Charles Francis Adams to William H. Seward, December 11, 1867

Mr. Adams to Mr. Seward

Sir: I have the honor to transmit a copy of the London Times of this morning, containing a communication from Mr. Vernon Harcourt, who is well known under the signature of Historicus, and also a leading article in the editorial columns on the subject of the law of expatriation. The mode in which this difficult matter is treated by both writers affords encouragement to the belief that something may be done to harmonize the rule as well here as at home into one system. In my opinion nothing is more desirable, in order to remove amicably the causes for future collision on the subject.

I have the honor to be, sir, your obedient servant,

[Editorial.]

A short paragraph in the summary of President Johnson’s message is the text of a suggestive letter on personal allegiance, which appears in another part of our impression. According to the telegraphic report, the President “urges Congress to declare that the naturalization of a foreigner as a citizen of the United States absolves the recipient from allegiance to the sovereign of his native country.” We are umvilling to believe that Mr. Johnson has recommended Congress to assume a function which is manifestly beyond its competence, or that Congress will commit itself to a declaration in this naked form. It is within the power of any national legislature to make laws for the naturalization of foreigners. The legislature of the United States is authorized to do so by an express clause of the federal Constitution, in pursuance of which it already requires aliens claiming American citizenship to declare on oath that such is their intention, and to renounce forever all foreign allegiance. So far the action of Congress has been perfectly constitutional, and consistent with the axioms of public law. It is for the United States courts, and for them alone, to decide what effect such a renunciation may have within United States territory. Their jurisdiction, however, Gan extend no further. It is for the courts of England, France, or Prussia, as the case may be, and for them alone, to decide whether an English, French, or Prussian subject can so divest himself of his nationality by the process of naturalization in America as to place him in the position of a foreigner on his return to his native country. This rule, founded alike on reason and necessity, is so well understood, and has been so emphatically asserted by American jurists, that it will hardly be questioned by Mr. Johnson or Congress. The object of the President being, as we presume, to revise those doctrines common to the jurisprudence of both countries which have hitherto governed the rights and liabilities of naturalized citizens, we may expect that our own government will be invited to join with that of the United States in establishing a hew basis for legislation on the subject.

The logical consequences of these ancient doctrines are well illustrated by our correspondent Historicus. The maxims of common law—nemo protest exure patriam—jus originis nemo muture potest—qui abjurat regnum amittit regnum, sed non regem—may be traced back to an essentially feudal conception of personal allegiance. As interpreted and extended by statutes, they go the length of including among “natural-born subjects of the Crown, to all intents and purposes whatsoever,” not only all persons born in the United Kingdom, but even the children and grandchildren of such persons, though themselves born abroad. Assuming that allegiance “for all purposes” must involve all the obligations of allegiance, it would doubtless follow that a Frenchman whose grandfather might have been accidentally born in England would be liable to a prosecution for treasop if taken in arms against England. That a natural-born subject cannot bear arms against his parent state in the event of war has, indeed, been positively laid down in a famous case, and what appears to be a monstrous, though inevitable, result of statutes passed in the last century, was actually affirmed by Lord Bacon in the reign of James I. It is, however, much easier to reduce ad absurdum this principle of indefeasible allegiance than to show that “the principle of universal law is exactly the reverse.” Even municipal law must always be construed with strict refersence to the subject of decision, and if there be such a thing as a proposition of universal law, it can only be stated with extreme qualification. Cicero may disclaim, on behalf of the Roman commonwealth, any right to retain the unwilling allegiance of subjects, and passages may be quoted to the same effect from modern publicists. We cannot, however, conclude that a Roman citizen who should have cast off the civitas and taken service under some enemy of Rome, would have been held exempt by Roman judges from the penalties of treason; nor are we aware that any great publicist has maintained (to borrow Wheaton’s language) that “a natural-born subject of one country can throw off his primitive allegiance so as to cease to be responsible for criminal acts against his native country.” It so happens that when Mr. Wheaton himself was resident at Berlin, he refused the protection of his government to a Prussian naturalized in America, who had been required to perform military duty in his native country. “Having returned,” he said, “to the country of your birth, your native domicile and national character revert, (so long as you remain in the Prussian domains,) and you are bound in all respects to obey the laws exactly as if you had never emigrated.” It may be said, of course, that he was bound to act according to American law, which here coincides with our own; but the fact of this coincidence having been preserved is in itself an evidence of some value. A nation created and recruited by emigration would hardly have acquiesced so long and so patiently in the English theory of allegiance, had an alternative theory of higher authority and far more favorable to American interests been known to the great expositors of her law. The United States protested, indeed, and with good reason, against the vexatious right of visitation and search claimed by this country, for there their territorial sovereignty was impugned. But it remains to be shown that on that or any other occasion they have insisted, in diplomatic negotiation, on the absolute defeasibility of citizenship.

The important question, however, is one of policy rather than of law, and we freely admit that, on grounds of policy, not to say of common sense, the argument for revision is irresistible. There are certainly hundreds of thousands, and probably millions, of citizens of the United States whom our law regards as British subjects to all intents and purposes whatsoever. No statesman can justify such an anomaly, which, it must be remembered, has two aspects. If all these Irish emigrants owe full allegiance to her Majesty, it may also be doubted, at least, whether they are not entitled to our protection against conscription; yet it would have been utterly impossible for our minister at Washington to grant them such protection during the late American war. In short, our present theory is quite untenable when any practicable strain comes to be put upon it, and, as Historicus justly contends, its maintenance may at any moment become the source of very serious embarrassment. We see, then, no good reason why the British government should decline any friendly overtures that may be made by the United States with a view to its amendment. Whether we can adopt the principle ne quis in civitate maneat invitus without some reservation is a matter that will require to be considered. The act of expatriation should at all events be deliberate and well attested, and our correspondent himself contemplates “provision against a fraudulent expatriation made for the express purpose of injuring the native state.” For offenses committed within the United Kingdom, foreigners are already amenable to British jurisdiction by virtue of what lawyers call a temporary allegiance. They can be prosecuted, therefore, under the treason-felony act for crimes committed in Ireland, without reference to their nationality, and this is, after all, the chief safeguard against Fenian designs. For security against raids organized in America we must rely mainly on the good faith of the United States government, and this makes it the more expedient that we should meet them on this point in a spirit of conciliation.