consular courts of various powers of the first class in countries like China and Turkey. The will of the state, therefore, is not merely limited in its expression by its constitution and laws, but its enforcement is limited externally-except for the grace of other states, due to custom or comity-by the territorial boundaries of the state.1

§ 5. Nature of the Bond.

In pure constitutional theory, citizenship is imposed by the state, by virtue of its sovereignty, on whomsoever it will, and independently of the will of the person. It is not created by or at the consent of the individual.2 The theory is limited in its application by the international rule that states permit their subjects to acquire a new citizenship, or rather predicate their recognition of such a change, on the condition that it shall have been a voluntary act of the subject accompanied by an actual change of domicil and political affiliation.

André Weiss, the eminent jurist of Paris, has presented an ingenious and plausible argument to show that citizenship or nationality is contractual in its nature.3 "It is to-day generally recognized," says Weiss, "that the bond of nationality is a contractual one; and that the bond which unites to the state each of its citizens is formed by an agreement of their wills, express or implied." This theory has been severely criticized, among others by Stoerk and by Piggott,5 and it is now considered fallacious. Some modern authors, however, find in the grant of nationality, i. e., naturalization, a public legal act of a bilateral character, but even these publicists admit that the

1 W. W. Willoughby in 1 A. J. I. L. (1907) 925; Heilborn, P., System des Völkerrechts, Berlin, 1896, p. 75 et seq., and opinions of Gierke, Oertmann, Gerber and Laband there cited.

* Willoughby in 1 A. J. I. L. (1907) 924.

Annuaire de l'Institut de Droit International, v. 13 (1894), 162 et seq. See also Cogordan, Droit des gens. La nationalité, 2nd ed., Paris, 1890, § 2.

Stoerk, F., Les changements de nationalité et le droit des gens in 2 R. G. D. I. P. (1895) 273 et seq. See also Nys, E., Le droit international, 2nd ed., Bruxelles, 1912, II, 257.

Piggott, F. T., Nationality, London, 1906, I, 5-10.

* Laband, Paul, Das Staatsrecht des deutschen Reichs, 5th ed., Leipzig, 1911, p. 177; Jellinek, Georg, System der subjectiven öffentlichen Rechte, 2nd ed., Tübingen, 1905, p. 198. The majority of publicists deny that the conceptions of private law furnish any analogy to the peculiar relations created by public law. See

relation is not analogous to a private contractual obligation but rather to the contract of adoption in family law.

The relation between the citizen and his state is in fact a relation sui generis. Admission into membership in the state and to the status of citizenship is an act of sovereignty. Being neither a contract nor an act of grace, Stoerk has denominated it a sociological fact, a distinguishing mark of the state itself.1 In discussing expatriation, the United States Supreme Court, on several occasions prior to the expatriation act of July 27, 1868 (R. S. 1999), expressed the opinion that "the doctrine of allegiance . . . rests on the ground of a mutual compact between the government and the citizen or subject, which it is said, cannot be dissolved by either party without the concurrence of the other." 2

The theory of a compact in the relation between the state and its citizens has engaged the attention of political philosophers for centuries. It became important in the eighteenth century when some writers in the American colonies, appealing to the Englishman Locke, forcefully advanced the theory that the individual enters the state by voluntary agreement, and may establish the conditions of his membership and the limitations of the power of the state. In France, Montesquieu and Rousseau were its most prominent champions. In arriving at the true legal relation between the state and the individual we are not concerned with either of the political theories (1) that the entire sphere of right of the individual is the product of state concession and permission, or (2) that the state not only creates rights but leaves the individual that measure of liberty which it does not itself require in the interest of the whole.3

Stoerk, Felix, Zur Methodik des öffentlichen Rechts, Wien, 1885, and authorities there cited.

1 Stoerk in 2 R. G. D. I. P. (1895) 288.

2 Inglis v. Sailor's Snug Harbor, 3 Peters (1830), 124; Talbot v. Janson, 3 Dallas (1795), 162. See also cases cited by Wise, J. S., American citizenship, Northport, 1906, p. 263. While not a mutual compact, it is true that as a status imposed by the state, citizenship and allegiance could only be renounced when permitted by the state. In most modern states, except Russia and Turkey, municipal legislation has granted the individual this power.

3 On this entire subject see Jellinek, G., The declaration of the rights of man and of citizens, New York, 1901 (Max Farrand's translation), 80, 90 and 95.

§ 6. "Temporary Allegiance" of Aliens.

Foreigners within the state owe it a considerable measure of obedience in return for the local protection they receive while residents. This obedience has often been termed temporary and qualified allegiance in contradistinction to the permanent and absolute allegiance owed by the citizen.1 In truth, it is a misnomer to speak of "temporary allegiance" due by a foreigner. The nature of the foreigner's subjection to the state of his residence was described by Secretary of State Webster in 1851 in his report on Thrasher's case as follows: 2

Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native born subject might be, unless his case is varied by some treaty stipulation.

The migration of the citizen of one state to another and his residence in the latter brings about in constitutional theory a double citizenship, of primary and organic nature with respect to his home state and of a temporary and qualified nature with respect to the state of residence. It subjects the individual for different purposes and in different degrees to the sovereignty of two states. The conflicting claims of two or more states to the citizenship and obedience of the same individual have been to a great extent settled by mutual forbearances, although differences in municipal legislation in some instances still give rise to cases of double nationality and even of no nationality (Heimatlosen).3

§ 7. Source of Rights of Individual.

Nationality (a less ambiguous term than its synonym, citizenship) is the most important of the three relations in which a person may

1 Mr Justice Field in Carlisle v. United States, 16 Wallace, 147, at 154; adopted by Willoughby in 1 A. J. I. L., 924.

2 The works of Daniel Webster, Boston, 1851, VI, 518, at 526, cited also in Carlisle v. United States, 16 Wall. 155; see also Mr. Justice Gray in United States v. Wong Kim Ark, 169 U. S. 649.

* Cogordan, op. cit., 11-14.

be subject to the control of a particular state. These three, in the order of the closeness of the bond, are actual residence, domicil, and nationality or citizenship (Staatsangehörigkeit, nationalité).1 Used in the ethnographic sense, a nation is a collection of human beings held together by certain common physical or racial characteristics; used in the legal sense, it denotes a politically united people, and its derivative "nationality" is used to represent the bond which attaches the citizen by certain qualities to the state.2 It has already been noted that by virtue of the bond the citizen is provided with certain rights, in particular, political rights, and is charged with the performance of certain duties to his state in return for the benefits of citizenship.3 Stoerk and Oppenheim believe that nationality is a condition precedent to the enjoyment of international rights, a statement which von Bar refutes by showing that heimatlosen or those without nationality are entitled to these rights. International rights are commonly considered to be those which are universally accorded by the national law of all civilized states to individuals within its jurisdiction.

4

Confusion arises because in the present state of our civilization, the individual, as a human being, is accorded certain fundamental rights by all states professing membership in the international community. In constitutional governments, they have often received the name 'rights of man." These rights, uncertain as they are in content, were denominated by Blackstone as the absolute rights of all mankind,-the right to personal security, to personal liberty and to private property.5 At one period in the history of law they were known as "natural

1 Cogordan, op. cit., § 1.

2 Bar, op. cit., 111; Stoerk in Holtzendorff's Handbuch des Völkerrechts, Berlin, 1885, II, 589–591.

3 Stoerk in Holtzendorff's Handbuch, II, 630-636; Heilborn, op. cit., 75 et seq.; Oppenheim, International law, London, 1912, § 291; Gareis, K. Institutionen des Völkerrechts, Giessen, 1901, § 53; Cockburn, Alexander, Nationality, London, 1869, p. 186; Nys, E., op. cit., II, 257.

4 Stoerk in Holtzendorff's Handbuch, II, § 114, p. 589; Oppenheim, op. cit., I, § 291; Bar, op. cit., 111.

"What is regarded as private property may differ from state to state, e. g., slaves were, until recently, property in some states. See The Amistad, 15 Pet. 518; The Creole, 30 St. Pap. 181-193. These rights may, of course, be forfeited to society by due process of law. See Kepner v. U. S., 195 U. S. 100.

rights," and this conception played a prominent part in justifying the eighteenth century political philosophy which culminated in the French Revolution. These rights, as incidental to natural law, the adherents of which school of legal philosophy were the founders of international law, were logically denominated international rights and sometimes human rights. Whether the recognition of these rights is the result of history and the unconscious growth of law or whether it is the result of conscious legislation, it is certain that by legislative and judicial declaration certain fundamental rights of the individual in a civilized state have been positivized in the same way that the Roman jurisconsults by their jus respondendi positivized the principles of the jus naturale. These rights, like all rights, are really creations of public sentiment, legally protected interests, which may be expressed either by custom or legislation.

3

2

If these rights of a resident alien are violated without proper redress in the state of residence, his home state is warranted by international law in coming to his assistance and interposing diplomatically in his behalf. Reasoning from this fact, many publicists assert that whatever rights the individual has in a state not his own are derived from international law, and are due him by virtue of his nationality. As a matter of fact, the alien derives most of his rights-fundamental or human rights and others-by grant from the territorial legislature, international law fixing a minimum which cannot be overstepped and authorizing certain agencies, usually the national state, to remedy and punish a breach. Whether these "rights of humanity" have their origin in international law, or are merely concomitants of existence in a civilized state, the recognition of which rights a state must show as

1 For the history of natural rights and the modern theories see Ritchie, D. G., Natural rights, London, 1895, chs. 1 and 2. An analysis of the so-called rights is undertaken by Ritchie, ch. 6 et seq.

2 For a summary account of the history of legal theory and the various schools of legal thought see Borchard, E. M., Guide to the law and legal literature of Germany, Washington, 1912, 25 et seq.

See Muirhead, James, Historical introduction to the private law of Rome, London, 1899, 2nd ed., 283. See also 1 Annuaire of the Institute of Int. Law, 124. The Supreme Court has recognized the existence of these "fundamental rights" in Hawaii v. Mankichi, 190 U. S. 197, 217; Kepner v. U. S., 195 U. S. 100, 123; Dorr v. U. S., 195 U. S. 138, 144.