Page images
PDF
EPUB

it was ever so strictly carried out, as that if a son was born in England to a foreign merchant, such son, on being afterwards taken in arms, a case one would imagine of no infrequent occurrence, should have been hung, drawn, and quartered as a traitor :" Pr. Int. Law, ch. 2, § 12; Opinion of Northey, Attorney-General, in the Case of Gillingham, Chalmer's Colonial Opinions 645.

Thus far the case has been considered rather with reference to the evidence given on the trial, than to the conclusions drawn by the court from that evidence. This court is bound by the report of the judge before whom the trial was had, in regard to the facts so far as they are found by him, excepting that where there is any doubt or uncertainty as to the meaning of such report, the evidence may be referred to in aid of the report: 19 N. Y. 210; 21 Id. 550. Among the facts found by the court are the following, viz. : “ That Richard L. Ludlam, the father of the said Maximo M. Ludlam, and of the plaintiff, in the latter part of the year 1822, voluntarily expatriated himself from the United States, where he was a natural-born citizen, for the purpose of becoming a permanent resident of Lima, in Peru, South America, and of establishing his permanent domicile there, and in a few months thereafter, did become such permanent resident in such lastnamed place, and there established his permanent domicile.”

It becomes necessary for us to ascertain the meaning and determine the effect of this statement, and especially of that part of it which relates to expatriation. Webster's definition of the term “expatriate” is as follows: “In a general sense, to banish. To expatriate one's self, is to quit one's country, renouncing citizenship and allegiance in that country, to take residence and become a citizen in another country. The right to expatriate one's self is denied in feudal countries, and much controverted in the United States.” Worcester's definition is, “ To banish from one's native country; to remove from one's country." Expatriation, “Act of expatriating; banishment; emigration."

There is nothing in the evidence to warrant the inference that Richard L. Ludlam, in leaving the United States, intended to renounce his allegiance to this country, or to become a citizen of Peru, or of any other country. If it were necessary to decide the question, I should be of opinion that the terms “expatriated himself,” as used by the court at special term, were not intended to express the idea of a renunciation of allegiance or citizenship, on the part of Richard L. Ludlam, but only a change of domicile, for the

purpose of permanently engaging in business in the foreign country, with only such change of his relations to his native country as the laws of nations accord to such change of domicile. The repeated use of the word “domicile,” in the report, which relates to residence only and not to citizenship, would strongly favor this construction.

Assuming, however, that we are to understand, from the finding of the court, that Richard L. Ludlam intended to renounce allegiance to his native country, and to become a citizen of Peru, that intention has never been carried into effect so as to divest him of his character as a citizen of the United States. The right of expatriation, on the part of citizens of the United States, without the consent of the government, has never been recognised by the courts of this country, or by any of the writers upon public law. Chancellor Kent, after giving a very careful review of the decisions on the subject, says: “ The better opinion would seem to be, that a citizen cannot renounce his allegiance to the United States, without the permission of government to be declared by law; and that, as there is no existing regulation in the case, the rule of the English common law remains unaltered :" 2 Kent's Com. 49, and note a; Halleck's Int. Law, ch. 29, $ 3. Whether this statement of the law is to be considered as in all respects correct, may perhaps admit of doubt, as some courts and statesmen have been disposed to regard the right of expatriation as existing where the government has taken no steps to probibit or limit it. The Court of Appeals of Kentucky has so decided, and that decision was approved by Attorney-General Cushing; and General Cass, when secretary of state, went so far as to deny the right of governments to prohibit expatriation, except where the act of expatriation, if recognised, would deprive the government of the power to punish the citizen or subject for an offence previously committed : Halleck's Int. Law, ch. 29, § 4.

He expe

But none of the opinions go so far as to say that a citizen of any country can, by any act of his own, divest himself of such citizenship, until he becomes a citizen of another government: 9 Mass. 461. Chief Justice ROBERTSON, delivering the opinion of the Court of Appeals of Kentucky, in the case before referred to (9 Dana 178), says: “The government, for the purpose of preventing abuse, and securing the public welfare, may regulate the mode of expatriation. But where it has not prescribed any limitation on this right, and the citizen has, in good faith, abjured his country, and become a citizen or subject of a foreign nation, he should, as to his native government, be considered as denationalized :" Halleck's Int. Law, supra; 1 Sandf. Ch. Rep. 657. General Cass says: “The moment a foreigner becomes naturalized, his allegiance to his native country is severed for ever. riences a new political birth, a broad and impassable line separates him from his native country: Halleck, ch. 29, § 4. Westlake, in his treatise before cited, says: “Change of nationality involves two points, the acquisition of a new national character, and the loss of the old :" Id. 19, § 20.

I cannot fully concur in the opinion expressed by the Court of Appeals of Kentucky, and by Secretary Cass, that a citizen has a right to renounce his allegiance at pleasure. The argument of Mr. Rutherforth against the propriety of that doctrine possesses much force. IIe says: “If each individual was at liberty to leave the state to which he belongs whenever he pleases, civil society would be nothing but a rope of sand; it would be impossible for a common good to be effectually promoted, or for a common mischief to be effectually guarded against. Every member of the society would be at liberty either to continue in it, and endeavor to advance the general interest, or to leave it in order to advance a separate interest of his own. And in times of public distress, whoever could shift for himself would be at liberty to do so, though he left the other members of the society to perish for want of his assistance. But the great end of forming civil societies is to promote a common good, and to guard against a common mischief. Certainly, therefore, the nature of civil society can never allow such a liberty as this to its members, because it is inconsistent with the end which a civil society proposes to itself:” B. 2, ch. 2, § 7.

Without, however, pursuing this subject further, it is sufficient for the present case that all writers, including those who would give the greatest license to the citizen in the exercise of the power of expatriation, agree that no person casts off his allegiance to his native country before he becomes a citizen or subject of another country; and as Richard L. Ludlam, whatever may have been the intention with which he left his native country, did not, so far as the case shows, become a citizen of any other country, he remained a citizen of the United States during all the time of his residence in Peru.

There is, in the present case, a narrower and more technical ground, which, so far as the intention with which Mr. Ludlam left the United States bears upon the question of his citizenship, leads to the same conclusion. When he left this country, and is found by the report to have “expatriated himself,” he was but eighteen years of age, and therefore totally incapable of making any election in regard to his citizenship (26 Wend. 625), and the case is silent as to any later resolution by him on the subject. He has at all times, therefore, remained an American citizen, and, according to the established rule of the common law, partus sequitur patrem, communicated that character to his children born in Peru.

If we assume that the laws of Peru are similar to ours on the subject of citizenship, there is no doubt that Maximo Ludlam would be, in that country, regarded as a citizen of Peru: 1 Sandf. Chan. 583. This would involve him, according to the rules which I find established, in a double allegiance to this country and to Peru; and it cannot be denied that inconveniences might result from such a condition. The case, however, is not new, and I am not aware that any practical inconvenience has ever resulted to persons occupying such positions; their immunity in this respect resulting mainly, it may be presumed, from the liberality of civilized governments toward persons thus situated. Many persons were placed in that position by the treaty of peace between this country and Great Britain, at the termination of the war waged to secure our independence, and the subject has been often discussed : Ainslie vs. Martin, 9 Mass. 460; 2 Kent's Com. 50. In an opinion written in 1808 by Mr. Reeve, author of the History of the English Law, it is said: “As to the anomaly and inconsistency of Americans being citizens of the United States while there, and being British-born subjects when here, this is not a novelty, nor is it peculiar to Americans. It may happen to any British subject, and it is allowable in our law, which recognises this double character of a person being, as was before shown, ad fidem utriusque regis. British subjects may voluntarily put themselves in such a situation; it is a part of the privileges of a British subject to be at liberty to do so. Have we not British subjects who are naturalized in Holland, in Russia, in Hamburg, in various places on the continent of Europe ? Do not British subjects become citizens of the United States ? Some persons are born to such double character ; children and grandchildren, born of British parents in foreign countries, are British-born subjects; yet these, no doubt, by the laws of the respective foreign countries, are also deemed natural-born subjects there. I am aware of the difficulties which such persons may labor under with these double claims of allegiance upon them. Such difficulties must be got through, as circumstances will allow, and consideration should be had for the parties according to their respective situations, more especially with a distinction between those who brought themselves into such embarrassing situation voluntarily, and those who were born in

“ These are inconveniences in the way of full exercise and enjoyment of the rights in question, but detract nothing from the rights themselves. On the one hand, the king cannot reckon upon

the full and absolute obedience of such persons, because they owe another fealty besides that due to him; on the other hand, the subject cannot have full enjoyment of his British rights :" Chalmer's Colonial Opinions 702, 703; Westlake's Pr. Int. Law, p. 10, $ 12; p. 20, $ 22; 18 State Trials 857.

It is no part of my object to show how the difficulties growing out of the double allegiance to which, upon my theory, Maximo

it." **

« PreviousContinue »