Daily National Intelligencer

EXPATRIATION.

From the Enquirer.

The history of the paper entitled Notes on the Right of Expatriation and Perpetual Allegiance is this: The writer of the essay mentioned in this day's paper, an essay in manuscript, not yet published, from the pen of Geo. Hay, had a conversation with a friend in this city on several of the propositions therein advanced. In this conversation, the writer of the following notes, a young gentleman now engaged in the study of the law, took a part. The writer of the essay, being very much occupied with professional concerns, finding that the young gentleman had paid more than common attention in the general course of his reading to the subject of expatriation, asked him to note in writing any references which could throw light upon it. On the morning of the day succeeding the conversation, the notes as now presented to the public, were communicated. It is manifest that they were not intended for the public eye: but the person to whom they were addressed, deems them, even in their present form, worthy of notice. They are obviously the work of an active and vigorous intellect, highly improved by literary labor.

Notes on the Right of Expatriation, or Perpetual Allegiance.

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. [1 Black. Comm. 369.]

In proof that this is a principle of universal law, for it is by this law only, that such allegiance is claimed, he refers to 1. Hal. P. C. 68. On looking into Hale's Pleas of the Crown, we find that he divides allegiance into 1. Original, virtual, and implied. 2. Express, and declared by Oaths and promises. After which he proceeds to expound the English law relative to each, without mentioning universal law at all. For all that Hale has omitted concerning allegiance, he refers us to Calvin's Case, reported in [7 Coke.] Thus the principle for which Blackstone refers to Hale, is not found in Hale, and as Hale refers to Coke for whatever is not found in his Pleas of the Crown concerning allegiance, it is proper that we examine what is said in Coke.

Accordingly on turning to Calvin's case. [7. Coke. Rep. 6a.] we find these words—'Also in their arguments of this case concerning an alien, they (the court and bar) told no strange histories, cited no foreign laws, produced no alien precedents, &c. So here was an adjudication according to the principles of universal law' in which the court, the bar, and the reporter studiously avoided all inquiry into the principles even of general and much less of universal law.' In another page of the same book we find it resolved that allegiance is due by the 'law of nature,' and the law of nature only, and that the law of nature is immutable. [7. Coke 12 b. 25 a.]

But I deny the inference of the immutability of allegiance drawn from the immutability 'of natural law' under which it is claimed. It follows, indeed, that allegiance is always the same, since the law under which it is claimed is always the same; but we are still to enquire whether allegiance was originally perpetual, according to the principles of natural law, as Coke, or of 'universal law,' as Blackstone calls it. We must first, then, suppose natural and universal law to mean the same thing, as they are synonymously used by these two writers, and proceed to enquire what this law is.

Natural law has often been defined—

Jus naturale est, quod natura omnia animalia docuit. [1. Inst. tit. 2. proem.]

Natural law is what nature teaches all animals.

Est quidem vera lex, recta ratio, natura congruens, diffusa in omnes, constans, sempiterna: qua vocet ad officium jubendo, vitando a fraude deterreat: qua tamen neque probos frustra jubet nec improbos jubendo aut vitando movet. Huic legi nec abrogari fas est, neque derugari ex hac aliquid licet, neque tota abrogari potest, nec vero ab hac aliquid derogari aut per Senatum aut per populum solvi bac lege possumus, neque est quaerendus explanator, aut interpres ejus alius. Nec erit alia lex Romae, alia Athenis: alia nunc, alia posthac; sed et omnes gentes et omni tempore una lex, et sempiterna, et immortalis continebit: unusque erit communis quasi magister et imperator omnium, Deus. &c. Cic. de Rep. lib. 3. ex Lact. 6. cap. 8.]

The true law is right reason, conformable to the nature of things; constant, eternal, diffused through all; which calls us to duty by commanding; deters us from sin by forbidding; which never loses its influence with the good; nor ever preserves it with the wicked. This cannot possibly be over-ruled by any other law; nor abrogated in the whole or in part; nor can we be absolved from it either by the Senate or the people: nor are we to seek any other commentator or interpreter of it. But itself, nor can there be one law at Rome, another at Athens; one now, another hereafter. But the same, eternal, immutable law comprehends all nations, at all times, under one common master and governor of all—God.

Again—natural law is of two kinds. 1. The law of physical bodies merely as such, by which things are what they are. 2. A universal rule of moral action subsisting between moral agents— [Hook. Ec. Pol. B. 1. § 3 & 12.]

Farther—' When many men of different times and places unanimously affirm the same thing for truth, this ought to be ascribed to a general cause, which in the questions treated of by us can be no other than either a just inference drawn from the principles of nature or universal consent. The former shews the law of nature, the other the law of nations.' Gro. de Jure B. and P. Intro. § 41.

Or, it is that law by which man is directed by his own proper nature impressed upon him by the Deity ' to pursue his own true and substantial happiness. It is coeval with man and superior to all human laws.' [1. Blac. Com. 41.]

Let us then examine by the aid of these definitions, whether allegiance is absolute and eternal. Now, since natural law is the same at all times and in all places,' and is a just inference from the principles of nature, if we can find any time at which, or any place in which allegiance has not been perpetual, or can draw any just inference from the principles of nature' against such a doctrine, perpetual allegiance cannot be said to be sanctioned by natural law.

The first book both in time and authority to prove that there have been places and times in which allegiance was not perpetual, is the Bible. We there find that Jacob's family became subjects of the Egyptian monarchy. That Moses expatriated himself from Egypt and dwelt among the Midianites. That David, the man after God's own heart, absolved himself from the allegiance which he owed to Saul, and became a subject of Achish, king of Gath, and even marched an army in hostile array against his native country and late sovereign.

The instances from profane history are too numerous for quotation. The master states of the world,' Rome and Greece, owed their power and glory to those who fled from the misfortunes or persecution of their own country. Cecrops settled in Attica and Cadmus in Boeotia. Besides these, see the numerous colonies who settled in Sicily from Troy, Italy, Phoenicia, Euboea, Megara, Rhodes and Cyme. Thucyd. B. 6. ann. 21 of Pelop. war. Phoenicia itself was settled by a colony from the borders of the Red Sea. (Herod. Clio. §1.)

Ceterum Germania vocabulum recens et nuper additum, qui primi Rhenum transgressi Gallos expulerint ac nunc Tungri, nunc Germani vocati sunt. Tac. de Mor. Ger. cap. 2.]

The word Germany is held to be of modern addition. In support of this hypothesis they tell us that the people who first passed the Rhine and took possession of a Canton in Gaul, tho' known at present by the name of Tungrians, were in that expedition called Germans.

Nunc singularum gentium instituta, ritusque, quatenus differant, quae nationes e Germania in Gallis commigraverint, expediam.

Tac. de Mor. Ger. cap. 28.]

I now shall enter into a more minute description of the several states, their peculiar rights, and the distinctive character of each: observing at the same time which were the nations that first passed the Rhine and transplanted themselves in Gaul.

That it was the constant practice of the northern nations of Europe, see Mach. hist. Flor. and Giannone's hist. Naples.]

This right of expatriation has been lately extolled by an admired historian, as the best safeguard against the persecutions of tyranny and the cruelties of corrupted power. [1 Gibb. Dec. and Fall. 927.]

That it has not only been practised, but applauded by the greatest men whom the world ever saw, See Cic. Ora. pro Balbo 5 Tusc. Quæst. 1 de Leg.]

But lest it may be objected that the practice of ancient nations can only shew their opinion as to what was 'natural law,' upon the subject, and as a different practice has arisen in modern times, which is equally good evidence of what is 'natural law,' let us apply the further test, furnished by Grotius' definition, and see which is the most 'just inference from the principles of nature.'

What then is said on the subject by those writers to whom we are accustomed to look as the expounders of 'natural law?' We find the right expressly acknowledged. 50 Dig. ti. 1. § 11. Gro. de Jure. B. & P. B. 2. c. 5 (§24). Pufend. de lege n. & g. B. 8. ch. 11. §2 Vattel, B. 1. C. 19. § 125. Burlamaqui B. 2. pt. 2. ch. 5. Locke on Civil Gov. §113. 115.]

It is true that Grotius and Puffendorf affirm, that a citizen may become the subject of a government in which he is required ever to remain so. How far such a condition would be binding on any one, I shall not stop to enquire, as they both pre-suppose the assent of the subject to be expressly given, whereas no such consent can be inferred from birth, which is a passive act, (excuse the expression in notes.)

How then does the doctrine of Blackstone and Lord Coke stand? We have seen that the subject owes allegiance to his government by the law of nature only, that the law of nature is the same at all times and at all places, that it is a just inference from the principles of nature. That the right of expatriation has been defended on principle and practice by all nations of whom we have recorded or traditional accounts, until it was broken in upon by the feudal system, entirely an artificial and military one: now allegiance being by the law of nature, and the law of nature being perpetually the same, as the right to terminate this allegiance existed in the subject for thousands of years, among all nations, and still exists among some, as it existed before civil institutions, and could not be taken away by them, for it was guaranteed by a law pre-existing and paramount over all human rule, legem non scripitam sed natam, a law which God made and which God only can abrogate, the right must still exist.

Such is my view of the subject when considered under the principles of 'natural law,' as they are expounded by the most approved authors. But there is still another view which it becomes us to take in justice to Blackstone: that is, to consider it as it may be affected by a 'just inference from the nature of things.' In doing so, I know no mode which can be so satisfactory to the advocates of Blackstone's doctrine, as to take the reason which he himself has given for the perpetuity of allegiance, as the true one. It is, he says, a debt of gratitude which the subject owes the sovereign for protection. [1 Com. 369.]

Since then allegiance is a debt of gratitude, it becomes necessary to examine how far benefactors have any right to exact the payment of such debts. 'We ought not to confound the natural obligations of which we have spoken in this chapter, with the imperfect obligations mentioned in the beginning of this treatise. These give no one a claim against us, even in a moral view. For example. If I have failed to render my benefactor a service, which gratitude required from me; altho' he suffers by this neglect of duty, this does not make him my creditor, even in foro conscientiae, &c.' [Poth. on obli. ch. 2 § 197. p. 117.]

'Ingratitude implies no real injury, inasmuch as it is not the violation of any full and perfect right.' 3. Puffen. ch.3 § 177.

Thus it appears, that gratitude never imposes an obligation of which the benefactor has any right to claim the performance.—But suppose it did. It could only do so when the benefit was willingly received, for that may not be a benefit which is imposed by necessity, as Blackstone says allegiance is by birth. And even granting that it is a debt, it will appear one of a most singular nature, for Blackstone expressly says, it can never be discharged; so it is,

1. A debt which can never be paid.
2. A debt contracted without the consent of him who owes it.—Now, as this is entirely contrary to reason, it becomes the advocates of Blackstone's doctrine to point out to us the principles of 'universal law' which compel us to perform such contracts. They affirm, and we deny. Let them prove their proposition. They cannot. There are no such principles. So it clearly appears, that so far from perpetual allegiance being sanctioned by 'universal law,' it is repugnant to the first principles of nature, inconsistent with the most harmless exercise of the most valuable rights, contrary to the very end of all social compacts, useless in all cases, and oppressive in many; and under every aspect of the subject, totally inadmissible by the principles of 'universal law,' whether to be collected from the opinions of the wisest men, the practice of the greater nations, or the immutable and eternal principles which govern the world.