Chap. XVI. and France and the American Government, but does not appear to have been definitely determined. Lord Lyons was finally instructed to advise all persons who, after having voted or exercised any privilege of citizenship, claimed exemption from service, to submit their claim to the judgment of a court of law. of As to the question which had arisen respecting the effect of a declaration of intention not followed by an actual admission to citizenship, the opinion of the Secretary of State had, as we have seen, been clearly expressed. But, as the demands of the war increased, and the pressure the conscription on American citizens grew more severe, this class also was drawn within the net. An Act of 3rd March, 1863, passed to provide for a further enrolment of the militia, contained the following clause: "Be it enacted that all able-bodied male citizens of the United States and persons of foreign birth, who shall have declared on oath their intention to become citizens under and in pursuance of the laws thereof, between the ages of twenty and forty-five years, except as hereinafter excepted, are hereby declared to constitute the national forces, and shall be liable to perform military duty in the service of the United States, when called out by the President for that purpose." Although the powers conferred by this Act were not put in force until some time after it had been passed, many applications were received by Lord Lyons from persons apprehensive of being enlisted under it. He was instructed to state to Mr. Seward that British subjects who had simply declared their intention to become American citizens at a future time, and had not yet exercised the right of suffrage or any other political franchise in consequence of such declaration, ought, in the opinion of the British Government, to be allowed a reasonable time after the passing of the Act to choose whether they would quit the United States, or continue resident therein under the liability now imposed on them to compulsory military service. In compliance with this representation, the President, on the 8th May, Chap. XVI. issued a Proclamation, which, after reciting the first clause of the Act, proceeded as follows: "And whereas it is claimed by and in behalf of persons of foreign birth within the ages specified in the said Act who have heretofore declared on oath their intentions to become citizens under and in pursuance of the laws of the United States, and who have not exercised the right of suffrage or any other political franchise under the laws of the United States, or of any of the States thereof, are not (sic in orig.) absolutely concluded by their aforesaid declaration of intention from renouncing their purpose to become citizens, and that, on the contrary, such persons, under Treaties or the law of nations, retain a right to renounce that purpose and to forego the privileges of citizenship and residence within the United States, under the obligations imposed by the aforesaid Act of Congress : "Now, therefore, to avoid all misapprehensions concerning the liability of persons concerned to perform the service required by such enactment and to give it full effect, I do hereby order and proclaim that no plea of alienage will be received or allowed to exempt from the obligations imposed by the aforesaid Act of Congress any person of foreign birth who shall have declared on oath his intention to become a citizen of the United States under the laws thereof, and who shall be found within the United States at any time during the continuance of the present insurrection and rebellion, at or after the expiration of the period of sixty-five days from the date of this Proclamation, nor shall any such plea of alienage be allowed in favour of any such person who has so, as aforesaid, declared his intention to become a citizen of the United States, and shall have exercised at any tine the right of suffrage, or any other political franchise, within the United States." This Proclamation was considered to afford a reasonable period for departure; and Her Majesty's Government subsequently refused to interfere on behalf of persons who had not taken advantage of the opportunity afforded to them of leaving the country. In February 1864, an Act was passed to provide for a further enrolment. Under this Act all persons were to be enrolled "who should declare their intention to become citizens." It was further enacted "That no person of foreign birth shall, on account of alienage, be exempted from enrolment or draft under the provisions of this Act or the Act of which it is an amendment, who has at any time assumed Note. Chap. XVI the rights of a citizen by voting at any election held under authority of the laws of any State or Territory, or of the United States, or who has held any office under such laws or any of them; but the fact that any such person has voted, or held, or shall hold, any office as aforesaid, shall be taken as conclusive evidence that he is not entitled to exemption from military service on account of alienage." The British Government did not consider it necessary to give Lord Lyons any instructions with regard to this Act. It will be remarked that, throughout these discussions, no difficulty appears to have been raised by the British law of nationality. British, like American law, has hitherto regarded the national character acquired at birth as continuing uneffaced by any length of residence in a foreign country and even by permanent settlement abroad, and as not formally effaced even by a foreign naturalization.1 But the British Government has in practice, as we see, steadily adhered to the principles that a British subject resident abroad must submit to be governed by the laws of his place of abode, be they what they may; and that the question how far it is fair and just to impose on him against his will any of the obligations of foreign citizenship, is a question of circumstances, dependent mainly on the extent to which he has practically assumed the position of a citizen, or enjoyed the substantial advantages of that character. NOTE. The statements of fact in this chapter have been largely borrowed from a valuable memorandum drawn up by Mr. C. S. A. Abbott of the Foreign Office, and appended to the Report of the Commissioners appointed by Her Majesty in 1868 to inquire into the Laws of Naturalization and Allegiance. I subjoin, from the same source, some cases, concisely stated, which may serve as illustrations. 1 A Royal Commission which reported in 1869 recommended an an alteration of the law in this respect; and a Bill is now (February 1870) before Parliament for giving effect to this recommendation. "Claim to British Protection of Minor Children of Naturalized Americans. Chap. XVI. Note. "In October 1861, a claim to British protection was set up by three persons (who had been arrested at Baltimore) on the ground that they were minors, natural-born British subjects, whose fathers had been naturalized in the United States. “A similar claim was urged on behalf of a Mr. James Hoy, a merchant of New York. "The United States Government declared that such persons were American citizens, and Mr. Carlisle reported that, by the statute law of the United States, minors in this position were regarded as American citizens, and obtained and enjoyed in the United States all the rights and benefits incident to that character. "Her Majesty's Government decided that minors who were born in Her Majesty's dominions, but whose fathers had become naturalized American citizens, ought during their minority to be considered and treated as between the two Governments, not as British subjects, but as American citizens, and that they must continue to be so considered if, after attaining their majority, they had continued to remain domiciled in the United States, and had not taken any active steps to absolve themselves from their allegiance to that country." "Forced Military Labour. "In November 1862, complaints were made of British subjects being forced to work in the trenches in the military operations in the Western States, and Mr. Stuart was informed that, as a general principle of international law, neutral aliens ought not to be compelled to perform any military service, but that allowance must be made for the conduct of authorities in cities under martial law, and in daily peril of attack from the enemy." "Confederate Conscripts taken Prisoners by United States. "In January 1864 Her Majesty's Government had brought before them the case of British subjects serving by compulsion in the Confederate armies, and taken prisoners by the United States' forces. "Lord Lyons was instructed that an application for their release could not be put on the ground of strict right, nor could Her Majesty's Government consent to be a party to such persons being discharged on taking an oath of allegiance to the United States, but that there could be no objection to their being called upon to take an oath of neutrality." "Cases of Hansard, Crutchett, and Gray. "Mr. Joseph Hansard, a British subject, who had been for twentyfive years a resident in Georgia, having applied to Lord Russell for Chap. XVI. protection, was told that, if he chose to return to the United States, he must do so at his own risk. Note. "Mr. Crutchett, a British subject, married and settled at Washington, having applied to Her Majesty's Government to procure redress for injuries inflicted on his property by the United States' forces, was informed that he must have recourse to the same remedies as any other resident in the United States. "Mr. Gray, a British subject, having been taken in a blockaderunner, was tried by court-martial and condemned to two years' imprisonment. "As he had been for many years a resident in the Southern States, and had taken an active part on behalf of the Confederates, Her Majesty's Government declined to interfere." "Status of Sons of Americans born in British Territory. "In the case of a person named Charles Cole it was decided, in 1864, that the children of American citizens born in British territory, but being in American territory, could not claim the protection of Her Majesty's Government to exempt them from American military service." "Residents in Places under Martial Law. "In July 1864 a question was raised as to the position of British subjects residing at Memphis, then under martial law; and Lord Lyons was instructed to inform them that Great Britain could not interfere with the operation of that law in a foreign State, and that British subjects who wished to secure British protection must discontinue their residence in places under such military control." "Enrolment in New Orleans Police. "A general order was issued at New Orleans on the 30th July, 1864, directing 'neutral foreigners, not being subject to compulsory military service,' to be enrolled as a local police; but Her Majesty's Government did not see any reason to interfere." "Case of Heslop, Boyle, Miss Hill, Jenkins, and Dr. Benson, "Mr. Heslop, a British subject holding landed property in Virginia, and who had been arrested at Baltimore, having requested British protection, Mr. Burnley, then Chargé d'Affaires, was informed that, as the circumstances of the case showed Mr. Heslop's active connection with the Confederates, it was not a case for interference. "A similar decision was arrived at in regard to David Boyle, and to a Miss Hill, arrested at New Orleans. |