« PreviousContinue »
public interests; and the requisite consent of the State presumed where not negatived by standing prohibitions.” In conclusion, he expressed the opinion that, subject to “the conditions thus indicated," and to “such others as the public interest might seem to Congress to require to be imposed," " the right of expatriation exists, and may be freely exercised by the citizens of the United States."
Mr. ('ushing, At.-Gen., Oct. 31, 1856, 8 Op. 139.
opinion in the United States has been at all times a little colored on
The true question is of the relation between the political society and its members, upon whatever hypothesis of right, and in
whatever form of organization, that society may be constituted. “ The assumption of a natural right of emigration, without possible
restriction in law, can be defended only by maintaining that each individual has all possible rights against the society, and the society none with respect to the individual; that there is no social organization, but a mere anarchy of elements, each wholly independent of the other, and not otherwise ccnsociated save than by their casual
coexistence in the same territory. (Ahrens, Droit Naturel, p. 324.)" The Bavarian minister at Berlin subsequently asked for an explanation
of Mr. ('ushing's opinion, with reference to the specific case of a native of Bavaria who came to the United States and was naturalized but afterwards returned to Bavaria and sought to recover his status as a Bavarian subject. The Bavarian authorities suspended action pending an inquiry whether he might throw off his allegiance to the United States, and if so, in what manner it was to be done. Attorney-General Black replied that there was no law of the United States which prevented either a native or naturalized citizen from severing his political connection with this Government, if he sees proper to do so, in time of peace, and for a purpose net directly injurious to the interests of the country. There is no mode of renunciation prescribed.” (Black, At.-Gen., Aug. 17, 1857, 9 Op. 62.)
(4) REASSERTION OF UNQUALIFIED RIGHT, 1857-1861.
In notes of October 23, 1858, and March 16, 1859, Mr. Schleiden, the representative of Bremen at Washington, solicited the views of the Department of State concerning the possible surrender by his Government to other German States, under treaties with the latter, of persons from whom, as natives of such States, military service might be claimed, although they had been naturalized in the United States. The Department of State, in reply, took the ground that the question involved was political in its nature, and as such should be left to the determination of the parties concerned, and should not be decided by a third state, such as Bremen, by the delivery up of the person demanded. In the course of its reply, the Department of State said: “ It is undoubtedly true that this Government has acquiesced in the opinion expressed by Mr. Wheaton that, when a citizen who has been liable to military duty leaves his own country without permission, and without having performed this duty, and is naturalized in another country, he may be held to discharge his liability whenever he is found again in his native state. This opinion, however, is regarded by this Government as applying not to cases of inchoate liability, but to cases only where the liability hạs become complete. To speak of a minor as liable to military service simply because, if he should live long enough in the country, he might become so, could not be fairly regarded as either appropriate or just. It is unnecessary, however, to discuss this distinction with reference to your letter, because your inquiry refers to a case of admitted liability.”
Mr. Cass, Sec. of State, to Mr. Schleiden, April 9, 1859, S. Ex. Doc. 38, 36
Cong. 1 sess, 195.
Schleiden, Jan. 26, 1860, S. Ex. Doc. 38, 36 Cong. 1 sess, 211, 222.
“ The position of the United States, as communicated to the minister at Berlin for the information of the Prussian Government, is that native-born Prussians naturalized in the United States and returning to the country of their birth are not liable to any duties or penalties, except such as were existing at the period of their emigration. If at that time they were in the army or actually called into it, such emigration and naturalization do not exempt them from the legal penalty which they incurred by their desertion, but this penalty may be enforced against them whenever they shall voluntarily place themselves within the local jurisdiction of their native country, and shall be proceeded against according to law. But when no present liabilities exist against them at the period of their emigration, the law of nations, in the opinion of this Government, gives no right to any country to interfere with naturalized American citizens, and the attempt to do so would be considered an act unjust in itself and unfriendly towards the United States. This question can not, of course, arise in the case of a naturalized citizen who remains in the United States. It is only when he voluntarily returns to his native country that its local laws can be enforced against him.
Mr. Cass, Sec. of State, to Mr. Hofer, June 14, 1859, 50 MS. Dom. Let. 389.
going letter refers, Mr. Cass said: “If the future liability to do mili-
Prussia XIV. 274.)
said: "The proper application of this principle to cases as they arise
21, 1859, 50 MS. Dom. Let. 417.) See, also, Mr. Cass, Sec. of State, to Mr. Cushing, June 16, 1859; to Mr.
Osterle, June 24, 1859 : 50 MS. Dom. Let. 404, 427.
Christian Ernst, a native of Hanover, emigrated to the United
States in 1851, when nineteen years of age. In FebCase of Christian
ruary, 1859, he was naturalized, and in the folErnst.
lowing month procured a passport and went back to Hanover on a visit. After arriving in his native village he was arrested and forced into the Hanoverian army. President Buchanan submitted the case to Attorney-General Black for an opinion. Attorney-General Black advised (1) that the course to be taken must depend “ upon the law of our own country, as controlled and modified by the law of nations;" (2) that it was the “ natural right of every free person, who owes no debts and is not guilty of any crime, to leave the country of his birth in good faith and for an honest purpose,” and to throw off his natural allegiance and substitute another in its place; (3) that, although the common law of England denied this right, and “ some of our own courts, misled by British authority, have expressed, though not very decisively, the same opinion,” this was not to be taken as settling the question; (4) that “natural reason and justice," " writers of known wisdom," and "the practice of civilized nations were all “ opposed to the doctrine of perpetual allegiance," and that the United States was pledged to the right of expatriation and could not without perfidy repudiate it; (5) that expatriation “includes not only emigration out of one's native country, but naturalization in the country adopted as a future residence;" (6) that “naturalization does ipso facto place the native and the adopted citizen in precisely the same relations with the government under which they live, except in so far as the express and positive law of the country has made a distinction in favor of one or the other;" (7) that, with regard to the protection of American citizens in their rights at home and abroad, there was no law that divided them into classes or made any difference whatever between them; (8) that the opinion held by “persons of very high reputation ” that a naturalized citizen ought to be protected everywhere except in the country of his birth had “no founda
tion to rest upon
except the dogma which denies altogether the right of expatriation without the consent of his native country;" (9) that the naturalization laws were opposed to this view “in their whole spirit as well as in their express words,” and that the states of Europe were “ also practically committed against it; " (10) that. assuming that Hanover had a municipal regulation by which the right of expatriation was denied to those of her subjects who failed to comply with certain conditions, and assuming that this regulation was violated by Mr. Ernst when he came away, the unlawfulness of his emigration would not make his naturalization void as against the King of Hanover; (11) that, if the laws of the two countries were in conflict, the law of nations must decide the question upon principles and rules of its own, and that “ by the public law of the world we have the undoubted right to naturalize a foreigner, whether his natural sovereign consented to his emigration or not;" and, finally, (12) that the Hanoverian Government could justify the arrest of Mr. Ernst only by proving that the original right of expatriation depended on the consent of the natural sovereign—a proposition which, said Mr. Black, “I am sure no man can establish."
Black, At. Gen., July 4, 1859, 9 Op. 356.
The views of the President in relation to the case of Christian Ernst and analogous cases were communicated to the American minister at Berlin, July 8, 1859. In this communication the position was maintained that the right of expatriation could not be doubted or denied in the United States; that the Constitution recognized it by conferring on Congress the power to establish a uniform rule for naturalization; that Congress had uniformly acted upon the principle since the commencement of the Federal Government, and that there was no country in Europe whose laws did not authorize the naturalization of foreigners in some form. What right, then, it was asked, did the laws of the United States confer upon a foreigner by granting him naturalization? The answer was, all the rights, privileges, and immunities which belonged to a native citizen, except that of eligibility to the oflice of President. “With this exception," it was affirmed, "the naturalized citizen, from and after the date of his naturalization, both at home and abroad, is placed upon the very same footing with the native citizen. He is neither in a better nor a worse condition.
The moment a foreigner becomes naturalized his allegiance to his native country is severed forever. He experiences a new political birth. A broad and impassable line separates him from his native country. He is no more responsible for anything he may say or do, or omit to say or do, after assuming his new character. than if he had been born in the United States. Should he return to
his native country, he returns as an American citizen, and in no other character. In order to entitle his original government to punish him for an offence, this must have been committed while he was a subject and owed allegiance to that government.
It must have been of such a character that he might have been tried and punished for it at the moment of his departure." It was further maintained that by the treaty with Hanover, which provided that the “ inhabitants” of each country should be permitted to sojourn in all parts of the other, submitting to the laws, every inhabitant of the United States had a right to visit that country and sojourn there in the prosecution of his business, and that no distinction could be made in this regard between a native and a naturalized citizen of the United States.
Mr. Cass, Sec. of State, to Mr. Wright, min. to Prussia, July 8, 1859, S.
Ex. Dọc. 38, 36 Collg. 1 sess. 132. In the foregoing instruction a clear distinction was drawn between the
case of a person who had committed an offence before emigration, and a person whose offence was alleged to have been committed after emigration. In this relation, the instruction said: “If a soldier or a sailor were to desert from our army or navy, for which offence he is liable to a severe punishment, and after having become a naturalized subject of another country, should return to the United States, it would be a singular defence for him to make that he was absolved from his crime because after its commission he had become a subject of another government. . During the last war with Great Britain, in several of the States, I might mention Pennsylvania in particular, the militiaman who was drafted and called into the service was exposed to a severe penalty if he did not obey the draft and muster himself into the service, or in default thereof procure a substitute.” In such a case it was not possible to imagine that if
an individual, after incurring the penalty, had gone to a foreign , country and become naturalized, and then returned to Pennsylvania, the arm of the State authorities would have been paralyzed. (Id.
135–136.) Mr. Wright was instructed to demand the immediate discharge of
Ernst from his compulsory service, and full reparation for whatever injury he had suffered, either in person or in property. August 20, 1859, the Ilanoverian Government stated that a · full pardon " had been granted to Ernst and that he had been dismissed” from the military service. The Hanoverian Government added, however, that similar conflicts could be prevented in the future only by the United States "renouncing its own views on the subject, which do not agree with international relations,” or by concluding a special
arrangement. (Id. 115–146.) See, also, Mr. Cass, Sec. of State, to Mr. Wright, Dec. 9, 1859, id. 147, and
Mr. Cass, Sec. of State, to Mr. Mason, min. to France, June 27, 1859,
id. 198. The instruction to Mr. Wright was printed and issued in circular form
as expressing the views of the United States. (Mr. Cass, Sec. of State, to Mr. Pugh, M. (., Feb. 1, 1800, 51 MS. Dom. Let. 418; Mr. Appleton, Assist. Sec. of State, to Mr. Weidman, April 26, 1860, 52 id.