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right exists in the practice of nations and therefore in the law of nations, the United States requisitioned the ships in accordance with international law, and in so doing specifically expressed its intention to comply with the letter of the law by indemnifying the owners of the vessels for the deprivation of them, and to make good their loss if they should be destroyed through the action of the enemy. Necessity is not invoked to create the law; it is only stated in order to justify the exercise of the right in accordance with the letter and the spirit of the law.
JAMES BROWN SCOTT.
DUAL CITIZENSHIP IN THE GERMAN IMPERIAL AND STATE CITIZENSHIP
The caption of this law, the interpretation of which has given rise to much discussion in this country, is as follows:
We, William, by the Grace of God German Emperor, King of Prussia, etc., enact, in the name of the Empire, with the consent of the Federal Council and Imperial Diet, the following.
The law was signed by the Emperor on board the yacht Hohenzollern, on July 22, 1913, and attested by Minister Delbrück, whence it is sometimes referred to as "the Delbrück Law.” It declares that it is to go into effect on January 1, 1914, "simultaneously with a law revising the Imperial military law of February 11, 1888, relative to the revision of liability to military service"; an apparently significant place, time, and purpose of signature, in view of the international situation six months after the law went into operation.
The body of the law is composed of 41 sections, and is divided into
Part I. General Provisions
The chief interest in this law, so far as the United States is concerned, centers in the question, Can a German citizen become by naturalization a citizen of the United States and at the same time also remain a German citizen?
1 The full text, translated into English, is to be found in the Supplement to this JOURNAL, July, 1914, pp. 217, 227.
At first thought this would seem impossible, because the very idea of citizenship involves, according to the customary way of thinking, a sole and loyal allegiance to some one particular country; which, in exchange for this single allegiance, offers its protection to its citizen. The relation implies a reciprocal obligation, on the one side to serve and on the other to protect. This obligation would be nullified entirely by a double allegiance, in case the aims and interests of the two countries to which allegiance is owed should conflict.
In the law under consideration an entirely different position is taken. It is held and provided that the same person, being of German origin, may become by naturalization a citizen of a foreign country and at the same time retain German citizenship. This dual citizenship is definitely authorized in paragraph 2 of section 25 of this law, as follows:
A German who has neither his residence nor permanent abode in Germany loses his citizenship on acquiring foreign citizenship, provided the foreign citizenship is acquired as a result of his own application therefor.
Citizenship is not lost by one who before acquiring foreign citizenship has secured on application the written consent of the competent authorities of his home State to retain his citizenship. Before this consent is given the German consul must be heard.
In the second paragraph, just quoted, German citizenship is not terminated by naturalization in another country, if previous consent to retain it has been obtained from the competent authorities through a German consul. Here is a clear statement of the principle of dual citizenship and provision for securing it. If it means anything, it means that when the German authorities are willing to permit German citizenship to be retained by a German after naturalization, that is, to regard the naturalization as not causing the loss of German citizenship, they may legally and properly do so.
This, it must be confessed, is a new interpretation of citizenship; but it is none the less authoritative from the German point of view, which is that so long as a government is willing to permit citizenship to continue in the country of origin, it may properly do so, even though an additional citizenship has been acquired in another country. Although it is contrary to the generally accepted idea of a single allegiance, dual citizenship is here recognized as a perfectly normal status.
The reasoning upon which this conception is based is not stated in this law, but it may perhaps proceed along the following lines. Returning to the old conception that there can be no expatriation without
the permission of the country of origin, that country may, if it chooses, grant complete alienation, or it may grant alienation with permission to retain the original citizenship. In making a contract of naturalization with a foreign country, it may concede the right of the foreign country to claim the naturalized person as a citizen, but before this goes into effect it may also grant to this person a right, if he chooses, to retain at the same time his original citizenship. The person possessing this right, after naturalization in a foreign country, becomes, from the point of view of that country, one of its citizens, and it may claim for him the right to be treated as such; but, from the point of view of the country of origin, the person is still its citizen, although it has agreed to treat him, when this is insisted upon, as a citizen of the other country. From the point of view of the person himself, he is a citizen of both countries. This is dual citizenship.
This reasoning is, no doubt, grossly sophistical; but it is the only reasoning, apparently, on which dual citizenship can rest. Whatever validity it may seem to possess is the same whether a treaty of naturalization exists or not. The existence of a treaty does not affect this reasoning, unless the treaty contains an express renunciation of all former relations to the naturalized person by the state of his origin; for, without that renunciation, the state of origin may still privately retain with the person naturalized all the relations it has ever had with him, so far as he chooses to accept them and the state of origin to grant them. If dual citizenship can exist at all, it can exist as well under a naturalization treaty as without it, because the recognition that the naturalized person as a citizen of the foreign state is not incompatible with his remaining a citizen of his native country.
It has been claimed by certain expositors of this German law that, although the provision for dual citizenship exists in the law, it does not apply to persons of German origin who have been naturalized as citizens of the United States; the reason being that there is a treaty of naturalization with the United States. We have just seen, however, that, if dual citizenship is a normal status, it makes no difference whether a treaty exists or not, unless the treaty explicitly excludes dual citizenship and expressly renounces all relations with the naturalized person except as a citizen of the foreign state.
It is true that in section 36 of this German law the statement is made: "Treaties concluded by the Federal States with foreign countries prior to the going into effect of this law remain undisturbed."
What is the meaning of the statement that these treaties "remain undisturbed”? If dual citizenship is a normal status, of course these treaties remain undisturbed. There is nothing in that status to disturb them. There is no denial in this law that a naturalized citizen of a foreign country is really a citizen of that country, and is to be treated as such. This obligation, imposed by the treaty, is undisturbed. But, on the theory that dual citizenship is in any case permissible, these same persons, while being American citizens, may at the same time remain Germans; or, to give to dual citizenship the full benefit of its implications, they are “German-Americans.”
The laws of the United States recognize no such hyphenated citizens. A person is either an American or he is not. If he is an American he is not in any legal sense a German, and if he is in any legal sense a German he is not an American. There can be but one allegiance.
This is a consequence of the nature of citizenship, not of a treaty. But those who defend the German law of dual citizenship pretend that, while it applies to the citizens of other nations, it does not apply to citizens of the United States, because of a treaty which prevents that application.
The so-called “Bancroft Treaties” of naturalization between the United States and certain German States, negotiated in 1868, if not abrogated by a state of war, or by the German formula, rebus sic stantibus, which German jurists affirm justifies the abrogation of any treaty when it is an advantage to abrogate it, may be assumed to be in force, but they do not undertake to define citizenship.
Let us take, for example, the treaty concluded on February 22, 1868, between the plenipotentiaries of the President of the United States of America and His Majesty the King of Prussia in the name of the North German Confederation. Assuming that this treaty is now in force, and that it comes under the rubric of "treaties concluded by the Federal States with foreign countries," although it has been assumed in the United States that naturalization terminates all relations between the naturalized citizen and the country of his origin, there is nothing in this treaty that affirms it. If dual citizenship, apart from any treaty, is a normal status, as the German law regards it, this treaty is wholly “undisturbed.” A former German has become an American citizen. The German law of dual citizenship does not deny that. It does not deny anything which the treaty contains. It merely holds that, since dual citizenship is a normal status, this American citizen may remain
also a German; because the sovereign who agrees that he is, after naturalization, to be regarded as an American citizen, permits him to remain what he was before, a German citizen. This permission is, of course, no part of the treaty contract; but, if dual citizenship is a normal status, it does not affect the contract. The person, from the German point of view, is all that the treaty pretends that he is, a naturalized citizen of the United States. If the Imperial German Government is graciously disposed to regard him, in addition, as also still a German citizen, and informs him that he is one, is it not still within its sovereign right?
Undoubtedly, the validity of this ingenious reasoning depends entirely upon dual citizenship being a normal status. If citizenship is necessarily single, and not dual, and the act of naturalization, ipso facto, terminates absolutely citizenship in the state of origin, what becomes of this whole effort to set up in this German law the idea of dual citizenship in any direction, or for any purpose? Why was this plan put into operation six months before the outbreak of a general war, and made a correlate to the revision of the military law? What purpose was this new ambiguity respecting citizenship to serve? Why, with treaties or without treaties, should citizens of other nationalities have provisions expressly made for them to class them as Germans when they were not Germans, if it was an honest intention to respect the treaties of naturalization as they had always been interpreted?
The whole conception of dual citizenship, then, either falls to the ground, or it must be regarded as a scheme for obscuring and confusing the obligations of citizenship, leaving ill-instructed persons to suppose that they can claim citizenship in two countries at the same time, that they therefore have a divided allegiance, and that they can serve the interests of one country under the cover of citizenship in another. But the idea of dual citizenship does not fall to the ground as a mere sophistical speculation, a purely innocuous conception, like the fourth dimension of space. It assumes in this German law the form of a legal reality. It asserts that the same person may be at the same time a naturalized citizen of a foreign country and a German citizen. Saying to us, in the United States, that our citizenship is not affected by it, because a treaty exists and is not "disturbed,” does not explain the adoption of this dual citizenship at the time and in the manner in which it became law in Germany for obviously military reasons. Taken in connection with the activities of naturalized citizens who were formerly