having the whole field of legislation before him, while here it is the federal power which determines the national status by which the municipal law of property must be interpreted. An act of Parliament prepared under such circumstances to meet an exigency, equally arising in all countries, where the English common law prevails, commends itself to our careful consideration.

Not only does the power of naturalization exist in the United States to the exclusion of State authority, but the several departments of the federal government, from the very origin of our institutions, have maintained different doctrines as to the effect of a foreign naturalization on the prior allegiance of an American citizen.

The acts of Congress require, besides the oath of allegiance to the United States, a renunciation by the applicant for naturalization of all foreign allegiance, particularly to the power or State of which he was a subject or citizen.* In all our diplomatic discussions, as well in those that grew out of the impressment question, itself one of the principal causes of the war of 1812 with England, as in the recent negotiations, leading to the conclusion of the naturalization treaties, the United States have ever contended that naturalization by a foreign State, whether with or without the consent of the country of the individual naturalized, absolves him from all allegiance to the State of his origin. The only difference between the earlier and later cases has

* See Appendix A, I.

been as to the effect of a voluntary return of a naturalized citizen to his native country on his claim while there to the protection of the United States.

Contrary to the course of the Executive and of Con

gress, the courts of the United States, as well as those of the States generally, have in common with the English courts and with the ancient legislation of Parliament, considered naturalization, not as creating a new nationality substituted for that of origin, but as one superadded to it, leaving it to the party to reconcile the conflicting obligations of allegiance as best he might. Chancellor Kent, in his Commentaries, said: "From an historical view of the principal discussions in the federal courts, the better opinion would seem to be that a citizen cannot renounce his allegiance to the United States without the permission of government, to be declared by law, and that as there is no existing legisla tive regulation in the case, the rule of the English common law remains unaltered."

He added: "The naturalization laws of the United States are, however, inconsistent with this general doctrine, for they require the alien who is to be naturalized to abjure his former allegiance without requiring any evidence that his native sovereign has released him." (Kent's Commentaries, vol. II, p. 49.)

So late as 1863, in a case in the Court of Appeals of New York, the judge who pronounced the decision declared that he could not concur in the opinion expressed by the Court of Appeals of Kentucky, and by Secretary

Cass, that a citizen has a right to renounce his allegiance at pleasure. (Ludlam v. Ludlam, New York Reports, vol. XXVI (Smith, vol. XIII), p. 356.)

In order to meet the embarrassment arising from a conflict of allegiance, in cases of inheritance of property, the doctrine of double allegiance has been resorted to by the English and American courts. "By the law as established in Great Britain, as well as in this country," said an eminent New York judge, "there is of necessity, in many cases, a double allegiance. Thus, where the citizens of one country are naturalized in the other, and where issue are born, in the one, of parents who are citizens of the other country." (Sandford's Chancery Reports, vol. I, p. 583, Lynch v. Clarke.)

The same views are expressed in the case in the Court of Appeals of Ludlam v. Ludlam, already cited, where it is said, quoting an English authority: "As to the anomaly and inconsistency of Americans being citizens of the United States, while there, and being British subjects born when here, this is not a novelty, nor is it peculiar to Americans. It may happen to any British subject, and is allowable in our law, which recognizes the double character of being, as was before shown, ad fidem utriusque regis." (Chalmer's Colonial Opinions, p. 702-3.)

As to the double allegiance of married women"In every country, except where the English law prevails," said the Lord Chief Justice of England, in 1869, "the nationality of a woman on marriage merges in

that of the husband and she acquires his; whereas, by the law of England, though since the act of 7th and 8th Victoria, c. 66 (1844), an alien woman marrying a British subject becomes naturalized, an Englishwoman marrying an alien still remains a British subject. The law of America is the same. An American woman married to a foreigner retains her American nationality." (Cockburn's Nationality, p. 24.*)

It may be added that the act of Congress of 1855, like the English act of 7th and 8th Victoria, provides that a woman, who might be naturalized under existing laws, who is married to a citizen, shall be deemed a citizen. (United States Statutes at Large, vol. X, p. 604.†)

In 1840, Mr. Wheaton, minister at Berlin, declined to interfere in behalf of a Prussian naturalized in the United States, to be exempted from military service. He said, "Had you remained in the United States or visited any other country except Prussia, on your lawful business, you would have been protected by the American authorities, both 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

* But see opinion of Attorney-General Stanbery, p. 10, supra.

+ This act of Congress was preceded by a law of the State of New York, passed in 1845, which provided that "any woman, being an alien, who has heretofore, or who may hereafter, marry a citizen of the United States shall be entitled to dower in the real estate of her husband in this State." (General Statutes, vol. XI, p. 301.)

domicile and national character revert (so long as you remain in the Prussian dominions), and you are bound, in all respects, to obey the laws exactly as if you had never emigrated." The doctrine thus enunciated was, I have reason to know, the rule of all the instructions from the department of State, from the commencement of the government to the one of Secretary Cass, referred to in the decision of the Court of Appeals. (See Lawrence's Wheaton, ed. 1863, p. 924.)

Secretary Cass, in his instruction of July 8, 1859, to Mr. Wright, no longer left it optional with an individual to be a citizen of one or other of two countries according to circumstances, or to recognize a double allegiance.

"The moment a foreigner becomes naturalized," said he, "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."

This instruction-the principle of which was maintained by Mr. Seward during the eight years that he presided over the Department of State-met the popular sentiment; and, in accordance with it, the doctrine of expatriation was emphatically proclaimed in the act