The right of expatriation is fully and positively established in the United States, by an act of Congress, in these words: “Whereas, the right of expatriation is a natural and inherent right of the people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and, whereas, in the recognition of this principle, this government has frequently received emigrants from all nations, and invested them with the right of citizenship; and, whereas, it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and, whereas, it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed; therefore any declaration, instruction, opinion, order, or decision of any officer of the United States, which denies, restricts, impairs, or questions the right of expatriation is declared inconsistent with the fundamental principles of the republic.”
Naturalization in the United States is a valuable privilege, which is considerately granted to those who desire its advantages and are willing to undertake its duties. The process is a decree of a court of record, upon the satisfactory establishment by the applicant of his lawful eligibility to the privilege of their nationality. The United States cannot admit of qualified naturalization, subject to the consent of the country of origin; nor can the United States Courts, in which the judicial power of naturalization is vested, take cognizance of the consent of a foreign state as a precedent condition to naturalization. The admissibility of a change of allegiance in the United States, without any co-operation or consent of the country of origin, is plainly implied from the very statute itself; which requires conditions of residence, of personal character, of publicity, and of abjuration under oath of allegiance to every other government, and especially to that of the country of birth, with sworn allegiance to the United States. These are all indispensable for the completion of an act of expatriation, and no more; and he who is in this manner endowed with the nationality of the United States, thereby dissolves all ties of native allegiance, and is clothed with all the rights and privileges that pertain to a native citizen, and entitled to the same degree of protection whether at home or abroad.
Citizenship is an attribute of national sovereignty, and not merely of individual or local bearing. It is a sacred right, full of grave consequences, granted with solemn formalities, and its existence should always be well defined and indisputable. Between friendly States, naturalization and expatriation should be reciprocal; and with an equal measure of obligation. Conventional adjustment is alone adequate to the removal of the most prolific source of constantly-recurring friction and tension, inevitable, in the absence of treaty stipulation.
The persistency of Switzerland upon this question in a policy so much at variance with all the liberal views of civilized nations, exhibiting a stubborn conservatism and irrational disinclination to change her laws to meet generally accepted principles and the requirements of her external relations, might well subject the Swiss to the characterization, applied at one time by Cobden to the English people, as “the Chinese of Europe.”
All laws controlling States in their relations with one another are the slow result of growth, coming from an ever-increasing and ever-varying necessity; rendering any assumption of logical consistency not only impossible, but in many instances wrong, if not dangerous, to the inevitable concurrence of doctrines demanded by general usage and international amity.
CHAPTER XI.
LAND LAW AND TESTAMENTARY POWER.
There can be no better security for the stability of the institutions of a country than by enlisting a large number of the people in their support, by giving them a stake in the prosperity of the soil. It is the highest public interest that landed property should easily get into those hands by which it can be turned to the best account; that the title to property in land should be sure and incontestable; and that there should be no legal obstacle to the subdivision of land, when the natural economy tends to it, so that the number of small land-owners shall not be artificially reduced by imperfection in the law. The larger the number of land-owners in a country, the more who have an interest in the soil they till, the more free and independent citizens there are interested in maintenance of public order. There is no ballast for a man like that of having a little earth, his own, about his feet. Cultivating his own field, growing a part of his food-supply, lodged under his own roof,—these make life pleasanter and labor lighter. The thoughts, feelings, lives of those who live under these conditions are of a higher order than the thoughts, the feelings, the lives of those who do not. Property is the essential complement of liberty. Without property man is not truly free. Whatever rights the political constitution may confer upon him, so long as he is a mere tenant he remains a dependent being; a free man politically, he is socially but a bondsman. There is no country in Europe where land possesses the great independence, and where there is so wide a distribution of land-ownership, as in Switzerland. The 5,378,122 acres devoted to agriculture are divided among 258,639 proprietors, the average size of the farms throughout the whole country being not more than twenty-one acres.[63] The facilities for the acquisition of land have produced small holders, with security of tenure, representing two-thirds of the entire population. There are no primogeniture, copyhold, customary tenures, and manorial rights, or other artificial obstacles to discourage land transfer and dispersion. No entails aggregating lands and tying them up, so that no living person shall be full owner, but a mere tenant for some unborn child. No family settlements with “tenants in common in tail,” with “cross-remainders in tail,” till some tenant-in-tail reaches the age of twenty-one years, when he may be able with the consent of his father, who is tenant for life, to bar the entail with all the remainders. There is no belief, in Switzerland, that land was made to minister to the perpetual elevation of a privileged class; but a wide-spread and positive sentiment, as Turgot puts it, that “the earth belongs to the living, not to the dead;” nor, it may be added, to the unborn. The natural forces of accumulation and dispersion are not hampered by ninety-nine years building leases, perpetual and irredeemable rent, or heavy expense of conveyance; but are in every way encouraged, simplified, and facilitated by the laws federal and cantonal. The wars of the fifteenth and sixteenth centuries exercised, indirectly, considerable influence on Swiss land tenure, by breaking up the large properties—monastic, conventual, and private—which had for some time been steadily augmented; and produced a reaction in favor of gradual redistribution. This wider dissemination of land among the people was carried on without rudely shocking or violating proprietary rights, as far as the few recalcitrant owners permitted it to be done; certainly with not a tithe of the legislative injustice or coercion, with which a greater part of these accumulations had been made. It is from this period that the existing system of land tenure in Switzerland may be said really to date. The feudal rights asserted by certain Cantons over others, which took the form of landed charges, were all swept away at the time of the setting up of the Helvetian Republic, in 1798. Since the commencement of this century, and especially since the constitutions of 1830 were framed, the land throughout the whole of Switzerland has been completely emancipated,—the system of peasant proprietorship working side by side with that of small tenant farmers. The survival of the Commune, intact with its various property rights in fee-simple and usufruct, does not conflict with or impede the general tendency to discourage the centralization of landed property in the hands of the few. For it has come to be axiomatic with the Swiss that the effort to acquire land is the mainspring of the life of the peasant, the root of his industry, of his painstaking, frugal, and saving life. The solid, sterling elements of the Swiss peasant’s character are traced by all the native writers to their source in the educative power of property,—property in land.
There exists no federal land code in Switzerland. Contracts relating to the sale and purchase of lands, easements, and mortgages are governed by the law of each Canton. In general, all questions as to the devolution of property, by will or upon intestacy, are regulated by the Cantons, and not within the competence of the Confederation. There is an official survey containing a plan of each Commune, with the parcels of land, their areas, annual values, and peculiarities indicated, of which any one may have a copy under a fixed schedule of charges. The federal code of obligations, adopted in 1861, contains twenty-five articles relating to leases of land. It was claimed at the time of the passage of this law, by some of the ablest lawyers, to be an assumption by the government of a very doubtful power, an interference with the ownership of the soil, and the infringement of an exclusive right guaranteed to the Cantons. The friends of the measure contended that its provisions did not involve the title or ownership of realty, but only had to do with the rights of persons, which clearly fell within the competency of the Federal Assembly. This view obtained. While it is difficult to examine this elaborate act and its far-reaching provisions, without a conviction that it bears a very close and strong relation to the ownership of soil, in the popular apprehension of that term, still its satisfactory operation has silenced all opposition, and it is now believed to be accomplishing desirable ends that could not otherwise be so efficiently done. It may be of interest to note some of the leading provisions of this law. All contracts for leases are required to be written. If the farm be delivered to the tenant in a condition unsuitable for the purpose for which it was rented, the tenant may renounce the lease. If deteriorations or restrictions not mentioned in the covenant take place, without the tenant’s fault, he may demand proportionate reduction of rent or renounce the lease, if proper restitution is not made within a reasonable time. Urgent repairs of any kind, required during the lease, are to be made by the tenant. The lessor has the right to retain all the movables belonging to the farm, as security for the payment of his rent, for the past current year. This, however, does not include effects, which, under the laws relating to debt and bankruptcy, are exempt from execution. The lessor has the right to appeal to the authorities to compel a tenant, who threatens to abandon the farm before paying the rent, to leave property behind him on the place in value sufficient to cover the amount due. A tenant cannot be relieved from rent when, through his own fault or even from any accident in which he was directly concerned, he is unable to enjoy the use or benefit of the lease. If implements, stock, etc., are included in the lease, each party must furnish the other with a specific inventory duly subscribed, with an estimate of their value. The lessor must bear the expense of any repairs, on a large scale, which may become necessary during the lease, as soon as he receives notice of such from the tenant. The tenant must make a conscientious use of the land, according to the stipulations of the lease, and especially to keep it in a good state of cultivation. The tenant cannot alter the existing mode of cultivation or cropping to the damage of the land or the prejudice of a subsequent lease. He must conform with all local laws and customs as to paths, foot-bridges, ditches, dikes, hedges, roofs, aqueducts, etc., and must replace all implements and tools of small value which may have become worn out. The tenant cannot underlet without consent of landlord, regardless of duration of lease. In absence of special agreement as to payment of rent, it must be paid according to the local custom, and in event of extraordinary accident by which he loses a considerable portion of his year’s product, if in no way due to any fault on his part, and if not covered by insurance, or taken into consideration in fixing the rent, he may demand a proportionate reduction. In the absence of agreement or well-defined custom, each party has the right to give the other notice, which as to the land must be at least six months before the 11th of November. With this notice in cases of long leases, where circumstances arise to render its continuance intolerable to either party, it may be terminated, with an equitable indemnity to the other party; this indemnity, even when referred to the courts for adjustment, must not be less than one year’s rent. If, on the expiration of the lease, the tenant remains in possession with the landlord’s knowledge and without his objection, the lease will continue in force from year to year, until the six months’ notice is given by one of the parties. When a tenant fails to pay his rent at the time it falls due, the lessor may give him notice that if not paid within sixty days the lease will be cancelled; in that event the tenant loses his right to the growing crops, but he must be reimbursed for the expenses incurred in their cultivation, to be credited on arrears of rent. The lessor has the right to cancel a lease when the tenant neglects to keep the farm in good order; or if, after receiving notice, he fails to execute any necessary repairs within the period designated by the landlord. In event of a tenant’s bankruptcy, the lease expires ipso facto, when such bankruptcy is declared. At the expiration of a lease the tenant must hand over the farm and everything specified in the inventory, just as they are at the time of delivery, with indemnity for any injury resulting from want of proper care on his part; and no compensation is due him for improvements merely the result of ordinary care. The tenant must leave on the land the straw and manure of the preceding year; if, however, it exceeds what he received when taking possession, he can claim compensation for the difference. The outgoing tenant, at the expiration of the lease, has the right to compensation for any increase on the original valuation of the farm which is the fruit of his labor and outlay; this is sometimes ascertained to a nicety by means of a system of chemical testing of the soil.
It seems almost incredible that a federal law should be so circumstantial, rather than lay down the general principles upon a question of the lease of land and leaving it to the Cantons or Communes to supply the details, in conformity with the varying local elements that must enter into it, from the great diversity of soil, products, and customs. This law is but another illustration of that patient and minute exactness which distinguishes all Swiss federal legislation, aiming to cover every possible contingency that may arise of construction or enforcement.
It is to the cantonal civil codes we must turn for the body of the land laws. These codes appear to be derived from three distinct sources, corresponding with the ethnical division of the people,—the Roman, the Old Germanic, and the Napoleonic codes. The Cantons of Geneva, Neuchâtel, and the western portion of the Canton of Bern, known as the Jura-Bernois, have the code Napoleon almost in its entirety. The codes of Vaud, Freiburg, Valais, and Ticino are based on the old Roman law, harmonized in some features with the code Napoleon. The Cantons of St. Gallen, Appenzell, Uri, Schwyz, Obwald, Glarus, and Basel-Stadt are still governed by ancient statutes or customs, without any defined codes. The remaining Cantons, constituting what is known as German Switzerland, have their land laws framed on the old Germanic code, with an admixture of the code Napoleon. There were no cantonal land codes previous to 1819; the oldest one, that of Vaud, dates from that year. A summary of the law, in a few of the representative Cantons, will be sufficient.