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CITIZENSHIP AND ALLEGIANCE IN CONSTITUTIONAL
AND INTERNATIONAL LAW
The recent report on Citizenship of the United States, Expatriation, and Protection Abroad, together with the work of Mr. Van Dyne on Citizenship of the United States, and the invaluable Digest of International Law, by Prof. John Bassett Moore, render easily accessible and readily comprehensible the principles of the American law with reference to the status of our citizens and of aliens for the time being within our territorial limits. At the same time, however, these publications make more evident the fact that, in many instances, the conflicting claims of two or more states upon the same individual are settled rather by mutual concessions than upon principle; that legal and political rights are asserted, but with an understanding, more or less explicit, that under given circumstances they will not be exercised. Thus, by a legislative act, legally binding upon our executive and judicial officers, we have declared the right of the individual to expatriate himself to be an absolute and indefeasible one, and that the naturalized American citizen is to have the same rights and is to receive the same protection as the native-born citizen, whether or not the state of original allegiance consents to the expatriation thus involved. In practice, this law, thus formally declared, has never been rigidly enforced, for the very good reason that to attempt to do so would lead to constant and serious international difficulties.
In other respects, also, the status of citizenship seems not satisfactorily determined. By long-continued executive practice, by constitutional declaration (Fourteenth Amendment), and by judicial determination (United States v. Wong Kim Ark, 169 U. S. 649) the United States have declared that the common-law principle of jus soli shall govern in determining citizenship that in all cases persons born in the United States and subject to the jurisdiction thereof are to be held native-born citizens. Yet, when convenience
and sentiment indicate a different rule, we do not hesitate to affix our citizenship to specified classes of persons born on foreign soil. Again, the political status and the civil obligations of inhabitants of districts not annexed to but occupied by the military forces of a foreign nation, though settled in practice, have not been satisfactorily deduced from any general doctrine of the essential nature of political allegiance. Finally, we continue to have not a little difficulty in determining the exact character of status possessed by the inhabitants of the insular possessions recently annexed by, but not yet "incorporated" into, the United States.
It is clear, then, that it is desirable to obtain, if possible, a definition of the terms "citizenship" and "allegiance as abstract political concepts that will enable us to resolve logically these various difficulties, instances of which have just been mentioned. To the attainment of this end it is the aim of this paper to contribute.
By a "citizen" is commonly meant a member of a state, the word citizenship" being employed to designate the status of being a citizen. "Allegiance," as its etymology indicates, is the name for
the obligation of obediThe state is the political
the tie which binds the citizen to his state ence and support which he owes to it. person to whom this liege fealty is due. Its substance is the aggregate of persons owing this allegiance. The machinery through which it operates is its government. The persons who operate this machinery constitute its magistracy. The rules of conduct which the state utters or enforces are its law, and manifest its will. This will, viewed as legally supreme, is its sovereignty.
In every state, then, we find existing the sovereign and subject, the legal superior and legal inferior. In feudal times this relationship was of an intimate and individual kind. A vassal owed fidelity and obedience to a particular person as his lord. Based upon, and as a development out of, this feudal relationship we find the English law of to-day declaring that all English citizens owe allegiance to that is, are vassals of, the reigning king or queen, as their liege and sovereign lord. They are ad fidem regis. Correctly viewed, however, their allegiance is really to the English State, viewed as a
political person, and the Crown is but the formal or outward symbol and representative of that abstract political personality.
Citizenship thus imparts a personal relationship; and the sovereignty of the state, by which term is indicated the absolute and supreme legal supremacy of the state over its subjects, is, in consequence, essentially personal in character. This fact is of supreme
importance in fixing the nature of citizenship, and one that needs to be especially emphasized because of the statement so currently made, and so generally received, that whereas in former and feudal times sovereignty was personal in character, it is now territorial, when in truth sovereignty is not now essentially territorial at all, but as personal as it ever was.
The predication of territory as an essential element of the state, and the description of its sovereignty as territorial in character and extent, is due to a confusion between the nature of the state when viewed in its relation to other states and its character when considered from the purely constitutional or domestic standpoint.1 Viewed constitutionally, a state is a purely legal institution. 'legal, not in the sense that it owes its existence to a law, but because it operates wholly through law. Its governmental organs and officials have their respective spheres of authority defined and determined by law, its commands are laws, and the reciprocal relations between itself and the persons subject to its authority are in every case legal in character. Its sovereignty is, in short, simply and solely legal supremacy.
Being in essence simply will, it lies wholly within the discretion of those exercising sovereignty to determine the character of the commands it shall utter, and the persons over whom it shall claim authority. All persons, then, wherever situated, and whatever their other political relations and affiliations, are potentially subject to any given sovereignty. Thus it is an established principle of our
1 The difference between the connotation of the term "state" as used in constitutional law, and that which it has when employed in international law, has been carefully treated by Mr. Robert Treat Crane, Ph.D., in his doctoral dissertation entitled, The State in Constitutional and International Law. This study, prepared in the Political Science Seminary, conducted by the writer of this article, has been published in the Johns Hopkins University Studies in Historical and Political Science.
constitutional law, as it is indeed of all developed systems of constitutional jurisprudence, that wherever and whenever sovereignty is asserted to exist by the political department of the government the courts of that government are bound thereby. In a legal, constitutional sense, therefore, the subjects of a state are those persons, wherever they may be, or whatever their nationality over whom legal control is asserted by the proper authorities of that state. It is thus possible for any one state to extend the legal force of its laws over individuals owing allegiance to other states, and, in fact, when those aliens are on the high seas or within their territory, such control is claimed and exercised by all modern states. It is furthermore possible for a state to declare its laws, or certain of them, binding upon its own citizens when abroad. The sovereignty of a state being personal and not territorial, the constitutional subject of a state remains a subject wherever he may be. He is thus, when abroad, entitled to the protection of his native state, and, on the other hand, may be, by that state, held responsible for acts committed while abroad. Thus, for instance, the French law governing marriage and divorce is held to govern the French citizen wherever he may be, and his marriage solemnized according to the lex loci is not held valid by French law unless the special requirements of that law have been satisfied.
Illustrations of the exercise of sovereignty outside of the territorial limits of the state exercising it are seen in the present administration of Cuba by the United States, in the establishment of the United States Court for China, and in the extraterritorial jurisdiction exercised by consular courts generally. In all these cases, viewed constitutionally, these governmental agencies, and the officers who administer them, have a two-fold legal status, one derived from the state in which they are situated and one from the other state by which
2 Foster v. Neilson, 2 Pet. 253; United States v. Reynes, 9 How. 127; Jones v. United States, 137 U. S. 202. In the last case, the court say: "Who is the sovereign, de facto or de jure, of a territory is not a judicial but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances."
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they are created or commissioned.
Thus, the United States officials now in Cuba, and the United States judge and other court officers in China, are commissioned under the United States law, Congress and the President deriving their constitutional power to appoint them from the control over foreign and military affairs granted them by the Constitution. But, looked at from the local viewpoint, they are quoad hoc agents of the state within whose territory they act, and the law which they administer is the law of that state. Thus, the Supreme Court of the United States was quite correct in holding in the Ross case (In re Ross, 140 U. S. 453) that the United States constitutional provision as to jury trial did not apply in the United States consular court in Japan; but it was incorrect when it gave as a reason that "By the Constitution a government is ordained and established for the United States of America', and not for countries outside of their limits. The guarantees it affords against accusations of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad." The correct reason why, in this case, jury trial was not necessary was, not because the Constitution had no application outside of the territory of the United States, but because the consular court was in fact applying local Japanese law.
The United States Constitution may operate outside of the territory of the United States. If it did not it would not be possible for any agent of the United States as, for example, a consul, a consular judge, a diplomatic agent, or a military officer to exercise authority as such outside of America. But though these officers thus derive their authority from the United States law to act in behalf of the United States, the law which they enforce is the local law, and they act as the agents of the local government in applying it.
In the constitutional sense of the word, it is proper to denominate as a subject or citizen of a state anyone over whom the laws of that state in any wise extend. Thus, the citizens of other countries.