Part 5

The importance of it lies in the fact--obvious to any right thought about it--that we want for our new citizens _only those who come of their own accord and free will_. We want, moreover, only those who are right-minded. The effort to stamp out the use of every mother tongue but one, to obliterate all affection for the old home in Scandinavia, Bavaria, Dalmatia, Bohemia, not only is futile; we do not want for our fellow citizens the kind of people who can turn their back without a qualm upon the memories of childhood.

Breathes there the man with soul so dead Who never to himself hath said, This is my own, my native land! Whose heart hath ne’er within him burned As home his footsteps he hath turned From wandering on a foreign strand?

What sort of an American could be made out of one able in any circumstances--worst of all under repressive compulsion--to turn his back upon the tongue, the traditions, and the associations of his fathers? We are not such ourselves, and in our sane minds we do not want those who join us to be such. The process of real assimilation is a process slow in its nature, reaching not forms and words, but sentiments of the highest and most subtle kind.

You cannot beat love of country into any worthwhile person with a club--or with a law.

III

CITIZENSHIP: UNDER THIS FLAG, AND OTHERS

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,

... Joshua, and all Israel with him, took Achan the son of Zerah, and the silver, and the garment, and the wedge of gold, and his sons, and his daughters, and his oxen, and his asses, and his sheep, and his tent, and all that he had; ... and all Israel stoned him with stones, and burned them with fire, after they had stoned them with stones.[15]

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:

All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are citizens of the United States and of the States where they reside.

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.

By the Common Law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents--and in the latter case whether the parents were settled or merely temporarily sojourning in the country, was an English subject; save only children of foreign ambassadors ... or a child born in hostile occupation of any part of the territories of England.[19]

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.