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restricts, impairs or questions the right of expatriation is hereby declared inconsistent with the fundamental principles of this government." i
The United States government has actively sought the establishment of treaties with other countries, in which the absolute right of expatriation is unqualifiedly recognized; and such great success has attended these efforts, that expatriation may now be asserted to be a recognized international right, which no government can deny.?
$ 58. Naturalization. In order that one may expatri
. ate himself, he must, by naturalization, become the citizen of another State. International law does not recognize the right to become a cosmopolitan. But because expatriation is recognized as a right indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness, and which cannot be abridged or denied to any one, it does not follow that one has a natural and absolute right to become the citizen of any State which he should select. A State has as absolute a right to determine whom it shall make citizens by naturalization, as the individuals have to determine of what State they will be citizens. Citizenship by birth within the country does not depend upon the will of society. By a sort of inheritance the natural-born citizen acquires his right of citizenship. But when a foreigner applies for naturalization, his acquisition of a new citizenship depends upon the agreement of the two contracting parties.
The State, therefore, has the unqualified right to deny citizenship to any alien who may apply therefor, and the grounds of the objection cannot be questioned. The alien has no political rights in the State, and he cannot attack the motive of the State in rejecting him.
1 Act of July 27, 1868, 15 Stat. at Large, 223, 224.
? The United States have entered into such treaties with almost all the countries of Europe.
• § 59. Prohibition of emigration.
- Political economy teaches us that national disaster may ensue from an excessive depopulation of the country. When the population of a country is so small that its resources can not be developed, it is an evil which emigration in any large degree would render imminent; and the temptation would, under such circumstances, be great to prohibit and restrain the emigration to other lands, while the impulse would increase in proportion to the growth of the evil of depopulation. Has the State the right to prohibit emigration, and prevent it by the institution of the necessary police surveillance ? It cannot be questioned that the State may deny the right of emigration to one who owes some immediate service to the State, as for example in the case of war when one has been drafted for the army, or where one under the laws of the country is bound to perform some immediate military service. But it would seem, with this exception, that the natural and unrestricted right of emigration would be recognized as a necessary consequence of the recognition of the right of expatriation. If expatriation is indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness, the right of emigration must be more essential; for expatriation necessarily involves emigration, although emigration may take place without expatriation. But this right of prohibition was once generally claimed and exercised and Russia still exercises the right.?
$ 60. Compulsory emigration. — General want and suf
fering may be occasioned by over-population. Indeed, according to the Malthusian theory, excessive population is ihe great and chief cause of poverty. From the standpoint 01 public welfare, it would seem well for the State to determine how many and who, should remain domiciled in the country, in order that the population may be regulated and kept within the limits of possible well-being, and trans-port the excess of the population to foreign uninhabited lands, or to other parts of the same country, which are more sparsely settled. But from the standpoint of the in-dividual and of his rights, this power of control assumes a different aspect. If government is established for the benefit of the individual, and society is but a congregation of individuals for their mutual benefit; once the individual is recognized as a part of the body politic, he has as much right to retain his residence in that country as his neighbor; and there is no legal power in the State to compel him to migrate, in order that those who remain may have more breathing space. Let those emigrate who feel the need of
1 The compulsory military service for four of the best years of a man's life has been the chief moving cause of emigration of the Germans.
2 Phillemore International Law, 348, 349.
Another cause of evil, which prompt the employment of the remedy of compulsory emigration, would be an ineradicable antagonism serious enough to cause or to threaten social disorder and turmoil. Can the government make a forced colonization of one or the other of the antagonistic races ? This is a more stubborn evil than that which arises from excessive population ; for want, especially when the government offers material assistance, will drive a large enough number out of the country to keep down the evil. The only modern case of forcible emigration, known to history, is that of the Acadians. Nova Scotia was originally a French colony, and when it was conquered by the Britisb, a large noncombatant population of French remained, but refused to take the oath of allegiance. The French in the neighboring colonies kept up communication with these French inbabitants of Nova Scotia and, upon the promise to recapture the province, incited them to a passive resistance of the British authority. The presence of such a large hostile population certainly tended to make the British hold upon Nova Scotia very insecure, and the English finally compelled these French people to migrate. While the circumstances tend to miti
gate the gravity of this outrage upon the rights of the individual, the act has been universally condemned. The State has no right to compel its citizens to emigrate for any cause, except as a punishment for crime. It may persuade and offer assistance, but it can not employ force in effecting emigration, whatever may be the character of the evil, which threatens society, and which prompts a compulsory emigration of a part of its population.
But it does not follow from this position, that the State has not the right to compel the emigration of residents of the country, who are not citizens. The obligation of the State to resident aliens is only temporary, consists chiefly in a guaranty of the protection of its laws, as long as the residence continues, and does not deprive the State of the power to terminate the residence by their forcible removal. They can be expelled, whenever their continued residence for any reason becomes obnoxious or harmful to the citizen or to the State.
Although the aborigines of a country may not, under the constitutional law of the State, be considered citizens,” they are likewise not alien residents and cannot be expelled from the country or forcibly removed from place to place, except in violation of individual liberty. But the treatment offered by the United States government to the Indians would indicate that they have reached a different conclusion. The forcible removal of the Indians from place to place, in violation of the treaties previously made with them, although there is a pretence that the treaties have become forfeited on account of their wrongful acts, differs in character but little from the expulsion of the Acadians, for whose sufferings the world felt a tender sympathy.
1 While the above was being written, the world was startled by the expulsion from France of the Orleans and Bonaparte princes, who are in the line of inheritance of the lost crown. These princes were not charged with any offense against the existing government of France, or against France. They were monarchists, and, it is true, they refused to abjure their claims to the throne of France. But, beyond the formation of marital alliances with the reigning families of Europe, they were not charged with any actions hostile or menacing to the present government. The ineradicable antagonism between monarchy and republicanism may possibly furnish justification for these expulsions; but one who has thoroughly assimilated the doctrine of personal liberty can hardly escape the conclusion that they were at least questionable exercises of police power.
? This is the rule of law in this country in respect to the legal status of the Indian. As long as he continues his connection with his tribe, and consequently occupies towards the United States a more or less foreign relation, it would be unwise as well as illogical to invest him with the rights of citizenship. Goodell o. Jackson, 20 Johns. 693, 710; McKay v. Campbell, 2 Sawyer, 118. But it is claimed, with much show of reason for it, that as soon as he abandons the tribal relation, and subjects himself to the jurisdiction of our government, he becomes as much a citizen of the United States as any other native. See Story on Constitution, $ 1933.
§ 61. Prohibition of immigration. Since the State owes no legal duty to a foreigner, and the foreigner has no legal right to a residence in a country of which he is not a citizen, a government may restrain and even absolutely probibit immigration, if that should be the policy of the State. The policy of each State will vary with its needs. In this country, the need of immigration has been so great that we offer the greatest possible inducements to immigrants to settle in our midst. So general and unrestricted has immigration been in the past, that a large class of our people have denied the right to refuse ingress to any foreigner, unless he is a criminal. As a sentiment, in conformity with the universal brotherhood of man, this position may be justified ; but, as a living legal principle, it cannot be sustained. The government of a country must protect its own people at all hazards. Races are too dissimilar to bring into harmonious relations with each other under one government, and the presence in the same country of antagonistic races always engenders social and economical disturbances. If they are already citizens of the same country, as, for example, the negroes and the whites of the Southern States,