Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Third Session of the Fortieth Congress
Mr. Adams to Mr. Seward
Sir: I have the honor to transmit a copy of the London Times of yesterday, with another communication from Historicus, on the subject referred to in my dispatches No. 1492 and No. 1516.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
British citizenship.
To the Editor of the Times:
Sir: The question of citizenship is evidently about to assume an importance in international discussion which justifies a return to the topics to which I have already asked your readers’ attention. Not only in America, but in France, issues are being raised on this subject of the greatest consequence. The military authorities in France, under the pressure of their new military laws, are questioning the right to exemption from conscription of the children of foreigners born in French territory. Yet, unquestionably, by the English law such persons are British subjects, whose allegiance would be seriously compromised by a compulsory foreign enlistment. It is not a pleasant predicament for a Civis Romanus to find himself placed in, if it should chance that he is liable to be hanged in England if he serves in the French army, and to be shot in France if he refuses to do so. It is high time for law, whether international or municipal, to clear itself from such a scandal.
It seems hardly necessary further to labor and demonstrate that the English legal doctrine in its present form is incapable of defense. I may, nevertheless, point out that in my last letter I considerably understated the preposterous consequences which may be logically deduced from it. The following passage, from Lord Bacon’s great argument in the case of the post nati, carries the doctrine of citizenship much further than the third generation, to which I had limited it:
“Nay, if a man look narrowly into the law in this point he shall find a consequence that may seem at first strange, but yet cannot well be avoided—which is, that if divers families of English men and women plant themselves at Middleborough, or at Rome, or at Lisbon, and have issue, and their descendants do intermarry amongst themselves without any intermixture of foreign blood, such descendants are naturalized to all generations; for every generation is still of liege parents, and therefore naturalized, so as you may have whole tribes and lineages of English in foreign countries. And therefore it is utterly untrue that the law of England cannot operate to confer naturalization but only within the bonds of the dominions of England.”—2 Gt. Tr., 585.
Now, this argument was raised on the law as it stood in the time of James I, when it was necessary that both parents should be British born in order to confer citizenship on a child born abroad. But the reasoning is equally applicable to the modern statutes, by which a British father alone communicates the quality of citizenship to his children. Now, observe the consequence. An Englishman goes abroad; his son, by force of the statute of George II, is made to all intents and purposes whatsoever a British subject. [Page 138] The son, therefore, is as much a natural-born British subject as his father was before him, and therefore his son again, by force of the statute, becomes a British subject, and by the same reasoning his son’s son, and so on ad infinitum. And, therefore, as long as there are descendants in the male line they will, as Lord Bacon says, be “naturalized to all generations.” I confess I should have hesitated on any authority less grave than that of Lord Bacon to impute to the English law consequences so monstrous. That they do, as he says, “seem at first sight strange,” will not be disputed; whether they “cannot well be avoided” is just the point we have to consider. Mr. Westlake, in his valuable work on “Private International Law,” has suggested several methods of interpretation with a view of escaping from these absurdities; but he does not seem himself much to rely upon them, and I confess they appear to me more ingenious than satisfactory. And, indeed, the case of the Athlone peerage affords an example in which the doctrine was practically applied. Godart de Ginckell, a Dutchman, was created Earl of Athlone in 1692. He subsequently left England in disgust, I believe, at the treatment which foreigners met with in the reign of William. None of his descendants returned to England till 1795, under the stress of the French revolution, and one who was fifth in descent from him claimed, and actually took his seat in the Irish parliament, as seventh earl. I observe that Mr. Broom, in his admirable Commentaries on Constitutional Law, pp. 48, 49, takes the same view that I have already expressed, that the citizenship conferred by the statutes of George II and George III is of an obligatory, indelible, and not of an optional and defeasible character. Indeed, however proposter ous the result may appear of compelling a man under such circumstances to become a British subject, whether he wishes it or not, I do not see how it is possible to place any other construction on the language of the statute.
The result of the whole seems to be that any one whose descent, though in the hundredth generation, can be traced in the male line to a British parent is a British citizen, enjoying all the rights and subject to all the duties which attach to that condition, and that though by successive foreign marriages the original British blood may have been so diluted as to be no longer traceable. I do not precisely know the pedigree of Marshal Macmahon, but I think it probable that in the eye of the English law he is as much an Englishman as Field Marshal Sir J. Burgoyne, and therefore liable to very serious penalties here for the violation of English neutrality at Solferino and Magenta. And if a male ancestor of General Grant emigrated to America at any time since the recognition of the independence of the United States, (I say since the recognition of independence, because that act was admitted to dissolve the allegiance of the then residents of the United States,) I am afraid the commander-in-chief of the armies of the United States would have no defense to a prosecution in this country, at the suit of a common informer, for a breach of the foreign enlistment act by the part he took in the American civil war.
I will therefore assume that judgment must go by default against the English doctrine—at least, till it finds a defender. I think I may confidently say that we are the single nation in Europe which maintains the principle of indefeasible citizenship and of indelible transmitted allegiance. In the time of Bynkershoek, as I have before pointed out, the Russians, the French, and the Chinese shared with us this distinction. What may be the present doctrine of the Chinese I am not aware. The French view I have already stated. The Russians hold, if possible, a more absolute doctrine of expatriation, for the mere departure from the realm without leave opperates as an actual denaturalization, and, accordingly, on a recent occasion, a Russian who had become a naturalized American subject was, with the assent of the American minister, ordered to leave Russia, as having ceased to be a Russian citizen.
The Prussian doctrine on the subject of expatriation is very precisely defined in the law of December 31, 1842:
“Art. 15. The equality of a Prussian subject is lost.—1, by discharge at the subject’s request; 2, by sentence of competent authority; 3, by living 10 years in a foreign country.
“Art. 17. This discharge cannot be granted in derogation of duties of military service.
“Art. 19. Discharge, except in these cases, cannot he refused in time of peace. In time of war special regulations are made.
“Art. 20. The document of discharge effects at the time of its delivery the loss of the quality as Prussian subject.
“Art. 21. Discharge includes the wife and minor children.”
Thus it will be seen that, subject to the performance of the stipulated military duty, the Prussian government recognizes an absolute right of expatriation in its subjects, for the discharges cannot be refused in time of peace; and an absence for 10 years without leave operates in itself as a loss of nationality, subject, however, to the claim of military service in the event of return to the native state. It is this last claim which has led to much controversy between the American government and the German States, and which was specially pointed at in the President’s recent message. The correspondence, renewed at various periods, and extending over a space of 20 years, will be [Page 139] found at length in the Senate Executive Documents, 1st session 36th Congress, vol. 2, 1859–’60.
It resulted generally in the German governments claming the right as against the naturalized American, but practically waiving its exercise in particular instances. At the end of 1865 Count Bismarck made a proposal to the American government to recognize the absolute denationalization and immunity of all persons who had emigrated before the age of 17, or who had been absent from Prussia five years. (American Diplomatic Correspondence, 1866.) It seems astonishing that Mr. Seward should have declined so favorable a compromise. This question of military conscription, though one of great and increasing consequence to the military powers of the continent, is one with which, happily, we have little concern. The correspondence is, however, interesting as raising a “discussion of the principles of expatriation with which we are occupied.
The important point to be noted is that, subject to conditions which the several states have thought fit to impose with reference to the protection of their own interests, all the European governments recognize a regulated right of expatriation.
I now proceed to examine the state of this question in America. If the argument of tu quoque were ever good for anything, which it is not, it would hold to the greatest extent against the United States. We may have a bad doctrine on this subject, but they are in that worse situation, of which it is said, “misera est servitus ubi jus incertum;” for on this subject America can be said to have no ascertained doctrine at all, whether legal or political. I cannot pretend, within the limits of your columns, to enter into a full critical discussion of the conflict of American authorities on this head.
Those who care to enter more minutely into the matter will find it very fully treated in Kent’s Commentaries, volume 2, section 25; in a long note in. the appendix to Lawrence’s edition of Wheaton, and in a note to Mr. Dana’s recent and most excellent edition of the same works, and also in Mr. Caleb Cushing’s elaborate opinion (Opinions of Attorneys General, volume 8) on this subject, to which I shall at some future time refer at greater length. This paper, indeed, exhausts the subject, and has a special importance from the fact that in America the Attorney General is a member of the cabinet. For the present I must confine myself to a summary of the results.
Various attempts have been made to obtain from the Supreme Court of the United States a recognition of the right of expatriation in American citizens. These attempts have always failed. The American courts, not unlike our own, are astute to escape from the decision of questions of principle not necessarily involved in the case before them. The cases in which the plea was raised were generally those where the act of expatriation was, in fact, a part of the offense brought under the jurisdiction of the court, as in the case of citizens who had accepted a foreign naturalization for the purpose of violating the law of the United States. Of course, in such cases the plea of expatriation was summarily rejected. But the court, though carefully avoiding a distinct denial of the right of expatriation in all cases, have always declined to assert or to define such a right. As in the cases I quoted in my former letter, the courts have constantly indicated that it belonged to the legislature to prescribe the conditions of such a right, for which it was felt that the provisions of the common law, which it was their business to administer, had made no provision. The cases are fully reviewed by Kent, and his conclusion is thus stated:
“The better opinion would seem to be that a citizen cannot renounce his allegiance to the United States without the permission of the government, to be declared by law; and that, as there is no existing legislative regulation on the case, the rule of the English common law remains unaltered.”
It is very plain, then, that before the Americans can criticise or complain of the defects of the laws of other nations they must first set to work to show what they consider to be right and politic as against themselves by a system of legislative regulations which their judges have for 70 years been constantly demanding, but which their statesmen have hitherto failed to supply.
Thus much may suffice upon the subject of the legal doctrine of expatriation in the United States. It is necessary now to consider a far more important subject, viz, their diplomatic doctrine. I need hardly say that the diplomatic doctrine is conversant with a totally different aspect of the question from that which is involved in its legal bearings. The law has regard to the duties and the rights of the citizens in respect of the state of which he is a member. Diplomacy has to do with the duties and the rights of the citizen towards a foreign state in which he may happen to be resident or concerned. To speak in general terms, the law has to do with that which his own state can claim against a subject. Diplomacy has to do with that which the government of the subject may claim in his favor against a foreign state. Most governments have thought it necessary to observe some measure and proportion between the domestic doctrine they themselves enforce and that which they seek to enforce against others. It would be strange if a country which does not permit expatriation to its own citizens insisted on enforcing such a right in regard of the citizens of other countries who had accepted its naturalization. Yet this, or something like it, is, in fact, what the American [Page 140] government claims to do. Though there is no law of the United States by which a citizen of theirs could divest himself of his allegiance to his own country, they do in fact claim to assert against other states a right which they have not yet admitted in their own. While their courts declare that there is no law by which any American citizen who should have accepted the citizenship of a foreign state can divest himself of his allegiance to his own country, the American foreign office demands on the part of its naturalized citizens, as against other states, that their primitive allegiance should be treated as absolutely dissolved. This is a sort of game of “heads I win, tails you lose,” in which no government can be expected to acquiesce. Nor, indeed, has the American diplomatic doctrine been consistent with itself at different periods. From the time of Mr. Wheaton, in 1840, down to the year 1859, the American government distinctly disavowed any right to interpose in favor of naturalized citizens who had returned to the country of their origin. The language of Mr. Wheaton on this point you have already cited. It is sufficiently precise. Mr. Wheaton thus writes to a naturalized American citizen who sought his protection:
“Having returned to the country of your birth, your native domicile and national character revert, and you are bound in all respects to obey the laws exactly as if you had never emigrated.”
The same view of the reverter of the national character upon return to the country of birth was consistently adopted by successive American Secretaries of State—by Mr. Marcy, Mr. Webster, and Mr. Everett, (vide Senate Documents, already cited.) As far as I can make out, it was Secretary Cass who, for the first time, in 1859, set up on behalf of naturalized citizens of the United States an absolute right of expatriation as against the state of their birth. In a dispatch to the minister at Berlin he writes:
“The doctrine of perpetual allegiance is a relic of barbarism repudiated by the United States ever since the origin of our government. [Query: When and where?] 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 do, than if he had been born in the United States. Should he return to his native country, he returns an American citizen, and in no other character,” &c.
On this passage General Halleck, in his very well compiled Digest of International Law, published in 1861, makes the following remarks:
“This position is certainly somewhat in advance of that assumed in the previous diplomatic correspondence of our government, and by some is thought to infringe upon the universally conceded principle that sovereign states have the right of municipal legislation and jurisdiction over all persons within their own territory; and that while we have a perfect right within our jurisdiction to disregard the dogma of universal allegiance incorporated in the laws of other states, they have an equally incontestable right within their jurisdiction to assume that our municipal regulations on the subject of naturalization do not cancel their statutes enjoining the charges and obligations, military or otherwise, which spring from the theory of allegiance embodied in their laws. If this view of Mr. Cass be correct, the right of expatriation is not only general, but indefeasible.”
Mr. Seward seems to have followed the lead of Secretary Cass in this matter. I need hardly say that the governments of Europe have declined to acquiesce in this volte-face of the American foreign office. It may be (as I think it is) expedient that the whole of this question should be reviewed in a candid and friendly spirit, and that the principles on which a transfer of citizenship is for the future to be permitted and recognized should be regulated by international negotiation; but it is not tolerable that a government should, in the phrase of Lord Castlereagh, “turn its back upon itself,” as the American government have done, and assert as indubitable rights claims which their most eminent jurists and statesmen have for a long series of years admitted to be unfounded. We may be willing to concede from policy more than can be demanded of us as of right, but we shall take as the basis of negotiation the law as laid down by Mr. Wheaton, and not that improvised for the occasion by Secretary Cass.
Before the American government can properly urge any demands upon the subject against foreign governments, they have, as we have seen, a good deal to do at home. They have first to settle for themselves a law of expatriation for their own subjects, which at present they do not possess. When they have done this they will, at all events, not be open to the retort, “Physician, heal thyself.” But there is a yet more material point which they have to settle, and that is the question of their own citizenship. The whole of the American law of citizenship is in a state of inextricable confusion. The Attorney General Cushing, in the opinion I have before cited, says:
“It may happen that by the law of a given state a person shall be a citizen thereof and still not a citizen of the United States. Citizenship, whether acquired by birth or naturalization, is not a thing specifically defined in its elements either by the Constitution or by the laws of the Union.”
Now,” I venture to think that, before extraordinary immunities are claimed for [Page 141] American “citizens,” foreign states should be placed in possession of that which the American Attorney General admits himself unable to supply, viz, a definition of what constitutes American citizenship.
I have thus endeavored, as far as space permits, to examine the existing condition of this question in England, upon the continent of Europe, and in America. I think the facts of the case will lead us to the conclusion that an amendment of the existing rules is highly desirable, but that of ail countries there is none which is bound to address itself to this difficult discussion with more modesty and moderation than the United States. I am bound to say that the most eminent persons among them have always taken this view, and I trust they will continue to do so, in spite of intemperate speeches and electioneering intrigues.
This letter has extended to too great a length to admit of my now attempting further to discuss the principles on which a new system might be framed. There are, however, some general conclusions which may be safely drawn. First, the right of expatriation generally should be admitted; secondly, that right should be limited by certain conditions; thirdly, it belongs as much to the native state to prescribe the conditions of severance as it does to the state of adoption to prescribe the conditions of naturalization; fourthly, it would be highly desirable that the conditions on which one state confers and the other severs the tie of citizenship should be regulated by special convention, as in the case of extradition. This would be best accomplished by a general agreement; but if this be impracticable, then it should be made the subject of separate treaties.
Temple, January 9.