2 FCAS 423 - Baird v. Byrne

GRIER, Circuit Justice,

¶1admitted that the question, as a judicial one, was new, and of some difficulty; but it being, as he stated, his opinion that a man could not throw off his natural allegiance except in assuming some new citizenship, he refused to dismiss the case in a summary way, for want of jurisdiction. And there being no disputed facts in the case, he directed a verdict for the plaintiff, giving leave, however, to the defendant to move to set it aside if he desired. The motion was made; but Byrne having actually abandoned this country soon after the suit was brought, and there not being any like*427lihood whatever of his return, the case was not heard of further.

NOTE, [from original report.] The conclusion thus adopted by the court in this case is sustained by the view subsequently taken by the court of appeals in Kentucky, in White v. White, A. D. 1859, 2 Mete. (Ivy.) 189, where it was decided that an alien who had taken the preparatory oath to become a citizen of the United States, is not thereby rendered capable to take lands by descent; and that his subsequent naturalization does not operate to invest him with the title which in the meantime has vested in the commonwealth. It was supported, also, in the view taken by the federal government at an interesting crisis of American history; as appears by the following letter of the secretary of state to the then British charge at Washington: Department of State, Washington, July 20, 1SG1. Sir:—Having informally understood from you that British subjects who had merely declared their intention to become citizens of the United States, had expressed apprehensions that they might be drafted into the militia under the late requisition of the war department, I have the honor to acquaint you, for their information, that none but citizens are liable for duty in this country, and that this department has never regarded an alien, who may have merely declared his intention to become a citizen, as entitled to a passport, and consequently have always withheld from persons of that character any such certificate. I have the honor to be, with high consideration, your obedient servant, Wm. H. Seward. To the Hon. Wm. Stewart, etc.