of the Naturalisation Act in 1870. The sixth section of that statute placed the principle of law on altogether a different basis.

Any British subject who has at any time before, or may at any time after, the passing of this Act, when in any foreign state and not under any disability, voluntarily become naturalised in such state, shall, from and after the time of his so having become naturalised in such foreign state, be deemed to have ceased to be a British subject, and be regarded as an alien.'

6

That this Act was to some extent caused by the existing law in the United States can scarcely be doubted. It is true that a Royal Commission, of which the late Lord Clarendon was Chairman, recommended the alteration of the law; but two years before this Act was passed an agreement was entered into between Great Britain and the United States that the change should be brought before Parliament. But not only did there exist the example of the United States, and a strong desire on the part of the Government of that country that our law should be placed on the same footing as theirs, but there was the practical inconvenience arising from the state of the law of England in regard to emigrants beyond the Atlantic. Over hundreds of thou'sands of persons, perhaps millions,' said the late Lord Derby on the second reading of the Bill, now permanently 'settled in the United States, we had legal rights which 'it was notoriously impossible to enforce; while they in return had a right to claim from us a protection which 'it was notoriously impossible for us to afford.' Thus we have here an instance of the manner in which circumstances affect the principles of law; for the law of the United States and the increase of emigration combined to put an end to a feudal doctrine which had long formed an integral rule of the English common law. Not, however, that at the beginning of their existence as an independent power the United States broke away from the doctrine of the mother country. It was not until July 27, 1868, that by an Act of Congress it was declared that the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the right of life, liberty, and the pursuit of happiness,' and that any declaration, instruction, opinion, ' order, or decision of any officer of this Government which denies, restricts, impairs, or questions the right of expatria'tion is hereby declared inconsistent with the fundamental ' principles of this Government.' Long before this decided

6

6

6

declaration of principle once and for all settled the law of the United States, eminent American authorities had upheld the English doctrine. No doubt, so far back as the year 1842 Mr. Webster appears to regard the law from the modern standpoint:

'It is true,' he writes, '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.' (Digest, vol. ii. p. 310.)

But such an exposition as this does not settle the law with the conclusiveness of an act of Congress, and it was not till the emphatic declaration of 1868 that the law of the United States on this point became fixed and settled, and was thenceforth by the persistent efforts of American statesmen to affect that of some European states, as undoubtedly it will ultimately do that of every civilised

nation.

It is well that a broad question of principle should, as regards Great Britain and the United States, have been settled in a clear and rational manner. It would be yet more satisfactory were the law of domicile in some of its international bearings equally certain. The American doctrine on this point seems first to have been definitely formulated by Mr. Marcy in 1853 in the famous case of Koszta. That doctrine is best expressed in the language of the Secretary of State himself.

'Mr. Hülsemann, as the undersigned believes, falls into a great error, an error fatal to some of his most important conclusions, by assuming that a nation can properly extend its protection only to native-born or naturalised citizens. This is not the doctrine of international law, nor is the practice of nations circumscribed within such narrow limits. This law does not, as has been before remarked, complicate questions of this nature by respect for municipal codes. In relation to this subject it has clear and distinct rules of its own. It gives the national character of the country not only to native-born or naturalised citizens, but to all residents in it who are there with, or even without, an intention to become citizens, provided they have a domicile therein. Foreigners may, and often do, acquire a domicile in a country, even though they have entered it with the avowed intention not to become naturalised citizens, but to return to their native land at some remote and uncertain period; and whenever they acquire a domicile, international law at once impresses upon them the national

character of the country of that domicile. It is a maxim of international law that domicile confers a national character; it does not allow any one who has a domicile to decline the national character thus conferred; it forces it upon him often very much against his will, and to his great detriment. International law looks only to the national character in determining what country has a right to protect. If a person goes from this country abroad with the nationality of the United States, this law enjoins upon other nations to respect him in regard to protection as an American citizen. It concedes to every country the right to protect any and all who may be clothed with its nationality.

The conclusions at which the President has arrived, after a full examination of the transaction at Smyrna, and respectful consideration of the views of the Austrian Government thereon, are that Koszta when seized and imprisoned was invested with the nationality of the United States; and they had therefore the right, if they chose to exercise it, to extend their protection to him; that from international law-the only law which can be rightfully appealed to for rules of action in this case-Austria could derive no authority to obstruct or interfere with the United States in the exercise of this right, in effecting the liberation of Koszta.' (Digest, vol. ii. p. 483.)

Koszta was not a naturalised foreigner; he had been for two years in the United States, and had declared his intention of remaining in that country, and during a visit to Smyrna he was seized by Austrian officers and placed on board an Austrian ship of war. Koszta was, therefore, simply a domiciled alien, and the contention of Mr. Marcy was that, being such a person, he was in the eye of international law an American citizen. One of the ablest and most recent of English writers on this subject has very shortly and very emphatically dealt with the American doctrine by saying that Mr. Marcy's contention was wholly destitute of 'legal foundation.' It is obvious that were this doctrine persisted in, it might from time to time produce the most important consequences. As it was, in Koszta's case the assertion of this right almost caused a conflict before Smyrna between an American and an Austrian ship of war.

The surest way to arrive at a sound conclusion on a point of international law such as this is to test it by some admitted rules. The mere ipse dixit of a publicist, however able, cannot be regarded as conclusive, seeing that on no subject is there often greater difference of opinion between those learned in it than on that of international law. It is clear that Mr. Marcy regarded Koszta as a de facto American citizen; if he were, then it is equally clear that such a person-a domiciled alien-is entitled to demand a pass

Hall's International Law,' p. 202.

port as an American citizen. But it is quite certain that he would have no right to such a certificate of citizenship.

The impropriety of any of our legations granting passports to foreigners under any circumstances, even with the omission of the clause asserting citizenship, and merely asking for the bearer liberty to pass freely, is obvious; for as this department possesses the faculty of granting passports to bona fide citizens of the United States only, and as a passport is merely a certificate of citizenship, it follows, as a matter of course, that no representative of the United States can with propriety give a passport to an alien.

'Further, if an alien has become domiciled in the United States, or declared his intention to become an American citizen, he is not entitled to a passport declaring him to be a citizen of the United States. Both of these classes of persons, however, may be entitled to some recognition by this Government. The most that can be done for them by the legation is to certify to the genuineness of their papers when presented for attestation, and when there can be no reasonable doubt of their being authentic.' (Digest, vol. ii. p. 463.)

6

These are Mr. Marcy's own words in 1854, and two years later he repeats that as this department grants passports 'only to bona fide citizens of the United States, and as a 'passport is nothing more than a certificate of citizenship, 'it follows necessarily that you can with propriety give a passport neither to an alien who may have become domi'ciled in the United States, nor to a foreigner who has merely declared his intention to become an American 'citizen.' But a passport is a written guarantee, so to say, of national protection, and conversely those who are entitled to national protection must be entitled to the documentary evidence of such protection. It is at once a contradiction in principle and practice to say that a domiciled alien is not entitled to a passport, and yet if he leaves the country is entitled to be treated by the Government of the country of which he was once a native as if he were a born or naturalised citizen of the country to which he has emigrated.

In his first annual message, President Cleveland, speaking on this subject, said :

'The laws of certain states and territories admit a domiciled alien to the local franchise, conferring on him the rights of citizenship to a degree which places him in the anomalous position of being a citizen of a State and yet not of the United States, within the purview of federal and international law.' (Digest, vol. ii. p. 341.)

These declarations seem to show that Mr. Marcy's contention was unsound; and that Mr. Hall when he summarily and rather contemptuously assails it is legally correct. It is not till a foreigner has, so to say, received his certificate of

citizenship, that he is entitled to the protection of a Government as if he were a natural born subject of that State, although for certain purposes connected with municipal law and with the law of prize, the fact that he is a domiciled alien may have very important consequences.

'When an alien applies to be admitted to citizenship in this country, having undergone the probation, and in all other respects having complied with the laws on the subject of naturalisation, and in open court solemnly avows his allegiance to the United States, and with the same solemnity renounces his allegiance to every other Government, and especially to that of the country of his birth, and is found to be of good moral character, he is admitted to such citizenship, and is thenceforth clothed and invested with the same rights and privileges that pertain to native citizens of the country, and entitled to the same degree of protection, whether abroad or at home.-Mr. Frelinghuysen, Secretary of State, to Mr. Cramer, July 28, 1883.' (Digest, vol. ii. p. 340.)

But this declaration differs vitally from that by Mr. Marcy, and shows that it is the naturalised citizen and not the domiciled alien who possesses the right in a foreign country of a native born citizen. On this particular point it would seem as if Mr. Marcy's sympathies had somewhat carried away his judgement, as Mr. Seward was carried away in regard to extradition, though, as we have seen, the law of the latter was not altogether unsound, even if not in harmony with the practice of the United States. The editor of these volumes, it is true, regards Mr. Marcy's exposition as one of 'almost unequalled sagacity and exactness.' With this expression of opinion it is not possible to agree. By other instances than those already given it may be shown to be unsound, as by the conduct of the Government of the United States in 1866 when they gave domiciled aliens an opportunity of leaving the country within a certain period if they were unwilling to bear arms against the Confederate States. If Mr. Marcy's doctrine were logically carried out, it is clear that such a permission to depart was altogether absurd; because if the domiciled alien was entitled to the protection which he was willing to accord him outside the territorial limits of the United States, the latter was bound by a correlative duty to obey the call of the Government in the same manner as a native born citizen. But so far from this being the case, 'nothing is more distinctly and clearly settled than the rule 'that resident aliens not naturalised are not liable to per'form military service-we have uniformly claimed and insisted on it in our intercourse with foreign nations.'

*

Mr. Seward to Mr. Morton, Sept. 5, 1862: Digest, vol. ii. p. 498.