The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1859-07-19
THE CAPITALIZATION QUESTION
JUDGE BLACK ON THE RIGHT OF ExPArRIAT1oN.

/ N.
WASHINGTON, July 49, 1859
Attorney General Black has, in compliance with
the request of the President of the United States
rendered opinion in the case of Christian Ernst
native of Hanover, and who emigrated to this
country in 1851, when be was about nineteen wears
of age This subject recently made the basis of
a communication to our minister at Berlin. who
was instructed to demand the release of Mr. Ernst
1t appears-that he naturalized last February
and in March, after procuring a regular passport
he went back to Hanover on temporary visit He
had been in the village where he was born about
three weeks, where he was arrested carried to the
nearest military station, forced into the Hanoverian
army, and there he is at the present time, unable
to return home to his family and business but COM
PEELED against his will to perform military service
The Attorney General says that this is case
which makes it necessary for the Government ofthe
United States to interfere promptly and decisvely,
or acknowledge that we have power to protect
naturalized citizens when they return to their
native country, under any circumstances whatever
what you Will do must, of course depend upon the
law of0ur own country as controlled and modified
by the law of nations the Constitution of the Uni
ted States and the acts of Congress.
The natural rights of every free person who owes
no debts, and is not guilty of any crime, to leave
the country of his BIRTH and in good faith and for
an honest purpose-the privilege of throwing off
his natural allegiance and substituting another al
legiance in its place-the general right, in one
word, OF eXpatriaion, is ncontestihle | know the
common law of England denies it: that the judicial
decisions of that country opposed to it, and that
some of our own courts, msled by British authori-
ty, have expressed Though not very decisively)
the same opinion. But all this is very far from
settling the question. The municipal code of Eng
land is not one of the sources from which we de-
rive our knowledge OF international law. We take
1t from natural reason and justice, from writers of
Known wisdom and from the practice of civilized
nations.
All these are opposed to the doctrine of perpet-
ual allegiance. 1t is too injurious to the general
interests of mankind to be tolerated Justice de-
MES that men should either be confined to their
native soil driven away from it against their
will. man may be either exied or imprisoned
tor an actual offence against the law of his country;
but being born in it is not crime for which either
punishment can be justly inflicted. Among writers
on public law the prepOnderance in weight of auho-
rlty, as well as the majority in number, concur with
Cicero, who declares that the right of expatriaon
is the irmest foundation of human freedom and
with Bynkershock, who utterly denies that the ter
rltory of State is the prison of her people. In
practice, no nation on earth walks, or ever did
walk, by the rule of the common law. All the
countries of Europe have received and adopted and
naturaized the citizens of one another. They have
all encouraged the immigration of foreigners into
their territories, and many of them have aided the
emigration of their own people. The German
States have conceded the existence of the right
by making laws to regulate its exercise. Spain
and the SpaniSh-American States have al
ways recognized it. England by a recent sta
tute q and Nic.), has established permanent
system of naturalization in the very teeth of her
commOn-law rule. France has done the same, and
besides that has declared in the code Napoleon
(Art ll) that the quality of a Frenchman will be
lost by naturalization in foreign country There
is no government in Europe or America which
practically denies the right. Here in the United
States the thought of giving it up cannot be enter
tanned for moment. Upon that principle this
country was populated. We to it our existence
as nation. Ever since our independence we have
upheld and maintained it by every form of words and
acts. We have constantly promised full and com.
plctc protection to all persons who should come
here and seek it by renOuncing their natural allie
glance and transferring their fealtv to U.S. We stand
pledged, too in the face of the whole world. Upon
the faith of that pledge millions Of persons have
staked their mostimportant interests. If repudi-
ate 1T now or spare one atom of the power which
may be necessary to redeem it, shall be guilty of
perhdv so gross that no American witness ii
without feeling of intOlerable shame.
Expatriation includes not only emigration out of
ones natural country, but naturalizat on in the
country adopted as the future residence When we
prove the right of man to eXpatriate himself. we
establish the lawful authority of the country in
which he settles, to naturalize him. if the govern
ment pleases What, then, is naturalization?
There is no dispute about the meaning of it, The
derivation of the word alone makes it plain. All
photographers and all juries define it one way.
In its popular chronological and lawful sense it
signifies the act of adopting foreigner and cloth
ing him with all the privileges of a native citizen
subject.
There can be no doubt that naturalization does
pro tdcto, place the native and adopted citizen in
precisely the same relations with the governm ent
under which they live, except so far as in the ey
press and positive law of the country has made
distinction in favor of one or the other In some
countries immigration has been so encouraged by
giving to adopted citizens certain immunites and
privileges not enjoyed by natives. In most how
| ever political favors have gone the other wav
Here, q native he In
OF our States, foreign-born citizens are ineligible
to the office OF governor, and in of them they
cannot even vote for two years after they are nat
urallzed But If these restrictions had not been ex-
pressly made by positive enactment, they certainly
! would not have existed.
In regard to the protection of our citizens in
| their rights at home and abroad we have no law
which divides them into classes, or makes any diff
| ference whatever between them. A native and
naturaliZed American may therefore 90 forth with
! equal security over every sea and through every
| land under Heaven, including the country in which
! the latter was born Either of them NAV be taken
! up under debt contracted a crime committed
! by himself; but both absolutely free from all
political obligations to every country but their
| own. They are both of them American citizens,
and their exclusive allegiance is due to the Govern
ment of the United States. One of them never did
owe fealty elsewhere and the other at the time of
his naturalization snlemnly and rightfuy, in pur-
! suance OF public law and municipal regulation,
! threw off, renounced and abiured forever all allie
glance to every foreign prince pOtentate State and
sovereignty whatever, and especially to that
! sovereign whose subject he had previously been.
| If this did not work solution of every political
| tie which bound him to his native country, then
| our naturalization laws are n bitter mOckerv and
the oath we administer to foreigners is a delusion
| and a snare.
high reputation who hold that a naturalized citizen
! ought to be protected by the government of his
adopted country everywhere, except in the country
of bis birh but if he goes there, is caught with
| n q Of iS bie Of
! turaIization may be treated as a mere nuitv, and
and he will Immediately to have the rights of
! an American citizen. This cannot be true 1t has
foundation to rest upon land its advocates do not
| pretend that 1t has any except the dogma which
denies altogether the right of expatraton wi thOut
the consent of his native sovereign and that un-
tenable, as think have already shown.
Neither is this view supported by the practice of
the world. | need not say that our naturalization
laws are opposed to it in their whole spirit as well
as in their express words. The States of Europe
are also practically committed against it. No gov
! ernmcnt would allow one of its subjects to d-
vide his allegiance between it and another sover-
! egn; for they all know that serve two
masters. In Europe as well as here, the allegiance
| demanded OF naturalized resident must have been
! always understood exclusive. There are not
| many record, but what few we find are
uniform and clear. One Albert, a Frenchman, nat
uralized here, went back and was arrested for an
| offence against the military law, which none except
| a French subject could commit: but he was dis
! charged when his national character as an American
| citizen was shown. Mr.. Amther, a native 3a-
varian after being naturulized in America and
| living here for many years, determined upon
| returning to his native country and resuming his
! original political status. The Bavaran govern
ment, so far from ignoring his naturalization, ex
! pressed a doubt whether he could be re-adopted
/ there. But the most decisive fact which history
records Is the course of the British and American
! governments dur ing the war of 1912. The Prince
| Regent proclaimed it as his determination
that every native born subject of the British Crown
taken prisoner while serving in the American ranks
should be tried and executed traitor to his law
| full sovereign This was undoubtedly right accord
! ing to the common-law doctrine. The King of
! England had not given his assent to the expatria
tion of those people. If the Prince Regent had a
right to arrest naturalized Englishmen, Scntchmen
| or Irishmen in Canada as the King of Hanover
arrested Mr.. Ernst in his dominions). and compel
! them to fight for him, he certainly had right to
hang them for fighting against him. But Mr. Madi-
son denied this whole doctrine and all its consequent
ces. He Immediately issued counter proclamation,
declaring that if anv naturalized citizen of the
| United States should be put to death on the pre-
tence that he still British subject two English
prisoners should suffer in like manner by way of re
taliation. The Prince Regents proclamation was
never enforced in a single instance. A principle
which our Government successfully resisted under
such circumstances will scarcely be submitted to
| now.
The application of these principles to the case of
any naturalized citizen who returns to his nat i've
country is simple and easy enough. He is liable,
| like anybody else, to be arrested for a debt or
crime, but he cannot rightfuy be punished for the
non-performance of duty which is supposed to