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Subject Area: Law
Topic: The American Revolution and Constitution

§ 57.: Compulsory emigration.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 57.

Compulsory emigration.—

General want and suffering may be occasioned by overpopulation. Indeed, according to the Malthusian theory, excessive population is the great and chief cause of poverty. From the standpoint of public welfare, it would seem well for the State to dedermine how many and who, should remain domiciled in the country, in order that the population may be regulated and kept within the limits of possible well-being, and transport the excess of the population to foreign uninhabited lands, or to other parts of the same country, which are more sparsely settled. But from the standpoint of the individual and of his rights, this power of control assumes a different aspect. If government is established for the benefit of the individual, and society is but a congregation of individuals for their mutual benefit; once the individual is recognized as a part of the body politic, he has as much right to retain his residence in that country as his neighbor; and there is no legal power in the State to compel him to migrate, in order that those who remain may have more breathing space. Let those emigrate who feel the need of more room.

Another cause of evil, which prompts the employment of the remedy of compulsory emigration, would be an ineradicable antagonism serious enough to cause or to threaten social disorder and turmoil. Can the government make a forced colonization of one or the other of the antagonistic races? This is a more stubborn evil than that which arises from excessive population; for want, especially when the government offers material assistance, will drive a large enough number out of the country to keep down the evil. The only modern case of forcible emigration, known to history, is that of the Acadians. Nova Scotia was originally a French colony and when it was conquered by the British, a large non-combatant population of French remained, but refused to take the oath of allegiance. The French in the neighboring colonies kept up communication with these French inhabitants of Nova Scotia and, upon the promise to recapture the province, incited them to a passive resistance of the British authority. The presence of such a large hostile population certainly tended to make the British hold upon Nova Scotia very insecure, and the English finally compelled these French people to migrate. While the circumstances tend to mitigate the gravity of this outrage upon the rights of the individual, the act has been universally condemned.1 The State has no right to compel its citizens to emigrate for any cause, except as a punishment for crime. It may persuade and offer assistance, but it cannot employ force in effecting emigration, whatever may be the character of the evil, which threatens society, and which prompts a compulsory emigration of a part of its population.

But it does not follow from this position that the State has not the right to compel the emigration of residents of the country, who are not citizens. The obligation of the State to resident aliens is only temporary, consists chiefly in a guaranty of the protection of its laws, as long as the residence continues, and does not deprive the State of the power to terminate the residence by their forcible removal. They can be expelled, whenever their continued residence for any reason becomes obnoxious or harmful to the citizen or to the State.

Although the aborigines of a country may not, under the constitutional law of the State, be considered citizens,1 they are likewise not alien residents and cannot be expelled from the country, or forcibly removed from place to place, except in violation of individual liberty. But the treatment offered by the United States government to the Indians would indicate that they have reached a different conclusion. The forcible removal of the Indians from place to place, in violation of the treaties previously made with them,—although there is a pretense that the treaties have become forfeited on account of their wrongful acts,—differs in character but little from the expulsion of the Acadians, for whose sufferings the world felt a tender sympathy.

[1]While the above was being written, the world was startled by the expulsion from France of the Orleans and Bonaparte princes, who are in the line of inheritance of the lost crown. These princes were not charged with any offense against the existing government of France, or against France. They were monarchists, and, it is true, they refused to abjure their claims to the throne of France. But, beyond the formation of marital alliances with the reigning families of Europe, they were not charged with any actions hostile or menacing to the present government. The ineradicable antagonism between monarchy and republicism may possibly furnish justification for these expulsions; but one who has thoroughly assimilated the doctrine of personal liberty can hardly escape the conclusion that they were at least questionable exercises of police power.

[1]This is the rule of law in this country in respect to the legal status of the Indian. As long as he continues his connection with his tribe, and consequently occupies towards the United States a more or less foreign relation, it would be unwise as well as illogical to invest him with the rights of citizenship. Goodell v. Jackson, 20 Johns. 693, 710; McKay v. Campbell, 2 Sawyer, 118. But it is claimed, with much show of reason for it, that as soon as he abandons the tribal relation, and subjects himself to the jurisdiction of our government, he becomes as much a citizen of the United States as any other native. See Story on Constitution, § 1933.