zens from ever leaving its dominions or changing their home. It would be a practical denial of all right of expatriation, and a full assertion of the doctrine of perpetual allegiance." (Mr. Cass, Sec. of State, to Mr. Wright, min. to Prussia, May 12, 1859, MS. Inst. Prussia XIV. 274.)

With reference to his letter to Mr. Hofer of the 14th of June, Mr. Cass
said: "The proper application of this principle to cases as they arise
depends on the existing facts, and it is not the practice of the
Department to anticipate such cases and pronounce its opinion upon
them in advance." (Mr. Cass, Sec. of State, to Mr. Peebles, June
21, 1859, 50 MS. Dom. Let. 417.)

See, also, Mr. Cass, Sec. of State, to Mr. Cushing, June 16, 1859; to Mr.
Osterle, June 24, 1859: 50 MS. Dom. Let. 404, 427.

Case of Christian

Christian Ernst, a native of Hanover, emigrated to the United States in 1851, when nineteen years of age. In February, 1859, he was naturalized, and in the folErnst. lowing month procured a passport and went back to Hanover on a visit. After arriving in his native village he was arrested and forced into the Hanoverian army. President Buchanan submitted the case to Attorney-General Black for an opinion. Attorney-General Black advised (1) that the course to be taken must depend "upon the law of our own country, as controlled and modified by the law of nations;" (2) that it was the "natural right of every free person, who owes no debts and is not guilty of any crime, to leave the country of his birth in good faith and for an honest purpose," and to throw off his natural allegiance and substitute another in its place; (3) that, although the common law of England denied this right, and "some of our own courts, misled by British authority, have expressed, though not very decisively, the same opinion," this was not to be taken as settling the question; (4) that "natural reason and justice," "writers of known wisdom," and "the practice of civilized nations" were all " opposed to the doctrine of perpetual allegiance," and that the United States was pledged to the right of expatriation and could not without perfidy repudiate it; (5) that expatriation "includes not only emigration out of one's native country, but naturalization in the country adopted as, a future residence;" (6) that "naturalization does ipso facto place the native and the adopted citizen in precisely the same relations with the government under which they live, except in so far as the express and positive law of the country has made a distinction in favor of one or the other;" (7) that, with regard to the protection of American citizens in their rights at home and abroad, there was no law that divided them into classes or made any difference whatever between them; (8) that the opinion held by "persons of very high reputation" that a naturalized citizen ought to be protected everywhere except in the country of his birth had "no founda

tion to rest upon except the dogma which denies altogether the right of expatriation without the consent of his native country;" (9) that the naturalization laws were opposed to this view "in their whole spirit as well as in their express words," and that the states of Europe were also practically committed against it;" (10) that, assuming that Hanover had a municipal regulation by which the right of expatriation was denied to those of her subjects who failed to comply with certain conditions, and assuming that this règulation was violated by Mr. Ernst when he came away, the unlawfulness of his emigration would not make his naturalization void as against the King of Hanover; (11) that, if the laws of the two countries were in conflict, the law of nations must decide the question upon principles and rules of its own, and that "by the public law of the world we have the undoubted right to naturalize a foreigner, whether his natural sovereign consented to his emigration or not;" and, finally, (12) that the Hanoverian Government could justify the arrest of Mr. Ernst only by proving that the original right of expatriation depended on the consent of the natural sovereign—a proposition which, said Mr. Black, "I am sure no man can establish."

Black, At. Gen., July 4, 1859, 9 Op. 356.

The views of the President in relation to the case of Christian Ernst and analogous cases were communicated to the American minister at Berlin, July 8, 1859. In this communication the position was maintained that the right of expatriation could not be doubted or denied in the United States; that the Constitution recognized it by conferring on Congress the power to establish a uniform rule for naturalization; that Congress had uniformly acted upon the principle since the commencement of the Federal Government, and that there was no country in Europe whose laws did not authorize the naturalization of foreigners in some form. What right, then, it was asked, did the laws of the United States confer upon a foreigner by granting him naturalization? The answer was, all the rights, privileges, and immunities which belonged to a native citizen, except that of eligibility to the office of President. "With this exception," it was affirmed, "the naturalized citizen, from and after the date of his naturalization, both at home and abroad, is placed upon the very same footing with the native citizen. He is neither in a better nor a worse condition. . . The moment a foreigner becomes naturalized his allegiance to his native country is severed forever. He experiences a new political birth. A broad and impassable line separates him from his native country. He is no more responsible for anything he may say or do, or omit to say or do, after assuming his new character, than if he had been born in the United States. Should he return to

.

his native country, he returns as an American citizen, and in no other
character. In order to entitle his original government to punish him
for an offence, this must have been committed while he was a subject
and owed allegiance to that government.
It must have been
of such a character that he might have been tried and punished for it
at the moment of his departure." It was further maintained that by
the treaty with Hanover, which provided that the "inhabitants" of
each country should be permitted to sojourn in all parts of the other,
submitting to the laws, every inhabitant of the United States had a
right to visit that country and sojourn there in the prosecution of his
business, and that no distinction could be made in this regard between
a native and a naturalized citizen of the United States.

Mr. Cass, Sec. of State, to Mr. Wright, min. to Prussia, July 8, 1859, S.
Ex. Doc. 38, 36 Cong. 1 sess. 132.

In the foregoing instruction a clear distinction was drawn between the
case of a person who had committed an offence before emigration,
and a person whose offence was alleged to have been committed
after emigration. In this relation, the instruction said: "If a soldier
or a sailor were to desert from our army or navy, for which offence
he is liable to a severe punishment, and after having become a
naturalized subject of another country, should return to the United
States, it would be a singular defence for him to make that he was
absolved from his crime because after its commission he had become
a subject of another government. . . . During the last war with
Great Britain, in several of the States, I might mention Pennsylvania
in particular, the militiaman who was drafted and called into the
service was exposed to a severe penalty if he did not obey the draft
and muster himself into the service, or in default thereof procure a
substitute." In such a case it was not possible to imagine that if
an individual, after incurring the penalty, had gone to a foreign
country and become naturalized, and then returned to Pennsylvania,
the arm of the State authorities would have been paralyzed. (Id.
135-136.)

Mr. Wright was instructed to demand the immediate discharge of Ernst from his compulsory service, and full reparation for whatever injury he had suffered, either in person or in property. August 20, 1859, the Hanoverian Government stated that a "full pardon" had been granted to Ernst and that he had been "dismissed" from the military service. The Hanoverian Government added, however, that similar conflicts could be prevented in the future only by the United States "renouncing its own views on the subject, which do not agree with international relations," or by concluding a special arrangement. (Id. 145-146.)

See, also, Mr. Cass, Sec. of State, to Mr. Wright, Dec. 9, 1859, id. 147, and
Mr. Cass, Sec. of State, to Mr. Mason, min. to France, June 27, 1859,
id. 198.

The instruction to Mr. Wright was printed and issued in circular form
as expressing the views of the United States. (Mr. Cass, Sec. of
State, to Mr. Pugh, M. C., Feb. 1, 1860, 51 MS. Dom. Let. 418; Mr.
Appleton, Assist. Sec. of State, to Mr. Weidman, April 26, 1860, 52 id.

66

188; Mr. Trescot, Assist. Sec. of State, to Mr. Salsbacher, Aug. 24, 1860, 53 id. 47; Mr. F. W. Seward, Assist. Sec. of State, to Mr. Roasen, April 6, 1861, 53 id. 542.)

I have the honor herewith to transmit a copy of a despatch of the 22d ultimo, from the consul-general of the United States at Havana to this Department, on the subject of a recent order issued by the governor of Sagua la Grande, summoning a naturalized citizen of the United States, temporarily residing at that place, to surrender himself at the barracks for military duty. It appears that Mr. Leaño, the individual alluded to, who is a native of Spain, answered the summons of the governor and exhibited to him his certificate of naturalization, with other proofs of his American citizenship, notwithstanding which, however, he was ordered either to go to the barracks for the performance of the military service exacted of him, or give bond in the penalty of $318 as indemnity for the nonperformance of such service. To escape being sent to prison, he executed the bond under protest.

"You are requested to call the attention of the Government of Her Catholic Majesty without delay to this case, as one in which much interest is felt by the President, involving as it does the claim of a foreign government to interfere with the personal security and liberty of citizens of the United States whose interests may require them to return temporarily to the respective countries of which they were once inhabitants. This claim, which, as you are aware, is denied by the Government of the United States, has in all recent cases been yielded without hesitation upon representation of the views of this Government respecting it. These views are given at length in a despatch of the 8th of July last, addressed to Mr. Wright, at Berlin, a printed copy of which you will receive by the next mail.

"Fortunately such cases as the one in question are not likely to be of frequent occurrence, and the President indulges the confident hope that the Government of Her Catholic Majesty will at once direct its authorities in Cuba to put a stop to all future proceedings against Mr. Leaño, and at the same time take such measures as may prevent the recurrence of similar proceedings, so likely to interrupt the friendly relations of the two countries."

Mr. Cass, Sec. of State, to Mr. Preston, min. to Spain, March 1, 1860,
MS. Inst. Spain, XV. 235.

"Our Government is bound to protect the rights of our naturalized citizens everywhere to the same extent as though they had drawn their first breath in this country. We can recognize no distinction betweeen our native and naturalized citizens."

President Buchanan, annual message, Dec. 3, 1860, Richardson's Messages, V. 641.

(5) COURSE DURING CIVIL WAR.

§ 438.

"Recurring to your despatch No. 8, which has already been acknowledged, I have now the honor to give you the President's views in regard to the proceedings in Prussia, by which natives of Prussia who have voluntarily exchanged allegiance from that Government for the rights and privileges of citizens of the United States, and have been duly naturalized as such, are nevertheless arrested and held liable to perform military service on occasions of their transient visits to their native country. The question involved in these proceedings is an old one, and was a subject of elaborate discussion between the two countries before the occurrence of our late civil war. Considerations of ease and policy prevailed with this Department to allow the subject to rest during the continuance of the war. We became even less anxious upon the subject when it was seen that worthless naturalized citizens fled before the requirement of military service by their adopted Government here, and not only took refuge from such service in their native land, but impertinently demanded that the United States should interpose to procure their exemption from military service exacted there. Those circumstances, however, have passed away, and the question presents itself in its original form. The United States have accepted and established a Government upon the principle of the rights of men who have committed no crime to choose the state in which they will live, and to incorporate themselves as members of that state, and to enjoy henceforth its privileges and benefits, among which is included protection. This principle is recommended by sentiments of humanity and abstract justice. It is a principle which we cannot waive. It is not believed that the military service which can be procured by any foreign state in denial of this principle can be important or even useful to that state. The President desires that you will present the subject to the serious consideration of Count Bismarck. In doing so, you will assure the minister for foreign affairs that we are animated by sentiments of sincere friendship and good will to Prussia, and that therefore we shall be ready to receive and consider with candor any opinions upon the subject that the Prussian Government may think proper to communicate.

"You will also assure Count Bismarck that any suggestions that he may think proper to make relative to the extradition laws of the two countries will receive just and friendly attention."

Mr. Seward, Sec. of State, to Mr. Wright, min. to Prussia, Dec. 2, 1865,
Dip. Cor. 1865, III. 68; MS. Inst. Prussia, XIV. 422.