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More international law on citizenship

Continuing our series on international law and citizenship, we introduce the book International Law (1904) by John Westlake, Professor of International Law, Cambridge University. The section on citizenship is very long and the following is but a small part, selected for its particular relevance from Chapter 10.

Who are Nationals Jus soli and jus sanguinis

Historically nationality arose out of allegiance. The sovereign lords in the dealings between whom international law had its origin belonged to a system of which the dominant character was feudal and in feudalism the personal relation of a man to his lord was blended with the territorial relation of a fief to the lordship of which it was held. By virtue of the latter the personal relation to the lord was imposed on all natives of the fief or of the country considered as a collection of fiefs and this jus soli was not inconvenient because few persons were to be met with in any country who had not been born in it except traders and other obviously casual visitors. It was therefore on birth on the soil or on certain circumstances equivalent to birth on the soil that the character of a natural born subject primarily depended. By the common law of England which fairly represents the old common law of western and central Europe on the matter allegiance was due to the king from all persons born on land within his dominions with the exceptions presently to be mentioned or in foreign harbours on board an English ship of war or packet enjoying the immunities of a ship of war or at sea on board an English ship and from children born abroad to a duly accredited English ambassador or minister, but not from children born on foreign soil to English soldiers or sailors….

As a matter of clear history the way in which the jus sanguinis was introduced into the European law of nationality by the side of the jus soli was not that of allowing the character resulting from either to be disclaimed because it conflicted with that resulting from the other. The jus sanguinis makes its appearance as enlarging not the choice of the individual but the grasp of the state….

In America there has not been the same tendency to adopt the jus sanguinis as in Europe because the states of that continent have to deal with and even invite a great immigration which they cannot safely allow to remain alien nor do they like to clog the advantages which they offer to immigrants with a necessity for the children born after their arrival to opt or be naturalised….

In the United States the relation of a citizen to the Union was at first founded on his being a citizen of one of the component states but this was altered by section 1992 of the revised statutes enacted in 1866 and the fourteenth amendment of the constitution ratified in 1868. By the former all persons born in the United States and not subject to any foreign power excluding Indians not taxed are declared to be citizens of the United States. By the latter all persons born or naturalised in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state in which they reside. There was thus introduced an independent citizenship of the United States the persons possessing it being distributed among the several states by residence just as the subjects of the United Kingdom are distributed among the British dominions by domicile. The conditions for possessing this citizenship are to be found in the legislation which introduced it which it will be observed incorporates the English common law doctrine of the jus soli handed on to the Union through the states modified however by a declaration of congress in 1868 that the right of expatriation is a natural and inherent right of all people indispensable to the enjoyment of the right of life liberty and the pursuit of happiness. The true conclusions from these data appear to be that when the father has domiciled himself in the Union he has exercised the right of expatriation claimed for him by congress and that his children afterwards born there are not subject to any foreign power within the meaning of section 1992 but are subject to the jurisdiction of the United States within the meaning of the fourteenth amendment therefore are citizens but that when the father at the time of the birth is in the Union for a transient purpose his children born within it have his nationality and probably without being allowed an option in favour of that of the United States. And these conclusions appear to be in accordance with the practice of the United States executive department.

Who are Nationals Jus soli and jus sanguinis Historically nationality arose out of allegiance The sovereign lords in the dealings between whom international law had its origin belonged to a system of which the dominant character was feudal and in feudalism the personal relation of a man to his lord was blended with the territorial relation of a fief to the lordship of which it was held1 By virtue of the latter the personal relation to the lord was imposed on all natives of the fief or of the country considered as a collection of fiefs and this jus soli was not inconvenient because few persons were to be met with in any country who had not been born in it except traders and other obviously casual visitors It was therefore on birth on the soil or on certain circumstances equivalent to birth on the soil that the character of a natural born subject primarily depended By the common law of England which fairly represents the old common law of western and central Europe on the matter allegiance was due to the king from all persons born on land within his dominions with the exceptions presently to be mentioned or in foreign harbours on board an English ship of war or packet enjoying the immunities of a ship of war or at sea on board an English ship and from children born abroad to a duly accredited English ambassador or minister2 but not from children born on foreign

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12 Responses to More international law on citizenship

  1. avatar
    nbc September 27, 2009 at 3:45 pm #

    Tuan Anh Nguyen v. INS – Oral Argument
    Justice Scalia: But has not been called natural born citizenship? I mean, isn’t it clear that the natural born requirement in the Constitution was intended explicitly to exclude some Englishmen who had come here and spent some time here and then went back and raised their families in England? They did not want that.They wanted natural born Americans.
    Mr. Davis: Yes, by the same token…
    Justice Scalia: That is jus soli, isn’t it?

    Justice Scalia: Well, maybe.
    I’m just referring to the meaning of natural born within the Constitution.
    I don’t think you’re disagreeing.
    It requires jus soli, doesn’t it?

  2. avatar
    ballantine September 27, 2009 at 4:25 pm #

    Great find NBC. Do you have a link to the oral arguments? Funny how birthers think Scalia would be on their side when there might not be a Justice in history who looked more to Blackstone to interpret the constitution than Scalia.

  3. avatar
    nbc September 27, 2009 at 4:31 pm #

    Just closed the window. It’s on Oyez….

    voila

    Audio and transcript

  4. avatar
    nbc September 27, 2009 at 4:32 pm #

    Of course, we have to remember that this comes from the ‘liberal’ Scalia and has as much relevance as Mario’s quotes from dissenting or minority opinions. But it does help understand where the Supreme Court Justices stand.

  5. avatar
    Welsh Dragon September 27, 2009 at 5:09 pm #

    Good one NBC!

    I must confess I have secret fantasy I’d love to see one of the birther lawyers presenting oral arguments to Justice Scalia!

  6. avatar
    Dr. Conspiracy September 27, 2009 at 6:10 pm #

    Listening to those oral arguments, it is clear that Apuzzo doesn’t have a snowball’s chance in hell of having the opportunity to make an oral argument in Kerchner. If there was any mystery about what current judicial thinking is, there is none now.

  7. avatar
    Gordon September 27, 2009 at 6:56 pm #

    When is Kerchner being heard? Appuzo has a real smack down coming.

  8. avatar
    nbc September 27, 2009 at 7:01 pm #

    Federal District Court of New Jersey. For some of the filings and the docket see here

    Case number: 1:09-cv-00253-JBS-JS

  9. avatar
    Dr. Conspiracy September 27, 2009 at 7:08 pm #

    Kerchner is not being “heard” at this point. The judge is reviewing the motion to dismiss without oral arguments. Nobody seems to know when that decision is coming.

  10. avatar
    nbc September 27, 2009 at 7:13 pm #

    Setting Deadlines as to 27 MOTION to Dismiss the Complaint. Motion set for 7/20/2009 before Judge Jerome B. Simandle. The motion will be decided on the papers. No appearances required unless notified by the court. (js) (Entered: 06/26/2009)

    Resetting Deadlines as to 36 Cross MOTION for Leave to File Second Amended Verified Complaint and Petition for Emergency Injunction, Declaratory Relief, Mandamus, and Quo Warranto. Motion set for 8/17/2009 before Judge Jerome B. Simandle. The motion will be decided on the papers. No appearances required unless notified by the court. (js) (Entered: 07/27/2009)

    Nothing happening so far.

  11. avatar
    Mario Apuzzo September 27, 2009 at 10:47 pm #

    nbc,

    Is this supposed to be some kind of great find. Of course “natural born citizenship” requires jus soli, including a McCain-type situation in which by legal fiction we create jus soli.

  12. avatar
    nbc September 27, 2009 at 10:59 pm #

    It must be a jus-soli weekend for Mario, after all the jus sanguini was a total rain out.