Part 6
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”:
But, in spite of all temptations To belong to other nations, He is an Englishman!
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:
A German who has neither his residence nor permanent abode in Germany loses his citizenship upon acquiring foreign citizenship, provided the foreign citizenship is acquired as a result of his own application therefor or the application of the husband or legal representative; but in the case of a wife of one having a legal representative, only when the conditions exist under which expatriation may be applied for according to Sections 18 and 19.
Citizenship is not lost by one who, before acquiring foreign citizenship, has secured on application the written consent of the competent authorities of his home state to retain his citizenship. Before this consent is given the German consul is to be heard.
The Imperial Chancellor may order, with the consent of the Federal Council, that persons who desire to acquire citizenship in a specified foreign country may not be granted the consent applied for in paragraph 2.
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; ...
such oath to be taken here or abroad, before any state or Federal court authorized to naturalize aliens, or before any United States consul.
CITIZENSHIP TAKES NO ACCOUNT OF SEX
Basic citizenship in the United States takes no account of sex. _Every_ child, male or female, white, black, brown, red, or yellow, “born in the United States and subject to the jurisdiction thereof,” is _ipso facto_ a citizen. And every unmarried woman of that nativity is, and continues to be such, as long as she remains unmarried. Upon marriage she takes forthwith, whether she will or no, so far as our law is concerned, the nationality of her husband--even if he be an alien. It is the unbroken tradition of our law, and of the laws of nearly all other nations--in so far as they recognize women as being individual citizens at all--that the nationality of a wife follows that of her husband. Of that tradition was born a section of the law of 1907 which seeks to confer upon any American woman marrying a foreigner the nationality of her husband. When an alien man becomes a citizen of the United States by naturalization, his wife, in ordinary circumstances, becomes a citizen with him; the law says specifically that “a woman who is now, or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, may be deemed a citizen.” But, generally speaking, she must, unless herself American born, be resident in this country. The practice in this regard has not been wholly consistent; the State Department has held repeatedly that the naturalization of a husband does not reach the wife if she continue to reside in the old country; but a very uniform line of decisions is to the effect that her husband’s naturalization makes her a citizen wherever she may be, and that she remains a citizen even after his death unless she takes action to repatriate herself. The Act of 1907 makes it necessary for such a foreign-born widow resident abroad to register with a United States consul within a year after the termination of her marriage; otherwise her citizenship lapses.
The phrase, “who might herself be lawfully naturalized,” has given rise to much controversy, and its significance has not been definitively declared. Some authorities hold it to apply only to the Oriental races excluded as such from citizenship; others hold that it should be interpreted to call for an examination of the wife as to her views on the subject of anarchism, polygamy, etc. But the general tendency seems still to hold that the family is one, _and the husband that one_; that, therefore, _any_ sort of wife comes into citizenship automatically with the naturalization of her husband.
“A WOMAN WITHOUT A COUNTRY”
The nonresident American-born wife of a foreigner may, upon his death or the termination of the marriage in any other legal manner, resume her American citizenship by registration with a United States consul. But what of the woman, born an American citizen, married to an alien who continues to live? The United States statute of 1907 undertakes to expatriate her--“any American woman who marries a foreigner shall take the nationality of her husband.” But, in absence of specific treaty, or of legislation in the husband’s country to that effect, that pronouncement is without force or validity outside of the United States; Congress has no power to confer or inflict the citizenship of any other nation upon anybody. “The operation of this statute might easily deprive a woman of her American citizenship--even if she had it by right of birth--and leave her with none.”[33] It seems rather extraordinary that of all the judges of American naturalization courts replying to the questionnaire of the Americanization Study, whose results are discussed elsewhere in this volume,[34] not one referred directly to this aspect of the citizenship of the American woman.
The person without a country is an alien everywhere his foot may fall--no matter under what roof or flag he may seek shelter. He is subject to the local laws and limitations governing aliens; but he has no homeland whose flag he may call his own; no government anywhere to which he may appeal for protection; he is dependent without recourse upon the hospitality, grace, and mercy of the public authorities and the people of the land where he chances to make his habitation.
THE AMERICAN UNDER THREE JURISDICTIONS
In notable contrast with this dismal prospect, the American citizen, native or naturalized, is quite otherwise. He is subject to _three_ concurrent jurisdictions. This fact is a source of great puzzlement to many an applicant for citizenship, and constitutes one of the stumbling-blocks which beset him in his initial understanding of our system of government.
First, the nature of his relation to the United States. In the case of Minor _vs._ Happersett,[35] decided in 1875, the Supreme Court of the United States said:
Before its adoption, the Constitution of the United States did not in terms prescribe who should be citizens of the United States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.
For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words “subject,” “inhabitant,” and “citizen” have been used, and the choice between them is sometimes made to depend upon the form of government. “Citizen” is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the states upon their separation from Great Britain, and was afterward adopted in the Articles of Confederation and in the Constitution of the United States. When used in that sense it is understood as conveying the idea of membership of a nation, and nothing more.
To determine, then, who were the citizens of the United States before the adoption of the [Fourteenth] amendment it is necessary to ascertain what persons originally associated themselves together to form the nation, and what were afterward admitted to membership.
The effect of this decision, and of the Fourteenth Amendment whose meaning it declared, was to determine definitively that National Citizenship is paramount to State Citizenship. But it did not entirely absorb the latter into the former. In the famous “Slaughter House Cases”[36] the Supreme Court three years before had held that there might be citizens of the United States who were not citizens of any state, and that the Fourteenth Amendment applied particularly, if not solely, to the privileges and immunities of citizens of the United States, _as such_, and did not necessarily limit the right of a state to inflict disabilities upon its own citizens.
The distinction between the two citizenships was thus stated in the Slaughter House cases:[37]
The distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual.
It is therefore decided that while a State may no longer decide the question of who shall be or become its citizens, the citizen of the United States must, before becoming a citizen of a State, take up his residence within the State. The term of residence is nowhere fixed, but a permanent residence or domicile is understood, “with intent that it shall continue until subsequent removal with the intent of abandoning such residence and acquiring another.”
These momentous adjudications did not, however, address themselves to the matter of political participation. Although a state might not determine who should constitute its citizen body, there was no curtailment of its full authority to determine what political privileges should exist, or who should enjoy them. Neither Federal nor state citizenship, _per se_, entitles a man or woman to vote or to hold office; these are matters of state legislation and a number of states have accorded, and two still accord, to aliens who have merely declared their intention to seek citizenship, the right to vote. Moreover, respected authorities[38] hold the opinion that, while no state can prevent a citizen of the United States from becoming a citizen of the state, a state may grant its own citizenship to one who is not--perhaps to one who cannot become--a citizen of the United States.[39] But the Act of Congress, May 6, 1882, expressly prohibits the naturalization of any Chinese person.
The courts from the beginning have recognized the existence of two concurrent, if not more or less separable, citizenships. In the Cruikshank case in 1875,[40] the Supreme Court said: