Three speeches on the Expatriation Act of 1868, made on 10 March of that year, two by Republicans and the other by a Democrat, are presented without comment after the jump. You can find the originals starting at page 1797 of The Congressional Globe for the 40th Congress. Some extra paragraph breaks have been added for readability.
The Committee on Foreign Affairs, when this subject was under consideration on a former occasion, was somewhat surprised to find a very general disposition on the part of members to have embodied in any bill acted upon by the House a legislative declaration of the right of emigration on the part of the citizens of the United States. The committee had considered this subject carefully, and have since reconsidered it, and have come to the conclusion, I believe I may say unanimously, that the right of emigration does not depend on the consent of the Government, and that it ought not to be held as a subject to the control of the Government, either in the form of permission or denial …
I am quite sure that if the House should have this question presented in an authoritative form, there is no considerable portion of the members that would assent to the propriety, much less the expediency, of a legislative declaration on the part of the Government of the United States recognizing the right of emigration. If, in the course of events, the Government of the United States should form a treaty with any foreign Government in which it should be provided that the right of emigration should exist by the permission of such Government, and basing all arrangements between two Governments upon its consent to the emigration of its citizens to this country, no member of the House would be willing to give such a treaty his approval because presented in that form.
We should at once see that the right of assent covered also the right of dissent, and that the approval of such policy on the part of other Governments would in effect surrender our claim for the recognition of the American doctrine that the right of emigration is a right inherent in man; the only power that is left to him to assert his own independence against the power of the Government. It stands on the same ground as the right of free speech, the right to see, the right to hear, the right to think, the right of locomotion, and other inherent rights essential to the development of the faculties of man and to the enjoyment of his personal liberty. There is, there can be, no personal liberty unless this right can be exercised independent of the consent of Governments. To avoid suffering and to escape oppression by the Government under which he lives, he should have the power to seek more congenial political relations wherever they may be found.
Neither in the Constitution nor in any legislation of the United States, is there legislative recognition of the doctrine that any one of this class of natural rights depends on favor. The language of the Constitution in regard to the establishment of religion, or the free exercise thereof, the right to bear arms, the freedom of speech, the liberty of the press, the right of petition, or that higher right of peaceful assemblage for the consideration of their affairs, and to be secure in their persons against unwarrantable searches or seizures, is not that those rights are conferred upon the people, but that the Government shall pass no act abridging or denying the existence of such rights.
The right of emigration ought to stand upon exactly the same ground, because it is more essential to personal freedom than the right of speech, the right of thought, the right to move, the right to petition, or any other of these inherent natural rights. If there is no power on the part of the subject of a Government to leave its dominions when it shall be impossible to endure its oppressions there is no relic of personal liberty left to him.
In a most excellent work published in Germany in 1865 by Dr. [Joseph von] Held on the Organization of Society and of Government this principle is more clearly stated than it ever has been by any American, although we have been debating this question for three-fourths of a century. It must carry conviction to every candid mind. It is a single sentence in a most elaborate work covering the whole ground, and is expressed in language more terse and truthful than I have met elsewhere. In the classification of the rights of freemen he places that of unrestricted emigration with that of the choice of a pursuit or profession, or those which relate to the development of the faculties of man, and which, for that reason, cannot be taken from nor confered upon him. Upon that subject he uses these most potent words:
“The right of free emigration is the preeminent right, the jus emines of every freeman against the consolidated power of the State.”
That, sir, is the truth. The right of emigration is the preeminent right, the supreme right of a freeman, the only means left him of resisting oppression or of protesting against the concrete or consolidated power of the government. I think, then, that in this bill the inherent natural right of an American citizen to leave his country, if he pleases, and to settle elsewhere is stated with sufficient clearness to satisfy any doubts of gentlemen on that subject.
Mr. Speaker, I need not argue at any length, if at all, the question of the inherent and indefeasible right of expatriation as belonging to every free-born citizen. That proposition has already been exhausted by the able speeches of the gentlemen who have preceded me. I will say, however, in passing along, that it is one of those great and self-evident truths whose simple statement amounts to a demonstration. It is a right which lies much deeper and broader than any privilege or duty flowing from the qualified rights which create and give force and effect to the mutual obligation existing between the citizen and the Government under which he has consented, for the time being, to live. There are certain qualified and imperfect rights which every man surrenders when he consents to become part of the legal civil organization; and which implies, and absolutely creates, on the part of such civil government, an obligation to protect him in his life, liberty, and property.
Voluntary expatriation is nothing more than an exertion of this right to personal liberty thus guarantied by the Government to the individual. The right of personal liberty and of unconstrained locomotion is the primary object of all civil government. But this right of expatriation is still more abstract and original; for it is the creature not of municipal but of natural law. The greatest writers on public and natural law, reared and educated even under the shadow of a thrown, such authors as Vattel, Burlamaqui, Wickenfort, and Bynkershoek, all put it upon the ground of natural right.
But notwithstanding, Mr. Speaker, I shall assume that the right of emigration and its concomitant privilege of expatriation is not only a right so well founded in the universal law of nature, but is so generally acknowledged among the civilized nations of the earth, as to need neither testimony nor argument to establish it, I cannot refrain from quoting a most striking passage from the almost forgotten essay of Noah Webster, republished during the war of 1812, but written in 1789, in which he demolished the absurd idea of a great English judge that allegiance to the sovereign was not only a perpetual obligation, but was founded on natural law.
This, sir, is one of the monstrous absurdities to which the advocates of the “divine right of kings” are driven in their defense of the doctrine that “once a subject always a subject.” The right of expatriation and the duty of allegiance cannot both be founded in the law of nature. There can exist no antagonism in the laws of God. The essence of His moral law is the spirit of harmony. He gives no right but what is consistent with duty, and imposes no obligation which shall destroy a right thus given. Upon this question of the duty of allegiance being derived from the law of nature the great American lexicographer is no overmatch for the great English jurisconsult. He thus triumphantly exposes the fallacy of the English law-writer’s reasoning:
“Blackstone says that ‘the natural allegiance is a debt of gratitude, because the subject is under the king’s protection while an infant. He might just as well say protection is a debt of gratitude due from the prince, because the subject is born in his dominions. On this principle of gratitude a child is obliged to obey and serve his parent after he has left his family and while he lives. This debt, according to the same author, cannot be canceled but by the concurrence of the Legislature. How, in the name of reason, can an act of the Legislature dissolve a natural tie? How can it cancel a debt of gratitude. Common sense looks with disdain on such weak and futile reasoning.
“But if there is such a thing as a natural and perpetual allegiance, an Englishman who removes to France cannot take arms to defend France against an invasion from England. Is this agreeable to the laws of nature and society, that a man should not protect himself, his family, and his property? It will be said that the man is within the English king’s allegiance, and entitled to his protection. But the king cannot protect him; it is beyond his power, and the Englishman is not obliged to leave France and seek protection in England. His estate and his family may be in France, and if he chooses to reside there, it is his inalienable right and duty to defend both against any invasion whatever. Every war, except a defensive one, is a breach of the moral law; but when a natural-born subject of England becomes a citizen of France he is subject to the laws of France and bound to assist, if required, in defending the kingdom against his natural prince.”
Mr. Speaker, this right of expatriation, as the consequent political result of the act of emigration, is as old as civil government itself. It existed in the best days of Greece and Rome. It was apostrophized by the immortal Tully, in his defense of Balbus, when he exclaimed:
“Oh glorious right, by divine favor, obtained for us by our ancestors in the commencement of the Roman name, by which no man can be a citizen of more than one commonwealth, by which no man can be compelled to leave it against his will, nor remain in it against his inclination. This is the firmest foundation of our liberty, that every man shall have an absolute power to retain or abandon his rights at his election.”
Mr. Speaker, the whole principle, the very essence of this great right of self-expatriation, is embodied in this single sentence of Cicero: it enunciates the great truth that the natural rights of man are paramount to the delegated powers of government. As long as the liberties of Rome existed this great right of her citizens endured. But, sir, there came a time, long after the liberties of the Roman people had perished by usurpation, where there was a sad retrocession of this ancient right of the people. The rise of the feudal system in Europe organized a very different condition of society and laws. To this dark era of human degradation, when civilization was pushed back by vandalism and Gothic barbarity, we owe the origin of this slavish doctrine of perpetual allegiance. William the Conqueror carried it with him into England; and it exists there to-day as the servile relic of the Norman conquest.
Van Trump next made an explicit tie between the right of emigration and the American Revolution, speaking of “that one great national and universal act of expatriation which spoke this great fabric of constitutional government into being”. Then at page 1802, he went on to state:
Here, then, Mr. Speaker, we have exhibited to our observation the state of legislation and the unsatisfactory and uncertain character of judicial interpretation upon this great question of the right of expatriation of an American citizen. Sir, these judicial hints and indications upon the question of this right, and the fact that on two several occasions, Congress had, in effect, refused to assert the right, have placed us in so equivocal and inconsistent an attitude before the world that the imperious duty is now pressed upon us to set ourselves right upon the question … Sir, the question is, shall we reverse or sustain our former position on this all-absorbing question? Shall we clear away the fog which envelopes it or increase its density. If we have been wrong heretofore let us be right now. The question is squarely pat to us in the first section of the bill now before us. The proposition is too serious and important for us to be trifling with it any longer.
Duty to those Powers of the world who have recognized the right of emigration and expatriation, as well as a just indignation against those who have refused to recognize it, alike call upon us to take such position now as will put end to all doubt and uncertainty in the future. Mr. Speaker, in the former debate upon the original bill the singular position of the honorable chairman of the committee was that it is impossible to legislate upon this subject, and give now, by positive enactment, the right of expatriation to American citizens, “without by that very act enabling foreign Governments to say to us that up to this date our citizens had no right to expatriate themselves;” and that in such state of case they would be “debarred from claiming the protection in foreign States which it is the purpose of this bill to accord to them.”
Sir, was that not “a most lame and impotent conclusion?” Suppose they do say so, what then? Could they not, if we shall remain silent now, make the same charge at any time hereafter when we shall assert the right either in the halls of legislation or upon the tented field? Can any amendment to a bill, or a refusal to amend it, annihilate the history of the past? Can a single act done or omitted to be done in the past be changed in the slightest degree by anything we may now do or refuse to do? No, sir; there can be no modification of the past; its facts have gone into history; they can neither be ignored or blotted out. We may create a new future, but we cannot make a new past. We must act upon this question now as thought it was the first it ever challenged our attention, either as judges or legislators. If our course heretofore in the administration of public affairs in relation to this question has been indeterminate and vague and uncertain, will anything we may now do or refuse to do make our past action or non-action any more direct or significant? Certainly not. It is the living present we have to deal with, not the dead past.
Sir, the logic of the gentleman is about this: because we have heretofore neglected or failed to assert and establish a great right in behalf of American citizenship; because we have for more than eighty years lived without a law to provide the means for its exercise, and preserve the evidence of the fact when so exercised, we should still continue in that line of policy; and that even now, when that precious and inestimable right, so essential to the full enjoyment of the highest liberty in the pursuit of happiness, is being daily assailed and trampled under foot by our ancient enemy, we should absolutely refuse to declare and define it in terms befitting its grave importance for fear that by its assertion now we would expose the fact of our former neglect or invite an unfavorable assertion by that enemy.
Sir, if the legislative power of the country has been derelict in its duty in the past and to the people the stronger the reason is that it should now act with promptness and energy in the full and unequivocal assertion of this great right of the citizen. We should not only assert the right but we are also bound to furnish the easiest and most appropriate means for its exercise. If the question of fact whether or not it has been exercised or not rests at large, to be proved like any other unascertained fact, much confusion will result both to Government and to citizen … The proposition ought and cannot be controverted, that whenever the mode by which the citizens of a free Government are to exercised their acknowledged rights is involved in doubt or obscurity the duty is devolved upon the legislative authority to prescribe the manner of their exercise so that their full and free enjoyment shall be amply secured. The error to which the discussion in this House fifty years ago gave rise upon this question was the assumption that if we had the power to prescribe the manner in which citizenship might be voluntarily relinquished we also, for that very reason, had the power to abolish the right of relinquishment itself. Sir, it requires no argument to expose the fallacy of such a position. It involves this absurdity: that because the legislative power may be exercised in aid of a right it may also be used for its overthrow and obstruction.
In the grand question of the right of expatriation my colleague and myself fully agree; but I hold that the best evidence of the intent to expatriate one’s self is the very act of expatriation; and that no Government should impose conditions as to the exercise of this right. If a Government can impose conditions upon which a citizen or subject can expatriate himself, then it has equal power to prohibit expatriation altogether. Now, sir, suppose that we did enact a law providing that a declaration before a competent tribunal should be held to be the evidence of the intent to expatriate one’s self, and that the Governments of Europe adopted similar regulations, could we, with such a law upon our own statute-book, naturalize any subject of such foreign Power who did not bear with him the evidence of having declared his intention to expatriate himself before he left his native country? Certainly not. And yet, sir, to refuse to naturalize him would be admitting that expatriation was a privilege granted by a prince, instead of being an inalienable right derived from Almighty God.