Viewing the matter historically, we may say that citizenship is a legal conception the importance of which is continuously diminishing. The consistent tendency of legal development is to minimise the peculiar rights and liabilities of subjects, and to make residence rather than citizenship the essential and sufficient title of state-membership. The acquisition and loss of citizenship are being gradually made easier, while the legal effects of its acquisition and loss are being gradually made less. The present state of things is, indeed, a compromise between two fundamentally different ideas as to the constitution of a political society. Citizenship and its remaining privileges are the outcome of the primitive conception of the state as a personal and permanent union of determinate individuals, for whose exclusive benefit the laws and government of the state exist. Residence, regarded as a title of membership and protection, is the product of the more modern conception of the state, as consisting merely of the inhabitants for the time being of a certain territory. The personal idea is gradually giving place to the territorial, and the present twofold title of membership is the outcome of a compromise between these two coexistent and competing principles. It is not suggested, indeed, that the final issue of legal development will be the total disappearance of personal in favour of territorial membership. A compromise between the two extreme principles, in some such form as that which has now been attained to, may well prove permanent. In the present condition of international relations it is clearly necessary.
We have seen that citizens are those members of a state, whose relation to it is personal and permanent, and who by virtue of this relation receive from the state special rights, powers, and privileges. If we ask further, what is the title of citizenship, or how this special bond of union is constituted, no general answer is possible. This is a matter of law, varying in different systems, and from time to time in the same system. English law claims as subjects all who are born within the dominions of the Crown, regardless of their descent; while French law, on the contrary, attaches French citizenship to French blood and descent, regardless in general of the place of birth.[[102]] Viewed, however, in respect of its historical origin and primitive form, we may say that citizenship has its source in nationality. Fellow citizens are those who belong not merely to the same state but also to the same nation.
It is quite common to use the term citizenship and nationality as synonymous, and this usage, though incorrect, is significant of a very real connexion between the two ideas. Nationality is membership of a nation; citizenship is one kind of membership of a state. A nation is a society of men united by common blood and descent, and by the various subsidiary bonds incidental thereto, such as common speech, religion, and manners. A state, on the other hand, is a society of men united under one government. These two forms of society are not necessarily coincident. A single nation may be divided into several states, and conversely a single state may comprise several nations or parts of nations. The Hellenes were of one blood, but formed many states, while the Roman empire included many nations, but was one state. Nevertheless nations and states tend mutually to coincidence. The ethnic and the political unity tend to coalesce. In every nation there is an impulse, more or less powerful, to develop into a state—to add to the subsisting community of descent a corresponding community of government and political existence. Conversely every state tends to become a nation; that is to say, the unity of political organisation eliminates in course of time the national diversities within its borders, infusing throughout all its population a new and common nationality, to the exclusion of all remembered relationship with those beyond the limits of the state.
The historical origin of the conception of citizenship is to be found in the fact that the state has grown out of the nation. Speaking generally we may say that the state is in its origin the nation politically organised. It is the nation incorporated for the purposes of government and self-defence. The citizens are the members of a nation which has thus developed into a state. Citizenship is nationality that has become political. Men become united as fellow-citizens, because they are, or are deemed to be, already united by the bond of common kinship. It is for their benefit and protection that the body politic has been established, and they are its only members. Their citizenship is simply a legal and artificial bond of union superimposed upon the pre-existing bond of a common nationality. With aliens this national state has no concern. It was not created on their behalf, and they have no part or lot in it, for its law and government are the exclusive birthright of its citizens. Only by slow degrees does the notion of territorial membership arise and make good its claim to legal recognition. Gradually the government and the laws cease to be exclusively national and personal, and become in part territorial also. The new principle makes its way, that the state exists for the benefit and protection of the whole population of a certain territory, and not merely on behalf of a certain nationality. The law becomes more and more that of a country, rather than that of a people. State-membership becomes twofold, residence standing side by side with citizenship. It becomes possible to belong to the Roman state without being a Roman. The citizens consent to share their rights with outsiders, but the two classes never reach equality, and the personal union stands permanently on a higher level than the territorial. The special privileges retained by citizens at the present day are the scanty relics of the once exclusive claims of the nation to the protection and activities of the state.[[103]]
The relation between a state and its members is one of reciprocal obligation. The state owes protection to its members, while they in turn owe obedience and fidelity to it. Men belong to a state in order that they may be defended by it against each other and against external enemies. But this defence is not a privilege to be had for nothing, and in return for its protection the state exacts from its members services and sacrifices to which outsiders are not constrained. From its members it collects its revenue; from them it requires the performance of public duties; from them it demands an habitual submission to its will, as the price of the benefits of its guardianship. Its members, therefore, are not merely in a special manner under the protection of the state, but are also in a special manner under its coercion.
This special duty of assistance, fidelity, and obedience, is called allegiance, and is of two kinds, corresponding to the two classes of members from whom it is required. Subjects owe permanent allegiance to the state, just as they are entitled to its permanent protection. Resident aliens owe temporary allegiance during the period of their residence, just as their title to state protection is similarly limited. An alien, when in England, must be faithful to the state, must submit to its will, and obey its laws, even as an Englishman; but when he leaves English shores, he leaves behind him his obligation of allegiance, together with his title to protection. A British subject, on the other hand, takes both of these things with him on his travels. The hand of the state is still upon him for good and evil. If he commits treason abroad he will answer for it in England. The courts of justice will grant him redress even against the agents of the Crown itself; while the executive will see that no harm befalls him at the hands of foreign governments.[[104]]
§ 40. The Constitution of the State.
In the definition of a state as a society with a special end and function, there is implied a permanent and definite organisation—a determinate and systematic form, structure, and operation. A body politic is not constituted by a temporary and casual union of individuals, for the purpose of repelling an external enemy, or of executing judgment on some domestic evildoer. The transition from natural to political society is effected only when the union of individuals has assumed a certain measure of permanence and organisation, and when their combined operations in pursuit of their common end have become in a certain degree systematic and definite. It is only when a society has acquired such an organisation, whether by way of agreement, custom, forcible imposition, or otherwise, that it takes on the nature of a body politic or state. It is only then, that there comes into existence the organ which is essential to the performance of those functions which constitute political government.
The organisation of a modern state is of extraordinary complexity, and it is usual to regard it as divisible into two distinct parts. The first consists of its fundamental or essential elements; the second consists of its secondary elements—the details of state structure and state action. The first, essential, and basal portion is known as the constitution of the state. The second has no generic title.
Constitutional law is, as its name implies, the body of those legal rules which determine the constitution of the state. It is not possible to draw any hard and fast line between the constitution and the remaining portions of the state’s organisation; neither, therefore, is it possible to draw any such line between constitutional law and other branches of the legal system. The distinction is one of degree, rather than one of kind, and is drawn for purposes of practical convenience, rather than in obedience to any logical requirement. The more important, fundamental, and far-reaching any principle or practice is, the more likely it is to be classed as constitutional. Conversely, the more special, detailed, and limited in its application, the less likely it is to find a place in any exposition of the law and practice of the constitution. The structure of the supreme legislature and the methods of its action pertain to constitutional law; the structure and operations of subordinate legislatures, such as those possessed by the colonies, are justly entitled to the same position; but those of such subordinate legislatures as a borough council would by general consent be treated as not sufficiently important and fundamental to be deemed part of the constitution. So the organisation and powers of the Supreme Court of Judicature, treated in outline and not in detail, pertain to constitutional law; while it is otherwise with courts of inferior jurisdiction, and with the detailed structure and practice of the Supreme Court itself.