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us with doubts, and had periodically threatened our national existence. They establish a citizenship of the United States that is wholly independent of local or state citizenship, — thus completely reversing the Jeffersonian theory. For a person may now be a citizen of the United States without being a citizen of any particular state in the Union; but no
one can become a citizen of any particular state without becoming a citizen of the United States. A citizen of the United States must “reside" in a particular state in order to become a citizen thereof; but in order to be a citizen of the United States, it is only necessary to have been born or naturalized anywhere within our national domain and jurisdiction.
Another test of nationality, usually adopted by commercial nations, is that by the nationality of the father. In the Latin-American states the nationality of the mother fixes the nationality of the child born abroad or on the high seas. But the principle is the same in both cases. “By the law of nations," says Vattel, “children follow the condition of their fathers, and enter into all their rights. The place of birth cannot, therefore, in itself, produce any change in this particular, nor furnish any valid reason for taking from a child what nature has given him.” But, in adopting this rule our government made it a condition that the “ rights of citizenship shall not descend to persons whose fathers never resided in the United States.” 1 Nor has our government ever strenuously insisted upon the allegiance of persons born of American parents in countries whose fundamental laws make the place of birth the sole test of nationality, at least so long as they remain in the country of their nativity. Thus by
1 Act of Congress, Feb. 10, 1855, which, however, is merely an affirmation of the old English common law.
the Colombian constitution all persons born in Colombia are Colombians; whereas, a person born there of American parents is by our law a citizen of the United States. But, so long as such citizen is voluntarily domiciled in Colombia, we do not claim his allegiance as against that country. If, however, he passes out into Venezuela, for example, or into some country other than Colombia, we claim his allegiance and award to him the corresponding protection.
This is right, in principle at least. For it is manifest that the adoption of the test of nationality by the nationality of the parent, even in this modified form, logically requires the abandonment in a corresponding degree of the test by place of birth. Hence, in order to avoid possible conflict, our law of April 9, 1866, generally known as “the Civil Rights Bill,” in declaring to be citizens “ all persons born in the United States,” adds the proviso that they be “not subject to any foreign power." Substantially the same principle prevails in the laws of both England and France. The English law, like our own, lays chief stress on the place of birth; while in France, the father's nationality usually, though not always, determines the nationality of the child.
It is sometimes important to know how or under what circumstances a citizen of the United States may be deemed to have changed his allegiance; but, more particularly, how or under what circumstances a naturalized citizen of the United States may be deemed exempt from obligations resulting from his former allegiance. These questions are constantly coming up for consideration in the administration of our foreign affairs. For although most European countries have either totally abandoned or greatly modified the old feudal doctrine of indelible allegiance, there are still
conflicting theories of expatriation. Thus, while, by
, our law of July 27, 1868, expatriation is declared to
a natural and inherent right of all people,” by the laws of some other countries an emigrant incurs loss of civil rights in his native country, and (should he return) certain penal consequences, if the emigration took place without permission of the government.
Again, there are still as many as four general systems of naturalization, and some of these are more or less conflicting. First, that by continuous residence for a stated period, renunciation of native allegiance, and oath of allegiance to the adopted country, as in the United States. Second, that by employment in the public service, residence for a stated period, oath of allegiance, and certificate issued at the discretion of a cabinet minister, as in England. Third, that by employment in the public service or certificate from the government, as in Prussia. And, fourth, that by residence for a stated period and certificate from the government, without oath of allegiance, as in France. And, in addition to these general systems, there are exceptional methods of naturalization; as, for instance, in the United States, by military or naval service, coupled with one year's residence; or, as in England, by two years' actual service in the navy in time of war. Some of these conflicting theories have been partially reconciled by treaty; but there still remains sufficient diversity to give rise to ever-recurring disputes as to whether a naturalized citizen of the United States, on returning to the country of his native allegiance, is justly entitled to the protection of our government while there.
To become a citizen of the United States, a foreigner must reside at least five consecutive years in the country; and, two years before applying for a certificate of naturalization, he must file a preliminary declaration of intention to become a citizen. In addition to this, he must take an oath abjuring all former allegiance and promising to support the Constitution of the United States. Before his final admission, he must prove, by at least two trustworthy citizens of the United States, that his residence of five years in the country has been continuous; and he must also satisfy the court admitting him that, during this time, he has behaved himself as “a man of good moral character,” attached to the principles of our Constitution, and “well disposed to the good order of the government." Finally, the country of his former allegiance must be at peace with the United States at the time of his admission, for a subject or citizen of a belligerent cannot transfer his allegiance.
The incongruity in our existing legislation on this subject is, that it clothes petty local municipal and state courts with authority to grant certificates of naturalization. The judges of these tribunals, usually elected for short terms by universal suffrage, are not sufficiently removed from the influences of ward politics or local "bossism” to be independent. The result is that naturalization frauds have become the rule rather than the exception. To remedy this, our national or federal courts ought to have as exclusive jurisdiction in all matters pertaining to the naturalization of foreigners, as is the power of Congress to legislate upon the subject.
When an alien has fully complied with all the conditions named, and received his certificate of naturalization in due form, he is of course no longer a foreigner, but a free citizen of the United States. And so long as he remains in the country he is entitled to all the privileges and immunities of a native-born citizen. But it does not necessarily follow that he is on a footing of equality with the native-born citizen while outside the territory and jurisdiction of the United States; for if he visits the country of his former allegiance, the protection to be awarded him therein by our government becomes complicated with other questions of natural rights which no civilized government can afford to disregard. Certainly his change of allegiance does not discharge him from obligations and penalties which he may have incurred before emigration. These remain; nor is it in the power of the government of his new allegiance to absolve him from them. Hence he cannot be said to carry with him abroad all those rights and immunities which are the heritage of every native-born American citizen.
There is a very common error of opinion on this point; and, much to our discredit, this error has been incorporated in a law of Congress. I allude, of course, to the Act of June 27, 1868, generally known as the “Expatriation Act” (already cited), which declares “the right of expatriation ” to be “a natural and inherent one of all people” (meaning peoples); and it then proceeds to declare that “ all naturalized citizens of the United States, while in foreign countries, are entitled to, and shall receive from this government, the same protection of person and property which is accorded to native-born citizens."
The inaccuracy of these declarations is manifest. In the first place, while the Act gratuitously assumes to speak for the whole human race, it omits to say how or under what circumstances this “inherent right" of all peoples may be exercised by American citizens. It fails to define “expatriation," or to say what is essential to its full attainment, or what shall be the evidence of its accomplishment. In the next place, the declaration that all naturalized citizens, while in the country of their