PART I.

CITIZENSHIP BY BIRTH.

CHAPTER I.

CITIZENSHIP BY BIRTH IN THE UNITED STATES.

1. Common-law doctrine.

2. Civil rights act and 14th Amendment are declaratory of common-law rule.

3. Children born in United States of alien parentage.

4. Dual citizenship of children of aliens born in United States; election of nationality.

1. Common-law doctrine.-There is no uniform rule of international law covering the subject of citizenship. Every nation determines for itself who shall, and who shall not, be its citizens. According to the law of some states, citizenship by birth depends upon the place of birth. This is the jus soli, or commonlaw doctrine. According to the law of other states, citizenship. depends upon the nationality of the parents. This is the jus sanguinis,—sometimes erroneously termed the doctrine of the law of nations, because it obtains in many countries. In some countries both elements exist, the one or the other, however, predominating. By the law of the United States, citizenship depends, generally, on the place of birth; nevertheless the children

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of citizens, born out of the jurisdiction of the United States, are alse citizens. The existence of these two doctrines, side by side, in this country, is the cause of much of the confusion which has arisen in relation to citizenship in the United States. Formerly, the lack of any definition of citizenship in our fundamental law and in our statutes further complicated the matter; and the somewhat ambiguous language employed in supplying this defect rendered it a debatable question whether or not it was intended to declare the common-law doctrine.

The Constitution of the United States, while it recognized citizenship of the United States in prescribing the qualifications of the President, Senators, and Representatives, contained no definition of citizenship until the adoption of the 14th Amendment, in 1868; nor did Congress attempt to define it until the passage of the civil rights act, in 1866. 14 Stat. at L. 27, chap. 31, U. S. Comp. Stat. 1901, p. 1268. Prior to this time the subject of citizenship by birth was generally held to be regulated by the common law, by which all persons born within the limits and allegiance of the United States were deemed to be naturalborn citizens thereof.

It appears to have been assumed by the Supreme Court of the United States in the case of Murray v. The Charming Betsy (1804) 2 Cranch, 64, 119, 2 L. ed. 208, 226, that all persons born in the United States were citizens thereof. Chief Justice Marshall said in that case: "Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can devest himself absolutely of that character otherwise than in such manner as may be prescribed by law, is a question which it is not necessary at present to decide." See also Inglis v. Sailor's Snug Harbor, 3 Pet. 99, 7 L. ed. 617, and Shanks v. Dupont, 3 Pet. 242, 7 L. ed. 666.

In M'Creery v. Somerville (1824) 9 Wheat. 354, 6 L. ed.

109, which concerned the title to land in the state of Maryland, it was assumed that children born in that state of an alien were native-born citizens of the United States.

This matter was elaborately considered in the case of Lynch v. Clarke, 1 Sandf. Ch. 583, decided in 1844 in New York. In that case one Julia Lynch, born in New York in 1819, of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country, and always resided there afterwards. It was held that she was a citizen of the United States. After an exhaustive examination of the law, the court said that it entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen; and added that this was the general understanding of the legal profession, and the universal impression of the public mind.

The executive departments of our government have repeatedly affirmed this doctrine.

Mr. Marcy, Secretary of State, in 1854, in an instruction to Mr. Mason, United States Minister to France, said: "In reply to the inquiry which is made by you, whether 'the children of foreign parents born in the United States, but brought to the country to which the father is a subject, and continuing to reside within the jurisdiction of their father's country, are entitled to protection as citizens of the United States,' I have to observe that it is presumed that, according to the common law, any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship." Mr. Marcy to Mr. Mason, June 6, 1854, MSS. Inst. France.

Attorney General Black, in 1859, held that "a free white person born in this country of foreign parents is a citizen of the United States." 9 Ops. Atty. Gen. 373.

Attorney General Bates, in 1862, held that a child born in the United States of alien parents who have never been naturalized is, by the fact of birth, a native-born citizen of the United States, entitled to all the rights and privileges of citizenship. 10 Ops. Atty. Gen. 382.

And in the same year Attorney General Bates, in the celebrated opinion given by him to Mr. Chase, the Secretary of the Treasury, on the citizenship of free men of color born in the United States, said: "As far as I know, Mr. Secretary, you and I have no better title to the citizenship which we enjoy than the ‘accident of birth,'-the fact that we happened to be born in the United States. And our Constitution, in speaking of natural-born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic. If this be a true principle (and I do not doubt it), it follows that every person born in this country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the 'natural-born' right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumThat nativity furnishes the rule, both of duty and of right as between the individual and the government, is a historical and political truth so old and so universally accepted that it is needless to prove it by authority." 10 Ops. Atty. Gen. 394.

stance.

It is beyond doubt that, before the enactment of the civil rights act of 1866 (Rev. Stat. § 1992, U. S. Comp. Stat. 1901, p. 1268), or the adoption of the constitutional amendment, all white persons, at least, born within the sovereignty of

the United States, whether children of citizens or foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States. United States v. Wong Kim Ark, 169 U. S. 674, 42 L. ed. 900, 18 Sup. Ct. Rep. 456.

2. Civil rights act and 14th Amendment are declaratory of common-law rule.— The civil rights act, adopted April 9, 1866 (Rev. Stat. § 1992, U. S. Comp. Stat. 1901, p. 1268), contains this language: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States."

The 1st section of the 14th Amendment to the Constitution, adopted in 1868, declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

These two definitions, which are practically identical, are declaratory of the common law.

The clause in the civil rights act defining citizenship was proposed in the Senate. In the course of the debate in that body, Senator Trumbull, the chairman of the judiciary committee, who drew the bill, said: "It is competent for Congress to declare, under the Constitution of the United States, who are citizens. If there were any question about it, it would be settled by the passage of a law declaring all persons born in the United States to be citizens thereof. That this bill proposes to do." Cong. Globe, 1st Sess. 39th Congress, pt. 1, p. 475.

In the discussion Senator Morrill asked the following question, to which no reply was made: "As matter of law, does anybody deny here, or anywhere, that the native-born is a citizen, and a citizen by virtue of his birth alone?" Id. p. 570.

In reply to the remarks of Senator Henderson, of Missouri, in