Page:Harvard Law Review Volume 32.djvu/197

161 NOTES ' i6i allegiance. Second, his assumption of the new allegiance and this coun- try's acceptance of him as a citizen.^ The proper performance of the first act necessarily involves a decision in favor of the applicant's right to expatriate himself, for the United States has never tolerated the notion that a naturalized citizen may retain even a shred of fealty to his former sovereign.^ Now foreign countries have generally been unwilling to relinquish their subjects or citizens. At one time or another, practically every European nation has denied or clogged expatriation.* England, clinging to the feudal law, proclaimed and enforced until 1870 the doctrine of indelible alle- giance.* The German States and Austria seem always to have asserted the power to retain their nationals. With them, as with other countries having enforced military service, such power has usually been manifested in the cases of men of military age, who are likely to be the most valuable emigrants. The United States has had collision after collision with foreign powers over this matter. But its own attitude has not been free from uncer- tainty. There were, and possibly still are, sharp differences of opinion between the three branches of the government. The judiciary, follow- ing common-law precedent, early embraced indelible allegiance.^ The executive, represented by the Department of State, pursued a wavering policy until 1859.'' Since then it has quite consistently championed an unlimited or at least a very broad right of expatriation. It may fairly be argued that Congress, by passing naturalization acts which paid no attention to restrictions advanced by other countries, early implied its 596, § 4, subdivisions First, Second, and Third. sovereign's relinquishing the subject. This seems unworthy hair-splitting. Besides, it would permit the discarded sovereign to enforce unwilling obedience from the ex- patriate, if jiurisdiction over the latter could be obtained. But our laws require the protection of naturalized citizens, even when abroad, as fully as if they were native bom. U. S. Rev. Stat., § 2000, Act July 27, 1868, c. 249, § 2, 15 Stat. 224; 14 Opin- ions Attorneys General, 298-99 (1873); H. R., Doc. 326, sgth Cong., 2d Session, 25; In re Haas, 242 Fed. 739, 740 (1917). v The British, however, imder the Naturalization Act of 1870 conceded that their adopted subjects should not be deemed Britishers when within the limits of the foreign states of which they were subjects previously to obtaining their certificates of natural- ization, unless they had ceased to be subjects of such states in pursuance of municipal law or treaty. In re Bourgoise, L. R. 41 Ch. D. 310 (1889). The Act of 4 & 5 Geo. V, c. 17, pt. II, § 3 (August 7, 1914), has revoked this concession. SO et seq. The House Document referred to in the first paragraph of note 3 outlines the situation as of about 1906. This House Docmnent is a mine of information, rather poorly arranged. A sharp distinction must be drawn between laws which merely penalize illegal emigration or expatriation, and those which refuse to recognize expatriation without consent. Cockburn, supra, 55, 134. ' Cockburn, supra, 63-64. The allegiance is not really "indelible" and never was. The author adniits that Parliament could have wiped it out. This doctrine of Great Britain's was one cause of the War of i8i 2. Cockbitrn, supra, 70. view imder the statute, Mackenzie v. Hare, 239 U. S. 308 (1915). ^ Taylor on International PtJBLic Law (1901), § 183. This is a good sum- mary which can easily be elaborated by reference to the sources given.
 * See the form of petition and oath. Act of June 29, 1906, 34 Stat, at L., pt. I,
 * It might be argued that the subject could relinquish the sovereign without the
 * An outline of the state of law about 1869 is given by Cockburn on Nationality,
 * Shanks v. Dupont, 3 Pet. (U. S.) 242 (1830). See, for a more discreet modern