from making arrangements with the King's enemies, when such arrangements would constitute crimes against the country to which they owed allegiance. Wills, J., in his judgment also pointed out that if the contention put forward by the prisoner were upheld, then a whole army might desert to the enemy on condition of being naturalised, and thus escape any liability for the penalties of treason.

By the common law of England, allegiance, with its attendant obligations, could not be divested by any act on the part of the individual himself; a rule embodied in the maxim nemo potest exuere patriam. So, in the case of Æneas Macdonald (18 How, St. Tr. 858), it was held that a person originally born in allegiance to the Crown was liable to the penalties of treason for being found in arms against his native country; notwithstanding that he had spent all his earlier life in France, and his riper years in profitable employment in that country, and had also held a commission from its King; this conclusion being based on the ground that it was not in the power of a natural-born subject of Great Britain to shake off his allegiance or to transfer it to a foreign prince, nor in the power of any foreign prince, by naturalising or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the Crown. This principle is, however, now governed by the Nationality Act, 1914, which enables natural-born subjects to discard their allegiance and its attendant obligations, either by being duly naturalised in another country, or in certain cases merely by a declaration of alienage. In The King v. Lynch, however, it was held that, in view of the express reservation contained in the Act of 1870, it could not be extended to cover acts of treason committed prior to the completion of naturalisation; and, further, that it was obviously not intended to sanction the naturalisation of a British subject by an enemy State in time of war.

THE CASE OF LUCIEN ALIBERT.

[1852; U.S. Documents, 1859-60, ii. 176.]

Case.] LUCIEN ALIBERT, a French natural-born subject, went to the United States of America when about eighteen years of age, and before he had rendered the military service prescribed by French law. He was duly naturalised in the United States, but subsequently returned to France, where he was arrested as an insoumis; a person, that is, who has failed to join his standard when called upon. He pleaded his naturalisation in America, but was convicted, on the ground that in such a case an insoumis

was

still remains liable to the penalty for evading military service. Subsequently, however, the sentence passed on him remitted, on the ground that more than three years had elapsed between the time when he was naturalised and the date of his return to France; the offence in such a case being purged by prescription.

The case of Lucien Alibert serves to illustrate one of the incidents of nationality which still attaches in most European countries; in virtue of which emigration or expatriation, even though otherwise allowed, is nevertheless limited by the obligation of military service. Any violation of this commonly renders the offender liable to imprisonment if he returns to his own country, or to fine or forfeiture of any property that may accrue to him; and this even though, as in France, the national character may be lost by naturalisation elsewhere. By the law of Germany, every German subject is liable to military service, which cannot be performed by deputy. The right to emigrate is limited by this obligation; and by the Penal Code any one emigrating without permission, in order to avoid military service, is liable to fine and imprisonment, and subject to military service in the event of his return; whilst this liability, if incurred before emigration, will not be purged by naturalisation elsewhere.

GENERAL NOTES.-Loss of National Character-Expatriation.—The methods by which nationality may be lost differ in different systems. But in general they may be said to comprise: (1) loss by naturalisation elsewhere, or by disclaimer in cases of conflict, or by marriage with an alien in the case of females (g); (2) loss by express deprivation or release; (3) loss by abandonment; and (4), in the case of communities, loss by transfer to some other State on cession or conquest. And these methods, or such of them as are recognised in any particular system, commonly apply to the national character both as acquired by birth or by naturalisation.

Resumption of National Character-Repatriation.-Where a national by birth has lost his original national character by naturalisation or abandonment, provision is sometimes made, under the law of particular States, for repatriation, or for a resumption of that character, by methods less formal or cumbrous than those involved in ordinary naturalisation. Thus, in France, a Frenchman who has lost the national character may recover it, on returning to France, by administrative decree; and the effect of this may be extended to his wife and children (h). In the case of Great Britain, it is provided by the Naturalisation Act, 1870, that where a natural-born British subject has been naturalised in another State he may, on returning to the United Kingdom, and complying with the ordinary naturalisation

(g) Supra, p. 193.

(h) Code Civil, liv. i. tit. i. c. ii. part 18.

conditions, obtain a certificate of readmission to British nationality (i). So a woman who was a natural-born subject, but became an alien in consequence of marriage, may on becoming a widow be similarly readmitted to British nationality (k). And in each of these cases the effect of readmission will extend to any children resident with the parent, during infancy, in the United Kingdom (1).

As

Is there a Right of Expatriation?-Expatriation denotes an abandonment, or in some cases a deprivation, of a former national character, with its attendant rights and obligations. This is in practice commonly followed by the assumption of a new national character and a new allegiance in its place. As regards the attitude of States towards the naturalisation of their own subjects by other countries—some States, as we have seen, regarded allegiance as inde feasible; although this doctrine is now generally discarded. But many States still attach conditions to the abandonment of the national character, as that the consent of the State shall be obtained, or another character duly acquired; although others recognise such an abandonment, in certain events, without further inquiry. All States, however, appear to regard the expatriation as being subject to a continuing liability for obligations incurred before it took place; whilst States which impose an obligation of military service on their nationals either make the act of expatriation contingent on the due performance of this, or subject any one in default to penalties in the event of his return, or to forfeiture of any interests which he may have or acquire within the territory. regards the attitude of States in the matter of granting naturalisation to the subjects of other countries-many States, as we have seen, afford great facilities to foreigners in the matter of naturalisation; whilst some even affect to impose it by virtue of domicile alone (m). Under these circumstances, various questions of an international character are likely to arise (1) Is the naturalising State under any obligation either to recognise restrictions imposed by the State of origin on the expatriation of its nationals; or itself to impose reasonable restrictions on the naturalisation of the nationals of other States in its territory? (2) If a State naturalises a foreigner, in derogation of the law of the State of origin, is it entitled to extend to him its protection, as against the latter? (3) How far, in the circumstances last suggested, are other States entitled or bound to recognise the new national character, whether as a source of privilege on the part of the individual or as a ground of protection on the part of the naturalising State? On these points international usage is far from settled. The earlier tendency was to recognise the permanence of the original tie, until relaxed with the consent of the State of origin. And even now it is contended by some writers that the recognition of an absolute right of expatriation would be at once anarchical in principle and inconvenient in practice"; and that it would be well if the right of every State to prescribe the conditions under which its nationals may discard their

(i) S. 10; but as to the difficulties of this section, see Piggott, Nationality, i. 160.

(k) S. 10 (2). As to the United Siates, see supra, p. 192 n (r).

(1) S. 10 (4). On the subject generally, see Piggott, Nationality, i. 159 et seq.

(m) Supra, p. 193.

nationality were admitted, and if no acquisition of foreign nationality were recognised unless these conditions had been complied with; leaving it to the good sense of States to do away with such rules as are either vexatious or unnecessary for the safeguarding of the national welfare (n). On the other hand, the United States of America, which was the State most largely concerned in this question, after some prior changes of attitude, finally declared, by Act of Congress passed in 1868, that the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness," and that effect should be given to this view as against other States (o). And this view is not only supported by a great body of theoretical opinion, but is likely to be strengthened as time proceeds by that increasing disregard of national attachments which springs in part from economic needs and in part from modern facilities of communication. In practice, however, the difficulties that arise from the unsettled state of international law on this subject have been in some measure surmounted by treaties made between particular States; and it is not unlikely that this cause of difficulty will be ultimately settled by general international agreement. Meanwhile, and in the present state of international usage, it can scarcely be said that there is any general or unrestricted right of expatriation. Most States, even whilst conceding to their nationals a right of being naturalised elsewhere, yet concede this only subject to certain restrictions and conditions; many States also still restrict the application of their naturalisation laws or limit their effect, in deference to what are deemed to be the inherent rights of the State of origin; whilst even such States as the United States of America, which assert to the full a right of expatriation, are forced to concede that naturalisation without the consent of the State of origin still leaves the persons so naturalised subject to a continuing liability for non-extraditable offences committed prior to emigration. A review of existing conditions leads, then, to the following conclusions: (1) A State in framing or administering its naturalisation laws is, in strictness, entitled to act without reference to the nationality laws of other States; although comity requires that it should not frame or administer them in such a way as to encourage the avoidance of reasonable obligations" due to other States by their respective nationals. (2) The competence of a State in naturalising the nationals of other States within its own territory cannot, of course, be questioned so long as they remain therein; whilst if they have been duly naturalised under the local law, this would probably also be recognised externally by all States other than the State of origin, as for the purpose of extradition (p). (3) But if the foreign naturalisation took place in derogation of the law of the State of origin, then the latter will, in strictness, be entitled to enforce its laws against the persons of its former nationals if they return, or against their property

(n) Hall, 240.

(0) See Rev. Stat. ss. 1999-2001; and on the subject generally, Scott, 375; Kent, Com. ii. 43.

(p) Whilst, conversely, such a claim on the part of the State of origin

would not be entertained. But in either case this would only apply as regards States that recognise personal jurisdiction as a ground for extradition; see p. 251, infra.

within its territory if they do not. (4) This right is, however, now often limited by treaty to obligations incurred before emigration; and an incipient usage to that effect appears to be springing up irrespective of treaty. (5) In any case, moreover, if the foreign naturalisation involved either a breach of its laws or a violation of comity, the State of origin may, at its option, forbid its former nationals access to its territory or expel them if they enter (q).

Practice with respect to Expatriation: (i) Great Britain.-With respect to her own subjects, Great Britain has, as we have seen, by the Nationality Act, 1914, s. 13, so far relaxed the earlier rule of indefeasible allegiance (r) as to allow natural-born subjects to become naturalised in foreign States, when in a foreign State, and not under any disability, by obtaining a certificate of naturalisation or other voluntary and formal act. Subject to these conditions, a British subject duly naturalised in a foreign State will be discharged from the consequences of his British nationality, save as mentioned below. Any person, moreover, who is a British subject by reason of having been born within the British dominions, but who by the law of some foreign State is also regarded as a subject of that State, may, if of full age, and not under any disability, discard his British nationality by a declaration of alien age (s). And by section 15 a similar privilege may be also bestowed on naturalised subjects who may desire to resume their former nationality, in cases where a convention to that effect subsists between Great Britain and the State to which they previously belonged. But by section 16 the effect of such expatriation is not in any of these cases to relieve any person from liability as regards acts done before its occurrence.

(ii) The United States of America.-In spite of much conflict of opinion, it would seem that the earlier law on the subject of expatriation in the United States followed the common law of England (t). But, so far as relates to the abandonment of the American character, it is now provided by an Act of Congress of 1907 (C. 2534 s. 2), that an American citizen shall be deemed to have expatriated himself when he has been duly naturalised in a foreign country, or when he has taken an oath of allegiance to any foreign State. In the case of naturalised citizens, any such citizen shall be presumed to have lost the American character by two years' residence in the foreign State from which he came, or by five years' residence in any other foreign State; unless such presumption is rebutted by satisfactory evidence furnished to a diplomatic or consular officer of the United States; and even where there has been no such naturalisation, but only emigration, as where a citizen has removed himself and his property to a foreign country, without intention to return, it seems that this would be recognised as an abandonment of the American character, so far as relates to any claim to protection on the part of the Government (u). But by the same statute no American citizen is allowed to expatriate

(q) Hall, 239.

(r) Supra, p. 197.

(s) S. 14

(t) Williams' Case (Wharton, St. Tr. p. 652; Scott, pp. 372 and 374 n);

and Shanks v. Dupont (3 Pet. 242).

(u) Dicey, Conflict of Laws, American Notes, p. 203 et seq.; Wharton, Dig. ii. § 176.