United States, and by the acts of congress, which have been since passed. The indefeasible quality conceived to be incident to it has not yet been decided on by the Supreme Court of the United States, but in the Circuit Courts, Ellsworth chief justice declared, that a member of the community, (32) cannot dissolve the social compact so as to free himself from our laws, without the consent or the default of the community. And in another case, Washington J. declared that no citizen can throw off his allegiance to his country without some law authorizing him to do so. (33) But in those countries where the doctrine of allegiance, in the sense we affix to it, does not exist at all-or where it is a part of their law, that it may be thrown off in certain cases, our positions do not apply.

It may still further be urged that the renunciation of all foreign allegiance inserted in the oath of naturalization, implies a power to renounce what is due to us as well as what is due to a foreign state.

If this were found in the constitution, it might occasion some difficulty, but it is the language of congress, on whom it does not rest, to give a binding exposition of the constitution. It was not required in the first act prescribing the mode of obtaining naturalization, and it was probably introduced from political jealousy, and by way of caution to the new citizen. The necessity of retaining it, is not very perceptible. If a naturalized citizen should commit treason against us, by

(32) United States v. Williams, 4 Hall's Law Journal, 401. (33) United States v. Gillies, 1 Peters, 120.-See 2 Cranch, 126. During the late war President Madison directed one Clark, a citizen of the United States who had removed to Canada, and was afterwards taken within our lines and sentenced to death by a court martial as a spy-to be delivered to the civil authority, thereby disclaiming military power over him as an alien enemy.

uniting with an hostile country from which he had emigrated, he would not be more amenable to the law, because of his renunciation, nor less so, if it had never taken place, and it would have no effect in the country which he had left, either by way of aggravation or extenuation of any offence for which he might be responsible to them. (34)

The temporary allegiance, which began with his residence among us, is rendered perpetual by his naturalization, and the renunciation is an useless adjunct. (35)

The last objection which occurs to the author is, that independent of the oath of abjuration, the admission of a foreigner to naturalization among us implies that he may withdraw his allegiance from his native country, and that otherwise in case of war, he would be involved in the hardship of being obliged to commit treason against one or the other: but the satisfactory answer always given to this proposition is, that if the individual chooses to entangle himself in a double allegiance, it is his own voluntary act. He may reside among us without being naturalized, he may enjoy much of the protection, and some of the advantages of a citizen, yet retain unimpaired even in sensation, his allegiance to his native country till the moment he chooses to leave us. If he determines completely to unite his character and his fortunes with ours, we receive him under the compact already explained, and his temporary allegiance becomes permanently binding.

(34) Isaac Williams, whose case has been noticed, expressly renounced his allegiance to this country when he was naturalized in France. In the opinion of the chief justice it made no difference.

(35) The legislature of Pennsylvania on the 29th of March, 1783, expunged from the oath the part which required a renunciation of allegiance to the King of Great Britain, declaring that it was wholly useless.

Another point of considerable moment remains to be noticed. Having shown what a citizen, native or naturalized, may not do by way of withdrawing his allegiance, we will now proceed to show in what cases the state may not withdraw its protection.

Every person has a right to remain within a state as long as he pleases, except the alien enemy, the person charged with crimes in any of the other states, or in a foreign state with whom a treaty to that effect exists, and fugitives from service or labour in any of the states. To the two latter descriptions no asylum can by the constitution of the United States be afforded.

The states are considered as a common family, whose harmony would be endangered if they were to protect and detain such fugitives, when demanded in one case, by the executive authority of the state, or pursued on the other by the persons claiming an interest in their service.

In the case of alien enemies, the public good is consulted. The right of sending them away is an incident to the right of carrying on public war. It is not mentioned in the constitution, but it properly appertains to those who are to conduct the war.

Whoever visits or resides among us, comes under the knowledge that he is liable, by the law of nations, to be sent off if war breaks out between his country and ours before he is naturalized. So if there is any treaty in force, by which we are bound to deliver up a fugitive, charged by another nation with the commission of crimes within its territory, every one arriving among us is considered as having knowledge of such compact.

But whatever may be held by certain theoretical writers, there is no foundation for the opinion that we are bound by the general law of nations, without such

compact, to surrender a person charged with a crime in another nation.

The principles by which this conclusion is attained, are as follows. A criminal act, committed within the limits of a nation, is an offence against that nation, and not against any other. It is the duty of a nation to punish offences against itself, but not against others. If the offender escapes, it has no power to pursue him into the territories of another, nor any right to require the other to deliver him up. The nation in which he seeks an asylum, may conscientiously retain and protect him. In legal acceptation he has been received as an innocent man; he holds this character among us, till he forfeits it by the commission of a crime against us, he is then, on conviction, liable to punishment for such crime, but we cannot punish him for a crime committed in another country.

Nature gives to mankind the right of punishing only for their own defence and safety. Hence it follows that he can only be punished by those he has offended.

To deliver the fugitive to the nation which claims in order to punish him, is to assist the punishment, and therefore directly at variance with these principles.(36)

Yet it is not to be inferred that one state has a right to transfer its criminals to another, and that the latter is bound to receive them. It rests with every independent state to open its doors to the admission of foreigners on such terms only as it may think proper.

During our colonial dependency, the mother country

(36) It is proper, however, to observe, that a contrary opinion has been given in the state of New York by a judge of great learning and acuteness, Washburn's case, 4 Johnson, Ch. 106, to which is opposed the later decision of a man of equal character and talent, Chief Justice Tilghman in the case of Edward Short on a habeas corpus, Aug. 20, 1824.

exercised a privilege of transporting certain classes of her convicted offenders to the provinces, and the want of labourers at first induced us to receive them without complaint.

But it was soon discovered to be an alarming evil, and many of the provinces took measures to oppose it. One of the last acts of the congress under the confederation, was to recommend to the several states to pass proper laws for preventing the transportation of convicted malefactors from foreign countries into the United States. Perhaps the power implied by the 9th section of the 2d article, might be usefully adapted to the regulation of this sort of political commerce, in which, at present, we cannot be gainers, for we have no constitutional power to export or banish our own offenders.

The power to pass uniform laws on the subject of bankruptcies, is contained in the same paragraph. It is held, however, from its nature, not to be completely exclusive. Until it is exercised, the states are not forbidden to pass bankrupt laws, except so far as they impair the obligation of contracts. When congress enacts a general bankrupt law, the right of the states is suspended, though not extinguished. From the expiration or repeal of the bankrupt law, the ability of the state to exercise the power, qualified as above mentioned, revives. (37) And even while the act of congress is in force, the power of the state continues over such cases as the law does not embrace. Hence the power to pass insolvent laws remains with the state. Bankrupt laws are generally, perhaps properly, considered as confined to the mercantile class, who are more exposed to pecuniary vicissitudes than other oc

(37) 4 Wheaton, 122.