Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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NATURALIZATION

II.352.1

NATURALIZATION, the concession by the sovereign power of a state of the rights of citizenship to an alien. This concession, when complete, clothes the alien with all the privileges and subjects him to all the burdens and duties of a native-born subject. Among civilized nations the right is conceded upon the performance of certain prerequisite conditions laid down by the country of adoption, and involves the renunciation, by the naturalized person, of his native allegiance.

II.352.2

—The system of admitting foreigners to the privileges of citizenship is a growth of civilization unknown to communities in an early stage of development. Ancient Rome not only refused such rights to aliens, but its policy did not even contemplate the possibility of a Roman attempting to throw off his native allegiance. The title Civis Romanus was indelible. A citizen might be deprived of his life, but he could not be deprived of his citizenship—civitatem vero nemo unquam ulto populo ussu amittet invitus. (Cic.pro.dom.)

II.352.3

—The social compact which was involved in the early Roman notion of the state, was one which bound the members of the civitas by peculiar obligations, and conferred upon each peculiar and sacred rights. Outside of the sharers in this compact, clothed with their special prerogatives and subject to correlative obligations, all other human beings were grouped as hostes or barbari. With the development of the trade instinct in the progress of civilization the cives were brought into friendly relations with those foreigners who came to Rome for commercial purposes, and to these latter were conceded limited privileges, although for a certain intermediate period they were still regarded as a distinct and separate class, peregrini, mere sojourners. Under the Jus Latinum private rights were granted to individuals, and a sort of collective naturalization was permitted by Jus Italicum which conferred public rights upon whole towns. Finally, all distinctions were swept away by the edicts of Caracalla, who granted citizenship to all the free subjects of the empire, and, later, by the constitution of Antoninus, by which the free inhabitants of the various Roman provinces were made citizens. The feudal system was even more jealous of native rights, and under the common law the development of a liberal policy toward aliens was of a very slow growth. In Great Britain, before the statute of 1844, instances of naturalization were extremely rare, the rights of a native-born subject being conferred only by act of parliament. In the time of Charles II. that body was wont to bestow these privileges with greater freedom than at later times. By the act of 1701 the rights which an alien could acquire were considerably restricted. A more liberal policy prevailed during a part of Queen Anne's reign, but popular prejudice was strongly opposed to the naturalizaion of aliens, and a more stringent act was passed in 1711.

II.352.4

—Among continental nations the general practice is to grant naturalization upon petition to the state department or by legislative enactment. In most European countries naturalized foreigners acquire all the civil and political rights enjoyed by native-born citizens.

II.352.5

—Questions relating to nationality and citizenship have caused frequent international disputes where the claim to the exercise of sovereign rights by the country of birth has come into collision with that of the country of adoption. It is a well-settled principle of international law that to every nation shall be conceded the right to dictate upon what terms it will clothe an alien with the rights of a native-born citizen. But while conceding this, many authorities upon public law have tried at the same time to admit the equal right of every nation to prescribe the terms upon which it will allow a citizen to dissolve his native allegiance. International law, it has been claimed by many publicists, reconciles these conflicting admissions by subordinating both to the principle of recognizing the absolute supremacy of the laws of each state, within its own territory. Thus, an alien who had procured naturalization, after satisfying all the conditions necessary for the acquirement of citizenship in his adopted country, might, according to such authorities, find, upon coming within the territory of his native land, that he had not fully complied with the conditions which that country had laid down for the expatriation of its subjects; and if, while within her borders, the land of his birth should attempt to exercise sovereign rights, those rights and the obligation of his native allegiance would obtain a recognition within the domain of public law. The reasoning which, it is claimed, sustains this attempted reconciliation is, however, wholly specious, and frequent international disputes have proved it incapable of a practical application. In point of fact, the distinction obtains no recognition in municipal law. Every state arrogates to itself the exclusive right to prescribe the conditions upon which it will admit an alien to its citizenship, and when those terms have been compiled with, declares his naturalization complete without looking to see whether or not he has succeeded in expatriating himself in accordance with the local law of his native land.

II.352.6

—This claim of sovereignty involves, of course, a recognition of the correlative right in the naturalized citizen to the protection of his adopted country, wherever he may be, and the principal nations of the civilized world are prompt to recognize that right and to afford the protection, when demanded, even against the country of origin. This point has been a most prolific source of dispute between the United States and other countries, owing to the great quantities of immigrants which we annually receive, and the case with which the mass of aliens can procure naturalization. With Great Britain, especially, the question has more than once involved us in complications of the most serious nature. Until a recent date (treaty of 1870) English judges have insisted that no subject could relieve himself of the duty of allegiance save by the consent of his native country; and American jurists, following the interpretation of the common law which, they claimed, had been unchanged by the revolution, substantially acquiesced in the decisions of the English bench. In point of authority, therefore, English diplomates were far better supported than their American opponents. Yet in the face of the common opinions of English and American jurists, our executive has invariably insisted that the Briton who by naturalization becomes a citizen of the United States was ipso facto relieved of all allegiance to his native country; and although England was able to quote against us the opinions of our most eminent judges, she invariably yielded the point when pushed to the issue, conceding in practice what she denied in principle. The doctrine of common sense always prevailed in the end, the concession being made, sometimes for the sake of international comity, and sometimes to avoid the bloody conflict which an insistence on the point involved seemed to assume. A single instance will suffice to illustrate this statement. The first serious dispute of this character arose during the war of 1812, when Great Britain insisted upon treating as traitors native-born Englishmen, naturalized citizens of the United State, who were taken in arms against the mother country. Upon our attempting to retaliate by confining double the number of English prisoners as hostages, we were notified that the British government, by order of the regent, had imprisoned double that number of Americans, who would be treated with equal severity as the prisoners confined by us; and we were threatened, if we should attempt further retaliation, with a prosecution of the war "with unmitigated severity against all cities, towns and villages belonging to the United States." Fortunately none of the prisoners were executed, but an exchange was effected by the convention of July 16,1814, the British government wisely forbearing to push to the extreme the unreasonable and barbarous doctrine of non-expatriation, a doctrine opposed to the practice of all other civilized nations; for as eminent publicists have agreed, the right to expatriation obtains every where, "save where the state is a jail"—et ubique licet ubi civitas non career est (Bynkershoeck, Quæs. Jur. Pub., cap. 22.)

II.352.7

—The close connection which naturalized Irish-Americans usually keep up with their friends at home, and the fact that numerous Fenian organizations have, from time to time, been started upon American soil, have naturally given rise to many disputes between England and the United States. Irish-Americans, returning to Ireland after naturalization here, have, on certain occasions, been arrested and confined by the English authorities for alleged complicity with treasonable practices, whether proved or suspected, and have relied on their American citizenship to secure them from the operation of the English law authorizing their detention. It has been the invariable practice of our foreign representatives, in considering these applications for intervention, to insist that no distinction should be made between native-born and naturalized citizens of the United States; but at the same time the state department has taken pains to caution our consuls, and our ministers at the court of St. James, from Mr. Adams to Mr. Lowell, while doing all in their power to aid their fellow-countrymen, not to interfere in behalf of those who relied upon a naturalization which they had practically abandoned to protect them in the prosecution of treasonable designs against the government of their native land. That these instructions have been just and reasonable admits of no doubt, despite the clamor of those who insist that in acting upon them our ministers have been wanting in a proper respect for the dignity of American citizenship. We demanded that England should exercise a like discrimination when the relative positions of the two countries were reversed, during the recent civil war, and we insisted upon our right to arrest and imprison British subjects under the suspension of habeas corpus, upon reasonable suspicion of their connection with treasonable acts or designs.

II.352.8

—During the Fenian troubles of 1867-8 an important amendment was added to our naturalization laws. The arrest in Ireland, of Burke, Warren, Costello, and other naturalized Irish-Americans engaged in Fenian plots, was the signal for a loud outcry against Mr. Adams, our minister at London, for his alleged failure to exert himself actively in behalf of men who were engaged in unquestionably seditious proceedings, and who sought to use their certificates of naturalization to protect them against the law of the land, whose provisions they were openly violation. The course pursued by Mr. Adams, like that recently followed by Mr. Lowell, was wholly in accordance with the usual practice of our government, and received the unqualified indorsement of the state department. He was firm to insist upon the thoroughly American principle, that a naturalized American should be treated upon the same footing as a native-born subject of the United States; at the same time he was too much of a statesman not to know that one who violates the law of the land, whether he be a subject or an alien, can not claim exemption from the penalty, and he was too much of a diplomate not to foresee that an attempt to oppose the principle of territorial sovereignty, without being able to show that the law whose enforcement was protested against was abhorrent to the customs of civilized nations, would only involve the mortifying result of placing his government in a position which ultimately they would be forced to abandon. So far from displaying an un-American weakness in yielding to foreign aggression, his attitude was a model of loyal firmness and diplomatic tact. His representations to the British foreign secretary, backed by the sanction of judicial precedent and international practice, showed clearly enough that he would be firm in resisting any encroachments upon the rights of American citizens, as such, while at the same time he avoided even the appearance of an ungenerous and irritating insistence upon purely abstract principles. He thus paved the way for concessions on the part of Great Britain, which practically yielded the points in dispute, concessions which, certainly, would never have been made if he had adopted the sort of policy outlined by those statesmen who pushed through the barbarous act of reprisal which deforms the otherwise commendable statute of 1868. This clause directs the president, when naturalized citizens of the United States are detained by any foreign government "in contravention of the intent and purposes of this act," "in case no other remedy is available," to "order the arrest and to detain in custody any subject or citizen of the said foreign government who may be found within the jurisdiction of the United States, except ambassadors or other public ministers and their domestics and domestic servants, and who has not declared his intention to become a citizen of the United States." "This strange reprisal," says Phillimore, "after the fashion of the first Napoleon, of seizing and imprisoning innocent foreign subjects, is novel in modern public law. It would be equivalent to a declaration of war against the state to which the subject belonged." (Int. Law, vol. i., § 330, note.)

II.352.9

—In junctures such as those which marked the diplomatic relations of England and the United States, in 1848, 1866-8, and 1881, the question of the duty of a state toward its citizens in a foreign country becomes one of great delicacy. The difficulty does not he in any attempted discrimination between native-born and naturalized citizens of this country. We are bound to insist that none shall be made. But there does arise a difficulty, requiring the soundest judgment and discretion, when the representative of this government in a foreign land has to decide at what precise point it is his duty to interfere and protect his fellow-citizens, native-born or naturalized, from the operation of some law of the country where they happen to be sojourning. Writers upon public law have laid it down as a settled principle that every state is sovereign in its own territory, and that an alien within its borders is under an implied contract, in return for the protection which he receives , to yield implicit obedience to its laws, whether they be of a permanent or temporary nature. It has been further stated as the enunciation of an established principle, that no state has a right to demand that its citizens while sojourning in a foreign country shall be exempt from the law of that country. While this is undoubtedly true as a general rule, the uniform sentiment of civilized nations requires that the principle, to be correctly stated, should be qualified by certain limitations. A little reflection will make it clear that occasions may well be apprehended when the United States, for example, would not be satisfied, in answer to its protest against the operation of the law of a foreign state upon one of its subjects temporarily residing in that state, with the reply that the law in question was enforced with no more severity upon Americans than upon the subjects of that country. We should have a right to demand, and the practice and sentiment of civilized nations would undoubtedly sanction the demand, that however that foreign state might treat its own citizens, no American should be subject to the execution of a law which in its principle or its operation was opposed to the customs and jurisprudence of the civilized world. It is a difficult thing to say when a law is of such a nature as to justify such interference, and the nation which arrogates to itself the right to decide that a given statute is contrary to the foundation principles of civilized jurisprudence, assumes the weighty responsibility of making good its assertion. Yet a statement of the general principle should involve the contemplation of such a contingency. By a recent (August,1881) declaration of this character, unaccompanied by the qualifying limitation contended for above, Mr. Lowell, while pursuing, in the main, a course which will commend itself to every fair-minded American, has given his opponents an advantage which they were not slow to seize upon in their attempt to put him in a false light before the country.

II.352.10

—Even as late as 1868 it was an open question, at least so far as any settlement between England and America was concerned, whether or not a subject could, without the consent of his native country, throw off his native allegiance. Mr. Vernon Harcourt, writing, over the signature "Historicus," to the "London Times," Dec. 11, 1867, pointed out the inconsistency of both nations in at times denying, and again at times asserting, either expressly or by implication, and as convenience seemed to dictate, the absurd maxim of the feudal law,nemo potest patriam exuere. Congress finally declared, by the act of 1868 (U.S. Rev. Stat., §1999), that "expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness"; and pronounced any declaration questioning this right to be "inconsistent with the fundamental principles of the republic." This statute is undoubtedly declaratory of the sentiment if not the uniform practice of civilized nations, the great majority of whom now concede that when an alien acquires citizenship by naturalization the country of his origin loses all its rights.

II.352.11

—Great Britain finally admitted this principle by the treaty of 1870, urged thereto by the recommendations of a royal commission appointed in 1868 to consider this question, among others, relating to naturalization, and which advised her majesty that "the common law doctrine of non-expatriation was neither reasonable nor convenient."

II.352.12

—Most of the diplomatic disputes upon the point of nationality which have arisen between the United States and other countries, with the exception of the more important and embarrassing differences with Great Britain, have been those involving the right to exact military duty from naturalized citizens of the United states on their return to their native land. In order to settle definitely all such questions, we have entered into treaties with Austria, Baden, Bavaria, Belgium, Great Britain, the grand duchy of Hesse, Mexico, the North German confederation, Norway and Sweden, Würtemberg and Denmark, which generally provide. 1. that naturalization in accordance with the laws of the adoptive country after a residence of five years shall free the naturalized person from his native allegiance; 2. that the simple declaration of intent to become a citizen shall not have the effect of naturalization; and.3. that a renewal of domicile in the mother country, with the intent not to return,(and two years' residence is presumptive evidence of such intent), shall work a renewal of the former allegiance. A further provision is included in some of the treaties, to the effect that where the subject has left his native country owing military duty, the right to exact which is complete before his departure, such service may be enforced upon his return in spite of intervening naturalization. Although our state department has tried to make these treaties as nearly uniform as possible, and so drafted as to furnish a general rule applicable to all the contingencies of international intercourse likely to happen, it has, so far, been found impossible to cover every case, and questions relating to the construction of the treaties themselves and to their effect have frequently arisen, and will probably from time to time require settlement. For example, in the recent Buzzi case, before the Spanish-American claims commission, the umpire, Count Lewenhaupt, has decided that the claimant can not appear before the tribunal as an American citizen, not having obtained his naturalization papers in accordance with law. Mr. Blaine protested against this ruling, on the ground that the certificate of naturalization is conclusive. Yet where the fact in dispute is covered by a treaty provision, as, for instance, the clause prescribing a five years' residence before naturalization, it would seem that either of the contracting parties should be at liberty to prove, before such a commission, that the conditions of the treaty had not been complied with in procuring the naturalization in dispute. It is hardly to be supposed that other nations will not insist upon the right to question our certificates, as to such particulars as are covered by treaty provisions, when it is notorious that in the city of New York alone shoals of aliens have been fraudulently naturalized by the thousand by corrupt and reckless judges. (see Davenport's "New York Election Frauds," vol, i.)

II.352.13

—In one respect our laws relating to this subject are less liberal than those of any other civilized nation. We alone have prescribed a certain physical standard, and have ruled out certain indelible race characteristics, declaring them obstacles to naturalization which no attainments, moral, intellectual or political, shall suffice to remove. Until 1870 no one but a "free white person" could acquire citizenship. An attempt by Charles Sumner to amend our naturalization laws by striking out the word "white," so as to "bring our system in harmony with the Declaration of Independence," was defeated by a single vote(23 to 22). The opposition came from those senators who wished to exclude the Chinese, while they admitted the negro by adding a clause extending the provisions of the statutes to "aliens of African nativity and persons of African descent." (Act of July 14,1870.) We therefore deny this privilege to all save "free white persons" and Africans negroes. The Chinese, the Japanese, the Malay, and others of a similar ethnological group, are debarred from our citizenship, and our courts are bound to deny them naturalization on the ground of color only—an illiberal and un-American discrimination in starting contrast with the declarations contained in the constitutional amendments enacted since our civil war.

GEORGE WALTON GREEN.

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