William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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sound construction of their charter; and while they claimed this right for
themselves, and exercised it without any foundation in the grant, they forth-
with denied to Episcopalians the privilege of using their own creed and
worship. The two recent historians, Grahame and-BaucroH;, take different
sides on this question, (if any question there can really be,) under the
charter of 1^. The former, in his History of the United States, (vol. i. pp.
244—247,) follows Neal and other Puritans of that age, in favour of the
Puritans' claim; and the latter, in his Histoi-y of the United States, (vol. i.
pp. 371, 372,) follows Chalmers, Robertson, and Story, in opposition to it



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theee illnstrioTis examples, that varions portions of this country
became, even in its infant state, a distinguished asylum for the
enjoymeat of the principles of civil and religions liberty, by the
persecated yotaries of those principles from every part of Enrope.'*

The leading principle in the religions svetein of the colony of Massacha-
setta, "waB the oompnlaorj support of public worship, and the liability of
every inhabitant to taxation for its support. Anabaptists and Quakers were
first exempted, and next Episcopalians, who were allowed to pay their
taxes to their own clergymen. The laws st411 in force contain the principle,
that a religious establishment of the Christian Protestant religion, and pub-
lic worship, ought to be maintained by legal coercion. Dakes «. Hill, 10
Pick. £ep, 333.

Some of the colonial governments provided for the enjoyment of religious
libertjf in the largest sense, as allowing to every man the free exercise and en-
joyment of religions profession and worship without discrimination, and this
was the language of the constitution of New York of 1777. In other in*
stances rdiffiotu Meraiion was granted, and which meant the allowance of
religious opinions and modes of worship, differing fh>m those established by
law. The prevalent doctrine at the present day is in favour of religious
liberty and equality without the existence of any power of control, or dis-
tinction by law, or establishments

'* Blasphemy consists in the denying, cnrsing, or contnmeliously reproach-
ing, the Holy name of God, his creation, government, or final judgment of
the world. In Taylor's case, 1 Ventr. 293, Hale, C. J., says ''such kind of
wicked and blasphemous words were not only an. offence to God and reli-
gion, but a crime against the laws, state and ^vernment, and therefore
jpnnishable in the King's Bench. For, to say religion is a cheat, is to sub-
vert all those obligations whereby civil society is preserved; that Christian-
ity is part of the laws of England, and to reproach the Christian religion
is to speak in subversion of the law." If blasphemy means a railing accu-
satimi then it ought to be forbidden. See 8 Johns. N. Y. 290; 10 Ark. 259;
11 8ergt. & R. 394; 2 Harr. Del. 553, 569; 2 How, 137. See tiie Statutes of
the States. And seethe subject fully discussed by Mr. Odgers, in his Trea-
tise on Libel and Slander (Text Book Series), ch. 16, pp. 333 - 357.



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We are next to consider the rights and duties of citizens in
their domestic relations, as distinguished from the absolute
rights of individuals, of which we have already treated. Most of
these relations are derived from the law of nature, and they are
familiar to the institutions of every country, and consist >f hus-
band and wife, parent and child, guardian and ward, and master
and servant To these may be added, an examination of certain
artificial persons created by law, under the well known name of
corporations. There is a still more general division of the in-
habitants of every country, under the comprehensive title of
aliens and natives, and to the consideration of them our atten-
tion will be directed in the present lecture.

(1.) Natives are all persons born within the jurisdiction of the
United States. If they were resident citizens at the time of the
declaration of independence, though born elsewhere, and delib-
erately yielded to it an express or implied sanction, they became
parties to it, and are to be considered as natives ; their social tie
being coeval with the existence of the nation. If a person was
born here before our independence, and before that period volun-
tarily withdrew into other parts of the British dominions, and
never returned ; yet, it has been held, that his allegiance accrued
to t)ie state in which he was bom, as the lawful successor of the
king; and that he was to be considered a subject by
[ * 40 ] birth (a). It was admitted that this * claim of the state
to the allegiance of all persons born within its territories

(a) Ainslie v. Martin, 9 Mass. Rep. 454.

* In Blackstone's Corns., vol. 1, p. 374, we find " Denizen " treated of
under this head. Denizen is a person who is an alien born bat has obtained
ex donaiione legis, letters patent to noiake him an English subject. He is in-
termediate between a natural-born subject and an alien. He may take
lands by purchase or devise, which an alien could not do, but could not in-
herit In South Carolina this civil condition is well known to be the law,
being created by statute. 2 Yentr. 6; Comyn's Dig. Alien. (D. 1).



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prior to oar reTolntion, might subject those persons, who adhered
to their former sovereign, to great inconveniences in time of war,
when two opposing sovereigns claimed their allegiance ; and,
under the peculiar circumstances of the case, it was, undoal)tedly,
a yerj strong application of the common law doctrine of natural
and perpetual allegiance by birth. The inference to be drawn
from the discussion in the case of M^Ilvaine v. Cooce (a), would
seem to be in faTour of the more reasonable doctrine, that no
antemUus ever owed any allegiance to the United States, or to
aoy individual state, provided he withdrew himself from this
conntiry before the establishment of our independent government,
and settled under the king's allegiance in another part of his do-
minions, and never afterwards, prior to the treaty of peace, returned
and settled here. The United States did not exist as an independent
government until 1776 ; and it may well be doubted whether the doc-
trine of allegiance by birth be applicable to the case of persons who
did not reside here when the revolution took place, and did not,there-
fore, either by election or tacit assent, become members of the
newly* created state. The ground of the decision in the latter
case was, that the party in question was not only born in New
Jersey, but remained there as an inhabitant until the 4th of Oc-
tober, 1776, when the legislature of that state asserted the right
of sovereignty, and the claim of allegiance over all persons then
abiding within its jurisdiction. By remaining there after the
declaration of independence, and after that statute, the party had
determined his right of election to withdraw, and had, by his
presmned consent, become a member of the new government, and
was, consequently, entitled to protection, and bound to allegiance.
The doctrine in the case of Respublica v. Chapman (6),
goes *also to deny the claim of allegiance, in the case of [ * 41 ]
a person who, though bom here, was not here, and as- ,
senting to our new governments, when they were first instituted.
The language of that case was, that allegiance could only attach
upon those persons who were then inhabitants. When an old
government is dissolved, and a new one formed, " all the writers
agree," said Ch. J. M'Kean, "that none are subjects of the
adopted government who have not freely assented to it.*' The
same principle was declared by the supreme court of New York,

[a) 2 Cranch, 280. 4 IHd. 209.

(b) 1 DaUas, 53.



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ia Jackson v. White (a), and it was held, that though a British
subject ieaided here as a freeholder on the 4th of July, 1776, and
was abiding here on the 16th of July, 1776, when the conyention
of the state asserted the right of sovereignty, and ihe claim of
allegiance over all such persons ; yet, that, under the circum-
stances, the person in question being a British officer, and a few
weeks thereafter placed on his parole, and in December, 1776,
joining the British forces, was to be deemed an alien, and as
having never changed his allegiance, or elected to become a party
to our new government The doctrine in the case of AinsUe v.
Martin was contrar}, also, to what had been held by the same
court in the cases of Gardner v. Ward, and Kilhatn v. Ward (6),
where it was decided, that persons born in Massachusetts before
the revolution, .who had withdrawn to a British province before
our independence, and returned during the war, retained their
citizenship, while the ^ same persons, had they remained in the
British province until after the treaty of peace, would have been
British subjects, because they had chosen to continue their former
allegiance, and there was but one allegiance before ^he revolu-
tion. This principle was asserted by the same court in the case
of Phippa (c), and I consider it to be the true and sound law on

the subject
[ * 42 ] *To create allegiance by birth, .the party must be bom,

not only within the territory, but within the ligeance of
the government If a portion of the country be taken and held
by conquest in war, the conqueror acquires the rights of the con-
quered as to its dominion and government, and children bom in
the armies of a state while abroad and occupying a foreign coun-
try, are deemed to be bom in the allegiance of the sovereign to
to whom the army belongs (d). It is equally the doctrine of the
English common law, that during such hostile occupation of a

(a) 20 JbAiw. Rep.Zn,

{h) 2 Mass. Rep. 296, 244, note.

(c) 2 Pick. Rep. 394, note. See, also, Dnpont v. Pepper, &aU ReporiSy 8,
C. p. 5. S. P. In Inglis v. The Trustees of the Sailors' Snag Harbour, 3
Peters* U. 8. Rep. 99, 122, 12:), it was adjudged, that the right of election be-
tween the new and the old government, did exist at the revolution in 1776,
to all the inhabitants : and that the only difficulty was, as to the time nnd
as to the evidence of the election, so as to determine the question of alle-
giance and alienism. There was a reasonable time allowed for to elect to
remain a subject of Great Britian, or to become a citizen of the United States.
Jbid. 160.

(d) Vattel, b. 1, ch. 19, sec. 217 ; b. 3, ch. 13, sec. 199.



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territory, and the parents be adhering to the enemy as subjects
de factOj their children, bom ander sach a temporary dominion,
are not born ander the ligeance of the conquered (a).

It is the doctrine of the English law, that natural born subjects
owe an allegiance, which is intrinsic and perpetual, and which
cannot be divested by any act of their own (6). In the case of
Macdonaldy who was tried for high treason, in 1746, before Lord
Ch. J. Lee, and who, though boru in England, had been educated
in France,and spent his riper years there ; his counsel spoke against
the doctrine of natural allegiance as slavish, and repug-
nant to the principles of their ^revolution. The court, [ * 43 ]
however, said, that it had never been doubted, that a
sabject born, taking a commission from a foreign prince, and
committing high treason, was liable to be punished as a subject
for that treason. They held, that it was not in the power of an;
private subject to shake off his allegiance and transfer it to a
foreign prince; nor was it in the power of any foreign prince, by
naturalizing or employing a subject of Great Britian, to dissolve
the bond of allegiance between that subject and the crown (c).
Entering into foreign service, without the consent of the sover-
eign, or refusing to leave such service when required by procla-
mation, is held to be a misdemeanor at common law (d)*

It has been a question, frequently and gravely argued, both by
theoretical iPmters, and in forensic discussions, whether the Eng-
lish doctrine of perpetual allegiance applies in its full extent to
this country. The writers on public law have spoken rather
loosely, but generally in favor of the right of a subject to emi-
grate, and abandon his native country, unless there be some posi-

(a) Calvin's case, 7 Co. 18, a. Vaughan, Ch. J., in Crawr. Ramsay, Vaugh.
Rep. 281. Djfer's Rep, 224, a, pi. 29. An alien, says Lord Coke, in Calvin's
case, is a person oat of the ligeance of the king. It is not extra regnum, nor
extra legem^ but extra Ifgeantiam. To make a subject bom, the parents must
be ander the actual obedience of the king, and the place of birth be within
the king^s obedience, as well as within his dominions.

(*) Story's case, Dyer's Rep. 298, b, 300, b. 1 Blacks. Com. 370, 371. 1
Hali^s P. C. 68. Foster's Crown law, 7, 59, 183.

(c) FotUer's Crown Law, 59.

(rf) 1 EaaCs P, C. 81. 1 Hawk, P. C, h. 1, ch. 22, sec X On the 16th of
October, 1807, the King of England declared, by proclamation, that the
kingdom was menaced, and endangered, and he recalled from foreign ser-
^oe all seamen and seafaring men, who were natural born subjects, and
ordered them to withdraw themselves, and return home, on pain of being
proceeded against for a contempt. It was further declared, that no foreign
letters of naturalization could, in any manner, divest his natural bom sub-
jects of their allegiance, or alter their duty to their lawtld sovereign.

• 91


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tive restraint by law, or he is at the time in possession of a pnblic
tmsi, or unless his conntry be in distress, or in war, and stands

in need of his assistance (a). Gioero regarded it as
[ * 44 ] one of the firmest foundations of Roman ♦liberty,

that the Roman citizen had the privilege to stay or
renounce his residence in the state at pleasure (6). The prin-
ciple which has been declared in some of our state constitutions,
that the citizens haye a natural and inherent right to emigrate,
goes far towards a renunciation of the doctrine of the English
common law, as being repugnant to the natural liberty of man-
kind, provided we are to consider emigration and expatriation, as
words, intended in those cases to be of synonymous import. But
the allegiance of our citizens is due, not only to the local govern-
ment under which they reside, but primarily to the government
of the United States; and the doctrine of final and absolute ex-
patriation requires to be defined with precision, and to be subjected
to certain established limitations, before it can be admitted into
our jurisprudence, as a safe and practicable principle, or laid
down broadly as a wise and salutary rule of national policy. The
question has been frequently discussed in the courts of the United
States, but it remains to be definitively settled by judicial de-
cision (c).

A review of those discussions cannot be uninstructive.

In the case of Talbot v. Janson (d), the doctrine was brought

la) Grotius, b. 2, ch. 5, sec. 24. Puff. Droit des Gens, liv. 8, ch. 11, sec 2,
3. Vattelj b. 1, ch. 19, sec. 218, 223, 224, 225. 1 WyckefoH L'Embaas. 117,

{b) Ne quis invitua eivUaie mutetur : nece in civitate maneat invUus, Hme sunt
enim fundamenta ftnnissifna nostrie libertatis, sui quetnque juris et retimendi et
dimiUendi esse dominum. Orat. pro L, C. Balho, ch. 13.

(c) In the case of The State v. Hunt, in South Carolina, in 1835. (2 HiWfS.
C. Rep. 1,) the subject of allegiance, and to whom due under the constitu-
tion of the United States was profoundly discussed, and it was declared by a
majority of the court of appeals, that the citizens owed allegiance to the
United States, and subordinately to the state under which they lived — that
allegiance was not now used in the feudal sense arising out of the doctrine
of tenure, and that we owed allegiance or obedience to both governments, to
the extent of the constitutional powers existing in each. The court held,
that an oath prescribed by an act of the legislature of December, 1833, to be
taken by every militia officer that he should be faithful^ and true allegiance
bear to the state of Sotith Carolina, was unconstitutional and void, as being
inconsistent with the allegiance of the citizen to the federal government.
The court consequently condemned the ordinance of the convention of South
Carolina, of November, 1832, as containing unsound and heretical doctrine,
when it declared that allegiance of the citizens was due to the state, and
obedience only, and not allegiance, to any other delegated power.

{d) 3 Dallas, 133.


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before the Sapreme Court of the United States, in 1705. It was
oontended, on one side, that the abstract right of indiyidaals to
withdraw from the society of which they were members, was an-
tecedent and snperior to the law of society, and recognized by
the best writers on public law, and by the asage of nations; that
the law of allegiance was derived from the feodal system, by
.vhich men were chained to the soil on which they were born,
liod converted from free citizens, to be the vassals of a
lard or superior; that this country *was colonized and [ * 45 ]
settled upon the doctrine of the right of emigration;
that the right was incontestable, if exercised in due conformity
with the moral and social obligations; that the power assumed by
the government of the United States of naturalizing aliens, by
an oath of allegiance to this country, after a temporary residence,
virtually implies that our citizens may be become subjects of a
foreign power by the same means.

The counsel on the other side conceded, that birth gave no
property in the man, and that upon the principles of the Ameri
can government, he might leave his country when he pleased,
provided it was done bona fidSy and with good cause, and under
the regulations prescribed by law; and that he actually took up
his residence in another country, under an open and avowed dec-
laratioD of his intention to settle thera This was required by
the most authoritative writers on the law of nations; and Hc^nec-
cins, in particular, required that the emigrant should depart with
the design to expatriate, and actually join himself to another
state; that though all this be done, it only proved that a man
might be entitled to the right of citizenship in two countries, aod
proving that he had been received by one country, did not provo
that his own country had surrendered him; that the locomotive
right finally depended upon the consent of the government; and
the power of regulating emigration, was an incident to the power
of regulating naturalization, and was vested exclusively in Con
gress; and until they had prescribed the mode and terms, the
character and the allegience of the citizen continued

The judges of the supreme court felt and discovered much em-
barrassment in the consideration of this delicate and difficult
question, and they gave no definitive opinion upon it One of
them (a) observed, that admitting the intention of expatria-

(a) Paterson, J.


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[ * 46 ] tion had been legally declared, it was necessary *that
it should have been carried into effect, and that the party
should have actually become a subject of thefpreigngovemideDt;
that the cause of removal must be lawful, otherwise thcemigraot
acts contrary to his duty; that though the legislature of a parti-
cular state should, by law, specify the lawful causes of expatria-
tion, and prescribe the manner in which it might be effected, the
emigration could only affect the local allegiance of the party, edcI
not draw after it a renunciation of the higher allegiance due to
the United States; and that an act of Congress was requisite to
remove doubts, and furnish a rule of civil conduct on this very
interesting subject of expatriation. Another of the judges (a)
admitted the right of individual emigration to be recognized by
most of the nations of the world, and that it was a right to be
exercised in subordination to the public interest and safety, and
ought to be under the regulation of law; that it ought not to be
exercised according to a man's will and pleasure, without any re-
straint; that every man is entitled to claim rights and protection
in society, and he is, in his turn, under a solemn obligation to
discharge his duty; and no man ought to be permitted to abandon
society, and leave his social and political obligations unperformed.
Though a person may become naturalized abroad, yet if he has
not been legally discharged of his allegiance at home, it will re-
main notwithstanding the party may have placed himself in diffi-
culty, by double and couflicting claims of allegiance.

The majority of the Supreme Court gave no opinion upon the
question; but the inference, from the discussion, would seem
to be, that a citizen could not divest himself of his allegiance, ex-
cept under the sanction of a law of the United States; and that
until some legislative regulations on the subject were prescribetl,

the rule of the common law must prevail.
[ * 47 ] * In 1797, the same question was brought before tbft
circuit court of the United States for the district of Con-
necticut, in the case of Isaac Williams (6), and Ch. J. Ellsworth
ruled, that the common law of this country remained as it was
before the revolution. The compact between the community and
its members was, that the community should protect its mpmberp,
and that the members should at all times be obedient to the laws

(a) Iredell, J.

(b) Cited in 2 Cranch, 82, note.



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of the oommonity, and f aithf nl to its defence. No member conld
dissolve the compact without the consent or default of the com-
mna^ty, and there had been no consent or default on the part of
the United States. "No visionary vfrriter carried the principle to
the extent, that a citizen might at any, and at all times, renounce
his own, and join himself to a foreign country; and no inference
of consent conld be drawn from the act of the government in the
Daturalization of foreigners, as we did not inquire into the pre-
vioQs relations of the party, and if he embarrassed himself by
contracting contradictory obligations, it was his own folly, or his

This same subject was again brought before the Supreme Court,
in the case of Murray v. The Charming Betsey^ in the year 1804 (a).
It was insisted, upon the argument, that the right of expatriation
did exist, and was admitted by all the writers upon general law,
bat that its exercise must be-accompanied by three circumstances,
viz. fitness in point of time, fairness of intent, and publicity of
the act The court, however, in giving their opinion, avoided any
decision of this great and litigated point, by observing, that,
**whether a person bom within the United States, or becoming a
citizen according to the established laws of the country, can di-
vest himself absolutely of that character, otherwise than in such
manner as may be prescribed by law, is a question which it was
not necessary to decide." Afterwards, in the circuit
* eonrt of the United States at Philadelphia (6), Judge [ * 48 ]
Washington observed, that he did not mean to moot the
question of expatriation, founded on the self-will of a citizen, be
cause it was beside the case before the court; but that he could
not admit, that a citizen of the United States could throw ofiP his
allegiance to his country without some law authorizing him to do
■0. This was the doctrine declared also by the chief justice of
lliassachusetts (c). The question arose again before the Supremo
Court of the United States, in February, 1822, in the case of The
Santissima Trinidad (d), and it was suffered to remain in tho
same state of uncert-ainty. The counsel on the one side insisted,
that the party had ceased to be a citizen of the United States,

(a) 2 CraneK 64.

(h) United States r. Gillies, 1 Ptter$* C. C. Bep, 158.

(e) 9 Man, Rep. 461.

(i) 7 Wheaian, 283.


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*49 OF THE RIGHTS OF PKB8098. [Part TV.

and had expatriated himself, and hecome a citizen of Bnenoe
Ayiee, by the onlj means in his power, an actoal residence in that

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 11 of 108)