There are also some remarkable passages in a pamphlet by Condorcet, dated October 25th, 1791, named Opinion sur les Emigrants. This opinion deserves attention, both on account of its author and the time in which it was written, when popular passions and prejudices were much excited against those who were expatriating themselves from France.
Condorcet begins with the statement, that:
“It is a great error to imagine that the public utility is not constantly to be found united with the rights of individuals, or that the public well-being may demand acts of real injustice. This error has everywhere been the eternal excuse for the inroads of tyranny, and the pretext for the artful manœuvres employed to establish it.[2]”
“On the contrary, in the case of every measure that is proposed as useful, it must first be examined whether it is just. Should it not be so, it must be concluded that it had only an empty and fallacious appearance of utility.”
•• •••
“Nature concedes to every man the right of going out of his country; the constitution guarantees it to every French citizen, and we cannot strike a blow at it. The Frenchman who wishes to leave his country, for his business, for his health, even for the sake of his peace and well-being, ought to have the fullest liberty to do so: he ought to be able to use this liberty, without his absence depriving him of the least of his rights. In a great empire, the variety of professions, and inequality of fortunes, do not admit of residence and personal service being regarded as a common obligation which the law may impose upon all citizens. This rigorous obligation can only exist in the case of absolute necessity; to extend it to the habitual state of society, and even to all periods when the public safety or tranquillity may seem to be menaced, would be to disturb the order of useful labours, and to attack the sources of general prosperity.”
“Every man, moreover, has the right to change his country; he may renounce that in which he was born, to choose another. From that moment, as a citizen of his new country, he is only a foreigner in the first; but if some day he returns to it, if he has left any property in it, he ought to enjoy there to the full the rights of man; he has only deserved to lose those of a citizen.”
“But here a first question presents itself. Is this citizen by his sole renunciation released from every obligation towards the body politic which he abandons? Does the society from which he separates himself lose immediately all its rights over him? Doubtless, not; and I do not speak only of those sentiments which a noble and grateful soul preserves for its country, even though it be unjust; I speak of rigorous obligations, of those which a man cannot fail to fulfil without becoming guilty of an offence: and I say that there exists a time during which a man placed between his ancient and his new country can only permit himself to express hopes as to the differences which arise between them: a time when that one of the two nations against which he might bear arms would have the right to punish him as an assassin; and when the man who might employ his riches or talents against his former countrymen, would really be a traitor.”
“I will add that each nation has also the right to fix the time after which the citizen who abandons it is to be considered as free from all obligation, and to determine what are his duties until the expiration of that period, and what actions it still preserves the power to forbid him. To deny this principle, would be to break all the social bonds which can bind men together. This period, doubtless, is not an arbitrary one; it is that during which the citizen who abdicates can employ against his country the means which he has received from it, and during which he can do it more injury than could a foreigner.”
Further on, Condorcet proposes two years as the period during which a citizen who renounces his nationality shall engage not to enter the service of any foreign power, unless he has been authorised so to do by a decree of the national assembly. He also proposes various measures for different classes of emigrants, and the full enjoyment of their property on the same footing as foreigners, by those who sign an engagement not to take foreign service for two years, nor during that time to solicit the aid of any foreign power against the nation or its constituted authorities.
Magellan fully satisfied the conditions specified by Vattel, as may be seen by his conversations with Sebastian Alvarez, the King of Portugal’s agent: at this date, also, it is sufficiently clear that Magellan not only did no harm to his native country, but that he increased its renown by his own services, and by those of the other Portuguese officers whom he associated with his labours. If his countrymen have preferred Gama to him, it is because he only served the interests of science, whilst Gama served the passions of his countrymen, and aided them to enrich themselves. After D. Manuel had refused employment and advancement to Magellan, and seemed inclined to leave him in the obscurity of a small garrison in Africa, the Portuguese would seem to have no more right to complain of Magellan’s profiting by the opportunities offered by Spain, than the Genoese would have had, if they had reproached Columbus for availing himself in a similar way of the resources of that country. D. Manuel, it is true, made offers to Magellan if he would leave Spain and return to Portugal, but it was then too late, for the great navigator had already pledged his word to Charles V.
There is another circumstance which justifies Magellan still more than if he had been an Englishman or a Frenchman, a circumstance peculiar to Spain and Portugal. In the Peninsula, the kingly power was of recent origin, and had been divided amongst several crowns: the wearers of these crowns had been at first only the equals of other great lords, and, after they had acquired these crowns, they were only the first amongst their equals; and such they recognised themselves to be by their coronation oaths, even long after the time of Magellan. In these coronation oaths they also bound themselves more than did other European sovereigns to respect all the privileges of the great nobles; any infraction of which was held to justify these in revolt from the sovereign. At the same time there existed the custom and tradition of disnaturalisation, in accordance with which any noble who felt aggrieved, formally renounced his fealty to the sovereign, and betook himself to some neighbouring state. Osorio and Mariana, who wrote when the kingly power had become consolidated, ridicule this custom; but it must have had the advantage of giving time and opportunity for a peaceable settlement instead of an immediate recourse to arms. But whether the custom was good or bad, there is no doubt that it was generally and constantly acted upon; and Magellan was following precedents that were generally received in the Peninsula. It is unfortunate that the document mentioned by historians, by which Magellan formally renounced fealty to D. Manuel, is not forthcoming in the archives either of Spain or Portugal; but it may be supposed to be similar in substance to those renunciations which Osorio mentions and reproves.
Among those who disnaturalised themselves may be cited various Condes de Haro of Biscay, and Guzman, who gave his services to Marocco, and who bears the title of El Bueno. With regard to Count Diego de Haro, who in 1216 withdrew from Castile to Navarre, Mariana makes the following observations.
“Several great lords of Castile, irritated against their king, whose avarice they could not endure, had passed into the kingdoms of Navarre and Aragon, after having renounced their right of naturalisation by a public deed, a means formerly in use amongst those nations, in order not to be regarded as traitors and rebels when they quitted the states of their sovereign.... Among the grandees who came to take refuge in Navarre, the most illustrious beyond dispute was Don Diego de Haro. This lord had excellent qualities: never were seen greater constancy, probity, or zeal for the public service than his; the slightest injustice irritated him. It was in order not to see his country and freedom oppressed, that he abandoned Castile.”—Mariana, History of Spain, book xiii.
“In the year 1276, Alfonso the Wise had defeated Yussuf, the Emperor of Marocco, and made peace with him with the assistance of Guzman: a tournament was held in Seville in celebration of it, and King Alfonso having asked who had most distinguished himself, was told D. Alonzo Perez. He asked which of them, and D. Juan Ramirez de Guzman replied: ‘Alonzo Perez de Guzman, my brother of profit.’ This answer seemed ill to all, and especially to Guzman, who saw that a slur was cast upon the illegitimacy of his birth, for at that time they named children of profit (gananciu), those who were born of unmarried women, and his mother had not been married. Guzman, irritated at being thus spoken of before the king and the court, then said: ‘You speak truth, I am a brother of profit, but you are and will be one of loss; and were it not for the respect due to the presence in which we stand, I would teach you the manner in which you should treat me; but you are not to blame for it, but rather he who has brought you up and taught you so ill.’ The king, against whom this complaint appeared to be directed, then said: ‘Your brother does not speak ill, for so it is the custom in Castile to name those who are not children of women married to their husbands.’ ‘So also,’ he replied, ‘is it the custom of the nobles of Castile, when they are not well treated by their sovereigns, to go abroad to seek those who will treat them well; I will do likewise; and I swear not to return until with truth they may call me a man of profit. Grant me, therefore, the term which the privilege of the nobles of Castile gives, that I may go out of the kingdom, for from this day I disnaturalise myself, and take leave of being your vassal.’ The king attempted to dissuade him, but his efforts being in vain, he had to grant him the term which he asked for; during which Guzman sold all that he had inherited from his father or acquired in the war, and went out from Castile, accompanied by thirty of his friends and servants.”—Quintana, Vidas de Españoles Celebres.
There seems to be some inconsistency on the part of those who refuse to admit of disnaturalisation, yet at the same time maintain that rebellion can be justified. If there is a justification of rebellion, the right of expatriation, or of withdrawal from amongst those who provoke rebellion, must exist; and there can be no doubt that the peaceable withdrawal of those who are oppressed or injured is preferable in the interests of all to armed insurrection. Even Bishop Osorio and Mariana would probably admit that the disnaturalisation of Prim and Serrano would have been better than their treason, which has plunged Spain in anarchy and bloodshed for so many years.[3] Rebellions have almost always been conducted by minorities; and as their justification does not depend upon the numerical importance of those engaged in them, it would follow that in the case of disnaturalisation, where numbers are not requisite, as in the case of armed insurrection, the right would exist equally even if the minority consisted only of one.
There are some writers on the Law of Nations, with whom I am agreed in general, who disapprove of the Naturalisation and Disnaturalisation Act of the Session of 1869. I am compelled to differ from them with respect to that measure, for the foregoing reasons, and also because it seems to me that they have lost sight of another circumstance which affects the question. So long as kingly power was a reality, personal allegiance and duty to the sovereign was a reality also. But now that modern innovation and corruption have substituted the rule of majorities for the kingly power, the feeling of the personal duty of the subject is almost lost; and the subject, or citizen, has become only one of an aggregation of individuals, or of an association of persons with equal rights; and each member of such an association has clearly the right to choose whether he will form part of it or not: so that whatever rights of expatriation may have existed in the times of Magellan, Grotius, and Vattel, have become much stronger at the present time, when the conscience of the subject is no longer considered by some as held bound by duty to the sovereign, who has become almost impersonal: instead of loyalty and fealty, we have the duty of fair dealing as between partners and associates on equal terms, as is exemplified by the argumentation of Condorcet in the passage quoted above. That this view is in accordance with the common sense and consent of mankind is shown by the general repudiation of the pretension of the northern portion of the United States to term the secession of the southern states a rebellion; and this pretension was seen to be especially illogical on the part of those who had repudiated the name of rebels when they departed from the duty of obedience to their lawful sovereign.