There is, indeed, such a thing as a “man without a country,” and it is only a few years since the United States, even if inadvertently, legislated so that there may easily be now a woman without one. But the laws of nations make no provisions for the existence voluntarily of anyone who may regard himself as “a citizen of the world.” With the vanishment of terra incognita in the final achievement of human exploration at the two poles of the earth, virtually every foot of the surface of the globe has come, at least constructively, under the dominion of some government. And with it every man, woman, and child on earth has acquired or had thrust upon him a legal nationality of some sort, from which, generally speaking, he can escape only by choosing or having thrust upon him another—however feeble or tenuous its grasp, however slight or contemptuous his perception and recognition of it.

The Great War emphatically registered this fact, with its ruthless inclusion of friend, neutral, and foe within some category of practicable citizenship. In the United States the Selective Service Act, and other legislation as well—to say nothing of the extra-legal practices indulged in under cover of the popular state of mind—permitted no human being to regard himself as immune to effective classification under some sovereignty. The “conscientious objector,” the “philosophical anarchist,” and every sort of philosopher, however much he previously may have imagined himself free to abjure allegiance to government, found that his property, his food, his sons, his own very personal flesh-and-blood, were, after all, not his own, but were subject to conscription by the state. However much his spirit might be of fellowship with the saints of his cult or religion, in all material respects he must render unto CÆsar the things that CÆsar said were CÆsar’s.

From the most primitive times this has been so, even if in the America of the happy-go-lucky times of peace it has been lightly regarded or scarcely realized at all. The “gang spirit,” under the sway of which men always have held loyalty to the local clan to be one of the chief of obligatory virtues, is of the essence and fabric of group life, and is the tap-root of patriotism. It embodies an allegiance both to blood and to locality. Through the warp of all political history are woven two kindred threads representing these two allegiances; sometimes one, sometimes the other—in later development something of both. The lawyers speak of them as the Jus Sanguinis, the Law of the Blood, and the Jus Solis, the Law of the Soil, and distinguish between them; but both represent the claim of the community upon the loyalty and, if need be, the sacrifice and bodily service of the individual.

A classic illustration of the deeply embedded feeling that man cannot separate himself from the virtues, the sins, and the limitations of his clan, his country, is the tragedy in the valley of Achor, related in the Old Testament Book of Joshua,[14] wherein it was held that the sin of Achan the son of Zerah was ipso facto the sin of all Israel. And for the offense of one man,

This, with a vengeance, was a dramatization of the Jus Sanguinis, the Law of the Blood, by virtue of which an individual acquires nationality and civic responsibility through the blood of his ancestry, regardless of the place of his birth!

ROOTS OF POLITICAL SOCIETY

The principle was a natural consequence upon the nomadic life of families and tribes, of primitive groups wandering often in strange and even hostile territory, to whom in absence of fixed abode and boundaries locality was of little importance, but tribal solidarity and unity of purpose and allegiance were vital to defense, to group survival. The family, and after it the clan or group of blood-related families, were the beginnings of political society.

Throughout ancient times the Law of the Blood persisted; the law of citizenship in early Greece and Rome was based upon the idea of family inheritance. But with the dissolution of the Roman Empire and the rise of feudalism, the Jus Sanguinis gradually gave way to a standard of citizenship based upon locality—to Jus Solis, under which a child became ipso facto a citizen or subject of the jurisdiction within which he was born, more or less regardless of the nationality or allegiance of his parents. This was a natural concomitant of feudalism; as the conflicts between military chieftains and groups divided the land into relatively definite jurisdictions, and the tenure of territory and the stability of boundaries and peace in the realm depended almost wholly upon military strength, it was to the interest of both lord and vassal to maintain the largest possible forces for defense, and conservation of population depended chiefly upon birth. Even to the peasant subject, maintenance of almost any status quo was comparatively worth while for the sake of the peaceful enjoyment of such home and happiness as were his lot.

INFLUENCE OF EMIGRATION TO AMERICA

Beginning with the period immediately following the French Revolution—which, it should be remembered, was only the most violent and impressive of the upheavals of that general epoch in many parts of Europe—a distinct reaction toward the Jus Sanguinis appeared. This is variously accounted for; but most historians attribute it to a desire on the part of the older countries of Europe to offset the serious loss of subjects threatened by emigration to America, which had begun to tempt adventurous souls by the opportunity for individual liberty and initiative and escape from the tyrannies of feudalism and religious autocracy.

Whatever the reason, the nineteenth century witnessed on the one hand the return of the nations of the Old World to the Law of the Blood, and on the other the development in the New World of the Law of the Soil.

This is a theoretical statement. In point of fact, in the designation of the mode of acquisition or loss of citizenship, no two of the nations of the world are exactly in accord; the most hopeless confusion exists; but with a constant and increasing effort to harmonize the procedure, and now with a good hope that in the coming days some measure of uniformity may become practicable. In matters of secondary importance, such as the international postal regulations, telegraphic communication and sanitary co-operation, it has been virtually impossible thus far to bring about a common policy. How much more difficult must it be to harmonize the principles of citizenship, involving, as that does, intricate historical and political considerations—immensely complicated by the shifts of boundary due to the war—and the very bases of national existence in the control by the community of the allegiance and the industrial and military service of subjects and citizens?

THE RIGHT TO EMIGRATE

Nevertheless, all countries have in some measure practically recognized the right of the human individual to emigrate, though there have persisted laws and decrees expressing the attempt to retain legal jurisdiction and allegiance. The strength of these efforts depends largely upon whether the basic theory of citizenship has its roots in the Jus Sanguinis or the Jus Solis. For it may be said generally that the nations of the world are divided roughly in this regard by their adherence to the one theory or the other, though we look almost in vain for a pure example of either; in some countries there are interwoven lines of both, and in many it is almost impossible to determine which prevails. For practical purposes, and subject to such modifications as may be made in the era of readjustment upon which the World War has launched us, we may depend upon the following general classification:

The Jus Sanguinis dominates in Austria, China, Finland, France, Germany, Hungary, Japan, Monaco, Norway, Persia, Rumania, Serbia.

The Jus Solis prevails in the canton of Geneva, Switzerland, and in Argentina.

The Jus Sanguinis combined with the Jus Solis is found in Belgium, Greece, Italy, Luxemburg, Russia, Spain, Turkey.

The Jus Solis modified by the Jus Sanguinis prevails in most of the states of the Americas, and in Bulgaria, Denmark, Egypt, Great Britain, Portugal, Sweden, Switzerland.

THE SUBJECT VS. THE ACTIVE MEMBER

In thought and writing on the subject of citizenship, two concepts of the word “citizen” persist, and usually are treated as to such an extent interchangeable as to produce a fatal confusion. For they are not interchangeable. They differ in essence, and it is of the utmost importance that they should be clearly distinguished. In the distinction lies all the difference between Liberty and Autocracy. Something, if not all, of this difference lies in the distinction between the Law of the Blood and the Law of the Soil.

The first and commonest of these concepts is that which must have colored the thought of the feudal lord as he looked upon “his” people, belonging to him because they belonged to the soil which his sword controlled. This concept contemplates the citizen or subject as invested with the character of a national body politic, bound by an obligatory allegiance to it and its political institutions because he is there, born there, or led there by the circumstances of his life.

The other concept, which we like to think constitutes the basis of what we call “America,” for it is of the essence of anything worthy of the name of Democracy, contemplates the citizen as a participant in the fact of sovereignty, one who owns an undivided and indivisible share in the community title, and whose right and duty it is to take a definite part and acknowledge a definite responsibility in the business of government. In this study of naturalization and political life of the foreign-born citizen it is with this second concept that we have most to do.

ESSENTIALS OF CITIZENSHIP: ANCIENT—AND AMERICAN

What, then, are the essentials of that citizenship to which an alien aspires and addresses himself when he seeks to become an active member in the American community whose members are something more than mere chattels of the sovereign?

“There is nothing that more characterizes a complete citizen,” says Aristotle, “than having a share in the judicial and executive part of the government.... He, and he only, is a citizen who enjoys a due share in the government of that community of which he is a member.” But Aristotle was speaking from the point of view of a community in which not all individuals there resident were the sort of citizens he was talking about. According to that great Greek the best-ordered states did not include in the term “citizen” mechanics or others who worked for wages, and utterly unmentionable in any such connection was the great mass of slaves who had virtually no human rights at all. Aristotle’s “citizen” was one of the relatively few endowed with political rights and responsibilities. In the Greek city-states and in the early Roman Republic, citizenship was at first restricted to certain of the older houses (phylos, gentes), but with the development of economic intercourse the few dominant families gradually lost their exclusive power, and other free inhabitants were included in participation in the affairs of state.

In Rome the right of citizenship was conferred at first upon the leading families in allied cities, and later upon whole communities. By the year 100 B.C., nearly all Italians were citizens. But the Empire brought about great restrictions in this matter; a gradual narrowing of the limitations took place; along with a great extension of the name “citizen” came a great decrease in the actual participation of the “citizen” in the business of government; so that by the time the Emperor Caracalla was extending something called “citizenship” to all Roman subjects, he actually was doing little more than to make certain intolerable taxes universal.

So the old Greek and Roman idea of “citizenship” will not answer our purpose. We have, however imperfect our realization of the fact, something quite different to offer, something vastly greater to demand.

In the modern world citizenship has come to mean membership in a political community. It involves the status of an individual with reference to a particular state. And that status is determined by the laws of the individual states, for everywhere it is stoutly maintained that the right to determine how and when a person may become and remain a citizen is one of the first prerogatives of sovereignty. In a number of recent works on citizenship the question has been raised whether the bond of citizenship is by nature contractual. The affirmative is held by Prof. Andrew Weiss of the University of Paris; he declares it to be “generally recognized that the bond of nationality is a contractual one; and that the bond uniting to the state each of its citizens is formed by an agreement of their wills, express or implied.” This view is rejected as unsound by various English and American publicists.[16] These writers assert that whatever may be the theory of the origin of the state, the fact is that the relation of the citizen to the state is a relation sui generis, and that the admission of a person to membership in a state is an act of sovereignty. The law of the state is supreme.

The reasonable fact is that there is an element of truth in both of these contentions. The great increase in facilities for international communication and travel has made emigration a common thing, and the law in practice, whatever it may be in letter, has recognized in varying ways the fact that the human individual can, does abjure his “contract” with the state where he has lived, and seek admission to one which for this reason and that he thinks likely to be more salubrious for the pursuit of what he regards as his happiness. For, after all is said, the fact remains that men stay here or go there in that pursuit. A crowd goes home when it begins to rain not because the crowd is getting wet, but because each individual of it, in his separate personal eachness, so to speak, has water running down his neck and desires to find a place where he can get dry. Waves of emigration represent countless individuals each of whom believes that elsewhere, or in some particular place, he can be more comfortable in the practices and activities which constitute his life by day and by night, and maybe find a broader and richer field in which to grow and raise his family.

The offer of just this kind of opportunity has induced many hundreds of thousands of human beings from all parts of the earth to dissolve the bond, contractual or what you will, between themselves and the land of their birth or previous habitation, and come to these shores. We have invited them, and devised elaborate machinery by which to welcome them into our fellowship. Not only has the invitation been definitely expressed; we have opened wide gates in our bars, and placed premiums upon entrance therein.

BASES OF AMERICAN CITIZENSHIP

The bases of citizenship in this country are two, established in the Constitution of the United States and the legislation and decisions explanatory thereof:

I. Every person, of whatever race descended, born in the United States and subject to its jurisdiction, including children of American fathers born abroad, is ipso facto a citizen of the United States.

II. All other persons eligible for citizenship in the United States must acquire that citizenship through the legal process known as Naturalization.

It was in the great case of Wong Kim Ark[17] that the Supreme Court, in 1897, established the right of citizenship by birth on this soil, regardless of race or descent. The question in this case involved a child born in California, of Chinese parents who, because of their race, could not themselves become citizens. In this decision, a classic in the law of American citizenship, the court set forth the following fundamental principles to be observed in determining citizenship by birth in the United States:

1. The Constitution of the United States must be interpreted in the light of the Common Law, under which every child born in England, even though of alien parents, was a natural-born citizen.

2. The qualifying words in the Fourteenth Amendment, “and subject to the jurisdiction thereof,” exclude two classes of persons—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state. (The latter, from the earliest times, both under the laws of England and in decisions of American courts, had been recognized to be exceptions to the fundamental rule of citizenship by birth within the national jurisdiction.)

The Fourteenth Amendment to the Constitution,[18] adopted in 1868, incorporated no new rule or principle into American law. Neither did the Civil Rights Act, passed in 1866 as a Reconstruction measure, although it was the first statutory definition in the United States of citizenship by birth. That Act says:

COMMON-LAW DEFINITION TAKEN FOR GRANTED

The English Common Law, then, is the original source of our definition. That definition, taken over with the formation of the American Republic out of the English colonies, was so familiar, so much a part of the nature of things political, that nobody thought it necessary to formulate it—or a new one.

When the Constitution of the United States was made, a “citizenship of the United States” was recognized but nowhere defined, and it was nearly a century before it found specific statutory expression in the Civil Rights Act and the Fourteenth Amendment. Meanwhile, not only the courts, but the Executive, invariably recognized the validity of the Common Law Rule, and the Wong Kim Ark decision of 1897 merely restated it once for all.[20]

CONCERNING AMERICANS BORN ABROAD

There are certain elaborations and modifications of the two great principles mentioned above, serving both to confirm and circumscribe them. Children born abroad of American citizens in the foreign service of the United States government are citizens of the United States, and like citizenship comes by birth to children “born out of the limits and jurisdiction, whose fathers were or may be at the time of their birth citizens thereof.”[21] But the father must have been a citizen at the time of the birth of the child, and must have resided actually in the United States; that is, it will not do for him merely to have acquired citizenship abroad by the fact of the citizenship of his father without ever having resided in this country.

If the father loses his citizenship after the birth of the child, it has been held that such child upon attaining his majority may revive his right to citizenship by establishing residence here. And by virtue of legislation enacted in 1907, these foreign-born children of American parentage are required, upon reaching the age of eighteen, to register their intention to become residents, and to remain citizens, of the United States, and upon attaining majority to take the Oath of Allegiance to the United States.

The Department of State has been very liberal in interpreting this provision, allowing the declaration of intention to be made at any time after the person concerned has reached the age of eighteen, and before he has taken the oath, which may be at any reasonable time after his majority. The main question raised is that of good faith. Arises here the principle of “election of nationality”; many countries accord to a person thus in danger of what might be called “dual nationality” the right to choose. This is the case in France, Spain, Belgium, Greece, Italy, Portugal, Mexico, Chile, and Costa Rica. In Portugal, Italy, and France, failure to exercise this choice operates as a choice of citizenship there; in Spain, on the other hand, silence is construed as a choice of the foreign nationality. This is the purport of the American practice.[22]

CHILDREN BORN AT SEA

It is commonly believed that children of foreign parents born on the high seas under the American flag are as a matter of law “born in the United States and subject to the jurisdiction thereof,” but this is not clearly the case. As Borchard puts it, the child “is probably an American citizen under our law and may also be a foreign subject jure sanguinis.” Hence he would, upon attaining majority, have a right of election.

QUESTION OF DUAL NATIONALITY

Can a person gain a new citizenship without losing the old? The aspirant for American citizenship is required in both his declaration of intention and his final petition for naturalization to abjure in most specific fashion not merely all other allegiances, but most particularly that from which he has come. But the sovereignty thus repudiated is not always willing to be abjured, and international diplomacy has been in the past much occupied with the tangles growing out of the question of “dual nationality.” For one not uncommon example, the child of alien parents born in the United States and thereby under our law a citizen of this country, may be taken in childhood back to his father’s native land, and upon reaching military age may be summoned to military service. The United States has not been prone to defend such persons when their actual residence in the old country was clear, but it has been maintained that upon the attainment of his majority such a person has the right to elect and re-establish his American citizenship.

The most common difficulties arise practically, however, from the fact that under the terms of his declaration to become a citizen of the United States, the alien repudiates his allegiance to his fatherland and its sovereignty, but does not gain, and cannot gain, for at least two years in any circumstances, a new citizenship. He has in most specific fashion flouted the government he had, but the government he desires to have will not protect him. For his practical uses, it is a question whether he has now two nationalities or none! Moreover, there have been countries and times in which the right to change allegiance was altogether denied.

In their attitude on the subject of voluntary expatriation the nations differ widely, and are divisible in this matter under three heads: those which deny the right altogether, those which permit it under certain conditions, and those which place no bar in the way.

COUNTRIES DENYING THE RIGHT OF EXPATRIATION

Under the old regime, the Russian imperial government laid a heavy penalty upon the Russian subject who returned to Russia after having been naturalized abroad without the imperial consent.[23]

Turkey, under a law proclaimed in 1869, prohibited the naturalization of its subjects abroad without the permission of the Turkish government. The penalty provided was imprisonment or expulsion.[24] In practice, however, expulsion has been the only penalty inflicted, and the United States has contented itself with an occasional protest.

The practice of Greece is not entirely clear-cut or consistent. A law enacted in 1914 requires the permission of the government before naturalization abroad; in practice this is not given to those who have not discharged their legal obligations as to military service.[25] The practical effect of this attitude on the part of Greece has been shown chiefly in the failure of Greeks in this country quite generally to seek naturalization.

CONDITIONAL RECOGNITION

The obligation which these countries commonly require as a prerequisite to permission is that of military service for the required period. Perhaps the best example of this group is France, which has provided by law that its nationals may divest themselves of their French citizenship provided they are thirty-one years of age, and thus may be presumed to have complied with the conditions of military service.[26] The other countries requiring similar conditions are Italy, the Netherlands, Serbia, and Switzerland; the usual penalty being liability to arrest upon return, and the compulsory fulfillment of the military requirements. But Switzerland provides for an annual tax in lieu of the military requirement.

The United States government has repeatedly sought through diplomatic channels to secure mitigation of penalties inflicted by these countries on its naturalized citizens; in many cases with a greater or less measure of success; but it has been unable to secure by treaty with any of these countries an unconditional recognition of the right of expatriation.

NATURALIZATION TREATIES WITH THE UNITED STATES

The first naturalization treaties which this government negotiated embodying recognition of the right of expatriation were the so-called “Bancroft Treaties” of 1869, with the states of the North German Confederation—Bavaria, Hesse, Baden, and WÜrttemberg. In the four years following similar treaties were concluded with Belgium, Great Britain, Sweden, and Norway, Austria-Hungary, Denmark, and Ecuador. Since then treaties of like import have been effected with Haiti, Portugal, Peru, Honduras, Salvador, Nicaragua, Uruguay, Brazil, and Costa Rica.[27] These treaties provide, in substance, for expatriation at will, but stipulate that subjects liable for offenses committed prior to emigration shall continue liable for the same, and that two years’ continuous resumption of residence in the country of origin shall be presumptive evidence of renewed citizenship in the old country. Under our own law, this loss of acquired citizenship by two years’ continuous residence in the country of origin is specifically recognized. And it is also generally provided that upon return to his former country a naturalized American shall be liable to punishment for the “evasion of an existing or accrued liability to military service”; but he is protected against the exaction of what was at the time of emigration merely (by reason of youth) a future liability to serve.[28]

GREAT BRITAIN

Until the year 1870, England held tenaciously to the doctrine of the indelibility of national allegiance. Everyone was free to emigrate at will and live where he pleased, but wherever he went, and whatsoever he might do in the attempt to acquire another citizenship, he was an Englishman still, in the eyes of the British law inalienably a subject of the British crown. Although the author probably did not realize it, there was a certain grimness underlying the lines in “Pinafore”:

And although the War of 1812 between the United States and Great Britain was chiefly provoked by the insistence of England upon her slogan, “Once an Englishman always an Englishman,” and her refusal to mitigate her policy with regard to British-born sailors naturalized by the United States, the theory continued to be stoutly declared as a matter of principle, though perhaps with diminishing emphasis. Hall says, however,[29] that by 1876 it “had become an anachronism.” And after the report of a British royal commission on the subject, Parliament enacted a statute providing that a British subject might lose his British nationality by naturalization in another country. This long-maintained attitude of Great Britain undoubtedly goes far to account for the failure of many persons of English birth, long resident in this country, and for all practical purposes except political participation Americans, to seek formal adoption into our body politic.

GERMANY

Most of the discussion of our citizenship relations with Germany has centered latterly about the German Citizenship and Nationality Law, better known as the “DelbrÜck Law,” enacted in July, 1913—a year before the outbreak of the Great War. Attention has focused especially on Section 25 of the statute, which reads as follows:

It was charged, and widely believed in this and other countries at war with Germany, that this law was a device, deliberately conceived by the German autocracy with the war in view, to enable Germans living in other countries malevolently, or with ulterior motives and mental reservations, to acquire naturalization there and go through the forms of allegiance, without in fact ever losing, or being able to lose, their German citizenship. The text of the statute certainly gives more than plausible color to such an interpretation.

It may well be doubted whether in normal conditions, and apart from the suspicion of Germany’s every motive, which is justified by her conduct prior to and during the war, this statute would have received any such interpretation in the eyes of the rest of the world; it is difficult to divorce thought of things German from the world’s state of mind for which Germany has only herself to thank. Nevertheless, it is probable that the law was of normal origin, and apologists for it assert that its design was to meet conditions existing with reference to Russia, Italy, and France, all of which in some measure denied the right of expatriation in absence of specific treaty. Section 36 of the DelbrÜck Law definitely declares that “existing treaties are not affected by this Act.” And when the law was under consideration in the Reichstag, the representative of the German government, upon being interrogated as to the effect of Sections 25 and 26 upon the Bancroft treaty between the United States and Germany, replied, in so many words, that the German government was obliged to look upon every German naturalized in the United States as an American and nothing else.[30] Space is not available here for further discussion of the real significance of the DelbrÜck Law; suffice it to say that it is the subject of considerable difference of opinion among the authorities.[31] But it may be said, in general, that the best American authorities seem to be of the opinion that the specific renunciation of each and every former allegiance required by our naturalization process makes it substantially impossible for the disputed section or any other enactment to operate as creating a dual allegiance. Such allegiance could exist only in theory at most; in no practical way could any foreign government enforce it as against any person living in America. The United States, under the Bancroft treaty and its own naturalization law, would not tolerate such an interpretation, and as the “War Encyclopedia” of the American Committee on Public Information said, “it would be impossible for a German applicant for citizenship in the United States to avail himself of this section [Section 25 of the DelbrÜck Law] without committing perjury.”

So far as the “declarant” of any nationality is concerned, it should be added that our Department of State has always sought to maintain that a declarant is in a position different from that of the ordinary alien, has extended a limited degree of protection, and now issues passports under the authority of an Act passed March 2, 1907—provided he has resided in the United States for three years; at the same time protecting itself from imposition by such persons by limiting the validity of such passports to a term of six months, and providing that an extended residence or domicile abroad shall be construed as an abandonment of the declared intention. Moreover, the naturalizing judges and the Bureau of Naturalization examine with great strictness the reasons for any absence whatever from the country after the declaration, and usually construe “intention” with regard to continuous residence with emphasis against the applicant. Many judges permit no absence, however brief, some going so far as to rule against any absence from the very county in which the applicant resides. And during the European War the issuance of such passports to natives of the belligerent countries was altogether suspended.[32]

The United States was early committed not only by specific utterances and practices, but by the whole psychology and tradition of its being, to the principle of free expatriation; nevertheless, great confusion existed in the interpretation of the right as it related to efforts of American citizens to become citizens or subjects of other countries. The policy was finally crystallized in the Act of March 2, 1907, which provides definitely that “any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state.” This is the Act which, in the same section, provides for the extension of naturalization by presumption upon two years’ residence in “the country from which he came,” or upon five years’ residence “in any foreign state.” But it is provided that “such presumption may be overcome on the presentation of satisfactory evidence to a diplomatic or consular officer of the United States, under such regulations as the Department of State may prescribe.” It is stipulated, however, that “no American citizen shall be allowed to expatriate himself when the country is at war.”

During the Great War many American citizens imperiled, and in fact technically lost, their American citizenship by entering the military service of the various belligerent nations. After the entry of the United States into the conflict this was remedied by the enactment of Section 12 of the Act of May 9, 1918, in which it is provided that

... any person who, while a citizen of the United States and during the existing war in Europe, entered the military or naval service of any country at war with a country with which the United States is now at war, who shall be deemed to have lost his citizenship by reason of any oath or obligation taken by him for the purpose of entering such service, may resume his citizenship by taking the oath of allegiance to the United States prescribed by the naturalization law and regulations; ...