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Matt. 6:24, Bible, NKJV
“No one can serve two masters; for either he will hate the one and love the other, or else he will be loyal to the one and despise the other. You cannot serve God and mammon.
“No servant can serve two masters; for either he will hate the one and love the other, or else he will be loyal to the one and despise the other. You cannot serve God and mammon.”
33 "Again you have heart that it was said to those of old, 'You shall not swear falsely, but shall perform your oaths to the Lord.'
34 "But I say to you, do not swear at all: neither by heaven, for it is God's throne; 35 nor by the earth, for it is His footstool; nor by Jerusalem, for it is the city of the great King.
36 "Nor shall you swear by your head, because you cannot make one hair white or black.
37 "But let your 'Yes' be 'Yes,' and your 'No,' 'No.' For whatever is more than these is from the evil one.
U.S. v. Macintosh, 283 U.S. 605 (1931):
Much has been said of the
paramount duty to the state, a duty to be recognized, it is urged, even
though it conflicts with convictions of duty to God. Undoubtedly that
duty to the state exists within the domain of power, for government may
enforce obedience to laws regardless of scruples. When one's belief
collides with the power of the state, the latter is supreme within its
sphere and submission or punishment follows. But, in the forum of
conscience, duty to a moral power higher than the state has always been
maintained. The reservation of that supreme obligation, as a matter of
principle, would unquestionably be made by many of our conscientious and
law-abiding citizens. The essence of religion is belief in a relation to
God involving duties superior to those
[283 U.S. 605, 634] arising from any human
relation. As was stated by Mr. Justice Field, in Davis v. Beason,
133 U.S. 333, 342 , 10 S. Ct. 299, 300: 'The term 'religion' has
reference to one's views of his relations to his Creator, and to the
obligations they impose of reverence for his being and character, and of
obedience to his will.' One cannot speak of religious liberty, with
proper appreciation of its essential and historic significance, without
assuming the existence of a belief in supreme allegiance to the will of
God. Professor Macintosh, when pressed by the inquiries put to him,
stated what is axiomatic in religious doctrine. And, putting aside
dogmas with their particular conceptions of deity, freedom of conscience
itself implies respect for an innate conviction of paramount duty. The
battle for religious liberty has been fought and won with respect to
religious beliefs and practices, which are not in conflict with good
order, upon the very ground of the supremacy of conscience within its
proper field. What that field is, under our system of government,
presents in part a question of constitutional law, and also, in part,
one of legislative policy in avoiding unnecessary clashes with the
dictates of conscience. There is abundant room for enforcing the
requisite authority of law as it is enacted and requires obedience, and
for maintaining the conception of the supremacy of law as essential to
orderly government, without demanding that either citizens or applicants
for citizenship shall assume by oath an obligation to regard allegiance
to God as subordinate to allegiance to civil power. The attempt to exact
such a promise, and thus to bind one's conscience by the taking of oaths
or the submission to tests, has been the cause of many deplorable
conflicts. The Congress has sought to avoid such conflicts in this
country by respecting our happy tradition. In no sphere of legislation
has the intention to prevent such clashes been more conspicuous than in
relation to the bearing of arms. It would require strong evidence
[283 U.S. 605, 635]
that the Congress intended a reversal of its policy in
prescribing the general terms of the naturalization oath. I find no such
evidence.
[U.S.
v. Macintosh, 283 U.S. 605 (1931)]
City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157 (U.S.Tex.,1997)
To Madison, then, duties to God were superior to duties to civil authorities-the ultimate loyalty was owed to God above all. Madison did not say that duties to the Creator are precedent only to those laws specifically directed at religion, nor did he strive simply to prevent deliberate acts of persecution or discrimination. The idea that civil obligations are subordinate to religious duty is consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law.
*562 Other early leaders expressed similar views regarding religious liberty. Thomas Jefferson, the drafter of Virginia's Bill for Establishing Religious Freedom, wrote in that document that civil government could interfere in religious exercise only “when principles break out into overt acts against peace and good order.” In 1808, he indicated that he considered “ ‘the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.’ ” 11 The Writings of Thomas Jefferson 428-429 (A. Lipscomb ed.1904) (quoted in Office of Legal Policy, U.S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 7 (1986)). Moreover, Jefferson believed that “ ‘[e]very religious society has a right to determine for itself the time of these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it.’ ” Ibid.
George Washington expressly stated that he believed that government should do its utmost to accommodate religious scruples, writing in a letter to a group of Quakers:
“[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit.” Letter from George Washington to the Religious Society Called Quakers (Oct. 1789), in George Washington on Religious Liberty and Mutual Understanding 11 (E. Humphrey ed.1932).
Oliver Ellsworth, a Framer of the First Amendment and later Chief Justice of the United States, expressed the similar view that government could interfere in religious matters only when necessary “to prohibit and punish gross immoralities*563 and impieties; because the open practice of these is of evil example and detriment.” Oliver Ellsworth, Landholder, No. 7 (Dec. 17, 1787), reprinted in 4 Founders' Constitution 640. Isaac Backus, a Baptist minister who was a delegate to the Massachusetts ratifying convention of 1788, declared that “ ‘every person has an unalienable right to act in all religious affairs according to the full persuasion of his own **2185 mind, where others are not injured thereby.’ ” Backus, A Declaration of Rights, of the Inhabitants of the State of Massachusetts-Bay, in Isaac Backus on Church, State, and Calvinism 487 (W. McLoughlin ed.1968).
These are but a few examples of various perspectives regarding the proper relationship between church and government that existed during the time the First Amendment was drafted and ratified. Obviously, since these thinkers approached the issue of religious freedom somewhat differently, see Adams & Emmerich 21-31, it is not possible to distill their thoughts into one tidy formula. Nevertheless, a few general principles may be discerned. Foremost, these early leaders accorded religious exercise a special constitutional status. The right to free exercise was a substantive guarantee of individual liberty, no less important than the right to free speech or the right to just compensation for the taking of property. See P. Kauper, Religion and the Constitution 17 (1964) (“[O]ur whole constitutional history ... supports the conclusion that religious liberty is an independent liberty, that its recognition may either require or permit preferential treatment on religious grounds in some instances ... ”). As Madison put it in the concluding argument of his “Memorial and Remonstrance”:
“ ‘[T]he equal right of every citizen to the free exercise of his Religion according to the dictates of [his] conscience’ is held by the same tenure with all our other rights.... [I]t is equally the gift of nature; ... it cannot be less dear to us; ... it is enumerated with equal solemnity,*564 or rather studied emphasis.” 2 Writings of James Madison, at 190.
Second, all agreed that government interference in religious practice was not to be lightly countenanced. Adams & Emmerich 31. Finally, all shared the conviction that “ ‘true religion and good morals are the only solid foundation of public liberty and happiness.’ ” Curry, The First Freedoms, at 219 (quoting Continental Congress); see Adams & Emmerich 72 (“The Founders ... acknowledged that the republic rested largely on moral principles derived from religion”). To give meaning to these ideas-particularly in a society characterized by religious pluralism and pervasive regulation-there will be times when the Constitution requires government to accommodate the needs of those citizens whose religious practices conflict with generally applicable law.
[City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157 (U.S.Tex.,1997)]
Writings of James Madison pg. 184 (Gaillard Hunt, ed. A. D. 1901)
“This Duty [owed Our Creator] is precedent both in order of time and degree of obligation, to the claims of Civil Society.... [E]very man who becomes a member of any Civil Society, [must] do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance.” Writings of James Madison pg. 184 (Gaillard Hunt, ed. A. D. 1901).
Carlisle v. U.S.,
83 U.S. 147,
1872 WL 15321 (U.S.,1872)
**6 Such being the general effect of pardon and amnesty *154 granted by the President, it only remains to consider whether the proclamation of December 25th, 1868, embraces the claimants who were aliens domiciled in the country, within its provisions. And upon this point we entertain no doubt. The claimants were residents in the United States prior to the commencement of the rebellion. They so allege in their petition; they were, therefore, bound to obey all the laws of the country, not immediately relating to citizenship, during their sojourn in it; and they were equally amenable with citizens for any infraction of those laws. ‘The rights of sovereignty,’ says Wildman, in his Institutes on International Law,FN7 ‘extend to all persons and things not privileged that are within the territory. They extend to all strangers therein, not only to those who are naturalized and to those who are domiciled therein, having taken up their abode with the intention of permanent residence, but also to those whose residence is transitory. All strangers are under the protection of the sovereign while they are within his territories, and owe a temporary allegiance in return for that protection.’
FN7 Wildman, p. 40.By allegiance is meant the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign in return for the protection he receives. It may be an absolute and permanent obligation, or it may be a qualified and temporary one. The citizen or subject owes an absolute and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or another sovereign. The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.This obligation of temporary allegiance by an alien resident in a friendly country is everywhere recognized by publicists and statesmen. In the case of Thrasher, a citizen of the United States resident in Cuba, who complained of injuries *155 suffered from the government of that island, Mr. Webster, then Secretary of State, made, in 1851, a report to the President in answer to a resolution of the House of Representatives, in which he said: ‘Every foreigner born residing in a country owes to that country allegiance and obedience to its laws so long as he remains in it, as a duty upon him by the mere fact of his residence, and that temporary protection which he enjoys, and is as much bound to obey its laws as native subjects or citizens. This is the universal understanding in all civilized states, and nowhere a more established doctrine than in this country.’ And again: ‘Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a nativeborn subject might be, unless his case is varied by some treaty stipulation.'FN8
FN8 Webster's Works, vol. vi, p. 526.**7 The same doctrine is stated in Hale's Pleas of the Crown,FN9 East's Crown Law,FN10 and Foster's Discourse upon High Treason,FN11 all of which are treatises of approved merit.FN9 Vol. i, chap. 10.FN10 Vol. i, chap. 2, sec. 4.FN11 Sec. 2, p. 185.Such being the established doctrine, the claimants here were amenable to the laws of the United States prescribing punishment for treason and for giving aid and comfort to the rebellion. They were, as domiciled aliens in the country prior to the rebellion, under the obligation of fidelity and obedience to the government of the United States. They subsequently took their lot with the insurgents, and would be subject like them to punishment under the laws they violated but for the proclamation of the President of December 25th, 1868. That proclamation, in its comprehensive terms, includes them and all others in like situation. It grants ‘unconditionally, and without reservation, to all *156 and to every person who, directly or indirectly, participated in the late insurrection or rebellion, a full pardon and amnesty for the offence of treason against the United States, or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.’The act of Congress of July 27th, 1868,FN12 authorizes any alien to prosecute claims against the United States in the Court of Claims, where the government of which he is a citizen or subject accords to citizens of the United States the right to prosecute claims against such government in its courts. In O'Keefe's caseFN13 it was held that, by the proceeding known as a ‘petition of right,’ the government of Great Britain accords to citizens of the United States the right to prosecute claims against that government in its courts, and therefore that British subjects, if otherwise entitled, may prosecute claims against the United States in the Court of Claims. There is, therefore, no impediment to the recovery by the claimants in this case of the net proceeds of their cotton paid into the treasury.
FN12 15 Stat. at Large, 243.FN13 11 Wallace, 178.The judgment of the Court of Claims must, therefore, be REVERSED, and that court directed to enter judgment in favor of the claimants for the amount of such net proceeds; and it isSO ORDERED.
[Carlisle v. U.S., 83 U.S. 147, 1872 WL 15321 (U.S.,1872)]
Talbot v. Janson, 3 U.S. 133 (1795)
“Yet, it is to be remembered, and that whether in its real origin, or in its artificial state, allegiance, as well as fealty, rests upon lands, and it is due to persons. Not so, with respect to Citizenship, which has arisen from the dissolution of the feudal system and is a substitute for allegiance, corresponding with the new order of things. Allegiance and citizenship, differ, indeed, in almost every characteristic. Citizenship is the effect of compact; allegiance is the offspring of power and necessity. Citizenship is a political tie; allegiance is a territorial tenure. Citizenship is the charter of equality; allegiance is a badge of inferiority. Citizenship is constitutional; allegiance is personal. Citizenship is freedom; allegiance is servitude. Citizenship is communicable; allegiance is repulsive. Citizenship may be relinquished; allegiance is perpetual. With such essential differences, the doctrine of allegiance is inapplicable to a system of citizenship; which it can neither serve to controul, nor to elucidate. And yet, even among the nations, in which the law of allegiance is the most firmly established, the law most pertinaciously enforced, there are striking deviations that demonstrate the invincible power of truth, and the homage, which, under every modification of government, must be paid to the inherent rights of man…..The doctrine is, that allegiance cannot be due to two sovereigns; and taking an oath of allegiance to a new, is the strongest evidence of withdrawing allegiance from a previous, sovereign….”
[Talbot v. Janson, 3 U.S. 133 (1795)]
The Pledge or the Oath?
The Pledge or the Oath?
Congress has passed no law that requires a civilian to do anything with respect to the United States flag or the Pledge of Allegiance. According to the flag law, the requirement for standing and placing one's hand over the heart during the Pledge of Allegiance only applies to one who is a military person not in military dress uniform, that is, a person in the military who is wearing civilian clothes at the time. The flag law has no general application within the States of the Union. Only those who have been sworn into any branch of the United States military are required to follow the flag law. We teach our little children wrong when we demand they stand, place their right hand over their heart and recite the Pledge. If we have true freedom of speech, we also have the freedom to be silent when we so choose. The very Pledge they recite guarantees the right to not stand and not recite any particular set of words. That is what is meant by "Freedom of Speech". If Senator Obama deliberately refused to place his hand over his heart and refused to recite the Pledge of Allegiance as the caption indicates, then the picture shows Senator Obama to be a thinking man. Hooray!!
Please note that the Commander-in-Chief is a civilian and is NOT IN the military. For anyone who has taken the military oath and is still under that oath, they are bound to follow the flag law when the flag is passing by in a parade or when they stand and face the flag when reciting the Pledge. Such a person is required to either salute the flag when in uniform or hold their right hand over their heart when in civilian clothes. Remember, Congress has passed no law that requires a civilian to do anything in relationship to the flag.
Regarding the Pledge itself, We the People do not owe allegiance to the governments that were formed to serve us, but our governments owe allegiance to We the People. Freedom belongs to the People, not the government. Also remember that George Washington, John Adams, Thomas Jefferson, James Madison, James Monroe, and all the other Founding Fathers never recited the Pledge -- not even once, since it was not fashioned until the late 1800's and did not become part of the flag law until WWII. John Quincy Adams, Andrew Jackson, Martin Van Buren, William Harrison, James Polk, Zachary Taylor, Franklin Pierce, and James Buchanan -- all of them as Commander-in-Chief -- never recited the Pledge of Allegiance. Abraham Lincoln, Ulysses Grant, Rutherford B. Hayes, James Garfield, Grover Cleveland, Benjamin Harrison, William McKinley never recited the Pledge of Allegiance and they all served American with distinction, all of them as Commander-in-Chief. All of these great men and many others who served with distinction to make America what it was throughout the 18th and 19th centuries never heard of the Pledge of Allegiance, let alone recited it. The pledge they recited was the Oath of Office to uphold the Constitution for the United States of America, which many of our more recent leaders have trampled on without remorse. Unfortunately, not nearly enough of the public is concerned about the lost liberties from those who trample on our fundamental freedoms. Which would you prefer from your Commander-in-Chief, the oath of office to uphold and defend the Constitution for the United States of America or a Pledge of Allegiance to the federal government? I much prefer the pledge to uphold and defend the Constitution for the United States of America and I hope you understand how silly is the rant in the caption of the following picture.
Several years ago Ray Boltz wrote and recorded a song that expressed his sentiment regarding the Pledge of Allegiance. Here are the words to his song.
I Pledge Allegiance To The Lamb
by Ray Boltz
Chorus
I pledge allegiance to the Lamb
With all my strength, with all I am
I will seek to honor His commands
I pledge allegiance to the Lamb
Stanza #1
I have heard how Christians long ago
Were brought before a tyrant's throne
They were told that he would spare their lives
If they would renounce the name of Christ
But one by one they chose to die
The Son of God they would not deny
Like a great angelic choir sings
I can almost hear their voices ring
Chorus
Stanza #2
Now the years have come and the years have gone
And the cause of Jesus still goes on
Now our time has come to count the cost
To reject this world, to embrace the Cross
And one by one let us live our lives
For the One who died to give us life
Till the trumpet sounds on the final day
Let us proudly stand and boldly say
Chorus
Stanza #3
To the Lamb of God who bore my pain
Who took my place who wore my shame
I will seek to honor His commands
I pledge allegiance to the Lamb
Chorus (repeat)
M'Ilvaine v. Coxe's Lessee, 2 Cranch 280, 1805 WL 1080 (U.S.,1805)
Taking the word emigration then in its most extensive sense, is the right of expatriation, as has been represented, the mere whim of modern, fanciful, theoretical writers?- I say it is as ancient as the society of man.
It is only by establishing the converse of the proposition, the common law idea that the natural born subject of one prince cannot, by swearing allegiance to another, or by any other act, discharge himself from his allegiance to the former, that the principle of emigration can be made a matter of doubt. 1 Tuck. Bl. Part 2d. Appendix, p. 90. I deny that this common law principle is founded in, or consonant to the divine law, the law of nature, the law of nations, or the constitution of the state of New Jersey. The bible is the most venerable book of antiquity; there we find expatriation practiced, approved, and never restrained. The family of Jacob became subjects to the Egyptian monarch. Moses abandoned Egypt, his native land, and David left Saul, his prince.
The law of nature, abstractedly considered, knows neither prince nor subject. From this source, therefore, the common law principle cannot be derived.
Particular nations have prohibited their people from migrating to another country, but the prohibition did not arise from the practice of nations towards each other. At Athens, after a man examined the laws of *325 the republic, if he did not approve of them, he was at liberty to quit the country with his effects. By the constitution of the Roman commonwealth, no citizen could be forced to leave it, or not to leave it, when made a member of another which he preferred. Even under the emperors, as long as any remains of liberty continued, it was a rule that each one might chose the state of which he wished to be a subject or citizen. Where did the Romans get their laws? From the Grecians. Where did the Grecians get their laws? From the eastern nations- the abOrigines of the earth. tHE right of expatriation, therefore, as far as we can trace it, has been recognized in the most remote antiquity. Among modern nations the practice is various; the Muscovites forbid it; in Switzerland it is permitted: some princes consider their subjects as riches-as flocks and herds, and their edicts correspond to these false notions. Vattel b. 1, c. 19, § 225. Consult jurists, Grotius, Puffendorff, Burlamaqui, Vattel, they are of opinion, that every man has a natural right to migrate, unless restrained by laws, and that these cannot restrain the right but under special circumstances, and to a limited degree. The strong and masculine understanding of Mr. Locke revolted at the illiberal ideas of English jurisprudence in this particular; he examined the right claimed to prohibit emigration, and declares that examples of emigration are frequent in history profane and sacred, and that it has been the practice from the beginning of the world to the time he wrote. Wyckefort has a section, the title of which is, the prince may employ foreigners in his embassies, even in their own country. Wyckefort, p. 116, 119. After a narrative in which he shows, that this had been the practice of Europe, he proceeds to consider its propriety, which he infers from the right of expatriation. Mr. Rawle has read as cited, that passage to which Mr. Tilghman did not refer, and omitted to answer what Mr. Tilghman did read.
**28 Lastly the constitution of New Jersey, is founded on sentiments which repel the idea of perpetual allegiance, and imply and include the right of expatriation.
Whatever diversity there may have been in the sentiments*326 of writers, and in the laws and practices of states on the subject of emigration in general, there never has been a doubt in this country, but that when a civil war takes place, each member of the society has a right to choose his side.
The first view we have of New Jersey and Daniel Coxe, is in a state of enmity, the state treating him as a refugee; Daniel Coxe declaring himself a British subject, acting in concert with an invading army.
Trace the circumstances distinctly, and we shall find the right of election between the two governments restored to him, and that he expatriates himself with the consent of, if not propelled thereto by the state of New Jersey.
On the 11th of December 1778, the legislature of New Jersey passed an act whereby they disfranchise all persons who were of the character and had pursued the conduct of Daniel Coxe. At the treaty of peace, his treason was cancelled, forgiven, buried in oblivion, or at least remembered only to prevent restitution of his forfeited estates. The disfranchising act continued in full operation, unrepealed, and unaffected by the restoration of harmony between the two countries. Under these circumstances he had his choice; he might have returned to New Jersey, or to any other state. The principles of the constitution justified him in becoming a British subject, within the rules of expatriation, as stated by the opposite counsel. That he made his choice is proved by unequivocal evidence, that leaves no room for doubt or controversy as to the fact.
Mr. Rawle has himself enumerated eight heads, under which the evidence of his expatriating himself, and becoming a British subject may be classed. 1. Joining the British army in 1777. 2. Voluntary residence with them at Philadelphia and New York. 3. Holding civil offices under the king. 4. Trading as a British merchant. 5. Holding lands as a trustee. 6. Receiving pensions and rewards as a British subject. 7. Describing himself as such. 8. Having never taken an oath of allegiance to the state of New Jersey.
*327 A case was cited (Wilson v. Marryat, 1 Bos. & Pul. 430) to shew that the exercise of trade as a citizen of one country, is compatible with a continuance of allegiance to another. It was the case of John Collet, who was under the supposed tie not only of permanent, but perpetual allegiance from birth. But Daniel Coxe was not born in the allegiance of the state of New Jersey, nor ever voluntarily took upon himself that obligation. The principle of that decision is consonant to British ideas, but in direct hostility with those which led to the American revolution, gave birth to our constitutions, and without which our brightest patriots were rebels.
**29 It is impossible to doubt from what appears on the record, that he is under repeated positive oaths of allegiance to the king of Great Britain. According to the sound reasoning of Wyckefort, these were sufficient to sever the strongest connection between the United States and a citizen, much more such a relation as was subsisting (if any) between the state of New Jersey and Daniel Coxe; involuntary, disclaimed, and inconsistent with the duties imposed upon him by his engagements to another country.
The naturalization law of congress is full proof that in the estimation of the people of the United States, an oath of allegiance to one country is an expatriation from a former; and that whoever becomes a citizen here, ceases ipso facto, to be a subject elsewhere. If this is not the meaning of our law, we encourage the unhappy victims to sacrifice themselves at the shrine of perjury. Characters, such as Mr. Coxe are considered by the same law, as expatriated, as aliens, and being no longer citizens; he having been attainted of treason by the state of Pennsylvania in the year 1778.
By the naturalization act of April 14th, 1802, 6 vol. Laws of United States, p. 74, 80, § 4, attainted loyalists, and such as have been legally convicted of having joined the army of Great Britain during the late war, cannot be naturalized without the consent of the legislature of the state, in which such persons were proscribed. All the courts of the United States, therefore, *328 could not naturalize Daniel Coxe, without the consent of the states of New Jersey and Pennsylvania, in both of which he has been proscribed.
From all these considerations, it is inferred that Daniel Coxe did expatriate himself; that he had a right so to do;-that he has legally exercised that right, and has thereby become a British subject, and is not an American citizen.
Did such expatriation induce the disability of alienage, and is Daniel Coxe thereby incapacitated from taking lands in the United States by descent?
We are charged with inconsistency, that while we endeavor to exclude the liberal sentiments of the common law as applied to antenati, we insist on the rigid rule of the same law, in preventing aliens from holding lands in the United States.
This charge will be effectually repelled by a single passage, from an authority cited by the opposite counsel for a different purpose. 1 Tucker's Bl. part 2d. p. 371. If an alien could acquire a permanent property in lands, he must owe an allegiance, equally permanent with that property, to the king of England, inconsistent perhaps with former allegiance, and productive of many other inconveniences. By the civil law a contract for land by an alien is void. The forfeiture to the prince is peculiar to England, or at least to countries where the feudal system has prevailed. 1 Bl.Com. 371. Cod 1. 11, tit. 55.
**30 Was it from deference to the common law, that the objections urged against the treaty of London were, that it paved the way for British influence, by enabling aliens of that country to hold lands in the United States?
If the natural and primitive allegiance may be put off without the consent or concurrent act of the prince to whom it was first due, expatriation must induce alienage.
Virginia has recognized the right, and considers the *329 person who has exercised it, as no longer a citizen. 1 Tuck. Bl. part 2, p. 360, 361.
If expatriation be a right when legally exercised, it must induce alienage, and the revolution is a case in point, to show that a man is not obliged to continue the subject of that prince under whose dominion he was born; otherwise, contrary to a position contended for by Mr. Rawle, we must admit that America was not independent until the king of Great Britain acknowledged her independence; and that it was the consequence of, and not antecedent to, the treaty of peace.
Expatriation is substantially a putting off or change of allegiance. As to the removal from one country to another, it is a mere immaterial, accidental circumstance. It will be agreed that if it can be done in the country, it can by going out of the country.
Nations may shake off their allegiance, says Mr. Rawle, but individuals may not. Grotius said just the contrary; and surely, as Judge Tucker observes, if all might, any one might, with the same reason.
Granting for a moment that the common law of England is as barbarous as the case of M'Donald (Foster 59) would induce us to suppose, how has it been translated to the United States, to be in active operation, slandering the principles of our revolution. I consider the case of Talbot v. Janson as establishing the proposition that expatriation was a right, the fair exercise of which produced alienage with its respective rights and disabilities.- 3 Dall. 133, 152, 164, 1 L.Ed. 540.
Of Hamilton and Eden I know nothing. Lord Fairfax's case is not in print, but from what fell from his honor Judge Washington, I presume it went upon similar grounds to that of Calvin. I throw into the opposite scale, as at least an equal weight, the decision in the case of the Charming Betsy, where expatriation was expressly recognized, and as operating the extinguishment of the previous character of citizen of the United States. It is in point as to both particulars.
*330 I conceive the general rule, at least so far as it is necessary in the instance of Daniel Coxe, is fully established, and that expatriation is a right, which, when fairly exercised, changes the allegiance; and that it has been so exercised, by which he ceased to be an American citizen, became an alien, and as such incapable of holding lands by purchase, or taking by consent, unless there be an exception out of the rule in his favor, as an antenatus.
**31 The burden of the argument devolves upon our antagonists. Let them show when, and by what means, the exception in favor of the antenatus, derived from the principle of perpetual allegiance by birth, has been adopted among us.
Because, say the counsel for the defendant in error, the constitution of New Jersey adopted the common law, of which this is a part, therefore the rule is imperative on this occasion. What! all the common law of England? that which respects the royal prerogative, the hierarchy, the idea that allegiance is personal to the king from the subject, not duty on the part of the citizen to the state.
The common law of England, say Judge Tucker and Judge Wilson, was only so far adopted in the states, as it was proper and applicable to the situation and the circumstances of the colonies; and was different in different colonies.
The adoption by New Jersey is guardedly expressed. “The common and statute law of England, as have been heretofore practiced in this colony, not repugnant to the rights contained in this charter, shall be in force.”
Two questions arise for the consideration of the opposite counsel. Was the principle for which they contend in previous practice in New Jersey? Is it not repugnant to the privileges contained in that charter?
A double task devolves on our opponents. They must shew that what they ask, was in practice in the *331 colony of New Jersey before the formation of the constitution. This is impossible; the case could not occur; it could not, in the nature of things, be in contemplation of the convention. The expression had reference to the mere detail of municipal law. Here then our antagonists must fail.
Can they succeed better in the other part of the proposition? Is not a claim, founded on the idea of perpetual allegiance by birth, repugnant to the rights and privileges contained in that charter?
They say, on the contrary, that allegiance and protection are reciprocal ties, and claim, as a right and privilege, to refuse the former when the latter is withdrawn.
Three, out of seventeen states, says Mr. Rawle, have declared emigration a right not to be restrained by the legislatures. I say it is the principle of the revolution; it pervades each and every constitution, without which the whole proceeding is crime, rebellion, and treason.
If the common law, introduced through the constitution, fails, what is the next prop by which it is attempted to support a claim in opposition to the language of our revolution?
We are told that the capacity of British subjects to hold lands in the United States is recognized by the treaties of 1783 and 1794, and that surely it was not meant to encourage them to purchase that we might escheat. This part of the argument is introduced by a reference to Judge Tucker for the distinction between aliens by birth and aliens by election. 1 Tuck. Bl. part 2, page 102, s. 2.- I acknowledge that Judge Tucker does state, that, by the treaty of peace, the common-law principle that the antenati of both countries were natural born to both, and as such, capable of holding, or inheriting, seems to be revived.-As far as respects authority, I oppose to Judge Tucker, the Virginia assembly, who expressly declare that all persons not being citizens of the United States are aliens. 1 Tuck. Bl. part 2, page 55. Judge Tucker founds himself, as to the common-law principle, upon Bracton and Calvins case, not adverting to the difference in point of fact, that the British who claim, as in this instance, never were in allegiance to our states.
**32 *332 Further, he does not observe that the whole reasoning is founded upon the false hypothesis that allegiance by birth is perpetual. He acknowledges that by the declaration of independence the colonies became a separate nation from Great Britain; yet, according to the laws of England which we still retained, the natives of both countries, born before the separation, retained all the rights of birth. War makes aliens enemies. They were enemies-then aliens.
With the New Jersey convention I understand the matter differently; and that the law of England ceased until revived; and was revived only as heretofore practiced.
On this mistaken ground it is, as I shall endeavor to shew, that he infers that American natives were capable of inheriting lands in England, and the natives of England of inheriting lands in America.
If this doctrine is founded upon the idea of perpetual allegiance by birth, it must stand or fall with its principal.
Commentators, it is said, often find in Homer, what Homer never thought. It appears to me that the same observation applies to the commentaries we have heard upon the treaties of 1783 and 1794.
Let it be recollected that congress on the 27th of November, 1777, earnestly recommended it to the several states to confiscate and make sale of all the real and personal estate of such of their inhabitants, and other persons, as had forfeited the same.
The legislatures did confiscate the lands of antenati as escheated, and it was never suggested to be a violation of the common-law of the land. In order, however, to vest the property inlands of an alien in the commonwealth, offices of entitling, and of instruction, were necessary in some states.
In some states acts of assembly declared that the estates of the persons proceeded against should be vested and adjudged to be in the actual possession of the commonwealth without any other office or inquisition. In others, real property belonging to British subjects, loyalists, and others, had been only sequestered, not confiscated,*333 and the profits appropriated during the war; the estate to wait the disposal of the legislative provision on the return of peace. In some instances the lands of loyalists and others had not been actually seized and taken into the possession of the states respectively where situated, and therefore the forfeitures and confiscations were not considered as completed. In these several ways real property remained to loyalists and others which was considered as not yet confiscated. This is the key to unlock the secrets of the provision in the treaty.
I contend, therefore, that the 6th article of the treaty of 3d September, 1783, as far as respects property, is confined in its letter, spirit, and meaning, to the preservation of estates owned antecedently to the war, which had not been actually confiscated and seized; and to the consequences of an active part taken during that period.
**33 This construction is perfectly warranted by the case decided in Connecticut, (Kirby's Reports) and by the principles as laid down by that very eminent English lawyer, Woodeson.
The distinction of antenati and postnati, the security of future acquisition, or the operation of general principles arising from political situations not the penal consequences of an active part taken in the war, were not then in contemplation.
Twelve millions of rich aliens allowed to purchase lands in a country owned by two or three millions of people comparatively poor: would it not have been thought madness! I conceive that this clause is precisely co-extensive as to its objects in guarding against injury to the person and to the property. It preserves from injury to their property the same persons who were to be secured in their personal liberty.
In the first place, this comprehended many who were considered as citizens of the United States, but who had committed crimes against their country.
*334 Was the property to be restored to them at one moment, says Mr. Rawle, for the purpose of being taken from them the next?-By no means. The stipulations extend to preclude any criminal proceedings for what had been done during the war. The effect of alienage was left to considerations of policy. Our commissioners, I trust, would not have suffered any interference by the British on that head.
This article was intended to prevent punishment, not to secure reward. If the loyalist is put upon the same footing as the ally in the war, he has no cause of complaint.
There must be no future loss; no damage by reason of the part which any have taken during the war. It is not asked. If Daniel Coxe had fought under general Washington and at the peace expatriated himself, and become a British subject, the rule for which we contend would have been equally applicable. Many of the people came back, and were naturalized under acts of assembly, and of course hold their lands; such as Mr. Gordon in Pennsylvania, and others.
The construction of the treaty attempted by our opponents, can only be maintained by reference to the common law doctrine, that natives of Great Britain were constructively born in America.
The 5th article assists in the construction of the 6th, and is recommendatory where the confiscation laws had been actually carried into effect. The 9th article of the treaty of the 19th of November, 1794, is in perfect unison with the ideas I submitted to the consideration of the court. Different ideas had been entertained in the different states as to the policy of permitting aliens to hold lands. It was always a matter of state regulation. In Pennsylvania they might purchase;-now they may take by descent.
The treaty, therefore, so far from looking to future acquisitions by purchase, is confined to those who now hold.
*335 It is observable that Judge Tucker does not express himself decidedly. He uses the qualified and guarded expression that the treaty seems to have revived the common law principle that the antenati of both countries were natural born to both. He qualifies his argument still further, by saying, British subjects born since the separation are aliens; but such of them as were born before the definitive treaty of peace took place seem to be entitled to the benefits thereof, so far as they had, or might be presumed to have, any interest in lands in the United States. All others appear to be aliens in the strictest sense of the word, except as their cases may have been remedied by the late treaty of the 19th Nov. 1794.
**34 Daniel Coxe had no interest in lands in the United States, and could not be presumed to have, on the 3d of September, 1783.
It is curious to observe the unreasonable consequences to which this doctrine of antenatus leads.
If the loyalist died and left an unoffending infant, his lands escheat.
If he leaves an antenatus who had waged war against us, he succeeds to the possession.
Say with Judge Tucker that under the equity of the treaty of peace, giving it the most liberal construction, all rights of British subjects, actually vested, not divested, were protected; and that when such rights relate to lands, the persons having such right, if not then citizens, had their whole life time to become citizens; which, if they neglected to do, their lands at their deaths would be equally subject to escheat as those of any alien naturalized, and dying without heirs other than aliens. How is this reconcilable with his doctrine of antenati being entitled to purchase, take by descent, and every other mode of acquisition? Or, with his argument that the common law principle from which this doctrine of antenati flows, that of perpetual allegiance by birth, has never been translated as a part of the common law into the United States? How can he reconcile it to his censure*336 and strictures upon the determination of Judge Ellsworth in Williams's case? He himself acknowledges that after the 28th of October, 1795, no British subject can purchase lands within the United States, so as to be protected by that treaty.
If once this whimsical doctrine of antenatus be admitted it will give rise to an infinity of perplexing questions.
An attainted loyalist, if he retains his citizenship may return and be immediately eligible as a member of the house of representatives or the senate. After 14 years residence, though he cannot be naturalized without the consent of the state in which he was proscribed, yet he may be president of the United States.
I inter from all these considerations that the expatriation of Daniel Coxe induced the forfeiture of alienage, and that he is thereby precluded from taking lands by descent in the United States of America.FN*
FN* The case of M'Ilvaine v. Coxe's Lessee, by mistake dated February, 1804, was the first case decided in February Term, 1805.[M'Ilvaine v. Coxe's Lessee, 2 Cranch 280, 1805 WL 1080 (U.S.,1805)]