Allegiance and Citizenship

Talbot v. Janson, 3 Dall. 133 (1795), provides insight to then prevailing views regarding allegiance and citizenship.

What makes this particularly noteworthy is the background of the justices of the Supreme Court: Chief Justice Rutledge, and Justices Paterson, Wilson, Iredell, and Cushing.

John Rutledge – Continental Congress, delegate Constitutional Convention, signer of Constitution

William Paterson – delegate Constitutional Convention, signer of Constitution, framer of Judiciary Act of 1789

James Wilson – signer of Declaration of Independence, twice elected to the Continental Congress, delegate Constitutional Convention, signer of Constitution, leader of Pennsylvania Ratification Convention

James Iredell – leader of North Carolina Ratification Convention

William Cushing – Vice Chairman of the Massachusetts Ratification Convention

They are all variously Founders, Framers, and Ratifiers.

Excerpting points of interest from the case:

On the law, the following positions were taken in favour of the Appellant (Talbot).

But the abstract right of individuals to withdraw from the society of which they are members, is recognized by an uncommon coincidence of opinion; by every writer, ancient and modern; by the civilian, as well as by the common-law lawyer; by the philosopher, as well as the poet: It is the law of nature, and of nature’s god, pointing to ‘the wide world before us, where to chose our place of rest, and Providence our guide.’

With this law, however, human institutions have often been at variance; and no institutions more than the feudal system, which made the tyranny of arms, the basis of society; chained men to the soil on which they were born; and converted the bulk of mankind into the villeins, or slaves of a lord, or superior.

From the feudal system, sprung the law of allegiance; which pursuing the nature of its origin, rests on lands; for, when lands were all held of the Crown, then the oath of allegiance became appropriate: It was the tenure of the tenant, or vassal. Blac. Com. 366. The oath of fealty, and the ancient oath of allegiance, were, almost the same; both resting on lands; both designating the person to whom service should be rendered; though the one makes an exception as to the superior lord, while the other is an obligation of fidelity against all men. 2 Bl. Com. 53. Pal. 140. (ed. see “The Manner of Doing Homage and Fealty”, 17 Edw. 2 )

Hence arose the doctrine of perpetual and universal allegiance. When, however, the light of reason was shed upon the human mind, the intercourse of man became more general and more liberal; the military was gradually changed for the commercial state; and the laws were found a better protection for persons and property, than arms.

But even while the practical administration of government was thus reformed, some portion of the ancient theory was preserved; and, among other things, the doctrine of perpetual allegiance remained, with the fictitious tenure of all lands from the Crown to support it. Yet, it is to be remembered, that whether in its real origin, or in its artificial state, allegiance, as well as fealty, rests upon lands, and it is due to persons.

Not so, with respect to Citizenship, which has arisen from the dissolution of the feudal system; and is a substitute for allegiance, corresponding with the new order of things.

Allegiance and citizenship, differ, indeed, in almost every characteristic. Citizenship is the effect of compact; allegiance is the offspring of power and necessity. Citizenship is a political tie; allegiance is a territorial tenure. Citizenship is the charter of equality; allegiance is a badge of inferiority. Citizenship is constitutional; allegiance is personal. Citizenship is freedom; allegiance is servitude. Citizenship is communicable; allegiance is repulsive. Citizenship may be relinquished; allegiance is perpetual. With such essential differences, the doctrine of allegiance is inapplicable to a system of citizenship; which it can neither serve to control, nor to elucidate.

On the points of law, the Counsel for the Appellee (Jansen), held the following doctrines:

I. That Ballard and Talbot were Americans by birth, and had done nothing which could work a lawful expatriation. It is conceded that birth gives no property in the man; but, on the principles of the American government, he may leave his country when he pleases, provided it is done bona fide, with good cause, and under the regulations prescribed by law. 1 Vatt. B. 1 c. 19.s. 220. 221. 223. 224. Grot. B. 2. c. 5.s.24. Puff. B. 8. c. 11. p. 872, and provided, also, that he goes to another country, and takes up his residence there, under an open and avowed declaration of his intention. Thus, the rule is fairly laid down in 2 Heinec. B. 2. c. 10. s. 230.p.220; requiring from the emigrant not only an act of departure, with the design to expatriate, but the act of joining himself to another state.

On the 22nd of August, 1795, the Judges delivered their opinions seriatim.

Excerpts from their opinions:

Chief Justice Rutledge:

The doctrine of expatriation is certainly of great magnitude; but it is not necessary to give an opinion upon it, in the present cause, there being no proof, that Captain Talbot’s admission as a citizen of the French Republic, was with a view to relinquish his native country; and a man may, at the same time, enjoy the rights of citizenship under two governments.

Justice Paterson:

Ballard was, and still is, a citizen of the United States;

The act of the legislature of Virginia[1], does not apply. Ballard was a citizen of Virginia, and also of the United States. If the legislature of Virginia pass an act specifying the causes of expatriation, and prescribing the manner in which it is to be effected by the citizens of that state, what can be its operation on the citizens of the United States? If the act of Virginia affects Ballard’s citizenship, so far as respects that state, can it touch his citizenship so far as it regards the United States? Allegiance to a particular state, is one thing; allegiance to the United States is another. Will it be said, that the renunciation of allegiance to the former implies or draws after it a renunciation of allegiance to the latter? The sovereignties are different; the allegiance is different; the right too, may be different. Our situation being new, unavoidably creates new and intricate questions. We have sovereignties moving within a sovereignty. Of course there is complexity and difficulty in the system, which requires a penetrating eye fully to explore, and steady and masterly hands to keep in unison and order. A slight collision may disturb the harmony of the parts, and endanger the machinery of the whole. A statute of the United States, relative to expatriation is much wanted; especially as the common law of England, is, by the constitution of some of the states, expressly recognized and adopted. Besides, ascertaining by positive law the manner, in which expatriation may be effected, would obviate doubts, render the subject notorious and easy of apprehension, and furnish the rule of civil conduct on a very interesting point.

I am, therefore, of opinion, that the decree of the Circuit Court ought to be affirmed. Being clear on the preceding points, it supersedes the necessity of deciding upon other great questions in the cause; such as, whether Redick and Talbot were French citizens; whether the bill of sale was colourable and fraudulent; whether Redick, if a French citizen, did not lend his name as a cover; and whether the property did not continue in Sinclair and Wilson, citizens of the United States.

Justice Wilson:

As I decided this cause in the Circuit Court, it gives me pleasure to be relieved from the necessity of giving any opinion on the appeal, by the unanimity of sentiment that prevails among the judges.

Justice Iredell:

That a man ought not to be a slave; that he should not be confined against his will to a particular spot, because he happened to draw his first breath upon it; that he should not be compelled to continue in a society to which he is accidentally attached, when he can better his situation elsewhere, much less when he must starve in one country, and may live comfortably in another; are positions which I hold as strongly as any man, and they are such as most nations in the world appear clearly to recognize.

[regarding the Virginia act of expatriation] I have always thought the Virginia assembly shewed a very judicious foresight in this particular.

Whether the Virginia act of expatriation be now in force, is a question so important, that I would not wish unnecessarily to decide it.

Justice Cushing:

On the important right of expatriation, I do not think it necessary to give an opinion; but the doctrine mentioned by Heineccius, seems to furnish a reasonable and satisfactory rule. The act of expatriation should be bona fide, and manifested, at least, by the emigrant’s actual removal, with his family and effects, into another country. This, however, forms no part of the ground, on which I think the decree of the Circuit Court ought to be affirmed.

What is illuminating is that none of the Justices, all of whom were variously Founders, Framers, and Ratifiers, took any issue with the clearly stated natural law/law of nations assertions of the Appellant – nor did the Appellee. Indeed the Justices opinions echoed those ideas. Regarding expatriation, their concern was that a “statute of the United States, relative to expatriation is much wanted”, to “obviate doubts”.

_____

See also: “The True Law of Free Monarchies” published 1598 and 1603 by James VI of Scotland (James I of England) )

 

[1] The words of the law are these: ‘Whensoever any citizen of this Commonwealth, shall, by deed in writing, under his hand and seal, executed in the presence of, and subscribed by, three witnesses, and by them, or two of them proved in the General Court, any District Court, or the court of the County or Corporation where he resides, or by open verbal declaration made in either of the said courts, to be by them entered of record, declare that he relinquishes the character of a citizen, and shall depart out of this Commonwealth, such person shall, from the time of his departure, be considered as having exercised his right of expatriation, and shall thenceforth be deemed no citizen.’ Passed 23rd Dec. 1792.

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