island of St. Thomas by a bona fide sale to Jared Shattuck, and the forfeiture alleged to have accrued on a fact subsequent to that transfer," the liability of the vessel to forfeiture must depend upon the inquiry whether the purchaser came within the description of the act, as a citizen" of the United States "resident elsewhere."

4. That, whether a citizen of the United States could divest himself absolutely of that character, except in some manner prescribed by law, was a question not necessary to be decided; that it appeared by the precedents that an American citizen might “acquire in a foreign country the commercial privileges attached to his domicil, and be exempted from the operation of an act expressed in such general terms" as that under consideration; that Shattuck, having become "the subject of a foreign power," this fact, though it might not suffice" to rescue him from punishment for any crime committed against the United States, a point not intended to be decided," yet placed him "out of the protection of the United States while within the territory of the sovereign to whom he has sworn allegiance," and took him "out of the description of the act."

5. That "the Charming Betsy, with her cargo, being at the time of her recapture the bona fide property of a Danish burgher," was not forfeitable for being employed in trade with a French island.

Murray r. Schooner Charming Betsy (1804), 2 Cranch, 64.

In a note to this case, p. 82, an opinion of Chief Justice Ellsworth is given, as extracted by Judge Tucker from The National Magazine, No. 3, p. 254. As stated, this opinion was delivered in the case of Isaac Williams, who was under trial in 1797 in the United States circuit court in Connecticut for accepting a French commission. In his defense he offered to prove that he had, prior to the war between England and France, expatriated himself and become a French citizen. Chief Justice Ellsworth is reported to have held (1) "that all the members of a civil community are bound to each other by compact,” and (2) that "one of the parties to this compact can not dissolve it by his own act." A member of the community could not dissolve his compact with it without its consent or default. In the present case there had been no default, nor had there been any consent. The act of the Government in naturalizing foreigners did not imply such consent. No inquiry was made as to the applicant's relations to his own original country. If he embarrassed himself “by contracting contradictory obligations" the "fault and folly" were his own; but this implied no consent of the Government to the expatriation of its citizens. The evidence was therefore rejected, and the prisoner was found guilty, fined, and imprisoned.

Jared Shattuck, the owner of the Charming Betsy, claimed damages from Lieutenant Maley, commander of the U. S. vessel Experiment, for the capture of the schooner Mercator which, though built in the United States, belonged to Shattuck. It was held that the claim for damages was well founded. Marshall, C. J., delivering the opinion of the court, said that it had been shown that Shattuck had, though he was born in the United States, removed to St. Thomas and "ac

quired all the commercial rights of his domicil before the occurrence of those circumstances which occasioned the acts of Congress," and that the case of the Charming Betsy determined that the vessel and cargo were not liable to forfeiture under those acts. (Maley v. Shattuck (1806), 3 Cranch, 458.)

C., a native of New Jersey, resided therein till some time in 1777, when he removed to Philadelphia and joined the British forces. He ever afterwards adhered to the British cause, and at the close of the American Revolution settled in London, where he always conducted himself as a British subject. Did he thereby become incapable, as an alien, of inheriting lands in New Jersey in 1802? It appeared that by an act of the legislature of New Jersey of October 4, 1776, it was declared that all persons abiding there not only owed allegiance to the State, but were also members of its existing government. By an act of June 5, 1777, a pardon was offered to such "subjects" of the State as had been seduced from their allegiance to it; and it was enacted that their personal estate should be forfeited unless they should return to their duty by August 1, 1777. Many of the persons intended to be affected having failed to return, a new act was passed April 18, 1778, under which the real as well as the personal estates of such persons were to be seized, the personalty to be sold and the realty to be rented out. By this act the persons in question were termed "offenders." December 11, 1778, yet another act was passed, by which the estates of the "fugitives and offenders" mentioned in the prior acts were declared forfeited; and by section 2 every inhabitant of the State who had joined the enemy between April 19, 1775, and October 4, 1776, and who had not since returned and become a subject in allegiance to the existing government by taking the oaths of abjuration and allegiance, was declared guilty of high treason. Held, Mr. Justice Cushing delivering the opinion, that as, by these laws of New Jersey, which were still in force and were not affected by the treaty of peace, C. was incapable of throwing off his allegiance to that State, he did not become an alien to it, but retained his capacity to take lands within its limits.

This

McIlvaine r. Coxe's Lessee (1808), 2 Cranch, 280, 4 Cranch, 209.
was an action of ejectment. In the course of the argument, Mr. Jus-
tice Paterson said: "Suppose he [C.] expatriated himself since the
peace, what is the consequence? Does he thereby become a complete
alien, so as not to be capable of taking lands by descent afterwards?"
W. Tilghman, counsel for defendant, replied: "So I contend."
Rawle, counsel for C., argued the matter upon the laws of New Jersey,
maintaining that they were conclusive on the subject. W. Tilghman,
as reported, admitted that by the laws of New Jersey C. was "to
be considered as a subject of New Jersey by force; and that the State
had a right to make such a law. He had argued only upon the gen-
eral ground, independent of the law of New Jersey."

H. Doc. 551-vol 3-36

NATIONALITY.

[SS 433, 434. Article III. of the treaty between the United States and Würtemberg of April 10, 1844, provided that the "citizens or subjects" of each contracting party should have the power to dispose of their personal property within the jurisdiction of the other, and that their heirs, legatees, and donees, being "citizens or subjects" of the other contracting party, might take and dispose of such property, paying only such duties as would be paid in like cases by inhabitants of the country in which the property lay. It was held that this stipulation did not apply to property of a native subject of Würtemberg who, after having been naturalized as a citizen of the United States, died in Louisiana, bequeathing legacies to kindred residing in Würtemberg, the fact that he was formerly a subject of Würtemberg giving him no rights under the treaty.

Frederickson v. Louisiana, 23 How. 445.

(2) SINCE 1868.

§ 433.

The consent of government is not necessary to enable a citizen voluntarily to expatriate himself and become a citizen of another country.

Green . Salas, 31 Fed. Rep. 106, and cases cited; Comitis v. Parkerson, 56 id. 556; Jennes v. Landes, 84 id. 73; In re Look Tin Sing, 10 Sawyer C. C. 353; Browne v. Dexter, 66 Cal. 39.

3. GOVERNMENTAL DOCTRINE.

(1) EXECUTIVE UTTERANCES DOWN TO 1845.

§ 434.

"Our citizens are certainly free to divest themselves of that character by emigration and other acts manifesting their intention, and may then become the subjects of another power, and free to do whatever the subjects of that power may do."

Mr. Jefferson, Sec. of State, to Mr. G. Morris, Aug. 16, 1793, 4 Jeff.
Works (Washington's ed.), 37.

A claim was presented by certain persons in the character of American citizens to the mixed commission under Article XXI. of the treaty between the United States and Spain of October 27, 1795. An award in favor of the claimants was made by a majority of the commission, but the Spanish commissioner declined to sign it on the ground that the claimants, who were British subjects by birth, were not citizens of the United States at the time of the acknowledgment of independence by Great Britain. The Spanish Government suspended

payment of the award because the Spanish commissioner had not. signed it. The United States protested against the action of the Spanish Government, saying: "The persons who claim were, not only when the treaty was made, but also when the injury was sustained, according to our laws citizens of the United States. The right of naturalizing aliens is claimed and exercised by the different nations of Europe, as well as by the United States. When the laws adopt an individual no nation has a right to question the validity of the act, unless it be one which may have a conflicting title to the person adopted. Spain therefore cannot contest the fact that these gentlemen are American citizens."

Mr. Marshall, Sec. of State, to Mr. Humphreys, Sept. 23, 1800, Moore, Int. Arbitrations, II. 1001; MS. Inst. U. States Ministers, V. 383. See remarks of Nott, C. J., in The Conrad (1902), 37 Ct. Cl. 459.

"Your proffered exertions to procure the discharge of native American citizens from on board British ships of war, of which you desire a list, has not escaped attention. It is impossible for the United States to discriminate between their native and naturalized citizens, nor ought your Government to expect it, as it makes no such discrimination itself. There is in this office a list of several thousand American seamen, who have been impressed into the British service, for whose release applications have from time to time been already made; of this list a copy shall be forwarded you, to take advantage of any good offices you may be able to render."

Mr. Monroe, Sec. of State, to Mr. Foster, British minister, May 30, 1812.
Am. State Papers, For. Rel. III. 454.

The British Government, during the war of 1812, refused in a number of
cases to treat persons who, though born in Great Britain, had been
naturalized in the United States, as prisoners of war, transferring
them to prisons and rejecting proposals for their exchange. The
action of the Government of the United States in this relation is
given in Am. State papers, For. Rel. III. 630. As to expatriation, as
involved in the question of impressment, see Adams' Hist. of the
United States, II. 332-339; supra, § 317.

"It is known that almost all seamen in the service of Colombia are foreigners, and many of them citizens of the United States, enlisted in the Colombian service in violation of the laws of their own country. By the present constitution of Colombia, the rights of citizenship are confined to natives of the territory and their children, landholders at the commencement of the revolution who have adhered to the cause of independence, and strangers after obtaining letters of naturalization. You will ascertain how these letters of naturalization are obtained. If they are granted, of course, to every sailor who enlists in their service, you will take some proper occasion to represent that this system interferes with the rights of

of the contracts of the expatriated individuals with vibers of their

~ I transmit the passports majestel in your lete of the ith inaut for Mr. Charles Brook at i Jasper Christians to at i pom der certificates of Lat ralization. You will play have the Marks fed up with the description of their perens and transmit a opp deret to this Department. Whether those perots upon retuming to the countries within whose allegiance they were born, will be liable to perform military duty, will depend upon the laws of those countries respectively, and upon circumstances on which this Department is not willing to express an opinion in anticipation.”

Mr. Forsyth. See, of State, to Mr. Strohawker. April 15, 185, 27 MS. IMEL

Let. 310.

John Philipp Knoche, a native of Prussia, emigrated to the United States in 1834. being then twenty-one years of age. He remained in the United States six years and became a naturalized citizen, and then returned to Prussia, where he was compelled to enter the army. He applied to the American legation at Berlin for its interposition. Mr. Henry Wheaton, who was then American minister to Prussia, replied: "It is not in my power to interfere in the manner you desire. Had you remained in the United States or visited any other foreign country (except Prussia) on your lawful business, you would have been protected by the American authorities, at home and abroad, in the enjoyment of all your rights and privileges as a naturalized citizen of the United States. But, having returned to the country of your birth, your native domicil and national character revert (o long as you remain in the Prussian dominions), and you are bound in all re-pects to obey the laws exactly as if you had never emigrated.“

Mr. Wheaton, min. to Prussia, to Mr. Knoche, July 24, 1840, enclosed with Mr. Wheaton's No. 157, to Mr. Forsyth, Sec. of State, July 29, 1840, S. Ex. Doc. 38, 36 Cong. 1 sess. 6, 7.

Replying to a complaint of the Mexican Government that the revo lution in Texas was aided by persons from the United States, Mr. Webster said: These persons, so far as is known to the Government of the United States, repair to Texas, not as citizens of the United States, but as ceasing to be such citizens, and as changing, at the same