[From the London Times, March 21, 1868.]
THE LAW OF EXPATRIATION.

HOUSE OF COMMONS, March 20.

On the motion for going into committee of supply, Mr. W. E. Forster rose for the purpose of calling the attention of the house to the effect of the law regulating the allegiance of subjects of the Queen who have emigrated to foreign countries, and especially to the United States of America, and of asking the secretary of state for foreign affairs whether he did not think that the time was opportune for attempting to arrive at a mutual understanding between her Majesty's government and the government of the United States respecting the right of expatriation. He believed that the claims made by this country in connection with this subject had operated greatly to our disadvantage in our intercourse with foreign nations, and the time had now arrived when we might properly inquire whether it would not be for our interest to modify those claims to some extent. In order to bring the subject fully before the house it would be necessary for him to refer briefly to the law upon this question as it stood at present. As far as he could make out there appeared to be two classes of British subjects-those who were so by the common law and those who were so by the statute law. By the common law all persons born within the dominions of the Queen were British subjects, notwithstanding the fact that their parents might be foreigners who were within those dominions merely on a visit. There were two ways by which persons might become British subjects under the statute law-firstly, by being naturalized under certain conditions mentioned in the act of parliament, and secondly, under the provisions of the act of George II, which enacted that all children of British subjects who might be born out of her Majesty's dominion were entitled to the privileges of British subjects. The latter act was supplemented by the act of George III, which extended those privileges to the grandchildren as well as the children of British subjects born abroad. There was, however, this difference between the natural-born subject and the children and grandchildren of British subjects born abroad, that allegiance was claimed from the former alone. It had been stated by a very able writer in the Times, who wrote under the name of "Historicus," that it was a question whether we did not claim allegiance from the children and grandchildren of British-born subjects, even although their parents had been all their lives abroad; and it was important to look closely into this point, as it concerned a large number of the present population of the United States. A similar opinion as to the extent of our claims appeared to be prevalent in America, and a portion of the excitement in that country was doubtless owing to that notion. That, however, was an erroneous opinion, as the statutes appeared to him to be enabling rather than compulsory. The law, however, upon the point was far from clear, and it would be well for parliament to define the extent of our claims, so that there could be no doubt upon this branch of the subject. The law respecting the British-born subject was, however, perfectly clear, and it asserted that by no act of his own could the British-born subject get rid of his allegiance to the Crown. Upon this point Blackstone, in defining the conditions of allegiance, said: "National allegiance is such as is due from all men born within the sovereign's dominions immediately upon their birth, and cannot be forfeited, canceled, or altered by any chance of time, place, or circumstance, nor anything but the united concurrence of legislature; and an Englishman who removes to France or to China owes the same allegiance to the King of England there as at home, and 20 years hence as well as now; for it is a principle of universal law that the natural-born subject of one prince cannot by any act of his own-no, not by swearing allegiance to another-put off or discharge his natural allegiance to the former; nemo potest exuere patriam."

It was rather remarkable that this was the only country which carried its claims to allegiance to this extent. On the continent they treated the matter not so much as the claim of the sovereign to the allegiance of the subject, which never could be broken, but rather as the right of the citizen to assistance and to privileges which, under certain circumstances, he might forfeit. Thus, the Code Napoleon, cap. 1, laid down "that the quality of a Frenchman is lost by naturalization in a foreign country," the French principle being that "personne ne peut avoir deux patries;" although it was true that Napoleon in 1811 declared that all Frenchmen who should change their nationality without the consent of the state should be liable to certain penalties. Prussia went almost as far in the other direction as we stopped short of it, and adopted a principle which he trusted would never be accepted in a commercial country like this-that a citizen lost his privileges by residing 10 years in a foreign country. But the matter was set upon what he regarded as the proper footing by the Italian code, which was said to be the newest and the best edition of the Code Napoleon. By that code the rights of citizenship were lost by declaration made before a civil authority and by subsequent emigration, by accepting employment from a foreign government, or in enter ing into its military service, or, finally, by becoming naturalized in a foreign country. The doctrine which was upheld by this country was upheld by ourselves alone, and

this was the more astonishing inasmuch as no country furnished such a number of emigrants to all parts of the world. But there was also this remarkable fact, that we had been compelled to give up the principle on which it was founded. Originally that principle was that while we claimed the allegiance of all British subjects we in return afforded them protection. Blackstone distinctly stated in his Commentaries that such was the case:

“Local allegiance is such as is due from an alien or stranger born for so long a time as he continues within the King's dominions and protection, and it ceases the instant such stranger transfers himself from this kingdom to another. Natural allegiance is perpetual; local allegiance is only temporary, and for this reason, evidently founded upon the nature of government, that allegiance is a debt due from the subject upon an implied contract with the Prince that so long as the one affords protection, so long will the other demean himself faithfully."

But we had found it impossible to carry out that principle, and a curious proof of the fact was furnished during the course of the late American civil war. Thousands upon thousands of English and Irish emigrants in America endeavored to claim exemption from the conscription and from enrollment during that war, but we found it impossible to assert their right to exemption after they had taken any step toward renouncing their allegiance to the English crown. Consequently we gave up all idea of affording them protection, but we still claimed to regard them as subjects of the Queen. Now by the United States census of 1860 it appeared that one-seventh of the population of the United States were born abroad. Of these about 2,450,000 were subjects of the Queen, no less than 1,600,000 of them having been born in Ireland. Yet most of these persons were citizens of the United States; nearly all intended to be. The house was, perhaps, aware of the oath that was taken by an alien desiring to become a citizen of the United States. It ran as follows:

"I, A. B., do declare on oath that I will support the Constitution of the United States, and that I do entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty whatever, particularly (here came the name of the sovereign of the country in which the person was born) to Victoria, Queen of Great Britain and Ireland.”

That oath could not be taken before the person had resided in America five years. But there still remained another oath:

"I do declare my intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to every," &c.

Those were the oaths that were taken by a vast number of emigrants; and it would be useless to attempt to disguise the fact that in the case of a great number of the emigrants the oaths were taken with a full cognizance of their meaning, with a full intention of keeping them and never returning to our shores, and that a large number were very glad to have the opportunity of renouncing their allegiance to the Queen of England. But our law defied the right of the United States to protect its citizens. What had been the result of this conflict in the laws of England and the United States? There were many persons in America who undoubtedly wished to make it work as badly as possible, and they were somewhat encouraged in this by the way in which the law had worked in times past, for it was this conflict of allegiance that gave rise to the war between ourselves and the United States in 1812. That that was really the ground was evident from the Prince Regent's declaration in reply to the President's proclamation of war:

“There is no right more clearly established than the right which a sovereign has to the allegiance of his subjects, more especially in time of war. Their allegiance is no optional duty which they can decline and resume at pleasure. It is a call which they are bound to obey; it began with their birth and can only terminate with their existence." That certainly appeared to be an argument that we were still asserting abroad. We were now in this difficulty: some of the returned Irish emigrants had, upon being arrested, claimed the rights of American citizens, and those rights were, as was properly the case under the present state of the law, refused to them, because by law they were British subjects. The house was doubtless aware of two or three cases. where the difficulty had recently arisen. There were, for instance, the cases of Captain Jacknell and of Warren, in the latter of which Chief Baron Pigott said:

"According to the law of England-a law which has been administered without any variation or doubt from the very earliest times-he who once is under the allegiance of the English sovereign remains so forever."

The result of this claim had led to considerable excitement in America. Meetings had been held, and the matter had been brought before Congress. He was perfectly aware that the excitement had been increased by interested parties, by agents of the Fenian conspiracy, and that there had been great exaggeration. It had been stated that American citizens had been arrested in England on account of acts committed in America, and other statements equally devoid of foundation had been spread abroad. Still the excitement had been considerable. One doctrine, among others, that had been

brought forward in the American House of Representatives, but brought forward, he was glad to say, only to be denounced by all present who possessed any influence, was that if we persisted in our claims our action should be met by reprisals. It was only due to America to say that though such a doctrine had been mooted, it had found no favor. [Hear, hear.] But to show what the feeling of the Americans on the subject really was, he did not think he could do better than read the letter written by Mr. Webster to Lord Ashburton in 1842:

"A question of such serious importance ought now to be put to rest. If the United States give shelter and protection to those whom the policy of England annually casts upon their shores; if by the benign influences of their government and institutions, and by the happy condition of the country, those emigrants become raised from poverty to comfort, finding it easy even to become landholders, and being allowed to partake in the enjoyment of all civil rights; if all this may be done, (and all this is done under the countenance and encouragement of England herself,) is it not high time, my lord, that, yielding that which had its origin in feudal ideas as inconsistent with the present state of society, and especially with the intercourse and relations subsisting between the Old World and the New, England should at length formally disclaim all right to the services of such persons, and renounce all control over their conduct?"

Proceeding to discuss the probable disadvantages which would arise if we gave up this right, he considered, in the first place, whether we should be in a worse position than we now are in dealing with the Fenian conspiracy. He thought not. [Hear.] It was true that if the Fenians were treated as aliens they would have the power under the existing law to demand a mixed jury; but the question immediately arose whether it was wise to continue in operation a law which had been passed centuries ago to meet the necessities of a totally different state of society from the present; nations were not now separated as in former times, and less cause for fear existed that foreigners in any country would be treated with injustice. This law could at least be dispensed with as far as America was concerned; no such law existed in the United States, though, of course, American citizens were justified in applying for a mixed jury in England as long as the law was in operation. It was also true that if Fenians were regarded as aliens they would have the right of claiming the protection of the minister representing the country from which they had come; but although no minister would refuse to entertain a demand for protection by any of his country's subjects, it was quite open for him to refuse to respond to that demand on making sufficient inquiry. Still, it should also be remembered as an element in the calculations that all foreign ambassadors did not pos sess so remarkable mixture of prudence and moderation, coupled with a just estimate of the rights of his own country, as distinguished the present United States minister. [Hear.] A remarkable distinction was drawn by our law between British subjects and aliens, and that was that a British subject could be tried in England for treasonable practices committed abroad, and an alien could not; but in both cases acts committed abroad might be alleged in our courts as evidence of intent regarding treason at home, for which either might be tried. Of course, if Fenians were treated as aliens this right would be given up; they could not be tried here for treason committed in the United States. But he presumed no government would think of prosecuting a man in England for treasonable speeches made in New York. The feeling which would be excited in the States by such a proceeding might easily be estimated by imagining our own feelings if the Russian government prosecuted a Pole for speeches in London against the conquerors of his country. "Historicus" recommended that we should enlarge the principle of our law and make agreements with foreign countries to try aliens as well as subjects for all illegal acts, including treason, whether committed at home or abroad; but he was sure our foreign minister would be sorry to have the settlement of the complications which would arise if this suggestion were adopted. Another objection which it was necessary to meet had originally presented itself to him with some force, and that was the necessity we were under to be careful not to shake the principle on which patriotism was founded. But on examining this question more closely he found that it formed a strong argument the other way. To allow a man to play fast and loose with the country, to permit him to go to the United States and commit acts offensive alike to our sovereign and our country, and then to return here and claim the rights of a British citizen, was sapping the very foundation of patriotism. Those persons who, in swearing allegiance to a foreign state, renounced their allegiance to our Queen, deserved no consideration; those only who desired to owe temporary allegiance to a foreign state with the full and honest intention of returning to this country at a future time, should have an opportunity of again obtaining the rights and privileges of a British subject. The case of these persons might be met by some such agreement as that come to on the 224 of February last between Prussia, as representing the North German Confederation, and the United States, the terms of which he believed to be as follows:

"1. Every subject of the North German Confederation naturalized in the United States of America, and having resided there during five years, shall be considered by the North German Confederation as an American subject, and treated as such."

On his return to the United States he would enjoy all the rights of American citizenship, and during any stay in Prussia no attempt would be made to force his service in the Landwehr. The convention further provided that

"2. Every naturalized subject of either state who may return to the land of his birth cannot be prosecuted for any criminal offenses, unless they shall have been committed by him previously to his expatriation. 4. Every naturalized subject who, having no intention of returning to the country of his adoption, resides continuously during two years in his former country, is presumed to have renounced his naturalization.”

This convention might be regarded as the result of long negotiation between two nations desirous of enabling their citizens to expatriate themselves. He then came to the question what arrangement could be made to enable persons to repatriate themselves, if he might use an obsolete word. A congress of nations had been suggested, and he favored this suggestion because the matter did not seem to be so much a subject for treaty as for mutual understanding. He noticed also that "Historicus" recommended it, and he observed that the subject he had mooted was one which could with great propriety have been submitted to that quintennial or decennial congress of nations proposed by the Emperor of the French if that proposal had been carried out. But if with reference to this suggestion of a congress it was said that questions might arise such as extradition and criminal jurisdiction, which it would not be well to discuss in a congress partly composed, perhaps, of despotic powers, no such argument could justly be adduced in opposition to a proposal to come to an understanding on the matter with the United States, and for the purpose he suggested the appointment of a general commission of subjects of the two countries. A commission might be appointed, composed of some of the ablest and best men of both countries, who would carry with them the confidence of their own nation, and very likely also that of the other. The American law required almost as much alteration as ours. America was the only other great country besides England that denied the right of expatriation. On that matter there had been a curious conflict between American law and American diplomacy. The American government had found it necessary to protect the men who emigrated to their shores; yet their jurists had always stuck to the doctrine of perpetual allegiance, which was part of the common law of England; and America has shared our difficulty in getting rid of these old principles of law. In his last general message to Congress, in December, 1867, President Johnson, alluding to the negotiation with Prussia, said:

"In connection with this subject, the attention of Congress is respectfully called to a singular and embarrassing conflict of laws. The executive department of this government has hitherto uniformly held, as it now holds, that naturalization in conformity with the Constitution and laws of the United States absolves the recipient from his native allegiance. The courts of Great Britain hold that allegiance to the British Crown is indefeasible, and is not absolved by our laws of naturalization. British judges cite courts and law authorities of the United States in support of that theory against the position held by the executive authority of the United States. This conflict perplexes the public mind conerning the rights of naturalized citizens, and impairs the national authority abroad."

Mr. Johnson was perfectly justified in that statement, because the highest authority among the Americans, Chancellor Kent, said:

"From this historical review of the principal discussion in the federal courts on this interesting subject in American jurisprudence, 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 legislative regulation on the case, the rule of the English common law remains unaltered."

Their next best authority, Justice Story, gave the same opinion. Therefore a joint commission might do a useful work for both countries, and define what was a British subject and what an American citizen. The question of naturalization and that of the position of aliens would come before it. England and America seemed to be behind other civilized nations in their treatment of aliens. France, he believed, did not make it impossible for aliens to possess land; but England and America did. England allowed naturalization without any term of previous residence; while America required five years' residence. In the United States naturalized citizens might, after seven years' residence, become members of the House of Representatives, and after nine years' residence members of the Senate; whereas in England, notwithstanding the facilities afforded by an act of 1844, naturalized subjects could not sit in the legislature. But for the accident of the act of George III coming to his rescue, the honorable member from Banbury (Mr. Samuelson) could not now be a member of that house. He really did not see why constituencies should not be at liberty in such cases to elect whom they thonght fit. In considering the subject of expatriation and repatriation various legal diculties would probably arise. One of those difficulties would relate to the position of children; and it would be well to look at the French mode of meeting it. În France, instead of the child of every French subject abroad becoming necessarily a French subject also, the option was given to the child of choosing his country within one year after he became of age. That appeared to him a principle which had much justice to recom

mend it. Or, possibly, this rule might be adopted-namely, that every child of a British subject might at any time, after a certain term of residence, be entitled to claim the full rights of citizenship. But the rather absurd act passed in the reign of George III, although it had certainly been of great advantage in the honorable member for Banbury's case, could scarcely be maintained. 'If an Englishman went to France or America, lived there, died there, had a son who also lived and died there, and had a grandchild who happened to come to England, he did not see how he should then be deemed a British subject. In conclusion, if the mode of settling these questions which he advocated were fairly tried, and proved, as he hoped it would, successful, he believed such a result would lead to its adoption in regard to other matters of dispute between this country and America, so as almost to make the occurrence of war between the those two nations impossible. [Hear, hear.] The honorable gentleman concluded by asking the secretary of state for foreign affairs whether he did not think the time was opportune for attempting to arrive at a mutual understanding between her Majesty's government and the government of the United States respecting the rights of expatriation.

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Lord STANLEY. I think the honorable member for Bradford has done good service in bringing this question forward. [Hear, hear.] And, reserving my opinion upon some points of detail which it is hardly necessary to discuss, and upon some matters as to which I do not feel that I am called upon to offer an opinion, I will at once say that I do not see any reason to dissent from the general tendency of the views expressed by the honorable member. He stated, and stated very truly, that as long as the United States law remains, as practically I believe it is, identical with ours, we have a very fair reply in any controversy which may arise. But that is no reason why we should not agree to amend anything in the laws of both countries which may be unsuited to the purposes of the time før which we live. From the moment when these questions first arose I have carefully guarded myself, when speaking in the name of her Majesty's government, against even the appearance of a wish to stand up for the maintenance of that doctrine of indestructible natural allegiance which seems to be so entirely unsuited to the case of emigrants, and still more to the descendants of emigrants. Putting aside the extreme theory on the subject, I believe some doubt exists whether the rule can legally be said to apply to the children of emigrants; but even as regards emigrants themselves it seems to be hardly defensible in theory, and it is certainly unworkable in practice. It is hardly defensible, because in any country where emigration is sanctioned and encouraged, and where that emigration notoriously takes place to a foreign country, the government, by the sanction which it gives, must be held to contemplate that those who emigrate, not to speak of their descendants, do in most cases intend to sever themselves from the country of their birth. If we attempted to make good the claim which theoretically exists in the case of all British subjects who have expatriated themselves, we should be obliged to apply that law to the many thousands who have scattered themselves all over the States of America, over whom, if we wished it, we could exercise no control whatever. I think a good deal of misunderstanding exists as to the bearing of this question upon the status of persons engaged in a conspiracy against the government of this country who may be brought to trial here. A great deal has been said about men being punished before a British court of justice for acts done in America. I apprehend that is a case which only arises once in a hundred times. [Hear, hear.] Then a great deal is heard about the claims of persons over whom we seek to exercise no national rights to be tried by a mixed jury. But it is perfectly clear that the right to be so tried is not a matter of international obligation; it is only a regulation of our own municipal law, [hear, hear,] which we should have a right to abolish to-morrow if we thought fit, without any foreign government having reason to complain. That consideration, therefore, we may put out of the question. The only other advantage that I can see which an alien tried for some Fenian offense here would have over a British subject would be the power of appealing to his own government for their interference and protection. I apprehend that that would not be of any practical importance in a civilized state of society, though it might have been of some advantage in a ruder state. If a person born in England were, on returning from America to this country, tried for a political offense, and if he claimed to be an American citizen, and declined to be regarded as a British subject, he would be in some respects in a worse position as regards his own case than before any alteration of the law. It was some advantage to a man, however misguided his conduct may have been, to say that he was endeavoring to redress the wrongs of his country; but if he severed himself altogether from his native country and settled in another, becoming a citizen of that other country, then his locus standi for interference in the affairs of his native country is absolutely gone. [Hear, hear.] He is then not a man endeavoring to redress the grievances of his own country, but he appears in the character of a foreign revolutionist. [Hear, hear.] I may perhaps say that I have directed the British minister at Washington to express to the government of the United States our willingness to take this whole question into consideration, [hear, hear,] and if they act in the same spirit with us we are willing to meet them half way. [Hear, hear.] But when we come to consider the details the matter is not quite so simple, for there are many legal difficulties connected with the