Quote:
|
Originally Posted by suijuris
I propose we start a thread only for CITES regarding citizenship & jurisdictional issues. Anyone who finds additional cites on this topic please post here. Please start a new thread if you have question on any of the cites, to keep this thread uncluttered.
Sui Juris
|
(1795) Talbot v Jansen, 3 U.S. 133 an early excellent case
Yet, it is to be remembered, and 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 controul, nor to elucidate. And yet, even among the nations, in which the law of allegiance is the most firmly established, the law most pertinaciously enforced, there are striking deviations that demonstrate the invincible power of truth, and the homage, which, under every modification of government, must be paid to the inherent rights of man....
The doctrine is, that allegiance cannot be due to two sovereigns; and taking an oath of allegiance to a new, is the strongest evidence of withdrawing allegiance from a previous, sovereign.....
The American Confederation is a complex machine, and sui generis. It creates joint federal powers; but it recognizes separate state powers: It is confederate to some purposes; but consolidated to other purposes. The formation of every social compact is presumed, however, by elementary writers, to be a surrender of so much, and no more, of private rights, as are necessary to the preservation and operation of the government; but this principle is not left with us to mere implication; it is formally declared in many state constitutions in favor of the people; and in the Federal Constitution, it is declared in favor of the States, as well as of the people. With respect, then, to the right of emigration, it has been under the consideration of the people and government of the Union, from the moment of their birth, as an independent nation; insomuch, that the refusal to pass laws for the encouragement of emigration to America, is charged as a proof of tyranny and oppression, in the enumeration of the grievances, which produced and justified the revolution. The articles of Confederation contain not any clauses, expressly granting or restraining, the power and right of naturalization and emigration; but they contain an express reservation of all powers in favor of the States individually, which are not, in terms, transferred to the Union. An inspection of the several state constitutions will prove, that, in some form or other, the principle has been recognized by every member of the Confederation; and the Constitution of Pennsylvania explicitly provides, that no law shall be passed prohibiting emigration from the state. This is, perhaps, the only direct expression of the public sentiment on the subject; but the very silence that prevails strengths the argument. The power of naturalizing has been vested in several of the state governments, and it now exists in the general government; but the power to restrain or regulate the right of emigration, is no where surrendered by the people; and it must be repeated, that, what has not been given, ought not to be assumed. It may be said, however, that such a power is necessary to the government, and that it is implied in the authority to regulate the business of naturalization. In considering these positions, it must be admitted, that although an individual has a right to expatriate himself, he has not a right to seduce others from their country. Hence, those who forcibly, or seductively, take away a citizen, commit an act, which [p*143] forms a fair object of municipal police; and a conspiracy or combination, to leave a country, might, likewise be properly guarded against. Such laws would not be an infraction of the natural right of individuals; for, the natural rights of man are personal; he has no right to will for others, and he does so, in effect, whenever he moves the mind of another to his purpose, by fear, by fraud, or by persuasion....
To pursue the subject one step further: A man cannot owe allegiance to two sovereigns. 1Bl. Com. He cannot be citizen of two republics. If a man has a right to expatriate, and another nation has a right and disposition to adopt him, it is a compact between the two parties, consummated by the oath of allegiance. A man's last will, as to his citizenship, may be likened to his last will, as to his estate; it supersedes every former disposition; and when either takes effect, the party, in one case, is naturally dead, in the other, he is civilly dead;--but in both cases, as good Christians and good republicans, it must be presumed that he rises to another, if not to a better, life and country. An act of expatriation, likewise, is susceptible of various kinds of proof. The Virginia law has selected one, when the state permits her citizens to depart; but it is not, perhaps, either the most authentic, or the most conclusive that the case admits. It may be done obscurely in a distant county court; and even after the emigrant is released from Virginia, to what nation does he belong? He may have entered no other country, nor incurred any obligation to any other sovereign. Not being a citizen of Virginia, he cannot be deemed a citizen of the United States. Shall he be called a citizen of the world; a human balloon, detached and buoyant in the political atmosphere, gazed at wherever he passes, and settled wherever he touches? But, on the other hand, the act of swearing allegiance to another sovereign, is unequivocal and conclusive; extinguishing, at once, the claims of the deserted, and creating the right of the adopted, country.
Linear Mode
