laration of Independence, according to our rule, and at the treaty of peace, according to the English. Difficulties, however, have occurred where rights have accrued between these dates. But if the right of election be admitted at all, it must be determined by what took place during the Revolution, and between the Declaration of Independence and the treaty of peace.

It is a doctrine of the English law, that naturalborn subjects owe an allegiance which is intrinsic and perpetual, and which cannot be diverted by any act of their own. But it has been a question frequently and gravely debated whether this doctrine of perpetual allegiance applies in its full extent to the United States. The best writers on public law* have treated this subject rather loosely, but seem generally to favour the right of the citizen to emigrate and abandon his native country, unless there be some positive restraint by law, or he is, at the time, in possession of some public trust, or his country be in distress, or at war, and in need of his services. The principle declared in some of our state constitutions, that the citizens have a natural and inherent right to emigrate, goes far towards a renunciation of the doctrine of the English law, as repugnant to the natural liberty of mankind-provided emigration is intended in those cases to be used as synonymous with expatriation. But the allegiance of our citizens is due, not merely nor principally to the local government of the state in which they reside, but primarily and chiefly to the United States, which government alone affords them national protection, and imparts to them their national character; and the doctrine of final and absolute expatriation, though

* Grotius, b. ii., ch. v. Puffend., b. viii., ch. xi. Vattel, b. i.. ch. xix.

frequently discussed in our courts, remains yet to be settled, and requires to be defined with precision, and subjected to certain established limitations, before it can be admitted into our jurisprudence, or laid down broadly as a wise and salutary rule of national policy.

It is not, however, applied by the English courts to the American ante-nati; as is manifest from a case decided some years since in the Court of the King's Bench,* in which the treaty of peace was considered as a release from their allegiance of all British subjects who remained in this country. The British doctrine, therefore, is that the American ante-nati, by remaining in this country after the peace, lost their character as British subjects; and our doctrine is, that by withdrawing from this country they lost, or, perhaps, more properly speaking, they never acquired the character of American citizens.

All persons born out of the jurisdiction of the United States are termed aliens. There are, however, some exceptions to this rule derived from the ancient English law; as in the case of the children of public ministers born abroad, for their parents owed not even a local allegiance to the foreign power. So, also, in every case, the children born abroad of English parents were considered as natives of England if the father went and continued abroad in the character of an Englishman. By the existing law of the United States relative to naturalization, it is declared that the children of persons who were or had been citizens of the United States at the time of passing the act, should, though born out of the United States, be considered as citizens; but that the right of citizenship should not descend to persons whose fathers had never resided within the United States. This provision not being prospective in its operation, the ben

* 2 Barn. and resw., 779.

efit of it narrows rapidly by lapse of time, and the period will soon arrive when there will be no statutory regulation in favour of children born abroad of American parents; and, unless one be made in season, they will be driven to resort for aid to the dormant and doubtful principles of the common law.

Aliens coming to this country with the intention of making it their permanent residence, have many inducements to become citizens. They are incapable, until naturalized, of holding a stable interest in land in many of the states; or of holding any civil office; or of voting at elections; or of taking any active share in the administration of the Federal or State Governments. A convenient and easy mode (perhaps too easy and convenient) has been provided by Congress for removing the disabilities of alienage; and the terms on which every alien, being a free white person, can obtain the qualifications and privileges of a natural-born citizen, are prescribed in the several acts of Congress on the subject.* The right of aliens to the privileges of naturalization are, by these laws, submitted to the decision of any court of record within the United States; and a person duly naturalized (which he may be after a residence of five years) becomes entitled to all the privileges and immunities of a natural-born citizen, except that a residence of seven years is requisite to enable him to hold a seat in the House of Representatives, of nine years to hold a seat in the Senate, and that he remains always ineligible to the offices of President of the United States and governor in several of the states. The policy of these laws have been strongly doubted by some of our wisest and best statesmen and native politicians;

* Laws of U. S., 1802, ch. xviii.; 1813, ch. clxxxiv.; 1816, ch. xxxii.

and every year's experience tends amply to confirm those doubts. For a short period, during the admin. istration of the elder Adams, the term of residence prescribed by law to entitle an alien to naturalization was fourteen years. But the passing of that law was one of the most powerful causes of the expulsion of Mr. Adams and the Federal party from the administration of the General Government; and however some of his successors may have regretted its repeal, they have been too well convinced of the difficulty of recalling a popular concession to attempt its re-enactment. There are two improvements, however, that seem equally practicable and desirable, and would go far to remedy the existing evils of the system: the one is, to render, by an amendment of the Constitution, the naturalized citizen incapable of holding any office of trust or profit; the second, to vest, by an amendment of the statutes, the jurisdiction in cases of naturalization exclusively in the Federal Courts.

VI. The power of Congress" to establish uniform laws on the subject of bankruptcies" is intimately connected with the regulation of commerce; and there are peculiar reasons why the National Government should be intrusted with this power, arising from the importance of preserving uniformity and equality of rights among the citizens of all the states, and of maintaining commerce, credit, and intercourse with foreign nations. It has been found necessary, in governments which authorize personal arrests and mprisonment for debt, to interpose and provide relief for the debtor in cases of inevitable misfortune; and this has been particularly the case in regard to insolvent merchants, who are frequently tempted, if not obliged, by the habits, pursuits, and enterprising nature of trade, to give and receive credit, and en

counter extraordinary hazards; and, besides relieving the debtor, bankrupt and insolvent laws are intended to secure the application of his effects to the payment of his debts. Bankruptcy, in the English law, has by long and settled usage received an appropriate meaning; and has been considered applicable to unfortunate or fraudulent traders, who do certain acts affording evidence of their inability to pay their debts, or of their intention to avoid it. But the line of partition between bankrupt and insolvent laws is not so distinctly marked as to enable laymen or lawmen to determine with positive precision what belongs exclusively to the one or to the other; and it is the more difficult to discriminate between them, because bankrupt laws may, and frequently do, contain regulations which are generally found in insolvent laws; and in insolvent laws, some that are common in a bankrupt law. And although bankrupt laws are generally and properly confined to the trading classes, who are most exposed to pecuniary vicissitudes, yet, as misfortune and poverty may also overtake those who pursue other occupations, the latter ought not to be excluded from the humane protection of the state legislatures. Nor, indeed, should the former, or their creditors, be left without the means of relief, in case Congress does not in its discretion think proper to exercise the power vested in them in relation to bankruptcy. This power of Congress has, accordingly, been held not to exclude the right of the states to legislate on the same subject, except where the power has been already executed by a subsisting law of Congress with which the state law would conflict.*

Whenever, indeed, the terms in which a power is granted by the Constitution, or the nature and char* 4 Wheat., 122. 12 Wheat., 213.