found at length in the Senate Executive Documents, 1st session 36th Congress, vol. 2, 1859-60.

It resulted generally in the German governments claiming the right as against the naturalized American, but practically waiving its exercise in particular instances. At the end of 1865 Count Bismarck made a proposal to the American government to recognize the absolute denationalization and immunity of all persons who had emigrated before the age of 17, or who had been absent from Prussia five years. (American Diplomatic Correspondence, 1866.) It seems astonishing that Mr. Seward should have declined so favorable a compromise. This question of military conscription, though one of great and increasing consequence to the military powers of the continent, is one with which, happily, we have little concern. The correspondence is, however, interesting as raising a discussion of the principles of expatriation with which we are occupied.

The important point to be noted is that, subject to conditions which the several states have thought fit to impose with reference to the protection of their own interests, all the European governments recognize a regulated right of expatriation.

I now proceed to examine the state of this question in America. If the argument of tu quoque were ever good for anything, which it is not, it would hold to the greatest extent against the United States. We may have a bad doctrine on this subject, but they are in that worse situation, of which it is said, “misera est servitus ubi jus incertum;" for on this subject America can be said to have no ascertained doctrine at all, whether legal or political. I cannot pretend, within the limits of your columns, to enter into a full critical discussion of the conflict of American authorities on this head.

Those who care to enter more minutely into the matter will find it very fully treated in Kent's Commentaries, volume 2, section 25; in a long note in the appendix to Lawrence's edition of Wheaton, and in a note to Mr. Dana's recent and most excellent edition of the same works, and also in Mr. Caleb Cushing's elaborate opinion (Opinions of Attorneys General, volume 8) on this subject, to which I shall at some future time refer at greater length. This paper, indeed, exhausts the subject, and has a special importance from the fact that in America the Attorney General is a member of the cabinet. For the present I must confine myself to a summary of the results.

Various attempts have been made to obtain from the Supreme Court of the United States a recognition of the right of expatriation in American citizens. These attempts have always failed. The American courts, not unlike our own, are astute to escape from the decision of questions of principle not necessarily involved in the case before them. The cases in which the plea was raised were generally those where the act of expatriation was, in fact, a part of the offense brought under the jurisdiction of the court, as in the case of citizens who had accepted a foreign naturalization for the purpose of violating the law of the United States. Of course, in such cases the plea of expatriation was summarily rejected. But the court, though carefully avoiding a distinct denial of the right of expatriation in all cases, have always declined to assert or to define such a right. As in the cases I quoted in my former letter, the courts have constantly indicated that it belonged to the legislature to prescribe the conditions of such a right, for which it was felt that the provisions of the common law, which it was their business to administer, had made no provision. The cases are fully reviewed by Kent, and his conclusion is thus stated:

"The better opinion would seem to be that a citizen cannot renounce his allegiance to the United States without the permission of the government, to be declared by law; and that, as there is no existing legislative regulation on the case, the rule of the English common law remains unaltered."

It is very plain, then, that before the Americans can criticise or complain of the defects of the laws of other nations they must first set to work to show what they consider to be right and politic as against themselves by a system of legislative regulations which their judges have for 70 years been constantly demanding, but which their statesmen have hitherto failed to supply.

Thus much may suffice upon the subject of the legal doctrine of expatriation in the United States. It is necessary now to consider a far more important subject, viz, their diplomatic doctrine. I need hardly say that the diplomatic doctrine is conversant with a totally different aspect of the question from that which is involved in its legal bearings. The law has regard to the duties and the rights of the citizens in respect of the state of which he is a member. Diplomacy has to do with the duties and the rights of the citizen towards a foreign state in which he may happen to be resident or concerned. To speak in general terms, the law has to do with that which his own state can claim against a subject. Diplomacy has to do with that which the government of the subject may claim in his favor against a foreign state. Most governments have thought it necessary to observe some measure and proportion between the domestic doctrine they themselves enforce and that which they seek to enforce against others. It would be strange if a country which does not permit expatriation to its own citizens insisted on enforcing such a right in regard of the citizens of other countries who had accepted its naturalization. Yet this, or something like it, is, in fact, what the American govern

ment claims to do. Though there is no law of the United States by which a citizen of theirs could divest himself of his allegiance to his own country, they do in fact claim to assert against other states a right which they have not yet admitted in their own. While their courts declare that there is no law by which any American citizen who should have accepted the citizenship of a foreign state can divest himself of his allegiance to his own country, the American foreign office demands on the part of its naturalized citizens, as against other states, that their primitive allegiance should be treated as absolutely dissolved. This is a sort of game of "heads I win, tails you lose," in which no government can be expected to acquiesce. Nor, indeed, has the American diplomatic doctrine been consistent with itself at different periods. From the time of Mr. Wheaton, in 1840, down to the year 1859, the American government distinctly disavowed any right to interpose in favor of naturalized citizens who had returned to the country of their origin. The language of Mr. Wheaton on this point you have already cited. It is sufficiently precise. Mr. Wheaton thus writes to a naturalized American citizen who sought his protection:

"Having returned to the country of your birth, your native domicile and national character revert, and you are bound in all respects to obey the laws exactly as if you had never emigrated."

The same view of the reverter of the national character upon return to the country of birth was consistently adopted by successive American Secretaries of State-by Mr. Marcy, Mr. Webster, and Mr. Everett, (vide Senate Documents, already cited.) As far as I can make out, it was Secretary Cass who, for the first time, in 1859, set up on behalf of naturalized citizens of the United States an absolute right of expatriation as against the state of their birth. In a dispatch to the minister at Berlin he writes:

"The doctrine of perpetual allegiance is a relic of barbarism repudiated by the United States ever since the origin of our government. [Query: When and where?] 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 do, than if he had been born in the United States. Should he return to his native country, he returns an American citizen, and in no other character," &c.

On this passage General Halleck, in his very well compiled Digest of International Law, published in 1861, makes the following remarks:

"This position is certainly somewhat in advance of that assumed in the previous diplomatic correspondence of our government, and by some is thought to infringe upon the universally conceded principle that sovereign states have the right of municipal legislation and jurisdiction over all persons within their own territory; and that while we have a perfect right within our jurisdiction to disregard the dogma of universal allegiance incorporated in the laws of other states, they have an equally incontestable right within their jurisdiction to assume that our municipal regulations on the subject of naturalization do not cancel their statutes enjoining the charges and obligations, military or otherwise, which spring from the theory of allegiance embodied in their laws. If this view of Mr. Cass be correct, the right of expatriation is not only general, but indefeasible."

Mr. Seward seems to have followed the lead of Secretary Cass in this matter. I need hardly say that the governments of Europe have declined to acquiesce in this volte-face of the American foreign office. It may be (as I think it is) expedient that the whole of this question should be reviewed in a candid and friendly spirit, and that the principles on which a transfer of citizenship is for the future to be permitted and recognized should be regulated by international negotiation; but it is not tolerable that a government should, in the phrase of Lord Castlereagh, "turn its back upon itself," as the American government have done, and assert as indubitable rights claims which their most eminent jurists and statesmen have for a long series of years admitted to be unfounded. We may be willing to concede from policy more than can be demanded of us as of right, but we shall take as the basis of negotiation the law as laid down by Mr. Wheaton, and not that improvised for the occasion by Secretary Cass.

Before the American government can properly urge any demands upon the subject against foreign governments, they have, as we have seen, a good deal to do at home. They have first to settle for themselves a law of expatriation for their own subjects, which at present they do not possess. When they have done this they will, at all events, not be open to the retort, "Physician, heal thyself." But there is a yet more material point which they have to settle, and that is the question of their own citizenship. The whole of the American law of citizenship is in a state of inextricable confusion. The Attorney General Cushing, in the opinion I have before cited, says:

"It may happen that by the law of a given state a person shall be a citizen thereof and still not a citizen of the United States. Citizenship, whether acquired by birth or naturalization, is not a thing specifically defined in its elements either by the Constitution or by the laws of the Union."

Now, I venture to think that, before extraordinary immunities are claimed for

American "citizens," foreign states should be placed in possession of that which the American Attorney General admits himself unable to supply, viz, a definition of what constitutes American citizenship.

I have thus endeavored, as far as space permits, to examine the existing condition of this question in England, upon the continent of Europe, and in America. I think the facts of the case will lead us to the conclusion that an amendment of the existing rules is highly desirable, but that of all countries there is none which is bound to address itself to this difficult discussion with more modesty and moderation than the United States. I am bound to say that the most eminent persons among them have always taken this view, and I trust they will continue to do so, in spite of intemperate speeches and electioneering intrigues.

This letter has extended to too great a length to admit of my now attempting further to discuss the principles on which a new system might be framed. There are, however, some general conclusions which may be safely drawn. First, the right of expatriation generally should be admitted; secondly, that right should be limited by certain conditions; thirdly, it belongs as much to the native state to prescribe the conditions of severance as it does to the state of adoption to prescribe the conditions of naturalization; fourthly, it would be highly desirable that the conditions on which one state confers and the other severs the tie of citizenship should be regulated by special convention, as in the case of extradition. This would be best accomplished by a general agreement; but if this be impracticable, then it should be made the subject of separate treaties.

SIR: Your dispatch of the 24th of December, No. 1503, has been received. You were quite right in saying to Lord Stanley that the negotiation in regard to the so-called Alabama claims is now considered by this government to have been closed without a prospect of its being reopened. With reference to the conversation which occurred between yourself and his lordship on the subject of a recent despatch of Mr. Ford, in which Mr. Ford gave an account of a conversation which he had with me, it would perhaps be sufficient to say that Mr. Ford submitted no report of that conversation, nor did he inform me what he proposed to write to Lord Stanley. I may add that either Mr. Ford or Lord Stanley, or both, have misapprehended the full scope of what is reported by Mr. Ford as a suggestion on my part.

Both of these gentlemen seem to have understood me as referring only to mutual pecuniary war claims of citizens and subjects of the two countries, which have lately been extensively discussed. Lord Stanley seems to have resolved that the so-called Alabama claims shall be treated so exclusively as a pecuniary commercial claim as to insist on altogether excluding the proceedings of her Majesty's government in regard to the war from consideration in the arbitration which he proposed. On the other hand, I have been singularly unfortunate in my correspondence if I have not given it to be clearly understood that a violation of neutrality by the Queen's proclamation and kindred proceedings of the British government is regarded as a national wrong and injury to the United States; and that the lowest form of satisfaction for that national injury that the United States could accept would be found in an indemnity, without reservation or compromise, by the British government to those citizens of the United States who had suffered individual injury and damages by the vessels of war unlawfully built, equipped, manned, fitted out, or entertained and protected in the British ports and harbors in consequence of a failure of the British government to preserve its neutrality.

Besides this question there exist also other open questions. There is a divided occupation of the island of San Juan, in the Pacific, which ought to be settled soon; there is the assumption of Great Britain to hold naturalized citizens of the United States, if they were born in Great Britain, amenable for offenses under laws and before tribunals which are not and cannot be applied to native-born citizens of the United States.

A grave question arose during the recent rebellion upon the treaty arrangements between the two countries for extradition of criminals. There is a deferred question between the two countries in regard to the fisheries in the north Atlantic waters.

Any one of these questions may at any moment become a subject of exciting controversy. The naturalization question is already working in that way.

It was in view of all these existing sources of controversy that the thought occurred to me that her Majesty's government, if desirous to lay a broad foundation for friendly and satisfactory relations, might possibly think it expedient to suggest a conference, in which all the matters referred to might be considered together, and só a comprehensive settlement might be attempted without exciting the sensibilities which are understood to have caused that government to insist upon a limited arbitration in the case of the Alabama claims.

These explanations may be given informally, if you think proper, to Lord Stanley, but with the distinct understanding that the United States are not to be assumed as proposing to open a new negotiation in regard to the questions referred to, or any of them.

I am, sir, your obedient servant,

WILLIAM H. SEWARD.

CHARLES FRANCIS ADAMS, Esq., &c., &c., &c.

Mr. Seward to Mr. Adam's.

No. 2119.]

DEPARTMENT OF STATE,

Washington, January 13, 1868.

SIR: Your dispatch of the 24th of December, No. 1502, has been received and laid before the President.

I thank you for the very interesting account you have given of the condition of panic which recent events, connected nearly or remotely with the disturbance in Ireland, have produced throughout the British realm. The ferocious and felonious character of the proceedings which attended the rescue at Manchester, and the attempt to destroy the prison at Clerkenwell by explosion, are clearly perceived in the United States, and have had some influence in checking the course of public sentiment in regard to the great political question in which large masses of Irishmen at home and abroad are arrayed against the government of Great Britain. Notwithstanding this modifying influence, however, it is plainly to be observed that the sympathies of the people of the United States are every day more profoundly moved and more generally moved in behalf of Ireland. I have continually endeavored to impress upon the British government the importance of eliminating from the so-called Fenian excitement, as far as possible, certain legitimate causes of irritation and jealousy between the people of the United States and the people of Great Britain. I have had less success than I hoped, and less, I am sure, than

would have been conducive to the interests of both countries. The pretense of the judge on the trial of John Warren, not disavowed by her Majesty's government, that although a duly naturalized citizen of the United States, he still remains a subject of the Queen of Great Britain, amenable in that country to laws which are invalid there against nativeborn citizens of the United States, has awakened a general feeling of resentment and deeply wounded our pride of sovereignty. The people are appealing to this government throughout the whole country, from Portland to San Francisco and from St. Paul to Pensacola. This sense of injustice works harmoniously together with a sore remembrance that the British government in the late rebellion favored the overthrow of the United States by illegitimate processes, even at the cost of perpetuation of human slavery.

Perhaps after this popular protest shall have found earnest expression in both houses of Congress, British statesmen may perceive that a restoration of cordial and friendly relations and sympathies between the two countries is impossible while the causes of irritation to which I have referred are allowed to endure.

You are not charged to communicate this dispatch; but you need affect no special reserve in regard to the facts herein considered.

I am, sir, your obedient servant,

WILLIAM H. SEWARD.

CHARLES FRANCIS ADAMS, Esq., &c., &c., &c.

Mr. Adams to Mr. Seward.

No. 1521.]

LEGATION OF THE UNITED STATES,
London, January 15, 1868.

SIR: I have to acknowledge the reception of dispatch from the department numbered 2116, of the 28th ultimo, on the subject of allegiance and expatriation.

Much discussion is going on in the London newspapers upon the subject. Concurring with you in the opinion that this is not a favorable time to negotiate, I yet feel very sure that the only opening to any prospect of a future peaceful settlement of the question with this country must be found in the gradual indoctrination of the British mind to the expediency of surrendering the ancient theory.

The panic occasioned by the Clerkenwell affair is gradually abating, although the enrollment of special constables is going on very extensively over a large part of the kingdom.

I have the honor to be, sir, your obedient servant,

Hon. WILLIAM H. SEWARD,

CHARLES FRANCIS ADAMS.

Secretary of State, Washington, D. C.

[From the London Daily News, January 14, 1868.]

COURT OF QUEEN'S BENCH, January 13.

Sittings in Banco-(Before the Lord Chief Justice and Justices Blackburn and Lush.)

THE QUEEN 18. BURKE—THE LATE CASE OF ALLEGED TREASON-FELONY.

Mr. Coleridge, Q. C., with whom was Mr. W. P. Macdonald, applied, under the 19th and 20th Vic., chap. 16, sec. 3, for a rule nisi to remove the trial of Burke for treasonfelony from Warwick to the central criminal court.