Article 1, Section 8, Clause 4 (Citizenship)

[Volume 2, Page 596]

Document 19

The Santissima Trinidad

7 Wheat. 283 1822

Mr. Justice Story: What, then, are the consequences which the law attaches to such conduct, so far as they respect the property now under adjudication? It is argued on the part of the libellant, that it presents a casus foederis, under our treaty with Spain. The 6th and 14th articles are relied upon for this purpose. The former is, in our judgment, exclusively applicable to the protection and defence of Spanish ships, within our territorial jurisdiction, and provides for the restitution of them, when they have been captured within that jurisdiction. The latter article provides, that no subject of Spain "shall apply for, or take any commission or letter of marque, for arming any ship or ships to act as privateers," against the United States, or their citizens, or their property, from any prince or state with which the United States shall be at war; and that no citizen of the United States "shall apply for, or take any commission or letters of marque, for arming any ship or ships, to act as privateers" against the king of Spain, or his subjects, or their property, from any prince or state with which the said king shall be at war. "And if any person of either nation shall take such commission or letter of marque, he shall be punished as a pirate." In the Spanish counterpart of the treaty, the word "privateers" in the first clause has the corresponding word "corsarios;" but in the second clause, no such word is to be found. But it is obvious, that both clauses were intended to receive, and ought to receive, the same construction; and the very terms of the article confine the prohibition to commissions, &c., to privateers. It is not for this court to make the construction of the treaty broader than the apparent intent and purport of the language. There may have existed, and probably did exist, reasons of public policy which forbade an extension of the prohibition to public ships of war. It might well be deemed a breach of good faith in a nation, to enlist in its own service an acknowledged foreigner, and at the same time, subject him by that very act, and its own stipulations, to the penalty of piracy. But it is sufficient for the court, that the language of the treaty does not include the case of a public ship, and we do not perceive that the apparent intention or spirit of any of its provisions, justifies such an interpolation. The question, then, under the Spanish treaty, may be dismissed without further commentary.

This view of the question renders it unnecessary to consider another, which has been discussed at the bar, respecting what is denominated the right of expatriation. It is admitted by Captain Chaytor, in the most explicit manner, that during this whole period, his wife and family have continued to reside at Baltimore; and so far as this fact goes, it contradicts the supposition of any real change of his own domicil. Assuming, for the purposes of argument, that an American citizen may, independently of any legislative act to this effect, throw off his own allegiance to his native country, as to which we give no opinion, it is perfectly clear, that this cannot be done without a bona fide change of domicil, under circumstances of good faith. It can never be asserted, as a cover for fraud, nor as a justification for the commission of a crime against the country, or for a violation of its laws, when this appears to be the intention of the act. It is unnecessary to go into a further examination of this doctrine; and it will be sufficient to ascertain its precise nature and limits, when it shall become the leading point of a judgment of the court.

The Founders' Constitution
Volume 2, Article 1, Section 8, Clause 4 (Citizenship), Document 19
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