Page images
PDF
EPUB

of indelible allegiance, admits strangers to citizenship by special Act or grant. But, inasmuch as the conditions of naturalization vary, there may arise here a conflict of laws, and two nations may at once claim the same man as sustaining to them the obligations of a citizen. International law has not undertaken to decide in such conflicts, and the question is scarcely one of practical importance, except when the naturalized person returns to his native country, and when he is caught fighting against her. There is no doubt that a State having undertaken to adopt a stranger, is bound to protect him like any other citizen... Whether anything short of completed naturalization can sunder the tie to the place of origin may be a question. It is held that a domiciled stranger may not with impunity be found in arms against his native country:" see Kent's Com. i. 76.

There is a case known as Koszta's Case, cited by both Wheaton, p. 146 (Dana's 8th edit.), and Woolsey (International Law, p. 131), which it will be useful to notice. Koszta was a Hungarian, who had taken part in the rebellion against Austria, and fled to Turkey, where he was arrested, but released upon a promise to leave Turkey. He went to the United States, and took up his residence there, making the declaration preliminary to naturalization, but he did not become actually a citizen. He afterwards went to Smyrna for temporary commercial purposes, and placed himself under the protection of the United States consul there, and the Chargé d'Affaires at Constantinople, by both of whom he was furnished with a passport or certificate of American nationality. While at Smyrna he was seized by Austrian officials, and placed in confinement on board an Austrian vessel in the harbour. The Turkish authorities protested against this act as a violation of the sovereignty of the Sublime Porte. The commander of an American ship-of-war demanded the release of Koszta, and threatened to fire on the Austrian vessel unless he was given up. This led to an arrangement by which Koszta was put under the custody of the French Consul-General until the Governments which were at issue should agree what to do with him. He afterwards went back to the United States. In the course of correspondence on the subject the United States Government claimed the right to free a subject domiciled, although not naturalized, from arrest of his person made within the territories of a friendly State, where he was sojourning for business purposes, by the agents of another State, although that of his birth, and if necessary to resort to force for that purpose. Woolsey says (Ibid. p. 132): "This was a case of collision between original and transferred allegiance-the latter in its incipiency, in which the obligation to protect the person clearly lay on the United States. How Austria could have dealt with him within her own limits is another question." The Case of Tousig, cited by Dana in his note to Wheaton, p. 146, shows that if Koszta had voluntarily returned to Austria, the conduct of the United States Government would have been different. Tousig, a subject of Austria, had acquired a domicile in the United States, but was not naturalized, and he voluntarily returned to Austria with a

passport from the American Secretary of State. He was arrested in Austria on a charge of offences committed before he had originally left that country, and the American Government refused to interfere. The distinction between the two cases is obvious.

By statute 4 Geo. 2, c. 21, and 13 Geo. 3, c. 21, all children born out of the King's ligeance whose fathers or grandfathers by the fathers' side were natural-born subjects are deemed to be natural-born subjects themselves to all intents and purposes, unless their said ancestors were attainted or banished beyond sea for high treason, or were at the birth of such children in the service of a prince at enmity with the Crown of this realm. This might seem to place the children and grandchildren of those persons who, born in Great Britain, have left their native country to settle permanently in a foreign State, in a very awkward predicament in case of their being found in arms on the side of their adopted country in a war between it and England. Many of those who fought under Napoleon I. against England must have been technically British subjects. Were they, therefore, guilty of treason, and if taken liable to be put to death as traitors? This would certainly have revolted every feeling of humanity, and perhaps the true solution of the difficulty is to be found in the explanation of the law given by Sir Roundell Palmer, in a speech he delivered in the House of Commons, March 20, 1868, when he said that Great Britain could not be supposed by any Acts to be imposing burdens upon the subjects of other countries; and he thought it impossible to read the two Acts of 4 Geo. 2, c. 21, and 13 Geo. 3, c. 21 together, without seeing that the Legislature as good as declared that all they intended by those Acts was to confer benefits, and not to impose burdens, upon the foreign-born children and grandchildren of natural-born British subjects. The second Act was merely passed to continue those privileges to the foreign-born grandchildren which were extended by the first Act to the foreignborn children of British-born subjects; there being no intention to fasten upon such persons, without their own concurrence, any burdens whatsoever. Sir R. Palmer stated this to be his distinct and deliberate opinion, and it seems to be sound law and good sense: see Eneas Macdonald's Case, 18 State Tr. 858.

The abjuration by a British subject of his allegiance to the Crown, and his promise of obedience to a foreign State, although they might have rendered him liable, under stat. 3 James 1, c. 4, ss. 22, 23, to the penalty of high treason, do not divest him of his character of a British subject, and therefore do not disqualify his children or grandchildren from inheriting as British subjects: see Fitch v. Weber, 6 Hare, 51.

It was decided in Doe d. Duroure v. Jones, 4 T. R. 300, that the son of an alien father and English mother born out of the realm could not inherit to his mother in this country. But now, by stat. 7 & 8 Vict.c. 66, s. 3, every person born out of Her Majesty's dominions of a mother a naturalborn subject, shall be capable of taking any real or personal estate. During the late civil war in the United States the military draft included citizens, native or naturalized, and "persons of foreign birth

Effects of marriage upon alienage.

Naturalization.

Naturalization in the Colonies.

who shall have declared on oath their intention to become citizens:" United States Laws, xii. 731.

During the Canadian rebellion in 1838, Lord (then Sir John) Campbell, A.G., gave an opinion, which was acted upon, that an armed band of American citizens who invaded our territory without the authority of their Government were liable to be treated as traitors: see Lives of the Chief Justices, i. 197; and OPINION, p. 199, ante.

In Craw v. Ramsay (Vaugh. 281), Vaughan, C.J., said: "If the King of England enter with his army hostilely the territories of another prince, and any be born within the places possessed by the King's army, and consequently within his protection, such person is a subject born to the King of England, if from parents subjects and not hostile."

Where a British subject married a Frenchwoman and became domiciled in France, where they resided until the outbreak of the Revolution, and the wife died in her husband's lifetime never having come into British territory, it was held that by the common law she was not a British subject: De Wall's Case, 12 Jur. (P.C.) 145. In the Countess of Conway's Case, 2 Knapp, 368, the Court said: "A French woman becomes in no way a British subject by marrying an Englishman; she continues an alien, and is not entitled to dower:" Co. Litt. 31 b. But by virtue of statute 7 & 8 Vict. c. 66, an alien woman who marries a British subject is now naturalized, and is not entitled to a jury de medietate linguæ: R. v Manning, 1 Den. C. C. 467. In Derry v. Duchess of Mazarine, 1 Raym. 147, it was held that if a husband is an alien enemy, he has no legal existence in this country; and his wife, resident here, so long as he remains such, is looked upon as a femme sole, and may be sued on contracts made by her as if she were a widow.

Naturalization in this country is now regulated by statute 7 & 8 Vict. c. 66, and it may be effected by a certificate issued by the Secretary of State for the Home Department, which has the effect of granting to the alien all the rights and capacities of a natural-born British subject, except the capacity of being a Privy Councillor, or a member of either House of Parliament.

By the Constitution of the United States the power of naturalization is vested exclusively in Congress, and the State Governments have not the power: Kent's Com. i. 467, 8th edit. But no naturalized citizen of the United States is capable of being elected President.

The statute 10 & 11 Vict. c. 83, enacts that all Acts, statutes, and ordinances theretofore passed by the legislatures of any of Her Majesty's colonies and possessions abroad, for naturalizing persons within the respective limits of such colonies and possessions, shall within such limits be valid, and that all such Acts, statutes, and ordinances passed in future shall within such limits be valid, subject to confirmation or disallowance by Her Majesty. And the same Act enacts and declares that the Act 7 & 8 Vict. c. 66, "An Act to Amend the Laws relating to Aliens," does not extend to any British colonies or possessions abroad.

341

CHAPTER X.

ON EXTRADITION.

(1.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN CAMPBELL and SIR R. M. ROLFE, as to the Detention and Extradition of Spanish Convicts wrecked on the Bahama Islands while proceeding under sentence of transportation from the Havannah to Cadiz.

Temple, September 15, 1836.

MY LORD,-We have to acknowledge the receipt of your Lordship's letter of the 31st ultimo, enclosing copies of despatches from the Governor of the Bahamas, and of enclosures therein contained, relating to certain Spanish convicts wrecked on the Bahama Islands while proceeding under sentence of transportation from the Havannah to Cadiz, in which letter your Lordship requests that we would report our opinion how far the proceedings of the Lieutenant-Governor were consistent with the law of nations and with the municipal law of England.

We beg leave to state to your Lordship that the LieutenantGovernor has no right by the law of England to detain in custody any persons merely on the ground of their having been guilty of offences against the laws of Spain. The convicts in question, having been wrecked on an island forming part of the territories of his Majesty, are entitled to be dealt with as free agents so long as they conduct themselves in conformity to the laws in force in the Bahama Islands. However reasonable the course recommended by the Attorney General of the island might be—namely, to deliver up to the Spanish authorities such of the convicts as had been convicted of the graver offences constituting mala in se, and to set at liberty those convicted of what were only mala prohibita—we are not aware of any law warranting such a course, or justifying a

British Governor in treating as criminals persons who have not violated the laws of the colony over which he presides.

The Lord Glenelg,

&c. &c. &c.

J. CAMPBELL.

R. M. ROLFE.

(2.) OPINION of the United States Attorney General, MR. LEGARE, on the Extradition of Criminals (1).

Attorney General's Office, October 11, 1841.

SIR, I find among the papers left in this office by my predecessor a letter from his Excellency Governor Seward, consulting you upon the course which ought to be pursued in the matter of one Dewit, a fugitive from justice demanded of the Governor of New York by the Governor-General of Canada, together with a request from yourself that it be considered by the Attorney General. I have accordingly turned my attention to the subject as soon as other pressing avocations would permit me to do so, and now have the honour to give you an opinion upon it.

I think from the whole argument of the Bench in the case of Holmes v. Jennison, 14 Peters, 540, we may consider it as law: First, that no State can without the consent of Congress enter into any agreement or compact, expressed or implied, to deliver up fugitives from justice from a foreign State who may be found within its limits: secondly, that according to the practice of the executive department, as appears from the official correspondence both of Mr. Jefferson and Mr. Clay, your predecessors in office, the President is not considered as authorized, in the absence of any express provision by treaty, to order the delivering up of fugitives from justice. In the absence, therefore, of such treaty stipulations, I am of opinion that it is necessary to refer the whole matter to Congress, and submit to its wisdom the propriety of passing an Act to authorize such of the States as may choose to make arrangements with the Government of Canada or any other foreign State for the the mutual extradition of fugitives, to enact laws to that effect, or Acts approving such laws as may already have been passed in the several States to that effect.

(1) 3 Attorney Generals' Opinions, 661.

« ՆախորդըՇարունակել »