. Dom. Let. 204.
“The doctrine of inalienable allegiance is no doubt attended with great practical difficulties. It has been affirmed by the Supreme Court of the United States, and by more than one of the State courts; but the naturalization laws of the United States certainly assume that a person can, by his own acts, divest himself of the allegiance under which he was born, and contract a new allegiance to a foreign power. But, until this new allegiance is contracted, he must be considered as bound by his allegiance to the government under which he was born, and subject to its laws; and this undoubted principle seems to have its direct application in the present cases.
“ The Prussian Government requires of all its subjects a certain amount of military service. However onerous this requirement may be, it is purely a matter of domestic policy, in which no foreign government has a right to interfere. It appears that there is no exemption from the obligation to render this service in favor of persons wishing to leave the country, unless they apply for and receive from the proper authorities what is termed a certificate of emigration.' This emigration certificate' seems, like an ordinary passport, to be granted as a matter of course on application. When the vast extent of the Prussian military establishment is considered, and its importance in the monarchy, such a regulation, in reference to persons wishing to emigrate, who, as you are aware, now amount to many thousands annually, can not be regarded as otherwise than liberal. But even if a different system prevailed, and if the previous rendition of a certain amount of military duty were made the condition sine qua non of granting the emigration certificate,' however oppressive the rule might be, a foreign government could have no right to interfere with its execution.
“If, then, a Prussian subject, born and living under this state of law, chooses to emigrate to a foreign country without obtaining the * certificate' which alone can discharge him from the obligation of military service, he takes that step at his own risk. He elects to go abroad under the burden of a duty which he owes to his Government. His departure is of the nature of an escape from her laws, and if, at any subsequent period, he is indiscreet enough to return to his native country, he can not complain if those laws are executed to his disadvantage. His case resembles that of a soldier or sailor enlisted by conscription, or other compulsory process, in the army or navy. If he should desert the service of his country, and thereby render himself amenable to military law, no one would expect that he could return to his native land and bid defiance to its laws, because in the meantime he might have become a naturalized citizen of a foreign state."
Mr. Everett, Sec. of State, to Mr. Barnard, min. to Prussia, Jan, 14, “With reference to our verbal conversation, some days ago, in relation to the liabilities to which emigrants from Prussia and other German States, who have become citizens of the United States, are subjected when they voluntarily return to those States, after having left their native country without the necessary permission of emigration, and without fulfilling their military duties prescribed by law after having attained a certain age, I beg leave to inclose hereby an extract from the laws of Prussia and from the constitution of Prussia on this subject, by which you will perceive that Prussia does not pretend to enforce any allegiance upon the said emigrants, but that, if they return to Prussia, they are made responsible for having violated our laws in the cases above mentioned and are considered as criminals forfeited to the punishment of the law, from which no citizenship of any nation can liberate them."
1853, S. Ex. Doc. 38, 36 Cong. 1 sess. 53–54; MS. Inst. Prussia, XIV.
196. With this instruction, Mr. Everett enclosed a copy of the letter of Mr.
Webster to Mr. Nones, June 1, 1852, supra, and stated that his view
was the same as that taken by Mr. Webster. (Id. 199.) With reference to his instructions to Mr. Barnard, Mr. Everett stated
that the whole subject" was “specially submitted” to him " for decision," and that "it was determined after mature consideration, with the sanction of the President." (Mr. Everett, Sec. of State, to
Mr. Fuller, M. C., March 2, 1853, 41 MS. Dom. Let. 306.) In the case of Mr. Grill, a naturalized citizen of the United States, whose
property at Hamburg was attached by the government of that city because of his failure to perform military service, Mr. Everett said: “ This would seem to be a judicial question, to be decided by the courts of Hamburg pursuant to the 7th and 8th articles of the treaties between the United States and the Hanse Towns of the 20th December, 1827.” (Mr. Everett, Sec. of State, to Mr. Hall, M. C., Dec. 15, 1852, 41 MS. Dom. Let. 14.)
Baron Gerolt, Prussian min., to Mr. Marcy, Sec. of State, July 11, 1853,
S. Ex. Doc. 38, 36 Cong. 1 sess. 70.
December 31, 1842, and from the Prussian constitution of 1850. By
the performance of the duties of military service. “ Prussia :: claims the right to exact military service from her
subjects who have emigrated to or have been naturalized in other countries without having procured a certificate of emigration, and she has in many instances enforced the performance of that duty upon those who have returned to that country. The interposition of the Government of the United States in behalf of such as were naturalized this country has not been effectual in inducing her to forego this claim." (Mr. Marcy, Sec. of State, to Mr. Bielfeld, July 6, 1853, 41 MS. Dom. Let. 442.)
“ This Government cannot rightfully interpose to relieve a naturalized citizen from the duties or penalties which the laws of his native country may impose upon him on his voluntary return within its limits. When a foreigner is naturalized the Government does not regard the obligations he has incurred elsewhere, , nor does it undertake to exempt him from their performance. He is admitted to the privileges of a citizen in the country, and to the rights which our treaties and the law of nations secure to American citizens abroad. In this respect he has all the rights of a native-born citizen, but the vindication of none of these rights can require or authorize an interference in his behalf with the fair application to him of the municipal laws of his native country when he voluntarily subjects himself to their control in the same manner and to the same extent as they would apply if he had never left that country. A different view of the duties of this Government would be an invasion of the independence of nations, and could not fail to be productive of discord; it might, moreover, prove detrimental to the interests of the States of this Union.”
Mr. Marcy, Sec. of State, to Mr. Daniel, min. to Sardinia, Nov. 10, 1855,
MS. Inst. Italy, I. 88.
Dom. Let. 392; to Mr. Bielfeld, July 6, 1853, id. 42; to Mr. Kimman,
In 1856 the Department of State submitted to Mr. Cushing, as Attorney-General, the following question propounded by the Bavarian minister at Berlin: “Whether, according to the laws of the United States of America, a citizen thereof, when he desires to expatriate himself, needs to ask either from the Government of the United States, or of the State of which he is the immediate citizen, permission to emigrate; and if so, what are the penalties of contravention of the law ?”
Mr. Cushing, after adverting to the fact that the National Government had not undertaken to formalize any general law either of citizenship or of emigration, referred to the laws of Virginia, which required, he said, as conditions of the relinquishment of citizenship, (1) a solemn declaration of intention to emigrate, with actual emigration, and (2) the assumption in good faith of a foreign allegiance, but declared (3) that the act of expatriation should have no effect if done while the State or the United States was at war with a foreign power; nor could a citizen of Virginia by emigration discharge himself from any obligation to the State, the nonperformance of which involved by its laws any penal consequence. Kentucky, said Mr. Cushing, had substantially similar laws; but no other State, so far as his observation went, had attempted to solve such questions by express legislation. The constitutions of Pennsylvania and Indiana declared that emigration from those States should not be prohibited, but it was undoubtedly the case, said Mr. Cushing, that military desertion could not be covered up under the cloak of emigration. Mr. Cushing thought that the Federal Government recognized the same principle, and cited to that effect the letter of Mr. Jefferson to Mr. Morris, August 16, 1793, supra, $ 434, to the effect that the laws * do not admit that the bare commission of a crime amounts, of itself, to a divestment of the character of citizen, and withdraws the criminal from their coercion.” Mr. Cushing then examined several decisions of the Federal and State courts, the results of which he summarized thus: “Expatriation a general right, subject to regulation of time and circumstance according to