What’s the Difference between ALLEGIANCE/NATIONAL AND CITIZENSHIP/DOMICILE?

The following comes from the headnotes of the case:

II. That Samuel Redick and Captain Talbot had expatriated themselves, and become French citizens; so that the former might lawfully own, and the later might lawfully command, a French, privateer, for the purpose, of making prize of ships belong to the enemies of France. The right of expatriation is antecedent and superior to the law of society. It is implied, likewise, in the nature and object of the social compact, which was formed to shield the weakness, and to supply the wants of individuals–to protect the acquisitions of human industry, and to promote the means of human happiness. Whenever these purposes fail, either the whole society is dissolved, or the suffering individuals are permitted to withdraw from it. There are two memorable instances of the expatriation of entire nations (independent of the general course of the patriarchal, or [p*140] pastoral life) the one in ancient, and the other in modern story. When the Persians approached Athens, the whole Athenian nation embarked in the fleet of Themistocles, and left Attica, for a time, in possession of the Persians. Plut. in vit. Themist, Trav. of Anachar. 1 vol. p. 268. In the year 1771, a whole nation of Tartars, called “Tourgouths,” making 50,000 families, or 300,000 souls, emigrated from the banks of the Wolga, in Russia, and, after a progress of inconceivable difficulty, settled in the dominions of the Emperor of China, who hospitably received them, and erected a monument on the spot, to commemorate the event. Col. Mag. for Feb. 1788. But the abstract right of individuals to withdraw from the society of which they are members, is recognized by an uncommon coincidence of opinion;–by every writer, ancient and modern; by the civilian as well as by the common-law lawyer; by the philosopher, as well as the poet. It is the law of nature, and of nature’s god, pointing to “the wide world before us, where to chuse our place of rest, and Providence our guide.” 2 Bynk. 125. Wickefort, b. 1. c. 2. p. 116. Grot. b. 2. 5. s.24. par. 2. 3. Dig. de cap. ex post. Law. 12. 8. 9. Wick. b. 1. 8. 11. p. 244. Puff. b. 8. 1. c. 11. s.3. p. 862. 1 Fred. Code. 34. 5. 2. vol. 10. 1 Gill. Hist. Greece. With this law, however, human institutions have often been at variance; and no institutions more than the feudal system, which made the tyranny of arms, the basis of society; chained men to the soil on which they were born; and converted the bulk of mankind into the villeins, or slaves of a lord, or superior. From the feudal system, sprung the law of allegiance; which pursuing the nature of its origin, rests on lands; for, when lands were all held of the Crown, then the oath of allegiance became appropriate: It was the tenure of the tenant, or vassal. Blac. Com. 366. The oath of fealty, and the ancient oath of allegiance, were, almost the same; both resting on lands; both designating the person to whom service should be rendered; though the one makes an exception as to the superior lord, while the other is an obligation of fidelity against all men. 2 Bl. Com. 53. Pal. 140. Service, therefore, was also an inseparable concomitant of fealty, as well as of allegiance. The oath of fealty could not be violated without loss of lands; and as all lands were held mediately, or immediately, of the sovereign, a violation of the oath of allegiance, was, in fact a voluntary submission to a state of outlawry. Hence arose the doctrine of perpetual and universal allegiance. When, however, the light of reason was shed upon the human mind, the intercourse of man became more general and more liberal: the military was gradually changed for the commercial state; and the laws were found a better protection for persons and property, than arms. But [p*141] even while the practical administration of government was thus reformed, some portion of the ancient theory was preserved; and among other things, the doctrine of perpetual allegiance remained, with the fictitious tenure of all lands from the Crown to support it. 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. In Russia, the volunteers who supply the fleet with officers, or literary institutions with professors, are naturalized. In Poland, an American citizen has been made Chancellor to the Crown. In France, Mr. Colbert, who was Minister of Marine, and Mr. Necker, who was Minister of Finances, were adopted, not native, subjects. In England, two years service in the navy, ipso facto, endows an alien with all the rights of a native. These are tacit acknowledgments of the right of expatriation, vested in the individuals; for, though they are instances of adopting, not of discharging, subjects; yet, if Great Britain would (ex gratia) protect a Russian naturalized by service, in her fleet, it is obvious that she cannot do so without recognizing his right of expatriation to be superior to the Empress’s right of allegiance. But it is not only in a negative way, that these deviations in support of the general right appear. 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. Thus, Louis XIV, received his own quondam subjects, the two Fidlers as Ambassadors. Dr. Story, an Englishman, was sent to England as the Minister of Spain. And in many nations the conditions [p*142] on which an expatriation may be affected (such as paying a tax, or leaving a portion of property behind) are actually prescribed. Independent, however, of these instances, in countries bound by the law of allegiance, it is to be considered, what are the rights of citizenship on the subject; and like every other question of citizenship, it depends on the terms and spirit of our social compact. The American Confederation is a complex machine, and sui generis. It creates joint federal powers; but it recognizes separate state powers: It is confederate to some purposes; but consolidated to other purposes. The formation of every social compact is presumed, however, by elementary writers, to be a surrender of so much, and no more, of private rights, as are necessary to the preservation and operation of the government; but this principle is not left with us to mere implication; it is formally declared in many state constitutions in favor of the people; and in the Federal Constitution, it is declared in favor of the States, as well as of the people. With respect, then, to the right of emigration, it has been under the consideration of the people and government of the Union, from the moment of their birth, as an independent nation; insomuch, that the refusal to pass laws for the encouragement of emigration to America, is charged as a proof of tyranny and oppression, in the enumeration of the grievances, which produced and justified the revolution. The articles of Confederation contain not any clauses, expressly granting or restraining, the power and right of naturalization and emigration; but they contain an express reservation of all powers in favor of the States individually, which are not, in terms, transferred to the Union. An inspection of the several state constitutions will prove, that, in some form or other, the principle has been recognized by every member of the Confederation; and the Constitution of Pennsylvania explicitly provides, that no law shall be passed prohibiting emigration from the state. This is, perhaps, the only direct expression of the public sentiment on the subject; but the very silence that prevails strengths the argument. The power of naturalizing has been vested in several of the state governments, and it now exists in the general government; but the power to restrain or regulate the right of emigration, is no where surrendered by the people; and it must be repeated, that, what has not been given, ought not to be assumed. It may be said, however, that such a power is necessary to the government, and that it is implied in the authority to regulate the business of naturalization. In considering these positions, it must be admitted, that although an individual has a right to expatriate himself, he has not a right to seduce others from their country. Hence, those who forcibly, or seductively, take away a citizen, commit an act, which [p*143] forms a fair object of municipal police; and a conspiracy or combination, to leave a country, might, likewise be properly guarded against. Such laws would not be an infraction of the natural right of individuals; for, the natural rights of man are personal; he has no right to will for others, and he does so, in effect, whenever he moves the mind of another to his purpose, by fear, by fraud, or by persuasion. The English law and the law of Pennsylvania, therefore, punish kidnapping, and transporting, or seducing, artists, to settle abroad as crimes. 4 Bl. Com. 219, 160. Penn. Laws 2 Vol. Dall. Edit. But this is all the power on the subject, which a government ought to possess for its preservation. The depopulation of a country by the spontaneous co-operating will of numbers, proves nothing more than that a bad government exists, or a bad soil is inhabited. Such an event, however, is too remote a possibility, to be any where a subject of apprehension; and, with respect to America, it is visionary indeed! If then, the power of restraining emigration is not necessary to the existence of government, much may be urged to shew, that it is a power of too delicate a nature to be trusted by the people to the integrity of any government; since, by legislative regulations, the exercise of the right might be rendered so difficult, that the right itself would be put in everlasting abeyance. Nor is there any essential coincidence in a power to regulate naturalization, and in a power to regulate emigration; so that the grant of the former shall be deemed to include the latter. The idea of admitting, and the idea of excluding, are not analogous. As to the point of policy, if a man wishes to leave a country, he is not likely to remain in it, by force, beneficially to the state. The character of the migrating individual can have no influence on the right; his private motives of interest, or of pleasure, do not affect the community; and it is of no importance to what country he goes. The moment he has expatriated himself, the state is no longer interested, no longer responsible for his conduct; the ligature, which bound them, is severed, and can never again be united, without their mutual consent: The emigrant has become an alien. But in the act of naturalization, every community has a right totally to reject applications for admission; or to prescribe the terms; and then the character of the applicant, the motives of emigration from his old country, and the evidences of his attachment to his new one, are all to be considered. Let it, however, be supposed, for a moment, that the grant of the naturalization power embraces a power of regulating emigration; the question still remains, has the power of regulating emigration been exercised by Congress? And if it has not been exercised by the department of government, to which alone even by implication, it is granted, what authority has the [p*144] court to interfere upon the subject? That the power has not been exercised by Congress is conceded; and if the court interferes, it will be a legislative, not a judicial, act: For, although it is contended, that the law of nations furnishes rules to supply the silence of the legislature, there is scarcely a subject, to which the jurisdiction of Congress extends, that might not, on the same doctrine, be regulated, without the interposition of that body. Thus, Congress has power to define and punish piracies, felonies committed on the high seas, and offences against the law of nations; and yet, without the exercise of that power, the law of nations would supply rules as applicable to those cases, as to the case of expatriation. But naturalization and expatriation are matters of internal police; and must depend upon the municipal law, though they may be illustrated and explained by the principles of general jurisprudence. It is true, that the judicial power extends to a variety of objects; but the Supreme Court is only a branch of that power; and depends on Congress for what portion it shall have, except in the cases of ambassadors, &c. particularly designated in the constitution. The power of declaring whether a citizen shall be entitled in any form to expatriate himself, or, if entitled, to prescribe the form, is not given to the Supreme Court; and, yet, that power will be exercised by the court, if they shall decide against the expatriation of Captain Talbot. Let it not, after all, be understood, that the natural, loco-motive, right of a free citizen, is independent of every social obligation. In time of war, it would be treason to migrate to any enemy’s country and join his forces, under the pretext of expatriation. 1 Dall. Rep. 53, and, even in time of peace, it would be, reprehensible (say the writers on the law of nature and nations) to desert a country labouring under great calamities. So, if a man acting under the obligations of an oath of office, withdraws to elude his responsibility, he changes his habitation, but not his citizenship. It is not, however, private relations, but public relations; private responsibility, but public responsibility; that can affect the right: for, where the reason of the law ceases, the law itself must, also, cease. There is not a private relation, for which a man is not as liable by local, as by natural, allegiance;–after, as well as before, his expatriation: He must take care of his family, he must pay his debts, wherever he resides; and there is no security in restraining emigration, as to those objects, since, with respect to them, withdrawing is as effectual, as expatriating. Nor is it enough to impair the right of expatriation, that other nations are at war; it must be the country of the emigrant. No nation has a right to interfere in the interior police of another: the rights and duties of citizenship, to be conferred, or released, are matter of interior police; and yet, if a foreign war could affect [p*145] the question, every time that a fresh power entered into a war, a new restraint would be imposed upon the natural rights of the citizens of a neutral country; which, considering the constant warfare that afflicts the world, would amount to a perpetual controul. But the true distinction appears to be this:–The citizens of the neutral country may still exercise the right of expatriation, but the belligerent power is entitled to say, “the act of joining our enemies, flagrante bello, shall not be a valid act of expatriation.” By this construction, the duty a nation owes to itself, the sacred rights of the citizen, the law of nations, and the faith of treaties, will harmonize, though moving in distinct and separate courses. To pursue the subject one step further: A man cannot owe allegiance to two sovereigns. 1Bl. Com. He cannot be citizen of two republics. If a man has a right to expatriate, and another nation has a right and disposition to adopt him, it is a compact between the two parties, consummated by the oath of allegiance. A man’s last will, as to his citizenship, may be likened to his last will, as to his estate; it supersedes every former disposition; and when either takes effect, the party, in one case, is naturally dead, in the other, he is civilly dead;–but in both cases, as good Christians and good republicans, it must be presumed that he rises to another, if not to a better, life and country. An act of expatriation, likewise, is susceptible of various kinds of proof. The Virginia law has selected one, when the state permits her citizens to depart; but it is not, perhaps, either the most authentic, or the most conclusive that the case admits. It may be done obscurely in a distant county court; and even after the emigrant is released from Virginia, to what nation does he belong? He may have entered no other country, nor incurred any obligation to any other sovereign. Not being a citizen of Virginia, he cannot be deemed a citizen of the United States. Shall he be called a citizen of the world; a human balloon, detached and buoyant in the political atmosphere, gazed at wherever he passes, and settled wherever he touches? But, on the other hand, the act of swearing allegiance to another sovereign, is unequivocal and conclusive; extinguishing, at once, the claims of the deserted, and creating the right of the adopted, country. Sir William Blackstone, therefore, considers it as the strongest, though an ineffectual, effort to emancipate a British subject from his natural allegiance; and the existing constitution of France declares it expressly to be a criterion of expatriation. The same principle operates, when the naturalization law of the United States provides, that the whole ceremony of initiation shall be performed in the American courts; and if it is here considered as the proof of adoption, shall it not be considered, also, as the test of expatriation? If America [p*146] makes citizens in that way, shall we not allow to other nations, the privilege of the same process? In short, to admit that Frenchmen may be made citizens by an oath of allegiance to America, is, virtually, to admit, that Americans may be expatriated by an oath of allegiance to France. After this discussion of principles, forming a necessary basis for the facts in this case, it is insisted, 1st, That Talbot was a naturalized citizen of the French Republic at the time of receiving a commission to command the privateer, and of capturing the Magdalena. He left this country with the design to emigrate; and the act of expatriation must be presumed to be regular, according to the laws of France, since it is certified by the municipality of Point a Pitre, by the French Consul, and by the Governor of Guadaloupe. 2d, That Redick was also, a naturalized citizen of the French Republic, when he purchased the vessel, and received a commission to employ her as a privateer. 3d, That Ballard’s expatriation and commission, however doubtful, cannot affect Talbot and Redick. But still, it is objected, that these acts of expatriation, these commissions, are all fraudulent and void. In private contracts, in subjects of municipal regulation, in matters of Meum et tuum, the rule is clear, that fraud vitiates everything, and the fraud may be collected from circumstances. But is fraud to be presumed in a conflict of national rights? It is said that a nation cannot be considered in the light of pirates; 1 Wood. so a nation cannot commit frauds. Let the matter be turned as it may, it will rest on this ground,–had France any authority to naturalize, or to commission, Talbot and Redick? America is deeply interested, at least, in withholding a concession, that any other nation, but France, can decide that question. The validity of her own naturalizations, the authenticity of her own commissions, and the claims of her impressed seamen, are all involved. France, then, is exclusively to judge; she granted the authority, she can rescind it; she can punish any abuse of it; and to her government must be the appeal, if America, or any other nation, has sustained an injury by it. If, indeed, on the pretext of fraud in the persons who obtain a French commission, our courts may annul them, where will the inquisitorial censorship terminate? British patents of denization, as well as French acts of naturalization; and every commission of the officers of a public ship of war, as well as of a privateer, will be alike subject to our supreme controul. But even the allegation of fraud, is unsupported by any reasonable degree of evidence. The first circumstance relied on, is, that the acts of naturalization, bill of sale, and commission to cruize, were in the custody of Capt. Talbot on board the privateer, and not held by Redick, at Point a Pitre. But, surely, every privateer must be always ready to prove her ownership and authority, [p*147] to rescue her from the imputation of piracy, and to entitle her to sell her prizes. Again, it is said, that Redick had no agent in America. But it is sufficient to answer, that the Captain of a privateer is the natural agent for the owner: that it is idle to expect that the owner of a cruizing vessel shall have an agent in every port, at which she may touch; and that, in fact, Redick had several agents in Charleston. It is added, as circumstances for suspicion, that Talbot has not proved that his vessel was not fitted out in the United States, whereas the proof of the affirmative lay with Appellee; the articles on board Talbot’s vessel, if not put on board at Guadaloupe might have been for trade; and Redick, a bona fide purchaser, ought not be affected by an illegal outfit. 2 Esp. 282. 3 Wood. 213. Bl. C. 262. 1 T. Rep. 260. 3 T. Rep. 437. 2 Wood. 412. 431. Hard. 349. Cowp. 341. 2 T. Rep. 750. that proof is not made of notice of the sale to Redick, whereas it appears that Sinclair and Wilson were actually informed of the transaction; and that Sinclair and Wilson have not been produced as witnesses by the Appellant, whereas it was the duty of the Appellee, if he thought their testimony material, to examine them, and he had the same means to compel their attendance.

[Tablot v. Janson, 3 U.S. 133 (1796); https://www.law.cornell.edu/supremecourt/text/3/133]

More at:

Sovereignty Forms and Instructions Online, Form #10.004, Authorities: Talbot v. Janson
https://famguardian.org/TaxFreedom/Authorities/SupremeCourt/Talbot_v_Janson3US133.htm