Under Article XIV., amendment of the Constitution of the United States, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The two methods indicated in which one may become a citizen of the United States are very simple and intelligible; first, by birth in the United States;[58] and, second, by naturalization therein. The only qualification as to either method, applies to the first, requiring that a citizen by birth must not only be born within the United States, but he must also be “subject to the jurisdiction thereof,”—meaning that whole and complete jurisdiction to which citizens generally are subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government. The process of naturalization, whereby one renounces any foreign allegiance and takes upon himself the obligations of citizenship, is equally simple, being effected by proceedings under general laws prescribed by Congress; which is empowered by the constitution “to establish an uniform rule of naturalization.” The Fourteenth Amendment, in the clause above quoted, certainly recognizes that there is a citizenship of the United States, and also a citizenship of the several States; and that the two coexist in the same persons. It is no longer possible to conceive of such a status as citizenship of a State unconnected with citizenship of the United States, or of citizenship of the United States, with a residence in a State, unconnected with citizenship of the State. The States cannot naturalize; the act of naturalization by the United States is the grant of citizenship within the State where the naturalized person resides. It is only in the Territories and other places over which the State has ceded exclusive jurisdiction to the United States that there can be a citizenship of the United States unconnected with citizenship of a State. There are in the United States system:
1. The several bodies of electors which compose the several States, in their character of sovereign and independent political communities, united as such by the constitution, and which are alone invested with political rights and charged with political duties.
2. The several bodies of citizens, which compose the several States in their character of separate civil societies, each of which bodies is immediately subject to the government and entitled to the protection of the particular State to which it belongs, but does not necessarily have a voice or share in the government, state or federal.
3. The common body of citizens of the United States, that is to say, the citizens of each State and Territory, as “entitled to all privileges and immunities of citizens in the several States.”
These privileges and immunities have always been construed to mean such rights and privileges as are in their nature fundamental, such as belong of right to the citizens of all free governments, such as at all times have been enjoyed by the citizens of the several States from the time of their becoming free, sovereign, and independent. Recognizing the distinction between the inhabitants of a State and its citizens, Mr. Caleb Cushing defines the latter as the “sovereign, constituent ingredients of the government.” To the same effect speaks Mr. Chief-Justice Waite in the United States vs. Cruikshank: “Citizens are members of the political community to which they belong. They are the people who compose the community, and who in their associated capacity have established or submitted themselves to the dominion of a government for the promotion of their general welfare, and the protection of their individual as well as their collective rights.”
The political community in a State differs from the civil community; it is less numerically, but it comprehends special privileges. Membership therein implies the possession, not only of the civil rights, but of the privilege of participating in the sovereignty. Whereas membership in the civil community alone implies merely the possession of the civil rights,—i.e., the rights of personal security, of personal liberty, and of private property.[59] Under the Articles of Confederation, the States constituting only a league, citizenship of the so-united States was a thing inconceivable; accordingly the only citizenship then possible, as a legal fact, was citizenship of the State. National citizenship was introduced for the first time by the Constitution of 1787. Still that constitution contained no definition of citizenship of the United States. Under the provision that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States,” a person going from one commonwealth into another, acquired no other status than that held by the race or class to which he belonged in the commonwealth into which he went. The only sense in which a citizenship of the United States existed was in the provisions where it appears as a qualification for office. The phrase “citizen of the United States” is employed three times, as to eligibility for the several positions of President, Senator, and Representative in Congress. From the adoption of the constitution to the time of the ratification of the Fourteenth Amendment thereto, the existence of such a thing as citizenship of the United States, in the sense of a citizenship independent of the citizenship of the several States, was hardly admitted. Then citizenship of the United States was not primary and paramount, but secondary and subordinate; it was only an incident of State citizenship. Story wrote in his Commentaries: “It has always been well understood among jurists in this country that the citizens of each State in the Union are ipso facto citizens of the United States.” Said Mr. Calhoun, in his speech on the “Force Bill,” delivered in 1833, “A citizen at large, one whose citizenship extends to the entire geographical limits of the country without having a local citizenship in some State or Territory, a sort of citizen of the world, such a citizen would be a perfect nondescript; not a single individual of this description can be found in the entire mass of our population.” Mr. Justice Curtis, in his dissenting opinion in the Dred Scott case, took the position that citizenship of the United States was dependent entirely upon citizenship of some one of the several States as such. Mr. Calhoun and Mr. Curtis agreed that the power of Congress, under the constitution, “to establish an uniform rule of naturalization,” was simply the power “to remove the disabilities of foreign birth.” On the other hand, Mr. Justice Marshall, in 1832, held, in the case of Gassies vs. Ballon, that a naturalized citizen of the United States, residing in any State of the Union, was a citizen of that State. Marshall and Curtis, in their respective views, represented the difference which obtained between the advocates of State rights and their opponents, on the question of citizenship of the United States. By the adoption of the Fourteenth Amendment this was all changed, and is now placed beyond controversy. The principle is inverted.[60] Citizenship of the United States now depends in no way upon citizenship in any State or Territory, but merely upon birth in the United States, coupled with subjection to the jurisdiction thereof, or upon naturalization. The term “subject to jurisdiction,” must be construed in the sense in which the term is used in international law, as accepted in the United States as well as in Europe; and by this law the children born abroad of American citizens are regarded as citizens of the United States, with the right, on reaching full age, to elect one allegiance and repudiate the other, such election to be final. If the Fourteenth Amendment furnished an exhaustive and comprehensive definition of citizenship, such children would not be citizens. That it does not furnish such definition is intimated by Mr. Justice Miller in the Slaughter-House cases, and by Mr. Justice Field in his dissenting opinion. In the same cases it was decided that the privileges and immunities appurtenant to citizenship of the United States were different and distinct from those appurtenant to State citizenship; being merely those special and limited privileges and immunities arising from the special and limited scope under the constitution of the federal or United States authority. The theory laid down in the Slaughter-House cases suggests a query as to the converse. Cannot a person in a substantial sense be a citizen of a State and at the same time not be a citizen of the United States, the Fourteenth Amendment to the contrary notwithstanding? Is it not within the power of a State to grant to an alien, residing within its limits, all the rights and privileges enjoyed by its native-born or naturalized citizens, so far as such rights and privileges are under control of the State?—that is, to naturalize an alien to the extent of its own exclusive jurisdiction, even to the extent of voting for United States officials, thus practically making him a member of the political community in the United States. Said the Supreme Court, through Chief-Justice Taney, in the Dred Scott case: “We must not confound the rights of citizenship which a State may confer within its own limits and the rights of citizenship as a member of the Union;” and Mr. Pomeroy, in his “Constitutional Law,” writes: “While it is settled that the Congress of the United States has exclusive authority to make rules for naturalization, it must not be understood that the States are deprived of all jurisdiction to legislate respecting the rights and duties of aliens. They may permit or forbid persons of alien birth to hold, acquire, or transmit property; to vote at State or national elections, etc. These capacities do not belong to the United States citizenship as such.” It is true that the constitution of the United States makes no one a member of the political body, a capacity which comes only with citizenship of the State; and therefore it confers the right to vote upon no one. That right comes even to the “citizens of the United States,” when they possess it at all, under State laws, and as a grant of State sovereignty. The amendment, Article XV., confers upon citizens of the United States a new exemption; namely, an exemption from discrimination in elections on account of race, color, or previous condition of servitude; and to the extent that, should it be needful to protect this exemption, Congress may provide by appropriate legislation. The Fifteenth Amendment endows the individual with the potentiality of enfranchisement, not its actuality, and did not absolutely make him an elector. It did not deprive the people of the States of the discretion, in their primary capacity, to decide who of their number should enjoy the political franchise. It simply forbade them to adopt a particular rule of discrimination.
The Swiss constitution goes far beyond that of the United States in dealing with citizenship, and the rights, civil and political, thereto commonly appertaining. It practically reverses the system as it exists in the United States. There are no citizens of Switzerland and ipso facto citizens of the Canton “wherein they reside.” To the contrary, “every citizen of a Canton,” the constitution declares, “is a Swiss citizen.” In the words of an eminent Swiss writer, “The national citizenship proceeds from below.” As to the electoral body, while in the United States it is determined by the State, within the limitations of the Fifteenth Amendment, in Switzerland, with the exceptions as to communal corporate matters, it is fixed by the Confederation in its organic law, with provisions clear and full. Swiss political active citizenship is derived from above, proceeding from the Confederation, and from this source descending to the Canton and the Commune. The individual once admitted to cantonal citizenship, the Confederation steps forward and invests him with its nationality, and asserts its exclusive dominion over him as an elector, declaring he may take part, in any place where he has acquired residence, in all federal elections and votes. Coming from any part of the Confederation and taking up his residence in a Canton, he may, after a residence of three months there, enjoy in his place of settlement all the rights of a citizen of the Canton; and with these, also, the rights of a citizen of a Commune, except as to the common property and corporation. The Confederation, under the constitution, is charged with fixing, by law, “the limits within which a Swiss citizen may be deprived of his political rights.” Swiss citizenship, as defined in the constitution,—“Every citizen of a Canton is also a Swiss citizen,”—is far from being so accessible as the simple terms of its definition might imply. It is a difficult, tedious, and expensive process. As the cantonal citizenship precedes the federal, so the communal citizenship precedes the cantonal. Every Swiss citizen must belong to some Commune. He must possess a Commune of origin, which in French is called “Bourgeoisie,” and in German “Bürgergemeinde.” If not obtained by inheritance, then he must purchase it at what the Commune sees proper to charge; only a few poorer Communes having free admission, or at least with trifling fees.
The foreigner, seeking Swiss citizenship, must first show that he has resided in Switzerland during the two years preceding his application, and that there is nothing in his relations to his native country that will involve prejudice to the Confederation by his admission to Swiss citizenship. These conditions being satisfactorily complied with, he is granted by the Federal Council authority to be received as a citizen of a Canton and of a Commune; and for which permit he pays the Confederation thirty-five francs. The Federal Council, with considerate regard for the serious undertaking of the applicant, allows two years within which the permit may be used, and if, at the expiration of that period, it be desired, will renew it upon the payment of a small additional tax. On receiving the permit the holder sets out to find communal citizenship, as the first essential step. This, as described, is practically a matter of purchase. With this acquired, he must supplement it with cantonal citizenship, and of that Canton in which the Commune is located, otherwise it is of no avail. The agreement for communal membership is always predicated upon the favorable action of a Canton, and the consideration is not paid until its action is had. The cantonal citizenship is the pons asinorum,—it is the cap-stone, and the most difficult to secure. The permit from the Federal Council is freely given; the communal admission a question largely of francs, with some slight inquiry as to character and condition; but the Canton considers the petition from a different and higher stand-point. The Canton is not particularly concerned about the applicant being able-bodied and possessed of those qualities and conditions which insure contribution from him rather than distribution to him from the common property of the Commune. The Canton has regard to whether the applicant will be a desirable citizen, and not to the material aspects which are paramount with the Commune. It occurs, not infrequently, that a successful purchaser of communal membership fails as a petitioner to pass the cantonal ordeal.[61] The granting of a cantonal or communal naturalization without the previous approval of the Federal Council is void; and the federal authority to acquire citizenship is equally futile, until followed up by cantonal and communal naturalization according to the laws of the Canton. This involved process that hedges Swiss citizenship, and the cost of its selection in a desirable Commune, have deterred many foreigners who have taken up their permanent residence in Switzerland, from making any attempt for its acquisition. The number of this class at present is estimated to be nearly ten per cent. of the whole population; and the Federal Council is considering the policy of amending the law, so that naturalization may be more easily effected, in order to convert a great portion of these strangers into Swiss citizens. When Swiss citizenship is once obtained, by birth or naturalization, it is not easily lost or set aside. In this the federal constitution determines the conduct of the Canton, and does not permit it “to banish one of its citizens from its territory, or deprive him of the right of citizenship.” The “right of township or origin,” the highest and firmest right of citizenship, is a sacred and imprescriptible right, which the constitution places above any power to take away or impair. By virtue of the constitutional authority of the Confederation, “to fix the conditions upon which foreigners may be naturalized, as well as those upon which a Swiss may give up his citizenship in order to obtain naturalization in a foreign country,” a federal law was enacted in 1876. It provides that “a Swiss citizen may renounce his citizenship if he has no domicile in Switzerland, and if he is enjoying fully all civil rights according to the laws of the country where he resides, and that he has already acquired citizenship in another country, or the assurance of its being granted for himself, his wife, and minor children. The declaration of renunciation is to be submitted in writing, accompanied by the required statement, to the cantonal government, which will notify the respective communal authorities, in order to inform such parties as are interested, and a term of four weeks is fixed for presenting objections.” The Federal Tribunal decides in such cases, where objection is made to the renunciation; and in event of no objection being made, or if made and judicially overruled, then the discharge from cantonal and communal citizenship is pronounced and entered on record. This discharge includes Swiss citizenship or denationalization, and dates from its issue and delivery to the applicant; it also extends to the wife and minor children, when they are domiciled or living together, and if no special exceptions be made in regard to them. The widow or the divorced wife of a Swiss citizen, who has renounced his nationality, and such children of a former Swiss citizen, as were minors at the time of such renunciation, may request of the Federal Council to be readmitted as citizens. This privilege will not be granted to the widow or divorced wife, unless the application be made within ten years after the dissolution of the marriage; nor to the children, unless made within ten years after attaining their majority. After the expiration of these periods, the parties in either case must acquire citizenship in the manner prescribed for aliens. The substance, indeed, the identical phraseology, of this law was anticipated by the Federal Council in its answer, made in 1868, to an appeal from the British government, relating to expatriation and naturalization. The Council closed its answer in these words: “The right of Swiss citizenship ceases only with the death or by the voluntary renunciation, by the person who possesses it, of his cantonal and communal right of citizenship, and by the release which a competent authority, cantonal and communal, gives him. But this emancipation from the ties which bind him to the state is not granted until the proof exists, in due form, of the acquisition of citizenship in a foreign country.” It is manifest that the entrance to and exit from Swiss citizenship is by no means through a broad and open door. The firm tie which binds him with “hoops of steel” to his country is not loosed by the mere acquisition of citizenship in another country; but proof must be submitted that he was under no disability at the time of doing so, and that he is in the full enjoyment of all the civil rights of his adopted country. In the event of a member of a Commune moving to another Canton, who does not thereby divest himself of his original communal citizenship, and fails to secure membership in the Commune where he settles (for one may become a member of several Communes), he assumes a citizenship of a twofold nature, and therefore, as explained in the chapter on “Communes,” there exist in many Communes two governments,—a citizens’ government and a political government, distinguished as the community of citizens and the community of inhabitants or settlers. This principle also results in a dual national citizenship, and consequently conflicting claims of correlative rights and duties. To provide against embarrassing contingencies that might arise from this situation on the part of Swiss who have acquired citizenship in a foreign state,—without the required formal and expressed voluntary declaration of renunciation, with its equally formal and expressed acceptance to render it valid,—the federal law of 1846 declares that “persons who, in addition to Swiss citizenship, are citizens of a foreign country, are not entitled to the privileges and the protection accorded to Swiss citizens, during their residence in such a foreign state.”
It is this imprescriptible feature of Swiss communal citizenship, so deeply embedded in the public sentiment of the country and engrafted in the organic law, that has stubbornly blocked the way to all efforts, on the part of the United States, to negotiate with that country a naturalization treaty. Such treaties of reciprocal naturalization exist between the United States and all the European nations, except the two absolute monarchies of Russia and Turkey, whereby it is stipulated that domicile of certain duration and naturalization shall be recognized by both parties as terminating the previous relation. To repeated invitations from the United States to Switzerland looking to the conclusion of a similar treaty, the same answer always came from the Federal Council,—“The conception of the imprescriptibility of the Swiss citizenship, closely interwoven as it is with the views of the Swiss people, and recognized by various cantonal constitutions as a fundamental right, would make it impossible for Switzerland to conclude a treaty, whereby a citizen, after a longer or shorter absence, would lose his Swiss nationality.” In fact, to accede to this request, it would be necessary to obtain an amendment to the Swiss constitution, asserting federal control over the question. At present there is no Swiss citizenship except as it is derived from the Canton and Commune; and the Confederation is powerless to deal internationally with it. The Swiss contention that a Swiss who becomes a citizen of any other country, without specific exemption under the law, is held to the obligations of Swiss citizenship, does not distinctly embrace the doctrine of return and domicile animo manendi in Switzerland. The Swiss Federal Tribunal has even asserted jurisdictional powers with respect to Swiss naturalized and resident in a foreign country.
The latitude given cantonal and communal officials in the construction of the federal law of 1876, and the survival of a great body of antiquated cantonal enactments and communal ordinances, which slowly and reluctantly yield to federal legislation, complicate and render almost impossible a compliance with its provisions. It has been held that a renunciation, though presented in proper form, could not be entertained, because the party was under “guardianship.” Not a guardianship under which the law places a minor, but a guardianship authorized by cantonal and communal laws; under which any improvident adult citizen may be placed,—and these local officials are disposed to classify under this head those who emigrate, and propose subsequently to make a renunciation of Swiss citizenship, specially should any inheritance fall to them in the Cantons or Communes. These persons are coerced to return to Switzerland to obtain the possession and enjoyment of such property; or by prolonged absence permit it to escheat, and swell the common fund. Again, a very common ground of objection to renunciation is the alleged fear that the party may at some time, in the future, return to his native country and become a public charge; and this is persisted on in spite of the assurance that he has become a citizen, say, of the United States, a bona fide resident therein, invested with all the privileges and subject to all the obligations pertaining thereto, and if from indigence, sickness, or other cause he should become unable to maintain himself, he has a claim in common with and to the same extent as other citizens of the United States in the provisions made by law for persons reduced to that unfortunate condition, in the State in which he might happen to reside at the time of such contingency. In a recent case (1889), that of “Carl Heinrich Webber (of Philadelphia) vs. The City Council of Zurich,” the plaintiff had left Switzerland during his minority, and in due course of time was naturalized in pursuance of the statute, and desired to secure possession of his property in Zurich for purpose of transfer to the United States. This was resisted by his guardian, on the ground that while his renunciation in its preparation and presentation met the requirements of the law, still he had left Switzerland without the consent of his guardian, and therefore could not legally acquire the domicile in the United States necessary for naturalization there. This plea of the guardian was sustained by the Council of Zurich, and Webber denied his property. On an appeal to the Federal Tribunal, this decision was overruled, only on the ground that the guardian had given an implied assent to the young man’s change of domicile; the court adding that otherwise the plea, as made and sustained by the lower court, would have been affirmed.[62] The judicial doctrine, which so long obtained, that no one could expatriate himself without express authority of law, has given way, in principle and practice, to the natural and fundamental right to transfer allegiance, and that every man should be allowed to exercise it with no other limitation than the public safety or interest requires. The sound and prevalent doctrine now is that a citizen or subject, having faithfully performed the past and present duties resulting from his relation to the sovereign power, may at any time release himself from the obligation of allegiance, freely quit the land of his birth or adoption, search through all the countries a home, and select anywhere that which offers him the finest prospect of happiness for himself and posterity. This right rests on as firm a basis and is similar in principle to the right which legitimates resistance to tyranny. Two elements, each equally important, enter into expatriation,—the one is emigration out of one’s native country, and the other is naturalization in the country adopted. All lexicographers and all jurists define naturalization in one way. In its popular etymological and legal sense, it signifies the act of adopting a foreigner and clothing him with all the privileges of a native citizen or subject. This naturalization cannot do under the Swiss contention; for the national allegiance of the Swiss cannot be thrown off and another substituted in its place without the assent of the sovereign holding the former. Naturalization in a foreign country should operate, from the time of its completion, as an extinguishment of the original citizenship; it should work absolute expatriation in law as it does in fact. A citizen who has in good faith abjured his country and become a subject of a foreign nation should to his native government be considered as denationalized; leaving it to the law of the land of his birth, whether or how he shall become repatriated. As forcibly expressed by a former Secretary of State at Washington: “The moment a foreigner becomes naturalized, his allegiance to his native country is severed forever. He experiences a new political birth,—a broad and impassable line separates him from his native country.”