At Home in Two Countries

The Past and Future of Dual Citizenship

Peter J Spiro

• Publisher: NYU Press
• Year: 2016
• ISBN:
  9780814724415
• Topic: Politics & International Relations
• Subtopic: Civics & Citizenship
• Index: Politics & International Relations

Read Peter's Op-ed on Trump's Immigration Ban in The New York Times The rise of dual citizenship could hardly have been imaginable to a time traveler from a hundred or even fifty years ago. Dual nationality was once considered an offense to nature, an abomination on the order of bigamy. It was the stuff of titanic battles between the United States and European sovereigns. As those conflicts dissipated, dual citizenship continued to be an oddity, a condition that, if not quite freakish, was nonetheless vaguely disreputable, a status one could hold but not advertise. Even today, some Americans mistakenly understand dual citizenship to somehow be “illegal”, when in fact it is completely tolerated. Only recently has the status largely shed the opprobrium to which it was once attached. At Home in Two Countries charts the history of dual citizenship from strong disfavor to general acceptance. The status has touched many; there are few Americans who do not have someone in their past or present who has held the status, if only unknowingly. The history reflects on the course of the state as an institution at the level of the individual. The state was once a jealous institution, justifiably demanding an exclusive relationship with its members. Today, the state lacks both the capacity and the incentive to suppress the status as citizenship becomes more like other forms of membership. Dual citizenship allows many to formalize sentimental attachments. For others, it’s a new way to game the international system. This book explains why dual citizenship was once so reviled, why it is a fact of life after globalization, and why it should be embraced today.

1

The Feudal Roots and Modern Emergence of Dual Nationality

John Warren stood in the dock in Dublin in March 1867 to hear his indictment on treason charges for “feloniously and wickedly” seeking to depose Queen Victoria from her imperial rule. Warren had been implicated as a gun runner in the Fenian uprising, an attempt to overthrow British rule in Ireland. But what occupied the court in intense legal arguments at the trial’s opening had nothing to do with the inflammatory nature of his activities in an era of heavy-handed monarchical rule. Warren’s first defense was to plead citizenship in and allegiance to the United States of America. Warren was looking to secure the procedural benefit of a jury de medietate linguae, composed one half of subjects of the British crown, one half of foreigners. The mixed jury was a product of the Middle Ages, used mostly in cases involving foreign merchants. It was available only to foreigners. Warren claimed that as a citizen of the United States he was no longer a British subject and thus qualified for the special procedure.1

Warren had been born in County Cork to Irish parents. After immigrating to the United States, he became a journalist and a leader in the substantial Boston Irish community of Charlestown. He served as a captain of the 63rd New York Infantry for the Union during the Civil War, part of the so-called Irish Brigade, and was the Massachusetts representative of the Fenian Brotherhood of America. Warren had naturalized as an American on October 1, 1866. In April 1867 he sailed on the brigantine Jacmel Packet with forty other American Fenians as part of an “implausibly farcical” expedition to join an uprising that had already failed.2

In the Dublin courtroom, the Queen’s attorney general fervently denied the possibility that a person born in the realm to British subjects could have the status of an “alien” entitled to the mixed jury. The prosecution found the request so objectionable that they argued against it even being entered into the record. The presiding judge, Chief Baron Pigot, had no trouble rejecting Warren’s claim of alienage out of hand. “I cannot allow that proposition to be put forward without meeting it with a prompt and unhesitating denial,” Pigot intoned. Claiming it “was really almost pedantry to cite authorities . . . familiar to every lawyer,” he proceeded to recount the many jurists, including American treatise writers “of the greatest weight and highest reputation,” holding that those born in British territory owed perpetual allegiance to the crown. “Natural born subjects owe an allegiance,” Pigot quoted the American legal giant Chancellor James Kent, “which is intrinsic and perpetual, and which cannot be divested by any act of their own.”3

In other words, even though Warren had naturalized as an American, in the process expressly renouncing allegiance to Queen Victoria, this was ineffective to cut the tie to his birth sovereign. The chief baron denied the request for the mixed jury. A jury of British subjects went on to find Warren guilty of levying war against the Queen. An unrepentant Warren was sentenced to fifteen years’ hard labor and rendered to the jailer at Millbank Prison.4

Warren wasn’t the only naturalized American who found himself facing British justice for complicity in the Fenian uprisings. In all cases, Britain refused to recognize the effectiveness of their U.S. naturalization. The prosecution of the U.S. citizens (and the rough justice that followed their convictions) put the United States and Great Britain at loggerheads, not the least because of the intense popular interest in the controversy in the United States. Britain’s arrest of the Americans provoked national outrage, in Secretary of State William Seward’s description, “throughout the whole country, from Portland to San Francisco and from St. Paul to Pensacola.”5 Several state legislatures and city councils passed resolutions demanding federal legislation to declare a right to shed nationality.6 The Wisconsin state legislature, for example, resolved that “the principle derived from the feudal system . . . ‘once a subject always a subject,’ is repugnant to the dictates of enlightened civilization, and opposed to the rights and best interests of mankind[, and] that expatriation is one of the inalienable rights of man,” in demanding federal action to protect the rights of naturalized citizens “temporarily sojourning in foreign countries.”7

U.S. actors were thus focused on establishing a right to expatriation. But the ill to be addressed was dual nationality. John Warren and his counterparts were saddled with allegiance to more than one sovereign. They were not alone. For every European sovereign that refused to recognize the effect of naturalization in the United States, every immigrant acquiring U.S. citizenship also continued to hold nationality of his country of origin. The upshot was a continuing series of disputes as states purported to lay exclusive claim to their nationals, the human equivalent of turf contests among sovereigns. Dual nationality destabilized the fragile constellation of states.

“Once a Subject, Always a Subject”

Instances of dual nationality are almost as old as the concept of nationality itself, and the phenomenon has been deplored for just as long. The incidence of dual nationality is the inevitable result of the failure to develop a universal rule of nationality. States have historically been more or less unfettered in devising their own nationality rules.8 “There can be no doubt that nationality questions must be regarded as problems which are exclusively subject to the internal legislation of individual States,” the Polish jurist Szymon Rundstein observed in 1926. “It is, indeed, the sphere in which the principles of sovereignty find their most definite application.”9 The interplay of different approaches coupled with migration gave rise to cases in which individuals held nationality in more than one state. But it was the historically anarchical context of the state system, one in which no superior authority imposed order and in which each nation’s fortune faced constant threat from other states in a zero-sum world, that made dual nationality so threatening.

Neither states nor sovereigns were a part of the medieval world. Individuals were identified not by nationality but rather by personal allegiances tied to natural law. As Sir Edward Coke asserted in the first major judicial articulation of the doctrine of perpetual allegiance, “Ligeance or Obedience of the Subject to the Sovereign is due by the law of nature.”10 The notion of personal allegiances persisted as Europe divided into distinct territorial units, each ruled by an individual sovereign. Early models of nationality worked from the putatively personal relationship between the individual and the sovereign. Because it was natural, it was also perpetual and immutable, something that the laws of men had no power to trump.11

This posture reflected prevailing notions of the individual’s relationship to the state. One finds the words “subject” and “claim” at the center of the language of perpetual allegiance, as opposed to “citizen” or “right.”12 Individual consent—of citizenship as part of a social compact—played no part in this system. The sovereign did owe certain obligations to his subjects, including a duty of minimal protection, for which he was answerable only to God.13 Notions of a representative connection between the state and society did not exist before the French Revolution and advanced thereafter only in fits. The individual figured primarily as an instrument of the person of the sovereign.

The common law followed the rule of nemo potest exuere patriam: no man may abjure his country. The individual lacked the legal capacity to forsake his sovereign. As Blackstone characterized it, obligations to one’s sovereign represented “a debt of gratitude, which cannot be forfeited, canceled, or altered, by any change of time place or circumstances.”14 In this world, the law did not recognize dual nationality as a legitimate status; it was not merely a problem, it was an offense to law and nature. Regimes adhering to perpetual allegiance prohibited naturalization before other sovereigns. As Lord Grenville wrote to the American minister in London in 1797, “a declaration of renunciation made by any of the King’s subjects would, instead of operating as a protection to them, be considered an act highly criminal on their part.”15 It was “not in the power of any private subject to shake off his allegiance, and to transfer it to a foreign prince,” held the House of Lords in 1747. “Nor is it in the power of any prince by naturalizing and employing a subject of Great Britain, to dissolve the bond of allegiance between the subject and crown.”16 Russia punished naturalization with perpetual banishment, or, in the case of unauthorized return, with deportation to Siberia.17 During the War of 1812, the British Prince Regent threatened to execute as a traitor any naturalized Englishman captured from American forces, a threat from which he backed down only upon President Madison’s own threat to take the same action against British prisoners on a two-for-one basis.18

Nationality as Battleground

But perpetual allegiance could not change the fact of greater global mobility. Although the doctrine itself did not recognize the possibility of dual nationality, perpetual allegiance generated a huge population of dual nationals. All migrants from the many states following perpetual allegiance held two nationalities after naturalizing in their new state of residence. Two sovereigns demanded their allegiance. Reflecting migration between the two countries in the late eighteenth and early nineteenth centuries, this resulted in a significant number of dual British and American nationals. A British subject who emigrated to and naturalized in the United States became a dual national in the sense that he was claimed by both.

Such dual nationals posed a threat not because they sought to divide allegiances but rather because they sought to transfer them. Subjects were useful as instruments only in the competition with other sovereigns. They were to be put to work as resources. Actual sentiments of allegiance counted for little. The British crown would not have cared particularly whether a seaman had in fact transferred his affections to the American flag; if reclaimed by his former master, he either accepted his lot or faced the yardarm. As “population came to be perceived as a scarce resource,” in Aristide Zolberg’s formulation,19 expatriation represented an intolerable loss of strength to the birth sovereign, a human version of mercantilist competition. As a United Nations report later put it, the main historical obstacle to eliminating dual nationality was the refusal of states to “los[e] a potential soldier.”20 Competition for subjects was like competition over territory. If not in one sovereign’s tally, a subject was in his enemy’s. Nationality was a zero-sum proposition.

Britain aggressively asserted perpetual allegiance at the beginning of the nineteenth century against subjects who emigrated to and naturalized in the United States. It refused to allow individuals to terminate their British nationality; there was no right of expatriation. Rejecting the legal fact of naturalization as diminishing obligations to the crown, the King proclaimed in November 1807 that “no such letters of naturalization, or certificates of citizenship, do, or can, divest our natural-born subjects of the allegiance, or in any degree alter the duty which they owe to us, their lawful Sovereign.”21 The English navy impressed naturalized Americans at sea into its service on the grounds that they had never been released from their obligations to their country of birth. British naval vessels took to stopping U.S. flag ships and seizing those crew members thought to be (former) British subjects. As Henry Adams observed, “The measure, as the British navy regarded it, was one of self-protection.”22 At the same time as Britain sought to stem a loss of manpower through attempted expatriations, the United States saw a threat not only to the strength of its own forces but to its sovereignty.23 The problem festered through the first decade of the century. British impressment policy was an important contributing factor in the outbreak of the War of 1812.24

In the wake of that conflict, Britain stood back from efforts to return would-be former subjects by force. But it did not abandon perpetual allegiance within Britain itself. Naturalized Americans returned to Britain at risk of having to fulfill putative duties as British subjects, including military service. In this sense, the impressment controversy was more an issue of enforcement jurisdiction—sovereigns could continue to claim subjects indefinitely, but could enforce that claim only on their home turf.25 Other states recognized a qualified right of expatriation, accepting the validity of naturalization elsewhere only upon satisfaction by the expatriating individual of home-country military service obligations. France, Prussia, and Spain, among other states, attempted to extract military service from naturalized Americans on mere visits to their countries of birth.26

The United States wavered through the mid-nineteenth century in its willingness to protect naturalized citizens who returned to the grasping clutches of their homeland sovereigns. The United States was thirsty for immigrants. As Attorney General Jeremiah Black observed in 1859, it was upon the principle of voluntary expatriation that “this country was populated. We owe to it our existence as a nation.”27 Not surprisingly, perhaps, the United States extended full legal equality (with the small exception of presidential eligibility) to naturalized citizens. As the Supreme Court observed in 1824, the naturalized citizen “becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights.”28 Those rights included the right to diplomatic protection by U.S. authorities outside the United States. As Secretary of State James Buchanan advised a naturalized citizen looking to visit his homeland, “The fact of your having become a citizen of the Uni...