ernment shrank from carrying out their threat, and these "natural-born British subjects" were afterwards included in the cartels of exchange. These are instances in which the attempts to enforce the doctrince of indissoluble allegiance has broken down. It would be easy to cite many others, and to imagine an infinitude more. Indeed, when we remember that the English law regards not only every person born in any part of the British empire, but their children and grandchildren, as British subjects, owing allegiance to the British Crown, and when we consider how considerable a frac tion of the whole population of the United States occupy this situation, the results of the doctrine would be positively ludicrous if they were not imminently dangerous.

I need hardly say that in practice no English government acts upon the legal theory. In the late war in the United States, many persons sought to escape from the conscription on the plea that they were British subjects; but I believe that the English government never attempted to interpose its offices in the case of persons who had clearly exhibited their intention to adopt the nationality of the United States. If the legal theory were adhered to, it would be a curious subject of inquiry how many persons in the American armies on both sides of the late war would be liable to indictment in this country as natural-born British subjects for having taken service with a foreign belligerent.

The evil of the present state of things is that the only principle of law to which the English government can appeal is one on which it cannot in practice take its stand. To treat as British subjects all whom the law calls British subjects is simply impossible. But short of this, whom is it so to treat or not to treat? That is a question of a most embarrassing and dangerous kind, which it has to solve at its own discretion, without the guidance of any fixed principles or settled practice. In the year 1795, one of the judges of the Supreme Court of the United States, in the great case of Talbot vs. Jansen, (3 Dallas's Reports, p. 154,) thus expressed himself:

"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, it would obviate doubts and render the subject notorious and easy of apprehension, and furnish the rule of civil conduct on a very interesting point."

It is a singular circumstance that though 70 years have elapsed since this judgment was pronounced, America is as much as ever, and almost as much as England, without a practical doctrine on this important point. The real situation of this question in America, and the conflict which appears to exist between the judicial and executive doctrine on the subject, are too important to be dealt with now, and I must reserve the fuller discussion of them for another occasion.

But, then, it will be said, to what purpose attack the existing doctrine, unless you are prepared to indicate the principles on which it should be reformed? I entirely admit the justice of the challenge. Nor would I have stated the objections which may be urged against the present state of things, unless I thought I saw my way clearly to a better system. No one will dissent from the observation of Chancellor Kent, "that the doctrine of final and absolute expatriation requires to be defined with precision, and to be subjected to certain established limitations, before it can be admitted into our jurisprudence as a safe and practical principle, or laid down broadly as a wise and salutary rule of national policy." This is not the place or the occasion to discuss in detail those requisite definitions and limitations. But it will not be difficult to point out the general principles by means of which the whole question might be placed on a solid and practical basis. I would found the doctrine of British citizenship, not on the feudal dogma, "Nemo potest exuere patriam," but on the enlightened maxim of the Roman law, "Ne quis in civitate maneat invitus." For why should we confer the privileges and impose the obligations of citizenship on those who do not desire the one or deserve the other? Is it not more consistent with the dignity of our empire as well as with the safety of our policy that we should regard, and cause others to regard, our citizenship as a privilege to be sought rather than a burden to be evaded? Nor have we far to seek for an example which may serve, if not as a precise model, at least as a most instructive lesson. In the Code Napoleon, that masterly system drawn from the fountains of the Roman law, and accommodated with rare sagacity to the conditions of modern civilization, we shall find reduced to practice a theory of citizenship exactly the reverse, and, I venture to think, one far to be preferred to our own.

In the first place, the French doctrine avoids the preposterous consequences of making citizenship dependent on the mere local accident of birth. A stranger born of foreign parents in France is not manufactured by the act of the law into an involuntary French citizen. He enjoys the capacity of citizenship if he elects on his majority to become a Frenchman, and testifies his intention to make his home in France. Thus two things must concur in the case of a foreigner born in France-a deliberate option and a permanent domicile.

The difference is not less marked when we consider the rules according to which French citizenship is forfeited. The following articles of the Code Civil sufficiently explain themselves:

“ART. 17. La qualité de Français se perdra, 1o, par la naturalisation acquise en pays étranger; 2o, par l'acceptation non-autorisée de fonctions publiques conférées par un gouvernement étranger; 3o, enfin, par tout établissement fait en pays étranger sans esprit de retour.

"ART. 18. Le Français qui aura perdu sa qualité de Français pourra toujours la recouvrir en rentrant en France, avec autorisation, et en déclarant qu'il veut s'y fixer et qu'il renonce à toute distinction contraire à la loi Français.

"ART. 21. Le Français qui sans autorisation prendrait du service chez l'étranger ou s'affilierait à une corporation militaire étrangère perdra sa qualité de Français."

Here

The principle on which these rules are founded is simple, and, I think, sound. So far from attempting to enforce an involuntary citizenship, they declare that all acts which indicate a deliberate intention to withdraw from the state operate on the part of the subject in forfeiture of his privileges as a citizen. France disclaims all part in a citizen who withdraws himself from her political communion in favor of a foreign state. It is not the subject who casts off France, but France who casts off the subject. again it will be observed that deliberate domicile, and not accidental birth, is made the governing test of citizenship. France confers the great privilege of her citizenship upon those who dwell within her borders, if not in body at least in spirit; she does not seek to detain the reluctant fugitive in involuntary fetters. She does not desire to number among her sons men who, in a sense very different from that of Goldsmith"Still to their country turn with ceaseless pain,

And drag at each remove a lengthening chain."

This letter is already so long that I cannot venture to enlarge on details. I believe the time is arrived when this question must be dealt with in a large and enlightened spirit. I am sure that the whole matter must be reconsidered, and that when reconsidered it will be found that the whole system must be reconstructed. That reconstruction might be founded upon a few very simple principles, such as the following:

I. With respect to the acquisition of citizenship:

1. British citizenship should belong, as of course, only to persons born of British parents domiciled in the British dominions.

2. The children born to foreigners in the British dominions should, as in France, have the capacity to take up their citizenship.

3. As to descendants born abroad of English parents who are domiciled abroad, an election should be given to become citizens, to be testified by certain prescribed formalities.

II. With respect to expatriation:

1. Every British subject should be allowed to withdraw himself from the state by some formal act disclaiming his citizenship.

2. Certain acts should be defined as constituting in themselves a forfeiture of friendship, whether so disclaimed or not.

It would be necessary, of course, to make provision against a fraudulent expatriation made for the express purpose of injuring the native state, and also for the status of the expatriated citizen in case he returned to his former home. It must be quite obvious to all reflecting persons that, unless some great mischief is to happen, a definite understanding must be come to between the governments of England and America as to the political status of that vast population of English origin and of American domicile which is peopling the further shores of the Atlantic. The doctrine of the English and the American common law is wholly inadequate to solve the question. The present solution of things is irrational and intolerable. While the British law asserts the doctrine of indissoluble allegiance, the American Constitution already demands of the emigrant in the naturalization oath an abjuration of all foreign allegiance. The doctrine of a permanent double allegiance is legal fiction and a political absurdity. It is fraught with every sort of embarrassment to the governments and every species of injustice to subjects. To attempt to enforce against America the doctrine of the Norman lawyers would be a greater blunder than any committed by Lord North.

Do not let us be deterred from dealing with this matter by any notion that it would embarrass the action of the government with respect to the unlawful enterprises of the Anglo-American Fenians. The effect would be exactly the reverse. The more clearly such men are recognized as American citizens the more directly responsible the American government would be for their conduct abroad; and I need not say that for their conduct in this country foreigners are as directly amenable to our laws as native subjects. As to the question of the jury de mediatate linguæ, the practice is of doubtful expediency; it is the creation of a statute, and might be abolished by the same authority which created it.

Lord Stanley has shown himself not unwilling to approach great questions in a spirit of courageous conciliation. Depend upon it no English minister ever had a greater opportunity of removing an inexhaustible source of misunderstanding and of danger than is offered in the settlement of this question. We have an immense advantage in the discussion of this matter with America in the fact that not only these people but their law has a common origin with our own. On this subject they have little room to

reproach us with a doctrine which so nearly approximates to theirs. I believe that a mixed commission of English and American lawyers and statesmen would without difficulty arrive at a common basis which would place this paramount subject on a satisfactory footing. If modern civilization means anything at all, it surely means that nations should be enabled in free and friendly debate to adjust the spirit of their laws to the necessities of modern society and the accommodation of conflicting claims. In laying down by mutual agreements the principles of an international code of citizenship, the justice of which both parties would recognize, we should give to the government of both countries a firm and definite basis for their policy, to the subjects of both nations a new guarantee of their liberties, and to the world a fresh security for peace. I am, sir, your obedient servant,

TEMPLE, December 7.

HISTORICUS.

[Editorial.]

A short paragraph in the summary of President Johnson's message is the text of a suggestive letter on personal allegiance, which appears in another part of our impression. According to the telegraphic report, the President "urges Congress to declare that the naturalization of a foreigner as a citizen of the United States absolves the recipient from allegiance to the sovereign of his native country." We are unwilling to believe that Mr. Johnson has recommended Congress to assume a function which is manifestly beyond its competence, or that Congress will commit itself to a declaration in this naked form. It is within the power of any national legislature to make laws for the naturalization of foreigners. The legislature of the United States is authorized to do so by an express clause of the federal Constitution, in pursuance of which it already requires aliens claiming American citizenship to declare on oath that such is their intention, and to renounce forever all foreign allegiance. So far the action of Congress has been perfectly constitutional, and consistent with the axioms of public law. It is for the United States courts, and for them alone, to decide what effect such a renunciation may have within United States territory. Their jurisdiction, however, can extend no further. It is for the courts of England, France, or Prussia, as the case may be, and for them alone, to decide whether an English, French, or Prussian subject can so divest himself of his nationality by the process of naturalization in America as to place him in the position of a foreigner on his return to his native country. This rule, founded alike on reason and necessity, is so well understood, and has been so emphatically asserted by American jurists, that it will hardly be questioned by Mr. Johnson or Congress. The object of the President being, as we presume, to revise those doctrines common to the jurisprudence of both countries which have hitherto governed the rights and liabilities of naturalized citizens, we may expect that our own government will be invited to join with that of the United States in establishing a new basis for legislation on the subject.

The logical consequences of these ancient doctrines are well illustrated by our correspondent Historicus. The maxims of common law-nemo potest exure patriam-jus originis nemo muture potest-qui abjurat regnum amittit regnum, sed non regem-may be traced back to an essentially feudal conception of personal allegiance. As interpreted and extended by statutes, they go the length of including among "natural-born subjects of the Crown, to all intents and purposes whatsoever," not only all persons born in the United Kingdom, but even the children and grandchildren of such persons, though themselves born abroad. Assuming that allegiance "for all purposes" must involve all the obligations of allegiance, it would doubtless follow that a Frenchman whose grandfather might have been accidentally born in England would be liable to a prosecution for treason if taken in arms against England. That a natural-born subject cannot bear arms against his parent state in the event of war has, indeed, been positively laid down in a famous case, and what appears to be a monstrous, though inevitable, result of statutes passed in the last century, was actually affirmed by Lord Bacon in the reign of James I. It is, however, much easier to reduce ad absurdum this prineiple of indefeasible allegiance than to show that "the principle of universal law is exactly the reverse." Even municipal law must always be construed with strict reference to the subject of decision, and if there be such a thing as a proposition of universal law, it can only be stated with extreme qualification. Cicero may disclaim, on behalf of the Roman commonwealth, any right to retain the unwilling allegiance of subjects, and passages may be quoted to the same effect from modern publicists. We cannot, however, conclude that a Roman citizen who should have cast off the civitas and taken service under some enemy of Rome, would have been held exempt by Roman judges from the penalties of treason; nor are we aware that any great publicist has maintained (to borrow Wheaton's language) that "a natural-born subject of one country throw off his primitive allegiance so as to cease to be responsible for criminal acts against

his natire country." It so happens that when Mr. Wheaton himself was resident at Berlin, he refused the protection of his government to a Prussian naturalized in America, who had been required to perform military duty in his native country. "Having returned," he said, "to the country of your birth, your native domicile and national character revert, (so long as you remain in the Prussian domains,) and you are bound in all respects to obey the laws exactly as if you had never emigrated." It may be said, of course, that he was bound to act according to American law, which here coincides with our own; but the fact of this coincidence having been preserved is in itself an evidence of some value. A nation created and recruited by emigration would hardly have acquiesced so long and so patiently in the English theory of allegiance, had an alternative theory of higher authority and far more favorable to American interests been known to the great expositors of her law. The United States protested, indeed, and with good reason, against the vexatious right of visitation and search claimed by this country, for there their territorial sovereignty was impugned. But it remains to be shown that on that or any other occasion they have insisted, in diplomatic negotiation, on the absolute defeasibility of citizenship.

The important question, however, is one of policy rather than of law, and we freely admit that, on grounds of policy, not to say of common sense, the argument for revision is irresistible. There are certainly hundreds of thousands, and probably millions, of citizens of the United States whom our law regards as British subjects to all intents and purposes whatsoever. No statesman can justify such an anomaly, which, it must be remembered, has two aspects. If all these Irish emigrants owe full allegiance to her Majesty, it may also be doubted, at least, whether they are not entitled to our protection against conscription; yet it would have been utterly impossible for our minister at Washington to grant them such protection during the late American war. In short, our present theory is quite untenable when any practicable strain comes to be put upon it, and, as Historicus justly contends, its maintenance may at any moment become the. source of very serious embarrassment. We see, then, no good reason why the British government should decline any friendly overtures that may be made by the United States with a view to its amendment. Whether we can adopt the principle ne quis in civitate maneat invitus without some reservation is a matter that will require to be considered. The act of expatriation should at all events be deliberate and well attested, and our correspondent himself contemplates "provision against a fraudulent expatriation made for the express purpose of injuring the native state." For offenses committed within the United Kingdom, foreigners are already amenable to British jurisdiction by virtue of what lawyers call a temporary allegiance. They can be prosecuted, therefore, under the treason-felony act for crimes committed in Ireland, without reference to their nationality, and this is, after all, the chief safeguard against Fenian designs. For security against raids organized in America we must rely mainly on the good faith of the United States government, and this makes it the more expedient that we should meet them on this point in a spirit of conciliation.

Mr. Adams to Mr. Seward.

No. 1495.]

LEGATION OF THE UNITED STATES,

London, December 14, 1867.

SIR: In accordance with the directions contained in your dispatch No. 2105, I have written to Mr. West to apply for an official report of Captain Warren's trial. By a letter received this morning from him, I learn that he has already received and forwarded an official copy of the indictment.

The solicitor of Colonel Nagle has applied to know whether the government of the United States will assume the expense of his defense on his trial at Sligo. He proposes to bring down what he calls a special bar from Dublin, which will naturally create very heavy charges. As there would be time to hear from the department, and I have great reluctance to assume the responsibility of large outlay of money for the government, I wrote to him that I would obtain your instructions. The assizes will probably be held in February.

I transmit herewith a copy of the London Times of this morning, containing a report of an attempt, made by certain parties supposed to be connected with the Fenian organization, to blow up the Clerkenwell

prison wall, for the purpose of effecting the liberation of Colonels Burke and Casey. The former is the person about whom I wrote in my dispatch No. 1490, of the 7th instant. The object was not attained, but the incidental consequences to innocent persons have been fearful.

It is much to be apprehended that these repeated attempts may rouse a state of feeling in the English population which will not be satisfied with the slower processes of justice, and may in its turn wreak its vengence upon wholly innocent parties. The government, fearful of such consequences in the great towns, has already prohibited all further demonstrations of the kind that took place in London and Dublin on the execution of the Manchester prisoners. It is tolerably clear that no such manifestation could be repeated here without danger to the public peace. The Orange feeling in the north of Ireland is also becoming very much exasperated.

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 Times, December 14, 1867.]

A crime of unexampled atrocity has been committed in the midst of London. We are not a sanguinary people, and acts of wholesale murder are rare in our annals. Till yesterday we could not have believed that there lived among us men capable of planning such a deed as has just spread destruction over a whole neighborhood. The infernal machines of 1800 and 1835 have been rivaled by the diabolical device of the Fenian conspirators. In order, as it is supposed, to rescue two of their accomplices who had been reinanded by a magistrate and had been placed in the house of detention at Clerkenwell, it has entered into the minds of the rebels who are planning the overthrow of the Queen's government in Ireland to destroy the wall of the prison at the moment the prisoners were taking exercise, and to carry them off through the gap which the explosion should create. So far as regards the effect of the powder, the experiment has been horribly successful. A vast breach has been made in the outer wall; not less than 60 feet have been blown away, and the precincts of the prison are incumbered with ruins. Never was the tremendous power of gunpowder more clearly shown. The gate of Ghuznee was blown open by a bag of powder hung to it by a nail; a barrel wheeled on a truck and simply placed on the pavement beside the prison wall has sufficed to crush and shatter everything that was exposed to the force of its explosion. All that is known at present is that yesterday, at about a quarter before four in the afternoon, some persons were seen to wheel a barrel into the thoroughfare called Corporation lane, one side of which for some distance is formed by the prison wall. According to one account a squib was stuck into the barrel, one of the men lighted it, and then the conspirators ran quickly up a court which leads out of the lane. In another moment the explosion followed. The wall heaved and shook, and then fell inwards with a single crash. Had Burke or Casey been taking exercise in the yard at the time, he might have had little cause to thank those who used so tremendous an instrument of rescue. But at this time the prisoners were within the prison itself, and as regards them the exploit of the conspirators has been without effect for good or evil. Not so with the unhappy inhabitants of the neighboring houses. Corporation lane is a commonplace street of small tenements, occupied by working people. The houses are neither new nor substantial; but if it were otherwise they could hardly have resisted the violence of the shock. As it is, the devastation has been beyond belief, The whole row opposite to the gap in the prison wall has been wrecked. The house immediately opposite was so completely crushed that there was no alternative but to pull down what remained of the tottering walls, and it is now only a heap of rubbish. On each side, the houses stand windowless and doorless, the cracked brickwork everywhere threatening the bystanders with a speedy collapse. A long way up the neighboring lanes and courts the glass is broken in the windows, the chimneys have been shaken down, the ceilings have been destroyed. In one case a wall seems to have been not only cracked, but forced out of the perpendicular by the violence of the shock. The perpetrators of this outrage did not miscalculate the potency of the weapon they used, This new gunpowder treason shows what power for mischief is in the hands of any determined ruffians whose fierce passions and seared consciences make them regardless of human life.

If the miscreants who have done this deed are capable of remorse, they may well be