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CHAPTER XXIX.

DETERMINATION OF NATIONAL CHARACTER.

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CONTENTS.

1. National character, how determined—? 2. Rights of allegiance and naturalization-3. Municipal laws relating to these rights-24. Apparent conflict of these laws- 5. National character changed by personal domicil 6. By a new commercial domicil- 7. Domicil defined - 8. Different kinds of domicil - 9. Intention the controlling principle- 10. Necessity of some overt act-11. Circumstances of residence- 12. Effect of domestic ties, etc.-13. Investment of capital and exercise of political rights- 14. Character and extent of business - 15. Length of residence 16. Distinctions in favor of American merchants- 17. Presumption arising from foreign residence-18. Evidence to repel this presumption 19. Ministers and consuls- 20. Other public officers- 21. A wife, minor, student and servant-22. A soldier, prisoner, exile and fugitive23. Effect of municipal laws on domicil- 24. Of treaties and customary law-25. Temporary residence for collection of debts- § 26. A merchant may have several national characters-27. Native character easily reverts-28. Leaving and returning to native country- 29. Belligerent subjects during war- 30. Effect of military occupation- 31. Of complete conquest- 32. Of cession without occupation-833. Of revolution and insurrection- 34. Of a particular trade- 35. This differs from domicil-36. Habital employment- 37. National character of ships and goods.

§1. National character may be determined from origin, naturalization, domicil, residence, trade, or other circumstances. That which results from birth or parentage, follows the

individual wherever he may be, till it is changed in one of the modes established or recognized by law: such as expatriation, naturalization, domiciliation, etc. Native allegiance is a legal incident of birth, and is the implied fidelity and obedience due from every person to the political sovereignty under which he is born. This is a principle of universal law, and is sanctioned alike by international jurisprudence and by the municipal codes of all countries. How far, and in what manner, this primitive allegiance may be dissolved or transferred, are questions which, perhaps, belong rather to municipal than to general public law, for the international status of the individual may be determined, at least in many cases, without regard to his allegiance, whether native or acquired. In others, however, this question must be considered in connection with the right of expatriation and naturalization. It may be proper to remark in this place, that inasmuch as the national character, which results from origin, continues till legally changed, the onus of proving such change, usually rests upon the party alleging it. (Westlake, Private International Law, §§ 7, et seq.; Foelix, Droit Int. Privé, §§ 27-30; Phillimore, On Int. Law, vol. 1, §§ 315, et seq.; Grotius, de Jur. Bel. ac. Pac., lib. 2, cap. 5, § 24.)

§ 2. It has already been remarked, that every independent state has, as one of the incidents of its sovereignty, the right of municipal legislation and jurisdiction over all persons within its territory, whether its own subjects or foreigners, commorant in the land. With respect to its own subjects, this right, it is claimed, includes not only the power to prohibit their egress from its territory, but also to recall them from other countries; and, with respect to commorant foreigners, not only to regulate their local obligations, but to confer upon them such privileges and immunities as it may deem proper. It may therefore change their nationality, by what is called naturalization. It is believed that every state in christendom accords to foreigners, with more or less restrictions, the right of naturalization, and that each has some positive law or mode of its own for naturalizing the native born subjects of other states, without reference to the consent of the latter for the release or transfer of the allegiance of such subjects. It seems, therefore, that, so far as the practice of nations is con

cerned, the right of naturalization is universally claimed and exercised, without any regard to the municipal laws of the states whose subjects are so naturalized. It may also be remarked, that this right, as a general proposition, is admitted and affirmed by most writers of acknowledged authority on international law. From the generality and extent of this right of naturalization, it has been inferred that the right of expatriation is equally broad and comprehensive. And this inference is undoubtedly correct, so far as the rules of general public law are applicable; or, in other words, so far as they do not conflict with the proper exercise of the municipal power of particular states, within the limits of their own territory. But it is claimed that each state has the exclusive power to permit or deny the exercise of this right to its own citizens, within the orbit of its own jurisdiction. At any rate, this right of municipal legislation is exercised almost as generally as that of naturalization. (Foelix, Droit International Privé, §§ 27-55; Phillimore, On Int. Law, vol. 1, §§ 315, et seq.; Cushing, Opinions U. S. Att'ys Gen'l, vol. 8, pp. 125, et seq.; Dou, Derecho Publico, tomo 1, cap. 17; Riquelme, Derecho Internacional, tomo 1, p. 319; Heffter, Droit International, § 59; Westlake, Private Int. Law, §§ 20, et seq.; Bello, Derecho Internacional, pt. 2, cap. 5, § 1.)

§ 3. The laws of Great Britain permit the naturalization of foreigners without reference to their primitive allegiance, and without requiring any abjuration, by the new subjects, of their original sovereign or country. Formerly, an act of parliament was necessary in each particular case, but since 1844, aliens may be naturalized as British subjects by presenting a petition to one of the principal secretaries of state. In every country of continental Europe the executive branch of the government possesses the power of naturalization, subject, in some cases, to certain specified restrictions. A distinction, however, is generally made between the native and naturalized citizen with respect to political rights. By the constitution of the United States, congress have power to establish a uniform rule of naturalization, and this power is recognized by the supreme court as being exclusive of that of the individual states. The act of March 26th, 1790, prescribed the taking of an oath or affirmation to support the

constitution, but required no abjuration of former allegiance. The act of January 29th, 1795, required, among other things, a renunciation of all foreign allegiance, particularly to the prince or state of whom the applicant was a subject or citizen. There is much less uniformity in the municipal codes of different states with respect to denationalization. The English jurists and publicists almost unanimously deny the right of expatriation, to the extent of a change of primitive allegiance, without the consent of the liege lord. By the laws of France, a Frenchman loses his native character by naturalization in a foreign country, by accepting office under a foreign government without the permission of his own, or, by so establishing himself abroad as to show an intention of never returning. In Austria, national character is lost by authorized emigration from the empire sine animo revertendi; but emigration is not permitted without the license of the proper administrative authorities. So, in Prussia, the subject loses his national character by emigration, when such emigration is duly authorized. In Bavaria, the right of citizenship is lost by emigration, or by the acquisition, without the special permission of the king, of jure indigenatûs in a foreign state. In Wurtemberg, citizenship is lost by emigration authorized by the government, or by the acceptance of a public office in another state. In Russia, the quality of a subject is lost by residence abroad, by voluntary expatriation, and by disappearance for the term of ten years from the place of his domicil. Spain and the Spanish American republics, contemplate and provide for the voluntary expatriation of their citizens and subjects, the right of expatriation, however, being made subject to certain conditions and restrictions. In several of the states of the American union expatriation is provided for and regulated by law, but this has reference only to allegiance due to the state, citizenship of a state being essentially different from citizenship of the United States, and a renunciation of allegiance to the former does not draw after it a renunciation of allegiance to the latter. There is no statute of the United States on the subject of expatriation and allegiance, but our naturalization laws seem to be based on the principle that every individual has the right to change his allegiance, and such has

been the language of our diplomatic communications. The decisions of our federal courts have generally been in reference to attempted expatriation and national character in time of war, and, therefore, in reference to international rather than municipal law. But, while recognizing, in common with the admiralty tribunals of England, a change of domicil for commercial purposes, the United States supreme court has, in no instance, admitted the distinct right of expatriation, independently of an act of congress to authorize it. In the case of Inglis v. Sailors Snug Harbour, that tribunal seems to have adopted the opinion that allegiance "rests on the ground of a mutual compact between the government and the citizen or subject," and that it "cannot be dissolved by either party without the concurrence of the other;" and equally strong expressions are used in its decisions in other cases. Chancellor Kent says: "From a historical review of the principal decisions in the federal courts, the better opinion would seem to be, that a citizen cannot renounce his allegiance to the United States, without the permission of government, to be declared by law; and that, as there is no existing regulation on the case, the rule of the English common law remains unaltered." Others, however, contend, that inasmuch as our naturalization laws admit the general doctrine of the right of expatriation, and the consequent transfer of native allegiance, citizens of the United States may expatriate themselves, in time of peace, the consent of the government being implied in the absence of any legis lative prohibition. The same writers, however, admit that such consent can never be presumed where expatriation is resorted to in order to escape the punishment of crime, or the performance of obligations already incurred. The renunciation of nationality, they say, does not release him who avails himself of it from any of the obligations which he owes either to his country or to his countrymen, nor can it ever be appealed to as a mask to cover crime. In other words, they maintain that there is no such thing as an absolute or indefeasible right of expatriation, any more than there is an absolute or indefeasible right of allegiance. "Allegiance in these United States," says Chief Justice Robertson, "whether local or national, is, in our judgment, alto

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