with Notes of Reference (1803)
St. George Tucker
The Right of Expatriation Considered
“IT is a principle of universal law, that the natural born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off, or discharge his natural allegiance to the former.” Blacks. Com. Vol. I. p. 369.
The positive, and unqualified manner in which the learned commentator advances this to be a principle of universal law, would induce a supposition, that it is a point in which all the writers on the law of nature and nations are perfectly agreed. As my researches have led me to adopt a very different, or, rather, opposite conclusion, it will be the business of this note to examine the subject.
If it be contended that this is a principle of the divine law, I should wish to be informed in which of the books of the old, or new testament it is to be found. The family of the patriarch Jacob voluntarily became subjects to the Egyptian monarch …. And four hundred years afterwards, Moses, their prophet, and deliverer, voluntarily abandoned Egypt, his native country, and dwelt among the Midianites; and then he, with the whole of the descendants of Jacob voluntarily departed out of Egypt, under the immediate protection and guidance of Jehovah, himself …. David also, the man after God’s own heart, abandoned his natural liege lord Saul, and went and dwelt with Achish, king of Gath; and even marched in his army against his native country, and liege lord, until the jealousy of the lords of the Philistines obliged him to turn back. I can not therefore believe that the divine law contains in it any such principle.
Neither can I well conceive how this can be considered as a principle of the law of nature; for according to that law, all men are equal. One man therefore can not owe allegiance to another, in virtue of that law; since there is neither prince nor subject among men according to the principles of it.
Nor yet does, this appear to be a principle of the law of nations, though perhaps it may have been the practice of particular nations to prohibit their subjects from migrating to any other: but in this case the prohibition arises from the particular law of the state, and not from the general law and practice of nations towards each other. The law of Solon, which prohibited the Athenians from admitting any person into their commonwealth, except such as were condemned to perpetual banishment from their own country, or else such as removed their whole families to Athens for the convenience of trade, and employment of the arts they professed, was not made so much to keep out foreigners, as to invite them to settle at Athens, by giving them assurance of incorporating them in the body of the common wealth …. For he made no doubt, says Plutarch, but both these sorts of people would make very good subjects, the one because they voluntarily quitted, and the other, because they were forced out of their own country. Plato says that, at Athens it was lawful for every private man, after he had examined the laws and customs of the republic, if he did not approve of them, to quit the city, and retire where he pleased with his effects. By the constitution of the Roman commonwealth, no citizen could be forced to leave the commonwealth, or if he pleased, not to leave it, when he was made a member of another which he preferred to it. And therefore Cicero says, that a little before his remembrance, several citizens of
Rome, men of credit and fortunes, voluntarily left that, and settled themselves in other commonwealths. And the way, says he, lies open from every state to ours, and from ours to every other. This right he extols in the most emphatic manner. “What noble rights! which by the blessing of heaven have been enjoyed by us and our ancestors, ever since the Roman state begun, that none of us should be forced to leave our country, or stay in it against our wills. This is the immovable foundation of our liberty, that every man is master of his right, and may keep it or resign it, as he pleases.” These instances, which are cited by Pufendorf,1 on this subject, prove at least that this principle was neither to be found in the Athenian or Roman institutions.
The practice among more modern nations is various: among the Muscovites, emigration is not permitted.2 The citizens of Neufchatel and Valengen, in Switzerland, may quit the country, and carry off their effects in what manner they please; a citizen of Bern may, if he pleases, remove to Fribourg, and reciprocally, a citizen of Fribourg may go and settle in Bern, and he has a right to take all his effects with him. On the other hand it appears from several historical facts, particularly in the history of Switzerland and the neighboring countries, that the law of nations established there by custom, for some ages past, does not permit a state to receive the subjects of another state into the number of its citizens.3 This vicious custom, says Vattel, had no other foundation than the slavery to which the people were then reduced. A prince considered his subjects in the rank of his property and riches; he calculated their numbers, as he did his flocks; and to the disgrace of human nature this strange abuse is not yet every where destroyed.4
Although Grotius5 denies that emigrants ought to leave the state in troops or large companies, (an opinion which is controverted by Pufendorf,6 and Burlamaqui,7) yet he allows the case to be quite different when a single person leaves his country; it is one thing, says he, to draw water out of a river, and another to divert the course of a part of that river. And Pufendorf 8 expressly says, where there are no laws about the matter (for the laws of different countries differ in this respect), we must be determined by customs arising from the nature of civil subjection. What custom admits of, every subject is supposed at liberty to use. But if this gives no light to the matter, and the compact of subjection makes no mention of it; it must be presumed that every man reserves to himself the liberty to remove at discretion. For when a man enters into a commonwealth, it cannot be supposed that he gives up all care of himself and his fortunes, but rather that by so doing he takes the best expedient to defend and secure both. But because it often happens that the nature of the government does not suit with every private man’s circumstances, or he thinks, at least, he can make his fortune with more advantage elsewhere; and since it would be unreasonable to reform and make alterations in the commonwealth at the desire,
and for the benefit of only a few private subjects, the only method left is, to give them leave to remove and provide for themselves where they think best. Burlamaqui9 scruples not to adopt the opinion of Pufendorf, altogether. So that we have the opinion of these four jurists that every man has a natural right to migrate from one state to another, and that this right can only be restrained under special circumstances, by the state to which he belongs, without imposing upon him an unwarrantable slavery.
Mr. Locke, in his essay on civil government10 seems to have examined thoroughly the foundation of this pretended right in governments to prohibit the emigration of their subjects, or citizens. There are no examples, says he, so frequent in history, both sacred and profane, as those of men withdrawing themselves, and their obedience from the jurisdiction they were born under, and the family or community they were bred up in, and setting up new governments in other places: this has been the practice of the world, from its first beginning to this day; nor is it now any more hindrance to the freedom of mankind, that they are born under constituted and ancient politics, that have established laws, and set forms of government, than if they were born in the woods, among the unconfined inhabitants that run loose in them. For those who would persuade us, that by being born under any government, we are naturally subjects to it, and have no more any title, or pretense, to the freedom of the state of nature, have no other reason (bating that of paternal power) to produce for it, but only because our fathers, or progenitors passed away their natural liberty, and thereby bound up themselves and their posterity to a perpetual subjection to the government, which they themselves submitted to. ‘Tis true, that whatever engagements, or promises, any one has made for himself, he is under the obligation of them, but cannot by any compact whatsoever bind his children, or
posterity. For his son, when a man, being altogether as free as the father, any act of the father can no more give away the liberty of the son, than it can of any body else: he may, indeed, annex such conditions to the land he enjoyed, as a subject of any commonwealth, as may oblige his son to be of the community, if he will enjoy those possessions, which were his fathers; because that estate being his father’s property he may dispose, or settle it as he pleases. And this has generally given the occasion to mistake in this matter; because commonwealths not permitting any part of their dominions to be dismembered, nor to be enjoyed by any but those of their community, the son cannot ordinarily enjoy the possession of his father, but under the same terms his father did, by becoming a member of the society; whereby he puts himself presently under the government he finds established, as much as any other subject of that commonwealth. And thus the consent of freemen, born under government, which, only, makes them members of it, being given separately in their turn, as each comes of age, and not in a multitude together; people taking no notice of it, and thinking it not done at all, or not necessary, conclude they are naturally subjects, as they are men.
And this mistake, it is evident Sir Matthew Hale has fallen into,* when he tells us, that a lawful prince who has the prior obligation of allegiance, can not lose that interest without his own consent, by his subjects resigning himself to the subjection of another; so that the natural born subject of one prince can not, by swearing allegiance to another prince, put off, or discharge himself from that natural allegiance; for this natural allegiance, says he, was intrinsic, and primitive, and antecedent to the other, and cannot be divested without the concurrent act of that prince to whom it was first due. And the authorities which he * brings in support of this opinion clearly prove that he fell into mistake from the very reason assigned by Mr. Locke. For, in the next paragraph he tells us,11 that there were very many that had been anciently ad fidem regis Angliæ et Franciæ, especially before the loss of Normandy: such were the comes marescallus that usually lived in England, and M. de Feynes, manens in Francia, who were ad fidem utriusque regis; but they ordered their homages and fealties so, that they swore or professed allegiance, only to one, viz. [that king in whose dominions they respectively resided;] the homage they performed to the other, [in whose dominions they held lands, but did not reside therein,] being not purely liege homage, but rather feudal: and therefore when war happened between the two crowns,
remaneat personaliter quilibet eorum cum oe, cui fecerat ligeant eam; et faciat servitium debitum ei, cum quo non steterat in persona, namely the service due from the feud, or fee he held: but this did not always satisfy the prince, cum quo non steterat in persona, but their possessions were usually seized, and rarely, or not without difficulty restored, without a capitulation to that purpose between the two crowns. And all the cases which he there cites in support of his opinion proceed upon the same ground; namely, the right which each prince exercised to seize the lands and possessions within his dominions, which belonged to the subjects of the other with whom he was at war. Which clearly proves that the right of confiscation thus mutually claimed and exercised, did not proceed upon the ground that the party whose lands were seized had broken his natural allegiance, or that which he might be supposed to owe to the prince in whose dominions he was born; but that feudal obligation, only, which every inferior tenant owed to his superior lord, (whether such a superior were a sovereign prince, or merely a private person) of whom he held his lands.12 Now this power which a prince might possess over the lands and possessions of a man who never resided within his dominions, can not be construed to give him any right over the person of such a man; neither on the other hand can that prince in whose territories he happens to be born claim any right to detain him therein,
merely because he first saw the light there, as Mr. Locke has most dearly shown; the most that he can do is to prohibit him from carrying his property with him; which if it be lands he can not, and if it be goods, he may not (if the laws of the state forbid) carry away without the consent of the government.
From the whole that we have seen, it appears, that the right of emigration is a right strictly natural; and that the restraints which may be imposed upon the exercise of it, are merely creatures of the juris positivi, or municipal laws of a state. And consequently that wherever the laws of any country do not prohibit, they permit emigration, or, as I rather choose to call it, expatriation. Now I apprehend it is altogether immaterial to us in America, whether the laws of England, France or Spain, permit the subjects of those countries, respectively, to expatriate themselves, inasmuch as I have shown, or at least endeavored so to do, that the municipal law of no other country upon earth has any force, or obligation over the citizens of the United States, as such; or over the citizens of any one state in the union, otherwise, or in any greater degree than the constitution or laws of such particular state may have adopted the same: and then it obtains a force and operation, so far, and so far only, as the act of adoption extends, and not on account of any intrinsic obligation which it might be supposed to possess, or derive from any other source. And, although Virginia has adopted the common law of England, under certain restrictions, yet Virginia by a positive act of her legislature, so long since as the year 1783,13 declared it to be a natural right which all men have, to relinquish that society in which birth or accident may have thrown them, and seek
subsistence and happiness elsewhere, and accordingly pointed out the mode in which any citizen might exercise it. The constitution of Vermont, and the first constitution of Pennsylvania contain similar declarations. Can it then be doubted that the citizens of those states, respectively, possess the right of exercising this natural privilege, whatever may be the laws of the other states in the union? If a doubt exists upon what principle it is founded? perhaps it will be answered, upon the power granted to congress by the constitution to establish an uniform rule of naturalization. I have given an answer to this, in a preceding tract.14 Perhaps; upon the faith of our treaties with France, England, and other European nations. But those treaties only stipulate for the conduct of the citizens of the United States, so long as they remain such; not, for their conduct after they shall have abandoned that character in the manner which the laws of the respective states permit.
If a person violates the treaties, and remains a citizen, the treaties stipulate that he shall be punished, or be abandoned by the U. States, as a pirate, and robber. But, if before he attaches himself to any other nation, he renounces his character of an American citizen, I cannot see that he is any longer amenable to the United States for his conduct; nor can they be considered as any longer responsible for a conduct which in ninety nine cases out of an hundred, they can by no possibility control, or punish; the parties having forever bidden adieu to their territory and jurisdiction.
1. Law of Nature and Nations B. 8. c. 11.
2. Grotius of War and Peace, B. 2. c. 5. Sec. 24.
3. Vattel, B. 1. c. 19. Sec. 225.
5. B. 2. c. 5. Sec. 24.
6. B. 8, c. 11. S. 4.
7. B. 2. part 2. c. 5.
8. B. 8. 11. Sec. 2.
9. B. 2. part 2. etc.
10. Sect. 115, etc.
11. 1 Hale, H. P. C. 68, 69.
12. Co. Litt. Sec 85, 91, etc.
13. Oct. 1783, c. 16. Edi. 1794, c. 110.
14. Upon the common law; Note E. part I.