CHAPTER XIX

§ 211. What Constitutes one's country.

All the lands inhabited by a Nation and subject to its laws form, as we have said, its domain, and are the common country of its citizens. We have been obliged to anticipate the definition of the term one's country (§ 122), in treating of the love of country, that noble virtue so necessary in a State. Presuming, therefore, that definition to be known, we shall proceed to explain certain matters connected with the subject and to clear up the difficulties it presents.

§ 212. Citizens and natives.

The members of a civil society are its citizens. Bound to that society by certain duties and subject to its authority, they share equally in the advantages it offers. Its natives are those who are born in the country of parents who are citizens. As the society can not maintain and perpetuate itself except by the children of its citizens, these children naturally take on the status of their fathers and enter upon all the latter's rights. The society is presumed to desire this as the necessary means of its self-preservation, and it is justly to be inferred that each citizen, upon entering into the society, reserves to his children the right to be members of it. The country of a father is therefore that of his children, and they become true citizens by their mere tacit consent. We shall see presently whether, when arrived at the age of reason, they may renounce their right and the duty they owe to the society in which they are born. I repeat that in order to belong to a country one must be born there of a father who is a citizen; for if one is born of foreign parents, that land will only be the place of one's birth, and not one's country.

§ 213. Residents.

Residents, as distinguished from citizens, are aliens who are permitted to take up a permanent abode in the country. Being bound to the society by reason of their dwelling in it, they are subject to its laws so long as they remain there, and, being protected by it, they must defend it, although they do not enjoy all the rights of citizens. They have only certain privileges which the law, or custom, gives them. Permanent residents are those who have been given the right of perpetual residence. They are a sort of citizen of a less privileged character, and are subject to the society without enjoying all its advantages. Their children succeed to their status; for the right of perpetual residence given them by the State passes to their children.

§ 214. Naturalization.

A Nation, or the sovereign who represents it, may confer citizenship upon an alien and admit him into the body politic. This act is called naturalization. There are some States in which the sovereign can not grant to an alien all the rights of citizens; for example, that of holding public office; so that he has only authority to grant an imperfect naturalization, his power being limited by the fundamental law. In other States, as in England and Poland, the sovereign can not naturalize aliens without the concurrence of the representative assembly. Finally, there are others, such as England, in which the mere fact of birth in the country naturalizes the children of an alien.

§ 215. Children of citizens, born abroad.

It is asked whether the children born of citizens who are in a foreign country are citizens. The question has been settled by law in several countries, and such provisions must be followed. Arguing from natural law, children follow the status of their parents and enter upon all their rights (§ 212); place of birth does not affect the rule and can not of itself afford any reason for depriving a child of a right given him by nature; I say of itself, for the civil law may, with a special object in view, provide otherwise. I am supposing that the father has not entirely given up his country with the intention of taking up his abode elsewhere. If he has his domicile in a foreign country he has become a member of another State, at least in the character of a perpetual resident, and his children will be members of the same State.

§ 216. Children born at sea.

As for children born at sea, if born in those parts which are subject to the jurisdiction of their Nation, they are born in the State; if born on the high seas, there is no reason for making any distinction between them and children born within the State, for it is not the place of birth which by the Law of Nature confers rights, but parentage. If children are born on a vessel belonging to the Nation they may be considered as born within its territory; for it is natural to regard the vessels of a Nation as portions of its territory, especially when they are upon the high seas, since the State retains jurisdiction over them; and since by common custom this jurisdiction over the vessel is retained even when the vessel is in waters subject to the jurisdiction of another State, all children born upon the vessels of a Nation are considered as born within its territory. For the same reason children born on a foreign vessel are considered as born in a foreign country, unless they are actually born in a port of the Nation; for a port is in a peculiar way part of the national territory, and the mother, because of her being for the moment on a foreign vessel, is not out of the country. I am supposing that she and her husband have not left the country to live elsewhere.

§ 217. Children born in the armies of the state, or in the house of its minister at a foreign court.

For the same reasons, children of citizens, when born outside of the country, in the armies of the State or in the house of its ministers at a foreign court, are considered as born in the country; for when a citizen is abroad with his family, in the service of the State, and is subject to its authority and jurisdiction, he can not be considered as having left his country.

§ 218. Domicile.

Domicile is a fixed residence in a certain place with the intention of permanently remaining there. Hence a man does not establish a domicile in a place unless he has given sufficient signs, whether impliedly or by express declaration, of his intention to remain there. However, this declaration does not prevent him from changing his mind later on and transferring his domicile elsewhere. In this sense a person who, because of his business, remains abroad even for a long time, has only a mere residence there, without domicile. In like manner an ambassador of a foreign prince is not domiciled at the court where he resides.

Natural domicile, or domicile of birth, is that which birth confers upon us, and is in the place where our father has his; and we are considered as retaining it, so long as we do not give it up in order to adopt another. Acquired domicile (adscititium) is that which we take up of our own free choice.

§ 219. Vagrants.

Vagrants are persons without a domicile. Consequently children of a vagrant parents belong to no country; for a man's country is the place where, at the time of his birth, his parents had their domicile (§ 122), or the State of which his father was then a member, which amounts to the same thing, since by settling permanently is a State one becomes a member of it, if not with all the rights of a citizen, at least as a perpetual resident. Nevertheless, in so far as a vagrant may be considered as not having absolutely renounced his domicile by birth, his child may be held to be of the same country to which he belongs.

§ 220. Whether a man may expatriate himself.

In passing upon the celebrated question whether a man may expatriate himself, we shall have to make several distinctions:

(1) There is a natural bond between children and the society in which they are born; they are bound to recognize the protection their fathers have received from it, and they are indebted to it in great part for their birth and their education. Hence they must love their country, as we have already pointed out (§ 122); they must show it due gratitude, and as far as they are able, requite its benefits. We have just remarked (§ 212) that they have the right to enter into the society of which their fathers were members. But every man is born free, and therefore the son of a citizen, when arrived at the age of reason, may consider whether it is well for him to join the society in which he happens to be by birth. If he does not find that it is to his advantage to remain in it, he has the right to leave it, though he should recompense it for what it may have done for him,(a) and retain, as far as his new engagements will permit, the sentiments of love and gratitude which are due to it. However, a man's obligations towards the country of his birth will be greater or less, or may not exist at all, according as he shall have left it lawfully and with reason, in order to choose another, or shall have been banished from it deservedly or unjustly in lawful manner by violence.

(2) As soon as the child of a citizen, on reaching manhood, acts as a citizen, he impliedly assumes that character, and his obligations, like those of others who in an express and formal manner bind themselves to the society, become of greater extent and force. The case is quite different from the one we have just spoken of. When a society has been formed for an indefinite period it is lawful to leave it when by so doing no harm results to the society. A citizen may therefore leave the State of which he is a member, provided it be not at a critical moment when his withdrawal might be greatly prejudicial to the State. But a distinction must here be made between what one has an actual right to do and what one may do honorably and with strict regard to duty; in a word, between internal and external obligation. Every man has the right to leave his country and take up his abode elsewhere when by doing so he does not endanger the welfare of his country. But a good citizen will never take such a step without necessity or without urgent reasons. It is dishonorable to take advantage of one's liberty and abandon one's associates upon slight grounds, after having received considerable benefits from them; and this is the case of every citizen with regard to his country.

(3) As for those who in time of danger are cowardly enough to seek a place of safety and abandon their country instead of defending it, they clearly violate the social compact by which they have agreed to defend themselves as a united body, and they are base deserters whom the State has the right to punish severely.

§ 221. How one may leave the state for a time.

In a time of peace and tranquillity, when the State has no actual need of all its citizens, the welfare of both State and citizens requires that persons should be allowed to travel in the interests of their business, provided they be at all times ready to return when called back at the need of the State. It is not to be supposed that a man has bound himself to the society of which he is a member in such a way as to be unable to leave the country when his business affairs require it and when he can absent himself without harm to his country.

§ 222. Public laws vary on this point. They must be obeyed.

The public laws of Nations vary widely on this point. Some States permit, except when war is in progress, any citizen to stray away from or even to give up the country definitely whenever he thinks proper, without giving any reason for it. This privilege, of its nature contrary to the welfare and safety of the State, can only be suffered to exist in a country which is without resources and is unable to supply the needs of its inhabitants. In such a country there can only be an imperfect society; for a civil society must be able to provide its members with the means of procuring by their labor and industry whatever they stand in need of; otherwise it has not the right to require an absolute loyalty from them. In other States all persons may travel freely on business, but may not give up their country definitely without the express permission of the sovereign. Finally, there are States in which the laws are so severe as to forbid any one at all from leaving the country without formal passports, which are only obtained with difficulty. In all cases the laws must be obeyed when enacted by the lawful authority. But in the last case the sovereign is abusing his power and reducing his subjects to an unendurable slavery if he refuses them permission to travel on business when he might grant it to them without harm or danger to the State. We shall even see that under certain circumstances the sovereign can not detain on any pretext those who wish to leave the country forever.

§ 223. Cases in which a citizen has a right to expatriate himself.

There are certain cases in which a citizen has the absolute right, based upon reasons drawn from the very compact of civil society, to renounce allegiance to his country and abandon it.

(1) If a citizen can not find support in his country he is certainly at liberty to seek it elsewhere; for since men only enter into civil society in order to obtain the more easily a means of livelihood and render their state of life happier and more secure, it would be absurd to pretend that a member to whom the society can not furnish the necessities of life has not the right to leave it.

(2) If the body of the society, or the sovereign who represents is, fail absolutely in their obligations toward a citizen, the latter may break off from them; and if one of the contracting parties does not fulfill his part of the agreement, the other is released from his. It is upon this principle that the society may expel a member who violates the laws.

(3) If the majority of a Nation, or the sovereign who represents it, seek to establish laws in matters to which the compact of society can not oblige all citizens to submit, those to whom the laws are repugnant have the right to withdraw from the society and settle elsewhere. For example, if the sovereign or the majority of the Nation will permit the exercise of but one form of religion in the State, those who believe and profess another form have the right to withdraw and take with them their families and their goods; for they are never obliged to submit to the authority of men in a point of conscience,(a) and if the society is injured or weakened by their departure it is the fault of the intolerant party; it is they who are violating the social compact and are forcing the others to leave. We have elsewhere given further applications of this third case: the instance of a democratic State which desires to have a king (§ 33), and that of an independent Nation which decides to subject itself to a foreign power (§ 195).

§ 224. Emigrants.

Those who leave their country for a lawful reason, with the intention of taking up their abode elsewhere, are called emigrants. They take their families with them, and all their movable abode.

§ 225. Sources of their right.

Their right to emigrate may come from various source:

(1) In the cases we have just referred to (§ 223), it is a right derived from nature, and one reserved to them under the compact of civil society.

(2) The right to emigrate may in certain cases be secured to the citizens by the fundamental law of the State. The citizens of Neufchatel and of Valengin in Switzerland may leave the country and carry off their goods at pleasure, without even having to pay any duties.

(3) It may be voluntarily granted by the sovereign.

(4) Finally, the right may be based upon some treaty made with a foreign power, by which a sovereign has agreed to leave full liberty to his subjects, who, for certain reasons, on account of their religion, for example, desire to settle in the country of the other power. Treaties of this character exist between the German princes, particularly for cases where there is question of religious differences. Likewise, in Switzerland, a citizen of Berne who wishes to remove to Fribourg, and reciprocally a citizen of Fribourg who wishes to remove to Berne, in order to profess the established religion of either State, has the right to leave his country and carry with him all that he owns.

It appears from various historical sources, especially from the history of Switzerland and the neighboring States, that the Law of Nations which custom had established there several centuries ago did not permit one State to receive into the number of its citizens the subjects of another State. This iniquitous custom had no other foundation than the state of slavery to which the people were then reduced. Princes and lords classed their subjects with their private property, and numbered them as so many sheep. To the disgrace of humanity that strange abuse has not yet been everywhere extirpated.

§ 226. If the sovereign violates their right, he does them a wrong.

If the sovereign undertakes to interfere with those who have the right to emigrate he does them a wrong, and such persons may lawfully ask for the protection of the State which is willing to receive them. Thus we find Frederic William, King of Prussia, giving protection to the Protestant emigrants from Salzburg.

§ 227. Suppliants.

Suppliants are all fugitives who seek the protection of a sovereign against the Nation or prince they have fled from. We can not lay down conclusively the principles of the Law of Nations covering their case until we have treated of the duties of one Nation towards other Nations.

§ 228. Exile and banishment.

Finally, a man abandons his country when exiled from it. An exile is a person driven from the place of his abode, or forced to leave it, but without the stain of infamy. Banishment means expulsion of a similar nature, with the stain of infamy.(a) Both may be for a limited period, or forever. If an exiled or a person who has been banished was domiciled in his own country, he is exiled or banished from his country. In addition it is well to note that in ordinary usage the term exile and banishment are applied to the expulsion from a country of aliens who have had no domicile there, they being forbidden to return, either for a limited time or forever.

Since a right of any kind may be taken from a man by way of punishment, exile, which deprives him of the right to live in a certain place, may be imposed as a punishment. Banishment is always penal in character, since a person may not be publicly disgraced except for real or pretended offenses.

When a society expels one of its members by a perpetual banishment, it only banishes him from its own territory and can not prevent his living wherever else he pleases, for once having expelled him, it has no longer any authority over him. Nevertheless the principle does not hold good where there exists a special agreement between two or more States. This each member of the Swiss Confederation can banish its own subjects from the entire Swiss territory, and a person so banished will not be admitted into any of the cantons or into the territories of their allies.

Exile may be voluntary or involuntary. It is voluntary when a man leaves his domicile to escape some punishment or to avoid some disaster; it is involuntary when the result of a command from the State.

Sometimes an exile has the place where he must remain during exile marked out for him, or he may only be forbidden to enter a certain definite area. These various conditions and modifications depend upon those who have the authority to exile.

§ 229. Persons exiled or banished have a right to dwell somewhere.

Banishment and exile do not take away from a man his human personality, nor consequently his right to live somewhere or other. He holds this right from nature, or rather from the Author of nature, who has intended the earth to be man's dwelling-place. The introduction of private ownership of land can not be in derogation of this right to the means of obtaining the necessities of life, a right which belongs to every man by birth.

§ 230. The nature of this right.

But if in the abstract this right is a necessary and perfect one, it must be observed that it is only an imperfect one relative to each individual country; for, on the other hand, every Nation has the right to refuse to admit an alien into its territory when to do so would expose it to evident danger or cause it serious trouble. This right is based upon a care for its own security which it owes as a duty to itself. This right is based upon a care for its own security which it owes as a duty to itself. By reason of its natural liberty it is for each Nation to decide whether it is or is not in a position to receive an alien (Introd., § 16). Hence an exile has no absolute right to choose a country at will and settle himself there as he pleases; he must ask permission of the sovereign of the country, and if it be refused, he is bound to submit.

§ 231. Duty of nations towards them.

Nevertheless, since the introduction of private ownership of land can not defeat the right belonging to every human being of not being absolutely deprived of the necessities of life, no Nation may, without good reason, refuse even a perpetual residence to a man who has been driven from his country. But if for definite and just reasons a State is prevented from offering him an asylum, the man has no further right to demand it, for in such case the territory occupied by the Nation can not at the same time serve both for its own use and that of the alien. For even supposing that a community of goods was still in existence, no one could take to himself the use of a thing which was actually serving to supply the needs of another. This a Nation, whose territory could scarcely supply the needs of its citizens, is not bound to receive a body of fugitives or exiles. It ought even to refuse them absolutely if they are infected with some contagious disease. So also it has the right to send then off elsewhere if it has good reason to fear that they will corrupt the morals of its citizens, or cause religious disturbances or any other form of disorder hurtful to the public welfare. In a word, it has the right, and is even obliged, to follow in this matter the rules of prudence. But this prudence should not take the form of suspicion nor be pushed to the point of refusing an asylum to the outcast on slight grounds and from unreasonable or foolish fears. It should be regulated by never losing sight of the charity and sympathy which are due to the unfortunate. We should entertain these sentiments even for those whose misfortunes is their own fault; for by the law of charity which bids men love one another we should condemn the crime but love the victim of it.

§ 232. A nation may not punish faults committed outside of its territory.

If a person has been exiled or banished from his country because of some crime, the Nation in which he takes refuge has no right to punish him for the offense committed in a foreign country; for nature only confers upon men and Nations the right to punish to be used for their defense and security (§ 169); whence it follows that we can punish only those who have done us an injury.

§ 233. Except those which affect the safety of all mankind.

But this principle also makes it clear that while the jurisdiction of each State is in general limited to punishing crimes committed in its territory, an exception must be made against those criminals who, by the character and frequency of their crimes, are a menace to public security everywhere and proclaim themselves enemies of the whole human race. Man who by profession are poisoners, assassins, or incendiaries may be exterminated wherever they are caught; for they direct their disastrous attacks against all Nations, by destroying the foundations of their common safety. This pirates are hanged by the first persons into whose hands they fall. If the sovereign of the country in which crimes of this nature have been committed requests the surrender of the perpetrators for the purpose of punishing them, they should be turned over to him as being the one who has first interest in inflicting exemplary punishment upon them; and as is proper that the guilty should be convicted after a trial conducted with due process of law, we have another reason why criminals of this class are ordinarily delivered up to the States in which the crimes have been committed.