Page:The American Cyclopædia (1879) Volume I.djvu/350

 326 ALLEGIANCE Latin maxim, Nemo potest exuere patriam, " No one can abjure his country," or renounce the fealty which he owes to his sovereign. The maxim is as old as English jurisprudence, and until the most recent period the rule has been maintained in England to its fullest extent. It has nowhere else been asserted, in modern times at least, with the same rigor with which it was enforced there ; and even while it stood the acknowledged rule of the law of England, it was condemned by many of its soundest ju- rists. One of them, Twiss, has very lately said of it that it found no countenance in the law of nations, but was on the contrary in direct conflict with incontestable principles of that system. Observing the more liberal tone of modern public law upon this subject, it is worth notice that it is now asserting only the doctrine which was maintained by the law of Rome in its best period. In his argument for Balbus Cicero declared it to be even the firmest foun- dation of Roman liberty that the citizen might retain or renounce his allegiance at his pleas- ure. But the English common law asserted that allegiance intrinsic and absolute arose from the mere fact of birth within the sover- eign's dominion and protection; that it could not be cancelled or forfeited by any change of time, place, or circumstances ; that the subject could not abjure it or renounce it by abandon- ing the realm, nor by swearing loyalty to an- other state; nor could it be released in any way without the concurrence of the supreme legislative power. Coke expressed the rigor of the rule as it was held in England in his time, and indeed for more than two centuries after- ward, when he said that "all subjects are equally bound to their allegiance as if they had taken the oath of it, because it is written by the finger of the law in their hearts." As has just been said, however, this supreme duty might be released by the consent of the sover- eign. Such an assent was given, for example, in the case of the United States, when by treaty our independence was recognized by Great Britain; and after that it was several times decided in England that persons, though born here British subjects, who adhered to the new state, ceased to be subjects of the crown and became aliens. But though steadily asserting the rule that allegiance was indissoluble, Eng- land has nevertheless practically conceded its invalidity by admitting and naturalizing foreigners into her citizenship, just as all other countries have done. In modern times at least, no other considerable European state has en- forced the theory of the common law, or at least not with the severity with which it was enforced in England. The French code de- clares expressly that the quality of a French- man is lost by naturalization in a foreign coun- try, and France, Spain, and most of the German states have enacted laws regulating the natu- ralization of foreigners. The great European authorities in public law, Grotius, Pufendorf, Vattel, and. others, concede in general terms the right of expatriation, qualifying it only when it is restrained by law, or when the citi- zen owes to his native state some already as- sumed but not yet discharged obligation; if, for example, he has violated the law and owes the penalty, or is invested with some public trust, or war threatens and his sovereign needs his aid ; and these have been the chief modifi- cations of the right to renounce allegiance which have been discussed in our own diplo- matic correspondence upon this subject with European states. When once naturalization is admitted to be competent and right, the right of expatriation and of renunciation of the former allegiance should seem to be im- plied as a- necessary corollary. Naturalization means the complete adoption of a foreigner and the investing him with the actual citizen- ship of his adopted country. In practice it compels, as a precedent condition, his entire renunciation of his former allegiance, and the assumption by solemn oath of an exclusive fidelity to the new sovereign ; and, with one or two modifications only, it gives him the same rights which he would have had if he had been born within his dominion and protection. The status which he thus receives is clearly inconsistent with any allegiance to the country of his birth. Allegiance cannot be divided, and if his original allegiance has not been utterly cancelled, then the naturalization is an empty form, and the adopted citizen has not the right to protection and citizenship which the new sovereign pretends to guarantee to him. These considerations have been brought forward in most of the cases which have arisen from time to time in the United States. In the earlier cases, however, though the courts inclined to give them their just weight, they repeatedly evaded direct decision of the ques- tion. From an historical review of all the cases which had arisen down to his time, Chancellor Kent declared the prevailing spirit of the de- cisions to be that, in the absence of any legis- lation sanctioning the abjuration of allegiance, the rule of the common law remained un- altered. But in one instance at least, as early as 1812, our government assumed a position on this question quite as advanced as it has ever taken in the cases which have arisen since that time. During the war with England then existing, the prince regent announced that every native-born Briton, taken prisoner while fighting in the American army, should be ex- ecuted for treason to his lawful sovereign. Mr. Madison announced in return, that if any naturalized citizen of this country were put to death on the pretence that he was a British subject, the United States would put to death two English prisoners in retaliation. There was no further discussion on the subject, and no occasion for any. Still later, and especially within the last twenty years, cases have oc- curred in which foreigners naturalized here were upon their return to their native states compelled to render military service there, or