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Subject Area: Law
Topic: The American Revolution and Constitution

CHAPTER VI.: REGULATIONS OF THE RIGHTS OF CITIZENSHIP AND DOMICILE. - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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CHAPTER VI.

REGULATIONS OF THE RIGHTS OF CITIZENSHIP AND DOMICILE.

SECTION53.Citizenship and domicile distinguished.
54.Expatriation.
55.Naturalization.
56.Prohibition of emigration.
57.Compulsory emigration.
58.Prohibition of immigration.
59.The public duties of a citizen.

§ 53.

Citizenship and domicile distinguished.—

The distinction between citizenship and domicile has been so often explained in elementary treatises that only a passing reference will be needed here, in order to refresh the memory of the reader. Mr. Cooley defines a citizen to be “a member of the civil state entitled to all its privileges.”1 Mr. Blackstone’s definition of allegiance, which is the obligation of the citizen, is “the tie which binds the subject to the sovereign, in return for that protection which the sovereign affords the subject.”2 Citizenship, therefore, is that political status which supports mutual rights and obligations. The State, of which an individual is a citizen, may require of him various duties of a political character; while he is entitled to the protection of the government against all foreign attacks, and is likewise invested with political rights according to the character of the government of the State, the chief of which is the right of suffrage.

Domicile is the place where one permanently resides. One’s permanent residence may be, and usually is, in the country of which he is a citizen, but it need not be, and very often is not. One can be domiciled in a foreign land. While a domicile in a foreign State subjects the individual and his personal property to the regulation and control of the law of the domicile, i. e., creates a local or temporary allegiance on the part of the individual to the State in which he is resident, and although he can claim the protection of the laws during his residence in that State, he does not assume political obligations or acquire political rights, and can not claim the protection of the government, after he has taken his departure from the country. Only a citizen can claim protection outside of the country.

There is no permanent tie binding the resident alien to the State, and there is no permanent obligation on the part of either. The individual is at liberty to abandon his domicle, whenever he so determines, without let or hindrance on the part of the State, in which he has been resident. This is certainly true of a domicile in a foreign country.

§ 54.

Expatriation.—

But it has been persistently maintained by the European powers, until within the last twenty years, that the citizen cannot throw off his allegiance, and by naturalization become the citizen of another country. The older authorities have asserted the indissolubility of the allegiance of the natural-born subject to his sovereign or State. Mr. Blackstone says, “it is a principle of universal law that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former; for this natural allegiance was intrinsic and primitive, and antecedent to the other; and cannot be divested without the concurrent act of the prince to whom it was due.”1 Although all the States of Europe have provided for the naturalization of aliens, they have uniformly denied to their own subjects the right of expatriation. But when emigration to this country became general, this right was raised to an international question of great importance, and in conformity with their own interests and their general principles of civil liberty, the United States have strongly insisted upon the natural and absolute right of expatriation. This question has been before the courts of this country,2 and at an early day the Supreme Court of the United States showed an inclination to take the European view of this right.3 But the question has been finally settled in favor of the right of expatriation, so far at least as the government of the United States is concerned, by an act of Congress in the following terms:—

“Whereas, the right of 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, whereas, in the recognition of this principle, this government has freely received emigrants from all nations, and invested them with the rights 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, be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, that any declaration, instruction, opinion, order or decision of any officer of this government, which denies, restricts, impairs or questions the right of expatriation is hereby declared inconsistent with the fundamental principles of this government.”1

The United States government has actively sought the establishment of treaties with other countries, in which the absolute right of expatriation is unqualifiedly recognized; and such great success has attended these efforts, that expatriation may now be asserted to be a recognized international right, which no government can deny.2

§ 55.

Naturalization.—

In order that one may expatriate himself, he must, by naturalization, become the citizen of another State. International law does not recognize the right to become a cosmopolitan. But because expatriation is recognized as a right indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness, and which cannot be abridged or denied to any one, it does not follow that one has a natural and absolute right to become the citizen of any State which he should select. A State has as absolute a right to determine whom it shall make citizens by naturalization, as the individuals have to determine of what State they will be citizens. Citizenship by birth within the country does not depend upon the will of society. By a sort of inheritance the natural-born citizen acquires his right of citizenship. But when a foreigner applies for naturalization, his acquisition of a new citizenship depends upon the agreement of the two contracting parties.

The State, therefore, has the unqualified right to deny citizenship to any alien who may apply therefor, and the grounds of the objection cannot be questioned. The alien has no political rights in the State, and he cannot attack the motive of the State in rejecting him.

§ 56.

Prohibition of emigration.—

Political economy teaches us that national disaster may ensue from an excessive depopulation of the country. When the population of a country is so small that its resources can not be developed, it is an evil which emigration in any large degree would render imminent; and the temptation would, under such circumstances, be great to prohibit and restrain the emigration to other lands, while the impulse would increase in proportion to the growth of the evil of depopulation. Has the State the right to prohibit emigration, and prevent it by the institution of the necessary police surveillance? It cannot be questioned that the State may deny the right of emigration to one who owes some immediate service to the State, as for example in the case of war when one has been drafted for the army, or where one under the laws of the country is bound to perform some immediate military service.1 But it would seem, with this exception, that the natural and unrestricted right of emigration would be recognized as a necessary consequence of the recognition of the right of expatriation. If expatriation is indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness, the right of emigration must be more essential; for expatriation necessarily involves emigration, although emigratiom may take place without expatriation. But this right of prohibition was once generally claimed and exercised and Russia still exercises the right.2

§ 57.

Compulsory emigration.—

General want and suffering may be occasioned by overpopulation. Indeed, according to the Malthusian theory, excessive population is the great and chief cause of poverty. From the standpoint of public welfare, it would seem well for the State to dedermine how many and who, should remain domiciled in the country, in order that the population may be regulated and kept within the limits of possible well-being, and transport the excess of the population to foreign uninhabited lands, or to other parts of the same country, which are more sparsely settled. But from the standpoint of the individual and of his rights, this power of control assumes a different aspect. If government is established for the benefit of the individual, and society is but a congregation of individuals for their mutual benefit; once the individual is recognized as a part of the body politic, he has as much right to retain his residence in that country as his neighbor; and there is no legal power in the State to compel him to migrate, in order that those who remain may have more breathing space. Let those emigrate who feel the need of more room.

Another cause of evil, which prompts the employment of the remedy of compulsory emigration, would be an ineradicable antagonism serious enough to cause or to threaten social disorder and turmoil. Can the government make a forced colonization of one or the other of the antagonistic races? This is a more stubborn evil than that which arises from excessive population; for want, especially when the government offers material assistance, will drive a large enough number out of the country to keep down the evil. The only modern case of forcible emigration, known to history, is that of the Acadians. Nova Scotia was originally a French colony and when it was conquered by the British, a large non-combatant population of French remained, but refused to take the oath of allegiance. The French in the neighboring colonies kept up communication with these French inhabitants of Nova Scotia and, upon the promise to recapture the province, incited them to a passive resistance of the British authority. The presence of such a large hostile population certainly tended to make the British hold upon Nova Scotia very insecure, and the English finally compelled these French people to migrate. While the circumstances tend to mitigate the gravity of this outrage upon the rights of the individual, the act has been universally condemned.1 The State has no right to compel its citizens to emigrate for any cause, except as a punishment for crime. It may persuade and offer assistance, but it cannot employ force in effecting emigration, whatever may be the character of the evil, which threatens society, and which prompts a compulsory emigration of a part of its population.

But it does not follow from this position that the State has not the right to compel the emigration of residents of the country, who are not citizens. The obligation of the State to resident aliens is only temporary, consists chiefly in a guaranty of the protection of its laws, as long as the residence continues, and does not deprive the State of the power to terminate the residence by their forcible removal. They can be expelled, whenever their continued residence for any reason becomes obnoxious or harmful to the citizen or to the State.

Although the aborigines of a country may not, under the constitutional law of the State, be considered citizens,1 they are likewise not alien residents and cannot be expelled from the country, or forcibly removed from place to place, except in violation of individual liberty. But the treatment offered by the United States government to the Indians would indicate that they have reached a different conclusion. The forcible removal of the Indians from place to place, in violation of the treaties previously made with them,—although there is a pretense that the treaties have become forfeited on account of their wrongful acts,—differs in character but little from the expulsion of the Acadians, for whose sufferings the world felt a tender sympathy.

§ 58.

Prohibition of immigration.—

Since the State owes no legal duty to a foreigner, and the foreigner has no legal right to a residence in a country of which he is not a citizen, a government may restrain and even absolutely prohibit immigration, if that should be the policy of the State. The policy of each State will vary with its needs. In this country, the need of immigration has been so great that we offer the greatest possible inducements to immigrants, to settle in our midst. So general and unrestricted has immigration been in the past, that a large class of our people have denied the right to refuse ingress to any foreigner, unless he is a criminal. As a sentiment, in conformity with the universal brotherhood of man, this position may be justified; but, as a living legal principle, it cannot be sustained. The government of a country must protect its own people at all hazards. Races are often too dissimilar to permit of their being brought into harmonious relations with each other under one government; and the presence in the same country of antagonistic races always engenders social and economical disturbances. If they are already citizens of the same country, as, for example, the negroes and the whites of the Southern States, there is no help for the evil but a gradual solution of the problem by self-adaptation to each other, or a voluntary exodus of the weaker race. But when an altogether dissimilar race seeks admission to the country, not being citizens, the State may properly refuse them the privilege of immigration. And this is the course adopted by the American government towards the Chinese who threaten to invade and take complete possession of the Pacific coast. After making due allowance for the exaggerations of the evil, there can be no doubt that the racial problem, involved in the Chinese immigration, was sufficiently serious to justify its prohibition. The economical problem, arising from a radical difference in the manners and mode of life of the Chinese, not to consider the charges of their moral depravity, threatened to disturb the industrial and social conditions of those States, to the great injury of the native population. It was even feared that the white population, not being able to subsist on the diet of the Chinese, and consequently being unable to work for as low wages, would be forced to leave the country; and as they moved eastward; the Chinese would take their place, until finally the whole country would swarm with the almond-eyed Asiatic. Self-preservation is the first law of nature, with States and societies, as with individuals. It can not be doubted that the act of Congress, which prohibited all future Chinese immigration, was within the constitutional powers of the United States.

A number of decisions have been rendered under the Chinese Exclusion Act, in all of which the constitutionality of the act has been sustained. In the case of In re Chae Chan Ping,1 the petitioner had been in this country and had departed prior to the enactment of the exclusion act, with a certificate of identification provided for by the prior law. The exclusion act expressly prohibits re-entry of such a person, who had not returned prior to the enactment of the exclusion act. The court say:—

“The certificate, it is urged, is a contract entered into between the United States and the petitioner in pursuance of the restriction act, which vests him with a right that cannot now be divested under the general principles of public justice, even though the constitutional provision against passing laws impairing the obligations of contracts is in terms only restrictive upon the States. We think this is not the correct view. There is no contract between the United States and individual Chinese laborers at all. The Chinese laborers obtain no rights under the acts of Congress beyond what is secured to them by the treaties. There is no consideration moving from them, individually or collectively, under the act of Congress, upon which a contract was founded. All the rights they have are derivative, namely, merely resting upon the stipulations of the treaty between the two governments, which are the contracting, and only contracting, parties. * * * The certificates are instruments of evidence, issued to afford convenient proof of the identity of the party entitled to enjoy the privileges secured by the treaties, and to prevent frauds, and they are so designated in the act. * * * To call these acts and certificates provided in pursuance thereof a contract would be an abuse of language. As between the two governments treaties are laws, and they confer rights and privileges as long as they are in force; and doubtless some rights accrue and become indefeasibly vested by covenants or stipulations that have ceased to be executory and have become fully executed, as in the case of title to property acquired thereunder. But we do not regard the privilege of going and coming from one country to another as one of this class of rights. The being here with the right of remaining is one thing, but voluntarily going away with a right at the time to return is quite another.”

In other cases,1 it was held that the Chinese Exclusion Act of Congress of 1892, was not unconstitutional, in that it provided that the person charged with the violation of the act is to be presumed guilty, i. e., of being unlawfully in this country, without the presentation of any evidence against him, until he established his innocence or right to be in this country by affirmative evidence. The reason which was assigned for justifying this departure from the common law in respect to the burden of proof in criminal cases, is that the facts which constitute a defense are peculiarly within the knowledge of the person charged.1

The United States government have also instituted police regulations for the purpose of preventing pauper immigration, and when an immigrant is without visible means of support, the steamship company which transported him is required to take him back. The purpose of these regulations itself suggests the reasons that might be advanced in justification of them, and, therefore, no statement of them is necessary.

§ 59.

The public duties of a citizen.—

In return for the protection guaranteed to the citizen, he is required to do whatever is reasonable and necessary in support of the government and the promotion of the public welfare. It will not be necessary to enter into details, for these duties vary with a change in public exigencies. The object of taxation is treated more particularly in a subsequent section.2 The ordinary public duties of an American citizen are to assist the peace officers in preserving the public order and serving legal processes, and to obey all commands of the officers to aid in the suppression of all riots, insurrections and other breaches of the peace; to serve as jurors in the courts of justice, to perform military service in time of peace, as well as in war. It is common for the States to require its male citizens to enroll themselves in the State militia, and to receive instruction and practice in military tactics; and in time of war there can be no doubt of the power of the government to compel a citizen to take up arms in defense of the country against the attacks of an enemy, in the same manner as it may require the citizen to aid in suppressing internal disorders.3 At an earlier day, it was also a common custom to require of the citizens of a town or city the duty of assisting in the quenching of accidental fires and the prevention of conflagrations; and in some of the States (notably South Carolina) every male citizen, between certain ages, was at one time required to be an active member of a militia or fire company.1

It was also at one time the common duty of a citizen to perform, or supply at his expense, labor upon the public roads, in order to keep them in repairs.2 But this specific duty is each day becoming more uncommon, and the repairs are being made by employees of the State or municipal community, whose wages are paid out of the common fund. Indeed, the general tendency at the present day is to relieve the citizen of the duty of performing these public duties by the employment of individuals, who are specially charged with them, and perform them as a matter of business. Even in regard to the matter of military service in time of war this tendency is noticeable. Whenever a draft is made by the government for more men, and one whose name is found in the list desires to avoid the personal performance of this public duty, he is permitted to procure a substitute. The duty of acting as juror is about the only public duty, whose performance is still required to be personal, and even that is somewhat in danger of substitutive performance. The flimsy and unreasonable excuses, too often given and received for discharge from jury duty, are fast paving the way to the appointment of professional jurymen.

[1]Cooley on Const. Law, 77.

[2]1 Bl. Com. *441.

[1]1 Bl. Com. *446.

[2]See Inglis v. Sailor’s Snug Harbor, 3 Pet. 99; Shanks v. Dupont, 3 Pet. 242; Stoughton v. Taylor, 2 Paine, 655; Jackson v. Burns, 3 Binn. 85.

[3]“In the first place, she was born under the allegiance of the British crown, and no act of the government of Great Britain has absolved her from that allegiance. Her becoming a citizen of South Carolina did not, ipso facto, work any dissolution of her original allegiance, at least so far as the rights and claims of the British crown were concerned.” Shanks v. Dupont, 3 Pet. 242. See Talbot v. Janson, 3 Dall. 133; Isaac William’s case, 2 Cranch, 82, note; Murray v. The Charming Betsey, 2 Cranch, 64; The Santissima Trinidad, 7 Wheat. 283; United States v. Gillies, 1 Pet. C. C. 159; Ainslee v. Martin, 9 Mass. 454.

[1]Act of July 27, 1868, 15 Stat. at Large, 223, 224.

[2]The United States have entered into such treaties with almost all the countries of Europe.

[1]The compulsory military service for four of the best years of a man’s life has been the chief moving cause of emigration of the Germans.

[2]Phillemore International Law, 348, 349.

[1]While the above was being written, the world was startled by the expulsion from France of the Orleans and Bonaparte princes, who are in the line of inheritance of the lost crown. These princes were not charged with any offense against the existing government of France, or against France. They were monarchists, and, it is true, they refused to abjure their claims to the throne of France. But, beyond the formation of marital alliances with the reigning families of Europe, they were not charged with any actions hostile or menacing to the present government. The ineradicable antagonism between monarchy and republicism may possibly furnish justification for these expulsions; but one who has thoroughly assimilated the doctrine of personal liberty can hardly escape the conclusion that they were at least questionable exercises of police power.

[1]This is the rule of law in this country in respect to the legal status of the Indian. As long as he continues his connection with his tribe, and consequently occupies towards the United States a more or less foreign relation, it would be unwise as well as illogical to invest him with the rights of citizenship. Goodell v. Jackson, 20 Johns. 693, 710; McKay v. Campbell, 2 Sawyer, 118. But it is claimed, with much show of reason for it, that as soon as he abandons the tribal relation, and subjects himself to the jurisdiction of our government, he becomes as much a citizen of the United States as any other native. See Story on Constitution, § 1933.

[1]36 Fed. 431.

[1]In re Sing Lee, 54 Fed. 334, and In re Ching Jo, Id.

[1]But see, apparently, contra, as to what the act provides in respect to the burden of proof, United States v. Long Hop, 55 Fed. 58.

[2]See post, § 160 et seq.

[3]But defensive warfare must in this connection be distinguished from offensive warfare. The duty of the citizen to repel an attack upon his country is clear, but it is certainly not considered in the United States a duty of the citizen to aid the government in the prosecution of an offensive war, instituted for the purpose of aggrandizement. But the question involves the practical difficulty of determining which party in a particular war is on the defensive, and which is the attacking party. It is not necessary for the territory of one’s country to be invaded, in order that the war may be offensive. Substantial and valuable international rights may be trespassed without a blow being struck or a foot of land invaded; and usually both parties claim to be on the defensive. But the difficulty in answering this question of fact does not affect the accuracy of the theoretic distinction, although it does take away its practical value.

[1]But it is now found to be more profitable, in combating the danger of fire in municipal life, to employ men who are specially charged with the performance of this duty. Voluntary, or unprofessional, fire departments are now to be found, in the United States, only in the villages and small towns.

[2]In Ohio, it was held that a statute, which required two days’ labor on the public roads, did not violate the provision of the State bill of rights, that there shall be no involuntary servitude in the State. Dennis v. Simon, 51 Ohio St. 233