try.

From the law as announced and facts as stipulated, I am of opinion that Wong Kim Ark is a citizen of the United States within the meaning of the citizenship clause of the 14th Amendment." 71 Fed. 382.

This case being taken, on appeal, to the Supreme Court, that tribunal, in March, 1898 (169 U. S. 649, 42 L. ed. 890, 18 Sup. Ct. Rep. 456), affirmed the judgment of the court below, and authoritatively settled the question we have been considering. The court laid down these propositions:

1. By the common law, every child born in England of alien parents was a natural-born subject, unless the child of a diplomatic representative of a foreign government, or of an alien enemy in hostile occupation of the place where the child was born.

2. This rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.

3. There is no ground for the theory that, at the time of the adoption of the 14th Amendment of the Constitution of the United States, there was any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.

4. The Constitution of the United States must be interpreted in the light of the common law.

5. The 14th Amendment and the civil rights act of 1866 (14 Stat. at L. 27, chap. 31, U. S. Comp. Stat. 1901, p. 1268) reaffirmed in the most explicit and comprehensive terms the fundamental principle of citizenship by birth.

6. It is the inherent right of every independent nation to determine for itself and according to its own Constitution or laws what classes of persons shall be entitled to its citizenship.

The court said that "the real object of the 14th Amendment of the Constitution, in qualifying the words, 'all persons born in the United States,' by the addition, ‘and subject to the jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases, children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign state,— both of which, as has already been shown, by the law of England, and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country."

Acting Secretary Adee in an instruction to the United States Embassy in Rome, August 8, 1901, said: "The position of the Department is that birth in the United States, irrespective of the nationality of the parents, confers American citizenship. In view of the decisions of our Federal courts, there can be no doubt of the correctness of this position." For. Rel. 1901, p. 303.

The foregoing establishes, beyond controversy, that, by our law, the children born to foreigners in the United States are citizens of the United States.

4. Dual citizenship of children of aliens born in United States; election of nationality. It is objected to this disposition of the

*The children of enemies, born in a place within the dominions of another sovereign then occupied by them by conquest, are still aliens; but the children of the natives, born during such temporary occupation by conquest, are, upon a reconquest or reoccupation by the original sovereign, deemed, by a sort of postliminy, to be subjects from their birth, although they were then under the actual sovereignty and allegiance of an enemy. Inglis v. Sailor's Snug Harbor, 3 Pet. 156, 7 L. ed. 637.

question that it leaves room for frequent conflicts of law in cases where the alien parent is a subject of a country whose laws declare that the children born abroad, of its subjects, are also its subjects. From the fact that every state has the right to determine by its own law who shall be entitled to its citizenship, conflicts of law result, and it frequently happens that a person has a dual nationality. Such conflicts are not resolved In respect

by a resort to the principles of international law.

to all persons as to whose nationality a difference of legal theory can exist, international law has made no choice, and it is left open to states to act as they like. Hall, International Law, 4th ed. chap. 5, § 66. As in conflicts of law in relation to other matters, however, states have shown a disposition to relax. sovereign rights, and have made mutual concessions by which the effects of conflicts of law in regard to nationality are to a considerable extent avoided.

It is a principle, recognized by a large number of states, that where there is a conflicting claim to the allegiance of a person, -one country claiming him by reason of his birth within its jurisdiction, and the other by virtue of his parentage, he must, upon reaching majority, or within a reasonable time thereafter, make an election of nationality.

The British act of 1870 declares that "any person who is born out of Her Majesty's dominions, of a father being a British subject, may, if of full age, and not under any disability, make a declaration of alienage, and, from and after the making of such declaration, shall cease to be a British subject." 33 & 34 Vict. 104, chap. 14.

The right of election is also recognized by the laws of France, Spain, Belgium, Greece, Bolivia, Italy, Portugal, and Mexico.

Hall, International Law, 3d ed. pp. 222, 223; 2 Wharton, Inter national Law Dig. 404.

The practical recognition of this principle by this government is illustrated in the following cases:

Mr. Seward held, in 1868, that "the son born in this country (of a native Prussian) acquired the right of electing to which country he should claim citizenship. This election he appears to have exercised in favor of Prussia by his residence there for years with his father and by a continued residence there after arriving at the age of twenty-one years." Mr. Seward to Mr. Banks, April 7, 1868, MSS. Dom. Let.

Mr. Fish held that "the minor child of a Spaniard, born in the United States, and while in the United States, or in any other country than Spain, is a citizen of the United States. The United States has, however, recognized the principle that persons, although entitled to be deemed citizens by its laws, may also, by the law of some other country, be held to allegiance in that country." Mr. Fish to Mr. Cushing, February 16, 1877, MSS. Inst. to Spain; 2 Wharton, International Law Dig. 396.

Mr. Evarts, in an instruction to the United States Minister at Paris, held that a child who, born in the United States to French parents, goes in his minority to France and there rcmains voluntarily after he has become of full age, may be held to have abjured his American nationality. Mr. Evarts to Mr. Noyes, December 31, 1878, MSS. Inst. to France.

And in an instruction to Mr. White, United States Minister to Germany, Secretary Evarts said that the sons born in this country to a German, naturalized here, are, though they were taken back, for a few years during their minority, to Germany, citizens of the United States, they having returned to this country before having arrived at full age, and electing it as their

domicil when arriving at full age. MSS. Inst. to Germany, June 6, 1879, 2 Wharton, International Law Dig. 397.

Minor children born in this country to naturalized citizens, afterwards temporarily visiting Germany, are entitled to passports to return to the United States on the eve of their coming of age. Mr. Evarts to Mr. White, April 23, 1880, MSS. Inst. to Germany, 2 Wharton, International Law Dig. 397.

And in another case Mr. Evarts said: "A person born in the United States has a right, though he has intermediately been carried abroad by his parents, to elect the United States as a nationality when he arrives at full age." Mr. Evarts to Mr. Cramer, November 12, 1880, MSS. Inst. to Denmark, 2 Wharton, International Law Dig. 397.

Friedrich De Bourry was born in New York city, in 1862, of Austrian parents then temporarily resident in that city, where he remained until he was five years of age, when he accompanied his mother to Europe. Two years later his father joined him and his mother in Vienna, where the father died in 1880. The son engaged in the Austrian railway service until 1886, at which time he applied to the United States Legation for a passport as an American citizen. The matter being referred. to the Department of State, Mr. Bayard declined to grant the passport because there was no evidence that young De Bourry had ever made, or intended to make, an election to become a citizen of the United States. Said he: It is not "pretended that when, on December 5, 1883, the present memorialist arrived at full age, he took any steps to make or record his election of citizenship in the United States. For several years before that date he was old enough, with his mother's permission, which it is plain, from her affidavit, she was ready to give, to come to the country of his birth, if it had been the country of his intended citizenship. He alleges no effort of this kind, nor any