Yale Law Journal

Volume 56
Article 12
Issue 1 Yale Law Journal

1946

"SUBJECT," "CITIZEN," "NATIONAL," AND

"PERMANENT ALLEGIANCE"
MAXIMILIAN KOESSLER

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MAXIMILIAN KOESSLER, "SUBJECT," "CITIZEN," "NATIONAL," AND "PERMANENT ALLEGIANCE", 56 Yale L.J. (1946).
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 "SUBJECT," "CITIZEN," "NATIONAL," AND "PERMANENT
ALLEGIANCE"
MAXIMILIAN KOESSLER t

So long as nations retain sovereignty, while persons move or engage

in transactions across geographic boundaries, the solution of many legal
problems will require concepts hinged on the relation of individuals to
governing states.' The purpose of the ensuing discussion is analysis of
the key terms involved in determining the international status of
persons: "subject," "citizen," "national," and "permanent allegiance."

SUBJECT VERSUS CITIZEN

Before the Declaration of Independence, "subject" and "denizen" 2
were the terms most frequently used in'the United States in connections
where "citizen" would now be the proper word. This was the natural
usage in what then were British colonies, endowed with all the trim-
mings of the British legal order. Even after the Declaration of Inde-
pendence, some states enacted constitutions designating as "subjects"
the status which others identified by the term "inhabitants," while
still others used "citizens" and "subjects" indiscriminately.' "Sub-
jects" of the United States of America were referred to in the treaties
signed by the Continental Congress with France (February 6, 1778) 4
and the Netherlands (October 8, 1782).1 Although the term "citizen"

f Attorney with War Crimes Branch, United States Army; former member of tle
Vienna bar.
1. It has been predicted that most postwar claims will involve issues of nationality.
Hanna, Nationality and War Claims (1945) 45 COL. L. REV. 301.
1 2. "Denizen," in English law, covered the status of alien-born individuals who had
been naturalized by letters-patent of the King. They were English subjects ex dotnationoe
regis, or donaisons, hence "denizen." The right of the Crown to grant letters of denilzatlon
subsisted after the British Nationality and Status of Aliens Act of 1914 (4 & 5 Gro. V, c. 17).
See Case of Fries, 9 Fed. Cas. No. 5126, at 835 (C. C. D. Pa. 1799) (treason) for a discussion,
by Circuit Justice Iredell, of the concept of denizen. And see 1 PIGGOTT, NATIONALITY
(1907) 90; CHASE, AMERICAN STUDENTS' BLACKSTONE (4th ed. 1914) 122; 1 OPPENIIIW,
INTERNATIONAL LAW (Lauterpacht's 5th ed. 1937) 526, n. 3.
3. McGovney, American Citizenship (1911) 11 COL. L. REv. 231, 236-7.
4. 1 MALLOY, TREATIES (1910) 468, especially Arts. I, IV.
5. 2 MALLOY, TREATIES (1910) 1233, especially Arts. II, III. This agreement between
two nations with republican forms of government referred on the one hand to "the subjects
and inhabitants of the United States of America," on the other hand to "the subjects of the
said States General of the United Netherlands." However, the Treaty of Paris of Sept. 3,
1783, marking the official termination of the war between this coulntry and Great Britain,
contained a discriminating terminology on the point involved. It referred to the "subjects
of Great Britain" and to the "citizens of the United States." 1 MALLOY, TREATIES (1910)
586, Art. VIII.
1946] "SUBJECT," "CITIZEN," "NATIONAL"

appears as early as 1777 in the Articles of Confederation," the use of

"subject" as a synonym did not become obsolete before the enactment
of the Federal Constitution (1787), which referred to citizens exclu-
7
sively, both in relation to the United States and to the several states.
This change of usage resulted from an emerging political philosophy
which abhorred any tinge of colonialism.8 The term "subject" was
brushed aside as a leftover from the feudal law,9 where it referred to the
vassals of a lord, bound by the duty of allegiance to respect him as their
master. 10 However, one of the ingredients of the feudal theory of sub-
jection survived: the concept of allegiance still forms a tautological

6. Art. IV, Articles of Confederation (precursor of the privileges and immunities

clause of the present federal constitution), quoted by CointGoER (ed.), DocuAE."m or
A.mEsIcNq HISTORY (2d ed. 1940) 111. See also Radin, The Authenticated Full Faith and
Credit Clause:Its History (1944) 39 ILL. L. REV. 1.
Concerning the privileges and immunities of citizens of the United States as distin-
guished from privileges and immunities of citizens of the several states, see Newman, A For-
gotten Right of United States Citizenship(1945) 39 ILL. L. REV. 367. And see Slaughter-House
Cases, 16 Wall. 36 (U. S. 1873); Hague v. CIO, 307 U. S. 496 (1939); Edwards v. California,
314 U. S. 160 (1941), discussed by Rostow, The JapaneseAmerican Cases-A Disaster (1945)
54 YALE L. J. 489, 500, who cites Meyers, Federal Privilegesand Immunities: Application
to Ingress and Egress (1944) 29 Cou. L. Q. 489.
7. McGovney, loc. cit. supra note 3.
8. The general temper of that epoch is characterized by the perhaps apocryphal story
of the plan to abandon English as the American language. MENnmczq, T E Ar cwruc
LA=-
GUAGE (1st ed. 1919) 36.
9. The Revolutionary attitude toward the feudal law is exemplified by the statement
"Since the promulgation of Christianity, the two great systems of tyrnnny . . . are the
canwn and the feudal law.. . ." HOLLIS (ed.), THE TRUE SENTLIUENor OF A maic.A (1768)
111, 113, ascribed to John Adams by WARREN, HISTORY OF THE AMERICAN BAR (1911) 334.
The tendency to abandon feudal concepts in this field was not limited to America. The
terms citoyen and cittadino, respectively constituting the French and Italian versions of
"citizen," supplanted "subject" in those countries, with the qualifications discussed infra
note 45 and related text. In Austria, Untertan, or subject, was replaced by Staatsbuerger
(citizen). However, the phrase sujets mixtes (mixed subjects), at least in European technical
usage, and probably also in this country, is the preferred designation of the status of pers-ons,
with multiple nationality.
10. "Allegiance is the tie, or ligamen, which binds the subject to the king, in return for
that protection which the king affords the subject . . . the name and the form are derived
to us from our Gothic ancestors." I BL. Cosro. *366. See also Calvin's Case, 7 Co. la, Sa
(77 Eng. R. 377,382, K. B. 1608) where it is said with reference to Glanville that "as between
the Sovereign and subject there is duplex et reciprocurnligamten;quia sid subdittisregitencur
ad obedientian, ita rex subdito tenetur ad protectionen. . . ." Follows then the famous pas-
sage: "Therefore it is truly said that proectio traiitsubjectionem, ct subjccio protectionem."
And see DICEY, A DIGEST OF THE LAW OF ENGLAND WITH REFERENCE TO THE CONFLICT OF
LAWS (Keith's 5th ed. 1932) 896-7; BRIERLY, THE LAW OF NATIONS (3d ed. 1942) 3-4.
The orthodox theory of the reciprocal connection between allegiance and protection, although
of doubtful reasoning, is vindicated in the otherwise startling doctrine enunciated in the
treason case against "Lord Haw-Haw," Rex v. Joyce, 62 T. L. R. 57 (Ct. Cr. App. 1945);
(1946) 46 COL. L. REv. 319.
 THE YALE LAW JOURNAL [Vol. 56: 58

part " of our statutory definition of nationality. 12

The term "citizen" supplanted "subject" in this country and others,
although not in Great Britain," by a process of lexicographic delinea-
tion. Even in the period immediately before the American Revolution,
there was no such difference in connotation between "subject" and
"citizen" as would predicate reserving the status of "citizen" to the
people of a republic and "subject" to those under the sovereignty of a
monarch. Distinguished French lawyers, writing during the ancielt
regime, seem to have found nothing preposterous in their occasional use
of the term "citizen" with regard to the most absolutistically ruled
subjects of the King of France. 1 4 During the middle ages, "citizens"
lived in towns, and so were members of communities exempted from
the then almost ubiquitous feudal system. 1'But, when the medieval
system of government was replaced by the principles of territorial state
sovereignty, "subject" and "citizen" came to be used as synonyms,
at least by such eminent writers as Bodin 1'and Grotius, 7 although

11. In Baumgartner v. United States, 322 U. S. 665, 673 (1944), Mr. Justice Frank-
furter, per curiam, after citing Schneiderman v. United States, 320 U. S. 118 (1943), and
similar cases, announced:
"Allegiance to this government and its laws, is a compendious phrase to de-
scribe those political and legal institutions that are the enduring features of Ameri-
can political society. We are here dealing with a test expressing a broad conception
-a breadth appropriate to the nature of the subject matter, being nothing less
than the bonds that tie Americans together in devotion to a common fealty."
And see note 68 infra.
12. Sec. 101(a) of the Nationality Act of 1940, 54 STAT. 1137, 8 U. S. C. § 501 (1940)
reads: "The term 'national' means a person owing permanent allegiance to a state." Sec. 101
(b) elucidates: "The term 'national of the United States' means (1) a citizen of the United
States, or (2) a person who, though not a citizen of the United States, owes permanent
allegiance to the United States. It does not include an alien." The final phrase is cryptic,
If "alien" means one who is not a national, the phrase is surplusage. If "alien" means one
who is not a citizen, it is inconsistent with the fact that the Act establishes the possibility of
nationality without citizenship. Quaere: Is there any third way of understanding that
phrase?
13. " 'British subject' is an inclusive term, denoting all subjects of His Britannic
Majesty, to whatever part of the Commonwealth they may belong. The term 'citizen' Is
applied to a person in respect of whom a particular member of the Commonwealth claims
jurisdiction." STEWART, TREATY RELATIONS OF THE BRImsu COMMONWEALTH o NATIONS
(1939) 384.
14. See, e.g., 3 D'AGUESSEAU, OEUVES (1762) 117, 129, 130, 138. Pothier used the
term citoyen even with regard to the class of serfs. 5/I. DuPiN (ed.), POTIER, Ovviis
(TRAITk DES PERSONNES) (1831) Tit. 1, § 4.
15. CARR, THE GENERAL PRINCIPLES OF THE LAW OF CORPORATIONS (1905) 146, re-
printed in 3 SELECT ESSAYS IN ANGLO-AVNERICAN LEGAL HISTORY (1909) 161, 180, and
McGovney, supra note 3, at 235.
16. BODIN, LES Six LIVRES DE LA RPPUBLIQUE (1576) Bk. 1, c. 6, conceives a ciloyat
as a free sujet under another person's sovereignty.
17. GRoTus, DE JuRE BELLI Ac PAciS (1646), e.g., in Bk. 2, c. 25, indifferently uses
civis or citizen and subditu¢s or subject, as designations of the same status. Similarly, HonlEs,
1946] "SUBJECT,"' "CITIZEN," "AWTIOXAL"

others, including Pufendorf 11 and Spinoza,"5 obviously inspired by a

passage in Aristotle's Politics,2 attempted to re-establish a distinction
between those two terms.
Spinoza's abstractions remained without direct practical effect, until
a passage in Rousseau's Social Contract, adapting and somewhat color-
ing, but not quoting, Spinoza's proposition, 21 proided the stimulus
which made "citizens" the terminology for a self-governing people. 2
An English version of the passage reads, "With regard to the associates,
they take collectively the name of People, and are individually called
Citizens, as participating in the sovereign power, and Subjects, as sub-
jected to the laws of the state." 23

NATIONALITY AS THE STATUS OF BELONGING TO A STATE

"Nationality" is a young word. Its matrix, the French nationalit6,
appeared for the first time in the 1835 edition of the Diclionnairede
l'Acadmie Frangaise.24 It has at least two accepted denotations:
(1) the status of belonging to a state; (2) the quality of membership in
an ethnological group. 5 Nationality in the sense of belonging to a state
ELEMENTA PHILOSOPHICA DE CIvE (1646) c. 5, § 6, says (writer's translation), "Each
citizen, as well as each dependent corporation, is in relation to the holder of the sovereignty
called a subject." Even a century later, VATTEL, LE DROIT DEs GENS (1758) Bk. 2, c. 8,
§ 107; Bk. 3, c. 1, § 8 used "citizen" and "subject" as synonyms.
18. PUFENDORF, ELEMEN'TORU JURISPRUDENTIAE UNIVERSALIS LinRi Duo (1672)
Bk. 1, Def. 3, § 9; Def. 8, § 4; Def. 12, § 6; DE JuRE NATUrt&E ET GENTirt Lioni OcTo
(1698) Bk. 7, c. 2, § 20; DE OFFICIO HoMINIs ET CiVIS JUnTA LEGEm NATuOrLETM Lion
Duo (1673) Bk. 2, c. 6, § 13.
19. SPINOZA, TRAcTATus POLITICUS (1677) c. 3, said: ... [Wie call men Citizens, as
far as they enjoy by the civil law all the advantages of the commonwealth, and Subjects,
as far as they are bound to obey its ordinances or laws." 1 EILVES (tr.), THE CIIEF WORKS
OF BENEDICT DE SPINOZA (rev. ed. 1900) 301.
20. "A citizen ... is defined by nothing else so much as by the right to participate in
judicial functions and in office .. . the definition of a citizen that we have given applies
especially to citizenship in a democracy; under other forms of government it may hold good,
but will not necessarily do so." ARIsToTLE, POLITics (Rackham's trans. 1932) Bk. 3, c. 1.
For the impact of this definition upon the DEFENSOR PACdS (1324), see 2 ScOaT, LAw, THE
STATE AND THE INTERNATIONAL CoMMIumTY (1939) 190. But ef. critical comments by
Bodin, loc. cit. supra note 16.
21. According to Dreyfus-Brisac's note, in his edition of RoussEAu's Coi r1,T Socx,.
(1896) 354, 356.
22. JELLINEK, ALLGEMEINE STAATSLEURE (1900) 366-7.
23. CONTE-AT SOCIAL Bk. I, c. 6, contained in ANDRaws, IDEAL EMPUMS ,-D RE-
PUBLICS (1901).
24. COGORDAN, LA NATIOxALITk (1879) 2, n. 1; 3 LiTrRt, DxcTIomNumA DE LA
LANGUE FRAgAIsE (1869) 692.
25. This duality of meaning derives from the parent-word, "nation." Contrast the
answers to the question "What is a Nation?" The French Revolutionist, Abb6 Siey s, as
quoted by SULZBACH, NATIONAL CoNscIous,',msS (1943) 63, answered, "A body of asso-
ciates living under one common law and represented by the same legislature." He obviously
pointed to statehood. RENAN, QU'EST-CE QU'UNE NATION? (1882) 27, suggested (writer's
 THE YALE LAW JOURNAL [Vol, 56: 58

is a primarily legal concept, the existence of which in a certain person

will be determined by such extrinsic tests as the applicable law pre-
scribes. Nationality, ethnologically, while essentially a sociological
conception with political implications,2" may occasionally have a pal-
pable legal effect.Y Determination of ethnological nationality in a
given case may be a touchy matter, since the standards are not uni-
versally recognized and are, at least partly, subjective rather than
objective.
In its legal sense, the term "national" is often used as a general desig-
nation irrespective of whether the status of belonging to a state is
examined with a view to certain rights and'(or) duties under inter-
national law, or is looked upon as the basis of rights and duties, effec-
tive within the domestic sphere of a state. However, the trend is to
reserve the term "national" for the designation of that status by virtue

translation): "The existence of a nation is a daily plebiscite." He certainly meant nation

in the ethnological sense of the word, as did Shakespeare's Shylock: "He hates our sacred
nation." TItE MERCHANT OF VENICE, Act I, Scene 3. See GuL RARD, TilE FRANCE OF
TOMORROW (1942) 33. In general see HAYES, ESiAYS ON NATIONALISM (1926) 4, 5; 2
WRIGHT, A STUDY OF WAR (1942) 996-7.
26. "Nationalism" may perhaps be described as the dynamic trend of a nation in the
ethnological sense of the word to become a nation in the sense of independent statehood.
See MACIVER, SOCIETY, A TEXTBOOK OF SOCIOLOGY (1937) 155. Compare Mancini's
lecture, Nationality as the Foundation of the Law of Nations (1851), reprinted, MARGIIIIRI
(ed.), DiRiTro INTERNAZIONALE Di P. S.MANCINI (1873) 1, with Lord Acton, Nationality
(July, 1862) HOME AND FOREIGN REVIEW, reprinted, FIGGIS and LAURENCE (eds.), Jo
EMERICH DALBERG-ACTON (Lord Acton), TE HISTORY OF FREEDOM AND OTHER ESSAYS
(1922) 270. See HAYES, ESSAYS ON NATIONALISM (1926) 4, 5; CARR, CONDITIONS OF PEACE
(1942) 64-5; Hula, National Self-Determination Reconsidered (1943) 10 Soc. RES. 1;
Friedmann, The Disintegrationof European Civilization and the Future of International
Law (1938) 2 MOD. L. REV. 194, 197.
27. Under Art. XIX of the Austrian constitution of 1867 (HUGELMANN, DAS NATION-
ALITATENRECHT DES ALTEN OSTERREICH (1934) 81-2], ethnological groups in the Austrian
Empire were supposed to receive equal treatment in certain specified respects. Under
Art. 80 of the peace treaty of St. Germain, the right of option among the succession-states
of the Austrian monarchy depended to a measurable extent upon the ethnological quality
of the optant. Again, in the case of modern forced exchange of populations, the "nation-
ality" of a person carries radical legal consequences. According to Art, 2 of tile German
decree on the "Protectorate" of Bohemia and Moravia, March 16, 1939, the inhabitants
of, the Protectorate, who theretofore were Czechoslovakian citizens, became citizens of the
Reich, if they were of German "nationality," otherwise citizens of the Protectorate. See
JONES and MYERS (eds.), DOCUMENTS ON AMERICAN FOREIGN RELATIONS (1939) 299-301.
By the German-Hungarian Protocol of August 20, 1940 (1941) 24 ZEITSCI:Rtr FOR VOL.
KERRECHT 456, Hungary "acknowledged" the claim of the Reich to exercise protection over
those inhabitants of Hungary, irrespective of their citizenship, who belonged to the German
Volksgruppe (ethnological group) and were recognized as such by the leader of the German
Volksbund, a Germano-nationalistic organization in Hungary. On this "agreement" and
similar German treaties for the protection of the folk group (Volksgruppenscliutzvertrge),
see MURPHY, NATIONAL SOCIALISM [U. S. Dep't of State, Pub. No. 1864 (1943)] 140-4.
For the related topic of minority-treaties, see 1 SCHWARZENBERGER, INTERNATIONAL LAW
(1945) 111-2 et scq.
 1946l "SUBJECT," -CITIZEN," "NATIONAL"

of which a person, internationally, belongs to a certain state, and to

speak of "citizenship" when the local status referred to is one of do-
mestic rather than international law.

CITIZENSHIP VERSUS NATIONALITY

"Citizenship," in modem usage, is not a synonym of nationality or a
term generally used for the status of belonging to a state, but means
specifically the possession by the person under consideration, of the
highest or at least of a certain higher category of political rights and
(or) duties, established by the nation's or state's constitution. This
conception, substantially amounting to a modem revival of an Aris-
totelian formulation, is defined by Moore: "Citizenship, strictly speak-
ing, is a term of municipal law, and denotes the possession within the
particular state of full civil and political rights, subject to special dis-
qualifications, such as minority or sex. The conditions on which citizen-
ship is acquired are regulated by municipal law." 2. However, since the
list of the concrete rights and duties, that constitute "citizenship" in
this specific sense, differs according to the country in question, it has
also been said, ". . [There is no universal definition of citizenship
when citizenship ceases to be synonymous with nationality." 0
Applications of "citizen" in the narrower sense, along the lines of
Moore's definition, have occurred chiefly in connections where domestic
status of nationals vary. The Mexican law apparently considers such
special disqualifications as are inherent in minority as inconsistent with
the concept of citizenship as distinguished from nationality.O In the
United States there has been an issue as to whether the so-called
"alien-vote," which for a time existed in certain states, 31 was tanta-

28. 3 MooRE, DIGEST OF INTERNATioAL LAw (1906) 273. See 2 HYDE, INTEnN ,\TIONAL
LAw (rev. ed. 1945) 1066-7, n. 6; 3 HACEWORTH, DIGEST OF INTERNATxO.AL LtW (1942) 1;
Harvard Research in International Law, Nationality: Responsibility of States: Territorial
Waters (1929) 23 Am. J. INT. L. SPEC. Supp. 24; Flournoy, Nationality (1933) 11 E .cyc.
Soc. SCIENCES 249; GETTs, THE LAW OF CITIZENSHIP IN THE UNITED ST. TFs (1934) 3;
McGovmey, Our Non-Citizen Nationals, Who Are They? in R ,,DnrAND KIND, LEG.A EssAYs
(1935) 323; Wilson, Gradationsof Citizenship (1939) 33 Am. J. INT'. L. 146. An outstanding
German monograph on the modern distinction between nationality and citizenship (Staats-
angeh~rigkeit and B-irgerrecht) is LESSING, DAs RECH" DER STAATS.ANGEHORIGREIT UND
DIE ABERKENNUNG DER STAATISANGEH6RIGKEIT ZU STRAP- ND SICHERVNGZUECKEN (1937).
A pertinent discussion by a South-American scholar is: 2 MORENO QINT.NA, EL. SISrF!IA
INTEaTAcioNAL AMERaCAO (1926) 314-5.
29. McGovney, supra note 3, at 235.
30. Law of Nationality and Naturalisation of January 19, 1934, repealing the lex
Vallarta of May 28, 1886. See Koessler, The Reformed Mexican Nationality Law (1943)
5 La. L. REV. 420. In order to be a citizen, a Mexican must be over twenty-one years of age
if not married and over eighteen years if married, with the further requirement, in either
case, that he possesses the means of a decent living.
31. The alien vote existed as late as 1926 in Arkansas. See Aylsworth, The Passingof
Alien Suffrage (1931) 25 AMi. POL. Scr. P\v. 114. For a contemporary survey of the various
 THE YALE LAW JOURNAL [Vol. 5;6: 58

mount to the possession of citizenship, a question which seems to have

been finally decided in the negative. 32 A similar dispute arose with
regard to a somewhat reverse proposition, namely, that since women
may be citizens in this country, they should as such be entitled to the
suffrage. While the Supreme Court of the United States decided in
the negative,33 an amendment
34
to the federal constitution satisfied the
claim of the feminists.
The first precedent in the line of republican constitutions which
used the term "citizen" substantially in the narrower sense, seems to be
represented by the French constitutions of 1793, 1795 and 1799,11
which, in contrast to the French constitution of 1791, distinguished
between a Frangaisgenerally and a citoyen. The latter term designated
the Frenchman who possessed the qualifications prerequisite to the
vote.3" Citizenship in this sense was also mentioned in the original
Code Napol~on 37
For a time during the nineteenth century, there was a tendency in
France to distinguish between two kinds of naturalization. Grande
naturalisationconferred the legal position of a citoyen; petite naturali-
sation made the former alien a Frenchman without the right to vote. 6
In this country, limited distinctions exist between the status of born
and naturalized citizens in that only a born citizen may become Presi-
dent 19 or Vice-President 40 of the United States, while a naturalized
citizen may expatriate himself by extended residence abroad.4"

state laws on the alien vote see BERNHEIM, THE HISTORY OF THE LAW OF ALIENS FROM TIIE
STANDPOINT OF COMPARATIVE JURISPRUDENCE (1885) 150.
32. Lanz v. Randall, 14 Fed. Cas. 1131, No. 8,080 (C. C. D. Minn. 1876); Minneapolis
v. Reum, 56 Fed. 576 (C. C. A. 8th, 1893); Petition of Sproule, 19 F. Supp, 995 (S. D.
Calif. 1937).
33. Minor v. Happersett, 21 Wall. 162 (U. S. 1874).
34. U. S. CONST. AMEND. XIX.
35. Printed in DUGUIT and MONNIER, LES CONSTITUTIONS ET LES PRINCIPALES Lois
POLITIQUES DE LA FRANCE DEPuIs 1789 (3rd ed. 1915) 66, 78, 118.
36. McGovney, Frech Nationality Laws Imposing Nationality at Birth (1911) 5 Am.
J. INT. L. 325, 327.
37. Prior to the amendment of 1889, Art. 8 referred simply to a Frenchman (Frangais),
while Art. 7 referred to the capacity of a citizen (qualit6 de citoyen), and provided that the
exercise of civil rights should be independent therefrom. In view of the influence of French
law upon the legal developments in Latin-American countries, it is fair to assume that con-
stitutional provisions in those countries which employ the term "citizen" in a narrower
sense may be traced to the French constitutions. See 2 MORENO QUINTANA, 10C. Cit. supra
note 28.
38. Ancel, The French Law of Naturalization(1936) 10 TULANE L. REV. 231, 234.
39. U. S. CONST., Art. II, § 1.
40. U. S. CONST. AMEND. XII.
41. The Nationality Act of 1940 provides for loss of nationality by naturalized Ameri-
cans who reside abroad for extended periods under specified conditions. 54 STAT. 1170,
8 U. S. C. §§ 804 et seg. (1940). The previous statute created only a rebuttable presumption
of voluntary expatriation. 34 STAT. 1228-9 (1907), 8 U. S. C. § 17 (1940). Such loss of
 19461 "SUBJECT," "CITIZEN," "NATIONAL'

Hitler's Secretary of State for the Interior, Stuckart, suggested as

an anti-Semitic device the Nuremberg laws, which established a grada-
tion among those who were simply Staatsangeh~irigenor nationals of
the Reich, and those who possessed the racial qualities which were re-
quired for the possession of the privileged status of Rechsbi'rger or
citizen of the Reich.42 These laws substantially duplicated the sixteenth-
century Spanish enactments, instigated by the Inquisition, which made
the possession of Christian blood
43
a requirement for the status of deis
plenijurisor full citizenship.

CITIZEN VERSUS COLONIAL SUBJECT; THE AmRICAN NoN-CITIzEN

NATIONAL
An application of political ethics not to be confounded with racial
discrimination is a gradation of nationality employed by a country
standing on a high level of civilization, which attaches to its sovereignty
a territory with a backward population, to avoid granting the latter a
full share in the self-government of the former.4" For this reason

nationality should not be confused with revocation of nationality under 8 U. S. C. § 73S,

where naturalization was fraudulently procured. By § 738c, removal abroad within five
years of naturalization is prima facie evidence of a lack of intention, at the time of naturali-
zation, to become a permanent citizen of the United States.
The constitutionality of the current provisions for loss of nationality has not been
passed on by the courts, and earlier cases [see, e.g., Luria v. United, States, 231 U. S. 9
(1913)] dealing with cancellation of naturalization under older laws are not necessarily in
point. For a discussion of the problem, as it stood before the Nationality Act of 1940, Eee
Flournoy, Revision of NationalityLaws of tix United States (1940) 34 Am. J. IxT. L. 36,40-5.
And see Osbom v. United States Bank, 9 Wheat. 738, 827 (U. S. 1824); United States v.
Wong Kim Ark, 169 U. S. 649, 703 (1898); Johannessen v. United States, 22S U. S. 227, 241
(1912); Schneiderman v. United States, 320 U. S. 118 (1943); Baumgartner -. United States,
322 U. S. 665 (1944); Knauer v. United States, 66 Sup. Ct. 1304 (U. S. 1946). Related discus-
sions are: Preuss, Denaturalizationon the Ground of Disloyally (1942) 36 Amx. POL.Sci. REv.
701; CABLE, Loss OF CITIZENSIP: DENATURALIZATION: TH ALmEN LNWVAR-Tnm (1943) 12;
Stein, Revocation of Citizenship---'Denaturaliation"(1944) 28 MARQ. L. REv. 59; Burke,
InterpretativeResults of Wartime DenaturalizationProceedings(1944) 18 So. C,%IF. L. REv.
110; Note, Recent Trends in Denaturalizalionin te United States and Abroad (1944) 44
COL. L. R.Ev. 736; Balch, DenaturalizationBased on Disloyaltyand Disbeliefin Constitution.al
Principles(1945) 29 Mim.L. REv. 405.
42. Garner, Recent Gernmn Nationality Legislation (1936) 30 An,. J. I-T. L. 96; JAnow-
sKY and FAGEN, INTENATiONAL ASPECTS OF GEmN RACNa POLICIES (1937) 142-3;
Loewenstein, Government and Politicsin Germany in SHOTwzLL, Gov RnSENTS OF Co-ri-
NENraL. EUtoPE (1940) 514. For a Nazi view, see Koellreutter, Grundfragenunserer Volhs-
und Staatsgestaltungin MEIER-BENNECKENSTEIN, SCHRIFTENDER DEIIscEmN HoCEscHULE
FOR POLITIK (1936).
43. De Los Rios, Spain in te Epoch of American Colonization in Glrrnv (ed.), Cox-
CER 'G LAvax AImERIcAN CuLTuRE (1940) 25, 40-2.
44. The rationale is that the backward people must be "educated" to the art of Eelf
government. Kelsen in one of his earlier works considered this gradation inconsistent with
democracy, as then defined by him. KELSEN, ALLGEMINE STAATSLERE (1925) 161.
 THE YALE LAW JOURNAL [Vol. 56: 59

France and Italy distinguish between a citizen and a colonial subject. 45

The Nationality Act of 1940 sanctions the distinction between
American nationality, including American citizenship, and American
nationality, devoid of American citizenship. 4 In terms of this statute,
American citizenship embraces in addition to those privileges and (or)
duties which are inherent in American nationality, such as the possi-
bility of diplomatic protection by the United States 41 and the body
of obligations customarily referred to as "permanent allegiance," 41
the existence of those rights which only a "citizen" enjoys under the
Constitution. However, even recent legislation occasionally uses 9the
term "citizen" in a wider sense embracing any American national
Filipinos, before the independence of the Philippine Islands, are the
most conspicuous recent specimen of American non-citizen nationals.60
It has been suggested that before a special statute made American In-
dians citizens, they should have been considered non-citizen nationals
of the United States. 5 1 Lawyers who at an earlier period of American
45. See 1 NIBoYET, TRAITA DE DROIT INTERNATIONAL PRIV. FRANgAIS (1938) 93;
2 id. at 2, 3; ROYAL INSTITUTE OF INTERNATIONAL AFFAIRS, ThE FRENCH COLONIAL EMPIRE
(Information Dep't Paper No. 25, London, 1940) 27; ROYAL INSTITUTE OF INTERNATIONAL
AFFAIRS, THE ITALIAN COLONIAL EMPIRE (Information Dep't Paper No. 27, London, 1940)
55; Valeriani v. Amuna Bekri Sichera, 1935-1937 ANNUAL DIG. AND REP. OF Pun. INT. L.
CAs. 283 (1935). The discussion of an analogous phenomenon in the Kingdom of the Nether-
lands by Frangois, Le Problmne des Apatrides (1935) 53 (III) ACADAIE DE DROIT INTERNA.
TIONAL, RECEUIL DES CouRs 283, 290, is probably antiquated, in view of later developments.
46. See note 12 supra. In MIXED CLAIMS COMMISSION, UNITED STATES AND GERMANY,
ADMINISTRATIVE DECISIONS AND OPINIONS TO JUNE 30,1925, Administrative Decision No. V
(October 31, 1924) 193, the following rule was laid down:'
"The term 'American national' means a person wheresoever domiciled owing
permanent allegiance to the United States of America, and embraces not only citi-
zens of the United States but Indians and members of other aboriginal tribes or
native peoples of the United States and of its territories and possessions."
See also HACKWORTH, loc. cit. supranote 28.
47. However, "protection may always be extended or withheld at the discretion of the
Secretary of State." Jessup, Revising Our Nationality Laws (1934) 28 AM. J. INT, L, 104, 107,
48. But see discussion infra, p. 67 et seg.
49. "Citizen," as used by the Neutrality Act of 1939, included "any individual owing
allegiance to the United States. . . ." 54 STAT. 12 (1939), 22 U. S. C. § 456 (1940). Within
the meaning of this particular statute Filipinos, otherwise non-citizen nationals, were
"citizens." See Suspine v. Compania Transatlantica Centro-Americana, S. A., 37 F. Supp.
268, 270-2, 1941 Am. Mar. Cas. 356, 360-2 (S. D. N. Y. 1941).
50. See HAYDEN, THE PHILIPPINES: A STUDY IN NATIONAL DEVELOPMENT (1942) 771,
especially (on the Tydings-McDuffie Act) 807-8. For a recent judicial discussion of the
status of the Philippine Islands in general, see Hooven & Allison Co. v. Evatt, 324 U. S. 652,
668, 677 (1945).
Need for new applications of this category may arise with regard to the native popula-
tion of permanent bases acquired by this country following World War II.
51. McGovney, op. cit. supra note 28, at 344. See also the Administrative Decision
No. V of the Mixed Claims Commission, United States and Germany, note 46 supra. But
cf. Fx parte Crow Dog, 109 U. S. 556 (1883); Elk v. Wilkins, 112 U. S. 94 (1884); discussion
by PRIEST, UNCLE SAM'S STEPCHILDREN (1942) 198.
 1946] "SUBJECT," "CITIZEN," "NATIONAL"

history denied to native-born free Negroes the status of American

citizens 52 but nevertheless held them eligible for the diplomatic pro-
tection of this country 13 seem not to have realized the technical possi-
bility of construing their status as that of non-citizen nationals, al-
though, with regard to declarant aliens or aliens with First Papers,34
Secretary of State Marcy, in his note of September 26, 1853 concerning
the Koszta affair, appears to have raised the point that a person may
be a national of the United States, without being an American citizen.35
The prevailing opinion seems to be that declarant aliens are not Ameri-
can nationals, since it has been settled that they are not within this
country's diplomatic protection,"6 and those anomalies which previously
singled out their conditions from that of other aliens no longer exist.

PERmA _NT ALLEGIANCE

Reference to a duty of "permanent allegiance" is not a happy way
of defining nationality in the sense of a status under international law.
Such a definition envisions a specific distinction between the "perma-
nent" relation of nationality and the "temporary allegiance" 57required
of resident aliens,5 and so keeps alive the largely-abandoned maxim
"'once a subject, always a subject." 11 However, a national can now
generally expatriate himself, at least by naturalization in another

52. Dred Scott v. Sandford, 19 How. 393 (U. S. 1857). And see SwisumR, A mcmnns
CoNsI rIuoNt.g DEVELOPMENT (1943) 247.
53. See the paraphrase of Secretary of State Marcy's instruction of January 18, 1855
in the case of Lucien Mateo v. Mexico, 3 MooRE, INTERNATINAL ARrnTfToNs 2461-2.
That paraphrase reads in part: ". . . [In the view of high judicial authority, . . . perzons
of African descent could not be regarded as entitled to full rights of citizenship . . . Al-
though . . . the consul could not certify that they were citizens of the United States ....
he might certify that they were born in the United States and were free, and that the
government would regard it as its duty to protect them, if wronged by a foreign govern-
ment. ..
54. Koessler, Rightsand Duties of DedarantAliens (1942) 91 U. OF PA%. L. RIv. 321.
55. Id. at 324-5.
56. Id. at 328-9.
57. See Carlisle v. United States, 16 Wall. 147, 154 (U. S. 1872). Cf. Perkins v. Elg,
307 U. S. 325, 334 (1939), where "expatriation" is explained as "the voluntary renunciation
or abandonment of nationality and allegiance," thus apparently separating "allegiance"
from "nationality."
58. See De Jager v. Attorney General of Natal (1907) A. C. 326, critically discu-csed by
Baty's note in (1908) 33 THE LAw MAGAZINE Am REvrnw 214. And see Rex v. Joyce,
62 T. L. R. 57 (Ct. Cr. App. 1945), (1946) 46 CoL. L. REv. 319, where the doctrine of
allegiance was applied to an alien possessing a fraudulently obtained passport issued by the
sovereign claiming allegiance.
59. England abandoned the feudal concept of indissoluble subjection by legislation in
1870. See 1 WESTLARE, INTERNAT O NAL L.w (2d ed. 1910) 206, where it is said that "prma-
nent allegiance" as a technical term for the tie between a state and its nationals does not
mean that the tie cannot be severed, but "that so long as it continues it exists whether the
national is for the moment in the territory of his state or abroad."
168 THE YALE LAW JOURNAL [Vol, 56: 58

state;60 most states make such denationalization automatic. 1 While

the existence or absence of such a provision is generally a matter of
domestic law, the so-called American doctrine of voluntary expatriation
in effect postulates loss of original nationality on naturalization else-
where as a principle of international law.62 The American doctrine was
substantially, if not in terms, enforced by the Franco-Turkish Mixed
Arbitral Tribunal after the First World War,63 although not granted
acceptance at the Hague Conference of 1930.64
The term "allegiance" in itself has become archaic. In its feudal
setting, "allegiance" denoted a reciprocal correlation of interconnected
rights and duties. But in modem states the obligations of the national
to the nation are unconditional, rather than contingent upon the
state's compliance with corresponding duties. Only in isolated in-
stances do modem writers consider the relation between the national
and his state as contractual.65 Furthermore, the national of a state is
generally not entitled to claim protection as a matter of right. The
state has a right, as against other states, to exercise diplomatic protec-
tion in his behalf, but not a duty toward the national." In this country

60. See Flournoy, Naturalization and Expatriation (1922) 31 YALE L. J. 702, 848;
Flournoy, Expatriation(1931) 6 ENCYC. Soc. SCIENCES 3; TSIANG, Tnt QuxgsTion op Ex-
PATRIATION IN AMERICA PRIOR TO 1907 (1942). See also Mackenzie v. Hare, 239 U. S. 299,
307 et. seq. (1915); Ex pare Griffin, 237 Fed. 445, 453 (N. D. N. Y. 1916).
61. See, e.g., Section 401(a) of the Nationality Act of 1940, 54 STAT. 1168, 8 U. S,C.
§801(a) (1940). This is sometimes called the "French principle," because its first statu-
tory enactment was contained in the French Constitution of September 3, 1791, Tit, II,
Art. 6, § 1, reprinted, DUGUIT and MONNIER, op. cit. supra note 35, at 6.
62. This American policy found the most forceful legislative expression in the Expatria-
tion Act of July 27, 1868; 15 STAT. 223 (1868), 8 U. S. C. § 800 (1940), partly quoted by
Koessler, op. cit. supra note 30, at 427, n. 36. This Act has not been abrogated by the Na-
tionality Act of 1940. For the recent repeal of a similar provision in the Mexican legislation,
see ibid.
63. Apostolidis v. Turkish Government, 8 Recueil des D6cisions des Tribunaux Arbi-
traux Mixtes 373, 375, ANNUAL DIGEST OF PUBLIC INTERNATIONAL LAW CASES (1927-1928)
312 (1928).
64. Flournoy, Nationality Convention, Protocols and Recommendations Adopted by the
First Conference on the Codification of InternationalLaw (1930) 24 AM. J.INT. L. 467.
65. See, e.g., 1 WEiss, DROIT INTERNATIONAL PRvP (2d ed. 1907) 8. Contra (and in
this expressing the general view): 1 NIBOYET, TRAIA DE DROIT INTERNATIONAL PRIVfi
FRANIS (1938) 122-3.
66. See 1 OPPENHEM, INTERNATIONAL LAW (Lauterpacht's 5th ed. 1937) 505. An ap-
parent exception is Article 112 of the German Weimar constitution which reads "All Ger-
man citizens within and without the boundaries of the Reich have the right of protection
by the Reich against foreign countries." McBAIN and ROGERS, THE NEw CONSTITUTIONS
OF EUROPE (1922) 198. This provision was literally taken from Art. 3, § 6 of the previous
(Imperial) German constitution, discussed in 1 LABAND, DAS STAATSRECHT DES DEUTSClIrN
REICHES (5th ed. 1911) 152, and n. 2. Laband believed that Art. 3, § 6 of the Imperial Con-
stitution was a right, technically, of the German citizen against the Reich. See Slaughter-
House Cases, 16 Wall. 36, 79 (U. S. 1873). But see ISAY, DiE STAATSANGEUIOERIGKEIT
JURISTISCHER PERSONEN (1907) 37.
19461 "SUBJECT," "CITIZEN," "NATIONAL!"

a definite practice has been established that in certain typical situations

diplomatic protection should normally be denied in spite of the Ameri-
7
can nationality of the applicant.
Deprived of one of the essential ingredients which went into its
feudal meaning, namely of the subject's right to claim his lord's protec-
tion, and also minus the whole general background of the one-time
feudal society, "permanent allegiance," referred to in a modem defini-
tion of nationality, cannot be more than a synonym for "nationality." c3
It has become a mystic concept which dims, instead of clarifying, defini-
tions. Most people have a working knowledge of the meaning of "na-
tionality," but even scholars are at a loss to explain "allegiance."
Characteristically, the Harvard Research on Nationality suggests de-
fining nationality as "the status of a natural person who is attached to
the state by the tie of allegiance," 11 and then muddies the picture by
saying:
"No attempt is made in this draft to define the meaning of alle-
giance. It may be observed, however, that the 'tie of allegiance' is
a term in general use to denote the sum of the obligations of a natu-
ral person to the state to which he belongs. The draft itself does not
spell out these obligations, since they are quite different in different
societies." 70
It seems desirable to eliminate "allegiance" from any technical use
and redefine "nationality" in plain words meaning the status of belong-
7
ing to a state for certain purposes of international law. '

THm DUAL NATURE OF SOVEREIGNTY

Another source of confusion in defining nationality is the concept
that state sovereignty is personal as well as territorial.72 The right-duty

67. SECxLER-HuDsON, STATELESSNESS (1934) 17.

68. Under this assumption, definitions of nationality, which explain the latter by refer-
ring to "permanent allegiance," are tautological, as suggested supra, p. 000. But they are,
in this respect, not worse than some definitions not referring to "allegiance." See, e.g.,
1 PIGGOTT, NATIONALITY (1907) 6, and 1 OPPENREim, ImTnATIONAL LAW (Lauterpacht's
5th ed. 1937) 511.
69. Article 1(a) of the Harvard Draft (1929) 23 Am. J. INT. L., SPm Supp. 13.
70. Id. at 23.
71. In passages where the English text of the Treaty of Versailles referred to "na-
tionals," the French one did not always use the term ,mtionaux, but sometimes synonymously
employed the word resorlissanis which means "belonging to." Therefore ISAY, Din Pa-
VATEN RECHTE UND INTERESSEN Iw FRIEDENSVERTRAG (3rd ed. 1923) 46-7, challenged the
correctness of the occasional attempt to distinguish, in the application of the Treaty of
Versailles, between aiaonaux and resorlissants. Cf. SCHVWARZENBERGER, Op. Cit. Sulpra
note 27, at 155-6.
72. 1 ZITELMANN, INTERNATIONALES PRIVATRECHT (1912) 82. Of course, these two
kinds of jurisdiction are merged into one in the case of nationals residing within the national
territory.
 THE YALE LAW JOURNAL [Vol. 56: 58

relationship between states, with respect to a national of one, is a func-

tion of the personal sovereignty of the state over its nationals. How-
ever, the distinctions between personal and territorial sovereignty are
flexible and not clearly delineated,7 3 so that this concept does not con-
tribute to defining nationality as an aggregate of specified rights and
(or) duties.
NATIONALITY AS A FORMAL CATEGORY

Nationality is a formal legal category, consisting in a person's status

of belonging to a state.7 4 Error seems inherent in any attempt to define
the conception by reference to "allegiance" or to any other specific
right-duty relationship,75 inasmuch as rights and (or) duties which are
attributed to the status of national,7 whether by international or do-
mestic law, will vary geographically and temporally. The concept of
nationality is no more77 than a formal frame, surrounding a picture of
changeable character.
For example, the most conspicuous international function of the
nationality concept is the right of a state to extend protection to its
nationals abroad.7 8 In exceptional cases a state is permitted to exercise
protection over individuals not its nationals, 7 or, conversely, it may
be excluded from the right to protect those of its nationals who belong

73. How far a given state intends to stretch its personal jurisdiction or sovereignty
with regard to nationals abroad is a matter of domestic law; whether its respective claim is
justified, in relation to other states, is a matter of international law. Illustrative of the
claim of the American domestic law concerning the extent of the personal sovereignty of
this country over citizens abroad are Cook v. Tait, 265 U. S. 47 (1924) (taxability), and
Blackmer v. United States, 284 U. S. 421 (1932) (subpoena served abroad).
74. McGovney, supra note 3, at 232-3. See also 2 CALvo, LE DROIT INTERNATIONAL
(5th ed. 1896) 24; BURCKHARDT, DIE ORGANISATION DER RECITSGEME1NSCI!AFT (1927)
361-2.
75. This is one of the errors in Lessing's definition of nationality as the relation between
an individual and a state by virtue of which the latter is entitled to protect the former
abroad, and is bound, in addition, to permit his residence on its territory, with the resulting
prohibition of banishment of a national from the whole national territory and the resulting
duty of receiving back a national deported from a foreign state. LESSINO, op. cil. supra
note 28, at 148.
76. Nationality, as distinguished from citizenship (in the narrower sense referred to
supra, p. 63.) though primarily a conception with an international function, is often bor-
rowed as a convenient attachment for certain strictly domestic purposes, as in statutory
provisions making nationality a requirement for admission to certain public offices or quasi-
public or even private professions. LESSING, op. cit. supra note 28, at 148, n. 2, in this con-
nection speaks of an "accessory" (i.e., "secondary") effect of nationality.
77. JELLINEK, SYSTEM DER SUBJERTIVEN OEFFENTLICiEN REcIiTE (1905) 117,
78. "One of the most important and delicate of all international relationships, recog-
nized immemorially as a responsibility of government, has to do with the protection of the
just rights of a country's own nationals when those nationals are in another country."
Hines v. Davidowitz, 312 U. S. 52, 64 (1941).
79. 1 OPPENHEIM, INTERNATIONAL LAW (Lauterpacht's 5th ed. 1937) 514 et seq.
19461 "SUBJECT," "CITIZEN," "NATIONAL"

to a particular category.So But normally it is only through the inter-

vention of the state of their nationality that private persons are able to
obtain redress against injuries inflicted upon them by a foreign state in
violation of international law.8 ' However, there is a trend toward per-
mitting private persons to raise international claims without the inter-
mediate agency of a state.812 Materialization of this proposition would
render the institution of diplomatic protection obsolete, if not formally
abolished. But nationality would remain a living concept as long as
any legal consequences are attached to the status of belonging to a
state.
As a further example, it is sometimes said-either unconditionally
or with qualifications-that a country is prevented by international
law from forcing military service upon nationals of another state. The
validity of this statement appears doubtful, in view of numerous and
important precedents to the contrary.83 Assuming a restatement to
harmonize international law with the practice of states which draft
certain categories of aliens, nationality, though no longer impl5ing the
national's exemption from military service for a foreign state, would
retain conceptual utility.

INTERNATIONAL FUNCTION OF THE NATIONALITY STATUS

VERSUS ITS DOAIESTIC DETERmIINATION
According to the principle of the donmaine r~sert,6, the acquisition
and loss of nationality is determined by domestic rather than by inter-
national law. 4 Of the numerous complications 85 that may result from

80. It is unlikely that any international tribunal would have recognized a Nazi claim
of an alleged right to protect German Jews abroad.
81. Said the Permanent Court of International Justice in its judgment of February 28,
1939 concerning the Panevezys-Saldutiskis Railway case: "... . [Ila the absence of a special
agreement, it is the bond of nationality between the State and the individual which alone
confers upon the State the right of diplomatic protection ... " P. C. I. J., Ser. A/B, No. 76
at 16 (1939).
82. See HUDSON, THE PERmANENT COURT OF INrERN,%TiO.,AL JusTicE, 1920-1942
(1943) 395-6; WRIGHT, HUMAN RIGHTS AND THE WoRLD ORDER (1943) 16; Bisschop, Na-
tionalidty in InternationalLaw (1943) 37 Am. J. INT. L. 320. However, Article 34 of the new
Statute of the International Court of Justice, in part provides: "Only States may be parties
in cases before the Court."
83. Koessler, Rights and Duties of DedarantAliens (1942) 91 U. oF P,. L. REv. 321,329;
Fitzhugh and Hyde, The Draftingof Neutral Aliens by the United States (1942) 36 Au. J. Inu.
L. 369; Delaney, The Alien Enemy and the Draft (1943) 12 BRooBLY. L. Rnv. 91; Kocssler,
The Reformned Mexican Nationality Law (1943) 5 LA. L. Rnv. 420, 428-9.
84. 3 HACKWORTH, DIGEST OF INTERNATIONAL LAw (1942) 1. A frequently cited
dictum is the advisory opinion of the Permanent Court of International Justice, February 7,
1923, in the case of the Tunis-Morocco Nationality, P.C.I.J., Ser. B, No. 4 at 24 (1923).
See also Question concerning the Acquisition of Polish Nationality, P.C.I.J., Ser. B, No. 7
at 16 (1923) and G. L. Soils v. The United Mezdcan States, U. S. Me. Claims Comm.,
Oct. 3, 1928, Docket No. 3245, reprinted in (1929) 23 Am. J.INT. L. 454. See also the
 THE YALE LAW JOURNAL [Vol. 56:5$8

this principle, the most important revolve around the "man without a
country" 86 and the sujet mixteY These anomalies are frequently
caused by divergence between the jus soli and the jus sanguinis," con-
currently applicable to the same individual, pursuant to the principle
of reserved domain, which in this respect would seem to become self-
defeating. For example, an individual born in a country applying
jus sanguinis, of parents who are nationals of a country applying jus
soli would acquire neither the nationality of his country of birth nor
the nationality of his parents, but be born as a stateless person. Con-
versely, an individual born in ajus soli country of parents who are na-
tionals of a jus sanguinis country would be born with the embarras de
richesse of possessing two nationalities. Double nationality may also
be caused by the divergence between two domestic laws one of which

substantially identical statement in United States v. Wong Kim Ark, 169 U. S. 649,669
(1898), referred to in Perkins v. Elg, 307 U. S.325, 329 (1939) and discussed by Hyde,
The Supreme Court of the United States as an Expositor of InternationalLaw (1937) 18 Tiu
Bnrrisu YEARBOOK OF INTERNATIONAL LAW 1, 13-4. Heinrich Triepel suggested that
international law by Blankettsaetze assigned the determination of the nationality status to
the several domestic laws. TRIEPEL, V6LKERRECHT UND LANDESRECtT (1899) 220. Farther
reaching than those attempts at harmonizing the domestic domain principle with the general
system of international law, rather challenging the validity of the rule itself, is the following
statement by an otherwise unorthodox British writer: "It is sometimes, indeed, laid down
by authors in general terms, that a state has a right to say who are its subjects- but it is
hardly necessary to demonstrate the absurdity of such proposition, The common sense of
nations obviously limits the power of a nation to seize at pleasure the subjects of other
states as its own." BATY, THE CANONS OF INTERNATiONAL LAW (1930) 356.
85. Kunz, Zum Problem der doppelten Staatsangehoerigkeit(1928) 2 ZEITSCRIIT F UER
OSTRECHr 401, 405, imagines the hypothetical case of an Austrian law declaring all Chinese,
resident in Peking, to be Austrian nationals. WILLIAMS, AsPecTs oF MODERN INTER-
NATIONAL LAW (1939) 82, submits that "A state could hardly be entitled to enforce in its
own courts as against its neighbours some peculiar doctrine of nationality which was in
conflict with the general and customary rules of international intercourse. For example, an
attempt by an English king in the seventeenth century to give effect to the traditional
claim of the English monarchy to the Crown of France. . . ." Triepel, Internationalk
-Regelung der Staatsangehoerigkeit,1/1 (1929) ZEITSCHRIFT FUER AUSLAENIiSCuES OErFENT-
LICHES RECET UND VOELKERRECUT 184, 196, suggests that it would have been against inter-
national law should Great Britain, in her Naturalization Act of 1870, have conferred British
nationality upon all persons speaking English as their native tongue. He even ventures to
guess that such legislation would have been followed by a declaration of war by the United
States.
86. "Man without a country," as used here, means a technically stateless person, and
not one in the situation of the central figure in Edward E. Hale's story "The Man Without
A Country" (1863). See SECKLER-HuDSON, STATELESSNESS (1934).
87. See note 9 supra and SCHWARZENBERGER, op. cit. supra note 27, at 151.
88. Roughly described, jus soli attaches the nationality status to the fact of being born
in a country, jus sanguinis to the fact of being the son of a national. In this country, and
some others, a mixed system prevails, as appears from an inspection of the Nationality Act
of 1940, 54 STAT. 1137 (1940), 8 U. S. C. § 501.
1946] "SUBJECT," "CITIZEN," "NATIONAL"

still sticks to the old rule "once a subject always a subject," while the
naturalization practice of the other disregards that maximP3
The domaine rgserzv principle in matters of nationality law also
implies that whenever, by international custom or treaty, certain rights
or duties of a state with regard to a given individual flow from the
latter's condition of belonging to that state, a different category of
people will be included according to whether the domestic rules con-
cerning acquisition of nationality are governed by the jus soli or the
jus sanguinis.
Qualifications of the domestic domain principle have been created by
way of bilateral as well as multilateral treaties."0 The existence of
qualifications other than treaty provisions, has been alleged by various
sources, but always in a vague language which does not represent a
workable rule of practice. 9 ' Disregard of the principle in cases where
its practical consequences would be absurd could be technically justified
by recourse to the public policy clause or ordrepublic exception, which
appears to be applicable beyond the sphere of the conflict of laws in the
domestic field.9 2 A similar line of approach is suggested by those who
point to the legal reaction against abuses of the right of sovereignty. 3
Domestic courts in several cases have shown readiness to disregard

89. SCHWARZENBERGER, op. cit. slpra note 27, at 155.

90. Outstanding among the latter is the Convention on CertainQuestions Relating to Me
Conflict of NationalityLaws (1930) 24 Am. J. INT. L., SPEC. SuPP. 192. However, only a few
states, not including this country, have declared their adherence to it.
91. See memoranda submitted by various governments (especially the United States,
Germany, and the Netherlands) in preparation of the Hague Conference of 1930, supra
note 90, 1 LEAGUE OF NATIONS, BASES OF DIscussIoN DRAWN Up FOR THtE CONFERE.CE:
NATIONALITY (1929) 16-8, and the pertinent statement in 23 Au. J. Ia-r. L., SPEc. Sut'.
(1929) 24, 26. But cf. 1 NIBoYET, TRArrA DE DROIT INTERNATIONAL PIvLe FRuNAxS
(1938) 101; 1 Pic.GoTr, NATIONALITy (1907) 4; McGovney, op. d. supra note 3, at 233.
2 HYDE, INTERNATIONAL LAW (2d rev. ed. 1945) 1066 seems to suggest a test of reasonable-
ness of the domestic law. In the same sense: KuNz, THE VIENMA SCHOOL AND INTEMnA-
TIONAL LAW (1934) 31.
Recently, an author even went to the extreme of submitting a rather casuistic list of
types of attachment which, he believes, are the factual substratum required by customary
international law, as a condition for the validity of domestic law conferring the respective
state's nationality upon a given category of individuals. Lessing, Los Momentos De Con-
exi6n En El Derecho De Naciondidad,(1942) 5 REvIsTA ARGENTINA DE DERECuo I.TER-
NACiONAL (2d Ser.) 150 et seq., 316 et seq.
92. On the applicability of the public policy clause in the field of international law, see
4 NEUiAYER, INTERNATIONALES V:RWALTUNGSRECET (1936) 233; Lipstein, Conflict of
Laws Before International Tribunals (1943) 29 TtANSACTIONS OF TUE GROTIUS Socmrnr
51, 63.
93. Politis, Le Proib!me des Limitations de la Sourraindud
ella Tl:borie de L'A bus de
Droits dans la Rapports Internationaux (1925) 1 rPCUECU DES COURS DE L'AcADAMIE DE
DRoIT INTERNATIONAL 1, 77. The German Civil Code, § 226, very narrowly defined as an
abuse of a right, an exercise thereof which is done for the mere purpose of doing harm to
another person.
 THE YALE LAW JOURNAL [Vol. 56: 58

a foreign municipal law under which a self-exile, in spite of his own

declared intention to the contrary,94 would retain his nationality of
origin.9 5 Moreover, there have been cases where an individual, who
had lost the nationality of a state under the latter's domestic law, was
by a foreign court still considered its national," Similarly, the Expa-
triation Act of the United States of July 27, 1868,11 seems to announce
the principle that this country will disregard any foreign nationality
law under which an individual, irrespective of his American naturaliza-
tion, still retains his nationality of origin."
A general exception to the rule of domestic domain in matters of
nationality law is represented by the prohibition of compulsory natural-
ization, which, according to textual authority, forms part of the prevail-
ing customary international law. This prohibition means that no state
is allowed to confer its nationality upon the nationals of another state,
unless the individual himself asks for such a change of his status. 9
Reference may, in this connection, be made to the protests which the
United States in several instances raised against Latin-American laws
that had introduced automatic naturalization of certain classes of

94. For a comparative law study of the problem of renunciation or waiver of nation-
ality see, OTTEN, DER VERSICUT AUF DIE STAATSANGEH6RIGKEIT (1934). "Expatriation"
has been defined as "the voluntary renunciation or abandonment of nationality and allegi-
ance." Perkins v. Elg, 307 U. S. 325, 334 (1939). However, the normal usage of "expatria-
tion" would seem to indicate loss of original nationality through naturalization In another
country.
95. See Caignetv. Pettit, 2 Dallas (234U.S. 1795); 3 MOORE, DIGEST OF INTERNATIONAL
LAW (1906) 554; Rajdberg v. Lewi, Supreme Court of Poland, 1st Div., Oct. 31, 1927, AN-
NUAL DIGEST OF PUBLIC INTERNATIONAL LAW CASES (1927-8) 314-5; and the Argentine
cases referred to by LESSING, op. cit. supra note 91, at 328, n. 93. But sce Kurzinsky v.
Kurzinsky, Tribunal Civil de la Seine, July 5, 1939, 34 REVUE CRITIQUE DE DROIT INTI;R-
NATIONAL 450,452.
96. See the opinion of Phillimore, L. J., in Ex parte Weber (1916) 1 I. B. 280, 282-3
and of Earl Loreburn in the same case, House of Lords (1916) 1 A. C. 421, 425-6.
97. 15 STAT. 223 (1868), 8 U. S. C. § 800 (1940);
98. See supranote 62. In Elk v. Wilkins, 112 U. S.94, 107 (1884) it was said that the
Act of July 27, 1868, affirmed "the right of every man to expatriate himself from one coun-
try." The Act was intended primarily as a declaration of the position of this Government
toward foreign-born persons who should have obtained naturalization as citizens of tile
United States, and thus made it clear that this Government no longer recognized the ancient
feudal principle of indissoluble allegiance. Its language, however, appears to be broad
enough to include not only the reverse picture, (i.e., an American who obtains naturalization
in foreign country) but also the case of a person expatriating himself from his country of
origin, without simultaneously acquiring a new nationality, but rather with a view to
becoming stateless. But no authority exists covering such an extended application of the
Expatriation Act of 1868.
99. See BORcMARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD (1915) 535; 2
HYDE, INTERNATIONAL LAW (2d rev. ed. 1945) 1088. But cf. LESSING, op. cit. supra note 28,
at 193.
1946] "SUBJECT," "CITIZEN," "NATIONAL"

aliens. The affected countries gradually eliminated those offensive

statutory provisions.'
Customary international law has not yet developed an exception
with regard to the population of a territory voluntarily or involun-
tarily changing its sovereign.' 0 t This general proposition is probably
true also in the case of individuals who at the time of a foreign annexa-
tion of their home territory are residing abroad and thereupon remain
abroad permanently. 1 2 The right of option, though often granted in
treaties concerning cession of territories, is not established by custom-
0 3
ary international law.'
No exception from the principle of reserved domain is represented by
the fact that, especially in modern times, the practice of enemy alien
treatment very often disregards formal nationality, by generally
exempting from that treatment certain categories of technically enemy,
but really friendly, aliens, 1 4 and on the other hand subjecting to an
extraordinary regime categories of nationals who are not trusted with
regard to their loyalty. 05 In these cases it is not the domestic domain
principle, but nationality itself which ceases to be a dominant factor.

CONCLUSION

This article has attempted to show that "nationality," as a concep-

tion of international law, does not mean any specific rights and (or)

100. The reformed nationality law of Mexico of January 19, 1934, dropped the provision
contained in Art. 1/10 of the former law (Lex Vallartaof May 28, 18S6). Under the latter,
aliens acquiring real estate in Mexico and failing to make a declaration of retention of their
nationality of origin, thereby automatically became Mexican nationals. See Koessler,
op. cit. supranote 30, at 425.
101. But cf. Gettys, The Effect of Clanges of Sovereignty on Nationality (1927) 21 An!.
J. INT. L. 268 and FEILCHENFELD, PUBLIC DEBTS AND STATE SUCCESSION (1931).
102. But there is authority to the contrary. . . . [I]t is a rule of international law that
when a territory passes to a new sovereign it must, in case of doubt, be assumed that those
inhabitants of the territory in question, who are not domiciled . . . there do not acquire
the new nationality." Peinitsch v. German State (Germany-Jugoslavia Mi:Ned A-rbitral
Tribunal, 1922) A.NuAL DIGEST OF PUBLIC INTERNATIONAL LAW CASES (1923-4) 227-8.
And see HOFmA.NNSTHAL AND BERGER, INTERNATIONAL PROTECTION OF Axis VICTrrIS AND
REViNDICATION OF THEIR PROPERTY RIGHTS (1942) 3; Hofmannsthal, Auslro-HuMgarians
(1942) 36 Am. J. INr. L. 292, 293.
103. General discussions of the right of option are: 1 KuNz, DIE V6LIMERRECHTLICIIE
OPION (1925); 2 id. (1928); WVAMBAUGH, A MONOGRAPH ON PLEBISCITES (1920).
104. Koessler, Enemy Alien Internment (1942) 57 POL. SCI. Q. 98.
105. See Comment, Alien Enenies and JapaneseAmericans (1942) 51 YAE L. J.1316,
1336. The restrictions applied to suspect ethnological or other groups of citizens should not
be confused with punitive measures taken against "Citizens who associate themselves ith
the military arm of the enemy government, and with its aid, guidance and direction enter
this country, bent on hostile acts.. " United States ex rel. Quinn v. Cox (the Hatnpt
. ...
case), 317 U. S. 1, 37-8 (1942).
 THE YALE LAW JOURNAL [Vol. 56: 58

duties, nor an aggregate of either or of both,"'6 but is a purely formal

proposition. It designates the status of a person's belonging to a state,
with particular reference to international relations among states con-
cerning this person. In a world divided into states it is the function of
the nationality concept to apportion the global population among the
several nations." 7 Each state has both a territorial and a personal
sovereignty.0 I The "nationals" of a state are those who arq under its
personal sovereignty, that is attached td it irrespective of the fact of
their physical presence at a given moment." 9 In a world without states
(or if the "Cardenas doctrine" 110 were accepted as established interna-
tional law) the nationality conception would lose its above-defined
present meaning."' But a realistically anticipated future world will
not be able to do away with the legal concept of nationality, though it
may be expected that specific rules of international law will assume
paramount importance among the factors determining the acquisition
or loss of nationality, thus depriving the domestic domain principle of
its present controlling importance. It would also seem to be no un-
reasonable guess that domicile rather than birthplace or filiation may
in the future be the favorite fact of attachment for the acquisition of
nationality. 112

106. But see the curious proposition in ISAY, DIE STAATSANGEH0RIGKEIT DER JURISTI-
CHEN PERSONEN (1907) 42, 44-5, substantially submitting that none of the specific criteria of
nationality, usually ascribed to that concept, is characteristic or essential to it, but that their
aggregate constitutes the essence of nationality.
107. BURCHARDT, DIE ORGANISATION DER RECHTSGEMEINSCHAFT (1927) 361-2;
STEIGER, DIE STAATSANGEHOERIGKEIT DER HANDELSGUELISCHAFTEN (1931) 13-4.
108. "If one resolves the dualism of law and the state, if one recognizes the state as
legal order, then the so-called elements of the state-territory and population-appear as
the territorial and personal spheres of validity of the national legal order." Kelsen, The
Pure Theory of Law and Analytical Jurisprudence(1941) 55 HARV. L. REV. 44, 65-6.
109. ISAY, op. cit. supra note 106, at 40.
110. According to Brown, Cardenas Doctrine (1940) 34 Amr. J, INT. L. 300, a special
commission of Mexican lawyers has thus formulated that doctrine:
"Nationality, as a personal status, has full juridical effect only within local
jurisdiction. It lacks extraterritoriality, and its effects are therefore suspended in
every instahce when a moral and physical person moves to foreign soil. .. ."
111. This idea seems to underlie the cryptic question which Dante ascribes to the ghost
of Charles Martel: "Now, say, would it be worth for man on earth, if he were not a citizen?"
VIII DmNA COMEDIA, 115-6, referred to by SPANJAARD, NEDERLANDSCHE DIPLOMATigIcE
EN ANDERE BESCHERMING IN DEN VREEMDE 1795-1924 (1925) xvi.
112. See Baty, The Interconnectionof Nationalityand Domicile, IVIGAiORn. CELEDRATION,
LEGAL ESSAYS (1919) 187, 197-8, reprinted (1919) 13 ILL. L. REV. 363, 373-4; BATY, TsE
CANONS OF INTERNATIONAL LAW (1930) 367.