A Historical Overview.
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Part I Een Historisch Overzicht.
Part II Heden, Gecompliceerd en Opinies
Part III Voorstellen tot Aanpassingen
It used to be better!
We can go back far into history to see how people considered and arranged nationality in the Netherlands, and how it came excistence. In historical terms, this is quite a young development. After all, it was a million years since we started making fire, 50,000 years ago when we developed languages / speech, 40,000 years ago when we arrived in Europe, 15,000 or 7,500 years ago when we built the first cities. Groups, languages and cultures naturally developed differently over time and distance. But the concept of nationality as used today did not exist until about 150 to 250 years ago. Prior to that there were many local and different rules that governed settlement and the rights of foreigners. These were often based on being self sufficient, contribution to society, and possible religious differences.
In 1506, Emperor Charles V succeeded his father Philip the Fair as lord of the ‘Nether Lands’ (lower countries). His predecessors had tried in vain to unite the often feuding Dutch regions. Emperor Charles V did manage to unite the lords/provinces with a bit of tact. As a result, he laid the foundation for a centrally governed, prosperous state, the current Netherlands.
Emperor Charles V started to codify (writing down) laws / rights. He did this because there was a great diversity of languages, cultures, customs and unwritten laws within his great European empire. This often caused conflicts between the various noble houses, countries and even cities. In 1531, Emperor Charles V therefore issued his so-called homologation order to record (codify) and approve all customary rights in force in the Netherlands. Although there was suspicion and opposition, and local differences persisted, the first Dutch law books were created.
This was an administrative decision, since Emperor Charles V wanted to rule and thereby respect local customs and rights as much as possible in order to avoid any uprising, among other things. In this way he was able to make decisions remotely and/or ensure that local authorities (ambassadors, governors, etc) who were less familiar with the Netherlands were not affected incorrectly and applied as many equal rights as possible. For the same reasons, Napoleon later also had great influence over how rights were codified. There is much to write about it, but it is only later in the 19th century that our current legislation took shape. It certainly wasn’t always better in the past, despite the fact that there were good points that we can learn from today, but in the past it was only (very) different. How different, and how the nationality law came into being we set out in this part I.
The emergence of the concept of nationality
‘Before’ the revolutions of 1848 (sometimes reffered to as the ‘European spring of the nations’, or the ‘spring of the people’), most countries were kingdoms/fiefdoms where the respective royal family often (certainly not always) had almost absolute power. The people and residents were therefore under the protection (ahem!) of their lord, king and / or queen. If you lived in the country, you were a subject/citizen. There was a certain degree of flexibility in this, after all, cities and provinces were fairly autonomous. And these themselves arranged who they welcomed and didn’t welcome. However, as soon as someone was welcomed by society or the administrators (of the city) and settled in the Netherlands, he was a Dutch citizen/national. Recognition of this by the local authorities was necessary and arranged locally. Different cities had their own conditions and regulations.
Diplomatic representatives and rich traders who clearly only settled temporarily or only passed through were a kind of exception to this. They therefore sometimes had a letter of introduction and a declaration of protection from their own lord, a passport. Initialy only those with a lot of money or influence made use of passports. It was up to the Emperor, King, or Magistrate and his (local) representatives to honour these guests.
Later the state wanted full control of its citizens following the French example. From 1795 there was a law requiring passports. No one was allowed to leave the Batavian Republic without a passport. Citizens had to apply for a passport from the state authorities. You could be refused your passport if you were still required to do compulsory military service, but also if you were considered a politically unreliable person or indispensable to the national economy.
The term passport came into being at the end of the 15th century.
An original French term that gave permission to either sail out of the port or go through the city gate. Passport from passeport, from passer, passe + port. Latin: passus
Also later in 1813 King Willem I did not only require a passport for all Dutch citizens to travel abroad, but also for all foreigners coming to the Netherlands. Ironically, the government’s directed this as they were especially suspicious of the French.
With the liberalism of the nineteenth century came the large-scale abolition of passports. As elsewhere, until the First World War people could travel without a passport. Since the First World War the passport is made mandatory again.
The term nationality originated from the French “nationalité” from national (national) and old-French nation (birth, origin, in fr. natie). Het eerste geschreven gebruik was aan het einde van de 18de eeuw.
The first written use was at the end of the 18th century.Before that people often spoke about ‘burger recht’, the right to be a ‘burger’ (citizen) of a city.
Nationality as a concept we use and describe it today did not begin to take shape until the 18th and 19th centuries, but was still a flexible status based on where you lived and / or who served you. It was only later (1830-1890) that political power and decisions about residency and nationality moved from the urban to the national. As a result, foreigners were no longer people from outside the city limits, but from outside the country’s borders.
Before this period and transition, but also somewhat during, people locally determined who was and was not welcome. Until 1788, the city of Utrecht thus formally refused the establishment of Jews. Even travelling through was sometimes limited, it was decreed in 1738 that innkeepers were not allowed to give shelter to strange merchants “ voornamelijk Smoussen en andere vreemde lopers, van buiten inkomende” (mainly Smoussen (Jews) and other strangers, coming in from outside).
Catholic strangers were not really welcome in the city either. Since 1655 Catholics could only acquire ‘burger recht’ with great difficulty, including the membership of guilds and the right of residence. Catholics who already had ‘burger recht’ retained these but new ones were not welcome. Later the arrangement for Catholic newcomers from within the national borders was relaxed, but it remained difficult for foreign Catholics. Catholic newcomers were sometimes allowed to settle in Utrecht, but it was extremely difficult to obtain ‘burger recht’ and thus they were not allowed to join guilds and could consequently not to work independently. Only foreign “useful and necessary Catholics” were admitted. These measures were applied fairly generously at the end of the eighteenth century. A Catholic German brewer’s servant was granted citizenship and Catholic French kettle-bearers and scissors sharpeners were given the right of residence.
Revolutions
Before and after the French Revolution of 1789, it rumbled in Europe. Also in the Netherlands there was a revolution and temporarily no ruling member of the house of Oranje-Nassau during the French period of 1795-1813 / 15. Around 1830, dissatisfaction in Europe flared up again and revolutions followed. Similarly, the south of the Netherlands revolted, separated itself and became the new Belgium (1830-39). The royal houses in Europe felt less secure and were often under pressure to share or even transfer their absolute powers.
Early Dutch nationality law
Nevertheless, King Willem I introduced his own Civil Code in 1837/1838. Nationality was legally regulated in this civil code. Although on some points the law was very old-fashioned, i.e. with regard to women’s rights, etc., compared to later and even now it was a very reasonable and liberal legislation. The nationality law was based on the place of birth / territoriality principle (jus soli) . Also compared to the earlier different ‘burger rechten’ it was very generous.
You were Dutch when born on Dutch territory, in the Netherlands or in the colonies, from parents who lived there. Also non-resident children born on Dutch territory became Dutch by becoming resident in the Netherlands. Children of a Dutch citizen who were born during a trip abroad were also Dutch. Dutch nationality was lost due to naturalization abroad, foreign military or state service and permanent residence abroad with the intention of not returning. Married women had the nationality of their husbands. After divorce or after the death of her husband, the woman could regain her original Dutch nationality on request.
Capitulation to the threat of revolutions
Eventually the pressure became too much and in 1840 King William I renounced the throne. He was succeeded by King William II. It was hoped that the parliament would have more say about the governance of the Netherlands. King William II, however, did not willingly give up his recently acquired absolute power and did not mention a word about any changes. Many were disappointed.
Under pressure, the new King announced in the speech to the throne of 1847 a constitutional revision and proposals for constitutional changes were submitted in 1848. However, the governmental system remained largely the same, sharing power really was not that easy. There were many nobles with interests who also exerted pressure and manipulated the king trying to stop changes.
By March 1848 there was a revolution in Europe. The economy was not doing well and in most countries there was dissatisfaction and criticism of royal houses. The King was driven out of Paris. A hated minister in Vienna was chased away. Fighting took place in Berlin. In Amsterdam, citizens gathered on Dam Square who were driven apart and arrested as “belhamels” . There were riots in The Hague. The shocked king stated that all this made him extremely liberal in one night. The king quickly asked the opinion of the lower house of parliament on a desired constitutional revision.
Origin of the current Dutch parliamentary democracy
Ultimately, a constitutional review came into being that lay the foundation for the Dutch current system of parliamentary democracy. No longer was the King, but were the ministers responsible for policy. The House of Representatives gained much more influence and, moreover, was directly elected, albeit at the time by a limited group of voters.
Because the (so-called) Dutch citizens had the opportunity to influence government policy, the new constitution of 1848 included for the first time that nationality will have to be determined by law. This is probably partly influenced by the separation of Belgium and the need to clearly distinguish everyone’s subjects as well as the xenophobia of politicians and ministers at the time.
Upon King William II losing his political and ruling power he died in 1849. He was succeeded by King William III. The new parliamentary democracy only gets to its task to regulate Article 7 of the Constitution in 1850.
1850 the forerunner of nationality legislation.
Article 7.
“The law states who is Dutch.
A stranger is only nationalized by law. “
The law of 1850 regulates who can be regarded as resident and therefore Dutch. It shows that the term residency was still used where we would now say nationality. This law only concerned the European Netherlands and not the colonies, which was from then onwards regulated separately. The law contains some lenient arrangements for those who have settled in the Netherlands (with money) from the recently (1839) independent Belgium.
The Netherlands was not the only country which changed the concept of local citizenship into nationality. This due to the changes in societies and the new democratic political systems. Elsewhere in Europe, in the 19th century, laws increasingly regulated who was a citizen and who was a foreigner. There is a certain amount of irony in the fact that the liberating revolutions resulted in the emergence of legal nationalism. Most countries chose the place of birth (ius soli) as a basis for nationality while others chose (ius sanguini). The Netherlands started with the domicile principle (ius domicilii), but later changed that to descent (ius sanguini) as the guiding principle for nationality.
The principle of descent (ius sanguini) made it more difficult for foreign nationals established in the Netherlands to acquire Dutch nationality. In addition to the Aliens Act of 1849 requiring every foreigner to have an alien pass (today’s residency card), the nationality legislation of 1850 was also hardened. As a result, the first generation of immigrants could only become Dutch by naturalization. Under this law, the second generation (children of foreigners born in the Netherlands) did automatically receive Dutch nationality. However, naturalization was not difficult, free, and therefore still accessible to most.
Industrial revolution, political revolutions, religious persecution
The political and industrial revolutions of the 19th century created major changes in Europe. Many decided to seek salvation elsewhere for economic, religious or political reasons. Millions of Germans (and others) travelled through the Netherlands on their way to new destinations. Some did not get further than the Netherlands. The rise of industry and the growth of cities in the second half of the 19th century also led to social problems for the Dutch population.
By the end of the 19th century people were not very satisfied with the many Germans who came across the border and settled in the Netherlands. There was already a certain amount of xenophobia as records show. “Smelly Muffs, nasty Prussians and starving Westphalian invaders” were the German newcomers called in government. In addition to the many references to filth, the focus was often on their so-called poverty.
De Winkel van Sinkel and other shops and companies opened by some of these Germans may prove different in many cases but the xenophobia was blind to facts. It was felt that the Netherlands should stop immigration so that it would not become a refuge for the “Quarrellers and troublemakers, or a general poor asylum for the needy from all over the world,” as expressed in the House of Representatives by Michel Henry Godefroi. The reader will probably have noticed how the language at the time corresponds to what is happening worldwide today, Brexit, Trump and the Party for Freedom are some examples of this.
1892, being difficult and discouraging, lock the country, once gone don’t come back
Nationality legislation was thoroughly amended and further elaborated in 1892. For the first time, it is described as the “Dutch Citizenship and Residence Act” . This stipulated that it was only the third generation who acquired Dutch nationality at birth. This only applied to children who had not obtained the nationality of their parents at birth. Women followed the nationality of their (foreign) husband. Naturalisations suddenly cost NLG 100.00 (comparable to € 1280.78 today). The term “Nationality” and concept starts to be used as we know it today. For the first time, a detailed description was given of how people could lose their Dutch nationality. Article 7:
1e by naturalizating in another country, or, as far as a minor is concerned, by becoming a part of a foreign nationality by naturalization from either the father or from the mother, according to the distinctions made in Article 1, in another country;
2e by marriage of the Dutch woman who, by or as a result of her marriage, becomes a foreigner by virtue of Article 5;
3e by acquiring a foreign nationality through own will;
4e by joining a foreign army or authority without our permission;
5e by being domiciled outside the Empire and its colonies or possessions in other parts of the world for ten consecutive years, except in the case of the national/governmental service, unless the absentee before the expiry of that period informs to the mayor, or the head of the local administration at his last place of residence in the Empire or its colonies or possessions in other parts of the world, or the Dutch envoy or a Dutch consular officer in the country where he lives, that he wishes to remain Dutch.
The ten-year period starts to run again from the day on which that notification is received.
With regard to minors, the ten-year term begins to run on the day of their majority as per Dutch law.
1892 the principle of a single nationality and losing the Dutch nationality.
In addition to seeing how it becomes much more difficult for a foreign national to be admitted as a citizen and later to become a Dutch citizen, it is now also becoming easier to lose the Dutch nationality. The principle of a single nationality arose with the idea that one could only belong to a king / government / country. People were still seen as subjects in the sense of being submissive and belonging to. A long-term stay in foreign parts was therefore seen as a conflict with the mother country. To a certain extent understandable, people reasoned that one could not belong to two masters.
To toughen the hard line and soften it
Nationality legislation has been amended dozens of times since 1892, and even profoundly so in 1984, but it is striking to see how the current law still closely resembles the law of 1892. The principles are largely the same today. However, society and the state have changed a lot. The newly obtained liberties mean that today we are again free to travel and settle elsewhere. Temporarily, for a longer period or permanently. The number of Dutch people in foreign parts has grown with the prosperity, population, and the ever more international world.
In the legislation of 1892 we see for the first time the use of the so-called ‘ten-year clock’. A toughening of the 1850 Article 10, paragraph 3, which already wrote that “the state of Dutch nationality will be lost ” by a five-year stay in a foreign country, with the apparent intention not to return” . However, this five-year clock was open for interpretation. Trade for the benefit of the Netherlands was of course a good reason. For example, the law concluded at the time “the intention to return is deemed to exist in the event of a stay abroad in connection with Dutch trade arrangements.”
In general, the law of 1892 was a tough way to give nationality to fewer foreigners and also remove nationality. The weirdos in the colonies were no longer seen as subjects and were legally separated from the European Netherlands.
On the one hand, we see legislative changes over the following decades that further explain the restrictions to only having one nationality. However, over time, society has changed a lot and so has the nationality law. The second world war and the hippies in the sixties / seventies opened the eyes of many that people wanted a more social and inclusive society where differences had to be accepted rather than resulting in separation and resistance. The world became more liberal and opened more and more.
People have wanted to make the law more lenient and fairer over the duration of the 20th century and made several small changes. For example, today women no longer automatically lose their Dutch nationality when married to a foreigner. Children with parents of two nationalities are no longer forced to choose one nationality when becoming an adult. There was a clear intention to care for / protect families with multiple nationalities. ‘Unfortunately’ we see that this was mainly due to UN and EU treaties or to pressure from society. The sad and ‘unfortunately’ in that is that this did not always come from the Dutch government itself.
With the recent economic crisis (2008) and the following years of “Austerity”, we unfortunately see again a toughening of society. In part 2 we discuss what the current law looks like and the current ressistance to prevent further modernization.
End of Part I
Deel II Heden, Gecompliceerd en Opinies
Deel III Voorstellen tot Aanpassingen
Auteursrecht and Copyright: Kris von Habsburg